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Lord Hardie: My Lords, I regret that I cannot accept this amendment because, apart from anything else, it is technically flawed. It does not make clear the circumstances in which a supervised attendance order might be made or the category of persons that it is intended to affect. As it stands, it is simply a blanket power for the court to make a supervised attendance order against anyone convicted of an offence outwith Scotland in whatever circumstances.

Your Lordships will be aware that supervised attendance orders are restricted by statute to fine default. In these circumstances, I would invite the noble Earl to withdraw the amendment.

The Earl of Mar and Kellie: My Lords, I will withdraw the amendment because I admit that the wrong wording was used and that a supervised attendance order is too junior a level of supervision. It is necessary that the courts or the Secretary of State, and subsequently the Scottish Parliament, should have the power to apply for post-release supervision of someone who has been convicted and imprisoned for serious offences abroad and who is then deported back to Scotland.

I had hoped that the noble and learned Lord the Lord Advocate would take it away and think again about it but I did not get that message. I do not promise that my honourable friends in another place will not bring it back. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 9:


After Clause 25, insert the following new clause--

Racially-aggravated criminal damage

(".--(1) A person is guilty of an offence under this section if he commits an offence under section 1(1) of the Criminal Damage Act 1971 (destroying or damaging property belonging to another) which is racially aggravated for the purposes of this section.
(2) A person guilty of an offence under this section shall be liable--
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding fourteen years or to a fine, or to both.

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(3) For the purposes of this section, section 24(1)(a) above shall have effect as if the person to whom the property belongs or is treated as belonging for the purposes of that Act were the victim of the offence.").

The noble and learned Lord said: My Lords, the Government have listened carefully to the views expressed by noble Lords during the progress of the Bill and to the views of other interested parties regarding the need for a specific racially-aggravated criminal damage offence. We understand the strength of feeling that this issue has provoked and we recognise that it is important that this Bill should send a strong message that such behaviour is unacceptable. My noble friend Lord Williams of Mostyn indicated to the noble Lord, Lord Dholakia, at Report that we would accept in principle the creation of a specific offence and that we would look very carefully at his amendment and attempt to overcome the technical problems that both he and the Government had identified. This amendment will, I believe, address the concerns of the noble Lords who have spoken in the previous debates.

This new clause will create a new offence of racially aggravated criminal damage based on the existing offence contained in Section 1(1) of the Criminal Damage Act 1971. The new offence will carry a maximum sentence of 14 years' imprisonment.

The maximum has been set at 14 years not 12 years for two reasons. First, as the current offence carries a 10-year maximum, the next scale in the normal sentencing ladder is 14 years. We do not normally create offences which carry a 12-year maximum. Secondly, as the noble Viscount, Lord Colville, indicated during Report, if the case is a serious one and the offender is under 18 then unless the maximum sentence is 14 years the offender cannot be dealt with under Section 53 of the Children and Young Persons Act 1963.

The other potential problem with this offence was reconciling the victim of the offence with the victim of the racial hostility. To take the example cited in earlier debates, in cases where racial hostility was demonstrated to tenants of a house which was damaged, there had been doubts about whether the tenants could always be said to be victims of the damage itself.

The definition of those to whom damaged property belongs for the purposes of the 1971 Act is, however, wide enough to cover all those who have custody, control, a proprietary interest, or a charge over property that is destroyed or damaged. This is the definition that is adopted in subsection (3) of the new clause.

As I have said, we have listened to the views expressed by noble Lords. I believe that this clause will address the concerns of all those who have called for a specific offence of racially aggravated criminal damage. I beg to move.

6.30 p.m.

Lord McNally: My Lords, the Minister will be aware that my noble friend Lord Dholakia was concerned at earlier stages about this issue. At that point our criticism was that, although technically we could understand that various offences were already covered by existing law, if one were at the receiving end of such an offence--if

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one were from an ethnic minority and suffered this kind of criminal damage--it would not look or feel, and indeed was not, like run of the mill criminal damage.

I believe that I speak for all on these Benches in welcoming the Government's flexibility on the matter, and the way in which they have approached it. That is welcome to us. Perhaps more importantly, it will be welcomed by ethnic minorities who have undoubtedly been victims of racially motivated criminal damage.

Lord Henley: My Lords, we also raised this concern both in Committee and on Report. I am grateful to the noble and learned Lord for coming forward with the new clause. We give it our wholehearted support.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 10:


After Clause 29, insert the following new clause--

Effect of child's silence at trial

(" . In section 35 (effect of accused's silence at trial) of the Criminal Justice and Public Order Act 1994 ("the 1994 Act"), the following provisions shall cease to have effect, namely--
(a) in subsection (1), the words "who has attained the age of fourteen years"; and
(b) subsection (6).").

The noble Lord said: My Lords, with Amendment No. 10 are grouped Amendments Nos. 31, 100, 104 and 105. It may be convenient if in moving Amendment No. 10 I speak to those amendments.

Amendment No. 10 deals with the inferences which a court or jury may draw if a defendant fails to give evidence at his trial, or refuses without good reason to answer any question. On 19th March on Report, I indicated to your Lordships that I would bring forward such an amendment, and the related amendments are consequential.

The purpose of the new clause is to amend Section 35 of the Criminal Justice and Public Order Act 1994 which deals with inferences to be drawn. They remain to be drawn at the moment when the defendant is under the age of 14, when the guilt of the accused is not an issue, or when the defendant's physical or mental condition makes it undesirable that he should give evidence. We wish to remove the age restriction from Section 35, but the remaining restrictions in Section 35--this may be of importance--will not be affected.

There are two principal reasons. The first is consistency with the intention to abolish the presumption of doli incapax, as indicated in Clause 29 of the Bill. Therefore a court or jury will be able to draw the inferences I mentioned. In most cases it is reasonable to conclude that a child of this age, if the circumstances are clearly explained to him or her, will be able to understand the consequences of refusing to answer a question, or of refusing to speak up on his own behalf. It is not unreasonable to expect someone who has an innocent explanation to provide that explanation. When it seems to the court or the jury that that is not the case, the child will be protected by the provision in Section 35 which allows the court not to draw

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inferences if it considers that the child's mental or physical state makes this undesirable. We would expect the magistrates, or in rarer cases a Crown Court jury properly directed by the Crown Court judge, to bear these matters carefully in account.

The second reason for introducing the amendment is to achieve consistency, not with the new legislation to which I referred a moment ago, but with existing legislation. There are no restrictions on drawing inferences from the failure of 10 to 13 year-olds to mention facts when charged or questioned. That is Section 34 of the 1994 Act. All children above the age of criminal responsibility are already treated equally under Section 36 of that Act which is the failure or refusal to account for objects, substances or marks; and Section 37, the related failure or refusal to account for presence at a particular place. What we are doing is to bring the position of those young people in court into line with existing related provisions.

We look to treat all juveniles in the same way except where individual circumstances clearly merit different treatment. I beg to move.


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