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Lord Henley: My Lords, we will see about that. In rejecting my arguments, the noble and learned Lord seems to be saying that what is important is that the courts have the ability to increase the sentences for a number of specific offences. For example, the Government wish to increase the sentences for offences under the Offences Against the Person Act, but do not see the need to increase them under Section 18 or for manslaughter or murder because there is already a maximum beyond which one cannot increase them.

At Committee stage, as I understood it, the noble and learned Lord was at pains to point out that the Government were creating new offences and that it was not merely a matter of increasing the sentences. But if in the end the sole aim is to increase the sentences, could not that have been done by increasing the sentences rather than adding the new offences? By increasing the sentences, one could then have dealt with not only racial aggravation, but also any other form of aggravation it was felt necessary to include--for example, if there were growing problems of homophobic attacks on

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people and it was felt that the courts should be able to make a stand, then they would be able to do so under the Act as it was.

The Government have probably got a good case here. But it may be that they feel it necessary to single out racial aggravation over and beyond all other forms of aggravation that may come about. In that case, I can see the point of their argument. But I believe that somehow the Government have got their argument twisted. They are trying to increase the sentences. That they could have done. They have in fact created new offences, which was not necessary.

Having said that and having said that I welcome what the Government are trying to do, it will not serve any purpose for me to continue with these amendments. I shall therefore take the opportunity on this occasion to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 61 not moved.]

Lord Monson moved Amendment No. 62:

Page 19, line 17, leave out ("two years") and insert ("one year").

The noble Lord said: My Lords, in moving this amendment, perhaps I may speak also to Amendments Nos. 65 and 69. These modest amendments reintroduce one which I moved in Committee but which was rather subsumed into a discussion about the general principles of Clauses 22 to 26 inclusive. As I said then, like The Times, the Daily Telegraph, the Conservative Party certainly up until 1990 and possibly a little later, and a great many other people, I believe that all crimes of violence of a given magnitude ought to be punished with equal severity, no matter who the victim may be. However, neither the present Government, nor, as I understand it, the Liberal Democrats, nor the Conservative Party under its current leadership, take that view, so obviously there is no point in continuing that argument, in this House at any rate.

I hope it will be accepted that these are not in the slightest degree wrecking amendments. Their purpose is to ensure proper moderation and some consistency in the enhancement of any prison sentence imposed following conviction where a racial or national element has been proven.

It is true that the Bill as it stands provides for sharp increases in many fines--100 per cent. in some cases and up to 150 per cent. in others--but that is inherent in the established pattern of maximum fines on scales 3, 4, 5 and so on. There is very little that can be done about that. But I suggest that disproportionate prison sentences worry people far more than disproportionate fines do.

In this regard, the next amendment--Amendment No. 63 in the name of the noble Lord, Lord Dholakia--seems to me faultless if you accept the general principles underlying this group of clauses. It increases the maximum by 20 per cent., from 10 years to 12 years. Some of the Government's own provisions, which increase the maximum sentence by 40 per cent., from five to seven years, are somewhat harsher but still not totally off the map, so to speak. But to increase the maximum by 300 per cent., from six months to two

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years, really does seem excessive, as the noble Lord, Lord Carlisle of Bucklow, suggested at the Committee stage. I am sorry that he is not here tonight, but of course one could hardly expect that so late in the evening.

The noble Lord, Lord Carlisle, pointed out that common assault was a very trivial offence, not involving physical injury. I am not a lawyer, as your Lordships will know, but from the legal dictionaries with which your Lordships' Library is copiously supplied, one sees that shaking one's fist at somebody without laying a finger on them constitutes common assault. The noble and learned Lord, Lord Falconer, said at the Committee stage:

    "It seems to me to be a matter of judgment as to whether or not one increases it"--

the maximum sentence for common assault--

    "to nine months, 12 months, 18 months or two years".--[Official Report, 12/2/98; col. 1294.]

Indeed, it is a matter of judgment, but I suggest that most people would judge it quite unreasonable that an individual could be sentenced to two years' imprisonment merely for shaking his fist at somebody of another race or nationality without touching them. I beg to move.

Lord Williams of Mostyn: My Lords, the point of these amendments is to reduce the maxima which are proposed in the Bill. The basic offences all carry maximum sentences of six months' imprisonment and/or a fine. The proposal is that that should be two years' imprisonment or an unlimited fine as maxima. New offences are no longer created with a maximum penalty of 12 months' imprisonment and there are very few remaining examples of older offences with a 12 months' maximum.

As the noble Lord, Lord Henley, indicated, racial aggravation is sometimes extremely serious and grave. We believe that the maximum penalties should be set at the level which we propose--two years--rather than that proposed by the noble Lord, Lord Monson. With great respect, I reject the suggestion that one looks at percentage increases and then comes to the conclusion that if it is 300 per cent. it is a meaningless penalty, whereas if it is 50 per cent. or 100 per cent. it is perfectly acceptable.

We believe that as a measure of the proper, considered indignation of a community about racially aggravated offences, we have set these penalties correctly. I am bound to say that the majority of those who responded to the consultation exercise agreed and thought that we had struck the right balance between the different considerations. I hope that the noble Lord will be able to withdraw his amendment.

11.15 p.m.

Lord Monson: My Lords, I agree that these offences can be very grave, but I do not believe that the noble Lord, Lord Williams, could possibly agree that shaking a fist at somebody constitutes a grave offence. I take his point about maximum sentences on conviction on

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indictment. We shall reach Amendment No. 80, to which I have added my name, the day after tomorrow. I believe that the noble Lord has been very helpful to my noble friend Lord Bridges in connection with that amendment. It provides for a maximum sentence on conviction on indictment of six months rather than 12 months or two years. So the matter is not totally without precedent.

I say again that I am sorry that the noble Lord, Lord Carlisle of Bucklow, with his enormous experience, is not here. Those noble Lords who were here at Committee stage may remember that he suggested that all sorts of problems might arise from a two-year maximum sentence. It would be very costly because people would opt for trial by jury and juries might fail to convict. However, there is little point in trying to take this matter further tonight. I beg leave to withdraw the amendment.

Lord Thomas of Gresford: My Lords, before the noble Lord withdraws the amendment, perhaps I may inquire of the Minister whether it is intended that offences under this clause should attract a consecutive or concurrent sentence or whether the purpose is to charge on indictment common assault and an offence under this clause which would carry consecutive sentences. Can the Minister clarify the position?

Viscount Colville of Culross: My Lords, before the Minister replies the House ought to know that the noble Lord, Lord Carlisle of Bucklow, is not here because he is sitting in the Court of Appeal in Guernsey.

Lord Williams of Mostyn: My Lords, what happens when prosecutors bring charges is within their discretion. When consecutive sentences are imposed, classically, and rightly, that is within the province of the presiding judge.

Amendment, by leave, withdrawn.

Lord Dholakia moved Amendment No. 63:

After Clause 23, insert the following new clause--

Racially-aggravated offences of criminal damage

(1) A person is guilty of an offence under this section if he commits an offence under section 1(1) of the Criminal Damage Act 1971 which is racially aggravated for the purposes of this section.
(2) A person guilty of an offence falling within subsection (1) shall be liable--
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both:
(b) on conviction on indictment to imprisonment for a term not exceeding 12 years or to a fine, or to both.
(3) If, on the trial on indictment of a person charged with an offence falling within subsection (1) above, the jury find him not guilty of the offence charged, they may find him guilty of the basic offence mentioned in that subsection.")

The noble Lord said: My Lords, perhaps I may first of all share the sentiment expressed by the noble Lord. Lord Henley, and also by the Front Bench opposite, that racist behaviour of any nature ought to be condemned. I am delighted that that has been made very explicit.

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I had hoped to introduce this amendment at Committee stage, but unfortunately I was abroad. I have looked at the discussion which took place. I am delighted that I have an opportunity to have a second bite at this particular cherry. The new clause would add to the new racially-aggravated offences in the Bill a further offence, which is of racially-aggravated criminal damage.

The noble Lord, Lord Henley, was good enough to mention Stephen Lawrence. I believe that everyone accepted that it was a racist murder of this young man. One adds to that what happened at the place where he was murdered. A little plaque marking the death of Stephen Lawrence was damaged by hooligans only the other day. One must consider the reaction of the family and the hurt that it would have caused. That is just a very small example. There is example after example of the extent to which criminal damage based on racist action is perpetrated against synagogues, temples and mosques, and properties occupied by people from ethnic minority communities.

It is interesting that the Home Office consulted a large number of organisations, asking whether there should be an offence of racial criminal damage. Approximately 90 per cent. of those who responded, including the Association of Chief Police Officers, the Metropolitan Police and the Crown Prosecution Service, said that there should be such an offence. In other words, more or less everyone involved in the criminal justice system agreed that there should be such an offence. Therefore, I was surprised that the Government initially declined, or omitted, to include such an offence in the Bill.

I have tried to understand why that should be so. If the intention is to identify and to encompass within criminal statutes the types of racist offences which most frequently and most devastatingly affect the lives of ethnic minorities in Britain, there is a strong case for the inclusion of an offence of racially aggravated criminal damage.

Of the racial incidents recorded by the police during 1996, one of the most frequent matters reported to the police was damage to property. Further, where the criminal damage is racist graffiti on more public property, such offences are counted or reported only very seldom.

As the Bill is currently drafted, an act of criminal damage could constitute one of the two incidents which could give rise to a prosecution of racially aggravated harassment under Clause 25. To members of ethnic minority communities it will be ludicrous that racial harassment in the form of damage to their home, their car or other possessions will constitute a racially aggravated offence only if it occurs twice or if it is preceded or followed by a separate incident of harassment.

Turning to Clause 24, which creates new racially aggravated public order offences, it would be possible to include certain acts of damage to property as all or part of the behaviour at issue, but in order for one of the offences under Sections 4, 4A or 5 of the Public Order Act 1986 to be committed, it will be necessary, in addition, to prove the intention of the perpetrator to

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cause harassment, alarm or distress. It would be inappropriate and artificial to try to bring criminal damage committed on racial grounds within this new legislation by such means.

The Government should not be constrained. There is a clear need, supported by the police and the CPS, to establish a specific offence of racial criminal damage. I suspect that the Government may be influenced because the new clause will not always neatly fit their formulation of "racially aggravated" in Clause 22 since the victim of some types of criminal damage with a racial element may not be a person within an identifiable racial group; an example would be if racist graffiti were daubed on the walls of the town hall or on the staircase of a large council housing estate. In such cases the racist nature of the offence would be obvious, and it is likely that the message itself should be sufficient to satisfy the second limb of the definition of racially aggravated; namely, that

    "the offence is hostility towards members of a racial group based on their membership of that group"

I plead that another reason could be that criminal damage under Section 1(1) of the Criminal Damage Act 1971 already carries a maximum sentence of 10 years, unless it is arson, which carries life. To be consistent with the structure of the Bill, the amendment proposes that the maximum tariff for racially aggravated criminal damage should be two years longer--that is, 12 years. I believe that the amendment, which is supported by many organisations, tests the Government's intention. Ultimately, the test of a civilised society is whether it confronts such racist behaviour as we would confront the antisocial behaviour we discussed earlier. I beg to move.

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