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The original allegation by the police was that the programme had been so heavily edited and taken out of context that it had completely distorted the meaning—a very serious allegation to make without proper scrutiny of the programme’s contents. Even more disturbing and worrying was the fact that the CPS was asked to consider instituting proceedings against those involved in making the programme for inciting racial hatred. Despite CPS advice that there was no evidence that any offences were committed by the programme makers or broadcasters, the police decided to refer the matter to Ofcom. I should have thought that before publishing the press release on 8 August 2007, West Midlands Police should have asked Ofcom to undertake an independent investigation. It would have been told that the review of evidence, including unscripted footage and scripts, demonstrated that the programme had accurately represented the material that it had gathered and dealt with the subject matter responsibly and in context.

I abhor extremism of any kind; it should have no place in a democratic society. The media have a role in exposing extremism; many agencies are too patronising

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towards individuals in our communities and often political correctness inhibits actions that could prevent the preaching of hatred in some of our so-called religious institutions. It beggars belief that instead of complimenting Channel 4 for exposing hate merchants who peddle extremism, the West Midlands Police force concluded that,

Yet it was perfectly happy to consider instituting proceedings against Channel 4 for inciting racial hatred.

Again, where was the then Commission for Racial Equality, whose duties included the promotion of equality of opportunity and good relations? It had been marginalised to such an extent that it does not seem to have been consulted, nor did it offer an opinion even after the matter became public. I am afraid that this is not good enough. Someone in West Midlands Police must have taken a decision during the examination of the broadcast material and the unbroadcast material that proceedings should be instituted against Channel 4. We are told that the West Midlands Police is bound by the terms of a court order as to what it can or cannot say—a point mentioned by the Attorney-General. How are we to be assured that appropriate disciplinary aspects of this matter were investigated and dealt with? How do we know?

I wrote to Nick Hardwick, chair of the Independent Police Complaints Commission. He tells me that the IPPC was not involved in this matter directly; there were no allegations of misconduct against individual officers, as far as he was aware. This sounds very odd. The Independent Police Complaints Commission was entitled to know if during the police examination of the broadcast and unbroadcast material someone took a view which West Midlands Police has realised was mistaken. Who was that someone? How can the IPCC conduct its business if such vital information is withheld on the grounds that the West Midlands Police was bound by the terms of a court order stating what it can and cannot say?

It is not good enough to say, “We got it wrong and we have apologised”. We are entitled to know why the West Midlands Police and the CPS did not regard “Undercover Mosque” as a serious programme dealing with a legitimate area of concern. Neither body gave thought to the freedom of expression so fundamental to our civil liberties. At best it smacks of self-censorship, and I am glad that this misguided approach to improve community relations backfired. It has undoubtedly damaged community relations. We are entitled to know what motivated the actions and complaints against the programme.

The National Secular Society complained to the police, the police authority, the IPCC and HMI Constabulary. The request was rejected on the basis that it was not recognised under the Police Reform Act 2002. In effect, the police did not even have to investigate the complaint. That sounds very odd again. I find it difficult to accept that the Police Reform Act is sufficient to deal with the actions of the police, as mentioned by the Home Office Minister. I am not

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surprised that the IPCC is now reviewing the police complaints system and revising its statutory guidance to consider any changes that may be necessary.

Equality has a particular significance in the field of criminal justice. It strikes at the very heart of our democratic process. Police powers, if used oppressively, could ruin the lives of victims. The police need to take a dispassionate approach on policing matters. The recent incidents are a case in point. Damian Green, the shadow Immigration Minister, found himself at the centre of a major investigation. His office and home were searched and he was arrested and questioned for a long period by the police, all because the Home Office claimed that the leaks constituted a threat to national security. The Director of Public Prosecutions was reported to have said that the information leaked was not secret information or information affecting national security. This view was echoed by the Home Affairs Select Committee. So where was the independent judgment before proceeding to arrest a Member of Parliament?

We also have a series of complaints about the behaviour of some police officers against the G20 protesters. These matters are being investigated by the IPCC. Suffice it to say that the graphic incidents projected on our television screens are a matter of serious concern. Policing to a large extent depends on its independence and the consent that it receives from the public. The independent judgment was lacking in how West Midlands Police handled the Channel 4 documentary.

Nick Hardwick is right to remind the police that they are “servants not masters” of the people. It has taken years of struggle in this country to establish rights and liberties of individuals. Freedom of expression was very nearly trampled on by the police in how they dealt with Channel 4.

8.17 pm

Baroness Warsi: My Lords, I add my thanks to the noble Lord, Lord Thomas of Gresford, on securing a debate of such importance. It is also a privilege to follow the noble Lord, Lord Dholakia, who, as always, was thoughtful and gently probing.

Eminent lawyers surround me. Details regarding the law and procedure have already been discussed, to which I am sure the Minister will respond. My focus is to be more on policy—the balance between ease, community cohesion, legitimate debate and freedom of speech. The two have clashed on many occasions recently. The publication of the Danish cartoons is one example. Britain has been traditionally resilient and has relied on its inherent common sense. I am from Yorkshire, where we have quite a lot of that. As I said at the time, the papers had a right to publish the cartoons but a responsibility not to. We in Britain used our inherent common sense on that occasion.

There is no doubt that the radicalisation of young British citizens is an urgent concern of our time. It poses a threat not only to immediate UK national security, but also to long-term community relations. Both “Undercover Mosque” programmes raised a number of important issues—the content of some preaching in some mosques, the content of literature available at

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some mosques, and the interpretation or misinterpretation of the faith of Islam to support a viewpoint, especially around women.

How do we deal with this? Any Government’s position might start from legislation to indicate what we as a society will or will not tolerate. The noble Lord, Lord Bew, raised an important issue about intolerance. I shall be interested in the Minister’s response on how we legislate for intolerance, and, if possible, whether we criminalise it and, more importantly, on implementing that legislation and using the legislation that we have. I refer to two examples. First, Abu Hamza was in 2006 eventually convicted on some offences under the Offences Against the Person Act 1861. Why is it that when we have legislation on our books we delay using it? Secondly, there is female genital mutilation. I had a very helpful response from the noble Lord, Lord West, in response to a Parliamentary Question. He said that in 2007 a study by Forward revealed that nearly 66,000 women with FGM were living in England and Wales. Despite having the legislation, to date neither the Metropolitan Police Service nor the Crown Prosecution Service has a record of any arrest or prosecutions being commenced under either the 1985 or the 2003 Act. What is the point of legislation if we are not going to implement it?

We must foster a culture where there can be debate within an open and honest forum—not undercover, not stifled by political correctness, not negatively targeting individual communities and not covering up, creating and allowing conspiracy theories to be created, and a mood of distrust. The questions rightly referred to by the noble Lord, Lord Bew, are exactly the type of questions that must be answered to stop that mood of distrust.

I argue that the Government’s response in these areas has been neither sufficiently clear nor consistent. For example, in 2005 Tony Blair announced that Hizb ut-Tahrir would be banned as an organisation. That has not happened. Will the Minister indicate that there has now been a change in government policy? If so, what is the current position?

Will the Minister also confirm the current remit of MINAB, the board set up by the Government to address issues such as those raised in the “Dispatches” programme? Do the Government fund MINAB? If so, by how much? What contact does it have with the Government? How effective has it been? In addition, is this supported by independent evaluation?

We must question whether any lessons have been learnt from the incidents raised in the “Dispatches” programmes. Since then has any guidance been issued to police? Has any specific guidance been issued on the specific offences considered by the police initially to have been committed? Does the Minister also accept that it is increasingly difficult in Britain, both in policy-making and in the media, to engage in thoughtful free debate?

We are committed to the notion of “Prevent” as part of the CONTEST strategy. Will the Minister accept that the success of the Preventing Violent

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Extremism fund is questionable and that there is an urgent need for a transparent, evidence-based evaluation of the scheme?

Does the Minister also accept that the British Muslim community feels that increasingly it is treated as a homogenous block engaged with and defined through the prism of extremism? Will she further accept that the setting up of groups, such as the Muslim women’s advisory group, has further compounded this problem?

I end with a subject close to my heart—women in Islam. Unfortunately, a number of deeply offensive comments were made during the two “Dispatches” programmes around women and Islam. Will the Minister be brave enough today to accept that the Government and, indeed, individual members of the other place have not challenged enough self-appointed community leaders who for too long have been the interface between politicians and a community? It is now essential that electoral advantage and securing votes must be put aside in favour of equality and fairness and for engagement to be based on needs and issues with individuals.

8.24 pm

Baroness Scotland of Asthal: My Lords, I thank all those who have participated in the debate but, of course, primarily the noble Lord, Lord Thomas of Gresford, for initiating it. I found the comments of the noble Baroness, Lady Warsi, very interesting indeed, and insightful, but perhaps they did not really arise out of the issues raised in the debate. I say to her straight away that she will know that female genital mutilation is an issue about which I have had some passion for a long time. We pursued with great vigour the need to raise it as an issue of importance, so that people will look at it. Indeed, we hope that we will be able to ensure by virtue of the legislation that fewer people engage in it. That issue is being energetically pursued, but perhaps we can debate on another day, in a debate on another subject, all the issues that the noble Baroness raised in her remarks.

I turn to the issues raised by the noble Lord, Lord Thomas of Gresford, on the matters at hand. I immediately thank him for the chronology that he gave, which I do not intend to repeat. There are a few minor issues that I hope he will not mind me clarifying. The order made in relation to damages was £50,000 for both defenders. I can quite see how the mistake happens that you double up—

Lord Thomas of Gresford: My Lords, I believe that the costs were £50,000, and the expression I used was “damages and costs”.

Baroness Scotland of Asthal: My Lords, of course I hear what the noble Lord says. He will know that I have no engagement in this particular case. All I do is refer to the order that was made, and the order refers to £50,000; I assume that the order is right.

From listening to the noble Lords, Lord Thomas of Gresford, Lord Dholakia and Lord Bew, and the noble Baroness, Lady Warsi, the real issue does not appear to be the decision that was made on the law about the matters complained of. It seems from what the noble Lord, Lord Thomas, and, by implication, the noble Lords, Lord Bew and Lord Dholakia, have

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each said, that it is agreed that the assessment was that there was no offence that could properly be prosecuted. It is also agreed that that decision was right. It was reviewed by the Director of Public Prosecutions. Having looked at the documents, I can see no reason to disagree with that assessment. I affirm what has been said by the noble Lords: it was the correct assessment.

The real problem appears to have arisen with a press release that was given on behalf of both the CPS and the West Midlands police. Noble Lords will recall that, until fairly recently, the CPS did not make comments in press releases at all. There has been a real attempt at greater openness and participation, and an opportunity to explain to the public and the world at large what the CPS does and how it does it. I respectfully say that it has apologised for what has clearly been a mistake that entered into this press release, a mistake that has been trenchantly reviewed. There is no suggestion that the lawyer reviewing the case did anything improper or failed to address her mind to the correct standard that had to apply on whether there should or should not be a prosecution.

Noble Lords will know that there is a clear distinction between what the investigating officer will do and what the prosecution will do in assessing whether there is, or is not, a charge. The CPS will always respond if asked to advise as to whether there are offences, and it will appropriately advise any police authority that asks it so to do. On both the programme makers and the matters raised in the “Dispatches” programme, the CPS looked at the documents, reviewed the matter in its entirely and came to an independent decision based on the law.

Noble Lords will also know that at the time that this process was going on we were almost simultaneously debating the provisions on religious hatred. That law had therefore not then come into being. The lawyers were looking at the law as it then was.

It was indeed unfortunate that the press release, which is what we have concentrated on, caused so much controversy and difficulty. It is clear, and it has been agreed, that insufficient attention was given to it. I shall not go into the details of what was and was not said because although the noble Lords, Lord Thomas of Gresford and Lord Dholakia, may not feel bound by the court order, the CPS certainly is in terms of discussing what was said in the release, why it was said and the circumstances which came about. All I can say to your Lordships is that the judgment that the CPS has to make on whether the nature of the matters complained of is sufficient to justify a prosecution differs in many material respects from the decision that Ofcom would have to make on whether the statements contained therein are accurately reflected in the programme. They are different criteria. I hope that it suffices for me to say that.

The noble Lord, Lord Bew, referred to accepting or challenging statements that were made. There is a distinction between challenging a disagreeable statement, which we should do robustly, and instituting criminal proceedings in relation to it. We should always challenge intemperate, ill judged and disobliging statements which seek to divide us from each other. It is our individual responsibility to challenge such statements

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strongly. I reassure the noble Lord, Lord Thomas of Gresford, that we absolutely understand the importance of freedom of speech. It is fundamental to our liberty and our democracy and forms part of the standards that we apply when looking at all matters. The European Convention on Human Rights in all its beauty is incorporated in the judgments that we have to make as lawyers on whether to prosecute. All of the ECHR, each and every article, has to be looked at, not one in particular. They are not all recited because they are all relevant and will play a part. I assure the noble Lord that these issues are reviewed regularly by each of the directors of the Crown Prosecution Service. As noble Lords will know, the new director, Keir Starmer, has an unimpeachable history in relation to human rights.

The CPS’s current policy does not envisage prosecuting those who are legitimately expressing their views under Article 10 of the European Convention on Human Rights, which allows the freedom of expression save for limited circumstances, including those offences set out in Part 3 of the Public Order Act 1986. In a free and democratic tolerant society, a balance of course needs to be struck between the rights of the individual to freedom of expression and 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. Therefore, as I said, although the ECHR is not specifically set out in the code, the code says that Crown prosecutors must apply the principles of ECHR in accordance with the Human Rights Act 1998, and the implications and effects of the human rights legislation must be considered in all cases. I am very happy to look at any further ways in which we can reinforce that, if it is needed.

I know that the noble Lord, Lord Thomas of Gresford, is concerned about what happened in this case, and that concern was echoed by the noble Lord, Lord Dholakia. I reassure them that the reference that was made to Ofcom was made by the police on their own. They are entitled to do that. The advice in relation to that matter was not sought by the CPS and the CPS did not seek to engage in it. That is perfectly proper. The CPS could in no way bind—

Lord Thomas of Gresford: My Lords, the noble and learned Baroness is aware that the reference to Ofcom coincided with—in fact, I think that it occurred the day before—the press release to which the CPS was a party. The lady to whom I referred, who was the CPS lawyer, accused Channel 4 and the programme makers of fakery—something which they knew would get enormous press publicity, as it did. How can she dissociate the CPS from the decision to send it to Ofcom?

Baroness Scotland of Asthal: My Lords, it is because it was not a joint reference; it was a reference made by the police alone. I am slightly hampered, because in order to explain the chronology of how that press release came to be made, I would have to explain the basis on which the statements were made in a document that was used to create the press release.

It is only fair to the lawyer involved to tell the House that she did not see the press release before it went out. There are a number of issues which I can assure the House the CPS has learnt from in terms of

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procedure, process and review. In the division that was responsible for this work—which has been very highly praised in the recent review undertaken by Her Majesty’s Inspectorate for the Crown Prosecution Service—all the lawyers have been seared by the experience that has been highlighted in this case. It is absolutely one which has made sure that the process through which press releases now go has changed really quite radically in terms of the care.

Lord Thomas of Gresford: My Lords, I am sorry to be tiresome, and I am most grateful to the noble and learned Baroness for giving way again. In his letter, Mr Vernon Coaker said that media releases had to go through the press department of the CPS to be approved. Did that happen in this case?

Baroness Scotland of Asthal: My Lords, it did, and it was approved at a high level. That is why I say to the House that in the process that this went through—the CPS has apologised—quite clearly mistakes were made. The way in which this press release went out has been the subject of internal scrutiny, so that those who now undertake this work understand the perils of not dotting all the “i”s and crossing all the “t”s. It is a sad thing to say that mistakes happen; I assure the House that this was one of them. It was a bad one, and it was one for which both the police and the CPS apologised. It was one for which they agreed to pay money, which was subsequently given to a charity. It is a lesson from which they will learn and have learnt. It was the beginning of the process, but it has in no way dissuaded the CPS from understanding that explaining its decisions is very important.

I thank the noble Lord, Lord Thomas of Gresford, for giving me this opportunity to—I hope—reassure the House that, notwithstanding the difficulty that these sorts of cases engender, the Crown Prosecution Service and the police together will continue to do their duty without fear or favour, independently operating within the proper ambit of the law, taking into consideration the European Convention on Human Rights, prosecuting when and if appropriate, not prosecuting if it is not made up but, to take the words of the noble Lord, Lord Bew, and the noble Baroness, Lady Warsi, challenging those who seek to speak inappropriately on behalf of others, particularly when they do so in such salacious and damaging ways to our community. All those things will continue. I thank the noble Lord for raising this, and I hope that I have been able to explain to him, with due humility, the mistakes that were made and the fact that everyone has learnt from them.

8.39 pm

Sitting suspended.

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