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12 Feb 1998 : Column 1280

4.30 p.m.

Lord Windlesham: Amendment No. 158 is the first of this group of amendments. It will add one further offence to the three listed in Clause 23(1) which were enumerated by my noble friend in moving the amendment. All concern non-fatal offences against the person and go back 167 years. They have been described by the present Home Secretary as "outmoded and unclear". He used those words in the foreword to a discussion document entitled Violence: Reforming the Offences Against the Person Act 1861, published as recently as yesterday. In chapter 2, paragraph 2, the Government say:

    "The law on Offences Against the Person has long been criticised by judges and lawyers as archaic, confusing and unhelpful to all those involved in the criminal justice system. Some have also argued that the state of the law in this area creates unnecessary and expensive appeals arising from wrong decisions on questions of law".

I take this opportunity to ask the Minister--whichever of the two is going to reply to these amendments--whether they intend to re-enact these "archaic, confusing and unhelpful" offences which are so shortly to be abolished or if they will consider adding provision later in the Bill, which will enable the new offences to be substituted automatically and without further legislation when the Offences Against the Person Bill, which is forecast, becomes law.

Lord Williams of Mostyn: I shall speak to the amendments specified by the noble Lord, Lord Henley. I take it that the amendments indicate an acceptance of the concept of racially aggravated offences and--

Lord Henley: I believe what I said earlier in my opening remarks was that the jury is still out on these matters. I support what the Government are trying to do, but I am still not quite clear as to whether it is achieved by these clauses.

Lord Williams of Mostyn: I am grateful. I did not mean to imply anything more than a general feeling which I detected on the Opposition Front Bench that our purpose was noble even if we had not necessarily got the right vehicle. I was suggesting no more than that. My noble and learned friend the Solicitor-General has trenchantly and clearly indicated the general philosophy. It would be otiose for me to repeat his propositions. Our purpose is to provide increased sentences for racially aggravated crime directed against the person. Where one has a basic offence which already carries the maximum sentence of life imprisonment--as the noble Lord, Lord Henley, correctly presupposed would be my response--life imprisonment is already the maximum. Therefore, the aggravated offence is not required in practical terms because the sentence cannot be increased. That is why we have not included murder or manslaughter in the list of offences.

It is commonplace--it is, sadly, notorious--that some murders and manslaughters are racially motivated. But Clause 68 is there for that considered purpose. It will require the court dealing with offences not listed in the Bill to consider as an aggravating factor evidence of

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racial motivation or hostility. The existence of the aggravating factor will merit--I suggest, will require--an increased sentence within the sentencing scale that the judges are well familiar with.

I am obliged for the clarification which the noble Lord, Lord Henley, gave. In any of the new offences we have not dictated to the court what the minimum sentences should be and we do not believe that it is suitable in this context to do that. We believe that the Government are right in saying to the trial judge quite clearly, "You must consider all the facts of the case, including aggravating factors such as racial motivation, when passing sentence." We have put that on the face of the Bill because we believe that racial motivation and violence is vile and foul in a way that other motives are not.

As I see it, there is no difficulty for the judge to give the jury directions quite carefully and discretely in the way that they are well accustomed to doing. Quite often these days judges give typed directions on the law and juries are capable of being trusted to come to distinct conclusions on distinct offences where the necessary components are different. They have to grapple with these concepts in the context, for instance, of different intentions and different requirements when they are dealing with murder, as to whether manslaughter should be returned as an alternative, whether by way of provocation, diminished responsibility or lack of intent. Quite often I am sure I can say that many of your Lordships will share my experience that we have put these mutually inconsistent defences to juries in our professional life, asking the jury to accept one of the mutually inconsistent defences if they thought that appropriate in all the circumstances. Juries actually do that rather well.

We have not included affray, unlawful violence and riot. That was a deliberate decision. We wanted to concentrate on violence and harassment offences directed against the person. There is the particular question which the noble Lord, with his experience of Home Office matters, raised. Of course the Home Secretary is right in suggesting that the descriptions of conduct which presently constitutes criminal offences are archaic and outmoded in the nature of things since it was 1861 or thereabouts when that descriptive language was used. It is likely to be archaic and that is a part of the review which we are presently engaged upon. We want to modernise the terminology of the law as well as, in some cases, its substance but I do not anticipate any real difficulties in the appropriate translation, if I may "shorthand" the noble Lord's remarks in that way. I have to say that I am personally grateful for the fact that he has raised it because it is something which we are going to have to deal with and focus on as part of the general review of offences against the person. I am most obliged that he has brought it to your Lordships' attention.

4.45 p.m.

Viscount Colville of Culross: The noble Lord, Lord Williams, has wholly convinced me about the underlying thesis of these clauses. I sit in a place which covers an area where there are very many races, and we

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have cases in court which I am afraid do have these kinds of overtones and it is essential that one should be able to deal with them. However, the noble Lord, Lord Henley, raised a point which has not been answered, and it is quite an important one. I fully understand why in Clause 23 we have not got racially aggravated Section 18, if I can put it in that way, because life imprisonment is the maximum sentence and you do not need to increase the sentence. I am entirely in agreement with the Government that a five-year maximum under Section 20 is inadequate, because it is exactly the same as the five-year maximum under Section 47 and that makes no sense whatever. Therefore one does not have the flexibility in sentencing that one ought to have when faced with these various degrees of violence and assault.

The problem raised by the noble Lord, Lord Henley, has not been answered and I think it is quite difficult. Suppose, as is very often the case, one has an indictment which contains a count under Section 18 and an alternative under Section 20, which, if I may say so to the noble Lord, Lord Henley, is more likely than under Section 47. The noble Lord, Lord Williams, is perfectly right in saying that the jury are perfectly able to do the mental exercise, which they frequently do and usually get it right: they are very good at it. Of course, it is not necessary to add a second count under Section 20 because inherent in a Section 18 count by virtue of Section 6(3) of the Criminal Law Act 1967 there is automatically a Section 20 count included, and if it becomes suitable to do so one can direct a jury in any case, whether or not you add another count to the indictment, that they can convict under Section 20.

What I do not think it will be possible to do is this. If you have a Section 18 indictment which has by its nature and because it is not mentioned in the Bill no racially aggravated element, it will not be possible to direct the jury that they can as an alternative find a racially aggravated Section 20 offence to have been committed. If that is so then all one is left with is ordinary Section 20 and the maximum sentence will be five years instead of seven years, which the noble Lord wishes to have and which I should like to see implemented.

Precisely the same thing happens under the Public Order Act. This is not even a matter of the Criminal Law Act 1987 because the Public Order Act itself says that for violent disorder or affray there is an automatic alternative to the jury to convict under Section 4. The courts will be faced with exactly the same situation. They will indeed be able to convict under Section 4, but it carries a very small penalty. If the indictment had been able to have the racial aggravation, either by virtue of it being by violent disorder or an affray, then I do not think it would be possible to have an alternative under Section 4, which has the racially aggravated element in it, unless there is a racially aggravated element in Sections 2 or 3 of the violent disorder or affray in the first place.

Therefore what the Government are doing here is disabling the courts and indeed juries from convicting for a racially aggravated lesser offence, simply because they have not included racial aggravation in the major

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offence. Therefore, for all that the noble Lord and his supporters and advisers want to enable the courts to deal more seriously with this sort of thing, I think they are disabling them from doing so. If not, it would certainly be of great assistance to those of us who have actually to carry out this job of directing juries and indeed looking at indictments and at what can properly be in them or not in them to know exactly how the noble Lord sees this working.

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