THURSDAY 27 JUNE 2002

MR PETER FAHY, MR DAVID TUCKER AND MR MARTIN BAINES

  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.

  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 seriously enough.
  (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 incident.

  146. As a racist incident, not as a religious incident?
  (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.

  148. In regard to these things that you have sent round, would that be an offence if nobody complained to you about it—if 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 it abroad.

  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 groups.

  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 enacted—then 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 and that.

  152. Given that the material is published—and 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 legislation—and you mentioned publishing from private dwellings and those sort of issues—the 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.

  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 intent.

  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 rights—if 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.

  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.