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Lord Mishcon: I wonder whether I may be allowed to intervene on a rather different note. I have had to be absent from the Chamber over the past half an hour or so. If this point has been made by another noble Lord, will the Committee please accept my humble apology?

We are dealing at Committee stage with a new type of offence, and we are thinking in terms of a new type of sentence. I take advantage of the fact that the Home Office Minister is sitting on the Front Bench and I know that he will not mind my asking him to listen to this. Because it is a new type of offence, because it is motivated by some sort of evil thoughts, as distinct from many other crimes, have we also considered what sort of remedial treatment will be accorded in prison to people who are convicted of these offences? I should like to know that some sort of "tutorial", or some sort of spiritual message, is to be given to these people when we are increasing sentences, very properly, in the hope that what they feel by way of hatred is removed and some sort of tolerance is taught. In other words, we should be considering remedying as well as punishing.

The Earl of Mar and Kellie: What the noble Lord, Lord Mishcon, has just described is a topic that is raised and forcefully debated at long length during an intensive probation project. There is no reason why such an activity should not be extended to prisons as well.

Lord Falconer of Thoroton: First, the description given by the noble Viscount, Lord Colville, of the process where the indictment in effect has to contain, to deal with the situation indicated, the three charges, is correct. He is absolutely right in his description of what the legal position is. In particular cases there would be two ways to proceed. It would first be a matter for the Crown Prosecution Service to determine what it was appropriate to put on the indictment. It would have in mind the need not to overload the jury with complicated interlocking charges which could in certain circumstances lead to the sort of complication and difficulty to which the noble Viscount referred. If the Crown Prosecution Service took the view that, despite the interlocking nature of the charges, nevertheless they should all be listed, and the prosecution, at the hearing decided to proceed with all three, then the noble Viscount is right. The only solution then would be for the judge to sum up as best he could in relation to the particular charges on the indictment.

I am not sure that I necessarily accept that in every case where that happens it would be as difficult or as complicated for the jury as the noble Viscount suggested. I certainly do not think that his intervention was at all an attempt to make matters difficult. It is an important point to consider, and one will consider it. But

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the noble Viscount is absolutely right as to the effect of the law. One would hope that, as a matter of practicality, it would not lead to too many difficulties.

To turn to the point made by the noble Lord, Lord Mishcon, one would hope that there would be something done. I have no idea what the present arrangements are, and it may be necessary to write to the noble Lord. It is certainly a point that one would bear in mind, but I do not think, with respect, that it goes to the wisdom or otherwise of this clause.

Lord Elton: Perhaps I can tell the noble and learned Lord with what anxiety a lay Member of this place hears him say, "Yes, it is the case. We are making a framework of sentencing so complicated that it may, on occasion, be prudent not to pursue a course of justice because the jury may not understand what is being argued."

Lord Falconer of Thoroton: I wish to make two points, with great respect. First, it is not a sentencing framework. Concerns were expressed by the noble Viscount, Lord Colville, in relation to the crime itself. Secondly, under the law as it presently exists in many areas, if prosecutors overload indictments, if at court they proceed with too many charges, there will always be scope for overloading indictments and complicating matters for the jury. The one thing that it is important to underline is that in relation to all criminal trials on indictment, as long as the prosecutor is sensible, normally the charges laid before the jury will be capable of easily being summed up by the judge. But one cannot legislate for prosecutors who put too much into an indictment.

The point I was trying to make rather unskilfully is that of course one can put together a concatenation of circumstances that will lead to complications. It will normally be avoided by--and I say this with trepidation--the good sense of the lawyers involved. If not, then one hopes that the judge will put pressure on at the beginning of the trial to try to make the package more digestible to the jury. So, with respect, although the point is well made as regards the law by the noble Viscount, Lord Colville, as a matter of practice one hopes that it would not cause too many difficulties.

Clause 24 agreed to.

Clause 25 [Racially-aggravated harassment etc.]:

[Amendment No. 165 not moved.]

Clause 25 agreed to.

Clause 68 agreed to.

Clause 26 [Racially aggravated offences]:

Lord Monson moved Amendment No. 166:


Page 21, leave out lines 12 to 17.

The noble Lord said: The arguments in favour of this amendment are precisely the same as those in favour of Amendment No. 157. I could not move the two amendments together because apparently Scottish legislation cannot be grouped with English and Welsh legislation for some reason. However, I invite the Committee to consider the arguments I put earlier.

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Having heard the response, if any, I shall almost certainly beg leave to withdraw the amendment. I wait to hear the reply. I beg to move.

The Deputy Chairman of Committees (Lord Brougham and Vaux): I should have advised the Committee that if Amendment No. 166 is agreed to, I cannot call Amendments Nos. 167 or 168. I apologise for that.

Lord Mackay of Drumadoon: Perhaps I may make a brief intervention to indicate that, speaking from the perspective of a Scottish lawyer, I have no difficulty in the Government seeking to define a similar concept in a different way from England in so far as it is to apply in Scotland. The point was raised by the noble Lord, Lord Meston, earlier on, that I should not trespass into English definitions. However, in the hope that it might shorten proceedings I can indicate to the noble and learned Lord the Lord Advocate that while I have difficulties with Clauses 26 and 79, they do not lie in the definitions which have been chosen.

The Lord Advocate (Lord Hardie): Dealing with Amendment No. 166, I reiterate the comments made by my noble and learned friend the Solicitor-General in replying to Amendment No. 157. For these provisions to be effective, it would be essential that the test of what constitutes racial aggravation is set at a realistic threshold. If the amendment were accepted, the only way in which the prosecution could succeed would be to prove a racial motivation.

There will, of course, be cases where there is sufficient evidence of that, but there will be many others where there is not. Indeed, a number of respondents, including the Association of Chief Police Officers for Scotland and the Faculty of Advocates in Scotland, have commented on the difficulty of proving motivation and the lack of precedent within the Scottish legal system. They preferred the Government's formulation. With that brief explanation, I hope that the noble Lord will withdraw his amendment.

Lord Monson: I am grateful to the Minister; he has explained it extremely clearly. I accept the Government's point of view. I do not think I can do anything other than beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Meston moved Amendment No. 167:


Page 21, line 14, leave out ("evinces") and insert ("demonstrates").

The noble Lord said: I spoke earlier to this amendment and to Amendments Nos. 168 and 169. At that stage the noble and learned Lord the Solicitor-General, despite his own national origins, preferred to leave matters to the noble and learned Lord the Lord Advocate to deal with. On that basis, I beg to move.

Lord Hardie: The Government have no objection to the form of words proposed by the noble Lord,

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Lord Meston, in these amendments. As has been observed, the wording would have the same effect and be in line with the parallel provision in England and Wales. This is a matter of judgment and when preparing the Bill we considered using the wording suggested by the noble Lord. But we also took into account the responses which we had received to the consultation paper, in particular from the Faculty of Advocates in Scotland. They cited the existing use of the wording which we have adopted. The Scottish courts are already familiar with the term "evincing malice and ill will" towards someone and they regularly charge juries who seem to have no difficulty in understanding that concept. On balance, we prefer using this formulation in Scotland. Like my noble and learned friend the Solicitor-General, I would not dream of making any comparison between Scotland and England.

Lord Meston: I suspected that that would be the answer, that there was some peculiar reason. It is unfortunate that if it is accepted that the words have the same effect, the same wording cannot be used in the two jurisdictions. Nevertheless, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 168 to 170 not moved.]

6.15 p.m.

On Question, Whether Clause 26 shall stand part of the Bill?


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