Examination of Witnesses (Questions 571-579)|
THURSDAY 5 DECEMBER 2002
571. Good morning to you and thank you very
much for coming. Sir David, I gather that you are going to say
that the Attorney-General questions are things that you cannot
answer, which are 4, 5 and 6. I am still going to tempt you a
little bit about some of these things but when you draw the line
I will accept that you have drawn the line, and we are trying
to get hold of the Attorney-General either on paper or in person
to deal with this. I do not think we can write on incitement without
getting in some fairly definitive views about these things which
are not the same as they were, for instance, in 1986.
(Sir David Calvert-Smith) Quite.
572. You have had a list of questions. We know
who you are because we have got your CVs. Is there anything that
you would like to say by way of introduction and then we will
go on to such of the questions as you can answer?
(Sir David Calvert-Smith) Thank you very much. I do
not think there is anything that I would like to say by way of
a preliminary statement because I suspect that most of the things
that I am going to say you are going to ask me. If there were
anything I felt you had not covered perhaps I might be allowed
at the end to say something.
573. You tidy up.
(Sir David Calvert-Smith) Yes.
574. By all means. We have started off by blasting
our way straight into the European Convention which is now going
to have to be applied by English courts and, I may say, that includes
the Magistrates' Court and the Crown Court and, as a former Crown
Court judge, I wonder what on earth I would do by way of directing
the jury on some of these things.
(Sir David Calvert-Smith) As a former Crown Court
recorder I have the same feeling.
575. Would you like to say how you think the
courts would now handle this?
(Sir David Calvert-Smith) Blasphemy?
576. Yes. Make up your own blasphemy scene.
It is either some prosecution which deals with non-Anglican Christianity
or it is another Satanic Verses type and let us assume that it
gets on its feet by means of some judicial review.
(Sir David Calvert-Smith) I suppose the background
is that if I were prosecuting such a case I would be reasonably
confident that the court would find that prosecuting the offence
was justified. There is enough European jurisprudence still to
suggest that and Member States still have the right as it were
to proscribe blasphemy and criminalise it if they believe that
it is necessary within the boundaries of their own state.
577. That is the Article 10.2 point?
(Sir David Calvert-Smith) Yes. I would be confident,
in 2002 at any rate, subject to any new decision from Strasbourg,
that I would be able to justify emphatically that we were there.
I think the difficulty is going to come in a blasphemy prosecution
post-ECHR when the magistrates, Crown Court or Court of Appeal,
or whoever it is, is deciding whether in the incident case this
is too much of a sledgehammer and too small a nut, the proportionality
argument, which no doubt if I were defending I would probably
at least want to run before the judge and say that, albeit this
conduct (assuming it is proved) is probably technically blasphemous
within the common law, this particular example of it is not sufficiently
serious for the need to criminalise blasphemy to override the
right to freedom of expression.
578. Could I remind you of what the Strasbourg
court said in Otto Preminger? We have got to try and define
the gap. On the one side there is of course the violence, the
graffiti, the criminal damage, incitement to violence, conspiracies
and all that, which cover a large area of it. On the other side
there is the limit to what you can proscribe under Article 10.2.
The court said: "Those who choose to exercise the freedom
to manifest their religion, irrespective of whether they do so
as members of a religious majority or minority, cannot reasonably
expect to be exempt from all criticism. They must tolerate and
accept the denial by others of their religious beliefs and even
the propagation by others of doctrines hostile to their faith.
However, the manner in which religious beliefs and doctrines are
opposed or denied is a matter which may engage the responsibility
of the state, notably in its response to ensure the peaceful enjoyment
of the right guaranteed under Article 9 to the holders of those
beliefs and doctrines." That is the other millstone, is it
(Sir David Calvert-Smith) Yes. It is very difficult
for a mere prosecutor, whose primary job is simply to try and
interpret the law and apply it, to enter too far into what are
social, moral, political judgments really beyond his or her remit.
On the other hand, increasingly prosecutors are now asked to make
that sort of judgment because of the legislation not just in this
field but also in the field, for instance, of race, in which we
are now required to operate and which does require the exercise
of a kind of value judgment. Fortunately, we do have some very
useful judgments from Europe and Preminger is one of them.
The basis upon which one has an offence of blasphemy at all, aside
from the public order offences which one can create without any
need for them, is clearly getting smaller and smaller. The purpose
behind a blasphemy law now is, I am bound to say, not completely
clear to me, why the common law of blasphemy still has to exist
outwith all the other offences that have come on stream recently,
and of course the possibility, which I think we will be discussing
later, as to whether there should in fact be an offence of incitement
to religious hatred as well as an incitement to race hatred. If
I go back further, based in the English common law, if I can just
turn it up, in 1913 Lord Sumner set out what the four possible
reasons for having a blasphemy offence at all were: endangering
the peace, the depraving of public morality, shaking the fabric
of society and being the cause of civil strife. If one goes back
to the third of those, shaking the fabric of society, what he
was saying even in 1913 was that society is now sufficiently well
developed not for us to be too worried about people who argue
about religion. That is arguableI am not speaking as a
prosecutor herebecause some religious divisions have actually
got worse, some might say, if one were across the water or post-September
11 and all that. Maybe there is still an argument to be made for
criminalising purely religious conduct which does not amount to
assault, criminal damage or all the things you mentioned. On the
other hand, there is now a panoply of other offences which we
would almost certainly as prosecutors choose to prosecute. They
are more up to date, they are more in tune with recent thinking
than the common law which is almost obsolete now since the Whitehouse
579. You have got a role in this, have you not,
because, first of all, quite apart from Article10 you have got
to decide whether there is some chance of getting a conviction,
more than 50 per cent?
(Sir David Calvert-Smith) Absolutely.