THURSDAY 16 JANUARY 2003

RT HON LORD GOLDSMITH QC, MP AND MS CARMEN DOWD

  640. Good afternoon, thank you very much for coming. The proceedings in this room are televised, and although they are sometimes broadcast, there is a question as to whether they are widely watched, but never mind they are broadcast.

  (Lord Goldsmith) Not during normal hours of the day.

  641. I had rather hoped that we would not have to ask you to spare time to come and deal with this matter, but it is evident from the points that the Director of Public Prosecutions felt were only proper to be answered by you that it is going to be very helpful for us to have your views, and I then will venture to add a couple more questions of my own at the end. Perhaps in order to save your time we will just go straight through these points, although of course my colleagues may want to ask you supplementary questions. Going back to Part III of the Public Order Act 1986 where your consent is required for any prosecutions—and let us leave aside for a moment the question of vexatious cases because I have no difficulty over any of that—how over the history of this have the Convention of Human Rights points been taken into account?
  (Lord Goldsmith) Thank you, my Lord Chairman. I will just make it clear that I am very happy to help the Committee so I am not in the slightest bit troubled about having been asked to come. As I indicated in my memorandum of 2 January, the stating point is that Parliament itself has decided where the balance should be struck between freedom of expression and unlawful conduct. I think that is the starting point, so the first step that I would have to consider when a case comes to me is whether the elements which Parliament has set out as being the ingredients of the offence are met or not. As I indicated in the draft guidance that I produced at the time in the context of the Anti-Terrorism, Crime and Security Bill, I think the combination of the steps which are there sets quite a high threshold. That is the first point, but of course I recognise that I am still required as a public authority to act in accordance with the Human Right Acts and with Convention rights. In the area where I have been dealing with it under the Public Order Act, the cases where I have granted consent have in fact been so clear in terms of the mischief of the conduct in question that there has not been, in my view, any compelling Convention argument the other way, so I cannot give you examples where I have said that this conduct is not sufficiently serious to justify a prosecution. The sort of things that we have been concerned with are what I regard as scurrilous, offensive broadsheets, pamphlets and material which are distributed. I think I could give an example, although it is not one that I have had to deal with, of the sort of case where I would think Convention rights would come in, and that is the European Court decision in a case called Jersild v Denmark, the reference to which is 1994. That was a case (and it was not of course an English case) in which the applicant, a journalist had produced a documentary which included an interview with three youths who expressed extreme racist views. It was accepted that the interview had been broadcast in good faith and the purpose of the journalist was not to incite racial hatred, it was actually to expose it, and in those circumstances the European Court of Human Rights said that convicting the journalist was disproportionate to the aim, so I could see that might be the sort the situation in which one might say perhaps technically the requirements of the section are made out.

  642. Was that a Danish case?
  (Lord Goldsmith) Yes, a Danish case. But the circumstances are such that the freedom of expression of the journalist to explain and to expose evil conduct or behaviour outweighs any other consideration.

  643. Would that case ever have got as far in the circumstances where the Human Rights Act has been enacted in this country or would the CPS have intercepted it on the way?
  (Lord Goldsmith) I cannot say without seeing the details of the broadcast because it would have depended on exactly what the facts were. They might have intercepted it on the way or indeed the police might not have brought it to the CPS, because it starts with the police too. They investigate and then pass it to the CPS and the CPS brings it to me.

  644. I think one of the points that we need to bear in mind is that the European Court's interpretation, for instance, of the qualifications in Article 10(2) have developed and they are not necessarily the same now as they were in 1986 and they will go on developing, so we need to remember that when we put you to the test, as it were, about how you would handle this sort of thing.
  (Lord Goldsmith) In all sorts of areas I am dealing with the Convention all the time and I am very well aware that it does develop.

  Chairman: Unless any of my colleagues want to ask any more about that point—

  645. May I just ask whether in your judgment it would have made a difference if it had just been a member of the public who was exposing racist views rather than a journalist?
  (Lord Goldsmith) The answer to that is probably it would not have made a difference. It is right to say that the European human rights authorities regard the freedom of expression of journalists as a particularly important thing and therefore will strive hard—we have seen this in other areas—to protect freedom of expression of the press because that is one of the streams of a free society, one of the pillars of a free society, but I am not sure in the context of this particular case if the facts had been a private individual rather than a journalist, so long as the private individual had some legitimate reason for doing it, the decision would have been different. I would have thought it would probably have been the same, but that is a rather off-the-cuff answer.

  646. I am just trying to tease this out. Some of the dreadful material that we have had that came on the Internet which purported to expose what was happening as a matter of information that the public ought to know was vilification of the highest order in my book, but could that be defended on that ground?
  (Lord Goldsmith) I understand now, Lady Richardson, where the question is coming from. I was assuming in the example you gave me that, as was the case with the journalist where it was expressly held that he was acting in good faith and it was his purpose to expose racist views, that was the case with the individual. It was of course very easy, we see it in all sorts of experiences, for people to purport to be doing one thing when, in fact, they are doing something else. There is of course the "no truth in this allegation" sort of journalistic comment which is actually intended to say quite the opposite. That is obviously something on which one has to take a judgment. If there were an issue as to whether this was genuinely intended to expose wrong doing or it is in fact wrong doing itself, that is precisely the sort of area where we will make a judgment and ultimately the court will make a judgment as to what the motives genuinely were.

  647. Does this freedom of the press include the whole media?
  (Lord Goldsmith) Yes.

  648. So it is television, radio?
  (Lord Goldsmith) Yes.

  649. I think we can come on to the second point that was left over which is a sub-set and mixed up with the ones that I will ask you later. You have already explained the sort of approach that you would take towards the application of Article 10, and your predecessor no doubt did the same before you. There was also the question we asked about the high threshold test. You dealt with that to some extent although in correspondence you said you did not want that to be read in isolation from the rest of the draft guidelines put forward. What I think we find a matter of some concern is the question of whether your consent as the Attorney and as an important member, although an impartial one, of the government is the right way of dealing with the Article 10(2) clarifications, and this is really the second of the supplementary points I would make, or whether the judgment on this ought to be handed over to judicial processes. I think this is something which is at the heart of the problems that we had about clause 2 of the Bill and about your involvement in it and your views on it would be extremely welcome.
  (Lord Goldsmith) Can I preface the direct answer to the question by setting the scene slightly. The experience I believe we have when dealing with Part III of the Public Order Act is really two-fold: first of all, that the criminal threshold for the offence is an onerous one—that is largely what I was getting at when I talked about the high threshold, racial hatred, hatred of a group, hatred being a strong word, all those sorts of points—and secondly that it is tried and tested. I am not aware, it may be that the Committee is, in which case I would be pleased to try and deal with it, that it has ever been thought that my consent or that of my predecessors has been exercised in a way which was anything other than proper or having regard to the right considerations.

  650. I will come back, if I may, to that.
  (Lord Goldsmith) The second point is that the proposed offence which I advocated in the Anti-Terrorism, Crime and Security Bill—and I was disappointed at the time that Parliament had not agreed it was right to do it—is tracking the existing offence under Part III of the Public Order Act and I think it is not therefore creating something which is entirely new. The third point is that the primary balance, and it is important to stress this, is initially set by Parliament and that is what one is looking to. When I exercise my power to consent, whether it is to this sort of offence or indeed in any of the other cases where I have a duty or statutory power to consent, I do so of course independently from government, that is clear, and there is a very good precedent and each incoming law officer is reminded of the collapse of the first Labour government in the 1920s which is believed to have been as a result of the Attorney of the day succumbing to political pressure in relation to a particular prosecution. It is important as well that it is not just independent but quasi judicial, and that is what I am attempting to do. I am considering whether or not the evidence is there sufficiently and whether or not the public interest justifies a prosecution, and in the latter respect, up to a point, in the same way as any prosecutor would be required to do. So I regard personally the requirement for my consent as an entirely appropriate safeguard against unmeritorious cases going forward, against the wrong cases going forward. I have to say I am not sure what it is that the Committee might think would be achieved or some members of the Committee might think be achieved by incorporating Article 10 directly somehow into specific legislation. The courts of course will be required to interpret any offence, in any event, in accordance with the Convention rights. That will be required by Article 3 of the Human Rights Act. I am not sure I understand at the moment how to insert a specific reference to Article 10(2) in the legislation would work, so it does not at the moment seem to me to be something that would achieve anything worthwhile, but I may not understand what the Committee might have in mind.

  651. I think the problem is that the courts are already required (and it is not under section 3 of the Human Rights Act, it is under section 12) to pay particular attention in a case where Article 10 is involved. If they are going to pay particular attention, they will only be able do so if they have the matter before them. You are the person who decides whether they shall or shall not have it before them. Might it not be better for these purposes if the courts themselves—I do not think any of us is suggesting we incorporate10(2) into the legislation, it is not necessary because the Human Rights Act has already given emphasis on this—make the judgment as to whether the qualifications on the freedom of expression have in fact been properly adhered to in the case that is being tried before you rather than have it pre-empted by you?
  (Lord Goldsmith) This is where I do not quite understand. Of course, my decision does not in a sense pre-empt anything. The court then receives the case and it is tried, whether by jury or however it is tried, and the factual elements all have to be tested and found or not found by the court in question. So too does the interpretation of conduct. Hatred is a word that is not defined, take that by way of example, and the court has to decide whether or not what happened constitutes hatred, and in considering what does constitute hatred the court should also have regard (this is why I refer to section 3) to what would be compatible with the Convention right. If they thought that something falling below a certain standard would not be compatible with having an offence and still respecting properly the Convention right, then the court would interpret the words in a stronger sense. That is why I referred to section 3. I do not think it is taking away from the courts in any event. I am an important filter which prevents vexatious cases and unmeritorious cases coming to court and also exercises a degree of safeguard for Parliament to see that cases do not even get to the court which ought not get to the court, and once they get to the court it is for the court to determine. It is quite a long answer—

  652. —It was a long question.
  (Lord Goldsmith) —I hope it has helped.

  653. The material that has come to us from our witnesses does not necessarily start from the proposition that you have put forward, that you have consented to the case going forward. This is one of the reasons why we have had requests from a number of people that there should be reasons given for your refusal to give your consent, that there should be an annual report on the activities under, say, Part III of the 1986 Act and now Section 39, which is nothing to do with you, of the Anti-Terrorism, Crime and Security Act. There is a fear that the monitoring of the perpetrators and the victims has not been properly assessed. There is a difference between police force approaches to this and, indeed, perhaps in the way in which the CPS in different parts of the country carries out its duties in such cases, so it is really where you do not have a case where there has been a concern. I suppose that means that you are capable of being judicially reviewed over a refusal to give consent but that is not the same thing as leaving it to the court to say whether it falls within the qualifications of Article 10(2).
  (Lord Goldsmith) With respect to those who made this point, I do not think this has anything at all to do with consent. I think it is an entirely different problem—and it is a problem—and I will indicate what I have attempted to do about it. In the sort of case one is concerned with where there is typically material which is published, there are a number of practical problems about prosecution. The classic problem is identifying who is actually responsible for the material. Other problems are to whom it is directed and where it has been produced, and it is those practical problems, generally speaking, which have been the impediments to prosecution. I was concerned about this as a result of approaches to me. I therefore asked both the police (ACPO) and the Crown Prosecution Service to see me to discuss with them what the problems were and as a result of that they have now held two seminars where they have brought together those in the police forces who are responsible for prosecuting Part III Public Order Act offences and experienced prosecutors to see whether we can find ways through discussions between the prosecutors and the police of resolving some of these practical problems or finding ways round them so that solutions to some of these problems would be found. Sometimes they will not be found, that is quite plain, but I do not think this is anything to do with the question as to whether or not the consent is there. The problem is not that cases are coming to me and I am saying no, it is that they not getting there at all because the evidence is not available. I do agree with those who are saying this is very serious conduct, it potentially causes great social unrest and, worse, it stirs up racial hatred under the existing law. We must therefore do all we can to make sure we root it out and the best that I can do is to suggest practical solutions to police and prosecutors to work together to try and get over those difficulties.

  654. You seem to be saying that no case has ever come before you which you have had to reject whilst the CPS thinks there was sufficient evidence to prosecute.
  (Lord Goldsmith) There have been, for different reasons, cases that I have not been able to pursue but those are to do with other public interest considerations which may sometimes arise in cases.

  655. I think we would be interested in knowing something about those public interest considerations.
  (Lord Goldsmith) The reason I was hesitating in answering is because I am not sure whether by answering the question I would be doing the very thing I was trying to I avoid by declining consent. May I just confer for a moment about this with Ms Dowd.

  656. Please do.
  (Lord Goldsmith) I think there would be a real difficulty in my giving publicly any further information about this. If the Committee thought it was appropriate I would be very happy to explain privately to the Lord Chairman what the nature of the issue is in the case I have in mind.

  657. We could discuss whether that should be taken up, but the issue that has really emerged from the evidence that has been given to us is that by comparison with Part III of the 1986 Act where there has been remarkably little activity, there is a disillusionment by the failure of the prosecuting authorities to deal with some of these things. You have explained to us just now, and I think it is very useful to have it on the record, some of the problems that confront you. I can also see that difficulties arise over bringing prosecutions in relation to what is on web sites, particularly if they are web sites that emanate from abroad, but the real essence of the concern has been that there have been complaints made about things which are perceived as being very serious (this is so far on the racial side) but nothing has happened.
  (Lord Goldsmith) It cannot possibly be right to say that nothing has happened, there is a prosecution taking place at the Old Bailey next week, if I remember correctly, in relation to a matter where I have consented. So certainly consents have been given and in the past I have given information pursuant to parliamentary questions as to the number of cases that have been brought. It is helpful to bear in mind that there are cases where there is another offence involved as well so that they fall into the racially aggravated version, and that is the majority of cases. The racial element does come out but it comes out through the racially aggravated offence rather than through the incitement offence. Certainly cases are brought. As I indicated before, the practical problems in relation to these cases are more the issue, which is why I asked the police and the CPS to get together at a very senior level to discuss the problems that the police forces felt they had and to see whether they could be solved, and also to make sure there was greater consistency, and the CPS does operate consistently. All of these cases are dealt with by the Crown Prosecution Service at its headquarters. That is not the case in relation to the police and it seemed to me that it might be helpful, therefore, to put the local police forces directly in contact with the Crown Prosecution Service headquarters that deals with this sort of case, which would be able to give them advice and assistance in the cases they came across.

  658. I think we would welcome the initiative that you have taken in that respect. The fact remains that if you refuse to give your consent, am I not right in thinking that you are open to judicial review for that decision and you would then have to give your reasons?
  (Lord Goldsmith) I do not think it has yet been tested. In the very well-known case of nearly 30 years ago of Mr Gouriet there was a very considerable debate in the courts about whether or not the accountability of the Attorney General, who declined his consent, in a rather different case, was to the courts or whether it was to Parliament. The House of Lords at that stage said it was to Parliament. Things have changed, judicial review has developed, but I am not aware of any case which has yet said that this matter, for which I would expect to be accountable to the public through Parliament, is now a matter for judicial review. Certainly decisions by the prosecution not to prosecute have been held subject to judicial review; there is a difference between the Crown Prosecution Service and me.

  659. Most people will remember what Lord Denning said in that case but forget that he was overruled unanimously in the House of Lords.
  (Lord Goldsmith) Exactly so.