SENTENCING GUIDELINES (Hansard, 23 June 1998)

§ Mr. Michael
I beg to move amendment No. 27, in page 62, line 27, after 'against' insert ', or a reference under section 36 of the Criminal Justice Act 1988 with respect to,'.

§ Mr. Deputy Speaker (Mr. Michael Lord)
With this, it will be convenient to discuss the following amendments: No. 87, in page 63, line 8, at end insert 'and any aggravating factors based on a victim's race, religion, sexual orientation, gender, age or disability'.
Government amendment No. 28.

§ Mr. Michael
The amendment makes it clear that the sentencing guideline provisions apply to cases before the Court of Appeal when the Attorney-General has made a referral to it, as well as to cases where the offender appeals against sentence.
The Criminal Justice Act 1988 gave the Attorney-General the power to refer serious cases to the Court of Appeal when a sentence appeared to be unduly lenient. In the past few years, the Court of Appeal has, on occasions, established sentencing guidelines as a result of such cases. An example is the 1989 sentencing guideline on incest in the case of Attorney-General reference No. 1 of 1989. In view of the importance of the Attorney-General's powers, it is clear that such cases need to be covered. The amendment seeks to remove any doubt about whether such cases are covered—they are.
Amendment No. 87 would require the Court of Appeal to include in its sentencing guidelines aggravating factors relating to the victim's race, religion, sexual orientation, gender, age or disability. The Government have the greatest sympathy with the principle behind the amendment. We deplore offences that are driven by any of the motivating factors in the amendment. In Committee, my hon. Friend the Member for Enfield, Southgate (Mr. Twigg) helpfully suggested that the sentencing guidelines provisions in the Bill might provide an opportunity to establish guidelines on the treatment of homophobic violence. The sentencing guidelines are likely to be helpful in that regard.
The mechanism of the advisory panel provides a vehicle through which experience and opinion on such matters can be fed. The sentencing advisory panel will be able to receive views from those who have had direct experience of the sort of problems that are highlighted, and will be able to point out concerns about patterns of sentencing in relation to such matters. It will then be able to pass views to the Court of Appeal. Thus, the mechanism will be sensitive to experience in the community of the outcomes of sentencing on such matters.
Ultimately, it will be for the Court of Appeal to decide on guidelines, having regard to the requirements set out in the Bill. It would not be right for the Court of Appeal to be told that it must include certain aggravating factors; nor is it necessary to do so. Those factors are unlikely to be relevant aggravating factors in many of the cases before the court. For example, none of those factors would be at all relevant to a case of causing death by drink-driving. The aggravating factors in those circumstances are more likely to include matters such as the amount of alcohol consumed, whether the offender failed to stop after the accident, or excessive speed. Although those are important issues, they are not part of the list suggested in the amendment.
It is widely acknowledged that the courts need to have regard to a multitude of aggravating and mitigating factors when sentencing. Does that mean that the factors in the amendment are more important than other factors? Would 919 that be the effect in law? Clearly, there are occasions when they should be regarded as important, and others when they should be regarded as less important, depending on the facts of the case. Is an attack based on an offender's gender worse than an attack where a weapon is involved? Those are difficult judgments to make, yet we would raise that issue if we included the provision in the Bill.
Why do we not require the Court of Appeal to include mitigating factors? We believe that it is best to leave those matters to the courts. After deep consideration, considerable thought and debate, we have created a statutory provision on racial crime because this is a widespread problem, which does specific damage to community relations and social stability. It not only damages the victims and those associated with them, but tears a rift in the fabric of society. That is the difference, as we explained in earlier debates.
The courts are already required in sentencing to account of all the mitigating and aggravating factors of the offence and the offender. Sentencing guidelines have always included aggravating factors. To give just one example, one of the most well-known sentencing guidelines, the case of Billam, lists a number of serious aggravating factors in rape cases, including where the victim is either very old or very young".
The sentencing guideline provisions in the Bill are important, but they build and improve on the current system of sentencing guidelines and they are not intended to, nor do they, interfere with the independence of the courts. The amendment carries a much graver risk of interfering with the courts' discretion.
I hope that, although there may be issues that hon. Members want to raise in the debate, I have explained the reasons why it would not be advisable to put those matters on the face of the Bill, and how they can be dealt with within the structures that we propose.

§ Mr. Allan
I am grateful to the Minister for his warm response to the intention behind amendment No. 87, which I tabled, even though he has said that he will not accept it as worded. He was correct to refer to our debates in Committee on homophobic offences—offences motivated by hatred of people because of their sexuality. Amendment No. 87 arises from two of the issues that we discussed in Committee: first, aggravating factors based on age, gender and disability; and secondly, whether such issues should be determined through sentencing guidelines rather than through the mechanism of a new clause, as we originally proposed in Committee. Amendment No. 87 is a constructive attempt to reconcile some of the suggestions that were put to us, including the helpful suggestion from the hon. Member for Enfield, Southgate (Mr. Twigg).
Liberal Democrats remain concerned about these issues. In Committee, we cited a considerable amount of detailed evidence from such bodies as Stonewall, which, in its survey "Queerbashing", pointed out that that offence is committed daily in our streets. We also referred to the fact that, last year, the Home Secretary grouped that offence with offences motivated by racial hatred, with which the Bill, fortunately, also deals.
I am pleased that the Minister said that the appeal courts would consider these issues, even though the 920 Government will not direct them to do so in legislation. Paragraphs (a) and (d) of clause 79(3) specify the need to promote consistency in sentencing and the need to promote public confidence in the criminal justice system". If we are to achieve those goals, we believe that the courts will have to address the aggravating factors about which we are talking.
Homophobic assaults are significantly under-reported precisely because of a lack of public confidence. Sentencing guidelines are important not only because of the sentences that they suggest, but because to mention them in open court will be to give a strong signal that the court is taking aggravating factors seriously—if, in sentencing, the judge says that he or she has taken on board an aggravating factor, that will give a huge boost to public confidence, and many more offences will be reported.

§ Mr. Michael
The hon. Gentleman's remarks are helpful, and may be complemented by two other factors. First, the crime and disorder audit can take account of the experience of particular groups, which can then be considered in decisions on strategy. The second factor is the attitude of the police. The Association of Chief Police Officers, for example, has made it clear that it recognises that the police must listen to and understand the experience of particular groups, such as the lesbian and gay communities, to deal with specific crimes.

§ Mr. Allan
I am grateful for those comments. We have strongly welcomed the community safety strategies and the idea that communities should be asked about what they want. We believe that communities will, through those consultation exercises, express their desire to receive the protection that we are talking about. I am also grateful to the Minister for the way in which he has taken on board the issues that we raised—hon. Members on both sides of the House agree about the importance of boosting public confidence.
Action is needed throughout the criminal justice system. The Minister referred to the police, who we believe are now making strenuous efforts. However, the tools must also be given to the Crown Prosecution Service, so that it knows that evidence on aggravating factors must be collected and that such evidence is worth presenting in court.
Moreover, the courts—including the judges and the magistrates—must also take these issues seriously and treat cases consistently. The experience that has been reported to us is that some aggravating factors are taken more seriously than others. In some cases, they can even be used as mitigating factors—in citing the homosexual panic defence, for example, individuals justify their attacks on gay people by saying, "I was scared because he was making an approach, so I had to hit him, guv." We believe that such a defence is unacceptable, and we hope that the sentencing guidelines will reflect that.
We are grateful to the Government for their constructive approach. We want to continue dialogue both with Ministers in the Home Office and, crucially, with Ministers in the Lord Chancellor's Department, who have specific responsibility for the guidance that is offered to the courts. We hope that the measures applying to 921 offences motivated by racial hatred will also apply to other offences motivated by hatred—they are often committed by the same people. Moreover, we hope that the courts will maintain public confidence by dealing consistently and seriously with such offences across the country. We must send a message to the people who commit these crimes that the Government and the courts will not accept such behaviour.