THURSDAY 5 DECEMBER 2002

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

  620. —or sexual or whatever. Have you done any similar monitoring on that to find out whether people have been using that as a protection for their religion? Have either of those been used in that way?
  (Sir David Calvert-Smith) The short answer, I am afraid, is no, we have not. We have no statistical basis for analysing defences if you like. We simply do not have any figures at all.

  621. If I turn that round and say that if somebody were to claim that they were being discriminated against on religious grounds or if they were to claim that they were being denied their freedom of religion, would you then pass that through?
  (Sir David Calvert-Smith) Only if it came through as a criminal offence from the police.

  Baroness Perry of Southwark: Would you consider it was a criminal offence if I were able to show that somebody had denied me my freedom of religion?

  622. That is the whole point of the Framework Decision, is it not, in order to introduce this into the criminal law?
  (Sir David Calvert-Smith) Exactly.

  Baroness Perry of Southwark: To take it away from the body thing and make it—

  623. No. It is too prompt. There is going to be a European Union directive which is in the civil sphere. It may not be wide enough at the moment. There is also the criminal Framework Decision which will introduce as a criminal offence insulting and various other behaviour threatening violence, on any of the discrimination grounds which we hope will include religion.
  (Sir David Calvert-Smith) Yes, so just at present, no.

  624. I want to go back to the monitoring side that we talked about. If you took any religiously-based offence that has been committed, there are four points: when an individual goes to the police; the second port of call would probably be your Department; then they would go to the courts where you have the magistrates, judges and juries. Would you accept the fact that whatever way we frame the legislation on religious grounds there will be a very big requirement for training at all these four points where the case come up because there has been past experience, probably going back ten or 15 years, where it was necessary for magistrates to be trained on race issues? Would you accept that whenever there is new legislation on religious grounds that comes up we need to make sure that the training is provided all along the line, otherwise the right questions and the right manner of recording of information will not take place?
  (Sir David Calvert-Smith) I agree entirely, if I may say so.

  625. In our question 7 we would seek your views about the minority Law Commission suggestion. Would it be sensible to say that this has to a large extent been overtaken by events with the introduction of the Human Rights Act?
  (Sir David Calvert-Smith) That would have been my answer, yes. This is 1985. It is pre the Public Order Act, pre the Crime and Disorder Act—

  626. And the Human Rights Act?
  (Sir David Calvert-Smith) Pre ECHR and we wonder whether the Law Commission definition would actually fall foul of ECHR for lack of clarity.

  627. Yes, Article 7.
  (Sir David Calvert-Smith) I would not like to express a decided view but I think there is a risk and certainly somebody will challenge that on this ground.

  628. We are going to be saying something about Article 7 I think. The last point is this, and it is one of some substance I think; if we are in doubt about the protection of faith as such, which is the point about blasphemy—any faith or lack of faith—but we are going over to consider the question of attacks on individuals or groups of individuals, there is nothing left much to protect the faiths at all except the Ecclesiastical Courts Jurisdiction Act 1860. That could be something which has still got life in it. We are evidently seeing it being used less. We are having the most terrible difficulty finding out the set of circumstances and the sort of things that happen where it is being used. I would have thought, for instance, when the pig's head was put in the mosque in Exeter, it could easily have been dealt with under that legislation rather than somewhat amazingly under criminal damage. Have you got any views about this? Can you give us any further details about the sort of circumstances where this Act has been used and why it has been given up recently?
  (Sir David Calvert-Smith) The first thing to say is that I cannot prove this but I do not believe there has been any giving up. I wonder whether the statistics you have been given are really as up-to-date as all that. To say there have been no prosecutions since is wrong. There was a very high profile prosecution involving Canterbury Cathedral and Mr Tatchell in 2001 under this Act. I am aware of a prosecution, I am ashamed to say I do not know the result of it, I was not able to speak to the prosecutor this morning, down in Cornwall because it just came up in conversation. We do not keep statistics on our deployment of the Ecclesiastical Courts Jurisdiction Act. I suspect, and both the two Alans suspect that its deployment depends to a large extent on the erudition of the prosecutor who is looking at the papers in a particular case or the people at the desks around him when he is saying what charge can we get this bit of behaviour under. I suspect that a number of my employees might not immediately think of this Act, but instead think in terms of the Public Order Act as might be or, as you said, criminal damage. On the particular point of a mosque, I am sure there is no clear law that this extends beyond Christian churches, but I do not think there is a court decision.

  629. It is if it is registered. It is covered if it is registered, yes.
  (Sir David Calvert-Smith) It is covered if it is registered.

  630. Do you think therefore there is still mileage in this legislation?
  (Sir David Calvert-Smith) If I can just go on to that. Aside Section 5 of the Public Order Act which is a fine only or not imprisonable, it is below all the other sections of the Public Order Act in terms of severity of penalty. It is a level one fine which is £200 maximum and two months in prison. Whereas even for Section 4, 4(a) we were discussing earlier it is six months maximum and obviously for affray you can go to the crown court three years or six months in the magistrates' court, so that it is not a very strong weapon. As you know, the behaviour within the Act is very widely described, from really very serious sounding behaviour to annoying behaviour. So it is still used in some CPS areas where it is clearly prevailingly something to do with the practice of religion rather than public order which happens to include reference to religion, but whether it is strictly necessary—

  631. Could I go back to what we were talking about before. Perhaps it is not very widely known in all areas of the prosecuting service and perhaps the penalties are too low and the terminology is immensely archaic. If we wanted to send out a message which went to faiths and tenets and the practice of religions or indeed non religions, might it not be that this could be rewritten and that would be Parliament sending a message about this sort thing, perhaps the only thing left in the bastion of faith field, but nevertheless valuable?
  (Sir David Calvert-Smith) I think that is a very valid point. There is value. We use it sufficiently often or have used it in the past for it obviously to be the right offence to use and a redrafted Section 2 would probably be a (albeit infrequently used) valuable offence.

  632. How many times has it been used in 2002?
  (Sir David Calvert-Smith) I am ashamed to say, Lord Avebury, we do not count ourselves. The Home Office count. All I can say is that there are a number of cases I am aware of. If they are saying there have been none since 2000, they are wrong. That is why I am wondering whether you have got the up-to-date statistics or whether the recording system is not as good as it might be. I am afraid we only record particular types of crime and this is not one of the categories. It would be impossible for us to know, particularly as we destroy all files after 12 months unless they are particularly important or still live.

  633. We do know about the Peter Tatchell Canterbury Cathedral case. My recollection was that was in 2000 not 2001. The Home Office told us that in the whole of 2001 there was one case and that that was wrongly classified. They have warned us that the statistics that they use are not reliable because of mis-keying by people in the courts. Even taking those reservations into account, the use of the offence does appear to have tailed off from what the Home Office have said. There was only a single case in 2001 and that turned out to be a wrong classification and there have been none in 2002. Does it not appear therefore that the prosecuting authorities, whether erudite or not, have found some other statutes more appropriate to deal with conduct of the kind in question?
  (Sir David Calvert-Smith) I am sorry to say I do not really know what the answer is to that. It might be that there have been fewer offences. It might be, as I said just now, that if you can mount a prosecution based on the Public Order Act that is a more serious offence, more easily understood by magistrates, and therefore an easier one to prosecute. There might be all sorts of reasons for it. All I can say is that there has been no directive from me or my policy division to say, "Thou shalt not prosecute from now on under Section 2." There has been no conscious decision going down to the field from the centre to say only use the Public Order Act from now on.

  634. Do you know about cases where people are charged under the Protection Against Harassment Act as well the Ecclesiastical Courts Jurisdiction Act. In the 2000 offences we were only able to get details of the ingredients of two of them. One of them concerned a person who entered a Catholic church in Nottingham and made threatening remarks to the priest after the end of the service. He was charged I think under both the Protection Against Harassment Act and Ecclesiastical Courts Jurisdiction Act but was convicted under the former. Does this indicate to you that in some instances the prosecuting authorities will try to have an each way bet and use of the Ecclesiastical Courts Jurisdiction Act is convenient for them because it can be dealt with in the magistrates' court whereas the others may have to go to the crown court?
  (Sir David Calvert-Smith) That would depend on how serious the other behaviour was. If it was Section 4 behaviour, that stays in the magistrates' court. It cannot go up unless it is aggravated. Obviously if it becomes an affray it can go up to the crown court. I really think the cases are so few that it would be very dangerous to infer a policy or a trend. One would need to look at the individual case. Could you just give me one moment, I have just been passed a note.

  635. If the cases are as few as you say, and it appears that they are dwindling to vanishing point, does that not indicate that the prosecuting authorities are not finding this a useful statute and would it not stick out like a sore thumb if it were the only legislation on the statute book that specifically deals with a religious offence as such?
  (Sir David Calvert-Smith) If Lord Colville's analysis is right and blasphemy goes and so on and that is only offence, then so be it. As for sticking out like a sore thumb, there is still a very substantial religious population in this country, particularly a multi-religious population in this country, many of whom would feel that their freedom of worship should be specially protected. That is not really for me as a DPP to say, more as a citizen. As I say, I do not think it would infer any trend one way or the other in prosecutorial behaviour from a dip in the figures. It may be that the experienced prosecutor in Truro has recently retired and his colleagues simply go for public order. The note that Alan has passed me is should we actually be reminding our prosecutors of the existence of this section.

  636. I hope not.
  (Sir David Calvert-Smith) There are thousands of criminal offences, some of them very abstruse. I have been in practice for 32 years and I have never seen a case brought in my presence under Section 2 of the Ecclesiastical Courts Jurisdiction Act.

  637. You have given us some extremely useful guidance on this and we will contemplate upon it. I promised you that I would give you a minute or so if there were things that were left undone out of our list and out of our questions. I think we had better do that because we will be stopping in a moment.
  (Sir David Calvert-Smith) I was only anxious to have a chance to indicate that there are certain materials that might interest you. I think I will leave with you or have sent to you, if you are interested, the homophobic material, our case histories, such as they are, on religiously aggravated offences and otherwise—

  638. And the monitoring material?
  (Sir David Calvert-Smith) We can send you copies of that.

  639. The trouble is that some of us are incapable of working the Internet!
  (Sir David Calvert-Smith) We will send it to you. Otherwise, thank you very much, no, I have nothing.

  Chairman: In our turn, thank you very much indeed for what you have come to tell us. It has been very illuminating and it was an area of great complexity to us. I will now seek the rest of this material from the Attorney and then I think some of the ecclesiastics may be rather clearer to us. You have helped colossally this morning and I thank you all very much indeed.