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Lord Lester of Herne Hill: I am sure that the noble Lord is right that our attempted solution may not be perfect. But is he aware that that is part of a quite normal problem in relation to civil and criminal proceedings? For example, if there are traffic offences and negligence proceedings the courts are frequently in the position of having to decide how to deal with civil proceedings--perhaps for negligent driving--and criminal proceedings for driving without due care or reckless driving.
Does not the noble Lord agree that it is a matter for the courts' discretion to decide how to deal with those problems rather than seeking to fetter them in a particular way in the context of this particular Bill?
Lord Cope of Berkeley: The noble Lord may be right. As I understand it from my limited knowledge of the matter, generally speaking, in the circumstances which the noble Lord outlined the negligence part of
Of course, in civil proceedings there is a different standard of proof and a different mechanism altogether for deciding the issue. That is part of the difficulty. The requirement in a criminal trial is to prove the matter beyond a reasonable doubt whereas the requirement in a civil case is less. That is one of the reasons that the negligence claim must be left until the criminal matter has been dealt with.
I agree with the noble Lord, Lord Lester, that a certain amount of discretion will have to be left somewhere, not least to overcome the problem to which I referred earlier of when exactly the file may be regarded as having been closed so that the civil issues can proceed. But at this point in time I am not entirely convinced that either formulation will provide a satisfactory answer to the problem.
Lord Bassam of Brighton: The noble Lord, Lord Cope, has begun to point us in the right direction. It is not an unusual or unique problem; but this amendment raises the issue of whether the test should be lower than that which is presently in the Bill.
The intention of the test in new Section 4A in Clause 4(1) is to ensure that as far as possible the courts are satisfied that relief sought does not prejudice the investigation or prosecution of the process, thus preserving the criminal court as the forum for determining guilt or innocence.
It also serves to reinforce our commitment to trying to achieve the aims of reducing crime and the fear of crime and dispensing justice fairly and effectively. That is an objective which we all share. The test proposed in this amendment would shift the balance of the test which the civil court should apply. In our view that may bring about the undesirable outcome of civil cases being allowed to proceed notwithstanding that there may be some adverse effect on the criminal process, which, again, falls short of serious prejudice.
Furthermore, in order to determine whether the remedy sought will cause serious prejudice--I use the noble Lord's term--the civil court will have to examine in more depth the substance of the criminal investigation. Such action may itself prejudice the investigation or subsequent proceedings, particularly where media publicity, as often is the case in such matters, begins to arise from the civil proceedings.
The proposed amendment may, therefore, undermine our overall objective of ensuring that granting the relief sought will not prejudice a criminal investigation, any criminal proceedings or decision to institute criminal proceedings. Prejudice in those circumstances means detriment.
Therefore, the Government are to allow a damages award to be made, even though the court is not satisfied about whether it will prejudice a criminal investigation. I do not understand the logic of saying that you can obtain damages for racial discrimination when there is a criminal investigation but you cannot obtain a finding of discrimination.
Surely an award of damages is predicated upon a finding of unlawful discrimination. If that is so, why cannot the court make a declaration giving the finding and therefore allowing the CRE to use its follow-up powers? I simply do not understand the logic of the Government's position.
I understand the logic of the position of the noble Lord, Lord Cope of Berkeley. He says that there should be no remedy, including damages. That is what I understand his later amendment provides. But the Government's position is that you can have a damages award but not a declaratory award. There can be no finding. I find that completely impossible to understand.
Lord Lester of Herne Hill: I am not addressing whether the prejudice should be serious or not. That is the question of the test. Let us leave that to one side and assume that I am wholly wrong and that the test should be simply one of prejudice. I am asking why the Government intend to allow damages to be awarded but not a finding of unlawful discrimination.
Lord Bassam of Brighton: I believe that I understand the point which the noble Lord, with his usual legal wisdom, is making. But is not the case that a declaration or injunctive relief could prejudice the case and also the issue of damages, which may be separate from that? Of course I listen to what he has to say on this point. But in these circumstances we are concerned that prejudice will mean detrimental disadvantage, which is what we are trying to avoid. We believe that there is little point in complicating what is essentially a straightforward matter by identifying degrees of prejudice.
We believe that this merely places an additional and unnecessary burden on the civil courts. Having listened to that point, I hope that the noble Lord will agree to withdraw Amendment No. 19. I shall take account of the points which he has raised in the debate. I shall read what he said in Hansard and reflect further upon it. But we wish to keep things simple. Therefore, although all these mechanisms may not be perfectly in place, I hope that we can make some more progress on this issue.
I am concerned that the investigation process should not be prejudiced in any respect while it is proceeding, not only in the legal sense of prejudicing it but also in the more ordinary sense of the criminal investigation being delayed and confused. The police will be doing their best to solve the crime; to bring together the evidence; and to find the right people to charge and to give evidence. I am concerned that in the course of doing all that they may be delayed and the matter much complicated by the necessity to respond at that stage to the racial accusation.
Afterwards, when the investigation has run its course and the individual concerned has been prosecuted and the criminal aspect has been dealt with, those concerned should be answerable for what happened in the course of the investigation. But we do not want the life of the police, the prosecuting authorities and the courts made more difficult in the pursuit of solving crime by having those proceedings taking place at the same time.
I am not making a judgment that no racial discrimination can possibly be worse than all crime. Of course that is not the case. Slightly looser wording and perhaps the introduction of the word "serious" in respect of the prejudice may be a partial answer to this very difficult question. But it seems that we are still left with a considerable difficulty.
Lord Bassam of Brighton: I begin to see more degrees of difficulty having listened to what both the noble Lord, Lord Lester, and the noble Lord, Lord Cope, said. I recognise what the noble Lord, Lord Lester, says about the implications of awarding damages. We will seek to reconcile the issue. The noble Lord, Lord Cope, is right about the complexity and the fact that the civil proceedings may have a bearing and undermine the validity.
Lord Goldsmith: Does the noble Lord agree that a degree of confusion creeps in over the question of remedy in the event that proceedings are concluded and whether proceedings should be continued during the time that there is a criminal investigation or criminal proceedings? My understanding of the Bill is that new subsection (4D) deals with the point made particularly by the noble Lord, Lord Cope, that proceedings would not continue for racial discrimination so long as there were criminal proceedings afoot or a criminal investigation had been decided upon. It happens to be the same test which the noble Lord, Lord Lester, criticises under new subsection (4A), but I do not see, unless I have misunderstood, that he seeks to amend that test under new subsection (4D). However, the test there is whether or not there will be prejudice to any criminal proceedings. Does the Minister also agree that the court is likely, when looking at prejudice, not to have regard just to any fanciful prejudice but to something which it is satisfied is, indeed, prejudice?
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