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Lord Ackner: I do not think that the noble and learned Lord the Solicitor-General has dealt with the illogicality or the inconsistency raised by the noble Lord, Lord Henley. You are providing in a new offence a new ingredient. I can see, and I have pointed out, the advantage of the new ingredient; namely, that you can put all the facts before the jury. But why do you not make the same situation apply--the need for the new ingredient--in the criminal damage case and in the Section 18 case? That is the point that the noble Lord, Lord Henley, is making. If it is desirable to have a new offence because of a new ingredient, you must have that irrespective of the fact that you may think the maximum

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is sufficient, because it alters the presentation of the case and it alters who makes the decision, the judge or the jury.

Lord Falconer of Thoroton: The point the noble and learned Lord, Lord Ackner, makes is correct if we accept his logic as the basis for the introduction of these three criminal offences. But the basis of the logic for the introduction of these three criminal offences is--as has been explained--that we introduce them only where we think the penalty is insufficient. That being the logic, there is a perfect symmetry in why we have chosen these three particular offences. That is where we end up.

Lord Lowry: With respect, I shall not--certainly at this stage of the discussion--continue the accusations of government inconsistency. However, I think that one inconsistency is looming. If one takes the point of my noble and learned friend Lord Ackner in conjunction with the point already made by several noble Lords, including the noble Lord, Lord Carlisle, we shall have a situation--however sensible the Government have been about it--where in some cases tried on indictment the course of the trial will be different. The method of deciding an important issue will be different because in one group of cases the jury will decide that issue of racist conduct accompanying the main crime and in the other group of cases the trial judge will decide that. Very often in this country, by what is called the Newton trial, in the jurisdiction where I practised we left it, in a kind of old boy message, to the judge to decide what had happened. But whichever one does, one will have a different form of trial for two groups of offences. I think that that is correct.

Lord Falconer of Thoroton: The noble and learned Lord, Lord Lowry, is correct. But in relation to the way our justice system works, in certain matters the jury decides precisely what the defendant has done; and in other cases even where there has been a plea of not guilty there can still be a subsequent Newton hearing to determine the extent of criminality. I do not believe that the fact that certain elements of the crime will be determined by the jury, and certain elements of facts relating to the seriousness of the crime will be determined by the judge, is an inconsistency that eats at the foundation of the way our law operates.

It is a reflection of the fact that from time to time we have to deal with the matter in a pragmatic and practical way. For the Government to decide what should or should not be in the Bill, subject to the view of both Houses, is a sensible and pragmatic way to deal with the problem. One wants to increase the sentences in these three cases, but one does not want to have the drag up effect on everyone else by increasing the maximum.

I believe that the response I have given to the noble and learned Lord, Lord Lowry, answers the point that the noble and learned Lord, Lord Ackner made; namely, that one would have some points decided by the jury and some by the judge. I appreciate that the point involves a

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different presentation and emphasis in the course of the hearing of a case. But I do not believe that professional judges are unable to deal with that when sentencing.

Lord Ackner: I do not doubt their ability. We have merely been pointing out the inconsistency. If you are going to be inconsistent, yet say you are seeking to deal with racial motivation in a special way, then you are dealing with it in a special way only in regard to certain parts of racial discrimination and not others. You are not meeting the inconsistency attack.

Lord Falconer of Thoroton: I have explained the answer. Your word is "inconsistency". I would say that one is dealing with the racial element in crimes in a different way with different crimes. I believe that that involves no inconsistency.

That deals with the points made from the Benches to my right. The lawyers can now move off stage! I come to the main point made by the noble Lord, Lord Meston, about alternative verdicts. Again, I am sure that I have missed the point. However, we know that in relation to a Clause 23(1)(a) offence Section 20 would be the alternative verdict. On a Clause 23(1)(b) offence Section 47 would be the alternative verdict, and common assault is the alternative to Clause 23(1)(c).

The alternatives under Sections 20 and 47 are already alternative verdicts because of Section 6(3) of the Criminal Justice Act 1967. Common assault is an alternative verdict because common assault is always pleaded on indictment by virtue of Section 40 of the Criminal Justice Act 1988.

I would not expect Members of the Committee to understand the full beauty of that explanation without looking at the specific provisions. But that is what my note states. I hope that that deals with the point.

Clause 23 agreed to.

[Amendment No. 160 not moved.]

Clause 24 [Racially-aggravated public order offences]:

[Amendment No. 161 not moved.]

Lord Monson moved Amendment No. 162:

Page 19, line 34, leave out ("two years") and insert ("twelve months").

The noble Lord said: With the leave of the Committee I shall speak also to Amendment No. 165, and to a phantom amendment which would have been Amendment No. 159A had I realised before two o'clock this afternoon, which I did not, that a similar subsection appears at the end of Clause 23. It has been dealt with effectively by the noble Lord, Lord Carlisle, when dealing with the question of common assault. If we agree to these provisions, that would follow automatically.

The purpose of the amendment is to reduce the increase in the sentence for the racial element from a 300 per cent. to a 100 per cent. increase. The increase provided in the Bill is 40 per cent. in the case of most fines; and I believe that one fine is increased by over

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100 per cent. Had Amendment No. 160 been moved and agreed to, that would have provided a reasonable 20 per cent. increase. But it has not been moved.

However, to raise the maximum sentence from six months to two years seems excessive, as the noble Lord, Lord Carlisle, said. He also pointed out that it would involve trial by jury in almost every case, a great waste of time, and considerable extra expense. By going part of the way towards the Government, and agreeing to a 12 month increase rather than the status quo, admittedly trial by jury would still be involved, but 12 months, which doubles the existing maximum, is more reasonable than quadrupling it. I beg to move.

Lord Falconer of Thoroton: As the noble Lord, Lord Monson, pointed out, Clause 24 sets out a maximum sentence for the racially aggravated version of the offences contained in Section 4 and 4A of the Public Order Act 1986. In essence, his amendment seeks to reduce the increase in relation to a conviction for a racially aggravated offence under those provisions.

As the noble Lord, Lord Monson, knows, as a general rule magistrates' powers are limited to six months' imprisonment on summary conviction. If there are to be any increased penalties for racial harassment the offence must be triable on indictment. The normal lower limit on the power to imprison on indictment is two years' imprisonment. This reflects the seriousness of such offences. It seems to us that it is simply a matter of judgment as to where one puts the level. Some view has to be taken about the seriousness of racial aggravation in such offences. It is plain that we take a serious view of it. If one has such a maximum, that is the way of conveying the extent to which we think that it is serious. I appreciate that the noble Lord and others may disagree, but the line has to be drawn somewhere. We know that a maximum is not mandatory, but it sets the tone and gives the sentencer the range.

We believe that it is the right point at which to put it. Having referred to the remarks made by the noble Lord, Lord Monson, we are minded to stick with that level.

Lord Monson: I am grateful to the noble and learned Lord the Minister for that answer. I still find it most puzzling. I am surprised that there have been no comments from other parts of the Committee which seems to acquiesce in the quadrupling of a sentence. However, I failed to spot that the argument applies with even greater force to the similar provisions of Clause 23. Therefore I believe that it would be more sensible to return at the next stage with a package deal. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 163 and 164 not moved.]

6 p.m.

On Question, Whether Clause 24 shall stand part of the Bill?

Viscount Colville of Culross: At the risk of the dire displeasure of my noble friend Lord Bridges, I must

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return to alternative sentences under the Public Order Act. I hope that the noble and learned Lord the Solicitor-General will appreciate that the last thing in the world I wish is to be difficult. Whatever law is passed, I will do my best to administer it. If I get it very wrong--sufficiently wrong--it will come up in front of the noble and learned Lord, Lord Lowry, and he will put it right. But when one is dealing with public order one is dealing with the bread-and-butter material of what happens in the Crown Courts.

We often have cases of violent disorder and of affray. The Public Order Act states:

    "If on the trial on indictment of a person charged with violent disorder or affray the jury find him not guilty of the offence charged, they may (without prejudice to section 6(3) of the Criminal Law Act 1967) find him guilty of an offence under section 4",

which plainly refers to threatening words or behaviour.

In Clause 24(1)(a) of this Bill the Government are creating a new offence, and it is a different offence. It is one of threatening words and behaviour which is racially aggravated. There is no amendment in the Bill, either here or in any schedule that I can see, which states that when one has an indictment which contains either violent disorder or affray, the jury may find the person guilty in the alternative of an offence under Clause 24(1)(a) of this Bill. It just does not say so--in which case I assume that the Government do not wish them to do it.

I respectfully suggest that what will happen in these circumstances is this. If the prosecution wish to prosecute someone for a racially aggravated public order offence, they will have to decide whether they are going to go for ordinary violent disorder, ordinary affray--noble and learned Lords were right in saying that it will not be necessary for them in those circumstances to prove anything by way of racial aggravation--or they are going to go for racially aggravated threatening words and behaviour under what is now Clause 24(1)(a). There is no alternative. The two things are not an alternative. They cannot be, because of the way the legislation is drafted. If they wish to proceed, for instance, on affray, it will not be necessary for them to prove any racial aggravation. They will just prove an affray in the ordinary fashion. There will be no alternative of racially aggravated threatening words and behaviour under Section 4, because it cannot be an alternative. They will therefore have to put two counts. They will have to have ordinary affray, which by definition will not have to be racially aggravated, and they will have to have a second count of racially aggravated threatening words and behaviour. What the jury will make of that, I really do not know.

There is an added complication. Having been confronted with non-racially aggravated affray and the alternative of a racially aggravated offence, the jury will also have a third alternative under subsection (6) whereby they can find a non-racially orientated offence under Section 4. If the noble and learned Lord really wants judges in the Crown Court to sum up, and the prosecution to proceed, upon that basis, we will do it. There is no problem. What will happen, I shudder to think; but that is what we will do because we are bound, as a matter of law, to do it under the Bill as it now

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stands. I merely ask the noble and learned Lord whether that is what the Government intend. I do not believe that it is. I believe that it makes matters much more complicated than was ever proposed. I hope that it is not supposed that I am being difficult. I am trying to achieve clarity so that we know where we are when we are trying to handle such cases in front of juries.

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