That the draft order laid before the House on 8 July be approved.

Relevant Document: 21st Report from the Joint Committee on Statutory Instruments.

My Lords, I shall speak also to the Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2009. I hope that it will be for the convenience of the House that these two orders are debated together.

The orders implement codes of practice which govern the use of the adult conditional caution and the youth conditional caution. I have asked for these orders to be debated together because of the similarities between the two schemes. I will speak first about the Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2009. Its sole purpose is to implement the revised code of practice for conditional cautioning, which will come into force the day after the order comes into force.

Part 3 of the Criminal Justice Act 2003 allows the Crown Prosecution Service and other specified prosecuting authorities to administer a conditional caution in certain circumstances. The basic requirements are that the offender is an adult—18 or over—admits the offence, and that there is sufficient evidence to prosecute. It is also necessary that the offender should agree to the caution. Where it is possible to set appropriate conditions, the public interest may be met more effectively by the offender carrying them out than by being prosecuted. If the offender fails to comply with the conditions he may be prosecuted for the original offence.

Conditional cautioning has been available for adults throughout England and Wales since March 2008. It is currently operating under a code of practice approved by Parliament in 2004. We now want to update that code to provide for amendments to the Criminal Justice Act 2003 made by the Police and Justice Act 2006. These amendments allow for punitive conditions to be attached to a conditional caution—specifically a financial penalty. We have also taken the opportunity to make further amendments in the light of operating experience and to improve the structure and readability of the code.

The Secretary of State is required to publish the code of practice in draft, and this was done as long ago as 6 March 2007. Public consultation took place between then and 29 May 2007; 42 responses were received. Further revisions to the draft code were made in light of these responses. The revised code was approved by the Justice Secretary, Home Secretary and Attorney-General, and the draft order was laid before Parliament in July this year.

The key changes to the revised code of practice are: first, the extension of the conditional cautioning scheme to allow for a punitive condition, specifically a financial penalty, to be attached to a caution; secondly, guidance on the power of arrest and detention; thirdly, removal of the requirement for an admission to be made in a PACE interview before a conditional caution can be administered; and fourthly, additional safeguards to ensure that this disposal is used appropriately.

The House will have noted the delay between the consultation exercise and the laying of the draft order introducing it. Following the machinery of government changes in 2007 we decided to delay the introduction of a revised code of practice until national rollout of the conditional caution had been completed in March 2008. The subsequent timetable has taken into account our decision to test the financial penalty for the adult conditional caution at the same time and in the same areas as the new youth conditional caution.

If the order implementing the revised code is approved by Parliament, it will be implemented across England and Wales next month. The key new element—the financial penalty condition—will be available in only five specified areas: Cambridgeshire, Hampshire, Humberside, Merseyside and Norfolk. This was set out in relevant commencement orders for Section 17 of the Police and Justice Act 2006. Following a review of the pilot, a decision on national implementation of the financial penalty condition will be taken.

The purpose of the other order is to implement the code of practice for the youth conditional caution. The code of practice will come into force the day after the order comes into force. Section 48 of the Criminal Justice and Immigration Act 2008 extended the use of conditional cautions to young people aged between 10 and 17 by amending the Crime and Disorder Act 1998, although we agreed during the passage of the legislation that the youth conditional caution would be introduced in stages, beginning with its use for 16 to 17 year-olds.

The youth conditional caution has been designed to operate in a way consistent with the adult scheme. However, there are by necessity a number of differences. First, as is the case with other out-of-court disposals for young people, a youth conditional caution will not be available to a young person who has previously been convicted of an offence. There is no such restriction for the adult scheme. Secondly, the youth code sets out the role of the youth offending team—the YOT—in advising on the appropriateness of a conditional caution and overseeing the completion of the conditions. There is no equivalent in the code for the adult conditional caution. Thirdly, punitive unpaid work is available for the youth conditional caution, as the facility for this is established, and it allows a punitive condition to be put in place and a conditional caution offered in the likely event that the young person might not have the ability to pay a financial penalty. Fourthly, the adult code allows for a condition to be attached to a caution requiring the offender to pay for the course he is attending. A young offender cannot be required to meet the costs of a course he is attending as a condition of a caution.

The Secretary of State is required to publish in draft the code for the youth conditional caution, and this was done early in March this year. Public consultation took place between then and the end of May; 32 responses were received. As a result of the consultation a number of detailed amendments were made to the code to remove perceived ambiguities. The code was subsequently agreed by the relevant Ministers and draft orders were laid in July.

If the order implementing the code is approved by Parliament, we will pilot the youth conditional caution in the same areas as the financial penalty condition for adults. A decision about national implementation will then be taken. I commend the draft statutory instruments to noble Lords.

My Lords, I thank the Minister for explaining, with his usual clarity, the details of these orders. I was privileged to be a magistrate for more than 30 years, but I was never involved with youth justice.

One code of practice before us deals with cautions for 16 and 17 year-olds. Youth crime today is a symptom of a broken society, and any approach to fix it must address prevention as well as appropriate punishment for any offence. Cautions have traditionally been an alternative to punishment, and used to encourage a person not to reoffend. Conditional cautions, however, tag on to the caution what amounts to a punishment. Would a better approach not be to have cautions on the one hand, and punishments administered by a court on the other?

There is not enough room in the justice system to deal with crime effectively, as so many magistrates’ courts have been closing—at the rate of seven a year since 1997. Is the risk with conditional cautions that we further reduce access to the courts, while at the same time restricting the efficacy of interventions prior to punishment? Could the end result of the process be to increase the pressure on the criminal justice system by funnelling young people into it? The point made by my honourable friend the Member for Enfield Southgate, David Burrowes, is worth reiterating. He said:

“The fast track to punishment does not necessarily lead to a fast track to justice”.—[Official Report, Commons, Criminal Justice and Immigration Bill Committee, 22/11/07; col. 477.]

A youth conditional caution can be given only where the youth has not previously been convicted of an offence. However, the adult conditional caution is available at any point in an offender’s career. Therefore, an 18 year-old young adult with a single previous conviction might be given a conditional caution in circumstances where the criteria for a 17 year-old would require prosecution. Will the Minister explain the inconsistency between the youth and adult conditional caution schemes? The Government are willing to resort to conditional cautions where they are not appropriate, and deny people, both under and over 18, access to justice. However, cautions are also used where they are not appropriate because they are not strong or strict enough.

There is a caution culture in the country that gets the balance wrong. Earlier this year, it was revealed that four in 10 serious offenders are being let off with a caution. The number of cautions given to violent criminals has risen by 82 per cent in five years. Does the Minister agree with my party that anyone carrying a knife without a reasonable excuse should expect to be prosecuted rather than to receive a caution? Does he further agree that those convicted of carrying a knife should expect to receive a custodial sentence? The Government use cautions to pre-empt justice. This can be too strict for some and too lenient for others.

Conditional cautions can also be used for multiple offences that individually would not result in the offender being sent to court. This sends the message that, once you have committed a crime, you might as well commit others of a similar nature, because the punishment will not change. Is this what the Government mean by being tough on crime?

It has emerged recently that inaccuracies with Ministry of Justice data are preventing the release of the latest offender management statistics. Does this mean that the Minister is unable to provide the House with up-to-date figures on reoffending rates among those given conditional cautions, or is he able to give them to us today?

The Government have operated a managerial, centrally driven approach to justice, which has failed young people, both as victims and offenders. Central Government have moved the deckchairs of responsibility for youth justice between the Ministry of Justice, the Home Office and the Department for Children, Schools and Families. Meanwhile, the youth justice system, which should be directed primarily by local communities, has been sinking. We on this side of the House have argued for greater responsibility for the custodial budget to be devolved to local communities, so that local decisions can be made about the numbers in custody. The Government should pause before another experiment with the justice system fails the British people. The future of our country depends on the young people of today. I believe that it behoves all of us to ensure that we have a justice system that is seen as fair and responsible.

My Lords, I, too, thank the Minister for his statement in support of these orders. In 2003, we on these Benches welcomed the introduction of the conditional caution, which at the time could contain conditions relating to rehabilitation and reparation. My noble friend Lord Dholakia spoke in favour of it at the time. However, in 2006, we opposed the introduction of conditions that were punitive, and also the provision that the police could arrest a person on suspicion of non-compliance with the conditions that had been made.

The basic objection in principle to the punitive element is that it puts into the hand of the prosecutor the job of being both judge and jury as well as prosecutor. Where we have fixed-penalty fines, the amount of the fines, which can be handed out by police officers for various minor offences, is fixed by Parliament, or by regulations that have gone through Parliament. However, when it comes to the punitive condition that is now to be attached to these cautions, the onus passes to the prosecutor to decide all sorts of things. He can decide the amount of the fine, for example. He can decide what amount is to be paid, when and how. When it comes to youth justice, he decides much more than that—there is quite a menu for him to pick from. He can be involved in choosing his conditions. The guide says:

“Conditions may be included to reflect and secure the interests of the victim and neighbourhood or community (for example by requiring the youth to stay away from a specific area)”.

There is reference to opportunities to provide unpaid work that benefits the community and the use of a,

“financial penalty condition … to punish the youth and deter future offending”.

We now have a system whereby the prosecutor rather than a court determines matters of discretion—the type and amount of punishment. The Magistrates’ Association has written to a number of us—we may hear more about this—expressing opposition to the idea that the principle that has governed our justice system until now, that a court with independent judges or magistrates should determine punishment, should now be abandoned so that a prosecutor can do what he likes, within the limits that the Bill sets down. A very large discretion is given to the prosecutor to determine how to punish a particular person. As I have already said, when you add to that the power of the police to arrest someone and hold them in custody merely on suspicion of non-compliance with conditions which a prosecutor, not a court, has set down, it can be seen how far the principle has been breached.

Therefore, we do not welcome the orders. We think that the provisions of the 2006 Act were wrong. We always agreed with the provisions of the 2003 Act which kept people out of prison, although we dislike the idea that people who have a caution should also have a criminal record. Since then, of course, not only previous convictions but a list of cautions that have been administered to a person are produced in court on the conviction and sentencing of that person. The danger is that a person will always be inclined to take a caution, which will avoid him having to stand in front of a court, rather than take a punishment from the court. Therefore, there was a great intrusion of principle in the 2006 Act and we still oppose it.

My Lords, I, too, am grateful to the noble Lord, Lord Bach, for presenting these instruments, but I share the concerns expressed by the noble Baroness, Lady Seccombe, and the noble Lord, Lord Thomas of Gresford. I see there being a risk of injustice. I have read the letter from the Magistrates’ Association and it causes me concern. I agree of course that it is appropriate to use this sort of instrument for minor offences, as long as we can be sure that they are minor offences. However, as the Magistrates’ Association points out, there is very little monitoring of these out-of-court disposals, so we do not know whether they are being applied to minor offences, and the association’s own study indicates that there is wide disparity in their use. These fines do not take account of the means of the offender to pay. As a result, more than 50 per cent of all fines imposed out of court are not paid, so there is the additional disadvantage that magistrates’ courts end up having to tidy up, which produces a drain on their already stretched budget. Can the Minister say what support is being offered to magistrates’ courts to deal with this additional burden?

As the noble Lord, Lord Thomas of Gresford, said, the orders appear to give considerable additional powers to the police. It concerns me that the necessary monitoring is not there to ensure that the provisions are applied in a consistent and just manner to those involved. I look forward to the Minister’s response.

My Lords, I am grateful to the noble Lords who have spoken in this short debate. Our starting point is that the law-abiding majority want to see crimes, no matter how small, dealt with effectively and efficiently, and for a long time cautions have been part of that process. They allow the police to deal swiftly with low-level offending, freeing them up to spend more time on the front line and dedicate more time to more serious offences. They also free up court time for more serious offences.

We believe that conditional cautions can have a positive effect in addressing the reasons behind some offences, perhaps particularly anti-social behaviour. The use of rehabilitative conditions, such as attending an alcohol awareness course, combined with a financial penalty, can help to tackle some of the root causes of the crime as well as delivering a fitting penalty. The Criminal Justice Act places no restrictions on the types of offences for which conditional cautions may be administered but we have made it clear, as has the Director of Public Prosecutions in his guidance, that they should be used only for low-level offending. Indeed, his guidance restricts their use to summary and certain either-way offences. A conditional caution cannot be administered for indictable-only offences, hate crimes, offences involving domestic violence and—here I am replying to the noble Baroness—offences using knives or offensive weapons. Youth conditional cautions put in place rigorous conditions to address bad behaviour while ensuring that the person admits his wrongdoing and makes amends to the local community by repairing damage that may have been caused, paying compensation or having restrictions placed on his movements.

The noble Baroness spoke about a broken society and crime generally. I am sure that I do not have to remind her and the House that, for the first time in living memory and beyond, this is the first Government to have presided over a considerable fall in the number of crimes that have been committed. That is a proud record and contrasts clearly with the record of the previous Government.

Before coming on to financial penalties, perhaps I may say that the point about youth cautions—this is something that I should have thought would be generally approved of across the House—is that they keep young people away from being prosecuted. However, you cannot keep young people away from being prosecuted for ever, and there is, as noble Lords will know, a hierarchy in youth offending. The reasons for our approach of saying that you could not get a conditional caution if you were a youth who already had a conviction were explained fully when the Bill was debated. The short answer is that there are various out-of-court disposals for a young person. There is a reprimand or a warning and a youth restorative disposal, which are not available for adults. The system is essentially hierarchical. Once the matter is so serious that a young person is convicted before a court, the other, less serious out-of-court disposals should, in our view, no longer be used. Such a system does not apply to adults.

A criticism has been made by the noble Lord, Lord Thomas of Gresford, that the new financial penalty, which will be piloted rather than brought in across the country, is somehow a step too far for prosecutors to be able to award. There has been no youth conditional caution until now, but for adults that same prosecutor has been able to make rehabilitative orders, which is something that the court would normally do, or reparative orders, which in some ways are punitive, such as payments of compensation, letters of apology, reparative unpaid work, restorative justice, and so on. All those matters are under the original conditional caution that the noble Lord said his party supported in the 2003 Bill. The prosecution is able to impose them, as it were, on someone prepared to accept a conditional caution. The noble Lord’s party was happy that the prosecutor should do that. It seems that the point beyond which it is not happy is when there is a financial penalty as well. Any defendant can refuse to be cautioned and can ask for his or her day in court. They are entitled to do that, which is an essential safeguard under our system.

There is a limited discretion to set levels of financial penalties. They can be set at either a standard or mitigated level. I have already referred to the point about knives. Conditional cautions are paid or prosecution will follow. Penalty notices have issues with payment. Means are taken into account unlike what happens when there is a penalty notice in its stead.

There are virtues in having conditional cautions as they prevent young people being prosecuted for offences. We do not want them to be prosecuted unless it is necessary. The youth conditional caution is not a new power of summary punishment, representing a fundamental constitutional change. We know that the police already issue fixed-penalty notices and other on-the-spot fines to offenders either on the street or at the police station. Others who accept these notices have to pay the set amounts required and are automatically diverted from prosecution in the courts when they do so. This is a logical extension of powers that already exist and which work pretty well.

Of course, there will be many cases that can be dealt with only by the courts and, as I have said, the offender always retains the option to be prosecuted by the court rather than accept a caution. We believe that adult conditional cautions have worked pretty well so far. Parliament was happy that a youth conditional caution was one of the arrows that could be used to try to divert young people away from further crime. On that basis, I invite the House to accept these statutory instruments.

The Minister has not referred to the monitoring that was mentioned by the noble Earl, nor has he referred to publicity. There is a public element to this. These conditional cautions will be issued by the prosecutor without any element of publicity, which is possibly one of their attractions, as opposed to going to court. Does the Minister think that anything can be done in that regard?

I do not think that it is possible to do anything in terms of young people, and I am not sure that the noble Earl would want that. We are prevented from naming the young person involved. All we can say is that “a young person” received a youth conditional caution, which would not assist anyone. For adults, I suppose that it would be possible to publish the names of people who had not been prosecuted but who were subject to a conditional caution. I understand that they would be rehabilitated within three months of that caution in any event. Again, I suppose that it would be possible, in theory at least, for such a caution to be mentioned in a local newspaper, but I am not sure that that is what we want.

I am concerned not so much with publicity but more with monitoring to ensure that there is some parity in their use across the country. That issue was raised by the Magistrates’ Association in its letter.

I understand that point. There should be parity in how these cautions are implemented and there is no reason to believe that there is not. There are strict conditions on what can be awarded, in terms of financial penalty at least, against someone who is subject to a conditional caution. I think the noble Lord is asking whether some areas use these rather more than others. I do not have information but will write to all those who have spoken in the debate if I can get some further information on these issues.

With regard to the release of the latest offender management statistics, is there a problem? Can the Minister give us any further information today?

I am sorry not to have replied to the noble Baroness earlier on that point. I do not know whether there is a problem, and neither do my officials. In the letter that I will be writing, I shall try to give the latest information. I beg to move.

Motion agreed.