Examination of Witnesses (Questions 640-659)|
THURSDAY 16 JANUARY 2003
QC, MP AND MS
640. Good afternoon, thank you very much for
coming. The proceedings in this room are televised, and although
they are sometimes broadcast, there is a question as to whether
they are widely watched, but never mind they are broadcast.
(Lord Goldsmith) Not during normal hours
of the day.
641. I had rather hoped that we would not have
to ask you to spare time to come and deal with this matter, but
it is evident from the points that the Director of Public Prosecutions
felt were only proper to be answered by you that it is going to
be very helpful for us to have your views, and I then will venture
to add a couple more questions of my own at the end. Perhaps in
order to save your time we will just go straight through these
points, although of course my colleagues may want to ask you supplementary
questions. Going back to Part III of the Public Order Act 1986
where your consent is required for any prosecutionsand
let us leave aside for a moment the question of vexatious cases
because I have no difficulty over any of thathow over the
history of this have the Convention of Human Rights points been
taken into account?
(Lord Goldsmith) Thank you, my Lord Chairman. I will
just make it clear that I am very happy to help the Committee
so I am not in the slightest bit troubled about having been asked
to come. As I indicated in my memorandum of 2 January, the stating
point is that Parliament itself has decided where the balance
should be struck between freedom of expression and unlawful conduct.
I think that is the starting point, so the first step that I would
have to consider when a case comes to me is whether the elements
which Parliament has set out as being the ingredients of the offence
are met or not. As I indicated in the draft guidance that I produced
at the time in the context of the Anti-Terrorism, Crime and Security
Bill, I think the combination of the steps which are there sets
quite a high threshold. That is the first point, but of course
I recognise that I am still required as a public authority to
act in accordance with the Human Right Acts and with Convention
rights. In the area where I have been dealing with it under the
Public Order Act, the cases where I have granted consent have
in fact been so clear in terms of the mischief of the conduct
in question that there has not been, in my view, any compelling
Convention argument the other way, so I cannot give you examples
where I have said that this conduct is not sufficiently serious
to justify a prosecution. The sort of things that we have been
concerned with are what I regard as scurrilous, offensive broadsheets,
pamphlets and material which are distributed. I think I could
give an example, although it is not one that I have had to deal
with, of the sort of case where I would think Convention rights
would come in, and that is the European Court decision in a case
called Jersild v Denmark, the reference to which is 1994.
That was a case (and it was not of course an English case) in
which the applicant, a journalist had produced a documentary which
included an interview with three youths who expressed extreme
racist views. It was accepted that the interview had been broadcast
in good faith and the purpose of the journalist was not to incite
racial hatred, it was actually to expose it, and in those circumstances
the European Court of Human Rights said that convicting the journalist
was disproportionate to the aim, so I could see that might be
the sort the situation in which one might say perhaps technically
the requirements of the section are made out.
642. Was that a Danish case?
(Lord Goldsmith) Yes, a Danish case. But the circumstances
are such that the freedom of expression of the journalist to explain
and to expose evil conduct or behaviour outweighs any other consideration.
643. Would that case ever have got as far in
the circumstances where the Human Rights Act has been enacted
in this country or would the CPS have intercepted it on the way?
(Lord Goldsmith) I cannot say without seeing the details
of the broadcast because it would have depended on exactly what
the facts were. They might have intercepted it on the way or indeed
the police might not have brought it to the CPS, because it starts
with the police too. They investigate and then pass it to the
CPS and the CPS brings it to me.
644. I think one of the points that we need
to bear in mind is that the European Court's interpretation, for
instance, of the qualifications in Article 10(2) have developed
and they are not necessarily the same now as they were in 1986
and they will go on developing, so we need to remember that when
we put you to the test, as it were, about how you would handle
this sort of thing.
(Lord Goldsmith) In all sorts of areas I am dealing
with the Convention all the time and I am very well aware that
it does develop.
Chairman: Unless any of my colleagues want to
ask any more about that point
Baroness Richardson of Calow
645. May I just ask whether in your judgment
it would have made a difference if it had just been a member of
the public who was exposing racist views rather than a journalist?
(Lord Goldsmith) The answer to that is probably it
would not have made a difference. It is right to say that the
European human rights authorities regard the freedom of expression
of journalists as a particularly important thing and therefore
will strive hardwe have seen this in other areasto
protect freedom of expression of the press because that is one
of the streams of a free society, one of the pillars of a free
society, but I am not sure in the context of this particular case
if the facts had been a private individual rather than a journalist,
so long as the private individual had some legitimate reason for
doing it, the decision would have been different. I would have
thought it would probably have been the same, but that is a rather
646. I am just trying to tease this out. Some
of the dreadful material that we have had that came on the Internet
which purported to expose what was happening as a matter of information
that the public ought to know was vilification of the highest
order in my book, but could that be defended on that ground?
(Lord Goldsmith) I understand now, Lady Richardson,
where the question is coming from. I was assuming in the example
you gave me that, as was the case with the journalist where it
was expressly held that he was acting in good faith and it was
his purpose to expose racist views, that was the case with the
individual. It was of course very easy, we see it in all sorts
of experiences, for people to purport to be doing one thing when,
in fact, they are doing something else. There is of course the
"no truth in this allegation" sort of journalistic comment
which is actually intended to say quite the opposite. That is
obviously something on which one has to take a judgment. If there
were an issue as to whether this was genuinely intended to expose
wrong doing or it is in fact wrong doing itself, that is precisely
the sort of area where we will make a judgment and ultimately
the court will make a judgment as to what the motives genuinely
Baroness Massey of Darwen
647. Does this freedom of the press include
the whole media?
(Lord Goldsmith) Yes.
648. So it is television, radio?
(Lord Goldsmith) Yes.
649. I think we can come on to the second point
that was left over which is a sub-set and mixed up with the ones
that I will ask you later. You have already explained the sort
of approach that you would take towards the application of Article
10, and your predecessor no doubt did the same before you. There
was also the question we asked about the high threshold test.
You dealt with that to some extent although in correspondence
you said you did not want that to be read in isolation from the
rest of the draft guidelines put forward. What I think we find
a matter of some concern is the question of whether your consent
as the Attorney and as an important member, although an impartial
one, of the government is the right way of dealing with the Article
10(2) clarifications, and this is really the second of the supplementary
points I would make, or whether the judgment on this ought to
be handed over to judicial processes. I think this is something
which is at the heart of the problems that we had about clause
2 of the Bill and about your involvement in it and your views
on it would be extremely welcome.
(Lord Goldsmith) Can I preface the direct answer to
the question by setting the scene slightly. The experience I believe
we have when dealing with Part III of the Public Order Act is
really two-fold: first of all, that the criminal threshold for
the offence is an onerous onethat is largely what I was
getting at when I talked about the high threshold, racial hatred,
hatred of a group, hatred being a strong word, all those sorts
of pointsand secondly that it is tried and tested. I am
not aware, it may be that the Committee is, in which case I would
be pleased to try and deal with it, that it has ever been thought
that my consent or that of my predecessors has been exercised
in a way which was anything other than proper or having regard
to the right considerations.
650. I will come back, if I may, to that.
(Lord Goldsmith) The second point is that the proposed
offence which I advocated in the Anti-Terrorism, Crime and Security
Billand I was disappointed at the time that Parliament
had not agreed it was right to do itis tracking the existing
offence under Part III of the Public Order Act and I think it
is not therefore creating something which is entirely new. The
third point is that the primary balance, and it is important to
stress this, is initially set by Parliament and that is what one
is looking to. When I exercise my power to consent, whether it
is to this sort of offence or indeed in any of the other cases
where I have a duty or statutory power to consent, I do so of
course independently from government, that is clear, and there
is a very good precedent and each incoming law officer is reminded
of the collapse of the first Labour government in the 1920s which
is believed to have been as a result of the Attorney of the day
succumbing to political pressure in relation to a particular prosecution.
It is important as well that it is not just independent but quasi
judicial, and that is what I am attempting to do. I am considering
whether or not the evidence is there sufficiently and whether
or not the public interest justifies a prosecution, and in the
latter respect, up to a point, in the same way as any prosecutor
would be required to do. So I regard personally the requirement
for my consent as an entirely appropriate safeguard against unmeritorious
cases going forward, against the wrong cases going forward. I
have to say I am not sure what it is that the Committee might
think would be achieved or some members of the Committee might
think be achieved by incorporating Article 10 directly somehow
into specific legislation. The courts of course will be required
to interpret any offence, in any event, in accordance with the
Convention rights. That will be required by Article 3 of the Human
Rights Act. I am not sure I understand at the moment how to insert
a specific reference to Article 10(2) in the legislation would
work, so it does not at the moment seem to me to be something
that would achieve anything worthwhile, but I may not understand
what the Committee might have in mind.
651. I think the problem is that the courts
are already required (and it is not under section 3 of the Human
Rights Act, it is under section 12) to pay particular attention
in a case where Article 10 is involved. If they are going to pay
particular attention, they will only be able do so if they have
the matter before them. You are the person who decides whether
they shall or shall not have it before them. Might it not be better
for these purposes if the courts themselvesI do not think
any of us is suggesting we incorporate10(2) into the legislation,
it is not necessary because the Human Rights Act has already given
emphasis on thismake the judgment as to whether the qualifications
on the freedom of expression have in fact been properly adhered
to in the case that is being tried before you rather than have
it pre-empted by you?
(Lord Goldsmith) This is where I do not quite understand.
Of course, my decision does not in a sense pre-empt anything.
The court then receives the case and it is tried, whether by jury
or however it is tried, and the factual elements all have to be
tested and found or not found by the court in question. So too
does the interpretation of conduct. Hatred is a word that is not
defined, take that by way of example, and the court has to decide
whether or not what happened constitutes hatred, and in considering
what does constitute hatred the court should also have regard
(this is why I refer to section 3) to what would be compatible
with the Convention right. If they thought that something falling
below a certain standard would not be compatible with having an
offence and still respecting properly the Convention right, then
the court would interpret the words in a stronger sense. That
is why I referred to section 3. I do not think it is taking away
from the courts in any event. I am an important filter which prevents
vexatious cases and unmeritorious cases coming to court and also
exercises a degree of safeguard for Parliament to see that cases
do not even get to the court which ought not get to the court,
and once they get to the court it is for the court to determine.
It is quite a long answer
652. It was a long question.
(Lord Goldsmith) I hope it has helped.
653. The material that has come to us from our
witnesses does not necessarily start from the proposition that
you have put forward, that you have consented to the case going
forward. This is one of the reasons why we have had requests from
a number of people that there should be reasons given for your
refusal to give your consent, that there should be an annual report
on the activities under, say, Part III of the 1986 Act and now
Section 39, which is nothing to do with you, of the Anti-Terrorism,
Crime and Security Act. There is a fear that the monitoring of
the perpetrators and the victims has not been properly assessed.
There is a difference between police force approaches to this
and, indeed, perhaps in the way in which the CPS in different
parts of the country carries out its duties in such cases, so
it is really where you do not have a case where there has been
a concern. I suppose that means that you are capable of being
judicially reviewed over a refusal to give consent but that is
not the same thing as leaving it to the court to say whether it
falls within the qualifications of Article 10(2).
(Lord Goldsmith) With respect to those who made this
point, I do not think this has anything at all to do with consent.
I think it is an entirely different problemand it is a
problemand I will indicate what I have attempted to do
about it. In the sort of case one is concerned with where there
is typically material which is published, there are a number of
practical problems about prosecution. The classic problem is identifying
who is actually responsible for the material. Other problems are
to whom it is directed and where it has been produced, and it
is those practical problems, generally speaking, which have been
the impediments to prosecution. I was concerned about this as
a result of approaches to me. I therefore asked both the police
(ACPO) and the Crown Prosecution Service to see me to discuss
with them what the problems were and as a result of that they
have now held two seminars where they have brought together those
in the police forces who are responsible for prosecuting Part
III Public Order Act offences and experienced prosecutors to see
whether we can find ways through discussions between the prosecutors
and the police of resolving some of these practical problems or
finding ways round them so that solutions to some of these problems
would be found. Sometimes they will not be found, that is quite
plain, but I do not think this is anything to do with the question
as to whether or not the consent is there. The problem is not
that cases are coming to me and I am saying no, it is that they
not getting there at all because the evidence is not available.
I do agree with those who are saying this is very serious conduct,
it potentially causes great social unrest and, worse, it stirs
up racial hatred under the existing law. We must therefore do
all we can to make sure we root it out and the best that I can
do is to suggest practical solutions to police and prosecutors
to work together to try and get over those difficulties.
654. You seem to be saying that no case has
ever come before you which you have had to reject whilst the CPS
thinks there was sufficient evidence to prosecute.
(Lord Goldsmith) There have been, for different reasons,
cases that I have not been able to pursue but those are to do
with other public interest considerations which may sometimes
arise in cases.
655. I think we would be interested in knowing
something about those public interest considerations.
(Lord Goldsmith) The reason I was hesitating in answering
is because I am not sure whether by answering the question I would
be doing the very thing I was trying to I avoid by declining consent.
May I just confer for a moment about this with Ms Dowd.
656. Please do.
(Lord Goldsmith) I think there would be a real difficulty
in my giving publicly any further information about this. If the
Committee thought it was appropriate I would be very happy to
explain privately to the Lord Chairman what the nature of the
issue is in the case I have in mind.
657. We could discuss whether that should be
taken up, but the issue that has really emerged from the evidence
that has been given to us is that by comparison with Part III
of the 1986 Act where there has been remarkably little activity,
there is a disillusionment by the failure of the prosecuting authorities
to deal with some of these things. You have explained to us just
now, and I think it is very useful to have it on the record, some
of the problems that confront you. I can also see that difficulties
arise over bringing prosecutions in relation to what is on web
sites, particularly if they are web sites that emanate from abroad,
but the real essence of the concern has been that there have been
complaints made about things which are perceived as being very
serious (this is so far on the racial side) but nothing has happened.
(Lord Goldsmith) It cannot possibly be right to say
that nothing has happened, there is a prosecution taking place
at the Old Bailey next week, if I remember correctly, in relation
to a matter where I have consented. So certainly consents have
been given and in the past I have given information pursuant to
parliamentary questions as to the number of cases that have been
brought. It is helpful to bear in mind that there are cases where
there is another offence involved as well so that they fall into
the racially aggravated version, and that is the majority of cases.
The racial element does come out but it comes out through the
racially aggravated offence rather than through the incitement
offence. Certainly cases are brought. As I indicated before, the
practical problems in relation to these cases are more the issue,
which is why I asked the police and the CPS to get together at
a very senior level to discuss the problems that the police forces
felt they had and to see whether they could be solved, and also
to make sure there was greater consistency, and the CPS does operate
consistently. All of these cases are dealt with by the Crown Prosecution
Service at its headquarters. That is not the case in relation
to the police and it seemed to me that it might be helpful, therefore,
to put the local police forces directly in contact with the Crown
Prosecution Service headquarters that deals with this sort of
case, which would be able to give them advice and assistance in
the cases they came across.
658. I think we would welcome the initiative
that you have taken in that respect. The fact remains that if
you refuse to give your consent, am I not right in thinking that
you are open to judicial review for that decision and you would
then have to give your reasons?
(Lord Goldsmith) I do not think it has yet been tested.
In the very well-known case of nearly 30 years ago of Mr Gouriet
there was a very considerable debate in the courts about whether
or not the accountability of the Attorney General, who declined
his consent, in a rather different case, was to the courts or
whether it was to Parliament. The House of Lords at that stage
said it was to Parliament. Things have changed, judicial review
has developed, but I am not aware of any case which has yet said
that this matter, for which I would expect to be accountable to
the public through Parliament, is now a matter for judicial review.
Certainly decisions by the prosecution not to prosecute have been
held subject to judicial review; there is a difference between
the Crown Prosecution Service and me.
659. Most people will remember what Lord Denning
said in that case but forget that he was overruled unanimously
in the House of Lords.
(Lord Goldsmith) Exactly so.