Memorandum submitted by the National Secular
Society
This Submission is a response to the call for
evidence into the work of the Crown Prosecution Service (CPS)
as set out in Press notice No. 23 of Session 2007-08 dated 3 April
2008, currently on the Committee's webpage on http://www.parliament.uk/parliamentary_committees/justice/jsc030408pn23.cfm.
The National Secular Society (NSS) thanks the
Justice Committee for the welcome opportunity to make a Submission.
(1) Section 1 of our Submission deals with
the work of the CPS in general and Section 2 deals with the very
serious implications of the CPS's role in relation to the Channel
4 Dispatches programme "Undercover Mosque" broadcast
in January 2007. The CPS's apology is on http://www.cps.gov.uk/news/pressreleases/channel_4.html
and repeated in the Appendix, together with the Press Release
apologised for. Recommendations are shown in bold.
(2) The NSS is a human rights-focused organisation
campaigning for equality for all, regardless of religion or belief
(which, as the Committee will know, in legal terms, includes lack
of belief). This involves seeking to ensure that no single religious
group or individual belonging to a particular religious group
is privileged above citizens of other religions or none, or that
religious groups are not privileged above the non religious.
SECTION 1
MATTERS RELATING
TO THE
WORK OF
THE CPS IN
GENERAL
(3) Even-handedness and Equality
The NSS believes that this equality for all
is of particular importance in the field of Justice and that all
individuals, regardless of their religious affiliation or non-affiliation
are afforded the same rights and protections. We also see equality
for all under some threat in the field of Justice as a seemingly
growing deference on the part of the CPS to religious perspectives
can or could lead to these religious perspectives, sensitivities
or attitudes being given quasi-legal status or even a parallel
religious justice system.
(4) This consultation provides a particularly
welcome and timely opportunity to reflect the views of the Society's
members and supporters, as well as some of the wider public who,
unlike those represented by religious leaders, often do not have
the opportunity to have their views heard.
(5) To the extent that the Justice System
goes—or were to go—beyond the law in giving special
weight to the perspectives, sensitivities or attitudes of any
group or groups (for example religious groups), it risks (or would
risk)—regardless of however well-meaning its motives—unwittingly
discriminating against others. Were this to happen in a sustained
way and taken to the extreme, it could alienate those being discriminated
against. Such discrimination can occur actively or passively,
as described below.
(6) Especial care needed for the vulnerable
and marginalised
We are concerned that many institutional practices
are based on consultations with representatives of so-called "faith
communities". While this is often done on the basis of being
inclusive, ironically in practice this is very excluding or exclusionary.
It ignores and therefore marginalizes the voices of those people
who keep their faith in the private realm or who are of no faith
at all. At the greatest disadvantage are those who have left a
"faith community", sometimes because of victimization
and discrimination within that community. The CPS, in particular,
must not ignore these latter voices.
(7) Non-believers have no pre-existing organized
"community" and therefore do not have the same strength
of voice of those who form part of a religious community. They
can be adversely affected by demands made by religious groups,
for example for special treatment, or for others to behave in
ways that they believe to be appropriate or acceptable. We are
concerned that non-believers should be treated fairly and equitably
in the development of policy and in practice by public bodies
such as the CPS despite this inbuilt disadvantage. Non-believers
are also at risk of harassment, victimization or discrimination
on the basis of their lack of belief as people with religion.
Indeed, those who have left a religion are a very high-risk group.
(8) We recommend that the CPS guards against
assuming that faith leaders—nearly always older men—are
necessarily representative of all those in their groups, and takes
special steps to seek out the views of:
(a) those people who keep their faith in the
private realm or who are of no faith at all, especially those
who have left a "faith community";
(b) those within faith communities that are vulnerable,
such as women who may be susceptible to forced marriage, female
genital mutilation, honour killings, or have their freedom of
movement or association restricted;
(9) Consultation
The need to consider society as a whole also
applies to CPS documents and policies. We quote from the CPS website
section on Racist and religious crime—CPS prosecution policy[5]:
"we have consulted with people from Black and minority ethnic
communities and faith communities and we have taken their comments
into account when writing this document. Their contributions have
helped us to have a better understanding of the things that are
important to them and that we need to know about when we deal
with racist and religious crime." We support the need to
consult vulnerable groups, but a balance must be struck by other
representative groups being consulted too.
(10) We recommend that the CPS undertakes
a formal audit of who is affected by their policies and operations,
not forgetting that Human Rights including Freedom of Expression
should be also regarded as stakeholders. As well as Black and
minority ethnic communities and faith communities, other groups
reflecting wider society are also consulted and have their views
taken into account, and are acknowledged publicly. We suggest,
for example, Liberty, Justice, the Council of Ex-Muslims, and
the National Secular Society. We made a similar representation
in a meeting with the Director of Public Prosecutions in 2004.
(11) Subjectivity
Those in some religious groups, especially in
religions and denominations where religion is held to be important
to group identity, tend to perceive insult and offence much more
strongly than others. It is a subjective matter which the CPS
must attempt to codify into as an objective test as is possible
under the law.
We invite the Committee to consider recommending
the establishment of clearer guidance for the CPS so that those
who are accused of causing some offence are not dealt with more
harshly (and therefore unjustly) simply because the complainant
may have taken more offence than the average reasonable person.
One of the causes for the Channel 4 debacle referred to below
appears to have arisen from ambiguous or in adequate guidance
or interpreting the current guidance over-zealously.
(12) Freedom of Expression—General
Principles: Race and religion need to be treated differently
The NSS of course supports the law, which protects
people from incitement to hatred and discrimination on the grounds
of their religion or belief, but we emphasise people, rather than
belief. The belief itself, rather than the people who hold it,
is sometimes erroneously thought to be legally protected.
(13) We welcome the clear differentiations
on the racial and religious hatred sections of the CPS website
between race and religion and about the importance of freedom
of expression, but did not believe the differentiations were given
sufficient attention in respect of other types of what is described
in the CPS website as "religious crime". It is essential
that these distinctions are followed through in practice and training,
but we do not have any way of verifying the extent to which this
occurs.
(14) We recommend that greater emphasis
be given to:
(a) the differentiation between offences aggravated
by race and religion, and
(b) the importance of making due allowance for
freedom of expression in respect of all religious offences, which
will be a greater allowance than in cases concerning race.
(15) Where religious affiliation and racial
or ethnic identity are conflated, this opens up a danger that
criticism of religion or religious practices and attitudes (practices
and attitudes which are often themselves discriminatory and hateful,
and thus rightly criticised) might inappropriately result in prosecutions.
(16) We recommend that wherever appropriate
in CPS practice, training and publications:
(a) A clearer differentiation is made between
offences concerned with race and those with religion,
(b) It is clearly stated that religious beliefs
are not protected by law, and
(c) More emphasis is given to the need to protect
freedom of expression (subject to—in the words of the CPS
website—"the duty of the state to act proportionately
in the interests of public safety, to prevent disorder and crime,
and to protect the rights of others").
(17) We recommend the appointment of a designated
official to advocate for freedom of expression responsible direct
to the Minister of Justice and to produce an annual report on
successes, failures and concerns. We would have made this proposal
even before the debacle over Channel 4 and the Undercover Mosques
programme, which now makes such an appointment essential.
(18) Freedom of Expression—Blasphemy
and implications arising from its demise
We note that the references to blasphemy on
the CPS website were last updated in 2005[6]
and as of the date of this Submission do not reflect the abolition
of the offence in May 2008. We recommend that the CPS website
is updated to reflect the abolition of the blasphemy law.
(19) NSS stresses that even before the demise
of the blasphemy law, the primary emphasis of what is described
in the CPS website as "religious crime" is in place
to protect the believer, not the belief. Now that blasphemy has
been abolished this is unarguable. We recommend that CPS practice,
training and publications make explicitly clear that "religious
crime" is in place to protect the believer, not the belief.
This should reassure the public that Freedom
of Speech—save for the provisos noted above—is protected
in law and that the CPS, as a wing of the criminal justice system,
is committed to upholding and defending those rights without fear
or favour. Clear guidance in the areas we have recommended will
ensure both that the CPS does not exceed its mandate and that
religious groups are not misled into thinking their faith or belief
itself is protected by prosecution.
SECTION 2
CHANNEL 4 UNDERCOVER
MOSQUE PROGRAMME—POLICE
AND CPS ACTIONS
COMBINED TO
UNDERMINE THE
JUSTICE SYSTEM
(20) Perhaps the most disturbing and serious
case in the history of the CPS is the inappropriate involvement
of the Crown Prosecution Service in, at the very least, acquiescing
to a West Midlands Police referral to OFCOM of a television documentary
"Dispatches: Undercover Mosque" aired by Channel
4 in January 2007. The (very belated) joint apology by the CPS
is on http://www.cps.gov.uk/news/pressreleases/channel_4.html.
It raises many important questions going to
the very heart of the Justice System. We strongly recommend an
ad hoc enquiry by the Committee into the Channel 4 Undercover
Mosques debacle unless, as we would prefer, there is a public
enquiry or a Royal Commission. As we imagine that the background
will be well known we will confine ourselves to referring to relevant
highlights and giving our detailed concerns and recommendations.
(21) An independent arbiter, OFCOM, completely
rejected every complaint being backed by the CPS[7],
which it had advocated after acknowledging no (or no prosecutable)
breach of the law had taken place. OFCOM had gone further to point
out that "There appeared to be evidence that the complaints
were part of a campaign." The matter could not have been
more high-profile (and therefore potentially hugely damaging)
with dozens of articles appearing in the serious press criticising
the authorities. (We can provide a list on request. Significantly,
we only found one supportive article, and that was self-serving
letter from the Police Authority, also available on request.)
(22) This underlines one of the most shocking
aspects of this affair: that it simply cannot be dismissed as
a one-off local difficulty that management accidentally overlooked.
We observe that the list of those potentially responsible and
accountable, whether by commission or omission would appear to
extend far wider than those directly involved.
(23) We recommend that the broader questions
arising from the Channel 4 debacle of accountability, procedures,
checks, policy and even culture are thoroughly, independently
and openly investigated. Only when remedial action is seen to
have been taken will public trust in the CPS be restored.
(24) Given this level of independent scrutiny
and rejection by OFCOM (in November 2007) and attendant publicity,
we recommend that the Select Committee consider investigating
why the joint apology was not issued until six months later, in
May 2008. Although the reasons are the principal issue, the prompt
withdrawal of the accusations would have spared the public purse
the cost of the six-figure compensatory payment and presumably
legal costs.
(25) Press releases, media coverage
and freedom of press questions
To facilitate members of the Committee in considering
this matter, the text of the joint CPS and Police Press Releases,
both the apology and the Press Release apologised for are included
in the Appendix.
(26) It is surprising that the apology is
not displayed where most enquirers would look for it on the COS
site, raising questions of openness. The Press release containing
the apology was dated 15 May 2008. Yet despite it being the latest
press release issued by the CPS (as at the date of this Submission),
it did not appear on the prominent CPS webpage described as "Media
Centre Find out what is happening in the Crown Prosecution Service
(CPS) across the country. Your first port of call for news, information
and press releases."[8]
The Media Centre page did however feature a press release dated
8 October 2007 entitled "CPS praised in Race Report".
(27) An article by Nick Cohen in the Observer
on 18 May 2008 gives a revealing insight into public perceptions
about the affair and makes uncomfortable reading http://www.guardian.co.uk/commentisfree/2008/may/18/islam.religion.
(28) Journalists and commentators have been
increasingly intimidated into self-censorship in recent years
over minority faith issues and the Dispatches debacle can only
have intensified this. Quite apart from the important Human Rights
implications, such restrictions to freedom of expression are counter-productive.
They benefit religious extremists whose hate speech goes unchallenged
and right-wing extremists, whose popularity is growing as an impotent
reaction to this.
(29) Suggested enquiry and terms of
reference
When taken together, the concerns set out above
make a powerful case for an enquiry as described above, and with
terms of reference as suggested below. Clearly, similar questions
also apply to the Police and Police Authority, but are not included
here as they do not form part of the Committee's current remit:
(a) What motivated the CPS to act in the way
they did?
(b) Did any senior official regionally or centrally
query the way the case was being handled or give instructions
about it? If so, who and in what terms? How was any query or instruction
reacted to? Bearing in mind the exceptionally high profile of
the case, should further enquiries or more specific instructions
have been made and if so what instructions/enquiries and by whom?
(c) Has there been an independent review to check
that the film (including unscreened footage) does not contain
prima facie evidence of offences that have not been followed
up? If not, why not and could there be a further independent review
of this?
(d) To what extent was the need to protect freedom
of expression considered, by whom, in what terms and who (if anyone)
concluded it had been adequately safeguarded?
(e) Is there any evidence (we are not asserting
that there is) of:
(i)pressure from minority communities on the CPS
at any level (or on the West Midlands Police or its Authority)
that could have led to the circumstances leading to the joint
Police/CPS apology, or
(ii)a corporate culture in the CPS that seeks to
apply a non even-handed approach (ie a more lenient one) to minority
communities? If so, could this have implications for the level
of prosecutions over so-called "honour killings", female
genital mutilation, and forced marriages?
(f) Is there any evidence that a misguided interpretation
of community cohesion has taken priority over fundamental justice
issues?
(g) Was Police/CPS independence compromised,
and if so why and how?
h) Did the CPS act properly, both in its internal
operations and in the external statement(s) it made?
(i) Have there been/will there be an appropriate
review of individuals' conduct in the CPS and of their corporate
culture to prevent a recurrence?
(j) Has any disciplinary action been taken in
respect of the apology and matters leading up to it, and is any
appropriate?
(k) Is there any evidence of similar problems:
(i)elsewhere in the region, or
(ii)elsewhere in the CPS?
(l) Could/should CPS action be opened up to public
interest complaints by groups, on a limited basis, perhaps with
the permission of a senior law officer independent of the CPS?
(m) What is to be learned from this damaging
episode and what steps are necessary at every level and every
aspect to prevent a recurrence?
(n) If the lessons and steps arising from asking
the questions set out in m) above suggest further enquiries or
action are necessary outside the remit of the CPS, these should
be stated.
(30) The Society places on record its willingness
to provide any further information sought by the Committee and
would welcome an opportunity to give further evidence in person
or writing.
May 2008
5 http://www.cps.gov.uk/publications/prosecution/rrpbcrbook.html Back
6
http://www.cps.gov.uk/publications/prosecution/rrpbcrbook.html
and
http://www.cps.gov.uk/publications/prosecution/rrpbcrpol.html#06
Back
7
http://www.ofcom.org.uk/tv/obb/prog_cb/obb97/ issued 19 November
2007-item 4 Back
8
http://www.cps.gov.uk/news/index.html accessed 20 May 2008. Back
| 
