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Lord Williams of Mostyn: Perhaps these words will come to haunt me, but I do not myself see any particular difficulty because a prosecutor in these circumstances will select the range of offences he is going to put in the indictment, simply because many of us in the past have had to deal with possible outcomes. It seems to me there is no reason why one should not if one wished, subject to the trial judge's views, charge Section 18, racially aggravated Section 20 or plain Section 20. It is not beyond the wit or the experience of judges, in my experience, to ask them specifically to say "What have you found?" Where there is no specific finding made by the jury because the indictment does not require them to, then Section 68 is there to give the judge sentencing power. However, these are not difficulties which are not capable of being worked through in practice and everyone sensibly putting offences in the indictment thinks of various permutations and puts the alternatives in and opens the case--I entirely agree with the assistance that has been given to me--to the jury on a number of considered alternatives.

Obviously if one has any sense or experience as a prosecutor one does not have too many permutations, but one thinks carefully about what might be the sensible and reasonable outcomes and what would be the consequence in terms of sentencing, because the duty of the prosecutor is to that as well, though not to tell the judge what to do about it but simply to consider consequences. I do not see the difficulties in practice if people put their minds to what they want to be in the indictment.

Lord Henley: I am more than grateful for the assistance of the noble Viscount, Lord Colville of Culross. It is almost 20 years since I sat at his feet as a pupil. I have forgotten the law that I knew and that is why I needed his assistance on this occasion. I am glad he offered some support. It seems quite easy to me. All the Government have to do is to add Section 18 to this, and the problems will be removed. I hope that between now and another stage the noble Lord, Lord Williams, will consider very carefully whether something might possibly be added to these clauses.

I was a little disappointed with his response to my Amendments Nos. 161, 163 and 164 in that, as I understood it, he simply said that he would study these points in detail later on but that this had been considered and it had been decided not to include them. However, at no point did he make it clear why the Home Office decided not to include them. I may have missed part of his response, but at this stage I think it would be convenient if I beg leave to withdraw my amendment and possibly

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return to these points at a later stage. Between now and that later stage perhaps we could have some further discussion of these matters. I beg leave to withdraw Amendment No. 158.

Amendment, by leave, withdrawn.

Lord Henley moved Amendment No. 158A:

Page 18, line 36, at end insert ("or
( ) criminal damage,").

The noble Lord said: I intend to speak briefly to Amendment No. 158A. I ask the Government whether they would consider adding criminal damage to the list of offences. This is a matter from which people suffer on occasions when racism is involved in the crime. I do not go as far as to suggest that there should be any increases in sentences. No doubt that matter can be addressed if the Government were minded to accept the principle behind the amendment. I beg to move.

Lord Carlisle of Bucklow: I speak briefly in support of what my noble friend has said. If the principle of the Bill is as set out I cannot understand the logic of leaving out criminal damage but retaining common assault. If one takes the examples given by the right reverend Prelate, many of them would be cases where criminal damage was racially motivated; that is, people's houses being daubed with racial slogans. That seems to me to be just as much racially aggravated as the threat of violence. If it is the intention of the Government to create the offence of racially-motivated common assault, it is extraordinary to distinguish between common assault on the one hand and criminal damage on the other when the degree of racial motivation is likely to be the same.

I believe I am right in saying--I shall be grateful if the noble Lord, Lord Williams of Mostyn, corrects me--that the sentence for criminal damage, if it is to a value of £2,000, is six months' imprisonment and is therefore limited to a magistrates' court. If one changes the common law so that for the first time--this will be explored when one speaks to Clause 23 stand part--one creates an indictable offence of common assault that does not at the moment exist, surely the same should apply to criminal damage.

Viscount Tenby: I should like to add my voice in support of the amendment moved by the noble Lord, Lord Henley. I would have thought that in racially motivated offences criminal damage was almost a sine qua non. Very often the kicking in of doors, the damaging of stock, the spreading of paint and all those matters are present in criminal damage cases. I would have thought that the mysterious absence of the phrase "criminal damage" in the appropriate clause is further illustrated by another amendment, which so far the Committee has not discussed, which suggests that a whole new clause should cover this point. I am sure that all noble Lords would be interested to learn from the Minister why criminal damage is not included in this clause.

Lord Goodhart: I speak in support of this amendment and take this opportunity to speak also to

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Amendment No. 160. The latter has not been grouped with this amendment but logically it probably should have been. Had Amendment No. 160 stood as a separate amendment I would have moved it on behalf of my noble friend Lord Dholakia who is not here today. In the absence of both my noble friend and the noble Baroness, Lady Amos, it is probably simpler to deal now with Amendment No. 160 and Amendment No. 158A.

There is a great deal of similarity between the two amendments, although Amendment No. 160 imposes a very much higher maximum sentence than Amendment No. 158A. Clause 23 of the Bill deals with offences under the Offences Against the Person Act, all of which involve some kind of physical assault. Clauses 24 and 25 deal respectively with offences under the Public Order Act and the Protection from Harassment Act. Both involve harassment or instilling fear of violence, but the commonest form of racially motivated offence is unquestionably criminal damage. One thinks of broken windows, graffiti and damage to gardens and vehicles. All of those offences are frequently motivated by racial hatred.

The Minister said that the racially aggravated offences under these clauses of the Bill were intended to be limited to those which were directed in a broad sense against the person. But criminal damage of the kind that I have suggested is clearly directed against the owner of the property that is being damaged. Criminal damage may involve harassment. It may be an offence under the Public Order Act, the Protection from Harassment Act or the Criminal Damage Act. However, that will not always be the case. It is also simpler to prosecute under the Criminal Damage Act because fewer elements have to be proved in order to obtain a conviction. The prosecution is therefore more likely to get a conviction. It seems to me, as to other noble Lords who have spoken to this amendment, that it is illogical not to include offences under the Criminal Damage Act in the list of aggravated offences.

Lord Henley: Perhaps I may rise briefly to apologise to the noble Lord, Lord Goodhart. It was I who ungrouped these two amendments. The Government suggested that they should go together with some other amendments. I believe that it was right not to group that particular amendment with those other amendments, but possibly it should have been grouped with my Amendment No. 158A.

Lord Williams of Mostyn: It may be for the convenience of the Committee if I respond to both amendments. We gave careful consideration to the question of racially motivated criminal damage. I entirely take the points which were well made by the noble Lord, Lord Carlisle, if I may say so without presumption. I believe that there are two answers to the questions that have been raised by the noble Lord, my noble friend and the noble Lord, Lord Goodhart. The first answer may commend itself to the Committee, and the second one perhaps even more so.

First, I give the reasonably good news. The maximum sentence for the basic offence under Section 1(1) of the Criminal Damage Act 1971 is

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already 10 years' imprisonment. For the more serious offences under Section 1(2) the sentence is life imprisonment. We believe that the sentences currently available-- a good deal of our thinking has been about what is currently available--are sufficient to deal with criminal damage cases that have a racial element, bearing in mind the overarching obligation on the court under Clause 68 to treat such an element as an aggravating factor in sentencing.

There is a minor technical point which I mention simply for the sake of completeness, because it does not add to the argument. Amendment No. 158A does not make a distinction in terms of sentence between the two criminal damage offences. However, I recognise that that is a detail rather than a principled response.

The second answer is that, speaking for myself and without any great period of reflection, I believe that the issue pinpointed by the noble Lord, Lord Carlisle, requires a degree of careful thought. I do not dissent from the proposition put earlier by the right reverend Prelate that some of this behaviour, which is terroristic in nature and is intended so to be, may well not be sufficiently addressed. If it commends itself to the Committee, I shall think about the specific example and illustration identified by the noble Lord, Lord Carlisle. There may be an answer that is satisfactory. If there is, it has not presently struck my mind. I undertake to research that further, indicating my gratitude that the point has been raised in that way.

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