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Baroness Flather moved Amendment No. 43:

After Clause 72, insert the following new clause--

Racial aggravation: duty of prosecution

(" .--(1) In relation to a prosecution for any offence it shall be the duty of the prosecution to bring to the attention of the court any information or material which contains evidence that the offence was racially aggravated.
(2) Section 24 above applies for the purposes of this section as it applies for the purposes of sections 25 to 27 and 72 above.").

The noble Baroness said: My Lords, the Bill seeks to address the legitimate concerns of ethnic minorities and, I like to think, most right-thinking people in this country. There is far more racial violence than we should be willing to accept in a civilised country. In Clauses 25 to 27 the Government have sought to create new offences relating to racial violence and racial harassment, and with a catch-all clause, Clause 72, to ensure that everything else is covered.

I have never been certain that special offences needed to be created. I thought that a catch-all clause might have been sufficient, but having put this clause on the face of the Bill, there is an aspect which has not been addressed properly; that is, that a considerable amount

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of behind-the-scenes activity, commonly known as plea bargaining, takes place before cases come before the courts.

A defendant is often persuaded to plead guilty to a lesser offence, in which case the racial element of that offence might not then be produced before the courts. I am deeply worried that if that takes place, the very purpose of Clauses 25 to 27 and 72 will be lost. Sentences taking into account the element of aggravation will not be passed on the defendant, as the evidence of the racial element will not be produced before the courts.

An inquiry is going on into the Stephen Lawrence case at the moment. The biggest problem in that case is the way that not just the Lawrence family but everyone else from the black and Asian communities feel grossly aggrieved that the prosecution did not do all that it could have done. That is the feeling that the community has been left with. Over time, it is built up to such an extent that an inquiry has been set up to investigate the procedure followed by the prosecution. I contend that this is a weak link in the wonderful chain proposed by the Government. I fear that the link may prove too weak for the other clauses to be effective and provide the protection which the Bill purports to give the ethnic minorities.

It would be greatly disheartening if the Bill led ethnic minorities to believe that the Government had at last grasped the nettle and would pursue that unpleasant aspect of our society with full commitment, only then to find that few prosecutions came before the courts. They may then come to the conclusion that there is only a small element of racial harassment, racial crimes and racial violence. For that reason, I have tabled the amendment which I hope the Government will accept as an important part of the Bill. I beg to move.

Lord Dholakia: My Lords, I support the noble Baroness. However, perhaps I might deviate for one moment. When Amendment No. 9 was moved I was not in your Lordships' House. I was celebrating the success of Amendment No. 1 and in doing so I missed the opportunity to thank the noble Lord, Lord Williams of Mostyn, for accepting my amendment on Report relating to racially aggravated criminal damage.

I support the noble Baroness because there is a weak link and a missing piece of the jigsaw in the legislation on racial attacks and harassment. I had hoped that after discussing the matter on Report the Minister would have had time to consider it and return with the intention of accepting this important amendment.

Perhaps I might say why the amendment is important. One of the most difficult aspects of racial attacks and harassment is in their definition. They are based on the perception of the victims and the perception of investigating officers. But when in the ethnic minority community there is an adversarial relationship between the police and the black community one will find that in many cases some of the important aspects of the investigation are forgotten.

The noble Baroness is right in citing the case of Stephen Lawrence. Anyone studying the inquiry and the evidence that has been produced cannot help but be

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moved by the plight of the parents who repeatedly spoke of the extent of what they believe to be the weakness in the police investigation. We are putting a duty on the Crown Prosecution Service to ensure that it brings out racial motivation in the cases which are being handled.

Why is it important to bring that out? The noble and learned Lord the Solicitor-General accepted that according to a rough survey which was carried out, in 18 per cent. to 20 per cent. of cases before the courts, the Crown Prosecution Service failed to bring out the element of racial motivation. If that is not brought out, there is a problem. No amount of sentencing guidelines to the magistrates or judges will help in terms of sentencing those people because the racially aggravating feature has not been brought out. That was referred to some time ago by the Home Affairs Select Committee.

But there is another factor. Agents, as they are commonly called, are employed by the Crown Prosecution Service to be responsible for the conduct of cases in a court. Those agents are not trained. I have sat on case after case where I have known that there has been racial motivation and yet no reference has been made to that in the court.

That destroys the confidence of the minority in the system established by the state because those people know what has happened; they perceive that a racial motivation exists and yet that is not brought out. Therefore, it is right that such a duty should be imposed.

That is nothing new in terms of legislation. Let us consider the Race Relations Act. Under that Act, it is the duty of the Commission for Racial Equality to eliminate discrimination and promote equality. But it also places a duty on local authorities to do the same thing. That is what we seek with this amendment. Why cannot an obligation be placed upon the Crown Prosecution Service to bring out any racial factors in the court?

I give two examples of how good practice can help and how no reference to racial motivation can create a lot of damage. Some years ago a case came before the courts in which a Pakistani taxi driver was robbed of his takings and bundled into the river. Two people were convicted. The Crown Prosecution Service quite rightly raised racial motivation as an aggravating factor in that case. In sentencing, the judge made clear his abhorrence of the racial motivation on the part of the people who had robbed the taxi driver.

It was interesting that I received a telephone call from the family of the taxi driver who had been killed. They recognised that it is very difficult to accept the death of anybody but they felt that it was easier for them because the judge had understood what had happened in that case.

I take another case which arose in the court where I sit as a magistrate. A black person was beaten up by white people. Those people were brought before the court. And yet at no stage did the Crown Prosecution Service refer to the racial element present in the offence. The court then decided to bind over not only the perpetrators for the damage that they had caused to that individual but also the black person whom the court decided was responsible because he was there. The court

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decided that he too should be bound over. I have never heard of such a stupid way in which to deal with such an important issue.

What is it that the Government find unacceptable with this amendment? Throughout this legislation, they have shown sensitivity and concern in relation to how such matters should be handled. But when we seek to place a duty on the Crown Prosecution Service, that is rejected. I believe that the way to establish the confidence of the minority is not simply by way of the wheeling and dealing that goes on in terms of plea bargaining and the discontinuance of cases but positively so that all racial motivation is brought before the court which is to decide sentence. I support the amendment.

9.45 p.m.

Lord Hylton: My Lords, I have in the past advocated in this House much stronger measures to recruit people from the ethnic minorities into all branches of government service. I am delighted to say that the Brigade of Guards in which, once upon a time, I did National Service, is at last starting to do something effective in that direction. However, we are still in an interim situation and we know that in the police and the CPS there is still a considerable preponderance of white people. That is why the amendment so ably moved by the noble Baroness, Lady Flather, is necessary. I trust that the Government will feel able to accept it.

Lord Falconer of Thoroton: My Lords, I am grateful to the noble Baroness for returning to the issue. She has an estimable record in demanding that there be racially aggravated crimes. Indeed, Clause 72 in this Bill bears a striking resemblance to an amendment that the noble Baroness moved to the Criminal Justice and Public Order Bill 1994. Therefore, the noble Baroness speaks with special authority in relation to this matter. Equally, the noble Lord, Lord Dholakia, who moved an amendment on criminal damage with racial aggravation, which is now incorporated in the Bill, also speaks with special authority.

I do not believe that we have different aims. I believe that we are all aiming towards the same goal; namely, that there should be a racially aggravated crime and that it should be an aggravating matter in sentence; and, indeed, that such circumstances should, in every proper case, be brought before the court. I agree with all three speakers who have said that there is a missing link if such matters are not brought before the court.

However, I am sorry that I cannot agree to the terms of the amendment. I should like to explain briefly why that is. There will be cases where, although there is some evidence of a racial element to a crime, there will not be enough evidence to meet the racial aggravation test. There will also be cases where the evidence of a racial element will not be admissible, or where the evidence is uncorroborated and unreliable. In those circumstances, the prosecutor will, as he does in every case, have to use his discretion to judge whether it would be in the public interest to charge the racially aggravated offence, taking into account the likelihood of obtaining a conviction--or, in the kind of cases which

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I mentioned, an acquittal. That decision is guided by the Code for Crown Prosecutors. That same code already places a duty on the prosecution to bring a charge commensurate with the seriousness of the offence.

We cannot have special rules in relation to racially aggravated offences. There will also be cases where, during the course of the proceedings, it will become clear to the prosecution that the racially aggravated charge is unlikely to succeed. In those circumstances, it would be in the public interest for the prosecution to accept the guilty plea to the lesser charge, rather than pressing on--as he would be obliged to if any amendment of this sort were to be adopted--to a likely acquittal.

Having said that, perhaps I may assure the noble Baroness that we anticipate that it will be exceptional for such information not to be brought to the attention of the court, and only then for legally-supportable reasons. The CPS is acutely conscious of the importance of providing the court with all information of racial aggravation and has taken steps through the Racial Incidents Monitoring Scheme to monitor all cases where racial motivation is identified, either by the police at charge or by the CPS at review. We will be evaluating those provisions in due course. The CPS will continue to monitor closely the procedures for dealing with racial incidents, and to keep records in that respect. Moreover, as long as I am able, I intend to take a personal interest in that process.

As I said on Report, the creation of these new offences will focus the attention of the police and the CPS on the importance of gathering and assessing the evidence relating to the racial element. We want to send a strong message that racist crime is unacceptable but we also need to ensure that, so far as possible, these provisions are effective in practical terms. I hope that the noble Baroness, and the two noble Lords who spoke to the amendment, will accept that the Government are serious in their commitment to tackling racist crime and that they intend to ensure that that message is clear to everyone throughout the criminal justice system. I hope that the noble Baroness feels sufficiently reassured to withdraw her amendment.

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