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The Earl of Mar and Kellie: Once again we have had a rather good discussion. I realise that these were two of my rather more risky amendments and I am not surprised by what the noble and learned Lord has said, particularly about the appropriateness or otherwise of funding Victim Support in the way I am proposing. However, I come back to one of the two central themes which I have been trying to put forward—this mirrors what was said by the noble and learned Lord, Lord McCluskey—which is bringing home the impact of the

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offence to the accused. Quite often, at Longriggend remand centre, I would have a discussion along the lines of, "Why did you pick on Mrs. So-and-so and break into her house?" and I would be hit with the answer, "Who's that?" Clearly, up to that point, the offender had not been confronted with what he had done to a particular individual. It is important that we should make it possible for offenders to understand why their behaviour is so unacceptable. However, I note what the Minister said and I am prepared to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Macaulay of Bragar moved Amendment No. 83:

Before Clause 27, insert the following new clause:

("Racially motivated offence

. In considering the seriousness of any offence which in the opinion of the court was committed with a racial motivation, the court shall treat the fact that it was committed with that motivation as an aggravating factor.").

The noble Lord said: This amendment is linked with Amendment No. 130 and the noble and learned Lord the Minister has kindly advised me that he will accept that amendment. These amendments are placed before the Committee because of the increasing incidence of racially motivated or apparently racially motivated crimes in Scotland. The number of such crimes reported to the Scottish police has increased from 299 in 1988 to 726 in 1993. Those are the offences which are reported. Many people who are subject to racial harassment do not go to the police because it just makes matters even worse.

The main amendment is Amendment No. 83, which requires the court to treat a racial element as an aggravating factor in the offence committed. It is brought before the Committee for the general reason that most of these cases are dealt with in the lower courts—either in the district court or the sheriff court—and there are really no proper statistics available. It is hoped that in the near future statistics will be available. The noble and learned Lord the Minister wrote to the Commission for Racial Equality on 4th December and also gave a news conference on the matter. He accepted that not enough statistics are available at the moment and indicated that the Crown Office and the police are monitoring matters to see whether a picture will emerge. However, that will take some time.

An attempt was made to introduce a specific crime of racial harassment in the context of this Bill but it was deemed not to be within the scope of the Bill. I wonder whether the Government, who I am sure will co-operate in every way to see that this vile behaviour is brought to an end if it possibly can be, will in the course of monitoring the information as it comes in bear in mind that there may be a need to introduce a special offence of racial harassment. It is difficult from breach of the peace statistics to tell whether an offence had a racial harassment element to it. However, if a person were charged with racial harassment or, alternatively, breach of the peace, the statistics would become clear in the court.

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As with the other matters which have been raised in relation to the victim, it is important that the country should send a message to these racist hooligans that to behave in this offensive way towards their fellow citizens is not acceptable. I am sure that the Government and those on this side of the Committee will do everything in their power to make sure that they suffer for any sins that they commit. In that context, I beg to move.

Lord Fraser of Carmyllie: Amendment No. 83 is very similar to one which was tabled for England and Wales by my noble friend Lady Flather during the passage of the Criminal Justice and Public Order Bill last year. On that occasion, your Lordships were perhaps influenced by the arguments put forward by my noble friend Lord Ferrers on behalf of the Government and the proposal was overwhelmingly rejected. Those arguments are as equally applicable to Scotland as they are to England.

No one could disagree with the importance of ensuring that the sentence passed by the court should reflect the seriousness of the crime. That is an important principle with which we all agree, whether the crime is racially motivated or stems from other acute forms of intolerance. However, as my noble friend argued during the previous Session, courts already take into account any such factors when assessing the seriousness of the offence. In addition, my noble and learned friend the Lord Advocate has already instructed that in Scotland the prosecution should inform the court of any evidence of racial motivation in relation to any of the charges. Where the prosecution establishes that an offence was racially motivated, and where the court is satisfied that it increased the seriousness of the offence, the court is already able to take that into account. It will be appreciated that we would not want to single out any factor, but we believe that they should all be balanced and brought before the court. In another place last Session the then Home Office Minister, Mr. Peter Lloyd, made the point that if such an amendment were to be accepted it might send a signal that an assault motivated by the hatred of women, or hatred of homosexuals, or contempt for the frail and elderly, should, for example, be treated less seriously than an assault motivated by racism. It is clear that that would be quite unacceptable.

The noble Lord has already indicated that I am prepared to recommend to the Committee that the second amendment should be accepted. Section 95 of the Criminal Justice Act 1991 requires the Home Secretary annually to publish information which will enable persons engaged in the administration of criminal justice better to perform their duty to avoid discriminating on racial grounds. This amendment would impose a rather similar requirement on the Secretary of State. As the noble Lord indicated, that was put to me last year by the Commission for Racial Equality in a letter from its Scottish commissioner. At that time I explained in my reply that after careful consideration it appeared then that the introduction of such a provision would not be appropriate. What caused me to reach that conclusion then is that at the time only

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a limited amount of information was available in Scotland. That was partly because the proportion of the Scottish population from ethnic minorities is so much less than in England and partly because until recently it has not been possible to extract statistics for common law prosecutions with a racial element. In that context it seemed to me that the information that would be published would be of dubious value.

However, since then matters have improved. Scottish police forces are adopting a system of tagging reported crime with a racial element or allegation. In addition, the Crown Office is introducing a system of recording cases which picks up on the police tags. These steps have been taken because of the importance of addressing racial crime, and that is well understood. They will ensure that in the not too distant future it should be possible to achieve a more detailed analysis of the numbers, progress and outcome of cases with a racial element.

For these reasons I am now happy to recommend acceptance of the new clause. I have no doubt that this action will be welcomed by the Commission for Racial Equality and by members of the ethnic communities in Scotland. I am grateful to the noble Lord for introducing it.

6 p.m.

Lord Macaulay of Bragar: I am grateful for the reply given by the noble and learned Lord. In the circumstances, we shall watch with care what is happening in the monitoring system. I note with interest the undertaking to keep in touch with the Commission for Racial Equality. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 84 not moved.]

Lord McCluskey moved Amendment No. 85:

Page 19, line 2, at end insert:
("(d) any recommendation made by the jury in terms of section 217C of this Act").

The noble and learned Lord said: This amendment seeks to add a provision to that contained in the clause and requires the court to have regard to,

    "any recommendation made by the jury in terms of"

the new section which is to be called Section 217C. That is printed as Amendment No. 87 in the Marshalled List.

This again is a matter to which I return after an interval of about nine years. I first made this suggestion in the Reith Lectures in 1986. It is very important to recognise —in a sense I am dealing at the moment with an objection to this proposal—that consistency in sentencing is important. I recognise at once that if one allows input by juries into sentencing—because the jury sits only once it is unique and it never meets again—one certainly risks an element of inconsistency being introduced into sentencing.

Before I turn to the particular proposal, perhaps I may say that in Scotland at the present time the judges are co-operating in a university-based study into consistency in sentencing. That is a very important piece of work to which much of the credit goes to the Lord

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Justice Clerk and the other judges who are co-operating. It is hoped that we shall be able much more readily to be consistent in our sentencing in future.

It may be argued that consistency is in a sense all important. I do not believe that that is necessarily so. I do not believe that consistency is enough. Consistency simply means that one judge will do what all the other judges do and there is an element of justice in that. But in a sense there is no public input into what it is that judges should do.

I put this forward for thought. One of my difficulties is that if one has a case where a man on the spur of the moment, as it were, indecently assaults and perhaps even rapes a girl of 14 or 15 years of age, that should call for a certain penalty. If a man spends two years planning a great and monstrous fraud and gets away with £1 million, so that there is a tremendous element of deliberation, how does one compare those two things? What do the public believe should be the comparison between those two types of offence? There is a difficulty there in that we have not consulted the public.

I am not—although sometimes I have been misunderstood to be—a hanger, flogger, tattooer or a putter of people in chains. My character as such emerged from a misreading of what I wrote in a rather obscure but nonetheless very worthy magazine, some months ago. It was picked up by someone and condensed for the Press Association. Thus I was embarrassed to find myself being praised in the Sun newspaper. I am not a hanger or a flogger. My desire is not that the public should come in and increase the sentence.

Perhaps I may remind the Committee—perhaps "remind" is a very self-indulgent word—of what I said in 1986 and 1987. Relatively few cases go to trial before a jury, but there are enough to allow juries to give a clear indication what the public considers to be appropriate sentences of common crimes. At the present time judges whose contacts with the general public are extremely limited have no reliable way of knowing what the public thinks about sentencing levels. Leaders in newspapers or utterances by spokesmen for particular interest groups such as the Police Federation, cannot be regarded as authoritative guides to public opinion and attitudes. It is possible that juries might be more severe than judges, but it is by no means certain. Juries which have heard all the evidence are much more likely to make a considered and informed judgment than are citizens who are stopped in the street and asked to express off-the-cuff views to professional opinion gatherers.

I believe that to be so. My observation of juries in criminal trials is that they become extremely well instructed. That is partly because they are much closer to crime in many ways than we are. They are much more liable to be the victims of crime than are judges and they are much more liable to be related to, married to or friendly with, the perpetrators of crime than are most of Her Majesty's judges—I hope.

For those reasons it is not improper to consult them. It has often been said—it has become a kind of mantra—that sentencing must be left to judges. I should

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like to think that there was justification for that. Currently it may be that they are better than anybody else, but that does not mean to say that they are very good. We do not really know what the philosophy of sentencing by judges is. If I recall correctly, an attempt was made by members of the Institute of Judicial Administration at Birmingham University to inquire into the attitude of judges. They went to the then Lord Chief Justice, the noble and learned Lord, Lord Lane, who is a Member of this House. Marcel Berlins, in writing his profile of the Lord Chief Justice in The Times on 28th November 1985, stated that the Lord Chief Justice refused to allow judges to co-operate in an important and respectable academic study of sentencing policy. I believe that was a study at Birmingham. He is said to have,

    "considered that taking part in the research would be time consuming, achieve nothing and could make the judges look foolish".

I understand that that was indeed so. Permission to make that inquiry was denied.

If the judges will not allow themselves to be examined, and if it is contempt of court to question juries, we have no means of finding out what the people who are close to the cases and who are informed about them, can be thinking.

I make no secret of the fact that I should like to go further than just use the jurors in a particular case. There is something to be said for the view that over time we should recruit people who have served on juries and who have delivered verdicts on the merits and who have participated in a sentencing exercise, in order to inform us about what are the options. We are not very well informed in this country as to what they are. I have looked at options which are employed in other countries, particularly in the United States, Canada and Australia. There are many more imaginative things being done than we are attempting. We should be looking at these with the assistance of those who are closer to crime than we are. One way to do it is to recruit ex-members of the jury for that purpose in some kind of study body. These are the ideas which lie behind the proposals which I make.

Amendment No. 87 is in conjunction with the amendment to which I am now speaking. It deals with the particular features of what is proposed although again, as in the case of victim impact statements, I am seeking merely to have the matter properly discussed in order that it might be considered over time. In what will be new Section 217C(2), I want that to apply to cases that have proceeded to trial and where the jury has returned a verdict of guilty. That is the type of case with which I am concerned.

Secondly, in the present draft I am limiting the provisions to those cases where the judge is thinking of imposing a sentence of more than three years: in Scotland that would mean cases heard in the High Court. I am requiring the judge to disclose to the jury the range of sentences that he has in mind. Some people may imagine that sentencing is an exact science and that all judges would arrive at the same conclusion about what a sentence should be. That is not my experience and it

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may well be that in this limited way judges can obtain some assistance from members of the public as to what should be done.

Subsection (3) is perhaps of more importance. It states:

    "Before explaining to the jury what he requires to explain to them under subsection (2) above the trial judge shall hear in open court and in the presence of the jury the submissions of the accused, or his lawyer, and shall cause the clerk of court to read out aloud any victim impact statement prepared under section 217B above".

I am seeking to bring sentencing out into the open, as it were, and to have both sides of the argument presented before the adjudicating body makes its decision.

The other provisions are matters of detail. The jury is not obliged to participate in the exercise if it chooses not to do so, and the jury must retire before it decides what recommendations, if any, to make.

I appreciate that these ideas have not hitherto met with any approval. They did not meet with approval when I first put them forward in 1986 when they were criticised by the noble and learned Lord, Lord Hailsham, and others. Nonetheless, we must consider such matters carefully. As is the case with victim impact statements, I believe that it is important that the criminal justice system retains the confidence of the general public. One way to ensure that might be to find ways of involving the general public, at least through jurors with experience, in helping to determine our approach to sentencing. It was in that spirit that I tabled the amendments. I beg to move.

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