Examination of Witnesses (Questions 80
- 99)
TUESDAY 9 MAY 2000
MR DAVID
CALVERT-SMITH
QC AND MR
MARK ADDISON
80. The law is not a dead letter?
(Mr Calvert-Smith) Certainly not a dead letter but
the number of prosecutions, bearing in mind as you rightly say
the amount of offensive and racist literature about, is disquieting.
Mr Winnick: I want to deal with the matter of
witnesses and the CPS but I think my colleague on the Committee,
not my party colleague in any way, wants to come in.
Mr Howarth
81. Thank you very much, Chairman. In dealing
with this question of racially aggravated crime, Mr Calvert-Smith,
are we dealing principally explicitly with white racist crime
or are we dealing with black racist crime, black racist literature
directed against white people? Can you give us some idea as to
how the case workload is broken down between the two categories?
(Mr Calvert-Smith) If I can widen it out not just
to incitement to racial hatred but racially aggravated offences,
the whole spectrum, then the vast majority of cases involve white
racism, although there have been I think not more than a handful
of cases where we have prosecuted black people for racially aggravated
offences, say of assault, on white victims.
82. Given the volume of crimes that are committed,
particularly in London, robbery and so on, how would you respond
to the suggestion that perhaps if a white person is attacked in
the street—mugged or whatever—by a black person they
would not see that necessarily as a racist crime, they would see
it as a crime?
(Mr Calvert-Smith) I agree. Because of the definition
of a racist incident, which is perceived by the victim as being
a racist incident, it is probably more likely the white victim
of a robbery will consider he was just the victim of a robbery.
That is just talking as a human being, I have no idea what the
statistics would show.
83. Does this not suggest there is a pretty
substantial flaw in the way this new definition has been drawn
up?
(Mr Calvert-Smith) I do not believe so. I do not believe
the majority of black victims, say of a street mugging, if the
offender happened to be white, would necessarily perceive that
as being a racist incident. It would be a matter for them, of
course. It would normally be accompanied by some form of racist
abuse. I do not believe there is a flaw in the legislation.
Mr Cawsey
84. The very definition, of course, is the fact
that just because a crime is committed between people of different
races, that is not racism. To be a racist crime the motivation
has to be racism, that is the definition, is it not?
(Mr Calvert-Smith) Precisely.
Mr Winnick
85. All criminality is to be deplored, whether
the acts are committed on whites, blacks or whatever. When somebody
sets alight a black person where there is no robbery of any kind,
surely common sense dictates that is a racist crime. It would
be very surprising if it was anything else as well as in the other
example I gave, the other case, of the person who was attacked
who happened to be white.
(Mr Calvert-Smith) I agree.
86. Could you tell us how the CPS is working
with the police to improve communications regarding the needs
of vulnerable witnesses?
(Mr Calvert-Smith) A great deal of work has gone on
already in advance of the "Speaking up for Justice"
provisions in the Youth Justice and Criminal Evidence Act. I have
a whole pile of packs which have been prepared jointly between
the CPS and other agencies for children and other vulnerable witnesses
to try and prepare them as much as can be for court. I believe
that there is a total unity of purpose, bearing in mind what has
been said already this morning between the police and the CPS
on this topic, and between other agencies as well, the purpose
being to ensure that so far as possible where it is necessary
for a vulnerable witness to give evidence at all that that process
is handled as sensitively and delicately as possible. We welcome
the provisions in the new Act which effectively build upon work
which has already begun.
87. We have all been given a copy of an article
which you have probably seen from the Express on Sunday
which is quite critical of the CPS.
(Mr Calvert-Smith) Yes.
88. What they say in effect, the essence of
this story, is Crown lawyers have made clear they do not want
to meet victims of racism and violent assault to tell them face
to face why charges have been dropped. Clearly obviously victims
of crime are very anxious to know why in such circumstances charges
are not being brought to the court and some restrictive policy
documents have apparently been leaked to the Express on Sunday
along the lines which I have mentioned, that your colleagues
are not keen to meet such people. Is there any substance to the
story?
(Mr Calvert-Smith) Very little, although it is not
without substance. There are lawyers in the service who have never
had regular contact with the victims of crime and who, indeed,
in days gone by would have been forbidden ever to speak to particularly
a witness in advance of a trial for whom the cultural change of
dealing directly with members of the public is hard. Much more
importantly—we have been running pilot schemes which finished
in fact last month—there are lawyers who say "We would
love to talk to victims and witnesses providing we can do so in
safety, in premises which are designed for such interviews and
the like if we had any time to do so, but we are so stressed by
our other work that asking us to do a new job, for which we will
no doubt need training, without giving us extra resources is unfair".
There are pockets, if I may say so, of resistance. A cultural
one, if you like is "we have never done it before, we may
lose our independence if we get too close to victims and witnesses
and lose our objectivity", which I think is an unfounded
worry but one we have to deal with. There is the resource based
objection, "here is another really difficult and important
job you want us to do when we are having very great difficulty
doing our day job properly".
89. What about the two of you, if I may ask.
I do not know whether the Chief Executive would in any way be
involved but would you yourself as a Director meet victims of
crime?
(Mr Calvert-Smith) I have done.
90. You have no hesitation, unlike you have
just been mentioning about your other colleagues?
(Mr Calvert-Smith) None at all.
91. You say you have done?
(Mr Calvert-Smith) For instance, I met the victims
of the Southall rail crash some months ago and I shall no doubt
meet victims personally in the future, I have no problem with
it. There are real problems as we enter the ECHR era in some cases
as to how much detail can be given to victims, there is a good
deal of training needs. We must abide by the Convention. We must
not seem to be trying unconvicted defendants and convicting them
out of court by saying things to victims and witnesses which might
say that somebody was effectively guilty but. There are confidential
matters within case papers relating to a witness, medical conditions
and the like, which should not be disclosed and so on. There is
a real training need so that we are able to give as much as we
can give without infringing the rights of others.
92. That is in hand and the CPS is in contact
with Victim Support?
(Mr Calvert-Smith) We are. We have been very grateful
hitherto for the help of Victim Support who are, of course, market
leaders, so to speak, in this topic and we hope they will continue,
as I know they will, to help us.
93. I will just conclude by quoting what Norman
Brennan, who apparently is the National Director of the Victims
of Crime Trust, is quoted as saying in the Express on Sunday
story: "It does not surprise me, it is a shambles. Victims
of crime and their families are sick and tired of listening to
excuses". Do you think that is over the top?
(Mr Calvert-Smith) I think that is an overstatement.
We do see victims and witnesses already in fatal cases, death,
road deaths, homicides and the like. I do not believe it to be
a shambles, it is just not satisfactory. What happens now is the
police perform what really should be our function in explaining
our decisions to victims and witnesses. That is an historical
situation which we have inherited. I believe that the best people
to explain decisions are the people who take them and, therefore,
we should cut out the middle man. I do not believe it is right
to say that it is a shambles. I think I said the pilots had finished,
they are still running and we are waiting to move to the next
stage subject to our being able to resource it properly.
94. If you will forgive me, I said my final
question but I have one more question with the consent of the
Chair. Doreen and Neville Lawrence are waiting for justice, they
want to see brought to justice those who murdered their beloved
son. What are the chances of a successful prosecution?
(Mr Calvert-Smith) I do not really believe it is possible
for me to answer that. I have not seen any further papers that
have come from John Grieve's task force. I have been before this
Committee earlier and discussed the rule against double jeopardy,
and indeed answered questions from you, Mr Winnick, on the topic
and you know the limitations that there are so far as that rule
is concerned.
95. You are having a report on the subject soon,
yes.
(Mr Calvert-Smith) Of course there are other charges
which could be brought in certain circumstances. You may have
read of a case in the north of England where a man was sentenced
for perjury, the perjury being that he had lied about killing
a nurse at his trial and had been acquitted eventually. Of course
he could not be retried but he was tried and, indeed, pleaded
guilty in the end to the perjury. There are still possible ways
by which someone could be brought to justice if the evidence ever
became available.
Mr Winnick: Thank you very much.
Chairman
96. Just going back to this issue of communicating
with the victims of crime directly, do you see the need to give
better explanations of what this phrase "not in the public
interest" means? It can sometimes come across as technically
somebody who in other circumstances if he was not doing this or
that job would be in the dock.
(Mr Calvert-Smith) If I may say so, you have put your
finger on what is, I think, the most difficult problem. Hitherto,
because there are some cases in which one cannot actually divulge
what the public interest is, the indication has been "Well,
we should not ever say which particular bit of the public interest
is involved in case, if we do it selectively people will draw
conclusions when we do not". On the other hand, I think we
have now reached a situation where the public at large, what with
Freedom of Information and categories of information which may
or may not be disclosed, are sufficiently sophisticated to understand
that in some cases they can be given and in some cases they cannot.
I think there is nothing worse than a purely formulaic explanation.
If I was a victim, and was told "It was not in the public
interest", that is wholly unsatisfactory, worse than nothing
in many respects. I am very anxious that the scheme we eventually
reach will involve, where we have taken a public interest decision,
being able to explain it in all but a small minority of cases.
Mr Linton
97. You mentioned the recent perjury case which
raises the question about the double jeopardy rule. Do you think
this is a good example of where the double jeopardy rule is getting
in the way of justice?
(Mr Calvert-Smith) I refer, if I may, to my answers
to this Committee in which I described similar sorts of scenario
to the one that occurred last week. My view really was, and still
is, that subject to suitable safeguards and the leave of a high
court judge we ought to be able to revisit cases of that kind.
98. I just want to ask one further point about
giving information about discontinuance to witnesses. I am sure
we all fully take the point about resources and training and safety
of the staff which must be paramount, but is there not a basic
question of courtesy, that the person who makes the decision should
be the person who conveys it to the person most closely affected,
in other words the victim?
(Mr Calvert-Smith) I agree entirely. I think that
is the principle we must work to. The only constraints are going
to be whether it is actually easier to administer but just as
effective to have a dedicated part of the staff within a CPS office
which is fully trained in the interpersonal skills, etc., necessary—in
some states in Australia they do it with a social worker together—or
whether we require every lawyer who takes a decision to be in
a position to explain with all the time constraints and difficulties
that may impose. These pilots and the scoping study that will
follow it will, I hope, resolve that problem for us.
99. Would it not be a good discipline on the
CPS staff to know that if they are going to decide not to prosecute
they have to look a victim in the eye and tell them so?
(Mr Calvert-Smith) A guarded yes. I think that is
right. I do not want my lawyers to start taking defensive decisions:
"I will not be able to face the victim here so I will take
what I know to be the wrong decision and leave it up to the court".
That I think is one of the worries that some of my lawyers are
feeling now. Are we simply going to be forced to take decisions
because we think that is what the victim wants rather than because
the evidence says one thing or another? There is a defendant to
consider as well and he or she is entitled to fair treatment.
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