Schedule 11
Criminal Justice and Immigration Bill
1:45 pm
Harry Cohen (Leyton and Wanstead, Labour)
This is a probing amendment, to try to get some information from the Minister. My source is Liberty, which has expressed concern that cautions will be imposed on youth offenders with the objective of imposing punishment. Liberty says that there is a two-step system, which leads automatically to court if the young person offends again within two years. That system is in place under the Crime and Disorder Act 1998.
Liberty is worried that the measure
“acts as a funnel, channelling young people into the criminal justice system and removing the option of informal intervention as a way of tackling low-level offending. The result is growing numbers of young people embroiled in a criminal justice system which, once entered, is difficult to escape.”
Liberty and I acknowledge that, in clause 53, the Government are proposing to give police and prosecutors an alternative to reprimand and final warning, which will be done by extending the adult conditional caution scheme to 16 and 17-year-olds. However, Liberty says:
“We fear that, in practice, youth conditional cautions could operate as a short cut to punishment for 16 and 17-year-olds. Cautions are supposed to be an alternative to entering the criminal justice process”.
But, of course, 16 and 17-year-olds could become embroiled in the criminal justice process under this route and the two-tier system to which referred earlier.
Liberty goes on to say:
“There is, however, a real danger that conditional cautions will be used as a short cut to punishment, intended for use in large numbers of cases.”
It would be interesting to hear what the Minister thinks about the number of cases that will be caught up in this process.
The concern is that the conditional cautions will be used for punishment. Under the Criminal Justice Act 2003, they could only impose conditions described as relating to rehabilitation and reparations, so there has been movement towards punishment. Is it the Minister’s intention that youth conditional cautions should be punitive? I want to refer to the representations of the Magistrates Association to an earlier clause on a related matter. It argued that it was
“contrary to the principles of justice for prosecutors and police to be able to impose punishment without the involvement of the judiciary.”
That represents a problem because we expect the courts to hand down punishment, and not for the police and the prosecutors to do so without reference to the court. The Magistrates Association argues that
“A democratic legal system ensures that an independent tribunal—the judiciary—should sentence and impose punishment, thus preventing bias from prosecutorial authorities.”
That is an important point in relation to youth conditional cautions because they put matters in the hands of the police and the prosecutors, instead of the court. I would be interested to hear what the Minister has to say on that aspect
Liberty’s final point in its representations to me concerned an unfairness. It says that
“in theory, a person does have a choice about whether to accept a caution”
but that in reality that could be very different, particularly for young people. They could have a fear of prosecution and so opt for the caution; they could have limited understanding of the options available or limited access to legal advice and so go for the caution when that might not be what they should opt for.
The second area on which there is a lack of clarity is the financial penalty that could be imposed following a caution. Liberty says that that could be unfair, resulting in a two-tier system of punishment. It is all right if a youngster or their parents can afford the fine, but a youngster who cannot afford it or does not have parents who can lend them the money would not be able to accept a caution with a fine attached to it. I have tabled the amendment because I think that it is worth getting an explanation from the Minister on those points.