Clause 107 - Conditional cautions: involvement of prosecutors
Legal Aid, Sentencing and Punishment of Offenders bill
1:30 pm

Helen Goodman (Bishop Auckland, Labour)

If we had concerns about the processes for penalty notices for disorderly behaviour under clause 106, we have even greater concerns about the conditional caution proposals.

The clause would remove the requirement that before a police officer can impose a conditional caution they must first refer the matter to the Crown Prosecution Service. Currently, before an authorised person—usually a police officer—can impose a conditional caution, it is necessary for the relevant prosecutor, which is usually the CPS, to decide whether there is sufficient evidence to charge the offender with the offence, and impose the conditional caution.

Removing the requirement that the police must first refer the offender’s case to the CPS could be dangerous, as it would effectively allow the police to sentence the offender, as well as being responsible for his or her arrest. The Opposition believe that the involvement of the CPS would be likely to result in a more robust approach to conditional cautions than if the police had sole responsibility.

In addition, the clause would allow the police to decide and vary the conditions that the offender consented to. Obviously, most police officers in this country are excellent, but we feel that without such a cross-check there is a risk that conditional cautions will be given inappropriately and that biases of various kinds could arise. For example, young offenders, people with mental health problems or learning difficulties, or foreign offenders might be persuaded to accept a conditional caution without realising the full implications.

This relaxation has to be taken in the context of the increase in the use of conditional cautions. In 2003, 241,000 alleged offences were dealt with out of court. By 2008, the figure had more than doubled to 567,000, so the proportion of alleged offences dealt with outside court has produced a sea change in the use of this approach to tackling crime. We have had representations from both Liberty and the Magistrates’ Association about the inconsistent use of conditional cautions in different constabularies. For example, in some areas chief constables have targets for the proportion of offences that are dealt with out of court and the proportion that go to trial. We feel that this is problematic and inappropriate and that if we do not have the advice of the Crown Prosecution Service, that kind of thing might get out of control.

Some things are pretty straightforward. It is not very difficult to ascertain whether someone has parked on a double yellow line, but police officers who have to determine whether there is a problem of disorder are making more complex judgments about what has happened. We are not comfortable with them doing that without the second opinion of the CPS. Her Majesty’s Inspectorate of Constabulary said in its report that there are

“wide variations in practice across police force areas in the proportion and types of offences handled out of court”.

The method accounted for between 26% and 49% of offences brought to justice in different police force areas and the report found that

“where greater use is evident, this is linked in some places to a strong emphasis on achieving targets associated with improving performance in the level of offences brought to justice.”

Although Ministers have repeatedly told us that they want to reduce target chasing, we think the measure is more likely to engender such behaviour by constabularies, especially when the Government are putting them under such severe financial pressure. If the constabulary takes the view that it is a way to save resourcesbecause it is not so resource intensive, injustices may result. We are concerned that by accepting conditional cautions, people may not understand the implications for their employment and their ability to travel abroad. It is extremely important, given the significant level of controversy, that the system provides safeguards and gives the public more confidence that it is being operated properly and equitably throughout the country. I expect that the Minister will say that the provision is a little bureaucratic measure that is all about money-saving—so much of the Bill is about that—but we say that the quality of justice matters and that it is not right to put a cost-cutting agenda above public protection.

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

We have received an interesting lecture on the consequences of target setting from the hon. Lady, and it has to be said that she and her colleagues ought to know. The use of PNDs fell substantially after 2007, because before that the numbers had been seriously inflated by Government targets for bringing offenders to justice.

Helen Goodman (Bishop Auckland, Labour)

We are talking about conditional cautions now.

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

The hon. Lady cited a figure from 2008 of 567,000 out-of-court disposals and she rather implied that a substantial amount of them were conditional  cautions, but I am advised that the number of conditional cautions issued last year was between 7,000 and 8,000, which is a discrete, small subset of the whole total of out-of-court disposals. I am therefore happy to reject the line of argument that such a figure can be placed in the same context as PNDs, which were subject to a behavioural change by the police because of the targets placed on them.

Clause 107 will enable a police officer to decide whether to offer a conditional caution to an offender, to set and vary the conditions attached to the caution and to decide whether to charge the offender for the original offence in the event of non-compliance. It will remove the existing requirement that such matters be referred to the Crown Prosecution Service for a decision by a prosecutor in every case. At present, a police officer cannot make the decision to offer a conditional caution, even for offences where the police have the power to charge the offender or to administer a simple caution without reference to the CPS. That inconsistency in a police officer’s decision-making powers can create not only confusion, but unnecessary bureaucracy for both the police and the Crown Prosecution Service.

Conditional cautions provide scope for reparation to be made to victims and communities, for rehabilitative conditions to tackle the underlying causes of an offender’s behaviour and for punishments to be administered in a way that cannot be done with simple cautions and other out-of-court disposals. It is unfortunate that the requirement for a prosecutor to authorise the decision to offer a conditional caution has perhaps resulted in such disposals being used less often than they might have been. The clause will remove that requirement.

I shall be surprised if the figure for conditional cautions goes from between 7,000 and 8,000 to 500,000, but I should be delighted if they were more widely used as part of ordinary, everyday policing. The clause is intended precisely to give more flexibility to the police to deal appropriately with low-level offences, which is entirely consistent with delivering restorative justice at a lower level.

The other requirements for a conditional caution remain unchanged, including that offenders must admit the offence, that they consent to being given a conditional caution and that they agree to the conditions. Offenders will always have the right to decline the offer of a conditional caution or to withdraw their previous agreement, in which case they may be prosecuted for the original offence.

The clause does not remove the power for the CPS to give a conditional caution and vary conditions, nor does it prevent the police from seeking advice from the CPS on whether a conditional caution would be appropriate in individual cases. We recognise that there are likely to be cases where it will remain more appropriate for the CPS rather than the police to decide to offer a conditional caution, and arrangements for such cases will be set out in guidance. This excellent clause will aid significantly the delivery of effective lower-level policing.

Helen Goodman (Bishop Auckland, Labour)

The Minister has corrected my statistics, but in doing so he has unwittingly demonstrated that the justice process is being undermined and that no significant savings from the measure will be accrued  by the Exchequer. Therefore, in view of our serious concerns, I am inclined to push the clause stand part to a vote.