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Freedom of Speech: Hate Crime

Volume 787: debated on Wednesday 6 December 2017


Asked by

To ask Her Majesty’s Government, further to the Written Answer by Baroness Vere of Norbiton on 20 November (HL2876), what assessment they have made of the impact on freedom of speech of the definition of hate crime recently adopted by the Crown Prosecution Service to facilitate the reporting of incidents which is wider than the legal definition of such crime under the Crime and Disorder Act 1998 and the Criminal Justice Act 2003.

My Lords, the CPS seeks to balance the right to freedom of speech and expression with the duty of the state to act proportionately against those who wish to deepen and extend divisions in the social fabric of our nation. The public statements and the guidance are clear. The CPS recognises the potential impact of overzealous prosecutions on rights under Article 10 of the European Convention on Human Rights. Currently, we feel that the balance is correct.

I thank the Minister for her understandably somewhat evasive reply; I hope she is really concerned at the continuous attrition of freedom of speech. She will be aware that the Crown Prosecution Service, by widening unilaterally the definition of racially aggravated crime, has made a bad situation worse. People are afraid to speak their mind, and even a remark can be a criminal offence. Does she agree that freedom of expression must come before bruised feelings? Will she please instruct the CPS to re-examine its instructions and thus protect our ancient liberties?

I thank my noble friend for his series of questions. The CPS legal guidance and public statements on all strands of hate crimes were revised and published in August 2017. However, the flagging definition of hate crime was not changed—indeed, it has been the same since 2007. Both the police and the CPS use this definition to flag potential hate crime. He also mentioned the attrition of freedom of speech. I am afraid once again to disappoint my noble friend, but I am not sure I can agree with him. I am an avid user of Twitter and think we could all agree that there is freedom of speech on a daily basis, and perhaps increased vociferousness, which I think is a good thing.

My Lords, will the Government and the prosecuting authorities always remember that freedom of speech is one of our hard-fought-for liberties? Regrettably—and for very good reasons—inroads have had to be made, but there can be unintended consequences if one does not tread extremely carefully. When I was Attorney-General it was my statutory personal responsibility to authorise some prosecutions. One was of an old lady in her 80s who repeatedly published vile anti-Semitic literature and was repeatedly jailed for disobeying the court, and got immense publicity from so doing. When I eventually decided not to prosecute, no more was heard of her.

I think almost all noble Lords would agree that freedom of speech is a fundamental right. I think the noble and learned Lord was referring there to the offence of stirring up hatred from his time as Attorney-General, and indeed it does need the Attorney-General’s permission to prosecute those offences. In the last year there have just been four such prosecutions, all of which were successful.

The Question from the noble Lord, Lord Vinson, makes the distinction between the perception of the victim and the hostile motivation of the accused, which has to be proved in court. I suggest that that is a very arid distinction in the context of decisions to investigate and prosecute. Does the Minister agree that the CPS can realistically base its definition of hate crime only on the perception of victims? Will she reaffirm the emphasis in her earlier Written Answer on the importance of the CPS retaining the confidence of the minority communities that are targeted by hate crime?

I think all noble Lords know the background to where we are today. Twenty years ago this country had a very poor record of dealing with hate crime, and confidence in the criminal justice system among BAME communities was extremely low. We have come a long way. It is important to remember that the definition is used for flagging crimes; when it comes to charging those crimes, they still have to be done within the same legal framework as always.

I do not think my noble friend has any authority to instruct the Director of Public Prosecutions in any way. However, she could write to ask the DPP whether she agrees with the statement in the Question that the definition is broader than what is in the statute and, only if so, to explain the authority on which that has been issued.

My Lords, I will happily write to the director to ask those questions. I believe the response will be that it is broader but it is not used for charging; it is used purely for flagging those cases that may be a hate crime. That definition is a very important one.

My Lords, will the Government confirm that the latest definition from the CPS of a hate crime is one which is perceived by the victim or any other person to be motivated by prejudice based on a person’s religion? Will the Government therefore confirm unequivocally that a Christian who says that Jesus is the only Son of the one true God cannot be arrested for hate crime or any other offence, however much it may offend a Muslim or anyone of any other religion?

My Lords, I am not going to comment on that last question from the noble Lord. However, I will say that when the public statements were revised, the definition did not change; it has been the same for the last 10 years. The noble Lord will also be interested to know that that was as a result of a public consultation that went on for 13 weeks. There were 126 responses, and overall they were positive and welcomed the revised public statements.