THURSDAY 5 DECEMBER 2002

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

  600. Never mind. We are going to pursue this and I wanted to get your view on it. Could I go back to aggravation? We have had this double set of legislation on making certain offences aggravated in order to put up the sentence. Of course it makes singularly little sense to look at it overall because where you have got offences carrying life imprisonment they have not been touched because they do not need to be. I saw, I think yesterday, that your office was considering the possibility of bringing in, I suppose by means of guidance from the Court of Appeal, aggravation in relation to homophobic offences without, of course, any necessity for legislation at all. Would it not be a great deal easier if all this aggravation legislation was left to guidance form the Court of Appeal and from the central judicial authorities?
  (Sir David Calvert-Smith) This was the debate that we had over the passing of the Crime and Disorder Act provisions when I was wearing a completely different hat. I think the decision has to be, is it best for Parliament (going back to the message issue) to be sending a very strong message, "We are so concerned about this area of crime and the fact that it is an aggravating feature that it is accompanied by racial hostility or, as it might be, religious hostility, that we want to pass a law saying that there will be a higher tariff sentence and a separate offence"? Is that so important that it needs to be set out like that, albeit that it does sometimes lead to difficulties? For instance, in some cases, a Crown Court judge listening to a case of assault or criminal damage might well come to the view that, having heard the evidence, he was convinced that there was a racial element to the offence and so find in passing sentence, whereas now, if we have charged it and the jury acquit on the basis that they, the jury, are not quite sure, - and juries do have a tendency to compromise; they know they can convict of the simple offence and it may be easier to do so—maybe we are losing the opportunity of giving that message to individual defendants in some cases because, if it is an assault and we have not charged it, then the court is unable in passing sentence to take the racial aggravation element. There are difficulties in the current schemes where you have, as you quite rightly point out, some offences which are outside and some which are inside the scheme. With offences which are outside the scheme, where the Crown think that there is some evidence of racial aggravation, what is the Crown to do? It is no part of its duty to prove the instant case, shall we say, of attempted murder or section 18. We do not need to prove motive to get our result, but we have in mind the fact that there is section 153 which requires the judge, if there is racial aggravation in the case, to impose a sentence. The judge then may hear from prosecuting counsel a case that not only did he pick on this person because he did not like him, or whatever it was, but he actually did it because he was Asian or black or whatever,. That is probably all there is in the case. There are difficulties that have accompanied it, both for practitioners and for judges. On the other hand, there is a very strong message that has gone out to the public at large that the Government feels so strongly about something that it is prepared to legislate to make sure.

  601. But not so strongly that you would advocate legislation for people who went in for homophobic attacks? You could do that under judicial control, could you not?
  (Sir David Calvert-Smith) We are constrained, Lord Colville, by the law. Our policy on homophobic crime was issued because, like a number of categories or types of offence, homophobic crime is very under-reported, for reasons we can all understand, that or very under-prosecuted, and far too few people are convicted of such offences. The message we were trying to get across was not that we were trying to change the law in any way, which we cannot, but that we will treat victims sensitively, that we will look sensitively at the fact that they may themselves have committed some minor offence and we will not simply make them defendants automatically and that we will support them as best we can to get their evidence to court. We do regard it within the framework of the code of Crown prosecutors as an aggravating feature when we are applying the public interest test with one of the factors in favour of against prosecution. One of the factors in favour of prosecution is that you have picked on somebody because he or she is old, very young, sexual orientation, race, any particular feature which makes it in our eyes more desirable to prosecute.

  602. But it is another message, is it not?
  (Sir David Calvert-Smith) Oh yes.

  603. And particularly if the sentencing remarks include something about it.
  (Sir David Calvert-Smith) Right.

  604. Is this guidance that has been issued by your office applicable to the same range of offences as can be religiously or racially aggravated?
  (Sir David Calvert-Smith) We would say that any offence that is committed against a person because they are being picked on because of their sexual orientation or whatever is to some extent an aggravating feature. We have not sought to limit it in the guidance, and I am very happy to leave it with you if you would like to see it, or send more copies.

  605. Please.
  (Sir David Calvert-Smith) We have not limited the sorts of offence, but mainly it is offences of violence, of course.

  606. Could I also ask whether section 4 or 4(a) of the Public Order Act could be used to prosecute people who publish or perform songs which incite people to kill gay people?
  (Sir David Calvert-Smith) Yes.

  607. It could?
  (Sir David Calvert-Smith) Yes, I am sure it could. I will quickly look up section 4 and 4(a) again to remind myself of their terms. I have got it here somewhere. I am confident that those provisions could be used, yes.

  608. Are you aware of the lyrics of certain songs which have been performed and broadcast which do incite people to kill gay people and, if so, why have no prosecutions been brought against the performers or the publishers of those particular lyrics?
  (Sir David Calvert-Smith) I do not believe we have ever been sent a file by the police asking for our views or to bless a decision to prosecute any such case.

  609. There you are, Lord Avebury. You had better get it started.
  (Sir David Calvert-Smith) I cannot initiate prosecutions. I do not have that right—yet.

  (Sir David Calvert-Smith) In your opinion would it be possible to add religious aggravation without defining religion?

  (Sir David Calvert-Smith) I think that is a very difficult question. Many of our concerns when the religiously aggravated provisions were enacted last year were how easy is it going to be for us, where we are dealing with aggravation because of no religion and so on. In fact, we have not had a problem. We have never yet received a file where the allegation from the police or a file within which any evidence was disclosed that we can advise the police on where the religious aggravation was, for instance, to an atheist or an agnostic. We have actually only had 11 such cases in for prosecution, so one a month, I suppose, since the Act was passed. Again, if the Committee were interested, I could give them details of the allegations of the sorts of circumstances because I personally asked for every such case to come across my desk so I could see how the Act was working out.

  610. Of the 11 cases you referred to how many have been concluded?
  (Sir David Calvert-Smith) Five have been concluded although one still awaits sentence. The others are still awaiting trial.

  611. But in those five cases that landed up in the court as it were, was the issue of defamation of religion a problem?
  (Sir David Calvert-Smith) Never a problem.

  612. No problem at all?
  (Sir David Calvert-Smith) That is why I say that we were very worried about it, and I think theoretically it is still a worry, but it has not yet. It has been perfectly clear. The victims have either been picked on because they were Muslims, Sikh or in one instance a Jehovah's Witness and in another somebody who was a devout Christian.

  613. Any details of those you can send us would be extremely welcome. Could I move on to the questions that I know you will not answer? Is there anything that you can say about any of these points? They are of great concern to us, not least, I may say, in question 6, the annual report, with all sorts of massive documentation that has been asked for by a number of witnesses. We have got a lot of annual reports around in Parliament. I was just wondering how feasible this is. You would obviously have to have a large input into it.
  (Sir David Calvert-Smith) Of course we would. I really think I have got to push back to you 4 and 5.

  614. I understand that.
  (Sir David Calvert-Smith) I do not see, if there are any particular questions on the guidance which was put out, which Lord Avebury referred to earlier, to accompany the original suggestion of incitement to religious hatred, if there any particular points — On question 6 I think it would be right to say this. We would very much doubt whether a list coming from the Attorney-General of his cases would give you or the public at large a very complete picture of what is going on for the reasons partly that I mentioned when I started. The Attorney will not know how many people have not reported, how many people have reported but the police have decided to take no further action, necessarily how many cases that we have received. We would expect, however, if there were such legislation, that within a few years the inspectorates might be asked by the Attorney-General to look across the spectrum at police, the Crown Prosecution Service and indeed perhaps the courts, to see how the legislation has worked in practice and whether there are any improvements, just as we have had in the recent past a joint inspectorate report into the prosecution of cases with a racial dimension a few years on from the introduction of the legislation. There is a huge groan which goes up from CPS areas every time another report is called for. They frequently find that they do not get much benefit from them and it is a lot more work and it takes them away from other duties, so if there is a better way of doing it then I think we would urge that. I cannot speak for the Attorney himself on this.

  615. Can you think of a better way of doing it? You say there might be a better way of doing it. How would you measure the effectiveness of the legislation?
  (Sir David Calvert-Smith) If you were, a few years down the line, to engage, as we did with racially aggravated offences, Her Majesty's Inspectorate of Constabulary to see what is happening at the police end of things, the CPS Inspectorate, the Magistrates Courts Service Inspectorate as it now is, possibly devolving into a court service inspectorate if the new legislation, the Criminal Justice Bill, goes through amalgamating the courts into a single entity, you could then look at the process from one end to the other and see how it is working, and obviously engage such people as Victim Support and other groups who support victims.

  616. Can you see any benefit, or indeed any practicality, in going in for monitoring of who it is who is the victim, whether it is in terms of race, colour, creed, religion or anything like that? It is a very popular pastime in Parliament at the moment. Do you think it is something you could usefully do?
  (Sir David Calvert-Smith) We are doing it. Alan is almost the father of our racial incident monitoring scheme within the CPS which I think is very sophisticated and getting even more so in our team which we will be able to deploy in the future so that we are able to produce statistics on a yearly basis and on an area by area basis and publish. As to the racial incidents which the police have identified, that we have identified, whether we charge them as racially aggravated crimes or not, and right at the end of the day whether court indicated in its sentencing that it had or had not and by how long increased the sentence, we have done that. It arose from pre-Norris in 1996, Alan tells me, before I came and he was here. We do it and we do think it important and it has enabled us to identify trends, areas which do not seem to be doing quite as well as other areas, and so on. We have not been sophisticated enough yet. We do not record the categories of victim or defendant. We do not have the 16 categories but we will be able to because with IT that is coming on stream we will get that straight from the police into our IT system.

  617. Is it in the public domain now?
  (Sir David Calvert-Smith) Our racial monitoring figures are in the public domain. We publish them.

  618. I think we have not had them. It would be very helpful if we could have them.
  (Sir David Calvert-Smith) They are published.

  619. Are they on the website?
  (Sir David Calvert-Smith) Yes, on our CPS website.

  Baroness Perry of Southwark: As I understand it there are two bits of the Human Rights Act which relate to religion, that is, Article 9, obviously, which does not define religion and which gives people the freedom of their religion, whatever that religion is, and it is, I think, the sixth protocol which also gives freedom from discrimination again on any grounds, whether religious or racial—

  Lord Avebury: That is not in.