Examination of Witnesses (Questions 140-159)|
THURSDAY 27 JUNE 2002
140. You say that has not yet been affected
by section 39 of the 2001 Act because nobody has grasped the contents
of that piece of legislation.
(Mr Fahy) That is what is happening at the moment.
As you say yourself, there is a distinction between the law itself
and the issue of sentencing. Clearly, some of this material could
at least now be reflected in the sentence which was put across,
but even then they were talking about legislation against offences
which are designed to stir up religious hatred. Some of that material
undoubtedly could be covered by the existing public order legislation,
but it would not be covered and would not be reflecting the seriousness
in the same way as if it had been directed against a racial group.
141. Am I right in thinking you have now been
able to refer to the prosecuting authorities material that previously
you would not have been able to touch as members of the police?
(Mr Fahy) Yes, we believe that the change in sentence
will have changed the tenor of the law, but we still do not have
the opportunity to refer some of this material under a specific
law of incitement to religious hatred. We could refer it under
other public order legislation, and with the knowledge that if
it did eventually get successfully prosecuted, the seriousness
of it could be reflected in the sentence.
Earl of Mar and Kellie
142. At this time we are not talking about people
who are facing each other; the context is of someone pushing out
propaganda through all forms of media, whether written, electronic,
or on the radio; and there is a gap on this one. I should like
to draw a parallel. We have said that the issue of sectarian football
supporters singing songs across the stadium at each other does
not matter too much.
(Mr Fahy) I do not think I said that.
143. We are not saying that is of the same seriousness.
They are not necessarily going up to each other and singing at
their faces. We are talking of someone pushing out religious hatred
through the various forms of information media, and you are saying
that that is a serious area that the law does not really take
(Mr Fahy) Yes, because it is that distinction I draw
about somebody who has taken upon themselves a course of action
which is intended to create community tension, because we know
there are certain groups out there that would welcome disturbances
between communities because it would meet their own political
ends and propaganda. Sadly that is the case. We know that there
are some who would welcome greater hostility between communities
because it would meet their own policies on anti-immigration or
asylum, or whatever it might be. That is the seriousness. When
it is about people squaring up in the streets, there is a raft
of public order legislation that we can use. It is about this
point, the prize of community relations, which is very important
to this community and which we should celebrate more actively.
Therefore, we should take a particularly serious view of those
people who undertake a course of conduct that is designed to threaten
those good community relations because of the very serious consequences
that that can have.
144. Can I just press you on the material you
have given. If a Muslim walks into a police station with some
of the material that you have seen and says, "I am a Muslim
and my faith and my community are being attacked with this kind
of religious pamphlet", I guess you would take down the complaint.
(Mr Fahy) Yes.
145. What is the next stage of that process,
when someone has a complaint and gives you evidence of what has
been published, expecting you to do something?
(Mr Fahy) It would certainly be recorded as a racist
146. As a racist incident, not as a religious
(Mr Fahy) It will not be covered as that. We would
tend to use now the definition "hate crime", which is
essentially an incident that is motivated by hate. If it is felt
to be that there is a racial element, then it would be covered
as a racist incident, but if it was felt by the officer that it
was a religious one, then we would record it as a "hate"
incident. That would be investigated and treated very seriously.
We would try to find the originator of that material and then
get to a stage where, presumably, we would put a file through
to the Crown Prosecution Service for their advice as well as the
best code of conduct, and the existing law would cover that in
terms of public order legislation.
147. Mr Fahy, I am a difficult Muslim, saying
that I want this crime recorded on a religious basis because my
faith has been attacked, not on the basis of race. As a citizen,
I would be entitled to force you to look at it on the grounds
of religious hatred. At some point in time you would come back
and tell me, "I am sorry, I cannot prosecute under this because
there is no law to stop that." Is that the position?
(Mr Fahy) It is more likely to be that we could see
a way that the existing public order legislation, which at the
end of the day does legislate against insulting words and behaviour
that would tend to provoke a breach of the peace, could be used
against that. It would not necessarily reflect the seriousness
and level of hurt and upset and distress that you feel. It would
not be a piece of legislation particularly designed for the threat
that you recognise towards your community. As I have said, the
existing public order legislation is wide and covers a range of
different circumstances. It covers words, behaviour and written
representations; so it could be used towards that, and it would
be a matter for the Crown Prosecution Service whether that could
be done. There are always practical difficulties with information
published on websites that come from abroad, and that covers a
number of issues.
Baroness Richardson of Calow
148. In regard to these things that you have
sent round, would that be an offence if nobody complained to you
about itif there is not a Muslim who comes in to the police
station and says they have been gravely offended by this? Maybe
this is what we should be looking at; whether it is likely to
cause offence to anybody else although nobody has complained about
it. Could you bring a prosecution on that ground?
(Mr Fahy) We would expect our officers to be very
proactive about this, to know that this sort of material is circulating
and to proactively investigate it, whether there was a complaint
or not, and to try and deal with the community itself to try and
calm things down. Clearly, sometimes this material is directed
towards the most vulnerable people who, for various reasons, for
example lack confidence or have language difficulties, who would
be very reluctant to come and report it to the police. That is
why we have tried to introduce third party reporting through mosques
and places of worship to try and encourage it. These people are
clever enough to direct it at the most vulnerable members of a
community rather than people who come and report it to us.
(Mr Tucker) There are differences in the offences
as well. If those were sent to somebody in a private address,
then that may not be an offence under certain parts of the lesser
offences under the Public Order Act, because it is not an offence
to do this outside a domain, for instance. There are other offences
of posting material and displaying material with the intention
of stirring up racial hatred, which can run into difficulty around
things that are inside books or foreign language newspapers, and
it is a matter of whether they fit the bill, so to speak. There
is a case that has just been submitted to the CPS that is exactly
on this point, so we should get some guidance on that. There are
issues here around what the law defines as offences. When you
add in the racial and religious aggravation, you start to get
into some difficulties.
149. I would like to pursue that point. Publication
on a website counts as "display" for the purposes of
section 4 of the Public Order Act. Did you know that?
(Mr Fahy) Our understanding is that the display is
covered, but clearly if it is published overseas then it is very
difficult to get to the publisher that has initiated that action.
Our understanding is that the law is wide enough to cover websites
but the difficulty is that these people are clever enough to publish
150. There is this problem throughout the whole
of the law; people who publish illegal material on British websites
can very easily escape justice by going somewhere else. Nevertheless,
we do have mechanisms for taking complaints up with service providers.
I should like to know whether the police have relationships, for
example, with the Internet-Watch Foundation, whose remit is to
prevent crime on the Internet. Do you find them useful and have
they been active in drawing your attention to offences of this
kind on the Web?
(Mr Fahy) Yes, they have, and in general we do get
a lot of co-operation from responsible Internet providers. They
clearly do not want to have anything on the system of that seriousness
and level of hatred. Again, people who publish this sort of material
are careful to use websites and providers that are outside those
151. In other words, if people have complaints
that cannot be dealt with under the law because incitement to
religious hatred is not yet an offence, but they notice material
on the Web which would constitute an offence if this provision
were enactedthen normally they would be expected to be
able to persuade the ISP concerned to withdraw that.
(Mr Fahy) I have had no experience of that. I think
it would depend on the degree of the material. In terms of some
of the material you have seen, I do not think there is any doubt
about that. We know in all this area that there is always going
to be difficulty between what might be regarded as fair comment
152. Given that the material is publishedand
I quite see that it could be dealt with inside a private dwelling
and may not be published, but given that it is published in one
shape or form, you have got already, have you not, Public Order
Act offences? The difference is going to be that if they are religiously
aggravated, you would not have a different sort of offence, you
would have different evidence to place before the courts. You
would have evidence that constituted, however serious the offence
is, material upon which a harsher charge could be brought, or
upon the basis of which, where there is already a very serious
offence, a more serious sentence, a longer sentence could be imposed
by the court. Have you got difficulties about establishing that
religious hatred element which has prevented you from bringing
these matters before the criminal courts in an aggravated form,
and therefore only left you with the ability to bring it in the
unaggravated form with a lesser penalty?
(Mr Fahy) Apart from the existing difficulties with
some of the public order legislationand you mentioned publishing
from private dwellings and those sort of issuesthe existing
public order legislation would cover most instances and thus allow
us to charge it as a religiously aggravated offence. However,
I still come back to the point that we would still not have the
ability to frame a particular charge around incitement to stir
up religious hatred in the way that we could if it was to stir
up racial hatred.
(Mr Tucker) There have been cases, obviously, of incitement
to racial hatred, which have come from books. The most recent
cases have revolved around the Jewish faith. Because of the position
of the Jews in terms of both race and religion, that issue has
not come up. In the event that you had a book that attacked Christianity
or Islam, then that issue would then arise.
Earl of Mar and Kellie
153. Is it actually an offence? If I type it
out and press the button to print; at that point, when a hate-inciting
document is printed, does the offence start there, or do you have
to be walking down the street with an armful of the stuff, ready
to distribute it; or do you have to be seen distributing it and
then somebody being offended by it?
(Mr Tucker) The situation would be that it is not
an offence to possess it. This may be the gap in the law: if it
were pornographic material in relation to children, merely possessing
it and downloading it from the Internet would be an offence; but
in these circumstances, you would have to have something that
was either inciting, or that you were displaying with the requisite
Baroness Richardson of Calow
154. Would it be helpful or otherwise to have
made some attempt to define "religion"?
(Mr Fahy) We have given this a lot of consideration
and we recognise how difficult that would be. That said, we can
see some difficulty around such issues as particular sects and
what might be viewed by some as extreme sects, and whether they
should have that form of protection. There are wider issues here.
Our work in this field often encompasses a whole range of minorities,
particularly the gay/lesbian community feel very strongly that
hatred towards them should be covered. We realise the difficulties
about framing a definition of religion and seeing some of the
debates. Probably it is best left for the judges to decide.
155. If I say that this is a racist attack and
if I also say that what has been said is against my firmly held
belief, is this self-defined as religion?
(Mr Tucker) There is a distinction to be made between
how we record a particular incident and what the outcome will
be, because however you may perceive any incident to be racist
or religiously aggravated or homophobic, again we would record
that. If there were no evidence to support that, then we could
not charge that and we could not include it in the evidence. If
I could pick up on how you define religion, I was just scrabbling
through my papers here for the case of Mander, which supports
the case for race, and deals with the tests there. I would have
thought it would also support religion to some extent. A series
of tests like that would avoid the issue of sects and would be
framed in such a way that you could direct the law at the mischief
that you are trying to address.
156. Has there ever been any difficulty in interpreting
the word "race" or "racial" in the Public
Order Act? The reason I ask the question is because if you have
not had any difficulty, but there is no definition, then it is
unlikely to cause problems with religion.
(Mr Fahy) I am not aware of any difficulty that we
have had. There may be some cases around it, but I do think the
issue about religion could be a more difficult area, around what
might be regarded as fair comment. We have considered the difficulties,
for instance people who feel very strongly about animal rightsif
they wish to question the Muslim faith's position on nature, there
could be a difficult dividing line there about what could be regarded
as incitement to religious hatred, or someone who wished to question
the Catholic Church's position on abortion. That would be a more
difficult area than it has in the racial area because as one contender
has put it, essentially religious groups have moral standpoints
and racial groups do not. Therefore, if you wish to question that
moral stance, clearly there has to be enough room for fair comment.
157. I wanted to pursue this in relation to
something that Mr Tucker said earlier on when we were talking
about publication. He was talking about books which attack Christianity
or Islam. I would suggest to you that you have to make a distinction
in your minds between attacking the objects of the religion and
incitement to hatred of the members of the religion, which are
two totally different issues. If you get those distinctions clear
in your mind, then the definition question falls into place, and
so does the question of publication because I can publish a book
and I can attack Islam or Christianity or whatever and no-one
would object to that because it is my right of free speech to
say what I think about another religion; but when it comes to
inciting people to attack members of a religion, then surely that
is a totally different matter that the law has to deal with?
(Mr Tucker) I would agree.
158. You have given us some examples. Can you
let us know which have been published and which are in any form
where they would not have been susceptible to Public Order Act
proceedings at all, because it is quite important that we should
know which were on a website and which were found inside somebody's
house and were not shown to anybody in a way that would incite?
Secondly, do you agree that the Attorney General's intervention
before a prosecution can be brought acts as an adequate filter
to deal with the sort of difficulties we have just been discussing?
(Mr Fahy) Yes, I would agree with that. I think that
would be absolutely necessary for any similar offence about religious
hatred. It would need the Attorney General's filter, and clearly
the Attorney General would take great note of public interest
and the issues around that. That would be fair comment.
Baroness Richardson of Calow
159. Mr Baines, had there been a law against
religious hatred when there were the disturbances in Bradford
last year, what difference would it have made?
(Mr Baines) It is an interesting question because
at the time prior to the disturbances, and certainly after the
disturbances, that kind of very insidious material was widespread
throughout the city. It did create a climate of fear because this
climate of fear was in other cities across the north of England
because of extremist activity. I think that it did significantly
impact upon the situation. It would have had an impact had we
been able to locate and trace the persons responsible for some
of that material. Last year we would have dealt with the situation
as Mr Fahy has outlined, under the issue of incitement to racial
hatred and looked at the evidence that we had at the time. I agree
that incitement to hatred on religious grounds would make a significant
difference in terms of our ability to deal with this kind of material.
I think it would help us to try and deal with the people who promote
this kind of material but also it would help us in our dealings
with the communities as well. This is all about confidence and
reassurance and our ability to deal with the problems we are faced
with. I go back to the earlier question about what we would do
if we had a Muslim man who came in to the police station to report
this kind of incident. It is not easy because we would have to
go through all the hoops in terms of getting a conviction. I do
feel that if we had the offence of incitement to religious hatred
against a particular group, it would be a significant weapon in
our armoury, which would enable us to deal with that situation.