THURSDAY 5 DECEMBER 2002

SIR DAVID CALVERT-SMITH, MR ALAN KIRKWOOD AND MR ALAN BACARESE

  580. And you have got to take some view of the public interest.
  (Sir David Calvert-Smith) Yes, absolutely.

  581. And the public interest must include now the ECHR.
  (Sir David Calvert-Smith) Yes, absolutely.

  582. So you would have to form a preliminary opinion.
  (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 have.

  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 have—and this is, I stress, not something I could possibly say I have direct knowledge of—the 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 of this.

  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 Act.
  (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,—

  588. 5(.4.
  (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", or whatever.

  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 up hatred.

  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 the concept?
  (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 all—whatever", that category, and stepping beyond that into, "Let us go and kill"?

  Lord Avebury: Incitement.

  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.