My Lords, as I suggested a moment ago, this amendment deals with matters that we dealt with in the previous group. It would omit the provision that it is,
“for a police officer not below a rank specified by order … to determine … whether there are exceptional circumstances for the purposes of”,
Clause 15. Therefore, the amendment really goes with the amendments that remove the requirement for there to be exceptional circumstances. It also goes with the view that I expressed in introducing the previous group of amendments—that it really ought not to be simply for the police to determine a question such as whether there are exceptional circumstances to justify prosecution, therefore meaning that there would not be a prosecution but there would be a caution. It ought to be the prosecutor who takes both decisions.
I shall speak also to Amendment 26, on which Amendment 27 is consequential, merely removing the passage providing for the affirmative resolution. Amendment 26 would remove subsection (7) which provides:
“The Secretary of State may by order amend this section so as to provide for a different period for the purposes of subsection (4)(b)”.
Subsection (4)(b) simply sets out a two-year period, which is the period within which a previous offence must have been committed. I fail to see how later experience will help the Secretary of State or anyone else determine whether two years is the right period. Given the experience of the criminal courts, the Committee knows whether repetition within two years is right. Experience is unlikely to change that because there is no doubt that an arbitrary period has been selected as in more cases than not it will be judged to be about right. In some cases, an offence committed three years ago ought not to be disregarded; in other cases, an offence committed a year ago ought to be disregarded. I simply do not understand why we should need an order-making power to change that two-year period.