THURSDAY 16 JANUARY 2003

RT HON LORD GOLDSMITH QC, MP AND MS CARMEN DOWD

  680. I do not want to delay things because I know the Attorney General is very busy, but could I just return as one of the lay members of the Committee to what you said in your very helpful briefing paper, and you have referred to it again two or three times today, about what must be a subjective judgment about whether a prosecution is in the public interest. Could you just elaborate that in lay terms for us because it is a subjective judgment, is it not?
  (Lord Goldsmith) Again, I do not think it is a subjective judgment, although that in itself may, I suppose, be criticised for being subjective. Can I illustrate this by reference to what the Code of Crown Prosecutors says, because it says that prosecutions should not take place, even where there is the evidence, if they are not in the public interest. It goes on to give examples of what the public interests are and I am very happy to send a copy of this to the Committee. For example, any serious crime it would normally be in the public interest to prosecute. Any trivial matter it may not be in the public interest to prosecute. Then there will be other circumstances. A defendant who is extremely infirm or sometimes—the Lord Chairman will recall these examples—someone who has just been sentenced to 15 years for armed robbery. It is not in the public interest to continue with a prosecution for some much lesser offence which is not going to add to the time he spends in prison. There are some more esoteric areas—for example, if the public interest concerns national security or police intelligence methods or something of that sort. That might lead a particular prosecution to take place or not. These are all well recognised reasons and I emphasise that public interest is not political interest. It is not the view of the minister of the day. It is a decision which prosecutors make all the time.

  681. That was the query in my mind which I was driving at. Is there anything in the guidance or the law as it stands which would prevent a future Attorney General from making such a decision on political grounds? Supposing there were another 1920s case of enormous pressure being put on the Attorney General by a government of any colour of the future not to pursue something because it would embarrass the government or whatever. Is there anything that would protect the Attorney General from that kind of pressure?
  (Lord Goldsmith) The precedent of the government falling as a result of it is quite a strong pressure in itself.

  682. It is a political pressure. You could get a cunning government to figure out ways to take advantage of that. That is not the kind of assurance I want, although it may be pragmatic.
  (Lord Goldsmith) This is a very serious point. I regard it as inherent in our constitutional arrangements that there are certain decisions which are made by the law officers, independently from government and which must be seen to be made independently of government. The Campbell case is an illustration of how seriously that has been taken in our political history. I think that is a very powerful discouragement to any other minister who might think in terms of trying to put pressure on a law officer and he will consider how seriously that conduct would be taken.

  683. Baroness Perry's question goes to the heart of the task of the Attorney General. The leading textbook on the subject incorporates the public interest in its title: "Politics, the Law and the Public Interest". I thought the answer to the question was given by you a little earlier when you made reference to the Gouriet case. What the courts have said until now, at the highest level, is that the Attorney General is responsible to Parliament.
  (Lord Goldsmith) Yes.

  684. That is what happened in the 1920s and that is exactly what happened in the Gouriet case.
  (Lord Goldsmith) Yes.

  685. There remains one point. Earlier on, you very kindly offered to consult with me on a certain matter. I would like to discuss with my colleagues how this fits in with the proceedings of the select committee and maybe I would be permitted to come back to you on that.
  (Lord Goldsmith) Of course.

  686. Although I may be dying to know what it is you want to say, I must be sure that we get the proceedings correct. Other than that, may I thank you very much? You have been put to an hour of cross-examination, which is more than I had anticipated. You have given us a great deal to think about and I think you have dealt with some of the most difficult issues that are before us. We shall study with great care what you have said on the record.
  (Lord Goldsmith) Thank you. In expressing thanks to you for that, might I say this on my own behalf, which I might not have said in opening? The Committee may not be at all surprised to know that I am very pleased that the Committee is considering this particular, potential offence. It seemed to me, at the time when we were debating this within the framework of the anti-terrorism legislation, that it was important. This is conduct which is capable of being extremely damaging and a precursor to acts of violence. I think it is undesirable that we should have what is something of an artificial distinction between what might be seen as particular religious groups and other groups because some groups are considered as also constituting racial groups and others are not. I thought at the time that it was undesirable that certain groups were not protected from scurrilous, evil, hateful propaganda directed against them. I was disappointed at the time that Parliament chose not to take it up at that stage and therefore I am pleased that the Committee is considering it now in the context of Lord Avebury's Bill.

  Chairman: I think you can be assured that the matter is going to be given very thorough consideration in this forum.