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Lord Henley: No.

10.42 p.m.

On Question, Whether the said amendment (No. 121) shall be agreed to?

Their Lordships divided: Contents, 9; Not-Contents, 21.

Division No. 3


Addington, L.
Anelay of St. Johns, B. [Teller.]
Dholakia, L.
Elton, L.
Ely, Bp.
Goodhart, L.
Mackay of Drumadoon, L. [Teller.]
Mar and Kellie, E.
Russell, E.


Alton of Liverpool, L.
Ashbourne, L.
Carter, L. [Teller.]
Clinton-Davis, L.
Darcy de Knayth, B.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Hardie, L.
Hilton of Eggardon, B.
Hoyle, L.
Lawrence, L.
McIntosh of Haringey, L. [Teller.]
Mallalieu, B.
Masham of Ilton, B.
Monson, L.
Ponsonby of Shulbrede, L.
Puttnam, L.
Simon, V.
Whitty, L.
Williams of Mostyn, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

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10.50 p.m.

[Amendment No. 122 not moved.]

Clause 62 [Duties and powers of court]:

[Amendment No. 123 not moved.]

Clause 63 [The period of detention and training]:

[Amendments Nos. 124 and 125 not moved.]

[Amendment No. 126 not moved.]

Clause 68 [The Sentencing Advisory Panel]:

Lord Williams of Mostyn moved Amendment No. 127:

Page 56, line 6, leave out from beginning to ("as") in line 7 and insert ("remuneration").

The noble Lord said: My Lords, this is a minor amendment making plain that the panel may be paid a fee. That is much simpler and in line with other such bodies. The previous formulation would have been unnecessarily complicated and might even have required a Division at this time of night. I beg to move.

On Question, amendment agreed to.

19 Mar 1998 : Column 921

Baroness Flather moved Amendment No. 128:

After Clause 69, insert the following new clause--

Racial aggravation: duty of prosecution

(" .--(1) In relation to a prosecution for any offence it shall be the duty of the prosecution to bring to the attention of the court any information or material which contains evidence that the offence was racially aggravated.
(2) Section 22 above applies for the purposes of this section as it applies for the purposes of sections 23 to 25 and 69 above.").

The noble Baroness said: My Lords, on Second Reading, I mentioned that in 1994 I had placed before your Lordships' House two amendments to a Criminal Justice Bill. One provided aggravated penalties for crimes where racial motivation was displayed; and secondly, a corollary to that, that there should be a duty on the prosecution to inform the court of any racial element in the crime.

I am grateful to the Government for putting in this Bill a comprehensive package of measures to deal with racially aggravated crime. It covers almost every eventuality. I have looked very carefully at Clause 69 and again, that places before us the ways to deal with the other clauses and puts a duty on the prosecution.

However, there is no duty on the prosecution to place before the court all the racial elements in any crime that is being dealt with. A chain breaks at its weakest link. A considerable amount of plea bargaining takes place. I shall not mention the names of noble and learned Lords who have accepted that fact and agreed that it does take place. But I am sure that noble and learned Lords on the Benches opposite know perfectly well that plea bargaining takes place. One of the elements of plea bargaining is to present a slightly more anodyne picture of the crime than may have been the case had the defendant not agreed to plead guilty to a lesser charge.

It is my greatest fear that all this superstructure, which has been built up and which gives expectations to ethnic minorities in this country, will not deliver if, somehow or the other, the actual elements of racially motivated behaviour are fudged before the courts. Therefore, I have tabled the amendment to place on the face of the Bill quite clearly a duty on the prosecution, whether or not there is plea bargaining or a plea to a lesser charge, to ensure that all racial elements in a crime are clearly placed before the courts before sentencing takes place. I beg to move.

Lord Dholakia: My Lords, I rise to express my support for the noble Baroness. She is absolutely right when she says that, in the whole process of looking at racially motivated offences, this is indeed a very weak spot. All we are seeking to do is to place a duty on the prosecution to ensure that offences which are racially aggravated are properly presented as such to the courts. That is only right because the courts, judges and magistrates now have what are commonly called, "sentencing guidelines", which take into account racially aggravated offences. However, they can only take such elements into account if they are brought to their attention.

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We should perhaps look at the record of the Crown Prosecution Service. I was a member of the Home Office working party some years ago which went across the country to find out precisely what was happening. Repeated complaints were made stating that, whereas the police were able to identify racial aggravation factors, the CPS failed to bring those factors into the open courts. As a result, minorities who read newspapers often find that cases which they know contain elements of racial motivation are not fully examined in the courts. In turn, the magistrates and the judges are powerless to deal with the situation.

About six months ago the CPS improved its record, after a considerable amount of training. But, even now, racial motivation is not brought out in at least 20 per cent. of cases. I find it difficult to accept that situation. Unless we place such a duty on the prosecution--and that is all that the noble Baroness is asking--we shall not get to the root of the problem. I believe that it is right and proper that the CPS will, in turn, have to question the police if they fail to point out the racially aggravated factors when the files are submitted.

Once we place this particular duty upon the prosecution, I believe that the whole process will work as we expect it to work. To their credit, the Government have highlighted racially aggravated offences; indeed, they accepted my amendment on racially aggravated damages on Tuesday. I believe that this little amendment will complete the jigsaw and that that, in turn, will build the confidence of the minorities whose expectations are that people who commit such offences ought to be dealt with severely by the courts.

11 p.m.

Lord Falconer of Thoroton: My Lords, I am grateful to the noble Baroness for tabling the amendment and also to the noble Lord, Lord Dholakia, for his intervention. I know that the noble Baroness has considerable knowledge in this area. I recall that the question of a duty on the prosecution to bring to the attention of the court all evidence relating to the racial element of the offence was one which the noble Baroness raised on Second Reading. I was not present at the time but I am also informed that she raised the same point during the passage of the Criminal Justice and Public Order Act in 1994.

The noble Baroness is absolutely right to say, as she did in 1994, that there should be a stipulation placed on the courts to regard evidence of racial motivation and hostility as an aggravating factor meriting an increased sentence. That is exactly what Clause 69 is intended to do. The noble Baroness has also said in the past that Parliament should send a strong message that racially aggravated crime is unacceptable. I hope that she would agree that the new offences do just that.

With regard to the specific points raised by this amendment, the Government recognise the importance of these matters being brought to the court's attention. Both the police and the CPS record racial incidents.

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The definition of "racial incident" was drawn up by the Association of Chief Police Officers to include any incident where it appears to a police officer that a complaint involves a racial element, or where there is an allegation of racial motivation made by any person. It is therefore a wide-ranging definition. Once the papers have been passed by the police to the CPS, the CPS will also look at the evidence to consider whether the facts amount to a racial incident and flag them up as such if the police have not.

The noble Lord, Lord Dholakia, said that some years ago the Crown Prosecution Service may not have been as effective as it should have been in relation to identifying racial incidents. The noble Lord will know that quite recently the Crown Prosecution Service issued a report specifying its racial monitoring and providing figures of the number of cases with a racial element. The figures in that report identified more cases with a racial element than those identified by the police. I am sure that one could not say that the CPS monitoring is perfect but it is much improved. I think it is right to say that it is now sensitised to racial elements in crime.

The Government do not believe that the amendment is either necessary or appropriate to create the statutory duty that both speakers have asked for. First, as the noble Baroness will know, there is already a duty on the prosecution to inform the court of all relevant circumstances relating to the offence, including aggravating features. That duty applies as much to racial aggravation as to any other feature.

Secondly, the Government believe that the creation of the new offences will strengthen existing safeguards and ensure that a higher priority is given to the identification of the racial element of the crime both in relation to the gathering and the presentation of the evidence. The prosecution will now have to consider the racial element of the crime not only as an aggravating factor but also to decide whether the evidence suggests that there is a reasonable possibility of securing a conviction under the new racially aggravated offences.

We believe that the racial element will now have a higher priority in the minds of the police and prosecutors because it forms part of the offence itself. The noble Baroness referred specifically to the practice of what she described as plea bargaining. Whatever one describes it as, it is perfectly plain that on many occasions prosecution and defence will discuss the terms on which pleas to lesser offences will be accepted. In relation to that sort of process which is perfectly proper, the prosecution--prosecuting counsel and the CPS together--have a discretion to decide what is appropriate in the public interest. I should have thought it would be wrong to single out racial aggravation as being the one area where there was not an element of discretion in that regard. In some cases it will be perfectly appropriate not to proceed with a particular charge.

We are currently considering how best to evaluate these provisions after they are implemented. This is an area which the post-introduction study could usefully

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analyse; namely, the extent to which the prosecution brought to the attention of the court racial elements. I hope that this will reassure the noble Baroness that we have come a considerable way since the debate in which she participated so effectively in 1994, and that she will be sufficiently reassured about the Government's commitment in this Bill and elsewhere to tackling racial crime that she will feel able to withdraw her amendment.

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