Examination of Witnesses (Questions 660-679)|
THURSDAY 16 JANUARY 2003
QC, MP AND MS
660. And also, even if you were in theory subject
to judicial review, there would have to be a finding that you
should be judicially reviewed before you would have to go and
(Lord Goldsmith) Yes. So far as reasons are concerned,
I would just say this: I indicated in my written memorandum that
I always try to be as helpful as I can. I get requests in relation
to all sorts of cases from members of the public and from Members
of Parliament in both Houses and I always try to be as helpful
as I can. Sometimes it is not easy for a prosecutor to give very
much information as to why a case is not being proceeded with
because of implications. If I take an entirely different area,
for example if there is a decision not to proceed with a rape
case, the reason for it might be because the prosecutor has taken
the view on good grounds that the complainant is simply a wholly
unreliable witness for certain reasons, but to make that public
might not be very desirable for the interests of the complainant.
There are all sorts of reasons. Generally speaking, my approach
in relation to prosecutions where there is not a prosecution is
it is desirable for prosecutors to explain as far as they can
what the circumstances are.
661. You have said twice that Parliament has
laid down the line which defines the extent to which this legislation
complies with Article 10(2). I am not sure that I have seen them
doing so. To what are you referring?
(Lord Goldsmith) They could have said in relation
to Part III of the Public Order Act that freedom of expression
is so important that people should be allowed to say anything
they want in this area. They have not, they have said no. Freedom
of expression will not go so far as to allow somebody to use insulting
or threatening behaviour or words with the intention or which
may have the effect under certain circumstances of inciting racial
hatred. It seems to me there is a balancing act to be done. Freedom
of expression is not absolute and certain conduct which incites
racial hatred is not permissible. This is what we say it is and
those are the elements that Parliament has laid down.
662. That was in 1986. This matter arose again
at the end of 2001 and they adopted exactly the same formula.
I do not see any parliamentary indication of where the line is
to be drawn.
(Lord Goldsmith) Parliament did not accept it, this
Committee is looking at where the line should be. I was of the
view at the time the Bill was being debated, and I remain of the
view, that the line remains in the right place, but that is my
663. It applies more to clause 2 of the Religious
Offences Bill than it does to section 39 of the 2001 Act, but
the illustration you have just given does also to some extent
apply to section 39 of the 2001 Act, what is threatening and abusive
(Lord Goldsmith) Yes.
664. Do you think that Parliament has in fact
given us some sort of dividing line or indication where it should
(Lord Goldsmith) I believe that whenever Parliament
legislates to create a criminal offence where it relates to what
people in any way are saying, then that involves a balance as
between free expression and between unlawful conduct, and the
same analogy applies in many other offences as well. When Parliament
says that police officers under certain conditions may enter your
premises in order to search them under certain safeguards, Parliament
is saying where the line is to be drawn in relation to the right
to enter. There will be certain ways in which that can be exercised
that will go beyond the lineto do it in the middle of the
night with 24 armed officers, whatever it may be, and I give an
example which may be appropriate or may not be appropriate. I
am simply saying that the starting point as a matter of constitutional
theory is that the limitations and the qualifications in the articles
which give rise to the basic rights are primarily for the democratic
powers to determine where the limits should be and of course the
European Court will allow a margin of appreciation in settling
665. If it goes to Strasbourg, yes, but there
is no margin of appreciation in the domestic court.
(Lord Goldsmith) It is not called margin of appreciation
but it amounts to much the same thing, for example in R v DPP
ex parte Kebilene (2002) 2AC326,
where it is well recognised by the domestic courts that there
is an area within which the courts will defer to the decision
of democratic bodies, and there is a considerable body of case
law which accepts this. It is not called margin of appreciation
because margin of appreciation technically can only apply to a
supra-national body but it has much the same impact.
666. I do not know whether you would like to
commentand I will open the floor to my other colleaguesbecause
there is one more thing I wanted to ask you. Supposing we have
got clause 2 of the Religious Offences Bill on the statute book
and you give your consent to a prosecution. Ultimately, it is
going to be a matter for a jury, is it not, to decide to what
extent if at all this has crossed the line which is set by way
of qualification in Article 10(2), and the difficulty about that
is one is never going to know why they have said nay or yea that
it did cross the line?
(Lord Goldsmith) I am not sure I do see it that way.
I would anticipate in such a case that the trial judge would direct
the jury as to what the ingredients of the offence are. In directing
them as to what the ingredients of the offence are, he would,
no doubt, explain to them how serious the conduct has to be to
constitute hatred in doing that. He may well be influenced by
his understanding of the Convention rights. I would not anticipate
that a judge would put to a jury, "And when you have decided
whether all these elements are present, you still have to decide
for yourself whether you think this offence is legitimate in a
democratic society in order to protect the rights of others."
I think that is the judgment that Parliament has made, and that
is why I say that is the starting point.
Chairman: That is very illuminating, thank you.
I think other of my colleagues have got questions that they would
like to ask.
667. Could I just pick up on one point which
is not directly in the debate we have been having so far but about
which you have made a passing reference, and that is the aggravated
element of the offence. I wonder if I might ask you this: in the
1998 Crime and Disorder Act and also in the Anti-Terrorism, Crime
and Security Act of 2001 the device that has been adopted by Parliament
has been to incorporate into the offence the aggravated element
so that the prosecution, so to speak, pleads and proves the aggravation
and if it fails it is open to the jury to return a verdict in
respect of the offence without the aggravation. Another way of
dealing with the problemand I accept that this may be a
bit of an old chestnut debate - would simply be to increase the
maximum penalty for the offence, and in some cases that is not
possible because it already carries life imprisonment, in fact
it does in many cases, and simply to leave to the sentencing tribunal,
in accordance with the public discussion we have been having in
the past couple of weeks that you have very familiar with, a decision
which would take account of the presence or absence of the aggravating
factors in the particular offence and in the circumstances of
that case. Clause 2 of this Bill, which in effect is concerned
with incitementand forgive me for the length of the question,
this is the slightly complicated thing to get acrossand
one of our concerns in our deliberations, I am sure, is going
to be the complications associated with charging somebody in the
context of an aggravated offence. I was just wondering for myself,
but I think it would help our discussions privately, what your
views were as to whether or not you were committed, so to speak,
to the expression "intention" that aggravation was the
way, or whether you think that maybe there might be some merit
in, to be quite blunt about it, abandoning the aggravation approach
and going back to the concept and leaving it to the judge to decide
within the wide range of the maximum penalty available to him
under the statute in any event.
(Lord Goldsmith) I think there are questions of principle
and practicality which affect one's view of the choice between
two alternatives. One alternative is to say you can leave it to
the courts to see what are the aggravating features of any sort
and to adjust the sentence accordingly. I would expect of course
any informed court these days, in the sense of appreciating that
the elements were present, to take account of a racist motive,
of a motive which was homophobic or any of that sort of thing
in saying this aggravates the offence and therefore the offence
should be treated more seriously. That is one alternative. The
other alternative is to create a separate offence. I do not think
it quite applies in relation to incitement. I do not think you
could have an aggravated form of incitement but you could certainly
have an aggravated form of assault or something of that sort,
as indeed we do. My own view is that there are advantages in having
a separate offence as a matter of principle because it enables
Parliament to send a very clear and loud message that particular
conduct is not going to be tolerated. By making it a separate
offence with a more significant punishment then it is said very
clearly that this is conduct that will not be tolerated. It may
be that in certain cases it would not have made any difference
in sentencing because the judge would have reached that route
himself. That is the question of principle. I happen to favour
the view that sending a strong message by making it part of the
statute is a good thing. There are practical issues as well. For
example, if you as a prosecutor were prosecuting an offence of
assault, the motive of the assault would not be a necessary ingredient
of the conduct, so although you might bring out in the course
of your evidence that this happened in a racist contextand
that might happen quite frequently because the story told would
have been of a fight outside a club and the language that was
used would come into evidence so it might be apparent but in other
cases it might not be apparentit would not be for the prosecutor
to introduce evidence which was not relevant to the offence, so
he might feel that it was not necessary to adduce that evidence.
That is one practical consideration. There is a practical consideration
which I think Sir David Calvert-Smith drew attention to when he
gave evidence and that is if you do charge the aggravated version
of the offence and the jury acquit on that but convict of the
lesser version of the offence (and sometimes juries do take what
might seem to be a compromise position) it would be hard for the
sentencing judge in those circumstances to take into account conduct
which by their verdict the jury had ruled out. By acquitting of
the aggravated version of events they are really saying they are
not satisfied it was motivated by racist or religious intention.
My answer is I think the message point makes it justifiable to
create a second offence, and that is what I would do.
668. But it is not the only way to do it though?
(Lord Goldsmith) No, you can leave it to the judge
to take into account the aggravating features when the sentence
comes to be passed. In another recent guideline case, not the
one that has been particularly noted in the newspapers but in
relation to rape cases, that set out in detail what the aggravating
features may be, that it involves a young woman, girl, abduction,
those sort of things, so it is possible to set out aggravating
features without having a second offence.
669. Those were rape cases.
(Lord Goldsmith) Millberry, yes.
670. And there was a case with Mr Justice Salmons
going back a long, long time where a race element had emerged
and he made a special announcement at the time of the trial after
conviction that he was imposing a heavier sentence by reason of
the racial overtones in a particular case. That is a perfectly
effective way of communicating the message, is it not?
(Lord Goldsmith) The question is which is more effective
and Parliament took the view in relation to these offences it
was more effective to have a clear statement by having it on the
face of the legislation rather than waiting for a judge to do
it. One can take a different view; I happen to think Parliament
was right in doing that.
671. The general question of hate crime has
been dealt with by ACPO and they developed guidance for police
officers. It is mentioned in an answer given to me by Lord Falconer
just before Christmas. They issued this guidance under the title
"Identifying and Combatting Hate Crime". There seemed
to be a movement towards treating all kinds of hate crime on an
equal footing as exemplified by the Metropolitan Police's campaign
The Public Speak Out where they refer to not just racial and religious
hate crime but sexual orientation, disability and domestic. Is
that an approach which the Government favours so that when offences
are aggravated in any one of these different ways they can be
dealt with by the court imposing higher sentences if evidence
is drawn to their attention showing that that was an ingredient
of the offence?
(Lord Goldsmith) Certainly courts can and would in
appropriate cases, I have no doubt, be encouraged to do so. I
slightly hesitate at saying that it is government policy or that
it is government policy to tell judges how they should sentence,
that is a rather delicate and sensitive area, but for example
I think the Committee has seen or has had drawn to its attention
guidance issued by the Crown Prosecution Service in relation to
homophobic crime indicating there that a homophobic motive may
well be an aggravating feature and therefore ought to be drawn
to the attention of the judge so the judge can, we would hope,
take that into account if he found the element present as an aggravating
feature affecting the sentence.
672. Has the Government formed any opinion as
to whether or not homophobic aggravation should be brought into
the criminal calendar in the same way as race and religion already
are under the 2001 Anti-Terrorism, Crime and Security Act?
(Lord Goldsmith) In the sense of having a specific
set of offences that are aggravated, so far as I am aware there
is no present proposal to legislate to introduce offences which
are specifically aggravated by virtue of there being a homophobic
673. Do you think it would be logical (and technically
that appears to be the line the Metropolitan police are taking)
to treat all crimes aggravated by hatred against different groups
on the same footing with one another?
(Lord Goldsmith) I certainly think it is logical to
recognise that there are elements of all of these crimes in common
and the practical approach then to investigating and prosecuting
them needs to draw on the experience of others. There are very
good examples, for example, of hate crime units, one in Brighton,
which have drawn on experience in one field and which look at
homophobic crimes, racist crimes, and so forth. I think that is
important and logical, and to that extent I entirely understand
why the Metropolitan Police put a number of offences together
under the heading of "hate" crime.
674. Does the Government have any views on the
expansion of the European Commission's Draft Council Framework
Decision on racism and xenophobia possibly to cover the same areas
that are covered in the Employment Directive, which you mention
in a letter of recent date, and has the Government made any submissions
to the Commission on these matters, because I understood that
the Government had originally withheld consent to the inclusion
of religion in the racism and xenophobic decision, partly on the
grounds that this Committee is looking at the question of religion
and they did not want to pre-empt the findings?
(Lord Goldsmith) If you will allow me, my Lord Chairman,
I will write to the Committee with an answer to Lord Avebury's
question which I cannot properly give sitting here today without
more detailed briefing than I have.
Chairman: Mr Attorney, this matter does change
from day to day. So far as we are concerned we have clear evidence
from the Home Office that it is not going to interfere with our
deliberations if they include religion as one of the grounds before
it, but we are very happy to hear from you in writing on this.
Baroness Massey of Darwen
675. You sent a memorandum to Lord Colville
on 2 January which I found really clear and helpful, thank you.
Under the section on the annual report issue which the Lord Chairman
mentioned earlier, you say in paragraph 2 at the end that: "As
we learned with racial hatred offences, it is the response of
the whole criminal justice system from the moment an offence is
committed, to the sentencing stage, which needs to be transparent.
It is a mistake to take sections of the process and try and draw
useful conclusions from the information." Is this issue of
transparency a problem? For whom is it a problem and how do we
(Lord Goldsmith) What that sentence was intended to
convey is that in order to understand what problems there may
or may not be in relation to prosecution of particular forms of
conduct, one has got to look at the whole of the process and to
focus on just one element may give a misleading impression. By
referring to transparency I was really indicating one therefore
needs to look at the whole of the response. What we have tried
to do in relation to offences which may have a racist motive is
actually ask the Crown Prosecution Service Inspectorate to look.
I cannot recall, and again I need to clarify whether this was
a joint inspectorate report,
but in any event a system which enables one to look at the entirety
of the process is more valuable than looking simply at a single
676. I tend to agree with the earlier statement
that you made about the government and Parliament making it clear
that these are the clear lines beyond which you will not go, but
surely there is another side to it where you sit there having
to take a decision whether the case should go forward or not.
Every time you have to take the decision and you are about to
weigh it up in your own mind as to what will be the circumstances,
going back in the case, you did not allow the prosecution to go
forward, every time you do that when you are dealing with religious
and racial issues you are probably passing back a signal to the
community saying what is the use of taking these matters forward
because we never get there. Having made that statement, the point
I want to ask you is would you allow for the benefit of doubt,
so if you are uncertain in your mind, it to go forward rather
than stop it there?
(Lord Goldsmith) I would repeat, if I may, the first
question is: is there evidence to justify a prosecution. The code
for crown prosecutors, which would be my starting point as well,
requires two tests to be satisfied before a prosecution is brought.
First of all, is there sufficient evidence to prosecute, is there
a realistic prospect of conviction? That is the test that is applied
by all prosecutors up and down the country. If the evidence is
not there, however strong the public interest might be in one
sense because of the seriousness of the matter, then it does not
go forward. I happen to think that is absolutely right. I think
it would be quite wrong for us to bring prosecutions against people
where there is no realistic prospect of conviction. That is the
principal reason why cases have not proceeded, there has been
an insufficiency of evidence. I do not think I am sending any
message back or the Crown Prosecution Service is sending any message
back by saying simply there is not the evidence there on which
to prosecute. That is a problem and that is what we would like
to try and handle.
677. Is that not a subjective view if the Attorney
General takes that view?
(Lord Goldsmith) No, it is not, and it is not necessarily
my view either. It is the decision of, first, the police who investigate
and then the Prosecution Service, and then my decision. It is
an objective question of whether or not there is adequate evidence
to demonstrate that this particular person is responsible, for
example, for disseminating, for example, this particular piece
of paper. There will then be other questions that arise as to
what that piece of paper does and what was the intention of the
person distributing it. This is no more subjective than the decision
which is taken every day should somebody be prosecuted for shoplifting
or rape or murder. In each case does the evidence demonstrate
a realistic prospect of conviction?
678. Just to follow up on what Lord Grabiner
has asked you and indeed what Lord Avebury has asked. One of the
problems that is going to confront us is if you pick out one of
the aggravating features, as has been done in the 1998 Act to
some extent, and the 2001 Act, you give it a prominence which
it may not in fact bear by comparison with the other aggravating
factors. We have heard a great deal about sending messages and
we know very well that there is a value in Parliament sending
messages, but is it not invidious to chooseand you refer
to the Milbury caseone out of seven aggravating
cases which is in fact racial and give that Parliamentary blessing
when the other ones are all discarded simply to the discretion
of the judge?
(Lord Goldsmith) I do not think so. I think if one
looks at this in an historical context, it has not been necessary
to tell any member of the public or any member of the law enforcement
agencies if you cause somebody serious injury that is more serious
than causing them a minor injury. I am not so sure that it has
been so obvious in the past that having a racist motive is a seriously
aggravating feature. Perhaps part of education for everybody,
for all of us has been to send a clear message in relation to
that. That is the immediate response I give to the question, not
one, I have to say, I had considered before. My immediate response
is no, it is not inappropriate to single out a particular feature,
and it is a very important feature and one that does have to be
emphasised. I have got absolutely no doubt that judges will not
fail to consider the other features in any event when it comes
to setting the sentence.
679. Of course they will have parliamentary
guidance to consider matters like homophobia, which has just been
mentioned and upon which attention is now being focused.
(Lord Goldsmith) That is true.
Chairman: Have any of my colleagues got any
questions to add?
1 Stott (Procurator Fiscal, Dunfermline v Brown
(2002)) 2WLR817. Back
The review of casework having a minority ethnic dimension was
conducted by HM CPS Inspectorate and published in April 2002. Back