THURSDAY 16 JANUARY 2003

RT HON LORD GOLDSMITH QC, MP AND MS CARMEN DOWD

  660. And also, even if you were in theory subject to judicial review, there would have to be a finding that you should be judicially reviewed before you would have to go and do it.
  (Lord Goldsmith) Yes. So far as reasons are concerned, I would just say this: I indicated in my written memorandum that I always try to be as helpful as I can. I get requests in relation to all sorts of cases from members of the public and from Members of Parliament in both Houses and I always try to be as helpful as I can. Sometimes it is not easy for a prosecutor to give very much information as to why a case is not being proceeded with because of implications. If I take an entirely different area, for example if there is a decision not to proceed with a rape case, the reason for it might be because the prosecutor has taken the view on good grounds that the complainant is simply a wholly unreliable witness for certain reasons, but to make that public might not be very desirable for the interests of the complainant. There are all sorts of reasons. Generally speaking, my approach in relation to prosecutions where there is not a prosecution is it is desirable for prosecutors to explain as far as they can what the circumstances are.

  661. You have said twice that Parliament has laid down the line which defines the extent to which this legislation complies with Article 10(2). I am not sure that I have seen them doing so. To what are you referring?
  (Lord Goldsmith) They could have said in relation to Part III of the Public Order Act that freedom of expression is so important that people should be allowed to say anything they want in this area. They have not, they have said no. Freedom of expression will not go so far as to allow somebody to use insulting or threatening behaviour or words with the intention or which may have the effect under certain circumstances of inciting racial hatred. It seems to me there is a balancing act to be done. Freedom of expression is not absolute and certain conduct which incites racial hatred is not permissible. This is what we say it is and those are the elements that Parliament has laid down.

  662. That was in 1986. This matter arose again at the end of 2001 and they adopted exactly the same formula. I do not see any parliamentary indication of where the line is to be drawn.
  (Lord Goldsmith) Parliament did not accept it, this Committee is looking at where the line should be. I was of the view at the time the Bill was being debated, and I remain of the view, that the line remains in the right place, but that is my view.

  663. It applies more to clause 2 of the Religious Offences Bill than it does to section 39 of the 2001 Act, but the illustration you have just given does also to some extent apply to section 39 of the 2001 Act, what is threatening and abusive for instance?
  (Lord Goldsmith) Yes.

  664. Do you think that Parliament has in fact given us some sort of dividing line or indication where it should be drawn?
  (Lord Goldsmith) I believe that whenever Parliament legislates to create a criminal offence where it relates to what people in any way are saying, then that involves a balance as between free expression and between unlawful conduct, and the same analogy applies in many other offences as well. When Parliament says that police officers under certain conditions may enter your premises in order to search them under certain safeguards, Parliament is saying where the line is to be drawn in relation to the right to enter. There will be certain ways in which that can be exercised that will go beyond the line—to do it in the middle of the night with 24 armed officers, whatever it may be, and I give an example which may be appropriate or may not be appropriate. I am simply saying that the starting point as a matter of constitutional theory is that the limitations and the qualifications in the articles which give rise to the basic rights are primarily for the democratic powers to determine where the limits should be and of course the European Court will allow a margin of appreciation in settling those.

  665. If it goes to Strasbourg, yes, but there is no margin of appreciation in the domestic court.
  (Lord Goldsmith) It is not called margin of appreciation but it amounts to much the same thing, for example in R v DPP ex parte Kebilene (2002) 2AC326[1], where it is well recognised by the domestic courts that there is an area within which the courts will defer to the decision of democratic bodies, and there is a considerable body of case law which accepts this. It is not called margin of appreciation because margin of appreciation technically can only apply to a supra-national body but it has much the same impact.

  666. I do not know whether you would like to comment—and I will open the floor to my other colleagues—because there is one more thing I wanted to ask you. Supposing we have got clause 2 of the Religious Offences Bill on the statute book and you give your consent to a prosecution. Ultimately, it is going to be a matter for a jury, is it not, to decide to what extent if at all this has crossed the line which is set by way of qualification in Article 10(2), and the difficulty about that is one is never going to know why they have said nay or yea that it did cross the line?
  (Lord Goldsmith) I am not sure I do see it that way. I would anticipate in such a case that the trial judge would direct the jury as to what the ingredients of the offence are. In directing them as to what the ingredients of the offence are, he would, no doubt, explain to them how serious the conduct has to be to constitute hatred in doing that. He may well be influenced by his understanding of the Convention rights. I would not anticipate that a judge would put to a jury, "And when you have decided whether all these elements are present, you still have to decide for yourself whether you think this offence is legitimate in a democratic society in order to protect the rights of others." I think that is the judgment that Parliament has made, and that is why I say that is the starting point.

  Chairman: That is very illuminating, thank you. I think other of my colleagues have got questions that they would like to ask.

  667. Could I just pick up on one point which is not directly in the debate we have been having so far but about which you have made a passing reference, and that is the aggravated element of the offence. I wonder if I might ask you this: in the 1998 Crime and Disorder Act and also in the Anti-Terrorism, Crime and Security Act of 2001 the device that has been adopted by Parliament has been to incorporate into the offence the aggravated element so that the prosecution, so to speak, pleads and proves the aggravation and if it fails it is open to the jury to return a verdict in respect of the offence without the aggravation. Another way of dealing with the problem—and I accept that this may be a bit of an old chestnut debate - would simply be to increase the maximum penalty for the offence, and in some cases that is not possible because it already carries life imprisonment, in fact it does in many cases, and simply to leave to the sentencing tribunal, in accordance with the public discussion we have been having in the past couple of weeks that you have very familiar with, a decision which would take account of the presence or absence of the aggravating factors in the particular offence and in the circumstances of that case. Clause 2 of this Bill, which in effect is concerned with incitement—and forgive me for the length of the question, this is the slightly complicated thing to get across—and one of our concerns in our deliberations, I am sure, is going to be the complications associated with charging somebody in the context of an aggravated offence. I was just wondering for myself, but I think it would help our discussions privately, what your views were as to whether or not you were committed, so to speak, to the expression "intention" that aggravation was the way, or whether you think that maybe there might be some merit in, to be quite blunt about it, abandoning the aggravation approach and going back to the concept and leaving it to the judge to decide within the wide range of the maximum penalty available to him under the statute in any event.
  (Lord Goldsmith) I think there are questions of principle and practicality which affect one's view of the choice between two alternatives. One alternative is to say you can leave it to the courts to see what are the aggravating features of any sort and to adjust the sentence accordingly. I would expect of course any informed court these days, in the sense of appreciating that the elements were present, to take account of a racist motive, of a motive which was homophobic or any of that sort of thing in saying this aggravates the offence and therefore the offence should be treated more seriously. That is one alternative. The other alternative is to create a separate offence. I do not think it quite applies in relation to incitement. I do not think you could have an aggravated form of incitement but you could certainly have an aggravated form of assault or something of that sort, as indeed we do. My own view is that there are advantages in having a separate offence as a matter of principle because it enables Parliament to send a very clear and loud message that particular conduct is not going to be tolerated. By making it a separate offence with a more significant punishment then it is said very clearly that this is conduct that will not be tolerated. It may be that in certain cases it would not have made any difference in sentencing because the judge would have reached that route himself. That is the question of principle. I happen to favour the view that sending a strong message by making it part of the statute is a good thing. There are practical issues as well. For example, if you as a prosecutor were prosecuting an offence of assault, the motive of the assault would not be a necessary ingredient of the conduct, so although you might bring out in the course of your evidence that this happened in a racist context—and that might happen quite frequently because the story told would have been of a fight outside a club and the language that was used would come into evidence so it might be apparent but in other cases it might not be apparent—it would not be for the prosecutor to introduce evidence which was not relevant to the offence, so he might feel that it was not necessary to adduce that evidence. That is one practical consideration. There is a practical consideration which I think Sir David Calvert-Smith drew attention to when he gave evidence and that is if you do charge the aggravated version of the offence and the jury acquit on that but convict of the lesser version of the offence (and sometimes juries do take what might seem to be a compromise position) it would be hard for the sentencing judge in those circumstances to take into account conduct which by their verdict the jury had ruled out. By acquitting of the aggravated version of events they are really saying they are not satisfied it was motivated by racist or religious intention. My answer is I think the message point makes it justifiable to create a second offence, and that is what I would do.

  668. But it is not the only way to do it though?
  (Lord Goldsmith) No, you can leave it to the judge to take into account the aggravating features when the sentence comes to be passed. In another recent guideline case, not the one that has been particularly noted in the newspapers but in relation to rape cases, that set out in detail what the aggravating features may be, that it involves a young woman, girl, abduction, those sort of things, so it is possible to set out aggravating features without having a second offence.

  669. Those were rape cases.
  (Lord Goldsmith) Millberry, yes.

  670. And there was a case with Mr Justice Salmons going back a long, long time where a race element had emerged and he made a special announcement at the time of the trial after conviction that he was imposing a heavier sentence by reason of the racial overtones in a particular case. That is a perfectly effective way of communicating the message, is it not?
  (Lord Goldsmith) The question is which is more effective and Parliament took the view in relation to these offences it was more effective to have a clear statement by having it on the face of the legislation rather than waiting for a judge to do it. One can take a different view; I happen to think Parliament was right in doing that.

  671. The general question of hate crime has been dealt with by ACPO and they developed guidance for police officers. It is mentioned in an answer given to me by Lord Falconer just before Christmas. They issued this guidance under the title "Identifying and Combatting Hate Crime". There seemed to be a movement towards treating all kinds of hate crime on an equal footing as exemplified by the Metropolitan Police's campaign The Public Speak Out where they refer to not just racial and religious hate crime but sexual orientation, disability and domestic. Is that an approach which the Government favours so that when offences are aggravated in any one of these different ways they can be dealt with by the court imposing higher sentences if evidence is drawn to their attention showing that that was an ingredient of the offence?
  (Lord Goldsmith) Certainly courts can and would in appropriate cases, I have no doubt, be encouraged to do so. I slightly hesitate at saying that it is government policy or that it is government policy to tell judges how they should sentence, that is a rather delicate and sensitive area, but for example I think the Committee has seen or has had drawn to its attention guidance issued by the Crown Prosecution Service in relation to homophobic crime indicating there that a homophobic motive may well be an aggravating feature and therefore ought to be drawn to the attention of the judge so the judge can, we would hope, take that into account if he found the element present as an aggravating feature affecting the sentence.

  672. Has the Government formed any opinion as to whether or not homophobic aggravation should be brought into the criminal calendar in the same way as race and religion already are under the 2001 Anti-Terrorism, Crime and Security Act?
  (Lord Goldsmith) In the sense of having a specific set of offences that are aggravated, so far as I am aware there is no present proposal to legislate to introduce offences which are specifically aggravated by virtue of there being a homophobic element.

  673. Do you think it would be logical (and technically that appears to be the line the Metropolitan police are taking) to treat all crimes aggravated by hatred against different groups on the same footing with one another?
  (Lord Goldsmith) I certainly think it is logical to recognise that there are elements of all of these crimes in common and the practical approach then to investigating and prosecuting them needs to draw on the experience of others. There are very good examples, for example, of hate crime units, one in Brighton, which have drawn on experience in one field and which look at homophobic crimes, racist crimes, and so forth. I think that is important and logical, and to that extent I entirely understand why the Metropolitan Police put a number of offences together under the heading of "hate" crime.

  674. Does the Government have any views on the expansion of the European Commission's Draft Council Framework Decision on racism and xenophobia possibly to cover the same areas that are covered in the Employment Directive, which you mention in a letter of recent date, and has the Government made any submissions to the Commission on these matters, because I understood that the Government had originally withheld consent to the inclusion of religion in the racism and xenophobic decision, partly on the grounds that this Committee is looking at the question of religion and they did not want to pre-empt the findings?
  (Lord Goldsmith) If you will allow me, my Lord Chairman, I will write to the Committee with an answer to Lord Avebury's question which I cannot properly give sitting here today without more detailed briefing than I have.

  Chairman: Mr Attorney, this matter does change from day to day. So far as we are concerned we have clear evidence from the Home Office that it is not going to interfere with our deliberations if they include religion as one of the grounds before it, but we are very happy to hear from you in writing on this. Lady Massey?

  675. You sent a memorandum to Lord Colville on 2 January which I found really clear and helpful, thank you. Under the section on the annual report issue which the Lord Chairman mentioned earlier, you say in paragraph 2 at the end that: "As we learned with racial hatred offences, it is the response of the whole criminal justice system from the moment an offence is committed, to the sentencing stage, which needs to be transparent. It is a mistake to take sections of the process and try and draw useful conclusions from the information." Is this issue of transparency a problem? For whom is it a problem and how do we resolve it?
  (Lord Goldsmith) What that sentence was intended to convey is that in order to understand what problems there may or may not be in relation to prosecution of particular forms of conduct, one has got to look at the whole of the process and to focus on just one element may give a misleading impression. By referring to transparency I was really indicating one therefore needs to look at the whole of the response. What we have tried to do in relation to offences which may have a racist motive is actually ask the Crown Prosecution Service Inspectorate to look. I cannot recall, and again I need to clarify whether this was a joint inspectorate report[2], but in any event a system which enables one to look at the entirety of the process is more valuable than looking simply at a single stage.

  676. I tend to agree with the earlier statement that you made about the government and Parliament making it clear that these are the clear lines beyond which you will not go, but surely there is another side to it where you sit there having to take a decision whether the case should go forward or not. Every time you have to take the decision and you are about to weigh it up in your own mind as to what will be the circumstances, going back in the case, you did not allow the prosecution to go forward, every time you do that when you are dealing with religious and racial issues you are probably passing back a signal to the community saying what is the use of taking these matters forward because we never get there. Having made that statement, the point I want to ask you is would you allow for the benefit of doubt, so if you are uncertain in your mind, it to go forward rather than stop it there?
  (Lord Goldsmith) I would repeat, if I may, the first question is: is there evidence to justify a prosecution. The code for crown prosecutors, which would be my starting point as well, requires two tests to be satisfied before a prosecution is brought. First of all, is there sufficient evidence to prosecute, is there a realistic prospect of conviction? That is the test that is applied by all prosecutors up and down the country. If the evidence is not there, however strong the public interest might be in one sense because of the seriousness of the matter, then it does not go forward. I happen to think that is absolutely right. I think it would be quite wrong for us to bring prosecutions against people where there is no realistic prospect of conviction. That is the principal reason why cases have not proceeded, there has been an insufficiency of evidence. I do not think I am sending any message back or the Crown Prosecution Service is sending any message back by saying simply there is not the evidence there on which to prosecute. That is a problem and that is what we would like to try and handle.

  677. Is that not a subjective view if the Attorney General takes that view?
  (Lord Goldsmith) No, it is not, and it is not necessarily my view either. It is the decision of, first, the police who investigate and then the Prosecution Service, and then my decision. It is an objective question of whether or not there is adequate evidence to demonstrate that this particular person is responsible, for example, for disseminating, for example, this particular piece of paper. There will then be other questions that arise as to what that piece of paper does and what was the intention of the person distributing it. This is no more subjective than the decision which is taken every day should somebody be prosecuted for shoplifting or rape or murder. In each case does the evidence demonstrate a realistic prospect of conviction?

  678. Just to follow up on what Lord Grabiner has asked you and indeed what Lord Avebury has asked. One of the problems that is going to confront us is if you pick out one of the aggravating features, as has been done in the 1998 Act to some extent, and the 2001 Act, you give it a prominence which it may not in fact bear by comparison with the other aggravating factors. We have heard a great deal about sending messages and we know very well that there is a value in Parliament sending messages, but is it not invidious to choose—and you refer to the Milbury case—one out of seven aggravating cases which is in fact racial and give that Parliamentary blessing when the other ones are all discarded simply to the discretion of the judge?
  (Lord Goldsmith) I do not think so. I think if one looks at this in an historical context, it has not been necessary to tell any member of the public or any member of the law enforcement agencies if you cause somebody serious injury that is more serious than causing them a minor injury. I am not so sure that it has been so obvious in the past that having a racist motive is a seriously aggravating feature. Perhaps part of education for everybody, for all of us has been to send a clear message in relation to that. That is the immediate response I give to the question, not one, I have to say, I had considered before. My immediate response is no, it is not inappropriate to single out a particular feature, and it is a very important feature and one that does have to be emphasised. I have got absolutely no doubt that judges will not fail to consider the other features in any event when it comes to setting the sentence.

  679. Of course they will have parliamentary guidance to consider matters like homophobia, which has just been mentioned and upon which attention is now being focused.
  (Lord Goldsmith) That is true.

  Chairman: Have any of my colleagues got any questions to add?

2   The review of casework having a minority ethnic dimension was conducted by HM CPS Inspectorate and published in April 2002. Back