Police Cautions (Young People)

Steve Brine Excerpts

Wednesday 17th April 2013 Westminster Hall

[Steve Brine (Winchester) (Con)]

You will be happy to know that I have prepared for this debate, Mr Gray. It is a pleasure to serve under your chairmanship for the first time and I am pleased to have secured the debate. I am still wearing a black tie after the events of this morning, but I think that this debate involves good news. I look forward to the Minister’s winding-up speech. The debate provides an opportunity for me to discuss an issue that can blight the lives of many hard-working young people in our constituencies and seek clarification from the Minister on recent developments in Government policy.

Police cautions can have a detrimental impact on the lives and employment prospects of young people. An e-mail from one of my constituents led me to initiate the debate, and I know that many other Members have received similar correspondence. My constituent, who is now in her final year at university, received a police caution in early 2007, when she was 15 years old, for a minor shoplifting offence while part of a dominant group of girls. Her e-mail explained to me that the huge peer pressure that she felt so as to be accepted as part of that group and coercion by her then friends were key reasons for her behaviour, which she admits was poor. I am sure that many of us have some sympathy with that.

Looking back, my constituent admits that she feels utterly embarrassed by and ashamed of her actions, which were completely unrepresentative of her character. She has not acted similarly before or since. She is not a dishonest person—I have seen several character references from employers and former teachers that she has provided to back that up—and in the years since the offence she has not kept in contact with any of the people involved and has gone on to achieve success in her exams and at university.

My constituent’s ambition is to pursue a career in law, and her academic success and involvement in voluntary and extracurricular activities make such a career possible, but that dream has been jeopardised by the police caution that she received more than six years ago. The Solicitors Regulation Authority has informed her that it is more likely than not that her application will be rejected due to her caution. She is understandably devastated that she may not be able to pursue her chosen career.

As the Minister will be aware, the Justice Committee, of which I am a member—I am pleased to see our Chairman, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), here today—published a wide-ranging report on youth justice on 14 March. Among our many recommendations, one is particularly relevant to this debate. Paragraph 21 of the conclusions and recommendations reads:

“We support the reduction in rehabilitation periods introduced via the Legal Aid, Sentencing and Punishment of Offenders Act, which means that many young offenders’ convictions will become spent sooner. We also agree with the Minister that employers, as well as schools, colleges and universities, should consider taking young people on despite their previous offences, as many do. Nevertheless, while we recognise that for very serious offending, disclosure of convictions will continue to be in the public interest, we consider there is potential to go further in relation to more minor convictions. We therefore recommend that, in addition to keeping the youth rehabilitation periods under review, the Government considers legislating to erase out-of-court disposals and convictions from the records of very early, minor and non-persistent offenders at the age of 18, so that they cannot be disclosed to employers under the Exceptions Order to the Rehabilitation of Offenders Act.”

Since 2008, more than 1 million child arrests have been made in England and Wales, about one third of which resulted in a police caution. Lest I am misunderstood —heaven forbid—by certain sections of the press or even the House, I want to be clear that I believe young people should be punished according to the rule of law, like anybody else, when they do wrong. How we respond to often low-level bad behaviour by youngsters, however, has the potential to blight the rest of their lives by further alienating them from society. Our country cannot afford and would not be right to put young people, in effect, on the scrap heap before they had ever had a chance. Those young people need support, not perpetual criminalisation, and this change would provide that.

The Justice Committee report’s recommendation aims to improve the prospects of young people who have received police cautions for minor offences and have not reoffended by wiping their records, thereby preventing cautions from being disclosed to certain potential employers during criminal record checks.

[Mr John Spellar (Warley) (Lab)]

Does the hon. Gentleman realise that the problem can be hugely discriminatory against youngsters in inner cities, many of whom receive cautions at an early age, blighting their lives? We are in danger of creating a perpetual underclass of people who can never escape due to minor offences for which Parliament never legislated such a disproportionate penalty.

[Steve Brine]

I very much agree. We are often talking about people who come from disadvantaged backgrounds. As a country, we are crazy to hold them down, as we do in some cases. They need support, not perpetual criminalisation.

Although not entirely down to the actions of our Committee—it would have been a swift move by the Minister if so—I am pleased that the Government plan to lay before Parliament a statutory instrument to amend the exceptions to the Rehabilitation of Offenders Act 1974, so that some spent convictions and cautions do not have to be disclosed and cannot be taken into account in employment decisions. Nevertheless, that development still leaves us with several questions.

On 29 January this year, the Court of Appeal ruled that the system of Criminal Records Bureau checks constituted a breach of article 8 of the European convention on human rights and of the Human Rights Act 1998, and that requiring the disclosure of all convictions and cautions relating to recordable offences is disproportionate to the aim of protecting children and vulnerable adults. Why, therefore, did the Government feel the need to seek leave to appeal to the Supreme Court?

The statutory instrument that the Government will lay before Parliament will help my constituent and many others, so I welcome it. It is proposed that cautions and equivalents administered to a young offender will not be subject to disclosure after two years, and that a conviction received as a young offender resulting in a non-custodial sentence will not be subject to disclosure after five and a half years. May I press the Minister, however, to implement the measure as quickly as possible? How long will it be before the order is laid before the House? Will he confirm that any changes will be applied retrospectively?

Finally, my constituent highlighted two other important issues, which concern other Members as well. First, on the role of local constabularies in removing or retaining a caution on a young person’s record, my constituent contacted Hampshire constabulary in the hope that it might be able to remove the caution from her record, but she was told that nothing could be done in that regard. However, in certain circumstances, do not chief constables have the discretion to prevent the disclosure of cautions? Where does the truth lie?

[Rehman Chishti (Gillingham and Rainham) (Con)]

I congratulate my hon. Friend on securing this important debate and the work that he does on these issues. He is talking about certain constabularies approaching the matter in certain ways. I understand that the Government have piloted initiatives to examine dealing with cautions in a different way, as he has discussed. Has he made any assessment of how effective the pilot scheme has been so far?

[Steve Brine]

No, is the honest answer, but I am aware of the pilot, so perhaps the Minister will be kind enough to refer to it. I am grateful for that point, made by a fellow member of the Justice Committee.

Other people want to get in to speak and we want to give the Minister time to respond, so I shall draw to a close. To make the second point, there is no requirement to consent to receiving a police caution for young people. Many of them do not appreciate the impact that a criminal record will have on their life and career prospects, which means that they can be burdened with a record without fully understanding the consequences. Can more be done, therefore, to ensure that young people are aware of the consequences of receiving a caution, which is more than just a ticking off or what used to be a clip around the ear?

In summary, many of the young people who receive cautions immediately regret their actions, but they soon discover that the consequences severely jeopardise their job prospects and opportunities. Many of those youngsters come from underprivileged and unstable backgrounds, so is it not counter-productive to criminalise them further and to destroy what opportunities they might have in our society?

I welcome the steps that the Government are taking to prevent disclosure of old and minor offences to potential employers. I hope that the reforms make a significant difference to the life of many constituents, such as mine and many others.

--- Later in debate ---

[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—