Examination of Witnesses (Questions 60-79)
MR DAVID
CALVERT-SMITH
QC, MR RICHARD
FOSTER AND
MR STEVE
PRZYBYLSKI
TUESDAY 26 FEBRUARY 2002
60. What about suitable premises, because I
understand that was another concern?
(Mr Calvert-Smith) Suitable court premises?
61. Yes, and premises available for face to
face interview.
(Mr Calvert-Smith) I think that has been a worry but
all the information I am getting is that, albeit in some cases
it may mean an inconvenient journey for some witnesses in that
they may not be as close to the home as ideally one might like,
there will be suitable facilities available.
62. Will you be updating the 1993 Statement
on the treatment of victims and witnesses to reflect recent changes?
(Mr Calvert-Smith) In effect we already have done
so far as guidance to our own staff is concerned. We have taken
part jointly with the police and the Home Office in a publication
dealing with the early special measures meetings, the new meetings
that are going to take place, so that I hope is in place, and
we are, as I say, underpinning the training. There will be written
material which will set out our policy. These measures coincide,
fortunately in a way, with our commitment to victims and witnesses
generally, which has already led to a re-drafting of our statement
to victims and witnesses, whoever they may be, vulnerable or not,
which we are rolling out from April, direct communication with
victims and witnesses about key decisions in their case, so that
the whole concept (which has been hard for some in the Service
to accept) of speaking direct to victims is coming in on two fronts
at the same time which I think is very helpful.
63. How do you intend to monitor or give guidance
to barristers who are instructed by the CPS?
(Mr Calvert-Smith) I have already made it clear at
a number of public conferences which followed the launch earlier
this month that in cases where there is a vulnerable witness the
CPS will only instruct counsel who have been on the training courses
(which I believe to be excellent) which the Bar Council is running
for its own people. It is becoming more and more common for the
CPS to stipulate that its counsel have been trained to a particular
standard before we agree to instruct them in cases so that the
sometimes wholly inappropriate language and attitudes that I have
witnessed for myself, I am ashamed to say, in court in the past,
will become a thing of the past.
64. How long are the training courses for barristers
and for others?
(Mr Calvert-Smith) So far as the Bar is concerned
the course is a two-day affair. So far as ours is concerned, we
have various ways in which we are delivering it. First of all,
we start with an e-learning distance learning package for all
lawyers and case workers which will simply be an introduction
to the legislation, the policy and help in identifying vulnerable
witnesses accurately and will simply provide information about
law practice and procedure from the beginning of the investigation
through to the trial process and beyond. The classroom training
will be a three-day programme which will follow the distance learning
phase and will be informed by professionals from the learning
disability community and those with much greater experience than
us of dealing with vulnerable witnesses, children or those with
learning disabilities or others. Our lead trainers, that is our
in-house trainers, are already in post and ready to go, so that
before July when it is implemented all staff will have a basic
training and a core of staff in each area will have completed
the three-day training so that there will not be any case which
will not be dealt with by somebody with the appropriate training.
65. Will they have the opportunity of meeting
directly with people with learning disabilities as part of the
training?
(Mr Calvert-Smith) Yes. One of the policy changes
instituted by the Equality and Diversity Unit generally (but it
applies to this field as it does to the field of race or gender)
is that whenever we train now we attempt to get the people who
are actually concerned—Voice, for instance, the charity,
the Ann Craft Trust—to come and give their services to help
train so that we get real people who are suffering the vulnerability,
whatever it is, to explain their experiences and what they want
out of the Prosecution Service.
66. How far are victims's personal views influencing
prosecution decisions?
(Mr Calvert-Smith) The principal way in which the
views of the victim are taken into account is, first, of course
the willingness of the victim to pursue the case at all if he
or she is the principal, or sometimes the only, witness, and I
am straying from vulnerable witnesses to domestic violence in
particular but that is a particular problem with the domestic
violence cases, trying to encourage the victims of domestic violence
to go through with it. Clearly the view of the victim plays an
important part in the decision as to whether there really is going
to be sufficient evidence. Secondly, where there is a public interest
decision to be taken, the views of the victim are very important
indeed, whether directly or through the victim personal statement,
which is now commonplace as a result of the new legislation. For
instance, when a plea is offered to a lesser offence or to a limited
number of offences on an indictment with a large number of offences,
then of course in the public interest the victim's view is of
great importance in accepting a plea balanced against all the
other competing considerations. As far as I hope is consistent
with fairness to the victim and fairness to the accused, because
we must not develop into a licensed lynch mob, we take the views
of the victim into account.
67. Is there any danger of the revised Code
for Crown Prosecutors giving rise to false expectations because
obviously that is saying that the victims' views are taken into
account whether or not a prosecution takes place in some instances?
(Mr Calvert-Smith) I hope that the language of that
paragraph, although I spent hours helping to draft it, is sufficiently
clear to make it clear that the core decision in the end has to
be ours. That is why we are there and we take our decisions in
the public interest in the end, not in the interests of the victim,
the defendant, any other interest group, political pressure, the
media, etc. I hope that, properly read (and it was very carefully
drafted), it does not give too much of an unfair expectation to
victims and witnesses. We do take their views very seriously but
in the end we have to make the decision on the evidence in the
public interest as we see it.
68. Lastly, are you in favour of establishing
a statutory Victim's Ombudsman?
(Mr Calvert-Smith) I would prefer to see the current
initiatives, that is, the victim personal statement, the far better
communication with victims and witnesses in terms simply of keeping
them up to date with what is going on on the one hand, and explaining
decisions on the other, allowed to work themselves through for
an assessment to be made as to whether they are sufficient. If
they are not, clearly one would have to look at other solutions,
such as a Victim's Ombudsman, or even an alternative legal party
to the case, as happens in some continental jurisdictions. At
present we as a service feel that we ought to be able to do the
job properly with the assistance of the police and the courts.
We both have a function to play in all this to safeguard the rights
of victims. I am a strong defender of the right of the private
citizen to bring a private prosecution so that that right should
in my view remain, although there have been calls on occasions
for it to be taken away, which is another avenue for a victim
at present.
69. But that could be harder than going to a
Victim's Ombudsman, could it not?
(Mr Calvert-Smith) Of course. As I say, if it turns
out that—and this is a political decision, obviously—that
there is still widespread dissatisfaction which could be cured
by additional measures, then clearly we would abide by them but
we would have to help in their construction.
Chairman
70. Is it the responsibility of the CPS to see
that when a perpetrator of rape or another serious violent crime
is released the victim is given some forewarning?
(Mr Calvert-Smith) No.
71. Whose job is that?
(Mr Calvert-Smith) The Probation Service carry out
that job at the moment in serious offences.
72. They do not liaise with you about that?
They liaise with the Prison Service presumably?
(Mr Calvert-Smith) Nobody liaises with us at present
about the release of offenders from custody. The only time we
know is when we have been present at an appeal against conviction
when the person walks from the Court of Appeal. But even on appeals
against sentence we do not regularly appear as a party to the
proceedings and therefore that is left to the police via the Criminal
Appeal Office who let the police know.
73. Is that as it should be in your view?
(Mr Calvert-Smith) I personally think that somehow
it should be done better. Whether we should do it or whether it
should be done better by others is not for me to say but I think
there are still far too many cases where the victim sees the perpetrator
of the crime on the high street without any advance warning that
that is a likely event. I do believe the situation is much better.
I am certainly not attempting to criticise other agencies because
I do not have the knowledge to do so, but I believe there are
still cases like that because frequently letters I get from some
of you or your colleagues in Parliament contain such information,
so it is clearly going on and should never happen.
74. Is that a responsibility you would volunteer
for?
(Mr Calvert-Smith) I am sorry to be mealy-mouthed
about this, but if we were to be paid for it I am sure we would
do it.
David Winnick
75. Do you take incitement to racial hatred
as seriously as many would like you to do?
(Mr Calvert-Smith) I think we take it extremely seriously.
This is not intended to be flippant but it is in fact true, that
any case which requires the Attorney General's consent, as incitement
to racial hatred does, is always taken extremely seriously because
it is after all the Minister superintending the service who takes
the final decision and he or she at present always requires the
fullest possible attention to be given to such cases and incitement
to racial hatred is no exception. The answer is that I am quite
certain we do. They are all handled within the headquarters Casework
Division of the Service. They are not handled on the areas, so
that there is a core of lawyers within the Service who have particular
expertise. There has been much concern, and we have tried to evaluate
the reasons for this, as to why there has been such a small number
year on year of prosecutions under Part 3. It seems to come down
to a number of differing factors, some or all of which apply in
many cases. One is actually proving who disseminated the leaflet
that is left lying around for people to see, actually getting
the evidence to fix the responsibility on a particular human being
for the incitement. The other is the balance which clearly needs
to be struck and is ultimately struck by the law officers, obviously,
because it is their consent, between free speech on the one hand
and sometimes the forthright expression of free speech with what
is clearly beyond the bounds of free speech and is apt to be described
by the very strong word, as the courts have held it to be, of
"hatred", which is far stronger than "hostility"
which appears in the Crime and Disorder Act as a racially aggravated
crime.
76. If someone is said to have said, "Kill
the Jews", that would not be within the category of free
speech presumably?
(Mr Calvert-Smith) What I did not go on to say was
that the other factor which obviously bears on the likelihood
of success of a prosecution is the context in which these statements
are made. It does seem to me that there are times, and post-September
11 is an obvious one to think of, where statements which might
otherwise have been part of the rough and tumble of debate are
so clearly said in a particular context that they would be prosecuted
whereas perhaps on another occasion they might not. "Kill
Jews", if said other than in some stupid television programme
in what is supposed to be a comedy programme or something, would
clearly fall within that.
77. That would be taken with the same seriousness
as someone who said, "Kill Moslems", "Kill blacks",
"Kill whites", all taken equally, no favouritism to
any particular group?
(Mr Calvert-Smith) Absolutely not, except that—and
I do not want to get into political controversy here—there
is a question mark about Moslems who have not been ruled to be
a racial group and therefore are more likely to be protected if
there is an extension of Part 3 to cover religious hostility as
well as racial hostility. With that qualification, yes.
78. Does the law apply to remarks made in religious
gatherings?
(Mr Calvert-Smith) It could do, yes.
79. So if remarks were made, be it in mosques,
synagogues or churches of various Christian denominations, or
other places, where clearly the cry goes up from whoever is speaking
that a particular racial group should be targeted, hurt and indeed
put to death, that would be a matter where the Prosecution Service
would look very seriously at that?
(Mr Calvert-Smith) We certainly would.
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