Examination of Witnesses (Questions 580-599)|
THURSDAY 5 DECEMBER 2002
580. And you have got to take some view of the
(Sir David Calvert-Smith) Yes, absolutely.
581. And the public interest must include now
(Sir David Calvert-Smith) Yes, absolutely.
582. So you would have to form a preliminary
(Sir David Calvert-Smith) Yes.
583. And I think you have probably just expressed
what it might be.
(Sir David Calvert-Smith) I think I have. I hope I
Chairman: Could I go on to the Public Order
Act of 1986? We are well aware that this has been extended to
ethnic groups such as the Sikhs, Jews and the Romany gypsy travellers,
however the Court of Appeal described it, but not to anybody else.
Baroness Perry of Southwark: Irish travellers.
584. It may be Irish travellers. Anyway, I have
got the reference. There have not been very many prosecutions
under this. Do you know why not?
(Sir David Calvert-Smith) I can hazard more or less
informed guesses. First of all, we depend entirely on the police
bringing cases to us and the police depend on a chief constable's
decision whether simply to wait for somebody to come and complain
on the one hand or to go out and actively try and target by gaining
intelligence and catching offenders who are inciting racial hatred.
I suppose that one reason may be the fact that, certainly until
Lawrence and the first report, I would imagine that most
police forces did not go out and target this sort of offence but
waited for somebody to come and show them a leaflet or a report
of a particular speech or something that had been made and then
investigated it. You also then haveand this is, I stress,
not something I could possibly say I have direct knowledge ofthe
fact that this was new territory for investigators. The parameters
of the offence, which I will come to in a moment because I think
I can be more assertive about them, which talk in terms of hatred
which, as far as I know, are a new concept to the criminal law
whereas "threatening, abusive and insulting" we have
had for years, and the clear steer that we have given ourselves
(assisted by the courts), that "hatred" means a lot
more than dislike, contempt, ridicule, even hostility which, as
you know, is in the Crime and Disorder Acted aggravated provisions,
is that it really has got to be something very extreme for what
is after all somebody expressing themselves to pass the threshold
of criminality. I suspect that in a number of cases in which perhaps
some members of society, particularly those against whom the words
were directed, would have wished the police to take some action,
they have not. That is probably step one, reporting and investigation.
Step two is that we get cases in from the police and we have the
decision to make whether to put them up to the Attorney-General
or whether to say, "This is going nowhere. There is no possibility
here of conviction. We will not waste the Attorney's time."
In fact, we put up the vast majority of cases that the police
have brought to us, so that there has actually been very little
fall-out at all between the police bringing us a file and us passing
it on to the law officers. Those are the numbers that have emerged.
There are problems though, even post Lawrence when, particularly
in this city, active efforts have been made to target those who
do stir up race hatreds and a good deal of undercover activity
has gone on to try and identify perpetrators. It is very difficult.
Frequently they are sensible enough, if you like, only to use
the extreme language they use behind closed doors or avail themselves
of the defence. If it is written material it is often extremely
difficult for the police to bring sufficient evidence to identify
the actual author or publisher, and a number of those who are
really committed to the publication of racial material try to
make sure, I suspect by taking legal advice, that they stay just
the right side of the line. For all sorts of reasons therefore
I think that evidential, reporting and other factors play a part
but I do also believe that the word "hatred" is interpreted
as a very strong word indeed so that any attempt to stifle what
many people think of as legitimate debate does not find its way
into the criminal courts.
585. The other possible ingredient in this has
come from a number of our witnesses who say that there is a substantial
reluctance to report this sort of thing so it never gets to the
police in the first place.
(Sir David Calvert-Smith) I think that was part of
the point I made at the beginning. If police forces rely on people
to come and report that is an automatic limiting factor and only
if they decide that a problem is sufficiently severe in a particular
area or for a particular group will they devote resources from
what they might think of as mainstream activity into the detection
586. Could I ask a question on the meaning of
the word "hatred".? I do not know whether you saw the
guidance by the Attorney-General on how he was intending to exercise
the power that would have been conferred on him under the Terrorism
(Sir David Calvert-Smith) I did.
587. He pointed out that the higher courts have
never had any cause to give specific guidance as to the meaning
of the word "hatred" and that that suggested in practice
that the kinds of words and material that are threatening, abusive
or insulting are identifiable and that the courts would not have
had any difficulty with the specific interpretation of the word
"hatred" and, if they had, there would have been some
guidance on it.
(Sir David Calvert-Smith) The guidance reads, if I
am reading from the same passage as you,
(Sir David Calvert-Smith) "Hatred is a
strong word and as a matter of common sense is likely to be held
by the courts to mean something stronger than dislike, contempt
or ridicule", which I think matches what I said to you earlier,
but with the addition, I believe, of the word "hostility",
which I think again is less than "hatred". I think one
can be hostile to a person without necessarily hating them, or
hostile to a group without necessarily hating them.
589. We have seen material which calls for the
killing of members of groups. Would that be hatred? If you want
to kill someone you must hate them, surely?
(Sir David Calvert-Smith) Yes, and then one is into
the business which one is constantly faced with in offences under
section 16 of the Offences against the Person Act, of threats
to kill: did they really mean it, "I'll f---ing kill you",
590. Does that not have to be a specific person?
(Sir David Calvert-Smith) Of course it would, I quite
agree, addressed to Arsenal supporters at a Derby game or something.
The answer is yes, in many circumstances it will and if it is
sufficiently close to the people who might be killed and there
is any surrounding evidence incitement to murder is certainly
a possible charge, let alone any offence of incitement to stir
591. These particular offences under the Public
Order Act are designed to cope with the situation where there
is not an identifiable victim in sight because otherwise, as you
rightly point out, there is other legislation which comes into
play. Both in the case of the existing offence of incitement to
racial hatred and in any proposed offence of incitement to religious
hatred the point about the legislation is that it will deal with
conduct which is not specific, "Let us kill all the Muslims
in New Ham" or, "Let us drive all the Christians out
of this particular area". It is of a general nature like
that. Is it not possible, looking at individual statements, to
construct examples that would definitely fall within the category
of hatred because I do not see why there is much difficulty about
(Sir David Calvert-Smith) I do not think that if it
is as clear as that there is. We have prosecuted people on precisely
that basis when we have had the evidence. That accounts for some
of the cases within the admittedly small number of cases. I suppose
it may be worth saying that I hope it is not as common a crime
as most crimes that we deal with are. It is hardly everybody that
goes around behaving like this.
592. One of the difficulties that we have run
into, and you have already mentioned it, is that it is very difficult
to find out who it was that put the matter out, particularly if
it is on the internet.
(Sir David Calvert-Smith) Exactly.
593. One of your colleagues in the CPS pointed
out to us that for instance the British National Party internet
sight could be defended if there was a prosecution on the grounds
that it was for the information of members of the party and there
would be a sufficient doubt in the jury's mind for them not to
convict. Those are real problems, are they not?
(Sir David Calvert-Smith) Yes, they are.
Baroness Perry of Southward: I wanted to press
on the point that Lord Avebury made. Does it mean that there is
a quite important distinction between the words that people use
if they are words expressing their own feelings, "I hate
allwhatever", that category, and stepping beyond that
into, "Let us go and kill"?
Lord Avebury: Incitement.
Baroness Perry of Southwark
594. Yes. I have a lot of reservations about
making a criminal offence out of this. It may be extremely distasteful
and unpleasant and particularly unpleasant if one were the object
of the expression of hatred, but I have reservations about turning
it into a crime, going round saying you hate things. Teenagers
use it all the time but it is not hatred in the legal sense of
the word. I would be terribly worried about creating a law that
made that a crime.
(Sir David Calvert-Smith) Quite. I think in a previous
appearance before another committee in this House I said something
quite similar, and we are very wedded to the idea that people
can say what they like within reason, and a good thing too. I
am quite sure that prosecutors who have grown up over the last
ten, 20, 30, even 40 years will have seen the way that what we
see on television is very different from what we saw a few years
ago and that generally we are much freer to do, say, show whatever
things than we were a long time ago. That must inform, for instance,
our attitude (to change the subject completely but I think it
is relevant) to obscenity. When we get things in now to review
for the possibility of proceedings, and they seem
595. And the attitude of jurors.
(Sir David Calvert-Smith) Exactly. We attempt as it
were to move reasonably in scale with what we as citizens experience
before we walk into the office. Therefore, taking the ECHR on
board, which reinforces our right to say what we like within reason,
and speaking perhaps as a citizen rather than a prosecutor, I
agree with your point. The legislation though is drafted so that
it is not just the intention but the likelihood that hatred will
be stirred up which does move the law quite far in the other direction
because you do not even have to intend that racial hatred be stirred
up under the current law. It just has to be an objective fact
that it is likely to be stirred up by what you have to say, and
I suspect that that is the bit of the Act which police and prosecutors
would have most difficulty with.
596. There is an existing law. Society out there
has become highly sophisticated. The common people who probably
grew up understanding the law are not versed in the law and then
there are the sophisticated institutions, organisations who actually
go out there to create hatred and incite people. We have got are
very few prosecutions, and successful ones at that. Could one
of the reasons be that the fact that the law exists means that
fewer people are committing those offences and those that are
committing those offences are very knowledgeable about the law
as to where the line is? My question to you is, asa whole would
you rather have that law there perhaps to stop those that are
aware of the law from committing those offences and try and close
the loopholes that exist?
(Sir David Calvert-Smith) The points you made are
absolutely right, if I may say so. The sending of a very strong
message by the legislature to get through to a lot of people is
very important and hopefully will lessen the number of offences.
I did mention earlier that I believe one of the reasons we do
not bring many people to court may be that a lot of them take
legal advice before they put out their material and they get advice
that it is just the right side of the line, so that is absolutely
right. I am sorry to duck this one, but we say that we as prosecutors
would rather have the law and tighten up the loopholes, even if
it does not actually result in any prosecutions, than not have
one and rely on the general common law because it is not really
a question for a prosecution to venture a very strong opinion
on. All I can say is that even a dozen or 20 cases a year, all
of which will be reported at the very least locally, I am quite
sure, probably on the front page of the local paper, must assist
in sending a pretty strong message if the magistrates or the Crown
Court judge attach some fairly strong words to their sentencing
remarks about this sort of behaviour in this particular city.
That is perhaps not a prosecutorial point of view but it is certainly
one I think our local prosecutors would share.
597. My question relates back to the previous
short reference to the internet, but it also relates a little
to the conversation we were having at the beginning about football
matches. Would it be a defence for it to be said that you put
yourself in the position of being offended, ie, if you went into
the internet, if you logged on to that particular site of the
British National Party; therefore you had chosen as it were to
be offended, or if you had actually attended a football match
where you knew that offensive songs were to be sung, so that you
had not defended yourself against what was going to upset you?
(Sir David Calvert-Smith) I think the answer is that
under Part III that would not be a defence. I do not think it
would be relevant to a Part III offence. It might be relevant,
and it is certainly relevant to the chances of conviction, if
one were talking about a racially aggravated assault or something
where the defence would probably argue that you were asking for
it by going to the BNP meeting or, as it might be, a jury might
say, "Yes, maybe he was". I think we would still prosecute
in cases like that so I do not think it would be a defence as
such, but your chances of acquittal would probably grow in the
eyes of a jury or a bench of magistrates if people thought, "Why
did he put himself in that particular situation?".
598. Could I come back to aggravation because
on the subject of messages I do not know whether you have been
following the draft Framework Decision that is at the moment being
discussed by the Home Office, which is our question 3? At the
moment the pretext point has been brought in which merely seems
to make a prosecution even more difficult. I do not know if you
would like to comment on that, but in general, if this were to
turn itself into a much more broad proposition of hatred of all
sorts in English law, would you find that helpful in terms of
message? Would we be right to encourage the Home Office to go
ahead and try and make this as comprehensive as possible?
(Sir David Calvert-Smith) There are a number of questions
there. The first is, are we really up to speed with the Framework
Decision, and I am ashamed to say we are not. It seems to change
with such rapidity that I am not entirely confident that I am
aware of the current state of affairs although I think Alan Kirkwood
who sits next to me is.
599. Religion is probably going to get into
the main list.
(Sir David Calvert-Smith) I have the text of the British
pretext proposal which, coming to your next question, I have had
quite a long briefing on from these two gentlemen suggesting that
it would make our lives considerably more difficult as well as
the lives of the courts who were trying the case or explaining
to the jury that the religious aspect of it is really the pretext
for the racial aspect. It seems to us that if it is desirable
to carry out, as I assume the Government will think it is, the
Framework Decision, however it is finally drafted, something like
the provision put up in the Anti-Terrorism Bill or Lord Avebury's
Bill would deal with it more simply and effectively. I am not
really in a position, I do not think, to talk about Holocaust
denial or the other bits of the Framework Decision from a value
judgment point of view. That is a matter for others.