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Lord Monson: In introducing Amendment No. 157, I made mention of powerful leading articles in two distinguished broadsheets and promised to return to them at a later stage. As they are extremely germane to this clause, preceding clauses and some of the subsequent clauses, I should be grateful for the Committee's permission to quote briefly from each of them.

The first is an article from the Daily Telegraph of 25th July, 1997, headed "Don't colour justice". It starts:

Several lines later it sets out what it believes to be the moral objections to Mr. Straw's proposals because, of course, they were only proposals at that stage. The article states:

    "The creation of a special category of racial violence will inevitably signal to victims of 'unbiased' crime that their suffering is somehow less horrific and therefore less worthy of punishment than that of victims of 'hate crimes'. All assaults are, in a sense, hate crimes. Justice is supposed to be blind. Introducing racial considerations into court would make a mockery of the concept of equality before the law".

The article in The Times headed "Blind Justice" appeared on 3rd October, 1997. It made reference to the O.J. Simpson case which showed, it said, how dangerous and distorting it can be when questions of racial motivation dominate a trial. After several paragraphs, it concluded by saying:

    "The figure of justice is blindfold for a reason. Using the criminal justice system to make symbolic genuflections to political causes, however noble, only undermines the effective operation of the rule of law and fetters proper judicial discretion. Punishment should not depend on creating a statutory hierarchy of wickedness which elevates racial prejudice over any of the other ugly impulses towards criminality with which society must deal".

I guess that most, if not all, Members of the Committee on the Government Benches would disagree strongly with both those articles, as may Members of the Committee on other Benches and if so, no doubt they will wish to say so. The Conservative Party at the time did not seem to disagree because there were certainly no letters to those newspapers from senior Conservative figures arguing strongly against what they said. Perhaps they have changed their minds; I do not know. It might be interesting to hear their response.

Lord Meston: I wish to raise two matters. One is technical and one is rather more important. Why is it that Clause 23 contains no provision equivalent to that of Clause 24(6) and Clause 25(5) which allows for alternative verdicts? In those cases, where the aggravated offence is not established to the satisfaction of the jury, it can bring in a conviction of the basic offence.

Of course, as we have heard, Section 6(3) of the Criminal Law Act 1967 already allows for alternative verdicts. But if that is so I wonder why it was necessary

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to make express provision in Clauses 24 and 25 but not in Clause 23. I cannot help feeling that there is a simple reason but I am afraid that it has escaped me.

More important, there is a concern which I know several people have about the willingness of prosecutors to accept a plea of guilty to the basic offence when the racially aggravated offence is charged, that being the offence under Clauses 23, 24 or 25 as it presently stands. If that happens, it may limit the sentencer and prevent the sentencing judge or magistrate from saying in open court, as he would be required to do by Clause 68 and by existing case law guidance, that the offence was aggravated by racial considerations if the sentencer regards that to be the case, despite the acceptance of the plea to the basic offence only.

Lord Falconer of Thoroton: I deal first with the points made by the noble Lord, Lord Monson. He quoted from the leading articles of two important newspapers. As is obvious, the Government and noble Lords on this side of the Committee entirely disagree with that approach. I believe--and the Government believe--that an offence with a racial motivation is worse than one without a racial motivation. We are not alone in that view. That is a view which the judiciary has taken in sentencing for a very considerable time. There was a quotation from Lord Taylor of Gosforth, a previous Lord Chief Justice, to that effect. But it goes back a long way. Its start is perceived to be Mr. Justice Salmon, as he then was, in relation to the Notting Hill race riots in 1958. I believe that approach was right and that we are right to reinforce it in this Bill. Therefore, despite the eloquence of the two leading articles, I disagree with them. It is obvious from the terms of the Bill that the Government disagree with them also and I believe that they are right in that respect.

I turn to the remarks made by the noble Lord, Lord Carlisle of Bucklow. In effect, he makes three points. First, he asks why, if the only purpose of the Clause 23 offences is to provide a broader option in sentencing, we do not merely increase the sentence rather than create a new offence. Secondly, he asks whether the increase from six months for two years for common assault is too long. Thirdly, he asks whether we are taking a sledgehammer to crack a nut. The noble Lord suggests that in situations in which he is calling the noble Lord, Lord Williams of Mostyn, a Welsh so-and-so, we do not want the criminal law, much as many of us would, to intervene.

I deal with each of those three arguments. As regards why we do not merely increase the sentence, as the noble Lord, Lord Carlisle of Bucklow, will know, if we simply increase the sentence across the board and say, for example, that the sentence for a Section 47 offence for all purposes is 10 years rather than seven years-- I may have the figures wrong--that has an effect across the board on sentencing. That becomes the maximum. The courts then determine where they put all offences, whether or not racially motivated, on that scale. That would be moving all the goalposts for every single offence to the top when the purpose of these clauses is to increase them because of racial motivation. In my view and in the view of the Government, the logical and

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honest way to do that is to provide that where the offence is racially aggravated, and that becomes an element of the offence, then and only then is the increased sentence available.

That is logical, fair and right. I should say also, perhaps over-defensively, that that is what I have been saying and what my noble friend Lord Williams of Mostyn has been saying in defence of the Bill. That is the reason.

Lord Carlisle of Bucklow: If that is so, why does that principle not carry through to Section 18 and other offences? It is surely not being assumed that in all racially motivated cases the maximum sentence is going to be passed but that it should be made clear that it is of itself a more serious offence which could bring a higher punishment in the normal scheme of things. If that is so, surely, when dealing with grievous bodily harm with intent, there is an argument for saying that that should have an additional aggravated offence which, although the maximum may still be the same, means in practice, within that maximum, that the accused, rather than receiving a sentence of five years, is likely to receive a sentence of seven years.

Lord Falconer of Thoroton: With respect, no. If the conclusion reached by the Government, exercising their judgment--and, of course that judgment can be criticised--is that the existing maximum sentence for an existing crime is sufficiently high even to encompass a racially aggravated crime, then there is no basis either for increasing that maximum or for creating a new crime. On that basis, it is believed that the judge is able to put the racially aggravated crime within a scale where the maximum does not need to be increased.

Therefore, logically we would not need to increase the sentence. The obvious example is life imprisonment. Some of these crimes carry a life sentence, so we would not want to create a new criminal offence because the judge has plainly got the capacity within the existing sentencing range to accommodate racial aggravation. What underlies the creation of a new offence is that, in circumstances of racial aggravation, judges do not have the capacity to do so. We believe that lifting the whole sentencing band upwards would be wrong simply because we are trying to protect those who are attacked by reason of racial motives. The only way that you can do it sensibly is by creating a new criminal offence. Moreover, for the reasons outlined by the right reverend Prelate, I believe that that also gives the right message. That is why we have done it in that way.

Secondly, there is the question of whether the sentence is too long--a point made by the noble Lord, Lord Carlisle--when one increases the sentence for common assault from six months to two years. That is a matter of judgment. I fully understand what the noble Lord said regarding common assault in that it may involve quite moderate consequences--for example, there is no actual bodily harm involved. Nevertheless, we would regard a common assault which was racially aggravated as being potentially serious. We therefore think it appropriate that we give the sentencers the capacity to go up as high as two years. They do not have

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to use it in every case, but the range is available. It seems to me to be a matter of judgment as to whether or not one increases it to nine months, 12 months, 18 months or two years. Indeed, two years is the point to which we think it should be increased.

I turn now to the noble Lord's final point; namely, whether one is opening the door to a very serious charge being brought for something which is comparatively trivial. In our view, when considering whether or not to prosecute under this clause, which has, as one of its elements, Clause 22(1)(a)--which is racial abuse at or about the time of the offence--the CPS must carry out two tests. The first is the evidential burden which has to be satisfied, although there is more than a 50 per cent. chance that it would be in court; and, secondly, there is the question of whether it is in the public interest to prosecute. In the kind of examples that Members of the Committee have put forward, it would plainly not be in the public interest to prosecute. Indeed, that would apply if, for example, the noble Lord, Lord Carlisle, called my noble friend Lord Williams of Mostyn a Welsh so-and-so. However, I believe that that would be obvious to the CPS. In reality, I do not believe that to be a real concern. Therefore, for the reasons given, I would, with respect, reject the arguments put forward by the noble Lord, Lord Carlisle, opposing the Question that Clause 23 stand part of the Bill.

I move on to the substantive point raised by the noble Lord, Lord Meston, as to why one could not return a verdict of common assault in such circumstances. I see that the noble Lord is shaking his head, so perhaps I misunderstood him. Nevertheless, in answer to what I believe was his point, I should say that one can return a lesser verdict in paragraphs (a) and (b) of the clause but one cannot do so as regards paragraph (c). I am told that, for various technical reasons, one would always have to include common assault in the indictment.

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