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Baroness Flather: My Lords, I thank the Minister for what he has said. I shall hold him to his promise to keep an eye on what is going on in the Crown Prosecution Service in this regard. I wish to mention a couple of matters which cause me concern. The Minister has referred to something which has also been mentioned to me in the past by members of the Crown Prosecution Service; namely, would you rather that someone got away with something, or would you rather that person was charged with a racially motivated crime? I fear that, in the hope of obtaining a conviction, the Crown Prosecution Service may prefer to fudge the racially motivated crime aspect and charge the defendant with another offence.

This is one of the reasons I have never supported the idea of special crimes with racial motivation as that creates a division between other crimes and specifically racially motivated crimes. In my opinion crimes are

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crimes and racial motivation can be part of any criminal incident. I hope that the noble and learned Lord the Solicitor-General and the Home Office Minister will both keep an eye on what happens in this respect and will at some stage produce a report on the functioning of these clauses, as I am not totally satisfied that they will achieve the end result that we all hope will and should be achieved. I shall not divide the House on this matter as it is not the appropriate time to do so, nor am I absolutely certain that this amendment is workable. Once again I am grateful to the Minister for at least considering it carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 74 [Extended sentences for sex and violent offenders]:

Lord Hardie moved Amendment No. 44:


Page 60, line 3, leave out from ("that") to ("the") and insert ("the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of protecting").

The noble and learned Lord said: My Lords, in moving this amendment I wish to speak also to Amendments Nos. 45 to 63 inclusive, 80, 98 and 99. These amendments are technical amendments intended to improve the drafting of the clauses relating to extended sentences for Scotland. They bring the terms used into line with other relevant legislation, remove superfluous wording and clarify the effects of the provisions in relation to short-term and long-term prisoners. I should be happy to explain all or any of them in further detail to any of your Lordships who desire me to do so. I beg to move.

The Earl of Mar and Kellie: My Lords, I have one reservation which has arisen because Amendment No. 44 spells out more clearly what will happen. That reservation probably arises from a prediction as to how this provision will work. I see that the imposition of an extended sentence will be a judgment made at the time of sentence about the intentions of the offender with regard to reoffending after he or she has completed his or her imprisonment. I believe that extended sentences are not in fact mandatory. Therefore I wonder whether I am right that mistakes could be made either by predicting wrongly that the person will put the community in some danger or indeed by making a redundant order because the person proved to have no such intent whatsoever after he or she had left prison.

Lord Hardie: My Lords, let me explain. When a long-term prisoner is released from prison he is on licence until the end of his custodial sentence. In the case of a prisoner who has an extended sentence of four years or more, the intention is that the extension period of that sentence should start at the end of his custodial term. That is the point where he is no longer subject to parole or on parole licence following release.

The criteria in new Section 210(A)(1)(b), which the court would have regard to when considering imposing an extended sentence, is concerned with the purpose of protecting the public from serious harm by the offender on his release.

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The reference to the words "on his release" are not entirely apt, since the prisoner may be released long before the extension period begins. In considering whether to impose the extended sentence, the court will consider whether the period during which the prisoner would, if not given a extended sentence, be subject to supervision is adequate for the purpose of protecting the public from serious harm by the offender. That needs to be more clearly expressed, and that is what the amendment seeks to do.

The Earl of Mar and Kellie: My Lords, with the leave of the House, I accept what the noble and learned Lord has said. I persist in the view that the decision as to whether an extended sentence is to be imposed is made before the custodial period. It does not seem that the extended sentence can be added on if during the licence period it is found that the person is fairly unrepentant and likely to reoffend. That is my only point.

On Question, amendment agreed to.

Lord Hardie moved Amendments Nos. 45 to 48:


Page 60, line 4, leave out ("on his release").
Page 60, leave out lines 15 and 16 and insert ("purpose mentioned in subsection (1)(b) above.").
Page 60, line 26, leave out ("custodial").
Page 60, line 41, at end insert--
("( ) An extended sentence shall not be imposed where the sexual or violent offence was committed before the commencement of section 74 of the Crime and Disorder Act 1998.").

On Question, amendments agreed to.

Clause 75 [Further provision as to extended sentences]:

Lord Hardie moved Amendments Nos. 49 to 63:


Page 62, line 23, leave out ("an offender") and insert ("a prisoner").
Page 62, line 24, leave out ("this section") and insert ("section 75 of the Crime and Disorder Act 1998").
Page 62, line 24, leave out ("is") and insert ("has been").
Page 62, line 29, after first ("a") insert ("sentence or").
Page 62, line 29, leave out ("included") and insert ("was").
Page 62, line 31, leave out ("an offender") and insert ("a prisoner").
Page 62, line 34, at end insert ("; and
(b) if he is recalled to prison, the Secretary of State may at any time thereafter, if recommended to do so by the Parole Board, release him on licence.").
Page 62, line 35, leave out ("an offender") and insert ("a prisoner").
Page 62, line 44, after second ("the") insert ("day following the").
Page 62, line 46, leave out ("offender") and insert ("prisoner").
Page 63, line 3, at end insert--
("(5A) Subject to section 210A(3) of the 1995 Act and to any direction by the court which imposes an extended sentence, where a prisoner is subject to two or more extended sentences, the extension period which is taken to begin in accordance with subsection (5) above shall be the aggregate of the extension period of each of those sentences.
(5B) For the purposes of sections 12(3) and 17(1) of this Act, and subject to subsection (5C) below, the question whether a prisoner is a long-term or short-term prisoner shall be determined by reference to the extended sentence.

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(5C) Where a short-term prisoner serving an extended sentence in respect of a sexual offence is released on licence under subsection (4)(a) above, the provisions of section 17 of this Act shall apply to him as if he was a long-term prisoner.
(5D) In relation to a prisoner subject to an extended sentence, the reference in section 17(5) of this Act to his sentence shall be construed as a reference to the extended sentence.").
Page 63, leave out lines 4 to 8.
Page 63, line 13, leave out ("an offender") and insert ("a prisoner").
Page 63, line 14, leave out ("an offender") and insert ("a prisoner").
Page 63, line 16, leave out from ("expire") to end of line 21.

On Question, amendments agreed to.

Clause 76 [Drug treatment and testing orders]:

Lord Hardie moved Amendment No. 64:


Page 63, line 27, at end insert ("committed on or after the date on which section 76 of the Crime and Disorder Act 1998 comes into force").

The noble and learned Lord said: My Lords, in speaking to Amendment No. 64 I shall also speak to Amendments Nos. 64 to 66 inclusive and 86 to 96 inclusive. These amendments are of a technical nature and correct typographical errors and errors in cross-references to the Criminal Procedures (Scotland) Act 1995. The opportunity has also been taken to clarify that the new provisions for drug treatment and testing orders can only be applied in relation to offences committed after the commencement of the relevant sections of the Crime and Disorder Act 1998. I ask your Lordships to accept these amendments. I beg to move.

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 65:


Page 64, line 28, leave out ("has been").

On Question, amendment agreed to.

Clause 78 [Procedural matters relating to drug treatment and testing orders]:


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