I beg to move amendment No. 141, in

clause 18, page 13, line 11, after 'caution', insert

'in respect of an offence and in lieu of criminal proceedings'.

With this it will be convenient to discuss the following amendments:

No. 142, in

clause 18, page 13, line 16, after 'which', insert

'have been specified in the code of practice issued under section 21 below and'.

No. 113, in

clause 18, page 13, line 17, leave out 'either or'.

No. 123, in

clause 18, page 13, line 18, leave out 'ensuring or facilitating' and insert 'assisting towards'.

I welcome the Solicitor-General, who will respond to the debate on this important part of the Bill. She has been courteous in making herself available and letting us have supporting documents, as well as supportive of the idea of conditional cautions. I hope that she will consider the amendments in the same spirit, because we want the system to work well.

The amendments relate to subsection (1), which states that people who are authorised—I shall return to who that is later—

''may give a conditional caution to a person aged 18 or over''

if certain requirements are met. Those requirements are set out in clause 19, which we shall come to.

The background to the amendment is that the use of cautions has declined because they have been regarded as less effective, often by police, and society at large regards them as inadequate. The amendment would build back in another stage of options. The caution simpliciter would be at the bottom of the league of those responses that count but do not put a person on the criminal justice ladder. Conditional cautions would give people a telling off and require them to do something as a result, and if they did not, certain consequences would follow. People are always shouting for bigger penalties and more effective remedies, and conditional cautions give us a range of such remedies.

Amendment No. 141—again, I am happy to discuss the drafting—seeks to make it clear that conditional cautions are in respect of an offence, but in place of

criminal proceedings. We talk about the criminal justice system being weighed down with paperwork, and the Solicitor-General and I have sat through too many meetings discussing the fact that there are not enough police in our borough, and we have the same discussion again this year. The problem arises partly because officers spend so much time doing paperwork, and I am keen to ensure that we do not lock everyone who needs to be rebuked into a long and bureaucratic criminal justice process.

People must be clear about the principle. We are talking about a way of getting people to undertake to behave themselves that does not involve giving them a criminal record. We must be careful about giving criminal records to people as they are growing up and going through a stage of challenging society, because they are not really criminals in the wider sense. Such people might get carried away after a 21st birthday party on a Friday night and, ideally, we should try to keep them out of the criminal justice system. That is what amendment No. 141 is about. It would make it clear that conditional cautions were to be used instead of, rather than as the first step in, criminal proceedings.

Amendment No. 142 would ensure that a code of practice set out the conditions that could be applied to a caution. They could be varied in the light of experience, but the range must be known in advance. They need not be so tightly defined as to be inflexible, and I am in favour of their being more widely defined where appropriate. However, Parliament should approve the range of conditions, which is the reason for the amendment.

Is it not essential that the code of practice explain the significance of an admission of guilt to a person before they sign one? It should be made clear that it is designed to keep them out of prison, but that it will be admissible as evidence in criminal proceedings if that person does not comply with the conditions.

I am extremely sympathetic, and I hope that the hon. Lady will support the thrust of amendment No. 142, which would ensure that we get the conditions and the document of bail right. If the document is used in court, it must have the appropriate authority and status.

On a point of clarification, does the hon. Gentleman think that amendment No. 141 is necessary in the light of clauses 19(1) and 20(1), which seem to meet his concerns?

Well, I wondered whether we needed further clarification in clause 18(1)—I did not automatically presume that we did. The direct answer is that clauses 19(1) and 20(1) do not entirely meet my concerns, although they do by implication. The hon. Gentleman rightly asks us to pay attention to clause 20(1), which makes it clear that those who do not comply with conditions will become involved in criminal proceedings. My wish—this goes back to the point made by the hon. Member for Witney—is that we should be clear about the principles. We are discussing a process in which failure to comply will trigger a criminal offence that will go on someone's

record. I am happy to work out a formulation that achieves that, but we should make clear up front what we are doing—it should not be hidden away. We all get waylaid by the styles employed by those who draft legislation, which change from time to time. Those involved obviously decided that the current drafting was the best way to proceed.

In relation to amendment No. 142, Parliament should agree the conditions; in relation to amendments Nos. 113 and 123, I support probing whether both rehabilitation and reparation should be accepted as objectives. Our formulations must reflect the reality that no legislation can guarantee good behaviour; we can only live in hope. I am happy to support the amendments and to co-operate with Committee members to ensure that we follow the recommendations of Lord Justice Auld's review on the criminal courts. We should learn from the experience of other countries that show that this is a good path to follow.

The hon. Gentleman introduced this clause, and it and clauses 20 and 21 are of great importance. It is a very sensible move; I am wholly in favour of conditional cautions, and this part of the Bill therefore merits careful scrutiny. The hon. Member for North Down (Lady Hermon) correctly said that it is important to ensure that people fully understand the consequences of consenting to cautions.

I must tell the hon. Member for Southwark, North and Bermondsey that I agree with the hon. Member for Wellingborough—I am unconvinced that his amendment is necessary, although I fully understand why he tabled it. The hon. Member for Southwark, North and Bermondsey correctly summarised the purpose of amendments Nos. 113 and 123. I have a slight concern arising from amendment No. 113 about whether it would be correct to allow a caution if it were only assisting towards one or other of the two goals but not both. I wish to hear the Minister's view.

A situation could arise in which it was acceptable to give a caution if it facilitated the rehabilitation of the offender but did not ensure that he made any reparation for the offence. Even odder, it would ensure that he made reparation for the offence without contributing to his rehabilitation. Surely the two go together. Why, therefore, has the ''either or'' been introduced? The purpose of amendment No. 113 is to delete these words.

Amendment No. 123 is to prevent us from getting carried away with our own rhetoric. We cannot ensure the rehabilitation of offenders; we can only hope to assist in the process. The Minister may even be able to accept amendment No. 123 because we cannot ''ensure'' that an offender will be rehabilitated. Therefore our amendment reflects reality and will amend clause 18 so that it does not sound foolish.

The hon. Member for Southwark, North and Bermondsey has explained exactly the purpose of ''Part 3 Conditional Cautions'' of the Bill. There are two possibilities at present if there is evidence that someone has committed an offence: prosecution or a caution. In many circumstances that works well. I may not wish to

describe conditional cautions as a ''third way'', but that, in effect, is what they are trying to be. It is still part of the diversionary process to ensure that someone does not go further and deeper into the criminal justice system. It is a caution plus; a caution with a bit of extra bite. Of course, it does not block off the possibility of later prosecution, and some of the amendments deal with such issues. It could be that someone will admit to having committed an offence and that the authorities will not want to prosecute in the first instance but will consider a caution to be inadequate. A mechanism would be needed that did not remove the possibility of a caution but imposed conditions, meeting which would bring an end to the matter. The hon. Gentleman has explained the hierarchy better than I might have done, and I refer the Committee to his explanation. His amendments are probing in spirit; the principles are restorative and rehabilitative.

I shall deal quickly with the point raised by the hon. Member for Beaconsfield. We can all think of circumstances in which prosecution would not be appropriate in the first instance but a caution would be inadequate. Something restorative would be a good condition. There might not be an appropriate rehabilitative programme for a particular offender, or it might be that rehabilitation is not the best response. Rehabilitation is key when restoration is not appropriate—so ''either or'' is probably right; we do not want to be too prescriptive. We want to enable conditional cautioning to be as useful as possible. That is why we want to leave open the choice between restoration and rehabilitation.

Amendment No. 141 would add

''in respect of an offence'',

which the hon. Gentleman acknowledges is already in subsection (2). However, it would also add

''in lieu of criminal proceedings''.

The object is right; people should realise that they will face criminal proceedings if they do not comply with the conditions and that is dealt with later in this part of the Bill, as my hon. Friend the Member for Wellingborough said. The danger of the amendment is that it might lead people to think that a conditional caution is just like an ordinary caution, in that it is instead of criminal proceedings. It might not be; so we do not want to give people the impression that if they agree to a conditional caution, it is in lieu of criminal proceedings. It is not; they might fail the conditions and find themselves being prosecuted. I agree with the spirit of the amendment, but its phrasing could be misleading.

Amendment No. 142 about the specification of the conditions in the code of practice breaches what we now know as the Witney principles. We want to illustrate as clearly as possible what we are trying to do so that we can be sure that people know and understand what we are aiming for. We want to give plenty of examples of what the conditions might be, but we do not want to inhibit people at local level if, in the face of a particular offence or offender, in the context of certain programmes, they can think of a condition that we have not thought of. We do not

want to hold back people's imagination and creativity. That is partly because the legislation has not been enacted, and we should not try to anticipate all the conditions before the scheme gets going.

Even if it were possible to have a longer code of practice later on, when we saw how the scheme worked, it would not be appropriate now. It would also make the code of practice very long. If we had to envisage every condition that might be applied to assist with restoration or rehabilitation, it would be an enormous volume. It would probably be wrong because it would block off local creativity, but it might also be unworkable in practice if one had to specify all the conditions in the code of practice, as amendment No. 142 would have us do.

What would be the remedy for someone who thought that the condition imposed was unreasonable but because of the situation they signed up to it? How do we ensure that people do not impose conditions that might sound like a brilliant idea but are actually unreasonable because they are undeliverable?

To make this work, the conditions have to be reasonable for the offender. The attempt is to achieve the conditions, otherwise the prosecutors could have defaulted in the first place to criminal proceedings. They do not want them and therefore it is about wanting those conditions to work. That is what the thrust of all the agencies working together will be.

If unreasonable conditions are offered that would make it impossible for the offender to agree, he can say, ''This isn't reasonable and I don't agree to them.'' Then it would be for the prosecutors to decide whether they agreed with the offender and to go to an ordinary caution, or whether the default position should be to go to criminal prosecution. It could go either way.

I wonder how it could go either way, as a condition would have to be satisfied that there was insufficient evidence to charge the offender with the offence before the conditional caution could be suggested.

The conditional caution is suggested when there is sufficient evidence to charge. The first part of the procedure takes place when the police are satisfied that there is enough evidence and they send it to the Crown Prosecution Service, which is also satisfied that there is enough evidence. It will be only for cases where it is an actual possibility, not a theoretical one. The Crown Prosecution Service will need to be satisfied that both tests have been met under the code of the Crown prosecutors: whether there is enough evidence and whether it is in the public interest.

In respect of keeping the conditions reasonable, first, the good will will try to make them reasonable, because the emphasis is to try to succeed; secondly, the failsafe is that if the conditions are unreasonable, the offender need not agree to them.

The hon. Member for Beaconsfield made an interesting point about the wording. Because conditional cautioning is a new concept, this part of the Bill is remarkably free from the problems identified by my hon. Friend the Member for Nottingham, North: it does not refer to thousands of other provisions but stands on its own. On a couple of readings, it more or less does what it says it is going to do. It looks refreshingly different from the rest of the Bill. Some of the language is different. It is much more like that sought by my hon. Friend the Member for Nottingham, North; ''facilitating'', for example, is not found in other parts of the Bill.

The hon. Member for Beaconsfield was concerned that ''ensuring'' is an unrealistic term. It is on the extremely optimistic end, but it represents the spirit in which the provision was introduced.

I do not want to pre-empt the Minister. I accept that amendment No. 123 would remove the word ''facilitating''. There is no need for that; we could just take out the word ''ensuring'' and use the phrase ''facilitating and helping towards'' or some other expression. I am not trying to be prescriptive. The word ''ensuring'' is over-optimistic, as the right hon. and learned Lady accepts. We should try to use language that reflects reality. However, I agree with her that it is refreshingly new text. I am not trying to move back to old-fashioned jargon; I am trying to find something that properly reflects what Parliament is trying to achieve.

I was grateful for the correction of my previous intervention. Would it not be easier to delete the phrase ''ensuring or facilitating''. The object is rehabilitation.

I accept that it is rather unusual language. I accept that ''ensuring'' is a higher order or aspiration than we would normally use in legislation. However, I would not want to say, once the Committee has completed its consideration, that although we all thought that it was a good idea we know that we cannot ensure anything—we have been in Parliament too long to think that legislation could ever be as good as we might originally have hoped—and that we have therefore downgraded it. I agree that ''ensuring'' is a bit over the top, but I would not like to send the message that we would not attempt to ensure it. It is mitigated by ''facilitating''.

I am grateful to the hon. Gentleman for his amendments, and I thank him for the effective drafting, which he has been doing for years to great effect. However, I think that I will pass on this occasion.

The hon. Member for North Down asked whether it will be made clear to offenders that if they do not comply with the conditions they may face prosecution.

On that very point, I want offenders to be warned that the piece of paper that they sign, on which they admit that they have committed an offence, will be used in evidence against them if criminal proceedings are to follow. It is not only about the failure to comply with the conditions. It is more like an inducement. It is almost as if they are told, ''If you sign this paper, you will not go to court.'' They need to

know that when they sign that paper it will be used in criminal proceedings should the case go that far.

The hon. Lady's point is about ensuring that the seriousness of the conditions is recognised; if people do not comply, they may well end up going to court. The fifth requirement, described in clause 19(5), is that the offender signs a document that must contain details of the offence, an admission that the person committed the offence, his consent to the caution and the conditions attached to the caution. However, it would probably be helpful to print on the back of that pro forma what would happen if they did not comply. That is a useful suggestion.

I am a little concerned about what would happen to an individual who did not make an admission in the initial interview at the police station but whose case was subsequently referred to the Crown Prosecution Service, which suggested a conditional caution. In those circumstances, it would be appropriate for the potential defendant to have legal advice; but the Bill makes no provision for that. That advice would be available at the police station, and I wonder whether my right hon. and learned Friend can give me some form of assurance that, in such circumstances, a potential defendant would be given the opportunity to take legal advice.

My hon. Friend makes an important point. It is a serious matter, and later amendments go into that in more detail. I hope that the assurance that I shall be able to give at that time will make it absolutely clear. It is not intended that people who should, but do not, have legal advice, or who do not get the option of legal advice, should make admissions about criminal offences when, in contrast to what happens with a simple caution, their admission could lead to prosecution. I take that point, and that is not the intention and it will not happen. It is important that people do not agree to cautions without thinking the matter through properly, but at least in the case of a caution the matter is dealt with. The point about conditional cautions is that an admission could become admissible as evidence.

I hope that I have dealt satisfactorily with the matter of keeping both the restorative and rehabilitative principles—to which amendment No. 113 relates; with our intention to retain our aspiration and our trendy facilitating language, which means that we do not accept amendment No. 123; with our not breaching the Witney principles by having to specify everything in the code of practice; and with our not accepting amendment No. 141, in case people should think that they are out of the system, as they would be with a simple caution. If people do not comply with a conditional caution, they may be prosecuted.

I am persuaded by the Solicitor-General's argument about amendment No. 141, and agree that we must be careful that people do not regard a conditional caution as an escape. It should be regarded as a conditional next phase, in which two possible routes are open.

I am less persuaded about amendment No. 142, although I shall not push it to a vote. I remain concerned that we need certainty, but I understand the

right hon. and learned Lady's point about the need for flexibility. I shall reflect on the matter to decide whether we need to return to it. No doubt the hon. Member for Beaconsfield is thinking of ways of pursuing the points that he made earlier. We listen with an attitude of wanting to encourage good aspirations as well as wanting to get things right. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No.112, in

clause 18, page 13, line 11, leave out '18' and insert '16'.

The amendment is simple. The scheme is so good that I wonder whether it should be applied to 16-year-olds. Are there problems that would prevent it from being applied to them? At no stage is reparation and rehabilitation more desirable than when the people involved are young. I should be interested to know why 18 has been chosen as the starting point for this approach.

The starting age of 18 was chosen because of the reprimands and final warning system. We do not want to arrive at a state of affairs in which for the under-16s there are reprimands and final warnings, for 16 to 18-year-olds there are both reprimands and final warnings and the new conditional cautions, and for those aged 18 or over there is conditional cautioning.

To introduce conditional cautions for those aged 16 we should probably need to get rid of reprimands and final warnings for that age group, so that those up to 16 would be given reprimands and final warnings, and those aged 16 or over would receiving conditional cautioning. It is probably a good idea not to proliferate in this regard, although there is a degree of proliferation anyway. I do not want to give the Committee the impression that matters are simpler than they really are. Things are already quite complicated. We do not want to complicate matters much further with the new measure.

I aim to keep my remarks short, because there are more matters that we want to cover, but I ask the Solicitor-General to keep an open mind about whether, for 16-year-olds, conditional cautions might be a better mechanism than reprimands and final warnings. That is what I had in mind. Conditional cautions could be an effective method of dealing with crime, and much better than what we now have for juveniles.

It would be good to think that that would improve on reprimands and final warnings, which have already been quite useful. I think that the provisions will be rolled out, and perhaps even piloted and formally evaluated during that process. The clause gives the legal basis for conditional cautioning. However, that does not necessarily mean that conditional cautioning will be immediately introduced nationally. It will emerge at different speeds in different areas. The inspectorates and the Government will evaluate the rolling out. It would be a good idea for joint inspection by Her Majesty's inspectorate of police and Her Majesty's inspectorate

of the Crown Prosecution Service, which will no doubt consider that. The scheme might be better than, or overtake, something else. One does not want to close off any options: if some people in some areas regard the reprimands and final warnings as useful, one would be reluctant to abolish them.

There is also an argument for simplicity—for people to know what the system is. I do not want to offer to abolish the reprimands and final warnings in advance, but I take the hon. Member for Beaconsfield's point that when we are adding things, we should sometimes take things away, in order to avoid a thicket of options that creates confusion. We want to have enough options for there to be a good choice, but without confusion. I am glad about the optimism expressed in the amendment, but although I take his point, I do not accept the amendment.

I am grateful for the Solicitor-General's comments, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No.118, in

clause 18, page 13, leave out lines 21 and 22.

With this it will be convenient to discuss the following amendments:

No. 114, in

clause 18, page 13, line 21, leave out 'a constable' and insert

'an officer of the rank of chief inspector or above'.

No. 115, in

clause 18, page 13, leave out line 22.

We now continue the theme about the importance of the procedure, in terms of the defendant's full understanding at the police station of the consequences of accepting a conditional caution. The amendments should not be thought of in isolation: they are part of a package of amendments designed to emphasise the importance of the issue. That is particularly so as the person in question may subsequently be prosecuted and the conditional caution used as evidence against them.

The amendments are designed to consider whether an authorised person should be more senior than a constable or an investigating officer. Their other purpose is to ensure that proper decisions are taken in terms of the conditions that are attached. How does the Solicitor-General see the provisions working in practice? Is she satisfied that the level of the authorised person is sufficient for the decisions required under the five requirements of clause 19?

Yes, I am satisfied. The hon. Gentleman's amendments and comments have raised two points. Will matters be properly explained and made clear? I hope that clause 19(4), which requires an explanation to be given, will deal with that. Moreover, clause 19(5) requires the explanation to be in writing. That is quite clear. In clause 19(4) and (5), we hope that we have dealt with the aspect of the amendment that probes whether sufficient information will be given with enough gravitas. If the amendments

concern the level of seniority at which decisions are made, perhaps I shall reassure him by reminding him that the decision about whether there will be a conditional caution is not the police's, but that of the Crown Prosecution Service. Therefore, it is the reviewing lawyer who will decide whether there is sufficient evidence to prosecute and whether to do so is in the public interest. The police do the administering, but that is done orally and then backed up in writing.

Suppose the clause as drafted were passed and I was the recipient of a conditional caution from a police constable. Would I have to say that the Crown Prosecution Service had given me that caution? Would it be understood that the decision was not that of the police officer or the investigating officer but that of the Crown Prosecution Service? There must not be confusion that a copper on the beat made the decision.

The hon. Gentleman raises an important point, because the clause does not actually specify. That will have to be considered when the code of practice is being drawn up. From where the caution emanates is not on the list of measures to be included in the code. Whether the form of words is, ''This is a caution from the Crown Prosecution Service, which in this instance is deciding not to prosecute you even though it can, and if you breach these conditions I will be sending it back to the Crown Prosecution Service,'' or, ''I am administering this caution to you and here are the conditions, and this is what will happen to you if you don't comply,'' the point raised is not addressed. However, I shall ask for it to be considered for inclusion in the code of practice.

The Secretary of State will draw up the code of practice, but it cannot be published without the consent of the Attorney-General, who superintends the Crown Prosecution Service. It must then be laid before both Houses. I anticipate many of the points that hon. Members have helpfully raised will emerge in the code of practice, when people will have another opportunity to discuss the matter.

I am grateful to the Solicitor-General for her reassurances. As the next amendment is more important, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 ordered to stand part of the Bill.