Examination of Witnesses (Questions 620-639)|
THURSDAY 5 DECEMBER 2002
Baroness Perry of Southwark
620. or sexual or whatever. Have you
done any similar monitoring on that to find out whether people
have been using that as a protection for their religion? Have
either of those been used in that way?
(Sir David Calvert-Smith) The short answer, I am afraid,
is no, we have not. We have no statistical basis for analysing
defences if you like. We simply do not have any figures at all.
621. If I turn that round and say that if somebody
were to claim that they were being discriminated against on religious
grounds or if they were to claim that they were being denied their
freedom of religion, would you then pass that through?
(Sir David Calvert-Smith) Only if it came through
as a criminal offence from the police.
Baroness Perry of Southwark: Would you consider
it was a criminal offence if I were able to show that somebody
had denied me my freedom of religion?
622. That is the whole point of the Framework
Decision, is it not, in order to introduce this into the criminal
(Sir David Calvert-Smith) Exactly.
Baroness Perry of Southwark: To take it away
from the body thing and make it
623. No. It is too prompt. There is going to
be a European Union directive which is in the civil sphere. It
may not be wide enough at the moment. There is also the criminal
Framework Decision which will introduce as a criminal offence
insulting and various other behaviour threatening violence, on
any of the discrimination grounds which we hope will include religion.
(Sir David Calvert-Smith) Yes, so just at present,
624. I want to go back to the monitoring side
that we talked about. If you took any religiously-based offence
that has been committed, there are four points: when an individual
goes to the police; the second port of call would probably be
your Department; then they would go to the courts where you have
the magistrates, judges and juries. Would you accept the fact
that whatever way we frame the legislation on religious grounds
there will be a very big requirement for training at all these
four points where the case come up because there has been past
experience, probably going back ten or 15 years, where it was
necessary for magistrates to be trained on race issues? Would
you accept that whenever there is new legislation on religious
grounds that comes up we need to make sure that the training is
provided all along the line, otherwise the right questions and
the right manner of recording of information will not take place?
(Sir David Calvert-Smith) I agree entirely, if I may
625. In our question 7 we would seek your views
about the minority Law Commission suggestion. Would it be sensible
to say that this has to a large extent been overtaken by events
with the introduction of the Human Rights Act?
(Sir David Calvert-Smith) That would have been my
answer, yes. This is 1985. It is pre the Public Order Act, pre
the Crime and Disorder Act
626. And the Human Rights Act?
(Sir David Calvert-Smith) Pre ECHR and we wonder whether
the Law Commission definition would actually fall foul of ECHR
for lack of clarity.
627. Yes, Article 7.
(Sir David Calvert-Smith) I would not like to express
a decided view but I think there is a risk and certainly somebody
will challenge that on this ground.
628. We are going to be saying something about
Article 7 I think. The last point is this, and it is one of some
substance I think; if we are in doubt about the protection of
faith as such, which is the point about blasphemyany faith
or lack of faithbut we are going over to consider the question
of attacks on individuals or groups of individuals, there is nothing
left much to protect the faiths at all except the Ecclesiastical
Courts Jurisdiction Act 1860. That could be something which has
still got life in it. We are evidently seeing it being used less.
We are having the most terrible difficulty finding out the set
of circumstances and the sort of things that happen where it is
being used. I would have thought, for instance, when the pig's
head was put in the mosque in Exeter, it could easily have been
dealt with under that legislation rather than somewhat amazingly
under criminal damage. Have you got any views about this? Can
you give us any further details about the sort of circumstances
where this Act has been used and why it has been given up recently?
(Sir David Calvert-Smith) The first thing to say is
that I cannot prove this but I do not believe there has been any
giving up. I wonder whether the statistics you have been given
are really as up-to-date as all that. To say there have been no
prosecutions since is wrong. There was a very high profile prosecution
involving Canterbury Cathedral and Mr Tatchell in 2001 under this
Act. I am aware of a prosecution, I am ashamed to say I do not
know the result of it, I was not able to speak to the prosecutor
this morning, down in Cornwall because it just came up in conversation.
We do not keep statistics on our deployment of the Ecclesiastical
Courts Jurisdiction Act. I suspect, and both the two Alans suspect
that its deployment depends to a large extent on the erudition
of the prosecutor who is looking at the papers in a particular
case or the people at the desks around him when he is saying what
charge can we get this bit of behaviour under. I suspect that
a number of my employees might not immediately think of this Act,
but instead think in terms of the Public Order Act as might be
or, as you said, criminal damage. On the particular point of a
mosque, I am sure there is no clear law that this extends beyond
Christian churches, but I do not think there is a court decision.
629. It is if it is registered. It is covered
if it is registered, yes.
(Sir David Calvert-Smith) It is covered if it is registered.
630. Do you think therefore there is still mileage
in this legislation?
(Sir David Calvert-Smith) If I can just go on to that.
Aside Section 5 of the Public Order Act which is a fine only or
not imprisonable, it is below all the other sections of the Public
Order Act in terms of severity of penalty. It is a level one fine
which is £200 maximum and two months in prison. Whereas even
for Section 4, 4(a) we were discussing earlier it is six months
maximum and obviously for affray you can go to the crown court
three years or six months in the magistrates' court, so that it
is not a very strong weapon. As you know, the behaviour within
the Act is very widely described, from really very serious sounding
behaviour to annoying behaviour. So it is still used in some CPS
areas where it is clearly prevailingly something to do with the
practice of religion rather than public order which happens to
include reference to religion, but whether it is strictly necessary
631. Could I go back to what we were talking
about before. Perhaps it is not very widely known in all areas
of the prosecuting service and perhaps the penalties are too low
and the terminology is immensely archaic. If we wanted to send
out a message which went to faiths and tenets and the practice
of religions or indeed non religions, might it not be that this
could be rewritten and that would be Parliament sending a message
about this sort thing, perhaps the only thing left in the bastion
of faith field, but nevertheless valuable?
(Sir David Calvert-Smith) I think that is a very valid
point. There is value. We use it sufficiently often or have used
it in the past for it obviously to be the right offence to use
and a redrafted Section 2 would probably be a (albeit infrequently
used) valuable offence.
632. How many times has it been used in 2002?
(Sir David Calvert-Smith) I am ashamed to say, Lord
Avebury, we do not count ourselves. The Home Office count. All
I can say is that there are a number of cases I am aware of. If
they are saying there have been none since 2000, they are wrong.
That is why I am wondering whether you have got the up-to-date
statistics or whether the recording system is not as good as it
might be. I am afraid we only record particular types of crime
and this is not one of the categories. It would be impossible
for us to know, particularly as we destroy all files after 12
months unless they are particularly important or still live.
633. We do know about the Peter Tatchell Canterbury
Cathedral case. My recollection was that was in 2000 not 2001.
The Home Office told us that in the whole of 2001 there was one
case and that that was wrongly classified. They have warned us
that the statistics that they use are not reliable because of
mis-keying by people in the courts. Even taking those reservations
into account, the use of the offence does appear to have tailed
off from what the Home Office have said. There was only a single
case in 2001 and that turned out to be a wrong classification
and there have been none in 2002. Does it not appear therefore
that the prosecuting authorities, whether erudite or not, have
found some other statutes more appropriate to deal with conduct
of the kind in question?
(Sir David Calvert-Smith) I am sorry to say I do not
really know what the answer is to that. It might be that there
have been fewer offences. It might be, as I said just now, that
if you can mount a prosecution based on the Public Order Act that
is a more serious offence, more easily understood by magistrates,
and therefore an easier one to prosecute. There might be all sorts
of reasons for it. All I can say is that there has been no directive
from me or my policy division to say, "Thou shalt not prosecute
from now on under Section 2." There has been no conscious
decision going down to the field from the centre to say only use
the Public Order Act from now on.
634. Do you know about cases where people are
charged under the Protection Against Harassment Act as well the
Ecclesiastical Courts Jurisdiction Act. In the 2000 offences we
were only able to get details of the ingredients of two of them.
One of them concerned a person who entered a Catholic church in
Nottingham and made threatening remarks to the priest after the
end of the service. He was charged I think under both the Protection
Against Harassment Act and Ecclesiastical Courts Jurisdiction
Act but was convicted under the former. Does this indicate to
you that in some instances the prosecuting authorities will try
to have an each way bet and use of the Ecclesiastical Courts Jurisdiction
Act is convenient for them because it can be dealt with in the
magistrates' court whereas the others may have to go to the crown
(Sir David Calvert-Smith) That would depend on how
serious the other behaviour was. If it was Section 4 behaviour,
that stays in the magistrates' court. It cannot go up unless it
is aggravated. Obviously if it becomes an affray it can go up
to the crown court. I really think the cases are so few that it
would be very dangerous to infer a policy or a trend. One would
need to look at the individual case. Could you just give me one
moment, I have just been passed a note.
635. If the cases are as few as you say, and
it appears that they are dwindling to vanishing point, does that
not indicate that the prosecuting authorities are not finding
this a useful statute and would it not stick out like a sore thumb
if it were the only legislation on the statute book that specifically
deals with a religious offence as such?
(Sir David Calvert-Smith) If Lord Colville's analysis
is right and blasphemy goes and so on and that is only offence,
then so be it. As for sticking out like a sore thumb, there is
still a very substantial religious population in this country,
particularly a multi-religious population in this country, many
of whom would feel that their freedom of worship should be specially
protected. That is not really for me as a DPP to say, more as
a citizen. As I say, I do not think it would infer any trend one
way or the other in prosecutorial behaviour from a dip in the
figures. It may be that the experienced prosecutor in Truro has
recently retired and his colleagues simply go for public order.
The note that Alan has passed me is should we actually be reminding
our prosecutors of the existence of this section.
636. I hope not.
(Sir David Calvert-Smith) There are thousands of criminal
offences, some of them very abstruse. I have been in practice
for 32 years and I have never seen a case brought in my presence
under Section 2 of the Ecclesiastical Courts Jurisdiction Act.
637. You have given us some extremely useful
guidance on this and we will contemplate upon it. I promised you
that I would give you a minute or so if there were things that
were left undone out of our list and out of our questions. I think
we had better do that because we will be stopping in a moment.
(Sir David Calvert-Smith) I was only anxious to have
a chance to indicate that there are certain materials that might
interest you. I think I will leave with you or have sent to you,
if you are interested, the homophobic material, our case histories,
such as they are, on religiously aggravated offences and otherwise
638. And the monitoring material?
(Sir David Calvert-Smith) We can send you copies of
639. The trouble is that some of us are incapable
of working the Internet!
(Sir David Calvert-Smith) We will send it to you.
Otherwise, thank you very much, no, I have nothing.
Chairman: In our turn, thank you very much indeed
for what you have come to tell us. It has been very illuminating
and it was an area of great complexity to us. I will now seek
the rest of this material from the Attorney and then I think some
of the ecclesiastics may be rather clearer to us. You have helped
colossally this morning and I thank you all very much indeed.