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Lady Saltoun of Abernethy: My Lords, is the Minister aware that there is a telephone number that one can ring or an address to which one can write to

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stop unsolicited fax messages? I should be very pleased to send that information to any noble Lord who would like it, if I can find it.

Lord Davies of Oldham: My Lords, the noble Lady is right. That is exactly how one protects oneself against such unsolicited mail. One can ring the appropriate telephone number. I am grateful that she is helping to publicise that fact. Of course, at present that applies only to individuals and not to companies, but it is an advance and I am sure that many Members of the House will be duly grateful for that fact.

Baroness O'Cathain: My Lords, would the Minister consider government action on e-mails that would suggest to the writers of programs for e-mails that there should be a "Return to sender" icon? On a lot of junk mail that is delivered through the post appear the words, "If undelivered return to" and I return it all to the senders who have to pay for the return postage. They soon get the message.

Lord Davies of Oldham: My Lords, the noble Baroness has identified a growing practice of consumer resistance to unsolicited mail of various kinds. I applaud her recommendation and hope that more of us take up her suggestion.

Baroness Sharples: My Lords, during the war spam was tinned meat. Can the noble Lord tell me what spam means?

Lord Davies of Oldham: My Lords, I was terrified that I would be asked for a definition of such names. I was ready to describe "cookies" and some of the other delightful concepts that are now used as shorthand for aspects of new technology. Spam refers to unsolicited mail.

Baroness Miller of Hendon: My Lords, will the Minister tell the House why the Government have fixed a derisory 5,000 penalty for this matter when the Italians—leaving aside the penalty of three years imprisonment as mentioned by the noble Lord, Lord Faulkner—have a fine of 66,000, which is much more proportionate to the amount of money involved in this trade?

Lord Davies of Oldham: My Lords, it has often been asserted—quite accurately—in the House that the British are significantly more law-abiding with regard to European directives than many other societies. We can be confident that with a fine at this level we shall fulfil the requirements of the directive. The Italians may believe that they need a greater deterrent.

Criminal Justice Bill

3.15 p.m.

The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I beg to move that the Bill be now further considered on Report.

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Moved, That the Bill be now further considered on Report.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

Clause 128 [Increase in sentences for racial or religious aggravation]:

Viscount Colville of Culross moved Amendment No. 198:

    Page 79, leave out lines 5 to 7.

The noble Viscount said: My Lords, this group of amendments concerns hate crime. Although a number of noble Lords will be interested in this subject, I can see that many are not. I shall pause so that people will have an opportunity to listen.

Hate crime is an offence of any kind committed against a victim because of a characteristic of the victim that the offender particularly dislikes. So far the statute law has identified a number of them—race and religion—and it has dealt with them in the Crime and Disorder Act 1998 to which were attached some provisions in Section 38 of the Anti-terrorism, Crime and Security Act 2001. Since I drafted the amendment—I should perhaps have seen this before—the noble Baroness, Lady Scotland, has tabled Amendment No. 201A which adds two new categories: sexual orientation and disability. I thoroughly approve of that.

It would have been useful to have a preliminary discussion on this matter in Committee. I had intended to say something on a Liberal Democrat amendment which was tabled but in the end it was not moved because the necessary troops were not present. The matter arises out of the Select Committee on Religious Offences where my colleagues and I had a good deal of opportunity to consider the law, as it currently stands, on this point and its disadvantages. I am told that my drafting is hopelessly faulty. That is no novelty for anyone who moves amendments in this House. Nevertheless, the various points are worthy of consideration and discussion.

I have tabled Amendment No. 199 which deals with a number of characteristics and at the end I have put in the vague phrase,

    "or other identifiable characteristic".

The noble Baroness and her advisers do not like it. My problem is that in terms of what we already have on the statute book, we are nowhere near meeting what is currently in process, and has been for a very long time—the European Council draft framework decision on racism and xenophobia. That does not concentrate solely on race and religion or indeed on sexual orientation and disability; it deals with race, colour, religion, descent or national or other ethnic origin. The letter that the noble Baroness was kind enough to send to me stated that when all those matters turn up as problems, we shall have primary legislation to deal with them. That means that we shall have a criminal justice Bill every year, as usual. So be it. If that is the Home Office's attitude to this matter, we must put up with it.

I pick one small quarrel, although not with the noble Baroness as I know that this is not part of her portfolio. However, the issue was discussed in the

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report of the Select Committee. The Home Office should have replied to it within three months. It did absolutely nothing. There is one feeble letter from the junior Minister, and we have had no reaction whatever. Therefore, I think it is probably quite appropriate to raise the matter at this stage of the Bill, even if it would have been better raised in Committee.

The statute law on hate crime is in a real mess. We have had two statutes—one in 1998 and one in 2001—which dealt with race and religion. They created aggravated offences. They also substantially increased the maximum penalties for a number of fairly ordinary, but nevertheless very unpleasant, offences, sought under Section 20 or Section 47 of the Offences Against the Person Act; harassment under the Public Order Act and the Protection from Harassment Act; and criminal damage. I shall not go into the details, but, for example, under the Criminal Damage Act—not including arson or criminal damage intended to endanger life—the maximum penalties were increased from 10 to 14 years. Those are now available to the courts in cases where aggravation is established.

I should have thought that all Members of your Lordships' House would agree that where such aggravation on the basis of any hate crime is established, a court should be able to impose an increased penalty. That is exactly what is provided in Amendment No. 201A, tabled by the noble Baroness, but only for that limited category.

The current situation is that if a person commits an offence, activated by hatred of the victim, which falls within one of the classes where the maximum imprisonment is life, there is no need to do anything about it. Nothing has been done about it. In other words, homicide offences under Section 18 of the Offences Against the Person Act—that is, grievous bodily harm to malicious wounding, both of which carry life—and offences under the Criminal Damage Act, such as criminal damage with the intent to endanger life or arson which also carry life, have not been included in any legislation so far because there has been no need. The maximum sentence being life, the court has liberty to put the correct maximum tariff on the offence.

On the other hand, we have the other sets of offences. First, there are those dealt with under Sections 29 to 32 of the Crime and Disorder Act on the basis of race, where there is an increase in the maximum sentence on the grounds that these are aggravated offences. To those were added the religiously aggravated offences under the 2001 Act, in which the courts are enabled to increase the sentence above what would be the maximum in other cases. But of course the difficulty is that the offender has to be charged with a racially or religiously aggravated offence.

That matter must be proved to the satisfaction of the jury. If the members of the jury are not so satisfied, they can of course convict—and will have to be directed to convict—on the lesser, "unaggravated", ordinary offence. If they do so, there is a major problem for the judge—or indeed the magistrates—

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because the one thing that cannot then be taken into account is the aggravating circumstance because that has been dismissed by the finders of fact and is no longer available as an aggravating circumstance. Therefore, it cannot be the basis of the sentence.

In Section 153 of the Powers of Criminal Courts (Sentencing) Act 2000 there is a more general power, where in respect of anything other than the Crime and Disorder Act and legislation on religious offences the court must treat aggravation as increasing the seriousness of the offence, and therefore raise the sentencing limit within the maximum laid down by the statute. But there is no increase in the maximum laid down by any other statute, and the whole thing rests entirely upon the maximum in the other legislation. There is no similar provision, as in the Crime and Disorder Act, whereby the actual maxima sentences are increased in order to deal with what is seen as the mischief. That applies only where it is not a matter of race and religion.

Now we have the amendment that the noble Baroness will move as part of this group, whereby she says that we should add to the Section 153 list the matters of sexual orientation and disability. There will be no increase in the maximum sentence, as was the case for race and religion, but, nevertheless, the seriousness can be reflected by the court in the sentence imposed. So I would suggest to your Lordships that there is legislative chaos in this particular area. There has been no comprehensive consideration of this, nor have we had any answer to the package in the report of the Select Committee on Religious Offences where we dealt with the matter.

I suggest that we should have a more general look at the point. I dare say that my amendment is wholly defective, but never mind; there is something in it that might appeal to all noble Lords. The concept is that we should no longer go along with the particularities that so far distinguish this legislation. In Amendment No. 199, I have attempted to broaden out the kinds of hostility and include the other identifiable characteristic which the noble Baroness does not like.

Then, as in Amendment No. 201A, we have a general provision for an extra penalty being legitimate on the grounds of aggravation, if an offence is proved to have been motivated by this kind of hate crime. It does not actually have to be proved to the jury. Therefore, the judge is not debarred from imposing an increased sentence because the prosecution has not had to put the matter on a basis of a particularly aggravated offence on a specific reason. Therefore, the jury members have not had an opportunity to discuss this or to come to any conclusion on it. The matter is therefore in the hands of the judge. He will be able to look at the situation in the light of all the considerations that have come out either in the course of the crime or in looking at the antecedents.

I do not know what will happen in this kind of area as a result of the previous provisions in the Bill. I do not know what will happen to the bad character part of the Bill. I expect that it will come winging its way back from another place in exactly its original form,

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before amendment was made to the Bill yesterday. One way or another, either under those provisions or those passed yesterday on a Division by way of Sections 82, and so on, to the Criminal Evidence Act, the court will have a discretion on whether or not to allow previous convictions to come in as part of the evidence to the jury or to the magistrates.

It seems to me that if someone is accused of criminal damage in that he sprayed offensive graffiti on the wall of a mosque and the jury are told—if it gets to a jury—or the magistrates are told that the defendant has a number of previous convictions for graffiti and religiously motivated criminal damage—spraying swastikas on Jewish tombstones, or whatever it might be—those points would be so prejudicial to the fairness of the trial that a judge probably should not let them in. If we are determined to stick to a separate regime for race and religion whereby guilt would have to be proved on the basis of an extra motivated aggravated crime, such previous convictions would be fiercely argued as between the prosecution and the defence. They would be extremely prejudicial to the defendant's chances, as he may not have committed the previous offence or the current one.

I do not know what will happen as regards bad character; however, it is not necessary to go down that road at all. If one takes the view of the draft framework decision that there is a whole range of objections that motivate people to attack each other or each other's property, and one moves away from having cases that must be proved on the basis of racial and religious aggravation, one has a much more general situation in which courts can treat all those factors as a matter of aggravation. They may need to look at the maximum sentences currently available for the kinds of offences to which I refer. Some are comparatively small, but they may be adequate. The noble Baroness, in her amendment, has not considered it necessary to increase any of the maximum sentences in the circumstances about which she is talking.

This is an opportunity to look broadly at the area to see where we are going. I am very unhappy at the suggestion that we must pinpoint one target group after another and have primary legislation later to bring them into the system whereby the courts can treat the circumstances as seriously aggravated.

In East Anglia, where I come from, thousands of Chinese work illegally and there are many other immigrant workers whose status I do not know. The local population does not necessarily object to them as such, but they may object on the grounds that illegal immigrants are using public resources and taking jobs that others would like. I do not believe that those circumstances would lead to victims being targeted on the grounds that they are Chinese, Albanian or any other nationality; there would be different reasons. It is not good enough to wait until someone can pinpoint the exact reason why certain people have been chosen for victimisation and made the object of various offences.

The issue should be broadened. We have now an opportunity to discuss it, probably not on the basis of my amendment, but certainly on the basis of

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Amendment No. 201A, tabled by the noble Baroness. Perhaps we can discuss the issue more broadly to see whether we can end the extraordinary disparity between the three existing provisions and the new one that is about to be put on the statute book. This piecemeal approach cannot possibly make sense. I beg to move.

3.30 p.m.

Baroness Farrington of Ribbleton: My Lords, perhaps I may remind noble Lords that the Companion gives guidance on the length of speeches on Report. I understand the interest that the noble Viscount, Lord Colville, has in the area, but I ask noble Lords not to respond to his request for a wider debate on the issues.

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