My Lords, the purpose of these amendments is twofold. The first purpose is to widen the discretion to give the cautions allowed by Clause 15, which, as your Lordships will know, is headed, “Restrictions on use of cautions”. I preface what I say by making it clear that I fully accept that it is desirable to be reasonably restrictive about giving cautions where normally a prosecution would be the proper response to an admission of guilt. That is of course particularly important where the offence concerned is a serious one. Yet the scheme of the Bill is to permit a caution only if there are exceptional circumstances relating to the person or the offence in three categories of cases.
The first category is in the case of indictable-only offences, where,
“a constable may not give the person a caution”,
unless it is,
“in exceptional circumstances relating to the person or the offence”—
I will call that the “exceptional circumstances” test—and,
“with the consent of the Director of Public Prosecutions”.
The second category of offences is of those triable either way which appear on a list of what one would expect to be the more serious offences. That would meet the “exceptional circumstances” test but it would be the constable who gave the caution and there would be no need for the consent of the Director of Public Prosecutions. The third category would deal with all other triable either-way offences—that is, those not on the serious list—and to offences triable summarily. The “exceptional circumstances” test would apply in those cases only to repeat offences: that is, offences that are similar to an offence for which the offender has been convicted in the previous two years. That leaves cautions available on an unrestrictive basis only in respect of those less serious either-way or summary offences which are, effectively, first offences of their type.
I suggest that the “exceptional circumstances” test is too restrictive; “exceptional” is a very strong word. An offence is not exceptional, for example, where it is a minor offence of its class or because the circumstances in which it was committed are otherwise such that a prosecutor might reasonably take the view that more harm than good would be done by prosecution. Dealing with the circumstances of the person, such circumstances would not be exceptional if a former recidivist is well on the way to rehabilitation and a repeat minor offence can be seen as an isolated lapse, where a prosecutor can reasonably and responsibly—and presently often may—take the view that a prosecution would serve no public purpose.
I start on these amendments from the position that there is no reason to undermine the traditional test for prosecutors and not to respect that test. That test requires, first, a likelihood of conviction and it is generally satisfied where there is an admission, as it is a precondition to giving a caution set out in this clause. However, the test also requires the prosecutor to be satisfied that a prosecution is in the public interest. I cannot see why, if that second-limb test is not met—so that a prosecutor does not think a prosecution is in the public interest—even in the absence of exceptional circumstances, the right to administer a caution should be removed and a caution should not remain within the range of possible actions to be taken where there is to be no prosecution. I suggest that there may be many cases—perhaps fewer, I concede, in the indictable-only category—where there has been an admission and a prosecution is inappropriate, and where a caution would nevertheless remain a sensible disposal. In such cases, I see no reason why a caution, which is often an effective disposal, should be available only in first-time summary offences unless the very high hurdle of exceptional circumstances can be surmounted.
The second reason for these amendments is that the decision-maker being provided for is, I suggest, wrong. The Bill provides, first, that the decision-maker in any indictable-only offence is to be the Director of Public Prosecutions, and that in any other case the decision-maker is to be the constable giving the caution. I suggest that the Bill has this wrong in both categories. Surely cautions should not generally be a matter for the DPP, even in indictable-only cases. It is of course likely that, even in indictable-only cases, a decision to caution instead of to prosecute will be taken in cases at the less serious end of the spectrum for that class of offence. It is surely not necessary that the DPP should be involved in a decision to caution in that case, wherever it occurs.
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The amendment suggests that the decision-maker should be the regional chief prosecutor of the Crown Prosecution Service in any case. This, I suggest, is right on two bases: first, that the decision-maker should be a prosecutor, not the constable administering the caution; and, secondly, that the decision should be made at a regional level, even in cases of indictable-only offences. It is my suggestion that the last or only word should not be that of the constable who is to administer the caution, and I invite the Committee to take the view that the CPS is best placed to take the decision—in
consultation with the police as appropriate, of course, where they take the view that a prosecution is inappropriate.
Our amendments set out the same tests throughout, and the tests would be that the regional chief crown prosecutor certifies that, in his or her opinion, either that prosecution would not be in the public interest or that prosecution for the offence would be inappropriate, having regard to the circumstances either of the offender or of the offence. Those tests applied uniformly would mean that more serious offences were no doubt far less likely to be thought suitable for a caution, but it is right that the test either way should have regard to the public interest.
The code that we suggest in all three types of offences is a logical one. It would preserve the distinction between first and subsequent offences for minor offences that were either summary or not on the list of more serious offences that were triable either way. I commend Amendments 21 to 23 to the House. I beg to move.