The difficulty is that if somebody were to put something on a fence, for example, and they were not aware that this was associated with a gang, they would potentially be criminalised by it.

Thirdly, the requirements of the proposed new offence mean that expert evidence would need to be adduced in order that the jury or magistrates could decide whether the prosecution had proved to the criminal standard—that is, beyond reasonable doubt—whether the graffiti is gang-related within the meaning of the section. Most judges, magistrates and juries are unlikely to understand the significance of particular names, symbols or tags—this is not just the Sharks and the Jets that we are talking about, but rather most abstruse versions. Then the requirement that a trial be fair would require that the defence would also have to be able to instruct an expert, usually at public expense. Your Lordships’ House is well aware of the difficulties the criminal courts already have with delay. The idea that these existing challenges should be added to by numerous “battle of the expert” trials about graffiti is as unpalatable as it is unnecessary, given that the conduct is already captured by the Criminal Damage Act.

Amendment 52 seeks to make gang involvement a statutory aggravating factor in the sentencing for any criminal offence; thus, it is very wide indeed. The definition of “gang” is once again so broad that it would capture a number of wholly innocuous groups, and this is not a mere drafting issue. It encapsulates the fundamental problem with this provision, which is the difficulty of defining the conduct which it seeks to condemn with sufficient precision to make it workable. Again, evidence might be needed at the sentencing stage.

At present, Chapter 3 of Part 4 of the Sentencing Act 2020 creates only 11 statutory aggravating factors which a sentencer must bear a mind when considering the seriousness of the offence. These statutory aggravating features include umbrella issues, such as whether the offence was committed while on bail or whether the offender has previous convictions. However, it also includes some offence-specific ones, such as involving a minor child in the supply of controlled drugs. This amendment would create a 12th.

The Government are satisfied that a further statutory aggravating factor is not needed. This is because the sentencing guidelines already require a sentencer to consider additional, non-statutory factors, and these include where the offence has been committed as part of a group, or there is evidence of community or wider impact, and that list is not a closed one. The kind of gang-related activity which is of concern to all right-thinking people can and should be taken into account by sentencers. My own recent experience as a judge sitting in a central London Crown Court is that judges would, and do, already treat gang issues, where clearly proved, as an aggravating factor in terms of sentence.

Put simply, I am satisfied that the courts already have the tools necessary to respond robustly to serious gang-related offending. For that reason, I consider both amendments unnecessary. However, if there is something particular that they seek to address and to which I have not spoken, I invite noble Lords to meet with me to discuss it. Notwithstanding this offer and for the reasons I have set out, I invite the noble Lord to withdraw the amendment.