Racial Hatred: "Undercover Mosque" — Question for Short Debate

– in the House of Lords at 7:30 pm on 20th April 2009.

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Tabled By Lord Thomas of Gresford

To ask Her Majesty's Government what assessment they have made of the investigation by the Crown Prosecution Service and West Midlands Police into the Channel 4 Dispatches programme "Undercover Mosque"; and whether this has affected policy on the prosecution of offences of incitement to racial hatred.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General 7:44 pm, 20th April 2009

My Lords, on 15 January 2007, Channel 4 broadcast an episode of its current affairs series "Dispatches", entitled "Undercover Mosque". The programme, made by Hard Cash Productions, was the result of nine months' undercover investigation of a number of mosques in London, Birmingham and Derby, where recordings were made of various preachers in action. Copies of DVDs and handouts of their speeches and sermons, which were freely available at these venues, were also considered.

I shall give a flavour of the nature of this material. The programme included the following. At the Sparkbrook mosque, a visiting preacher was captured on film praising the Taliban. In response to the news that a British Muslim soldier had been killed fighting the Taliban and had been hailed in the press as a hero, the speaker declared:

"The hero of Islam is the one who separated his head from his shoulders".

In a Green Lane mosque internet broadcast, another said of women:

"Allah has created the woman—even if she gets a PhD—deficient. Her intellect is incomplete, deficient".

On gay rights, another recommended the Islamic punishment for homosexuality:

"Take the homosexual and throw him off the mountain".

Democratic government was not in favour either. A speaker at the Sparkbrook mosque told his flock that Muslims cannot accept the rule of non-Muslims:

"You cannot accept the rule of the kaffir"— that is, the non-Muslim.

"We have to rule ourselves and we have to rule the others".

The programme's message was that extreme, anti-democratic and unpalatable views were being preached in a number of mainstream mosques and Islamic organisations that claim to be committed to interfaith dialogue.

The West Midlands Police launched an investigation immediately after the programme was transmitted into whether criminal offences had been committed, particularly by three of those who had been teaching or preaching at the mosques and other establishments. On 26 March 2007, the police sought and obtained at the High Court a production order for all the secretly recorded footage that had not been broadcast by Channel 4. When the order was obtained, Channel 4 made it clear to the police that the legal advice that it had received over a period before broadcasting was that, while the film contained many clearly expressed abhorrent views, those professing those views were not breaking any law. After investigation, the police presented their file to the Crown Prosecution Service, which decided, as Channel 4 lawyers had advised, that there was insufficient evidence to bring charges against any person featured in the programme.

Then everything was turned topsy-turvy. The West Midlands Police were not going to let their investigation go to waste and on 8 August 2007 they and the CPS issued a joint press release. It was revealed that they had jointly gone on to consider potential offences that might have been committed by those involved in the production and broadcast of the programme—specifically, whether they had been stirring up racial hatred and committing offences against the Public Order Act. The CPS reviewing lawyer, Ms Bethan David, who had reviewed all 56 hours of the media footage, announced:

"The splicing together of extracts from longer speeches appears to have completely distorted what the speakers were saying".

She said:

"We have been dealing with a heavily edited television programme, apparently taking out of context"—

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Attorney General's Office, The Attorney-General

My Lords, I hesitate to stop the noble Lord in full flow, but he will remember that an order was made pursuant to hearing in relation to that press release. That order prohibited the repetition of the complaints that were made, which the noble Lord is about to deal with. I wanted to remind him of that, because I am sure that he will be anxious to comply.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

I most certainly am, my Lords. Because of that, I took specific instructions from those at Channel 4 who were involved in the consent order that was subsequently obtained. I am informed by them that the order was subject to no restriction save that the libels should not be repeated. My speech is directed not to that but, as the noble and learned Baroness knows, to a wider context.

As I was saying, the CPS lawyer said in the press release:

"We have been dealing with a heavily edited television programme, apparently taking out of context aspects of speeches which in their totality could never provide a realistic prospect of any convictions".

True it was that the CPS advised that a realistic prospect of a conviction of the production company was unlikely, but that was because it was not possible to identify a key individual in the production company who might have had the necessary intent to stir up racial hatred.

The joint statement went on to reveal that the West Midlands Police had referred the matter to Ofcom, complaining of distortion. Assistant Chief Constable Anil Patani, who was in charge of security and cohesion, wrote that the programme had been,

"subject to such an intensity of editing that those featured in the broadcast programme had been misrepresented".

He complained that community cohesion was undermined and that an unfair, unjust and inaccurate perception of both the speakers and sections of the Muslim community had been created.

No attempt was made to discuss their concerns with Channel 4 in advance of going public. The authors of the joint statement knew that an allegation of fakery would generate significant media interest, as indeed it did. This was the very first time that any police force in the United Kingdom had seen it within its remit to make a complaint to Ofcom about the subject matter of an investigation in lieu of prosecution. Its complaint was rejected by Ofcom on 19 November 2007, when it was said that "Undercover Mosque",

"was a legitimate investigation, uncovering matters of important public interest".

Ofcom found no evidence that the broadcaster had misled the audience or that the programme was likely to encourage or incite criminal activity.

On 15 May 2008, a consent order was made, to which the noble and learned Baroness has referred, in which the West Midlands Police and the CPS apologised in the High Court to Channel 4, the makers of the documentary, accepting that there was no evidence to found the complaint that they had made. They jointly paid £100,000 in damages and costs. To the Home Affairs Committee on 4 November last, Deputy Chief Constable Gormley said:

"We got it wrong; it is as simple as that".

The CPS has stated, as the noble and learned Baroness has just said, that it cannot talk about the circumstances because of the court order. I have already indicated to your Lordships what my inquiries have revealed as to the nature of that court order.

My first question to the Attorney-General is: what influences were at work on the CPS reviewing lawyer who, while rejecting the inflammatory material as unlikely to stir up racial prejudice, nevertheless appears to have encouraged the police to complain of distortion to Ofcom? Was she on a frolic of her own? Was she of equivalent status in the CPS to the Assistant Chief Constable, Mr Anil Patani, with whom she shared that statement? To what extent did she see the independence of the CPS in being a party to it? Was her collaboration with him known to her line managers, and was the joint press statement vetted by a higher authority in the CPS in such a highly sensitive area? Indeed, was the Director of Public Prosecutions himself consulted?

In his response to queries raised by my colleague, Paul Holmes MP, Mr Vernon Coaker, Minister of State, wrote saying that the complaint to Ofcom was made independently of the CPS and not with its approval. Does that mean that the CPS as a body disapproved and that the complaint was contrary to its advice? It is an attempt to distance the CPS from the West Midlands Police and is quite inconsistent with the apology that the CPS made in the High Court. Eleven months have passed since that apology. Has there been an investigation into the circumstances or any disciplinary proceedings? What management lessons have been learnt and put into practice? What management controls are in existence?

The second area of questioning that I have for the noble and learned Baroness is the guidance given to prosecutors on the right to free speech, enshrined in the common law of this country, not to mention the European Convention on Human Rights. It would seem that the CPS recognised the rights of the imams to free speech by refusing to prosecute them. Mr Coaker, in the letter to which I have referred, refers to the ECHR principles in Section 2.6 of the code for prosecutors. There is no specific reference to freedom of speech in that paragraph, nor, more importantly, does freedom of speech appear as a public interest factor in the decision to prosecute in Section 5.10 of the code. What steps has the Attorney-General taken to advise the DPP to direct prosecutors to take the right of freedom of speech into account when deciding when to prosecute, in particular to prosecute the hate crimes of incitement to religious hatred and the like? Will she support its inclusion as a public interest factor in a revision of the code?

Episodes such as this have a corrosive effect on freedom of expression in general and on self-censorship by the press and the media in particular. It is crucial that the media feel that they have as much freedom to expose and criticise unpalatable views and beliefs as those who are free to expound them. It is also important that, where public authorities have admittedly made mistakes, a full explanation should be made for the public and for those who have been affected. There should be no hiding behind court orders. I look forward to the noble and learned Baroness's explanation, transparency and reassurance.

Photo of Lord Bew Lord Bew Crossbench 7:57 pm, 20th April 2009

My Lords, I thank the noble Lord, Lord Thomas of Gresford, for initiating this debate. It is on a most important matter—a neuralgic issue in our public debate. It is of crucial significance, as it bears not only on contact with the police but also on the way in which free speech operates in our society. In his broad account of the history of this controversy, I have little to quarrel with. However, I wish to add one further point.

At this moment, investigations are going on into two recent controversial cases involving the police—the policing of the G20 demonstration and the arrest of a Member in another place, Damian Green. There is good reason to believe that we are going to get to the bottom of both cases; there is no good reason that I am aware of for not believing that at this stage. In both cases, we know many interesting things. We know what the Permanent Under-Secretary at the Home Office said to the Home Secretary, or something of what their discussions were in the context of the Damian Green case, and so on. But in the case of the "Undercover Mosque" programme and the investigation, we have had nothing but silence for a year. We do not have a proper explanation for this rather astonishing turn of events. Therefore, the noble Lord, Lord Thomas, has provided a tremendously important service in bringing this debate before the House tonight. It seems to sit on its own in a very particular and rather worrying way. I am very grateful to the noble Lord for the action that he has taken.

The "Undercover Mosque" controversy ran from the time that the programme was shown in January 2007. The noble Lord's account of the contents of the programme is pretty accurate. I would add only one passage to which he did not refer. The programme demonstrated that the London Central Mosque was selling a video in which Sheikh Feiz, a Saudi-trained cleric, told his congregation that Jews are pigs and will have to be killed. He is quoted as saying that they will be snorting, all of them, every single one of them. It was in the context of that remark and other such remarks that Roger Godsiff, the MP for Sparkbrook, originally complained, leading to the original police investigation. I quite understand the position of the police. Proving hate crimes under our current law is very difficult. It is the sudden change of tack thereafter, and the focus on the programme, that is so striking. This concluded, eventually, in the retreat, essentially, of the Crown Prosecution Service and the police and the payment of £100,000 to Channel 4.

We have heard nothing yet in explanation of what happened. The noble Lord, Lord Thomas, has already referred to the evidence given to the House of Commons Home Affairs Committee inquiry on police and the media by the deputy chief constable involved in this case, Phil Gormley. He said that the police had made a mistake. He remarked that,

"a view was formed at the time that we now realise was mistaken ... We have apologised, together with the CPS, publicly and we got it wrong".

There is no explanation of how the mistake occurred. Is it simply that the police are not good at O-level or A-level media studies? It is almost at that level; perhaps that is the answer.

We have talked already in this debate about selective quotation. There is a point to that. In what context could the sort of remarks that the noble Lord, Lord Thomas, and I quoted be exculpated, or their force reduced? It is quite true that the speakers may well have spoken on other subjects. I am an academic historian. For the first time in my life as a professional historian I have recently been working on the speeches of Adolf Hitler. I can assure noble Lords that to discover that Adolf Hitler meant ill to the Jews you have to quote selectively. You can find speeches by Adolf Hitler in June 1940 saying that he means no ill to the British Empire and that, if it was not for that difficult man Churchill, everything would be all right. He says that he means peace and no harm to the British Empire.

I am sorry, but it is a simple matter of fact that the only way in which to discover what an ideology is is to look closely at it in all its ramifications. The charge that somehow the programme was based on selective or distorted splicing together of evidence does not seem to be a serious charge and is certainly not one that Ofcom accepted. There is the amazing problem that, despite everything that has happened and despite the evidence bravely given to the Home Affairs Committee in the Commons, there is no explanation. We have heard, "Sorry, we made a mistake, but we cannot tell you why or how, or the context of the mistake".

It would be wrong to overemphasise the role of the police. For one thing, as the noble Lord, Lord Thomas, has made clear, we are also talking about the Crown Prosecution Service. The issue that has to be raised is that of the advice that may or may not have been taken. In particular, there is the role of Birmingham City Council, of its elected and unelected officials, and the role of the regional "Prevent" team. It is perfectly legitimate to ask these questions, which are asked in all other cases of this sort, as in the cases that we are currently witnessing and where we look into possible misconduct by the police. It is very strange that, somehow, the lines of public inquiry and discussion have, in this instance, silted up. There are issues about the sort of e-mails that might or might not have been sent and whether there was a calculation about the public mood in Birmingham and the sort of issues that affected it. Did these play a role? These are the sort of questions that we legitimately need answers to.

I turn finally to the Government's new document, Pursue Prevent Protect Prepare: The United Kingdom's Strategy for Countering International Terrorism. This document is of considerable importance and value. I draw attention to one passage on page 87, which struck me as being of particular relevance in the context of this evening's debate. The Government outline their policy in this respect:

"As a Government, we will also continue to challenge views which fall short of supporting violence and are within the law, but which reject and undermine our shared values and jeopardise community cohesion—the strong and positive relations between people of different ethnic, faith and cultural backgrounds in this country. Some of these views can create a climate in which people may be drawn into violent activity".

I regard this as a very important statement of policy. It arises from a public debate that has gone on and in which Policy Exchange, the think tank with which I am associated by sitting on its academic advisory panel, has played a role. I declare that interest. I regard this as a positive statement of government policy. I hope that the Minister might be able to say tonight, in the light of that statement of government policy, that it is the Government's view that we can never again have a repetition of the fiasco of the "Undercover Mosque" affair. This is a clear statement of hostility to the expression of opinion and sentiment that undermines civility in our country. The Government clearly must take this seriously and take us away from a dangerous point where we may appear to say that intolerant opinion is fine as long as it does not advocate violence. The good news from this latest statement of government policy is that the Government now—if they ever held a different position, which I hope that they did not—acknowledge that intolerant opinion is, of itself, an evil.

As somebody born and raised in Northern Ireland, I am absolutely certain that the expression of hate on a sectarian basis leads to violence, even when the clerics and others who express such hate make it clear that they, of course, stop short of advocating violence. At a time when the world is full of often rather inappropriate Northern Ireland analogies and models for peace processes elsewhere, the most obvious lesson—and the hardest to defy and argue with—is being ignored. The expression of hatred from pulpits, even by men who go on to say, in the Irish expression, "Don't nail his ears to the pump"—do not resort to violence—played a considerable role in the generation of the Troubles.

I hope that the Minister will be able to say that the new statement of the Government's policy constitutes a firm understanding of the fact that the expression not only of violent opinions but also of intolerant and sectarian opinions are part of the problem and that the Government see the need to challenge such expressions. I hope, too, that the Minister can say that, while the whole affair of "Undercover Mosque" and what happened to the broadcasters raises doubts in the minds of at least some people, that was the policy a year or so ago.

Photo of Lord Dholakia Lord Dholakia Deputy Leader in the House of Lords, Spokesperson for Communities and Local Government 8:08 pm, 20th April 2009

My Lords, I add my thanks to my noble friend Lord Thomas of Gresford for securing this debate. I am also delighted that the noble and learned Baroness, Lady Scotland, the Attorney-General, will respond from the ministerial Benches.

There can be no doubt that the screening of the "Undercover Mosque" programme by Channel 4 raised a number of broad policy issues that require explanation. Were the actions of West Midlands Police justified? Was the Crown Prosecution Service adequately briefed by the police? What are the future implications on the policy on the prosecution of offences of incitement of racial hatred? What are the implications of such decisions on civil liberty issues?

The Minister, Vernon Coaker, in a reply to the letter from Paul Holmes MP agrees that,

"freedom of expression within the law remains an important freedom and one which I am confident is ordinarily given sufficient weight by both the police and CPS".

I wish I could agree. I am afraid that this has not been the case in the way the West Midlands Police and the CPS handled the matter.

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 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,

"there was no case to answer in terms of the Criminal Law as it applied at that time and there was no prosecution capable of being mounted against those preachers who appeared in that programme".

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 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.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion), Communities and Local Government 8:17 pm, 20th April 2009

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 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 conduct 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 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.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Attorney General's Office, The Attorney-General 8:24 pm, 20th April 2009

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—

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

My Lords, I believe that the costs were £50,000, and the expression I used was "damages and costs".

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Attorney General's Office, The Attorney-General

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 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 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—

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

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?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Attorney General's Office, The Attorney-General

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 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.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

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?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Attorney General's Office, The Attorney-General

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.

Sitting suspended.