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5.30 p.m.

Lord Meston: With respect, that is not quite the point. As I understand it, common assault is no longer available as an alternative in normal circumstances when one has a Section 20 count in the indictment. What I am particularly interested in and want to know about--indeed, it was the point of my question--is why there is no actual provision in Clause 23 of the Bill which provides expressly for alternative verdicts, whereas there is such a provision in both Clauses 24 and 25. I simply do not understand. I should add that I am not confining my question to common assault, which I believe to be a special case.

Lord Ackner: I do not think the following point has yet been made, but that may be because it is a bad one. Nevertheless, it occurs to me that there is a big difference between making a new offence and relying upon a feature of the offence as merely aggravation. If you make it a new offence, you are putting into that offence a new ingredient; namely, the racial side of the offence. By putting that ingredient in, you must put before the jury all the facts and circumstances that justify the existence of the ingredient upon which you rely.

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If it is merely aggravation, that may well come out as a small side issue. It may perhaps be developed after a conviction but, at that stage, there could be a contest as to the extent of the racial motivation which the judge may then have to deal with himself by hearing additional evidence, the jury having finished by then its task. Therefore, by creating the new offence, you emphasise the racial aspect of it by requiring that particular ingredient to be properly established.

By relying upon the racial motivation purely as an aggravating aspect, it becomes merely part of the background and not part of the offence itself. Moreover, as part of the background, it may hardly emerge at all during the trial of the substantive offence. When it does emerge relative to sentencing, there may be the complication of an issue as to the seriousness arising therefrom. By making it a separate offence, it would be the members of the jury who would make all the relevant findings; by keeping it merely as aggravation, you are mixing up the functions of the judge and the jury. I assume that the Government take the view that, in the particular circumstances, that is not the desirable way of dealing with the matter.

Lord Desai: As I am not a lawyer, I hesitate to make my point. However, I feel that there is a problem of logic here, especially in the light of what the noble and learned Lord, Lord Ackner, said and the reply which my noble and learned friend gave to the noble Lord, Lord Carlisle. If you want to take care of racial violence or racism and you want to create a new class of offences, it seems to me that you should create such offences for the purpose of giving notice to society that you treat such matters most seriously.

To create some offences in order to increase punishment and not to create others because punishment already exists seems to me to be a confusion of motives. Even if it was, so to speak, a matter of duplication, and even if it was true that under certain sections you already have life imprisonment and you cannot go further, I still think that creating such offences of racial motivation would send out a very good signal that such matters are taken more seriously. Although the maximum punishment may be the same, society would take it much more seriously. I would be persuaded by that argument. I am sure that there are perfectly good reasons why the Government have decided not to do so. I certainly would feel happier if, say, on demonstrative grounds rather than instrumental grounds a point was made across the board that, wherever racial motivation was involved, society would take such matters more seriously than would otherwise be the case.

Lord Howie of Troon: Again, I agree with the noble Lord, Lord Carlisle. Although I entirely support the Government's desire to oppose racialism and to deal with it, I believe that they are weakening their case by confusing racialism with nationalism. To be motivated against a coloured man or a coloured woman because of his or her skin or racial origin is quite different from being irritated by a Scotsman or even an Englishman--although I find that difficult to believe. These two things are different in degree.

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My noble and learned friend on the Front Bench has already made a distinction as regards the case mentioned by the noble Lord, Lord Monson, when he distinguished between a mere mugging and a racial attack. Of course there is a distinction of degree there in the same way that there is a distinction between a fracas concerning a quite insignificant national distinction and true racial antagonism. In so far as the Bill appears to make these the same thing and make them equal in opprobrium, the Government really weaken their attack on what I would call true racism as against faux racism. The Government should think about this matter rather more carefully and pay careful attention to the comments of the noble Lord, Lord Carlisle.

Lord McNally: I think there is enough legal and learned opinion to make someone like me speak with trepidation. However, the remarks of the noble Lord, Lord Monson, have provoked me to clarify one matter, as did the remarks of the noble and learned Lord the Solicitor-General. There are politics involved in this matter as well as law. It is a matter of political judgment whether we need laws which--as the noble Lord, Lord Desai, said--make a statement on behalf of society as a whole about how we view certain kinds of behaviour.

Throughout my political life I have heard people tell me that they are colour-blind or blindfold, but somehow when they are colour-blind and when they are blindfold they seem to make the most racial judgments. I believe that the Government are right to try to approach this matter realising that there are people who set out not to mug or to damage property but to cause damage to our fellow citizens simply because of the colour of their skin or their racial origin. I believe that the Government are right to try to show society's disapproval of that. I am sure they will listen to some of the technical arguments made by learned Lords, but I assure the noble and learned Lord the Solicitor-General and his colleagues that they will have the support of these Benches in what they are trying to do.

Lord Henley: If, as the noble Lord, Lord McNally, says, politics are to come into it, does he not agree that that is quite adequately dealt with by Clause 68 which tells the courts that they can take these matters into account? That is all that we need bother about in terms of the political aspect. What we still want to know is whether these clauses will achieve what they seek to do. I am grateful to the noble Lord, Lord Desai, for pointing out as a non-lawyer that he sees the inconsistencies in the Government's approach. On the one hand they talk about creating new offences but then they refuse to add other offences on the basis that all they want to do is to increase the sentence available for a limited number of cases. They do not want to increase the sentence available for other offences even though racial aggravation may be a motive.

5.45 p.m.

Lord Falconer of Thoroton: Just as the debate appears to be about to subside it is revived again. As regards the point of the noble Lord, Lord Henley, it is patent that Section 68 would not be sufficient because

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it is acknowledged on all sides of the Committee that in relation to certain crimes the sentences are not high enough. They must therefore be increased.

Lord Henley: I am grateful to the noble and learned Lord for giving way. As I made quite clear earlier, it would be perfectly straightforward for the Government to increase generally, for Section 20 and Section 47, the sentences available to the courts. The courts could then take racial aggravation into account under Clause 68, should they so wish, and they would be able to take into account all other such matters such as whether the offences were motivated by homophobic behaviour and so on. Earlier the noble and learned Lord said that the Government wanted particularly to deal with racial aggravation but there were many other forms of discrimination they would like to address in due course although now was not the time to do it. By taking my simpler approach they could cover the whole lot in one fell swoop and leave the rest to Clause 68, which would allow for what the noble Lord, Lord McNally, describes as the political motive; that is, sending out the right message from Parliament as a whole.

Lord Falconer of Thoroton: With respect to the noble Lord, I had this debate 15 minutes ago with the noble Lord, Lord Carlisle of Bucklow. The point is that if you simply increase the sentences for all of the crimes that we are concerned with on an across-the-board basis, you would drag up the sentences for everyone convicted of those crimes, when we have explicitly said that our intention is to provide a higher limit in cases of racial motivation.

Lord Henley: But that again would apply only to two or three offences and not to the other offences.

Lord Falconer of Thoroton: That is because we believe, as I have explained already--I apologise for going over this again--that we already have a high enough sentence to encompass racial motivation in the existing sentences. I give the noble Lord, Lord Henley, an example. There are certain offences for which the penalty is life. We believe that that is a high enough maximum to deal with racial motivation. We believe that one neither could nor should increase the sentence. That being the case we think it pointless and silly to introduce a new element in the crime as a means of increasing the sentence for that particular crime.

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