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Lord Henley: My Lords, I support this amendment. At a previous stage the Government argued that the current maximum sentence for offences of this kind was 10 years. They said that that was enough and there was no need to increase it. I accept that broadly speaking 10 years is enough for the most serious kinds of offences, short of arson where obviously a longer sentence can be imposed. However, the proposed amendments to Clauses 22 to 24 do not simply create new maximum sentences but new offences in themselves. I take it that part of the reason for that is the importance of getting across the right message. If so, surely the Government should accept the argument put forward by the noble Lord, Lord Dholakia--they should also accept the arguments that I have advanced--in relation to this matter and ensure that these offences are taken seriously. Alternatively, they might turn to Clause 69 (previously Clause 68), to which no doubt we shall refer at a later stage, and not bother at all with any part of Clauses 22 to 26 (racially aggravated offences in England, Wales and Scotland). Clause 69 allows racial aggravation to be taken into account by the court. That increases the seriousness of the offence and presumably the sentence available to the court at present. For that reason I support the amendment moved by the noble Lord, Lord Dholakia.

Lord Thomas of Gresford: My Lords, I also support my noble friend's amendment and the sentiments that

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he expressed in moving it. My noble friend has identified an important omission in the Bill. In particular, he has referred to damage caused to property by graffiti of a racial nature. Very often the damage is of a much more serious nature. My noble friend's proposed subsection (3) points out the matter to which I referred in the debate on the previous amendment. If that subsection were part of the Bill there would be only one offence charged in an indictment; namely, the offence of criminal damage under this clause with an alternative verdict open to the jury. It follows that there would be a single sentence passed for that offence. I am anxious to clarify the position for the benefit of those who are charged with bringing prosecutions under this Bill when it becomes an Act. Is it suggested that there be two charges in the indictment of a single charge with an alternative that leads to a single sentence?

Lord Williams of Mostyn: My Lords, yesterday we were able to accept the thrust of an amendment moved by the noble Lord, Lord Dholakia, relating to ethnic monitoring in the context of the Data Protection Bill. We did so on the basis that we had listened to views expressed by the noble Lord and other noble Lords and interested parties outside the Chamber. I believe that the noble Lords makes a good case subject to one or two matters that require further examination. We have decided to look at the issue again and have concluded that we should accept the principle of a racially aggravated offence subject to finding a way of overcoming certain difficulties. Perhaps I may outline them briefly. One is length of sentence, to which the noble Lord referred; another is defining the victim. Normally, in criminal damage cases it is the owner of the property, but there will be cases where the victim of the racial hostility will not be the owner of the property. He might be the tenant of local authority accommodation, or, as the noble Lord said, there may be some cases where there is no identifiable victim of racial hostility. His example was a good one: racial graffiti sprayed on bus shelters for all to see.

I hope to be able to look at the problems which are technical and not of principle and bring forward an amendment on Third Reading which would address the concerns expressed by noble Lords.

In response to the question asked by the noble Lord, Lord Thomas of Gresford, that will be a matter for individual prosecutors. In some cases, at the moment, where there are alternatives, some prosecutors prefer to have the alternatives plainly on the indictment and others prefer to open the case in the alternative on a single charge. there is merit in allowing discretion to prosecutors in particular cases, subject, of course, to the overall discretion of the trial judge. On the basis of the undertaking, not just the assurance, that I have given to the noble Lord, I hope that he will feel able to withdraw his amendment for the moment.

Viscount Colville of Culross: My Lords, before the noble Lord, Lord Dholakia, decides what to do, perhaps I may urge him if he is discussing this with the Government, to choose 14 years rather than 12. If the

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case is very serious, and the offender is under 18, unless the maximum sentence is 14 years one cannot deal with him under Section 53 of the Children and Young Persons Act. Sometimes that is the right thing to do. The way that the provision is drafted at the moment, one would be debarred.

Lord Williams of Mostyn: My Lords, just to be helpful, that is a question which the Government have in mind. I was being economical earlier when I said that one of the problems was length of sentence.

Lord Dholakia: My Lords, I am grateful to the noble Lord, Lord Henley, and to the noble Lord, Lord Monson, for their support. I am delighted that the Minister has agreed to take this matter back and return with the appropriate recommendation on Third Reading.

It is a sheer joy, as the Minister rightly pointed out, that he accepted my amendment to the Data Protection Bill yesterday, and he has today accepted my amendment on racially aggravated offences. he has been very kind to me. I suspect that since the day when the supreme champion at Crufts was a Welsh terrier, he has changed his attitude towards this House. I beg leave to withdraw the amendment.

Amendment by leave withdrawn

Clause 24 [Racially-aggravated public order offences]:

Amendments Nos. 64 to 67 not moved.]

Viscount Colville of Culross moved Amendment No. 68:

After Clause 24, insert the following new clause--

Racially-aggravated offences: alternative verdicts

(" .--(1) A person charged with an offence under--
(a) section 18 of the Offences against the Person Act 1861 (wounding or causing grievous bodily harm with intent, etc.);
(b) section 2 of the Public Order Act 1986 (violent disorder); or
(c) section 3 of the Public Order Act 1986 (affray);
may be charged with that offence as being a racially-aggravated offence.
(2) If, on the trial on indictment of a person charged with an offence falling within subsection (1)(a) above as so aggravated, the jury find him not guilty of that offence, they may find him guilty of any offence specified in section 23(1) above.
(3) If, on the trial on indictment of a person charged with an offence falling within subsection (1)(b) or (c) above as so aggravated, the jury find him not guilty of the offence charged, they may find him guilty of an offence under section 24(1)(a) above.").

The noble Viscount said: My Lords, I have not yet said thank you to the Government Front Bench for the letters that have been sent, and in particular, for accepting the principle that I suggested in Clause 9. I am grateful and I have absorbed what was said in those letters.

The amendment has already been introduced by the noble Lord, Lord Henley. We discussed it in Committee. I hope that I have made a constructive suggestion in relation to what I envisage being a difficult problem. It may not be comprehensive, but at least I think that I

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have illustrated the type of difficulties that will arise. I hope that the Government will address the matter, because what they are doing has my full support.

I am pleased that racial aggravation is to be recognised on the face of the statute and that certain of the maximum penalties are to be increased. They are inadequate. It is wholly desirable that they should be increased so that the racial aggravation can be reflected properly.

The difficulties are practical. As already stated, the Bill creates new offences. We have a new offence which constitutes racially aggravated Section 20, and similarly under the Public Order Act. Perhaps I may illustrate the problem by using the Offences Against the Person Act. I agree that the prosecution should be given a certain amount of discretion, as the noble Lord, Lord Williams, said. However if it chooses to bring an indictment under Section 18 of, let us say, wounding with intent to cause grievous bodily harm and it does not add a second count under Section 20 or the new Section 20 relating to racially aggravated offences because it does not want a conviction under anything other than Section 18, the matter in its view being very serious, the trial may proceed. It not infrequently happens that as the trial proceeds the prosecution case wavers and it becomes apparent that it will not obtain a conviction. Although the jury is sufficiently astute to tell the difference between intent to cause grievous bodily harm and unlawful and malicious wounding under Section 20, it will not be given the opportunity unless one can find a method of bringing in that alternative verdict.

At present, there is no necessity to add another count to the indictment because under the Criminal Law Act all the ingredients of a Section 20 offence are included in a Section 18 count on the indictment. Therefore, it is possible to direct the jury that they may convict under Section 20 if that is the way they find the facts have emerged. There is no difficulty about that and frequently juries get it right. It is an extremely happy state of affairs and one finds that justice has been done.

The noble Lord, Lord Williams, said that in Section 18 cases it is for the prosecution to decide whether to open on the basis that it was a racially aggravated Section 18 wounding. Very well, it may do so. However, unless it also brings the racially aggravated Section 20 Charge, the latter newly created offence will not be available under the Criminal Law Act 1967 because it will contain an element that is not present in Section 18; that is, the racial aggravation. Therefore, it will not be a true alternative and without adding a count to the indictment it will not be possible for the jury to convict on the new offence.

I am bound to say that if I were conducting the trial and the prosecution came along late in the day and stated that it wanted to add a new indictment carrying not what the defendant would have expected, which is a five-year maximum sentence, but a new count which carries a seven-year maximum sentence, I would hesitate because I would not be certain that that was correct. Whether a new count can be added is for the judge's discretion. I would think that the later it was in the trial, the more prejudice there would be to the

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defence and the less likely I would be to add the new count under the provisions of the Bill. Much the same thing happens under the Public Order Act.

The other difficulty is that, in the end, there may be no trial. It may be that at the pleas and direction stage in the Crown Court the defendant decides to plead not guilty to the count on the indictment but guilty to a lesser count. That happens frequently. Looked at in the round, it is probably justifiable to accept that. The prosecution must decide whether it will do so and the court must sanction it. But it may well be that that is the proper course to take; it is just and it avoids all the witnesses having to give, in some cases, traumatic evidence, which they detest. It will not be possible, unless there is permission from the court at that stage, to add the racially aggravated offence which is not on the indictment because the defendant will be confronted with pleading guilty not to what he thought carried a comparatively short sentence, for instance, under Section 4 of the Public Order Act, but under a much enhanced maximum of a racially aggravated Section 4. One would find it very difficult, in justice, to allow the prosecution to add the count to which the defendant could then plead.

I am not saying that that is insuperable but the complications which will arise from that most laudable attempt to increase the maxima where they are, at present, inadequate has not been entirely followed through. I am sure we can all get by but I do not believe that the prosecution will find it nearly as easy to use the new provisions as the Government hope in the proper cases. There will be complications in the course of trial which will result in less than adequate sentences being passed for what are very nasty, racially aggravated, violent or public disorder offences simply because it will not be possible to have the right count on the indictment.

I do not know what the answer is. I have suggested that one can artificially create, for the purposes of alternative verdicts, racially aggravated Section 18, racially aggravated violent disorder and affray, simply in order that they can be argued and indicted with those alternatives as a possible let-out, alternative verdict or plea.

I do not know what the Government have to say about that. In my submission, it will make it much easier to use those admirable provisions if something of the sort that I suggest could be introduced into the legislation. I beg to move.

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