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Lord Falconer of Thoroton: My Lords, I am extremely grateful to the noble Viscount, Lord Colville, for setting out the background and the basis of his amendment with such clarity so that everyone understands it. I recall that he gave a detailed explanation of his concerns about charging in Committee with the same degree of clarity.

I understand the concerns which the noble Viscount has expressed but the Government do not believe that it is necessary or appropriate to create the new offences he suggests with no increase in sentence simply to offer a jury alternative verdicts, which I believe is the basis on which the noble Viscount puts the matter.

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In practical terms, the suggested amendments would require the prosecution to meet the additional hurdle of proving racial aggravation without providing any additional sentence. Where there is evidence of racial aggravation, Clause 69 already enables the court to impose a higher sentence. I pointed to the difficulty of dealing with public order offences which are not directed against the person in my response to the amendment of the noble Lord, Lord Henley.

The problem which the noble Viscount identifies, as I understand it, is that there is a Section 18 offence which does not have the racial aggravation feature in it. The circumstances lead to the conclusion that what may be appropriate is a conviction on a Section 20 racially aggravated offence. But that is not a verdict open to the jury or to which the defendant can plead on the basis of an indictment that only has Section 18 on it because racial aggravation is not an element in Section 18 unless the amendment is accepted.

The first answer, as a matter of practicality, assuming that the circumstances justify it, would be for the prosecution at the outset of the case to include upon the indictment not just Section 18 but also racially aggravated Section 20. If that course was taken, the range of verdicts which the noble Viscount would wish to be available would indeed be available. Whether that course is appropriate will obviously depend upon the particular case. We believe that that course provides a sufficient degree of flexibility for prosecutors to permit the whole range of outcomes to be covered.

The noble Viscount is right to say that cases which start off looking rather good, particularly before you get anywhere near court, often tend to fade and subside the closer you get to court and when you get into court. But prosecutors are aware of that and are able to use their judgment in how they draw up the indictment. I do not believe that an indictment with a Section 18 and a racially aggravated Section 20 would be an indictment in respect of which, assuming it went to trial, there would be real difficulties about the summing up.

I entirely understand the points made by the noble Viscount in relation to the situation where the prosecutor seeks to add a racially aggravated Section 20 offence at a later stage in the trial. Of course, there will be cases where it is not appropriate to allow that to be added simply because it would be contrary to the interests of justice for a defendant to have to face a new charge, with a new element, and a much higher sentence at such a late stage. Again, it is a matter of judgment for the prosecutor. He must decide at the beginning the appropriate way in which to deal with the case.

There was a case where a Section 18, but no racially aggravated Section 20, was on the indictment. The defendant wished to plead to a lesser offence than Section 18, while the prosecution wanted him to plead to a racially aggravated Section 20. Again, there may be circumstances where that may be ruled out because it is too late or because the defendant will not agree to anything except a non-racially aggravated Section 20. However, when one is in that situation, it would

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normally be possible for the indictment to be amended, even at a late stage, if what is wanted is to give effect to the plea that the defendant wishes to make.

I appreciate that not every situation can be readily catered for, but we believe that the way in which we have dealt with it is better than creating a new offence simply for the purpose of allowing alternative verdicts. We do not regard that as an appropriate basis to create a new offence. We believe that we must leave it to prosecutors and that, using good sense, most circumstances will be covered. Although we are genuinely grateful for the problem being aired, we do not feel able to accept the amendment.

11.45 p.m.

Viscount Colville of Culross: My Lord, I am not really surprised by that response. I am most grateful to the noble and learned Lord for having applied his mind so thoroughly to the matter. Indeed, he is quite right to say that the prosecution will really have to choose at an early stage whether or not to add a second count, whether it be a racially aggravated Section 20 for a violence case or a racially aggravated Section 4 for an affray or violent disorder case. I believe that, quite frequently, the prosecution will not wish to do so because, merely by doing so, they will indicate to the defence that they are prepared to accept the lesser offence. In their wisdom they may not think that it would be just or proper in the public interest to charge the person with the lesser offence when in fact the conduct which he is alleged to have committed warrants a much higher degree of indictment.

Unless we get over the problem, I am afraid that the use that will be made of the Bill's provisions will not be as extensive or appropriate as would otherwise be the case. I know that the Government do not want that; nor, indeed, do I. When they continue to consider the matter with the CPS, I just hope that they can work out the practicalities involved. This is something which will come through when the Bill reaches the statute book. I do not want to lose the opportunity of being able to use these greater powers of sentencing in appropriate cases. Nevertheless, I must leave the matter there and trust that the Government will continue to think about it.

I do not expect any further amendments to be brought forward, but I do expect the Government to consult with the CPS on the matter. I believe that the CPS will express very strong views as regards the correct way to handle such matters. If there are strong views then, for goodness sake, let us ensure that they are used consistently across the whole length and breadth of the country, because that is the other thing that is liable to go wrong. It is extremely late. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 [Racially-aggravated harassment etc.]:

[Amendment No. 69 not moved.]

The Chairman of Committees (Lord Boston of Faversham): My Lords, in calling Amendment No. 70, I must point out that if it is agreed to, I cannot call Amendment No. 71.

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Clause 26 [Racially aggravated offences]:

The Earl of Mar and Kellie moved Amendment No. 70:

Page 21, line 9, leave out ("a racially") and insert ("an").

The noble Earl said: My Lords, the hour is late and I shall be brief. I have six amendments in this group which seek to secure one of the two major omissions from Clause 26. The omitted categories are, of course, religion and social class. I shall say no more about social class today and concentrate on the inclusion of religious bigotry in the clauses on harassment and aggravation.

I see religion as divisible into two parts. First, people in Scotland discover that they have been born into a particular religious background. That is a cultural inheritance that they can do nothing about, but about which other people will make all kinds of assumptions. The second element is the doctrinal position that some citizens may adopt. These are voluntary personal decisions and, it could be argued, as such may be worthy of criticism. In other words, I am happy to be criticised for being an Elder of the Kirk, but far from it for being a lowland Protestant. These amendments call for different subsections for the Scottish equivalent in this legislation. I see no difficulty here as I am trying to capture the Scottish dimension and incorporate it into the Bill. I beg to move.

The Chairman of Committees: My Lords, as Amendments Nos. 72 to 75 inclusive are also being spoken to, I must point out to your Lordships that if Amendment No. 72 is agreed to I cannot call Amendment No. 73, and if Amendment No. 74 is agreed to, I cannot call Amendment No. 75.

Lord Mackay of Drumadoon: My Lords, the amendment moved by the noble Earl is one of a series of amendments to Clause 26. Later in the Report stage we shall discuss amendments to Clause 80 which concern the same issue of offences whose motivation is some form of religious bigotry or aggravation, or however one wishes to put it.

I suspect that the noble and learned Lord the Lord Advocate will reply to these amendments. He will be aware that they have been suggested to Members of your Lordships' House by the Law Society of Scotland which has clearly reflected on what was said in Committee, as indeed have all of us who took part in the debates at that time. Unfortunately, those of us who have practised in the criminal law whether as lawyers or, as in the case of the noble Earl, as a social worker must be aware that religious bigotry is just as prevalent as racial bigotry as an underlying reason for criminal conduct of a variety of pernicious natures.

There is a concern that as regards Clauses 26 and 80 the wrong message may be perceived; namely, that not only the Government but society think that such offences--which are to be deplored--are in some way more unsettling for the peace of society than those which are motivated by some form of religious prejudice. As I am sure the noble and learned Lord the Lord Advocate will agree, when one is involved--as he and I have been--in criminal cases in Scotland, one

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finds that religious bigotry is often intertwined with racial bigotry. One does not, I think, need to give examples to vouch for that proposition.

This is not the time or the hour to debate this matter at length. I hope that between now and Third Reading the Government will consider whether it might be possible to expand the provisions of Clauses 26 and 80 to take account of religious motivation in the same way that they seek to address racial aggravation as a motivation. It does not seem to me impossible for that objective to be achieved. When the issue has been raised previously, Ministers have said, "We fully accept that you are right to be concerned about religious prejudice. We fully accept your right to be concerned about crime which is motivated for some other reason such as sexual orientation. But these chapters of this Bill are concerned with racially aggravated offences". I hope that a slightly more expansive view may be taken. I am satisfied that one could be taken.

While these amendments clearly will not be pressed to a Division, I hope that raising the issue will encourage Ministers to discuss with their colleagues whether two messages may be sent: that society will not tolerate crime which is motivated either by racial reasons or religious bigotry. I support the noble Earl.

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