Police Cautions (Young People)

Damian Green Excerpts

Wednesday 17th April 2013 Westminster Hall

[The Minister for Policing and Criminal Justice (Damian Green)]

It is a pleasure to serve under your chairmanship, Mr Gray, I think for the first time. I congratulate my hon. Friend the Member for Winchester (Steve Brine) not only on securing the debate, but on his admirable and in my experience unprecedented brevity in not filling up the entire time available to him. I appreciate his interest not only generally, as a member of the Justice Committee, which has indeed pronounced on the matter recently, but particularly, in the individual case that brought the issue to his attention. I will deal with that later in my speech.

On the generalities, the youth justice system is focused on early intervention and on diversion of children and young people from formal disposals where that is appropriate. In recent times, there has been an increase in the use of informal disposals by the police and an adoption of restorative justice approaches, which I strongly support. All police forces now have trained restorative justice facilitators, and an on-the-spot restorative action can often provide the best disposal when a minor, usually first-time misdemeanour is committed. Such an approach can also be beneficial to the victim, who gets immediate reparation from the young person who has committed the offence. There has been a significant reduction in the use of formal disposals by the police over recent years. Since 2001-02, there has been a 57% fall in the number of reprimands, final warnings and conditional cautions given to young people in England and Wales: 40,757 were given in 2011-12, compared with 94,836 in 2001-02.

[Jeremy Corbyn (Islington North) (Lab)]

I congratulate the hon. Member for Winchester (Steve Brine) on his contribution. My right hon. Friend the Member for Warley (Mr Spellar) made a good intervention, which I support absolutely. People in inner city areas such as the one that I represent, and in particular minority ethnic youths in those areas, seem to have a disproportionately high chance of being stopped and searched, of getting formal cautions and therefore of being impeded in getting work in the future. Will the Minister look into the geographical breakdown of the cautions given and the operational guidance given to police forces? I, of course, support the much earlier write-off of cautions to preserve the career opportunities of all our young people.

[Damian Green]

The hon. Gentleman might be aware that we are conducting a cautions review at the moment, so feeding into that is important. As I am about to explain in detail, we are concerned to encourage the use of out-of-court disposals but to ensure that, first, the length of time for which they are active beyond the period of the commission of the offence is properly limited and that, at the same time, they provide confidence in the wider justice system and in particular a feeling among victims that appropriate reparation has been made. That is the balance to be struck.

[Mr Spellar]

The initiatives that the Minister is announcing are useful and heading in the right direction, but we might be getting away slightly from the core of the issue: misdemeanours or offences committed at a young age, whether leading to cautions or convictions and minor punishments, can blight people’s lives. We saw that, in particular, with the elections for police and crime commissioners, when a number of individuals of all political parties were prevented from standing 40 or 50 years after committing the offences. That should have highlighted the necessity of taking action, to prevent them from appearing on people’s records and their life being affected.

[Damian Green]

The right hon. Gentleman is right; that was certainly a vivid example of the long-lasting effect. I gently point out, however, that that legislation was passed by the House over the past couple of years entirely unopposed.

[Mr Spellar]

All parties made a mistake.

[Damian Green]

However, the time for which an offence should hang over a young person or anyone else is contentious, and we must be careful to strike a balance. Ensuring appropriate punishment and particularly appropriate reparation for victims, so that they have confidence in the system, form the other half of the balance that I am sure all hon. Members want to strike.

[Gareth Johnson (Dartford) (Con)]

The Minister makes a valid point about the public’s confidence being undermined by using cautions. Does he agree that confidence might also be lost when cautions are repetitively given to offenders with a view to improving the clear-up figures?

[Damian Green]

I would be interested to know whether my hon. Friend has evidence that cautions are used to improve clear-up figures. The answer to his general point is that, yes, I agree that the repetitive use of cautions may damage confidence in the system. One reason why we are looking at the whole system of cautions is precisely to avoid such damage to confidence.

A youth caution may be given for any offence that the young offender admits when there is sufficient evidence for a realistic prospect of conviction but it is not in the public interest to prosecute. The flexibility provided by the youth caution allows the police greater discretion to offer a disposal that is appropriate to the circumstances of the offence and offender, rather than being arbitrarily determined by previous disposals or convictions.

We have retained in the youth caution the critical elements of assessment and intervention inherent in the final warning scheme. The youth offending team will be obliged to assess and, unless considered inappropriate, to put a rehabilitation programme in place when a young person has received a second or subsequent youth caution. That reflects the current threshold of obligatory assessment following a warning and is designed to prevent a return to precisely the repeat cautioning to which my hon. Friend referred. Unlike reprimands and warnings, the youth caution does not have a fixed limit on the number that may be administered, and it may be used if a young person has previously been convicted. That allows the police to use discretion, in consultation with the youth offending team, and to avoid an unnecessary court process if that is not merited.

Introducing a flexible youth caution that can be used more than once should help young people when seeking future gainful employment despite a minor misdemeanour that is causing concern. The youth caution becomes spent immediately, so there is no requirement for the young person to disclose that they have received one, unless they are seeking employment in an occupation listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, such as working with children or other vulnerable people.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 revised the youth conditional caution. We reduced unnecessary bureaucracy by giving the police power to authorise youth conditional cautions without the need to seek the authorisation of a prosecutor. The police can now offer a youth conditional caution with input from a youth offending team as at present but without the need for agreement from the Crown Prosecution Service. The youth offending team’s role is now statutory to provide a check on the appropriateness of the disposal and will also allow the YOT to apply for a parenting order if necessary.

Conditional cautions require offenders to take responsibility for their actions, including agreement to conditions that require them to put things right or to seek help for their behaviour. It is important to recognise the role of the victim and to ensure that they have proper redress through such an out-of-court disposal. Since 8 April, the revised youth conditional caution has been available to all 10 to 17-year-olds throughout England and Wales. The youth conditional caution has a three-month rehabilitation period to allow for the conditions to be completed, but offers similar benefits to the youth caution in becoming spent rapidly and therefore not subject to disclosure for most purposes.

The third change to that sort of disposal in the 2012 Act was to abolish penalty notices for disorder for 10 to 17-year-olds. Penalty notices can be an effective deterrent and provide resolution of offences for adult offenders, but we believe they are less effective for young people. The principal aim of the youth justice system is to prevent offending by young people. For that age group, we believe it is more effective to use out-of-court disposals involving assessment and intervention by the local youth offending team than fixed penalties.

Other legislation that is centrally important to the matters that the debate gives rise to is the Rehabilitation of Offenders Act 1974, which has an important role in helping those who have a criminal conviction but have put criminality behind them. From the tone of the debate, it is clear that many hon. Members believe that it is important to provide individuals with the opportunity to leave behind mistakes that they made when they were young. Minor offending behaviour committed when the offender was immature should not blight their prospects. That is recognised in the fact that rehabilitation periods are generally shorter for under-eights than for adults. Most crime committed by young people is relatively minor and often results in the out-of-court disposals or fines that I am talking about. A significant proportion of the population have had a conviction at some point in their lives, but few of them pose a serious risk of harm to the public. I am sure that we all agree that it is in society’s interest that ex-offenders are given the chance to reintegrate into their communities and lead law-abiding lives.

My hon. Friend the Member for Winchester referred to a recent Court of Appeal judgment that found that both the current exceptions order to the Rehabilitation of Offenders Act 1974 and part V of the Police Act 1997 are unlawful. That is because they provide for blanket disclosure of all spent convictions and cautions regardless of how old or minor they may be. In response to that judgment—my hon. Friend raised this point specifically —we are amending the exceptions order. We are proposing that certain spent disposals will no longer be subject to disclosure under that order after a specified period, which will be shorter for young offenders than for adults.

Public protection and safeguarding obviously remain primary concerns, and for that reason disposals for specified sexual and violent offences and other offences relevant to safeguarding will always be subject to standard or enhanced disclosure. Any offence resulting in a custodial sentence will continue to be subject to disclosure. Those measures are necessary to maintain public protection, and I suspect that there is agreement on that on both sides of the Chamber.

For other offences, cautions and minor convictions will no longer be subject to disclosure, nor will they be able to be taken into account by an employer after a certain period. Cautions and equivalents administered to a young offender for a non-specified offence will no longer be subject to disclosure under the exceptions order after two years. Secondary legislation containing those provisions has been laid before Parliament and will be subject to the affirmative process. My hon. Friend wanted a detailed timetable, but he has been here long enough to know that such business management goes on behind closed doors.

[Steve Brine]

I have been here a while now and I cannot wait to be on another Committee. The Minister may be coming to this, but will he refer to retrospection of the order?

[Damian Green]

The changes to the Rehabilitation of Offenders Act 1974 will have retrospective effect. I will come to the case of my hon. Friend’s constituent, but I can give him that general reassurance.

Employers have a key role in how criminal record information is treated, and they should have a fair and objective policy on the recruitment of ex-offenders. It is important that they should consider the circumstances and relevance of a spent, or unspent, conviction where that is disclosed. That should include taking into account the age of the person at the time, the disposal received and what the person has done in the meantime. Of course, we encourage employers to adopt that fair approach, which is critical in assisting ex-offenders in obtaining gainful employment and, therefore, helping their rehabilitation. It ought to go without saying—but it is worth mentioning—that a minor youthful indiscretion should clearly not be a barrier to employment in later life.

Turning to my hon. Friend’s constituent, I understand that she received a caution for theft aged 15 but now wishes to pursue a career as a lawyer. That is an occupation listed on the exceptions order and therefore disclosure of spent cautions and convictions can be requested and an employer can take them into account. As he said, she has been advised that her caution means that she may not be accepted to practise law. However, I am pleased to say that, from his description of the case, it appears that she will benefit from our proposed amendment to the exceptions order. As I have said, under the proposals, a caution received as a young person for a non-specified offence, which includes theft, will no longer be subject to disclosure, nor will an employer be able to take it into account, after a period of two years. I should be clear that the caution will nevertheless remain on the record, but the changes to the exceptions order will specifically address his constituent’s case. Clearly, there are circumstances in which the disclosure of all cautions and convictions may still be required, such as in subsequent court proceedings.

Returning to the use of out-of-court disposals in general, we know that it is important to consider the need to provide assurance to the public that they are being used appropriately and proportionately. We very much recognise the concern of the public and that expressed in the recent Justice Committee report about the proper use of out-of-court disposals. The Chairman of the Committee, my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith), is here, and I thank the Committee for contributing to a thought process that has led to our review of simple cautions. The Ministry of Justice, the Home Office and the Attorney-General’s office will be working closely with the police and the Crown Prosecution Service, as well as taking the views of practitioners across the criminal justice system.

The review is considering a number of issues: the existing guidance and practice relating to the use of simple cautions; whether there are some offence types for which the use of simply cautions is generally inappropriate—and if so, what procedures we should adopt; the reasons why multiple cautions have been given to some criminals; the difference in the use of cautions by different police forces and whether increased scrutiny is needed to ensure that they are used consistently; and the impact on individuals of accepting a caution, including any potential impact on future employment. I take the point that was raised by a couple of hon. Members in the debate on whether the use of such disposals may have a disproportionate impact on different communities.

I should make it clear that, although the review into cautions is focused on adult simple cautioning, it will consider aspects of youth cautioning and adult conditional cautioning, where there is good reason to do so. The Justice Committee expressed concern about the provision of oversight and scrutiny of how the police are using out-of-court disposals, so I hope that the various Committee members who are here at the moment will welcome our commitment to look into the matter further.

I make it clear that the Government believe that out-of-court disposals have an important part to play in the youth justice system, because they can provide a quick and effective resolution to a crime for the victim, which a court case might not. My hon. Friend the Member for Winchester asked a specific question about the Government seeking leave to appeal to the Supreme Court. We consider that the terms of the judgment are simply too broad, but, as I have mentioned, the orders that we laid before Parliament on 26 March can be taken as our response to the judgment, and the orders will come into force when they are approved by the House.

More generally, the provisions in the LASPO Act that came into effect earlier this month have significantly simplified the youth out-of-court disposals framework, by providing clearer and simpler decision-making for practitioners, a greater understanding for the public of how the disposals fit together and the circumstances in which they are used—

[Mr James Gray (in the Chair)]

Order. I apologise for interrupting the Minister, but the clock dictates that I should do so. We now come to the next debate.