Examination of Witnesses (Questions 600-619)|
THURSDAY 5 DECEMBER 2002
600. Never mind. We are going to pursue this
and I wanted to get your view on it. Could I go back to aggravation?
We have had this double set of legislation on making certain offences
aggravated in order to put up the sentence. Of course it makes
singularly little sense to look at it overall because where you
have got offences carrying life imprisonment they have not been
touched because they do not need to be. I saw, I think yesterday,
that your office was considering the possibility of bringing in,
I suppose by means of guidance from the Court of Appeal, aggravation
in relation to homophobic offences without, of course, any necessity
for legislation at all. Would it not be a great deal easier if
all this aggravation legislation was left to guidance form the
Court of Appeal and from the central judicial authorities?
(Sir David Calvert-Smith) This was the debate that
we had over the passing of the Crime and Disorder Act provisions
when I was wearing a completely different hat. I think the decision
has to be, is it best for Parliament (going back to the message
issue) to be sending a very strong message, "We are so concerned
about this area of crime and the fact that it is an aggravating
feature that it is accompanied by racial hostility or, as it might
be, religious hostility, that we want to pass a law saying that
there will be a higher tariff sentence and a separate offence"?
Is that so important that it needs to be set out like that, albeit
that it does sometimes lead to difficulties? For instance, in
some cases, a Crown Court judge listening to a case of assault
or criminal damage might well come to the view that, having heard
the evidence, he was convinced that there was a racial element
to the offence and so find in passing sentence, whereas now, if
we have charged it and the jury acquit on the basis that they,
the jury, are not quite sure, - and juries do have a tendency
to compromise; they know they can convict of the simple offence
and it may be easier to do somaybe we are losing the opportunity
of giving that message to individual defendants in some cases
because, if it is an assault and we have not charged it, then
the court is unable in passing sentence to take the racial aggravation
element. There are difficulties in the current schemes where you
have, as you quite rightly point out, some offences which are
outside and some which are inside the scheme. With offences which
are outside the scheme, where the Crown think that there is some
evidence of racial aggravation, what is the Crown to do? It is
no part of its duty to prove the instant case, shall we say, of
attempted murder or section 18. We do not need to prove motive
to get our result, but we have in mind the fact that there is
section 153 which requires the judge, if there is racial aggravation
in the case, to impose a sentence. The judge then may hear from
prosecuting counsel a case that not only did he pick on this person
because he did not like him, or whatever it was, but he actually
did it because he was Asian or black or whatever,. That is probably
all there is in the case. There are difficulties that have accompanied
it, both for practitioners and for judges. On the other hand,
there is a very strong message that has gone out to the public
at large that the Government feels so strongly about something
that it is prepared to legislate to make sure.
601. But not so strongly that you would advocate
legislation for people who went in for homophobic attacks? You
could do that under judicial control, could you not?
(Sir David Calvert-Smith) We are constrained, Lord
Colville, by the law. Our policy on homophobic crime was issued
because, like a number of categories or types of offence, homophobic
crime is very under-reported, for reasons we can all understand,
that or very under-prosecuted, and far too few people are convicted
of such offences. The message we were trying to get across was
not that we were trying to change the law in any way, which we
cannot, but that we will treat victims sensitively, that we will
look sensitively at the fact that they may themselves have committed
some minor offence and we will not simply make them defendants
automatically and that we will support them as best we can to
get their evidence to court. We do regard it within the framework
of the code of Crown prosecutors as an aggravating feature when
we are applying the public interest test with one of the factors
in favour of against prosecution. One of the factors in favour
of prosecution is that you have picked on somebody because he
or she is old, very young, sexual orientation, race, any particular
feature which makes it in our eyes more desirable to prosecute.
602. But it is another message, is it not?
(Sir David Calvert-Smith) Oh yes.
603. And particularly if the sentencing remarks
include something about it.
(Sir David Calvert-Smith) Right.
604. Is this guidance that has been issued by
your office applicable to the same range of offences as can be
religiously or racially aggravated?
(Sir David Calvert-Smith) We would say that any offence
that is committed against a person because they are being picked
on because of their sexual orientation or whatever is to some
extent an aggravating feature. We have not sought to limit it
in the guidance, and I am very happy to leave it with you if you
would like to see it, or send more copies.
(Sir David Calvert-Smith) We have not limited the
sorts of offence, but mainly it is offences of violence, of course.
606. Could I also ask whether section 4 or 4(a)
of the Public Order Act could be used to prosecute people who
publish or perform songs which incite people to kill gay people?
(Sir David Calvert-Smith) Yes.
607. It could?
(Sir David Calvert-Smith) Yes, I am sure it could.
I will quickly look up section 4 and 4(a) again to remind myself
of their terms. I have got it here somewhere. I am confident that
those provisions could be used, yes.
608. Are you aware of the lyrics of certain
songs which have been performed and broadcast which do incite
people to kill gay people and, if so, why have no prosecutions
been brought against the performers or the publishers of those
(Sir David Calvert-Smith) I do not believe we have
ever been sent a file by the police asking for our views or to
bless a decision to prosecute any such case.
609. There you are, Lord Avebury. You had better
get it started.
(Sir David Calvert-Smith) I cannot initiate prosecutions.
I do not have that rightyet.
(Sir David Calvert-Smith) In your opinion
would it be possible to add religious aggravation without defining
(Sir David Calvert-Smith) I think that
is a very difficult question. Many of our concerns when the religiously
aggravated provisions were enacted last year were how easy is
it going to be for us, where we are dealing with aggravation because
of no religion and so on. In fact, we have not had a problem.
We have never yet received a file where the allegation from the
police or a file within which any evidence was disclosed that
we can advise the police on where the religious aggravation was,
for instance, to an atheist or an agnostic. We have actually only
had 11 such cases in for prosecution, so one a month, I suppose,
since the Act was passed. Again, if the Committee were interested,
I could give them details of the allegations of the sorts of circumstances
because I personally asked for every such case to come across
my desk so I could see how the Act was working out.
610. Of the 11 cases you referred to how many
have been concluded?
(Sir David Calvert-Smith) Five have been concluded
although one still awaits sentence. The others are still awaiting
611. But in those five cases that landed up
in the court as it were, was the issue of defamation of religion
(Sir David Calvert-Smith) Never a problem.
612. No problem at all?
(Sir David Calvert-Smith) That is why I say that we
were very worried about it, and I think theoretically it is still
a worry, but it has not yet. It has been perfectly clear. The
victims have either been picked on because they were Muslims,
Sikh or in one instance a Jehovah's Witness and in another somebody
who was a devout Christian.
613. Any details of those you can send us would
be extremely welcome. Could I move on to the questions that I
know you will not answer? Is there anything that you can say about
any of these points? They are of great concern to us, not least,
I may say, in question 6, the annual report, with all sorts of
massive documentation that has been asked for by a number of witnesses.
We have got a lot of annual reports around in Parliament. I was
just wondering how feasible this is. You would obviously have
to have a large input into it.
(Sir David Calvert-Smith) Of course we would. I really
think I have got to push back to you 4 and 5.
614. I understand that.
(Sir David Calvert-Smith) I do not see, if there are
any particular questions on the guidance which was put out, which
Lord Avebury referred to earlier, to accompany the original suggestion
of incitement to religious hatred, if there any particular points
On question 6 I think it would be right to say this. We
would very much doubt whether a list coming from the Attorney-General
of his cases would give you or the public at large a very complete
picture of what is going on for the reasons partly that I mentioned
when I started. The Attorney will not know how many people have
not reported, how many people have reported but the police have
decided to take no further action, necessarily how many cases
that we have received. We would expect, however, if there were
such legislation, that within a few years the inspectorates might
be asked by the Attorney-General to look across the spectrum at
police, the Crown Prosecution Service and indeed perhaps the courts,
to see how the legislation has worked in practice and whether
there are any improvements, just as we have had in the recent
past a joint inspectorate report into the prosecution of cases
with a racial dimension a few years on from the introduction of
the legislation. There is a huge groan which goes up from CPS
areas every time another report is called for. They frequently
find that they do not get much benefit from them and it is a lot
more work and it takes them away from other duties, so if there
is a better way of doing it then I think we would urge that. I
cannot speak for the Attorney himself on this.
615. Can you think of a better way of doing
it? You say there might be a better way of doing it. How would
you measure the effectiveness of the legislation?
(Sir David Calvert-Smith) If you were, a few years
down the line, to engage, as we did with racially aggravated offences,
Her Majesty's Inspectorate of Constabulary to see what is happening
at the police end of things, the CPS Inspectorate, the Magistrates
Courts Service Inspectorate as it now is, possibly devolving into
a court service inspectorate if the new legislation, the Criminal
Justice Bill, goes through amalgamating the courts into a single
entity, you could then look at the process from one end to the
other and see how it is working, and obviously engage such people
as Victim Support and other groups who support victims.
616. Can you see any benefit, or indeed any
practicality, in going in for monitoring of who it is who is the
victim, whether it is in terms of race, colour, creed, religion
or anything like that? It is a very popular pastime in Parliament
at the moment. Do you think it is something you could usefully
(Sir David Calvert-Smith) We are doing it. Alan is
almost the father of our racial incident monitoring scheme within
the CPS which I think is very sophisticated and getting even more
so in our team which we will be able to deploy in the future so
that we are able to produce statistics on a yearly basis and on
an area by area basis and publish. As to the racial incidents
which the police have identified, that we have identified, whether
we charge them as racially aggravated crimes or not, and right
at the end of the day whether court indicated in its sentencing
that it had or had not and by how long increased the sentence,
we have done that. It arose from pre-Norris in 1996, Alan tells
me, before I came and he was here. We do it and we do think it
important and it has enabled us to identify trends, areas which
do not seem to be doing quite as well as other areas, and so on.
We have not been sophisticated enough yet. We do not record the
categories of victim or defendant. We do not have the 16 categories
but we will be able to because with IT that is coming on stream
we will get that straight from the police into our IT system.
617. Is it in the public domain now?
(Sir David Calvert-Smith) Our racial monitoring figures
are in the public domain. We publish them.
618. I think we have not had them. It would
be very helpful if we could have them.
(Sir David Calvert-Smith) They are published.
619. Are they on the website?
(Sir David Calvert-Smith) Yes, on our CPS website.
Baroness Perry of Southwark: As I understand
it there are two bits of the Human Rights Act which relate to
religion, that is, Article 9, obviously, which does not define
religion and which gives people the freedom of their religion,
whatever that religion is, and it is, I think, the sixth protocol
which also gives freedom from discrimination again on any grounds,
whether religious or racial
Lord Avebury: That is not in.