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Lord Thomas of Gresford: My Lords, for the purposes of the record, I think that I should say to noble Lords that the only noises I have made have been by the blowing out of air through my mouth in what was once called in happier days a raspberry.

The Earl of Mar and Kellie: My Lords, the noble and learned Lord will be pleased to know that I do not oppose the amendment. I am certain that the first time the provision is operated there will be loud cheering in the neighbourhood.

With regard to a third party owner, the breaking of equipment while the constable uses reasonable force to seize it may produce a problem, but it does not cause me to object to the amendment.

On Question, amendment agreed to.

Clause 23 [Racially-aggravated assaults]:

Lord Henley moved Amendment No. 60:

Page 19, line 1, after ("harm);") insert--
("(bb) an offence under section 18 of that Act (shooting or attempting to shoot or wounding with intent to cause grievous bodily harm);").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 61, 64, 66 and 67. We come now to racially aggravated offences, on which we spent some three hours in Committee. I trust that we can deal with these matters rather more quickly at this hour.

First, perhaps I may make it clear that all of us on this side--and I trust that is true of all parts of the House--are opposed to and abhor racial violence, or for that matter any crime that has racial undertones. I believe that everyone in all parts of the House believes that these matters should be addressed with rigour and that the courts should be able to take these matters into account in sentencing along with any other aggravating circumstances. In the light of the recent opening of the Stephen Lawrence inquiry, it is very important that all of us should make that clear.

The second point I wish to make is that on these Benches we all welcome the fact that the Government wish to take these matters seriously and ensure that the courts have adequate powers to deal with racially aggravated offences. But whether these clauses achieve that aim is another matter. As I put it in Committee, I believe that the jury is still out, particularly in the light of the comments that I and others quoted at Second Reading from both the Lord Chief Justice and the Attorney-General that the courts did have powers to take racial--I await correction from the noble and learned Lord--

Lord Falconer of Thoroton: My Lords, I am surprised to hear a reference to the Attorney-General saying that the court has enough powers.

Lord Henley: My Lords, I understood that it was the Attorney-General. I am afraid that I do not have a copy

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of Hansard from Second Reading, when I quoted from the Attorney-General. But, whether he thought that the courts had sufficient powers, the Attorney-General certainly made it clear that the courts had power to take these matters into account and could do so in sentencing. I will look very carefully at the quotation that I used at Second Reading.

As the noble and learned Lord will be aware, these amendments are more or less the same ones as I moved in Committee. I moved them then very much in a spirit of inquiry. First, I was asking just why some offences of violence were not included, and in particular why the more serious offences under Section 18 of the Offences Against the Person Act were not included; and similarly, why the more serious offences of public order were not included? Again, at that stage I moved an amendment relating to criminal damage--a matter with which the noble Lord, Lord Dholakia, will deal later and one on which I wish to offer him a degree of support.

I moved the amendments also because it seemed to me--as I argued earlier (I suspect not very effectively), when I received considerable support from the noble Lord, Lord Colville, who argued the case much better--that there could be occasions when, not including the more serious Section 18 offences, the provision could actually complicate the job of the trial judge in directing the jury. I should certainly like to refer the noble and learned Lord to the remarks made by the noble Lord, Lord Colville, at col. 1282 on the third day of Committee, when he dealt with those matters somewhat more effectively.

In responding, the noble Lord, Lord Williams of Mostyn, (I do not know whether he will respond this evening; I believe it is the noble and learned Lord) made the point that it was not beyond the wit of the prosecution to get matters right by including the appropriate range of offences. My response then, as it is still, was that it would make matters much simpler to include the greater offences. To put it very simply, in the case of the first amendments to include the Section 18 offences in the list of racially aggravated offences, and by that means make the job of those involved in the prosecution much simpler and prevent that particular problem from arising.

As I said, I propose these amendments in a spirit of inquiry, but I believe that there are matters that ought to be addressed and I should be grateful for a response from the noble and learned Lord. I beg to move.

Lord Thomas of Gresford: My Lords, do I understand correctly that the proposal is that there should be two counts on an indictment: Section 18 with life imprisonment and racially aggravated Section 18 with life imprisonment? Is that the proposal?

Lord Henley: My Lords, this is not Committee stage, but perhaps I may explain again--probably inadequately--what I tried to say before. If a Section 18 offence were not included in the Bill, it might be that someone would be charged under Section 18, in which case racial aggravation could not come into it. To include racial aggravation, one would have to charge for

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the lesser offence under Section 20, which is included in the Bill. I think it could create complications if, when directing the jury, a judge had to make clear that racial aggravation could not be considered under Section 18, but, if they decided not to convict under Section 18 but to convict on the lesser offence under Section 20, at that point racial aggravation could be taken into account. That seemed to me to create problems, and I believe I received a degree of support from the noble Viscount, Lord Colville of Culross, and others. I refer the noble Lord to the argument at Committee stage.

Lord Falconer of Thoroton: My Lords, before I comment on this group of amendments, which seek to add to the list of specific offences which can be considered as racially aggravated under Part II of the Bill, perhaps I may make three points.

First, I express the Government's gratitude for the statements of the noble Lord, Lord Henley, about abhorring racially motivated crimes. Secondly, I also express gratitude that he is glad that the Government wish to be seen to be serious about these matters. Thirdly, as regards the way we shall deal with the amendments today, an amendment in the name of the noble Viscount, Lord Colville of Culross, also seeks to introduce the offence of racially aggravated Section 18, if I may call it that. As I understand it, his amendment focuses in particular on the complication of charges and summing-up to the jury by the judge. It was a point specifically raised by the noble Lord, Lord Henley, in moving his amendment. Perhaps I may deal with that point after the noble Viscount, Lord Colville of Culross, has moved his amendment, because the whole argument in relation to that will then be exposed. That is not to suggest that the noble Lord, Lord Henley, has not exposed the argument; he has done so entirely adequately, as far as I am concerned. However, it would be repetitive if I had to repeat the arguments after the noble Viscount has made his remarks.

In dealing with this group of amendments, perhaps I may deal with the principle of why certain offences have been included and others have not. The Government gave careful consideration to the offences to be included in this part of the Bill. We made it clear that the purpose of these provisions is to provide increased sentences for racially aggravated crimes directed against the person. As I said in Committee, where the basic offence already carries a maximum sentence of life imprisonment, as in the case of Section 18, the racially aggravated offence is not required in practical terms as the maximum sentence cannot be increased. It is for this reason that we have not included, for example, murder and manslaughter in the list of offences. We made the point in the course of the debate in Committee that, if one simply increased the maximum sentence for offences where the maximum was not already life, one would be dragging all those crimes, racially aggravated or not, up to a level, and we did not believe it was appropriate to do that.

I should emphasise--though the noble Lord, Lord Henley, understands this--that we are not creating new racially aggravated Section 18 offences. Nevertheless, the judge can increase the sentences for racially aggravated Section 18 offences as a result of Clause 69

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of the Bill, which permits it to be taken into account when sentencing. That is why Section 18 has not had added to it the racially aggravated element as part of a crime.

Amendments Nos. 64, 66 and 67 propose to extend the provisions to deal with affray, unlawful violence and riot. The Government's intention in proposing the new offences is to deal with a specific problem of racial violence and harassment. For that reason we restricted the range of the provisions to concentrate on those violence and harassment offences directed against the person. This second group of amendments, which deals with affray, unlawful violence and riot, are not directed against specific persons; they are melee or public order offences. We do not believe it is appropriate to add a racially aggravated element to them.

There could in theory be a large number of offences which could be added to the list of specific offences we have included in the Bill. The offences in the amendment go beyond offences against the person to include public order offences, which need not be directed against a specific individual or victim. Criminal damage raises special issues because of the peculiar nature of the offence and its particular connections with racial aggravation. I shall not deal with that in relation to this amendment; it will be dealt with by my noble friend Lord Williams of Mostyn when he comes to deal with a later amendment.

The offences proposed by the noble Lord, Lord Henley, fall outside the immediate area of concern. The offences included in the amendment would nevertheless be covered by the provisions in Clause 69 so that, where there was evidence of racial hostility, the court could consider that as an aggravating factor meriting an increased sentence. I hope that I have explained the Government's thinking behind what is and what is not included, and that, in the light of that explanation, the noble Lord will call the jury back and withdraw his amendment.

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