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Baroness Flather: My Lords, I received an interesting answer from the Minister. I hope that all noble Lords listened as carefully as I did. The noble and learned Lord told us that it is perfectly proper to plea bargain, to get a defendant to plead to a lesser charge. It is simpler, more straightforward, more convenient; the defendant receives a sentence, and there is no trial.

There are two ways of looking at the issue. One response is that plea bargaining occurs, and it is a good thing that more defendants do not get away. Someone from the CPS to whom I spoke not so long ago asked me candidly whether I would prefer someone to get away with a crime than to be tried in court for the charge best fitted to the circumstances. I said that I would rather someone got away with it having been tried by the courts on the charge best fitted rather than to be sentenced on a charge which did not fit the offence.

I fear greatly--more than I did 10 minutes ago--that many more plea bargainings will take place as the prosecution and defence agree between themselves what should and should not be placed before the court. Far fewer cases of racially aggravated crimes will come before the courts than should if the Minister's statement is to be accepted. Clearly, it would be in the best interest of a defendant to plead guilty to a lesser charge on the basis that the racial aggravation part of the offence is not placed before the court, as the Minister said that it is perfectly proper for the prosecution and defence to agree what should be placed before the court if there is a guilty plea. I am certain that we shall not make the progress that the Bill purports to make unless the whole iceberg, and not just the tip of it, is exposed to public knowledge.

I shall not divide the House; it is not the time to do so. I shall read carefully in Hansard what the Minister said. But we live to fight another day. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 128A not moved.]

Clause 71 [Extended sentences for sex and violent offenders]:

The Lord Advocate (Lord Hardie) moved Amendment No. 129:

Page 58, line 27, at end insert--
("( ) indecent assault;").

The noble and learned Lord said: My Lords, in moving this amendment, I shall also speak to Amendment No. 130. Before addressing the amendments I should like to bring to your Lordships'

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attention that we propose to bring forward at Third Reading some technical amendments to the operation of Clauses 71 and 72.

Amendments Nos. 129 and 130 are technical amendments. The purpose of Amendment No. 129 is to include indecent assault in the definition of a sexual offence for the purpose of imposing an extended sentence. The reason for the amendment is to achieve consistency between the sexual offences set out in Schedule 1(2) to the Sex Offenders Act 1997 and a definition in this clause of a sexual offence in respect of which an extended sentence may be imposed.

The purpose of Amendment No. 130 is to omit the provision which would have extended the power to make supervised release orders in the case of children detained following conviction on indictment. The amendment removes a redundant provision. Children detained under Section 208 of the Criminal Procedure (Scotland) Act 1995 are subject to mandatory licence on their release. Licence always takes precedence over any supervised release order.

Subsection (2)(b) of Clause 71 would extend the court's powers to impose a supervised release order to include children detained under Section 208. In practice, that would never have effect because the licence would always apply. The provision is therefore unnecessary. The reason for tabling this amendment is to remove a redundant provision. I beg to move.

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 130:

Page 59, leave out lines 45 and 46.

On Question, amendment agreed to.

The Deputy Speaker (Lord Elton): My Lords, before calling Amendment No. 131, I must tell your Lordships that, if it is agreed to, I shall not be able to call Amendment No. 131A.

Clause 80 [Offences racially aggravated]:

Lord Mackay of Drumadoon moved Amendment No. 131:

Page 69, line 14, leave out from ("apply") to ("offence") in line 17 and insert ("when a judge imposing sentence on an accused in respect of an offence is satisfied that the").

The noble and learned Lord said: My Lords, this amendment is designed to remove part of what is now Clause 80 of the Bill, previously Clause 79, dealing with the procedure that is to apply for sentencing accused persons in Scotland when they have been convicted of offences which, in terms of the definition set out in subsection (2) of Clause 80, can be described as racially aggravated. It reflects certain reservations that I expressed at Second Reading--reservations that were fortified by a letter which the Lord Justice General of Scotland, the noble and learned Lord, Lord Rodger of Earlsferry, wrote to the Secretary of State for Scotland in October last year.

Following the Committee stage I wrote to the Lord Advocate about the matter and explained my concern, which can be put shortly. At the present time, as the

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Lord Justice General said in his letter, he is satisfied, as indeed I am, that if a sentencing judge, having heard the evidence in a trial or having heard the prosecutor narrating the circumstances of an offence falling upon a plea of guilty, is satisfied that the offence was one in which racial motivation was what lay behind it, he would take that into account as an aggravating factor. The noble and learned Lord, Lord Rodger, said in his letter that he was equally certain that the Appeal Court would support that view in the event that the trial judge's sentence was appealed against.

My concern was that by setting out the statutory procedure in the Bill, far from ensuring that racial motivation was an aggravating factor which led to higher sentence in more cases, the contrary might in fact prove to be the case. My concern was based on two matters: first, the need to libel such an aggravation in the indictment or complaint; and secondly, uncertainty, at least so far as the face of the Bill is concerned, as to the basis upon which the sentencing judge was to be satisfied that the offence had indeed been racially aggravated.

It is of interest to contrast the terms of Clause 80 with those of Clause 69, dealing with the position in England, where there is no need to set out in any charge or any document served on the defendant before the trial the detail that requires to be libelled by virtue of the provisions of Clause 80.

In seeking to meet those concerns, the noble and learned Lord the Lord Advocate has tabled two other amendments, Amendments Nos. 131A and 139A. Perhaps I may deal with the second of those first.

The need to have evidence from only one witness--in other words, to dispense with the need for corroboration--to some extent meets the second of my concerns. But the first remains. I can envisage situations where, through no fault of the prosecutor, it is not set out on the complaint or the indictment that an assault, breach of the peace or malicious mischief, whatever it may be, was racially motivated. Those facts may not be apparent from the terms of the police report placed before the prosecutor. Yet, when the case proceeds to trial, it may be abundantly clear to everyone in court that there was indeed such motivation.

In that event, even if the judge were entirely satisfied that the offence had been racially motivated, he would not be entitled to take that into account in sentencing. One would envisage defence counsel drawing that matter to the attention of the sheriff or the judge in public and, far from meeting the concerns of victims who are members of ethnic minorities, having quite the contrary effect. When one looks at the practicalities of the matter, I am concerned that this is a very retrograde step.

One can envisage situations in sheriff and jury or High Court trials when the aggravation is libelled but, for whatever reason, the jury deletes that aggravation from the charge when a conviction is returned and yet the judge, who has listened to the case, is entirely

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satisfied, as indeed are members of the public and the victim. The judge would be bound by the provisions of this clause to disregard the matter, contrary to the position, as I understand it, in England.

I shall be interested to hear from the noble and learned Lord the Lord Advocate what are the views of the courts in Scotland as to the amendments which he has brought forward. He has sought to meet the concerns expressed in my letter to him, but, as it is the judges who will have to operate the sentence, I believe it would be valuable for your Lordships to be informed of that. It is against the background that this may lead to practical difficulties that I move Amendment No. 131.

11.15 p.m.

Lord Hardie: My Lords, with your Lordships' permission, I shall speak to Amendment No. 131, moved by the noble and Learned Lord, Lord Mackay of Drumadoon, and to government Amendments Nos. 131A and 139A, which are grouped together. The noble and learned Lord has already referred to government Amendment No. 131A. I must apologise to your Lordships for the lack of notice given of the government amendments, but I wrote on 16th March to the noble and learned Lord, Lord Mackay, and the noble Earl, Lord Mar and Kellie, about the Government's intentions, and a copy of the letter was placed in the Library of your Lordships' House.

I am grateful to the noble and learned Lord, Lord Mackay, for the interest he has shown in this provision and his assistance in identifying important issues which arise. The amendments which I shall move today follow from the correspondence we exchanged and which is in the Library of your Lordships' House.

All these amendments seek to clarify the standard of proof to be applied to racial aggravation in order that a judge be required when sentencing an offender to treat it as an aggravating factor.

At Committee, I undertook, in response to an amendment moved by the noble Earl, Lord Mar and Kellie, to table an amendment on the lines of Amendment No. 131A and to make a statement to clarify the proposals contained in the Bill.

It is the Government's intention that the prosecution will be required to libel in an indictment or specify in a complaint that there was racial aggravation. That is clear from the terms of Clause 80.

Perhaps I may deal with the matter which was raised by the noble and learned Lord, Lord Mackay, in his speech this evening. With the greatest of respect to the noble and learned Lord, he suggests that it may be no fault on the part of the prosecutor that the aggravation was not libelled. In investigating offences, particularly offences involving ethnic minorities, I have much more confidence that the police authorities in Scotland and procurators fiscal will be alert to raise those issues at the stage of investigation. I would be astonished if a procurator fiscal failed to include such

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an aggravation in a charge. I do not anticipate, therefore, that situations will arise where the aggravation was not libelled.

Furthermore, in relation to a jury deleting the aggravation, that is the same as any other aggravation. The jury has heard the evidence and it will be for the jury in a jury case, or for a judge sitting alone in a summary case, to decide whether the aggravation has been made out. If the sheriff sitting alone or the jury decide that the aggravation has not been made out, the proper thing for them to do is to delete the aggravation, just as they would delete any other aggravation.

In that situation, it would be inconceivable that the judge, notwithstanding the verdict of the jury, should take it upon himself to impose a sentence which did not reflect the verdict of the jury; and took it upon himself to conclude that he or she should impose a greater sentence because he or she thought there was racial aggravation, notwithstanding the views of the jury who had heard the evidence and whose responsibility it is to determine the factual basis on which the judge should sentence.

It is clear from the amendment that I tabled that the charge and the complaint in the indictment would require to be established to the normal criminal standard of proof; namely, proof beyond reasonable doubt. But in the amendment I also made clear that the aggravation would not require corroborated evidence. That is entirely fair and appropriate and consistent with our rules of evidence in other crimes in relation to aggravations.

The Government had always intended that the racial aggravation should not require corroboration. Arguably, that is the effect of the clause as it stands, but in view of the concerns raised by the noble and learned Lord, we think it preferable to put the matter beyond doubt by means of Amendment No. 139A. However, the amendment moved by the noble and learned Lord, Lord Mackay of Drumadoon, would remove (or specify) that the offence was racially aggravated. It would also leave the decision on sufficiency of evidence to the judge, notwithstanding the views of the jury, with which I dealt a few moments ago.

Racial aggravation is a serious matter which, if proved, would lead to an increased sentence. An accused person should be given proper notice of such an element when preparing for trial. Whatever the practice in other jurisdictions, it is the practice in Scotland to give accused persons fair and full notice of the charge or charges which they face, including aggravations. It would be no different in the case of racially aggravated offences.

As I indicated, the police and the Crown should be able to identify the aggravation at the stage of investigation to enable charges to be properly framed. I also believe it is appropriate and necessary that the prosecution be required to prove the aggravation before the aggravation can be taken into account at the stage of sentence.

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The noble and learned Lord raised the hypothetical case where evidence of racial aggravation might arise during the course of a trial that had not been set out in the charges. It is our belief that where the racial element is sufficiently serious to justify being reflected in the sentence, it would have been evident at the time of the investigation and should properly be taken into account when preparing the charges and should in fact be featured in them to enable the court to impose the higher sentence.

We believe that this provision strikes the right balance between the need to take firm action to combat racial offences and the need to ensure fairness to the accused. In those circumstances, I would ask the noble and learned Lord to withdraw the amendment.

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