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5 p.m.

Lord Henley: The noble Lord, Lord Goodhart, may wish to intervene again before I withdraw my amendment, or speak on his when it is reached, but, as I understand it, the Government feel that the current sentence of 10 years for criminal damage is adequate to deal with that problem. I accept that. Ten years is long enough to deal with the most serious forms of criminal damage. That implies that the principal purpose of the clauses is not, as the noble and learned Lord the Solicitor-General put it, to create new offences, but to increase the sentences available to the courts for two or three particular offences; those under Section 20 and Section 47 of the Offences against the Person Act, and common assault.

If one wishes to increase the sentences for those offences, could there not be non-racially motivated offences for which the court might also wish to have greater sentencing powers? We are aware that the sentences for offences against Sections 20 and 47 have been increased from five to seven years. If that were the case would it not be more appropriate to increase the maximum sentences under the Offences against the Person Act, and then, if I understood the noble Lord, Lord Meston, correctly, to rely upon the generality of Clause 68 which provides that the court should take racial motivation into account when sentencing? That is a power which we suspect they already have. Will the Minister deal with that point?

Lord Williams of Mostyn: What the Solicitor-General and I have said is consistent. We have said that we wished, as a matter of policy, to create new

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offences with a racial component in them, having considered the wider context of the maxima presently available. Having gone through the offences in that way, we came to the conclusion that the new offences as specified were appropriate. We looked at the maxima available, thought of the practical consequences, and decided that the proper remedy was to introduce Clause 68, which we have done. I see no inconsistency there.

Lord Henley: With respect, if that were the case surely one would wish to create new offences for the other offences we have discussed--criminal damage or Section 18 as in my earlier amendment.

Lord Williams of Mostyn: No, because as I have indicated, the maximum sentence for criminal damage under Section 1(1)--the basic offence--is already 10 years. Section 1(2) already has a maximum of life imprisonment. A case has not been properly made out for increasing those two maxima. That is why we have been selective and, I believe, right.

Lord Henley: This is the last time that I shall return to the point. If it is merely a matter of increasing sentences, it is not necessary to create the new offences. That is the point that I am making. It takes us back to the general purposes of all these clauses. It is no doubt a point that my noble friend Lord Carlisle might wish to explore on clause stand part. He might wish to discuss whether they are necessary or whether a simple increase in the maxima for those offences might have been possible. The courts could then have taken racial aggravation into account under Clause 68. I shall not invite the Minister to respond to that. I shall look carefully at what he has said. He will no doubt look at the rather more confused words that have come from this side. We can return to the matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 159 not moved.]

On Question, Whether Clause 23 shall stand part of the Bill?

Lord Carlisle of Bucklow: Perhaps I may return to the questions I asked at the beginning of my intervention in relation to amendments to Clause 22. This clause creates three new criminal offences with three new maximum penalties. Before extending the criminal law in that way, it is incumbent upon this place to ask itself: is it necessary to create those new criminal offences? Will they achieve what they are intended to achieve? Are they logical? I was tempted earlier to suggest some degree of illogicality in the wording of Clause 22(1)(a), and the illogicality of dealing with criminal damage and common assault in two different ways. Finally, what will their effect be in practice if the clauses come in?

I share totally the words, and adopt them, of the Minister when he described racial motivation of crime as vile and filthy. One has of course in one's professional career been involved in cases where there

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is a clear racial motivation. Any such case is always extremely disturbing. I share the view that racial motivation aggravates the seriousness, in many cases, of the offence committed. I question whether it is necessary to create these new offences to achieve that end.

Perhaps I may remind the Committee what was said on Second Reading by my noble friend Lord Henley who quoted the late Lord Chief Justice Lord Taylor. In the case of Regina v. Ribbans and Others, the Lord Chief Justice said:

    "It cannot be too strongly emphasised by this court that where there is a racial element in an offence of violence, that is a gravely aggravating feature ... it is perfectly possible for the court to deal with any offence of violence which has a proven racial element in it, in a way which makes clear that that aspect invests the offence with added gravity and therefore must be regarded as an aggravating feature".

That is a leading guideline case of the Court of Appeal. It indicates the way the courts not only should but do approach cases which involve racial motivation. One knows that in practice the sentences imposed, and rightly imposed, are greater than they would be were there no such racial motivation. Were there to be any doubt in anyone's mind as to the adequacy of the Court of Appeal guidelines, as has been pointed out, the Bill, in itself, puts that into statutory form in Clause 68 which provides, in terms:

    "If the offence was racially aggravated, the court shall treat that fact as an aggravating factor (that is to say, a factor that increases the seriousness of the offence) and shall state in open court that the offence was so aggravated".

If we are to send a clear message from this place that racial motivation is an aggravating feature of a crime of any kind, why is it necessary, in this case, to create those three particular offences?

I hope that the noble Lord, Lord Williams, will forgive me if I say that, having failed to be present on Second Reading, I turned with anticipation to his speech. I am aware of his great reputation for brevity and clarity, but I thought that introducing the whole of this clause in 18 lines might have been overdoing it a little.

We have this afternoon heard from the noble Lord and the Solicitor-General explanations as to these clauses. It seems to me that the explanations that they have given are contradictory. The noble Lord, Lord Williams, says that they have had to create these offences because the maximum penalties imposed for them at the moment have not been adequate to cover racial motivation also, whereas, if we take wounding with intent, robbery, arson or any other offence, since the maximum is life imprisonment there is no way of increasing the maximum to show racial motivation. I take it that what the noble Lord is really saying, because it seems that it is the only thing that the clause does, is that it increases the sentence for three particular offences. I wholly share the views of the noble Viscount, Lord Colville, that the sentence in Section 20 of the Offences Against the Person Act needs to be increased. As regards the Section 47 offence of assault occasioning actual bodily harm and the offence of

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common assault--I question whether the Government have made out, or attempted to make out, any case for the need to increase the maximum penalties.

However, the noble Lord, Lord Williams, says that that is why the Government have identified those offences. The noble and learned Lord, Lord Falconer, says that that is not so. In answer to an earlier debate, he said that it was not sufficient to rely on Section 68 because racial motivation not only related to the sentence but it aggravated the criminal nature of the act, or words to that effect.

Lord Falconer of Thoroton: I said that it is necessary to create a new criminal offence for two new reasons. First, it sends a clear message that it is a criminal offence. Secondly, without creating a new criminal offence one cannot increase the sentence because that is the only reason for increasing the sentence.

Lord Carlisle of Bucklow: I will return to that matter in a moment. The noble and learned Lord is saying that the element of racial motivation makes the offence of a different nature which requires to be treated as a more serious offence. If that is the argument, surely the same argument must apply to robbery and to wounding with intent, although one may not have to change the maximum sentences. If one wishes to indicate by the conviction the gravity of the offence by having a special offence why not have an offence of causing serious bodily harm with intent by racial aggravation or robbery by racial aggravation? If it is to mark the nature of the offence by a particular offence the logic is to apply to all types of offences not merely those limited by the Bill.

Perhaps I may deal with the issue of common assault. While I share everything that has been said about racial aggravation, what is the case for for the first time making common assault an indictable offence with a two year maximum sentence? Are we sure that that is necessary? I stand open to be corrected, and by the look on the face of the Solicitor-General I may have created a legal faux pas.

However, I believe that I am right in saying that the present offence of common assault is triable only summarily and carries a maximum sentence of six months. It can be tried only on indictment if it is added as a separate count with other offences which are triable on indictment. Even in that case, it carries a maximum of six months' imprisonment.

I am not talking about assault occasioning actual bodily harm, but about a common assault, which is normally either a threat or a push even if motivated by dislike of nationality. As I pointed out in an earlier speech, even if in this case accepted by motivation of race--and I accept what was said by the noble Lord, Lord Desai--are we as a Chamber sure that we should increase from six months to two years the maximum penalty for an assault which does not cause to the individual assaulted actual bodily harm and which invariably involves either a threat or a push of some nature?

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Secondly, are we wise to make the offence triable on indictment? Again, I confess my--I shall not say ignorance--lack of recent experience as to the present rules with regard to election for trial. However, I believe that I am right in saying that if we have a racially aggravated common assault with a maximum sentence of two years the individual defendant will be entitled to claim trial by jury. The Solicitor-General nods his head. The prosecution will be able to ask for trial by jury. Have the Government given any thought to the number of cases of racially aggravated common assault which are likely to come before the courts? Have they given thought to the number of cases in which defendants faced with the new charge and the possibility of two years' imprisonment may choose trial on indictment? What will be the effect on the already long delays in courts such as those presided over day after day by the noble Viscount, Lord Colville?

As I said, it is illogical to deal with criminal damage and mean common assault in two different ways. However, if one is again going to raise the sentence for the minor offence of criminal damage so as to make it triable on indictment what effect will that have on the number of cases going to trial? I question whether serious thought has been given to the necessity to increase the six months' sentence for common assault to two years, even if the common assault has racial, ethnic or nationalistic motives.

At an earlier stage, the Solicitor-General accepted that to call someone "a Scottish so and so" was a nationalistic remark and could amount to a racially aggravated assault. It is not being far-fetched to say that many common assaults which find their way to the courts deal with neighbours' disputes over boundaries and so forth. They end with one person pushing the other, one person shouting abuse at the other, or one person threatening the other with his fists. Is it to be said that if afterwards the neighbour says to the police, "I am just fed up with my Scottish so and so neighbour", or, "I am fed up with a Paki neighbour" he has turned it into a racially aggravated common assault? I submit that one can be quite sure that if a defendant in a common assault neighbourhood situation, where tempers run high and everyone believes that principle is on his side, finds himself with the opportunity to go to trial before a jury he will likely take it. Many cases which were never intended to go to the Crown Court will end up there for that reason. I question whether the proposal has been thought out from that point of view.

I repeat that, like my noble friend Lord Renton, although I believe that one needs laws which cover everyone equally, in which the courts can distinguish the aggravating features--and I accept that racial motivation is an extremely serious one--that is achieved in this Bill without Clause 23. The whole of what is achieved in Clause 23 could be achieved by increasing the maximum sentence for Section 20 Offences Against the Person Act from five to seven years. Although I doubt its necessity, the same could be done for Section 47. However, for the reasons I suggested, I believe that it would be unwise to increase the sentence for common assault. I believe that the message which needs to be

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sent is the aggravating nature of racial motivation as will be taken by the courts in sentencing rather than the creation of a whole new criminal offence.

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