The Crown Prosecution Service response to the All-Party Parliamentary Inquiry into Antisemitism

Executive summary

1. The All-Party Parliamentary Group against Antisemitism published its report in September 2006. It made two recommendations to the Crown Prosecution Service (CPS), namely:
   • Recommendation 8: 'We recommend that the CPS investigates the reasons for the low number of prosecutions and reports back to Parliament'.
   • Recommendation 9: 'We recommend that the CPS conducts a review of cases where prosecutions for incitement to racial hatred have been brought, in order to see what lessons can be learned'.
2. The CPS accepted these recommendations in March 2007 as part of the Government-wide response to the Group. It made clear its commitment to work with criminal justice partners on how best to address these recommendations.
3. Since then, the CPS has taken forward three initiatives. First, in May 2007, it held a community engagement event with representatives from the Jewish community to inform its knowledge further of the community concerns in this area. Second, the CPS obtained data from the Metropolitan Police Service (MPS) and the Greater Manchester Police (GMP) on antisemitic incidents reported in 2006/07 and their respective prosecution outcomes. In addition to this, the CPS completed a second, more detailed, data collection exercise with the MPS. Third, the CPS reviewed the incitement to racial hatred cases registered with its Counter Terrorism Division (CTD) during 2006/07 in order to see what lessons could be learned. The information from these initiatives is drawn together in this report.
4. The CPS' investigation into reported antisemitic incidents and their respective prosecution outcomes, completed in response to Recommendation 8, revealed that:
   • the identification of a suspect is a key barrier to successful prosecution - 69% (200 out of 290) of crimes recorded did not progress for this reason;
   • 34% (31 out of 90) of cases resulted in No Further Action (NFA);
   • the reason for NFA most often related to the victim not wishing to support a prosecution (18 out of 31 or 58%);
   • cases involving racially or religiously aggravated offences were likely to result in a conviction - of the 21 cases examined, 17 resulted in a guilty outcome at court.
5. It is important to note that this analysis draws on a relatively limited sample - it is based on antisemitic incidents reported to two police forces in one financial year. Caution should therefore be exercised in drawing inferences on the extent and characteristics of antisemitic crime at a national level.
6. To take forward this work, the CPS will share the findings from its research with the police. Police forces have reported to the CPS that they have undertaken significant work in this area. The CPS proposes to work closely with the police, as well as organisations such as the Community Security Trust, to consider what joint measures might be taken to build on the work already being progressed to support the victims of antisemitic crime.
7. To address Recommendation 9, the CPS completed a review of incitement to racial hated cases. This analysis revealed that:
   • there are particular challenges in prosecuting such cases, including the level of proof required to secure a conviction and the very fine judgements required in relation to freedom of speech;
   • there is a need for better understanding and clearer guidance on case referral from CPS Areas and its Counter-Terrorism Division (CTD);
   • it is important for the CPS to link with communities and explain its approach to the prosecution of such crime.
8. The CPS has identified internal communications between CPS Areas and its CTD on policies and procedures as an area for further work. The review has also further underlined the importance of continued community engagement in this area.
9. The CPS hopes that this response will support a continuing dialogue with Jewish community representatives and its criminal justice partners about how to tackle antisemitism, and to increase public confidence that antisemitic offending will not be tolerated.

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Introduction

1. The All-Party Parliamentary Inquiry into Antisemitism was established to investigate the belief that levels of antisemitism in Britain are rising. Its Terms of Reference were:
   • to consider evidence on the nature of contemporary antisemitism;
   • to evaluate current efforts to confront it; and
   • to consider further measures that may be usefully introduced.
2. The All-Party Parliamentary Group against Antisemitism requested information from, among others, Government departments, the police and criminal justice agencies, academics, trade unions, community groups and Non-Governmental Organisations (NGOs). In addition, the panel heard oral evidence from representatives of key organisations and individuals.
3. The Group published its report in September 2006. It made a number of recommendations that were aimed at the better identification and analysis of the extent of antisemitism in Britain and how it could be more effectively tackled. [Note: All-Party Parliamentary Group against Antisemitism (2006) Report of the All-Party Parliamentary Inquiry into Antisemitism, London: The Stationary Office Limited.] The Group made two recommendations to the Crown Prosecution Service (CPS), namely:
   • Recommendation 8: 'We recommend that the CPS investigates the reasons for the low number of prosecutions and reports back to Parliament'.
   • Recommendation 9: 'We recommend that the CPS conducts a review of cases where prosecutions for incitement to racial hatred have been brought, in order to see what lessons can be learned'.
4. The CPS accepted these recommendations in March 2007 as part of the Government-wide response to the Group.[Note: The Secretary of State for Communities and Local Government (2007) Report of the All-Party Parliamentary Inquiry into Antisemitism: Government Response, London: The Stationery Office Limited.] It committed to working with criminal justice partners on how best to take these recommendations forward.
5. Since then, and in order to address these recommendations, the CPS has taken forward three initiatives.
6. First, in May 2007, it held a community engagement event with representatives from the Jewish community. The aim of this meeting was to inform CPS knowledge of, and to aid its response to, the Group's recommendations. The discussion focused on the Jewish community's confidence in the criminal justice system and prosecution processes; their understanding of the reasons for the gap between the number of antisemitic incidents and successful outcomes at court; and any issues the Jewish community had concerning prosecutions of antisemitic incitement to racial hatred cases.
7. Second, the CPS obtained data from the Metropolitan Police Service (MPS) and the Greater Manchester Police (GMP) on antisemitic incidents reported in 2006/07 and respective prosecution outcomes. The CPS traced the progress of antisemitic incidents from their initial report through to charge and then, ultimately, their prosecution outcomes. In addition to this, the CPS completed a second, more detailed, data collection exercise with the MPS. Where information was available, the CPS identified the reasons why cases did not result in a successful prosecution. Further information on this approach, and the limitations of the available data, is outlined at Annex A.
8. Third, the CPS reviewed the incitement to racial hatred cases registered with its Counter Terrorism Division (CTD) during 2006/07 in order to see what lessons could be learned. This included a review of the passage of relevant sections in Parliament concerning incitement to racial hatred offences, relevant published sources, and case law, to identify where there may have been procedural difficulties in dealing with racial incitement cases.
9. The information from these initiatives is drawn together in this report. It sets out the CPS' detailed response to the All-Party Parliamentary Group's recommendations. The CPS anticipates that this response will support a continuing dialogue with Jewish community representatives and its criminal justice partners about how to tackle antisemitism, and to increase public confidence that antisemitic offending will not be tolerated.

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Background

CPS role and responsibilities

10. The CPS was set up in 1986. It is the Government department responsible for prosecuting criminal cases investigated by the police in England and Wales. In undertaking this role, the CPS:
    • advises the police on cases for possible prosecution;
    • determines the appropriate charge in all but minor cases;
    • keeps all cases under continuous review and decides which should be prosecuted;
    • prepares cases for prosecution in court and prosecutes the cases using in-house advocates, agents or counsel to present cases; and
    • provides information and assistance to victims and prosecution witnesses.
11. The CPS is headed by the Director of Public Prosecutions (DPP). The DPP is superintended by the Attorney General who is accountable to Parliament for the Service. It is organised into 42 Areas, with each Area headed by a Chief Crown Prosecutor (CCP). A 'virtual' 43rd Area, CPS Direct, also headed by a CCP, provides out-of-hours charging advice to the police. CTD, the Organised Crime Division and Special Crime Division deal with the prosecution of more serious, sensitive and complex crime.
12. The CPS works in partnership with the police, courts, Home Office, Ministry of Justice and other agencies throughout the criminal justice system. Its overall responsibility is to deliver a high quality prosecution service that brings offenders to justice, helps to reduce crime and the fear of crime and thereby promotes public confidence in the rule of law.
13. The CPS is determined to continue to reduce unsuccessful outcomes in all hate crime (a term which includes racist and religious crime) cases and has set targets to achieve this in its Business Plan 2007-08. [Note: Crown Prosecution Service Business Plan 2007-08 PDF.]

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Defining a racist incident

14. The Government uses the Stephen Lawrence Inquiry definition of a racist incident which is any incident that is perceived as racist by the victim or any other person, and this includes antisemitism. [Note: The Stephen Lawrence Inquiry, Report of an Inquiry by Sir William Macpherson Of Cluny.] It is important to note that some racist incidents (and in turn antisemitic incidents) may not constitute a criminal offence and, therefore, may not ultimately be recorded as a crime. This issue is explored further below (see paragraph 37 & 38).
15. The report of the All-Party Parliamentary Group against Antisemitism made a recommendation relating to definition (Recommendation 1). The Government's response to this recommendation, which incorporates CPS views, is available at: Report of the All-Party Parliamentary Inquiry into Antisemitism: Government Response.

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Reporting of antisemitic incidents

16. The Group noted in its report that, whilst some victims may report antisemitic incidents to both the police and a third-party reporting agency, the Community Security Trust , a substantial number reported incidents to one but not the other. [Note: The Community Security Trust is a community security organisation, and registered charity, with third-party reporting status. It advises and represents the Jewish Community on issues relating to antisemitism, terrorism, policing and security.] The CPS can only prosecute offences that are brought to its attention by the police. The analysis presented in this report focuses on the point at which an incident is reported to the police and the prosecution process that follows.

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Investigating antisemitic crime

17. Good practice and tactical guidance for the police in the investigation of antisemitic crime, and other forms of hate crime, is contained within the ACPO Hate Crime Manual. [Note: Hate Crime: Delivering a Quality Service (2005).] The document outlines the overall aim of a hate crime investigation as 'to identify and prosecute offenders to the satisfaction of the victim and the community and seek to reduce repeat victimisation' (para. 8.1.1). It is designed to facilitate a corporate and consistent standard of investigation across each force area.
18. Antisemitic crime, like other forms of hate crime, should receive an enhanced level of investigation in line with the manual. For example, it states that Chief Officers should make attendance at such incidents mandatory and advocates positive action in providing support for the victim and in the investigation of the incident.
19. An examination of the extent to which the guidance and policies as set down in the ACPO Hate Crime Manual translates into practice at a local level sat beyond the scope of the present study. For a consideration of the issues see Docking and Tuffin (2005). [Note: Docking, M. and Tuffin, R. (2005) Racist Incidents: progress since the Lawrence Inquiry, Home Office Online Report, 42/05.]

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Prosecuting racially and religiously aggravated crime

20. Under the criminal law, Jews are recognised as a religious group and also as a racial group: Mandla v Dowell Lee [1983] 2 A.C. 548, HL. Therefore, it is possible to prosecute antisemitic offences as being racially aggravated under sections 29 to 32, Crime and Disorder Act 1998.
21. As a result of the implementation of the Anti-Terrorism Crime and Security Act 2001, offences committed since 14 December 2001 may be prosecuted as either racially aggravated or religiously aggravated but not both, as a charge alleging that an offence was 'racially and religiously aggravated' would be rejected by the court on the grounds of duplicity.
22. The Crime and Disorder Act 1998 creates racially or religiously aggravated provisions of the following offences:
    • assaults (Section 29);
    • criminal damage (Section 30);
    • public order offences (Section 31); and
    • harassment (Section 32).
23. The CPS determines whether an offence should be charged as racially or religiously aggravated. This will depend upon the circumstances of the case. If the evidence proves hostility towards the Jewish people, the charge will be racially aggravated. If the hostility is directed more specifically towards the Jewish faith, the charge will be religiously aggravated.
24. Under section 28, Crime and Disorder Act 1998, an offence will be racially or religiously aggravated if:
    • at the time of the offence (or shortly before or after) the offender demonstrates that the hostility is based on the victim's membership (or presumed membership) of a racial or religious group; or
    • the offence is motivated wholly or partly by hostility towards members of a racial or religious group based upon their membership (or presumed membership) of that group.
25. 'Demonstrating hostility' is not defined by the Act. Proving this limb of the offence requires evidence of words or actions that show hostility towards the victim. In the absence of such words or actions, an offence can only be prosecuted in its 'basic' form (that is, without the aggravated or antisemitic element).
26. 'Motivated by hostility' is often difficult to prove in practice. To satisfy the criminal standard of proof, a clear statement by the accused (for example, an admission under caution) that his/her actions were motivated by hostility based on the victim's race or religious belief is often required. In some cases, background evidence can be important admissible evidence in order to establish motive, for example, membership of a racist group, or evidence of expressed racist views in the past.
27. Further information on the definition of racist and religious crime, types of offences, how the law works, the role of the CPS, and other areas, is available in the recently refreshed Racist and Religious Crime - CPS Prosecution Policy and CPS Guidance on Prosecuting Cases of Racist and Religious Crime. [Note: Crown Prosecution Service (2008) Racist and Religious Crime - CPS Prosecution Policy; Crown Prosecution Service (2008) CPS Guidance on Prosecuting Cases of Racist and Religious Crime.]
28. It is important to note that there have been changes in legislation since the CPS completed its work informing its response to the All-Party Parliamentary Group recommendations. The Racial and Religious Hatred Act 2006, which created new offences of stirring up religious hatred, was introduced in October 2007. Further information is available in CPS guidance and policy (see paragraph 27).

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Response to Recommendation 8

29. The All-Party Parliamentary Group against Antisemitism recommended that the CPS investigate the reasons for the low number of prosecutions and report back to Parliament.
30. In response to this recommendation, the CPS obtained data from the Metropolitan Police Service (MPS) and the Greater Manchester Police (GMP) on antisemitic incidents reported to them in 2006/07.
31. The CPS traced the progress of incidents initially reported to police through to charge and, ultimately, their respective prosecution outcomes by using the CPS Case Management System (CMS). In addition to this, the CPS completed a second data collection exercise with the MPS involving access to their electronic Crime Report Information System (CRIS). It should be noted, therefore, that some findings relate to MPS data only. This is clearly stated, where applicable, in the commentary to follow.
32. The reasons for cases not resulting in a conviction were also identified, where information was available in police or CPS case files. The reasons are summarised under the following headings:
    • Incidents reported compared to crimes recorded,
    • Suspect(s) identification,
    • No Further Action,
    • Police disposals,
    • Crimes resulting in a charge,
    • The prosecution stage,
    • Prosecution outcomes.
33. This approach led to the investigation of a total of 370 antisemitic incidents. For an overall profile of the progress of these incidents see Annex B, Table B1 and Figure B1.
34. It is important to note that this analysis draws on a relatively limited sample - it is based on antisemitic incidents reported to two police forces in one financial year. Caution should therefore be exercised in drawing inferences on the extent and characteristics of antisemitic crime at a national level.

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Incidents reported compared to crimes recorded

35. Police recording practice is governed by Home Office Counting Rules for Recorded Crime and the National Crime Recording Standard. [Note: Home Office Counting Rules for Recorded Crime, April 2007] The Counting Rules explain that all reports of incidents, whether from victims, witnesses or third parties, will result in the registration of an incident report by the police. This approach is designed to assist the police in building up a picture of possible crimes in their area, as well as to ensure consistency of crime recording between forces.
36. The Counting Rules state that, for offences against an identified victim, an incident will be recorded as a crime if:
    1. the circumstances as reported amount to a crime defined by law; and
    2. there is no credible evidence to the contrary.
37. The Counting Rules further explain that a crime, once recorded, may be 'no crimed' (in other words, no longer classified as a crime) if one of the following four criteria is satisfied:
    1. the crime was committed outside the jurisdiction of the police force in which it was recorded;
    2. where, following the report of an incident which has subsequently been recorded as a crime, additional verifiable information is available which determines that no notifiable crime has been committed;
    3. if the crime, as alleged, constituted part of a crime already recorded; or
    4. if the reported incident was recorded as a crime in error.
38. In total, 22% (80 out of 370) of the initial sample of antisemitic incidents reported to the MPS and the GMP in 2006/07 were not recorded as crimes or 'no crimed'. Unfortunately, it was not possible to explore all the reasons behind this due to limitations in the available data.
39. An important consideration here is definition. The police utilise the Stephen Lawrence Inquiry definition of a racist incident:

    A racist incident is any incident which is perceived to be racist by the victim or any other person (Macpherson 1999).

    This definition is designed to capture 'all incidents with a racist element, including low-level harassment and those incidents that are not identifiable offences' (Home Office 2000, para 3.4). [Note: Code of Practice on Reporting and Recording Racist Incidents (2000).]

40. In other words, crimes and non-crimes are initially recorded as racist incidents. In some incidents the alleged conduct does not constitute a crime and so it follows then that a racist incident may not always translate into a recorded crime (see also paragraph 22). The ACPO Hate Crime Manual provides further information on this important distinction. [Note: Hate Crime: Delivering a Quality Service (2005)]

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Suspect(s) identification

41. A total of 290 recorded crimes were left to consider as a result of the removal of incidents that were not crimes (in other words, they did not meet the criteria to be recorded as crimes), and those which were later 'no crimed'.
42. A recent study of the attrition process in crime investigations indicated that a suspect was not identified in 82% of reported offences in the sample [Note: Burrows, J., Hopkins, M., Hubbard, R., Robinson, A., Speed, M., and Tilley, N., (2005) Understanding the attrition process in volume crime investigations, RDS: HORS 295.] While this study focused on volume crime, such as burglary, and theft of and from vehicles, the finding that 'attrition is most severe in identifying a suspect' (Burrows et al., 2005: vii) also holds true for antisemitic crime - 69% (200 in total out of 290) of crimes recorded following a report of an antisemitic incident to the MPS and the GMP in 2006/07 did not progress for this reason.
43. The All-Party Parliamentary Group acknowledged that in many cases it is not possible for the offender to be identified due to the nature of the offence (para. 69). For example, in the MPS data, the most commonly recorded offence categories were, in order of frequency, violence against the person (71%), criminal damage (18%), and other notifiable offences (6%): see Annex B, Table B2. These figures set alongside the equivalent proportions from MPS data for offence categories where a suspect was not identified (that is, 63% violence against the person; 25% criminal damage and 11% other notifiable offences), suggest that a suspect is less likely to be identified where the offence is one of criminal damage: see Annex B, Figure B2. [Note: Based on information available from the MPS in relation to 122 offences where no suspect was identified.] However, the offence categories are too broad to allow any firm conclusions to be drawn as each comprises a range of different individual offences. For example, violence against the person includes offences ranging from harassment to common assault. [Note: Home Office Counting Rules for Recorded Crime, April 2007.]
44. In the CPS consultation with Jewish community representatives, participants discussed, amongst other issues, their perception that the police appeared less likely to pursue investigations into minor offences, such as criminal damage or graffiti. [Note: The CPS held a community engagement meeting in May 2007. This event, attended by representatives of the Jewish Community and CPS staff, was held further to inform CPS knowledge of, and to aid its response to, the All-Party Parliamentary Group's recommendations.]
45. In the MPS data, problems in identifying a suspect were the main barrier to progress in 31 (out of the 35) criminal damage offences. Further examination of MPS data revealed that, in all of these criminal damage offences, the MPS explored two or more of the following investigative actions:
    • checking CCTV where available;
    • questioning independent witnesses where available;
    • investigating evidential opportunities where available; and
    • investigating forensic opportunities where available.
46. However, it is important to acknowledge that these findings relate only to quantifiable information taken from MPS files; in other words, whether or not a particular action took place. Other investigative actions which are not easily captured from police files such as the quality of investigation, or victim and investigator interactions, are equally important (Feist et al, 2007). [Note: Feist, A., Ashe, J., Lawrence, J., McPhee, D. and Wilson, R. (2007) Investigating and detecting recorded offences of rape, Home Office Online Report 18/07.] Indeed, a recent report into hate crime against Jews in London (Iganski et al, 2005: 70) stated that the 'focus of the police needs to shift towards increasing and consolidating the quality of the initial investigation so as to enhance the possibility of identifying and dealing with the perpetrator(s)'. [Note: Iganski, P., Kielinger, V. and Paterson, S. (2005) Hate Crimes against London's Jews: An analysis of incidents recorded by the Metropolitan Police Service 2001-2004, London: Institute for Jewish Policy Research.]

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No Further Action

47. A total of 90 recorded crimes were left to consider further.
48. Where a suspect has been identified, one of the possible outcomes is No Further Action (NFA). The decision to mark a file "NFA" is based on the application of the evidential sufficiency and public interest stages of the Test for prosecution as set down in the Code for Crown Prosecutors (the Code). [Note: Crown Prosecution Service (2004) The Code for Crown Prosecutors.]
49. Crown Prosecutors in making their decisions about whether a person should be charged with a criminal offence, and if so, what that offence should be, are bound by the Code which must be read alongside the Director's Guidance on Charging. [Note: The Director's Guidance on Charging (February 2007).] Police officers should also apply the provisions of the Code in those cases where they are responsible for determining the charge.
50. As mentioned at paragraph 46, the Code has two stages. The first is the evidential sufficiency stage. The prosecutor must be satisfied that there is enough evidence to provide a realistic prospect of conviction against each defendant on each charge. This means that a jury or a bench of magistrates or a judge hearing a case alone, properly directed in accordance with the law, is more likely than not to convict the defendant of the alleged charge. If the case does not pass the evidential test, it must not go ahead, no matter how important or serious the offence may be.
51. The second is the public interest stage. If the case has passed the evidential test, the prosecutor must decide if a prosecution is needed in the public interest. A prosecution will usually take place unless there are public interest factors against prosecution which clearly outweigh those in favour.
52. In the present study, 34% (31 out of 90) of recorded crimes in MPS and GMP resulted in NFA. The more detailed information collected from the MPS indicated that CPS charging advice was sought in relation to two cases. [Note: Information on charging advice sought from CPS was unavailable for the GMP.] The CPS advice on both these occasions was that the file should be marked as NFA because of insufficient evidence. The first case was one of antisemitic oral abuse where both parties were making allegations; both denied they were being abusive; and there was no independent supporting evidence. The second case concerned an on-going neighbour dispute involving alleged antisemitic oral abuse. The suspect denied the offence; there were no independent witnesses; and both parties were considered to be equally credible.
53. In 58% (18 out of 31) of the NFA cases, the reason for NFA was that the victim did not wish to support a prosecution. For example, one file recorded that: 'the victim did not want to substantiate…merely report the incident'. In others, information from police files suggested an unwillingness on behalf of the victim to co-operate with the investigation. In such cases, for example, victims did not respond to requests for information from the police.
54. Police and CPS decisions not to charge for evidential reasons accounted for 26% (8 out of 31) of the NFA cases in the MPS and the GMP.

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Police disposals

55. A total of 59 recorded crimes were left to consider further.
56. It is open to the police to dispose of a crime by way of issuing a caution (or reprimand or final warning if the offender is aged 17 and under) or a fixed penalty notice. The CPS is not involved in cases in which the police issue a fixed penalty notice and are not usually involved in cases where the police issue a caution (see paragraph 56).
57. Police cautions are used to deal quickly and simply with less serious offences; to divert offenders where appropriate from appearing in the criminal courts; and to reduce the likelihood of re-offending. The police may issue a caution where:
    • it is appropriate in respect of the offence and the offender;
    • it is likely to be effective in the circumstances;
    • the suspect has made a clear and reliable admission of the offence;
    • there is a realistic prospect of conviction if the offender is prosecuted in line with the Code test;
    • it is in the public interest to use a caution as the means of disposal; and
    • the suspect is 18 years or over at the time the caution is to be administered.
58. The GMP did not use any non-court disposals to deal with antisemitic crimes in 2006/07. The MPS disposed of 17 crimes. The CPS was consulted for advice in 3 out of the 17 crimes.

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Crimes resulting in charge

59. A total of 42 recorded crimes were left to consider further.
60. Of these crimes, 31 resulted in a charge. Information on whether it was a police or a CPS decision to charge was available in 23 of these 31 crimes. In 19 cases, the CPS made the decision to charge. In the remaining 4 cases, the police made the decision to charge. Information on the outstanding 8 cases was unavailable as the case summary on CMS had been destroyed. [Note: It is CPS policy that when a case is finalised, the CMS record will have a destruction or review date entered. See Annex A for more information.]
61. Earlier research, referenced in the Group's report, found that less than one in ten antisemitic incidents reported to the police resulted in a suspect being charged, cautioned or other proceedings taken against them (Iganski et al., 2005). [Note: Iganski, P., Kielinger, V., and Paterson, S. (2005) Hate Crimes against London's Jews: An analysis of incidents recorded by the Metropolitan Police Service 2001-2004, London: Institute for Jewish Policy Research.] The findings from the present analysis show that a slightly larger proportion - 13% (48 out of 370) of antisemitic incidents reported (or 17% of crimes recorded) resulted in a charge or caution (including reprimand, final warning and fixed penalty notice).
62. Information on the remaining 11 cases was unavailable due to differences in the unit of analysis in the data collected from the MPS: see Annex A for further information.

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The prosecution stage

63. Of the 31 recorded crimes that resulted in a charge, 26 cases entered into the prosecution stage. These cases covered all 31 recorded crimes. From this point, the analysis is based on numbers of cases - and one case may involve multiple defendants, victims, and offences: see Annex A for further information.
64. Of the 26 cases, 21 cases went forward for prosecution for a racially or religiously aggravated offence. Five cases (four MPS and one GMP case) also progressed to the prosecution stage, but were prosecuted as non-racially or religiously aggravated offences. The CPS examined the files for these cases to identify the reasons why this occurred.
65. Of the four MPS cases, one was prosecuted as common assault; the second was prosecuted as sending an offensive, indecent, obscene or menacing message by a public communication network; the third was prosecuted as robbery; and the fourth was prosecuted as assault occasioning actual bodily harm. The GMP case was prosecuted as threatening to damage or destroy property.
66. In three of these five cases, the offences (robbery, threatening to damage or destroy property, and sending an offensive, indecent, obscene or menacing message by a public communication network) were not capable of being racially or religiously aggravated offences under sections 29 - 32 Crime and Disorder Act 1998.
67. In cases where sections 29 - 32 Crime and Disorder Act 1998 do not apply and there is evidence of racial or religious motivation, upon any conviction, the prosecutor should remind the court of its power under section 145 Criminal Justice Act 2003 to increase the defendant's sentence because there was evidence of hostility based on race and religion.
68. Further details from the individual cases is set out below:
    • Robbery: the defendants were convicted and it was not possible to tell from the case file whether the prosecutor reminded the court, or the court of its own volition applied section 145 Criminal Justice Act 2003. The evidence of racial or religious motivation was very weak in this case in any event;
    • Threatening to destroy or damage property: the case file has been destroyed and from the information that was supplied to the CPS it was not possible to determine how the prosecution case was presented in court and whether section 145 Criminal Justice Act 2003 was applied;
    • Sending an offensive, indecent, obscene or menacing message by a public communication network: the case was discontinued as the victim and witness withdrew their support for the prosecution and the case could not continue without their evidence.
69. The remaining two cases went forward for prosecution in their basic, substantive form rather than being prosecuted as racially or religiously aggravated offences under sections 29 - 32 Crime and Disorder Act 1998. In one case, although the victims were Jewish, there was no evidence of racial or religious motivation. The full case file for the second case was not available at the time of analysis; hence it was not possible to determine why this case was prosecuted in its basic, substantive form.

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Prosecution outcomes

70. In total, 21 racially or religiously aggravated antisemitic cases went forward to prosecution and there were 17 guilty outcomes; 15 as a result of guilty pleas and two as a result of a trial; only one case resulted in a not guilty outcome. In the remaining three cases, the prosecution offered no evidence in one case, as the accused pleaded guilty to a more serious charge, and two cases were not concluded at the time of data collection. The not guilty case related to a section 31(1)(a) Crime and Disorder Act 1998 offence: using racially or religiously threatening, abusive or insulting words or behaviour with intent to cause fear or provoke violence; the not guilty verdict was due to inconsistent witness testimony. A full summary of pleas and prosecution outcomes is available in Annex B, Table B3.

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Summary

71. The CPS' investigation into antisemitic incidents and their respective prosecution outcomes revealed that many cases do not progress to the point where the CPS becomes involved in the case.
72. The main barrier to progress was in the identification of a suspect (or suspects) - 69% (200 out of 290) of incidents recorded as a crime did not progress for this reason. Previous research has reported that 'attrition is most severe in identifying a suspect' (Burrows et al, 2005). In this respect, antisemitic crime is similar to other types of crime.
73. In total, 34% (31 out of 90) of cases resulted in NFA. In 58% (18 in total) of these NFA cases, the reason for NFA was that the victim did not wish to support a prosecution.
74. Previous research, referenced in the Group's report, found that less than one in ten antisemitic incidents reported to the police resulted in a suspect being charged, cautioned, or other proceedings taken against them. The present analysis shows that a slightly larger proportion - 13% (48 out of 370) of antisemitic incidents reported (or 17% of crimes recorded) resulted in a charge or caution (including reprimand, final warning and fixed penalty notice).
75. It is important, however, to balance these findings against the acknowledgement, also referenced in the Group's report, that in many cases of antisemitic incidents reported to the police, it is not possible for the offender to be identified because of the nature of the offence. In the data explored in the present study, the offence categories were too broad to allow any firm conclusions to be drawn on this point.
76. The CPS can only prosecute offences that are brought to its attention by the police. It is important, therefore, in this investigation to examine the data from the point at which the CPS may become involved in a case, that is, where a suspect has been identified. The data shows that at least 34% (31 out of 90) of these crimes resulted in a charge and 19% (17 out of 90) resulted in a caution (including reprimand, final warning and fixed penalty notice). [Note: The equivalent percentages excluding 11 cases where information was unavailable at the time of analysis are 39% (31 out of 79) and 22% (17 out of 79).]
77. Of the 31 recorded crimes that resulted in a charge, 26 cases entered into the prosecution stage. Of these, 21 went forward to prosecution for racially or religiously aggravated offences. Five went forward for non-racially or religiously aggravated offences. The offences in these cases were either not capable of being a racially or religiously aggravated offence under the relevant legislation or went forward to prosecution in their basic, substantive form. The latter applied in two cases for reasons set out earlier.
78. In total, 17 of those cases involving racially or religiously aggravated offences resulted in a guilty outcome at court. Only one case ended with a not guilty verdict.

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Response to Recommendation 9

79. The All-Party Parliamentary Group against Antisemitism stated that some witnesses questioned the effectiveness of the prosecution process in cases of incitement to racial hatred. The Group recommended that the CPS should conduct a review of cases where prosecutions for incitement to racial hatred have been brought, in order to see what lessons could be learned.
80. In response to this recommendation, the CPS identified cases of incitement to racial hatred between 2006/07. Internal guidelines ensure that these cases are considered centrally and are referred by CPS Areas to the CPS Counter-Terrorism Division (CTD). CTD is a unit within CPS that consists of specialist prosecutors who deal, for example, with incitement to racial hatred, crimes against humanity, war crimes, terrorism related cases, Official Secrets Act cases and hijacking. These cases were reviewed by two prosecutors with CTD experience and checked by senior CPS managers in order to understand the challenges faced by the prosecution in such cases, and to identify any lessons that could be learned. A chart summarising the facts, outcomes and rationale for outcomes of the incitement cases reviewed (18 in total) is shown at Annex C.

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Issues raised in relation to prosecution of incitement to racial hatred cases

81. No specific examples were put before the All-Party Parliamentary Group to demonstrate the ineffectiveness of the prosecution of incitement to racial hatred cases. However, written and oral evidence to the Group referred to perceived or anecdotal difficulties with the process.
82. The CPS sought further views on these prosecutions at its community engagement session held with Jewish community representatives. Representatives expressed concern that demonstrations were not adequately monitored and that statements inciting violence were unable to be investigated and prosecuted due to lack of evidence.
83. The CPS has reviewed the passage of the relevant sections in Parliament concerning incitement to racial hatred offences; publications within the public domain; and case law to identify where there may have been procedural difficulties in dealing with incitement to racial hatred cases. The following have been identified:
    • the legal definitions of 'racial hatred' and 'likely to stir up' are narrow;
    • there are jurisdictional or extraterritoriality difficulties with investigations;
    • there are difficulties tracing the origin of hate material;
    • the level of scrutiny required to proceed with prosecutions of incitement to racial hatred is proportionate and efficient; and
    • there are concerns about the level of prosecutorial determination to proceed with cases.
84. Some of these issues are inherent in prosecuting this type of crime which requires a high level of proof and which can cross international boundaries. Other perceived difficulties, such as prosecutorial determination, have been addressed by the CPS and the then Attorney General, Lord Goldsmith, since 2005, following earlier consultation with Jewish community groups.
85. The following section provides a short analysis of the various challenges that incitement cases present for the police and the CPS.

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Legal definitions

86. The definition of offences categorised as 'incitement to racial hatred' under sections 18-23, Public Order Act 1986, includes various acts whereby a person is guilty of an offence if:
    • he intends thereby to stir up racial hatred; or
    • having regard to all the circumstances, racial hatred is likely to be stirred up thereby.
87. There are high legal hurdles to clear in order to bring a successful prosecution for an offence of incitement to racial hatred - "hatred" is a strong term and the offence does not necessarily encompass material that stirs up ridicule, prejudice, or which causes offence. Article 10 of the European Convention of Human Rights (ECHR) protects the right to freedom of expression.
88. The European Court of Human Rights held in Handyside v United Kingdom (1979-80) 1 EHRR 737 that Article 10 is applicable, not only to information or ideas that are favourably received or regarded as inoffensive, but to views that offend, shock or disturb the State or any section of its population. In fact, the Court went so far as to say that without this kind of pluralism, tolerance and broadmindedness, there can be no 'democratic society'. [Note: Paragraph 49.]
89. At the same time, Article 10(2) permits States to impose restrictions as long as they are prescribed by law; they are intended to meet one of the legitimate aims listed; and they are necessary in a democratic society. This means that Parliament and the courts are able to curtail freedom of expression where the general interest in protecting the public from harm so requires.
90. Whilst the European Court of Human Rights has afforded protection to freedom of expression, it has not been prepared to do so at all costs. The ECHR is not a charter for unlawful free speech, nor is the Human Rights Act a barrier to successful criminal prosecutions, even where freedom of expression is at stake. Judicial decisions illustrate this point. In Jersild v. Denmark [1994] EHRR 1, the European Court of Human Rights found that youths whose racist opinions had been promulgated could not benefit from the protection of Article 10. [Note: Paragraph 27.]
91. Section 17 of the Public Order Act defines racial hatred as: "hatred against a group of persons…defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins". The term "racial" has been defined by the courts in a broad non-technical way, and, as outlined, encompasses both nationality (including citizenship) and national origins. For example, in the case of R v Rogers [2007] 2. W.L.R., the House of Lords held that the term "bloody foreigners" could, depending on the context, demonstrate hostility to a racial group.
92. The Public Order Act 1986, within which the incitement laws appear, is generally designed to prevent acts of violence, disorder, harm or threats. Although it will often be present, the risk of commission of a criminal act of this nature is not essential to prove the commission of an offence of stirring up hatred on the grounds of race. As elsewhere in the Public Order Act, "likely" in the context of stirring up racial hatred means "probable" and not just "liable".
93. When people hate others because of race, such hatred may become manifest in the commission of crimes motivated by hate, or in abuse, discrimination or prejudice. Such reactions will vary from person to person, but all hatred has a detrimental effect on both individual victims and society, and this is a relevant factor to take into account when considering whether a prosecution is appropriate.
94. It is essential in a free, democratic and tolerant society that people are able robustly to exchange views, even when these may cause offence. However, it is important to balance the rights of the individual to freedom of expression against 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.

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Jurisdiction and tracing origin of hate materials

95. The written evidence to the All-Party Parliamentary Group from the Board of Deputies of British Jews stated that:

    …incitement is now published on the internet rather than in printed publications or pamphlets, and is not prosecuted for evidential and jurisdictional reasons, thereby giving the 'green light' for others to publish similar material.

96. In addition, written evidence from the Community Security Trust to the Group stated that:

    In this age of instant, global communications, events overseas can impact on local communities in Britain. Similarly, high-profile figures based overseas are capable of damaging community relations in Britain by their use of antisemitic rhetoric and language…

97. These challenges of jurisdiction and extraterritoriality are not specific to incitement to racial hatred prosecutions. First, whilst some acts constitute offences in England and Wales, these same acts can be protected by the laws of other States. This can make some prosecutions difficult, if not impossible. For example, in the United States, 'hate speech' and 'hate publications' are not criminal offences per se as they are protected by the First Amendment to the United States Constitution. [Note: Although the US Government cannot regulate the content of speech, it can nonetheless address the harmful effects of speech through laws such as those against defamation or incitement to riot.] This states that:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

98. With regard to internet material which may incite racial hatred, the legal position appears to be that a court in England and Wales could exercise jurisdiction if someone posted material (including race hate material) abroad or via a foreign host and it was downloaded in England and Wales. [Note: See R v. Waddon (unreported, 6th April 2000), R v. Perrin [2002] EWCA. Crim 747.] This means that if the material is neither uploaded nor downloaded in England and Wales, a court in England and Wales will most likely not be able to exercise jurisdiction.

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Level of scrutiny

99. The CPS CTD has confirmed that the level of scrutiny in place to proceed with prosecutions of incitement to racial hatred is proportionate and efficient. All cases of incitement to racial hatred are reviewed centrally by CTD specialist prosecutors. This is to ensure that criminal proceedings are consistently brought and only where there is sufficient evidence to provide a realistic prospect of conviction, and where proceedings are in the public interest, as set out in the Code for Crown Prosecutors. Following a decision that there is sufficient evidence and that it is in the public interest to prosecute, cases are submitted to the Attorney General for consent to prosecute.

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Prosecutorial determination

100. The Community Security Trust's written evidence to the Group stated that:

     Antisemitic activity by the far right in the 1990s was moderated and reduced by a series of prosecutions of people producing and disseminating antisemitic propaganda. A similar determination, particularly by prosecuting authorities, needs to be shown to antisemitism from Islamist or other sources.

101. The CPS is committed to prosecuting incitement to racial hatred cases providing the evidential and public interest stages of the Code test are met, under the Public Order Act or the Offences against the Person Act 1861 (for soliciting people to commit murder abroad) or the Terrorism Act 2006 (for glorifying terrorism). In part, this determination has been further demonstrated by the decision to require all cases of incitement to racial hatred within England and Wales to be considered centrally by its CTD.
102. In addition, it could be argued that changes in the law - such as section 1 of the Terrorism Act 2006 - have made it possible to prosecute such cases more easily. Past conduct or words which have fallen outside the old law are now covered by the new legislation.
103. In April 2007, the then Attorney General announced a national strategy to enhance the prosecution of extremist radicalisers who incite others to terrorism, violence or hatred of other groups. The strategy brings together law enforcement agencies and prosecutors to tackle these cases in a co-ordinated way. The CPS has developed comprehensive guidance for prosecutors and investigators on the full range of relevant criminal offences and prosecution strategy, as well as non-prosecution options that may be appropriate. A national violent extremism champion has been appointed within CTD, in addition to the appointment of a number of regional champions on violent extremism, to ensure a consistent dissemination of good practice and knowledge. Similarly, training and guidance will ensure a consistency of approach to investigating and prosecuting extremist radicalisers. These local specialists on cases of violent extremism are also well placed to escalate cases of incitement to racial hatred to CTD.

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Review of incitement cases

104. Of the 20 cases registered with CTD in 2006/7, one case was erroneously registered as it was linked to an incitement case and one case was subject to an ongoing investigation at the time of the review. The following analysis relates to the remaining 18 cases.

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Successful outcomes

105. Five incitement to racial hatred cases that were reviewed resulted in a successful outcome at court. Those cases involved defendants who had:
     • posted offensive and extreme racist material on a tribute website;
     • made a speech at a demonstration calling for British soldiers to be brought back in body bags;
     • made a speech at a demonstration calling for a repeat of the events of 9/11, across Europe;
     • chanted at a demonstration that France should be bombed;
     • chanted at a demonstration that another 7/7 was on its way;
     • carried extremely threatening placards at a demonstration stating that a repeat of the Madrid bombings was on its way;
     • chanted at a demonstration that Denmark should be bombed; and
     • chanted at a demonstration that the USA should be bombed.
106. In the case where offensive and extreme racist material was posted on a tribute website, the CPS prosecuted on the basis that the offensive material was 'likely' to be seen by others, rather than 'liable' to be seen, which is not an offence. The decision to prosecute this complex case led to a guilty plea, which validates the CPS determination to prosecute this case.
107. The four cases involving chanting, making speeches and carrying extremely threatening placards at a demonstration historically may well have been dealt with by minor public order offences. However, the CPS clearly demonstrated a determination to prosecute cases appropriately, by using a range of legislation, including incitement to racial hatred and incitement to murder. This was seen at the time as a robust and controversial response, but the CPS secured guilty verdicts on all four defendants at court.

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No Further Action

108. In 10 cases registered with CTD during the period, it was decided that No Further Action (NFA) should be taken in respect of incitement to racial hatred offences. Examples of these cases are:
     • distribution of offensive literature;
     • making a mocking film of an individual and placing it in the public domain;
     • assaulting someone and subsequently distributing footage of that assault;
     • posting an offensive song on a website; and
     • forwarding an email containing offensive material.
109. There were four cases concerning literature and one case concerning a song which may have caused offence registered with CTD. It was considered that, although the material may have been considered offensive, it was not likely to stir up or incite racial hatred.
110. There was a realistic prospect of conviction for distributing material likely to stir up racial hatred in the case involving making a mocking film and placing it on a website. However, it was decided that it was not in the public interest to prosecute the suspects, taking into consideration their young age and their previous good character.
111. In the case of two youths who 'happy slapped' the victim and subsequently distributed the footage to other young people's telephones, it was assessed that there was insufficient evidence to show that racial hatred was likely to be stirred up. These suspects were, however, prosecuted for assault.
112. In the two cases involving views expressed in interviews/recordings, it was considered that these were taken out of their full context and did not amount to material likely to incite racial hatred.
113. In the case of the office worker who forwarded an e-mail to others, unaware of its offensive content, it was decided that it was not in the public interest to prosecute. The suspect was not the originator of the e-mail; did not know of the offensive nature of the email; had been dismissed from their job as a result of the incident; and the police were not pursuing the originator of the e-mail.

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Referred to CTD in error

114. The three remaining cases referred to CTD during the period were found not to show any evidence of incitement to racial hatred and, as such, were also referred in error.

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Summary

115. Findings from the review of the racial hatred cases which were prosecuted indicate a determination on behalf of the CPS to prosecute robustly cases which meet the test set down in the Code for Crown Prosecutors. There are nonetheless particular challenges in prosecuting such cases, some of which are inherent in the level of proof required to secure a conviction, for example, in terms of proving 'hatred', 'intends to stir up' and 'likely to stir up'. Others relate to the very fine judgments to be made in relation to freedom of speech.
116. A lesson learned from the review of cases is the need for better understanding and clearer guidance on case referral from CPS Areas to CTD in CPS HQ. A number of cases incorrectly identified at the outset suggest the need for initiatives to increase frontline prosecutors' understanding and to assist in them referring cases properly to CTD for consideration. It should be noted, however, that towards the end of the period covered by the review, a new structure and new policies for dealing with violent extremism were introduced.
117. It is clear in all criminal cases, but perhaps particularly in this field, that initial judgments are often formed based on a fragment of information. In incitement cases, the context, tone and likely audience is critical. Often these cases are high profile. However, media reports focus on one particular line without setting the context. The CPS has learned from extensive community engagement that such reporting can be unhelpful and that communities are prepared to accept difficult decisions when explained fully.
118. The review underlines the need for community engagement on this topic. It is important for the CPS to link with communities and explain its approach to prosecution of such crime.

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Conclusion

Recommendation 8

119. The CPS' investigation into antisemitic incidents and their respective prosecution outcomes highlights that identification of a suspect or suspects is a key barrier to cases progressing - 69% (200 out of 290) of recorded crimes did not progress for reasons linked to suspect identification. This finding is in keeping with earlier research, albeit research that focused on different crime types (Burrows et al, 2005).
120. It is important to balance these findings against the acknowledgement, referenced in the Group's report, that is, that in many cases of antisemitic incidents reported to the police, it is not possible for the offender to be identified because of the nature of the offence. In the data explored in the present study, the offence categories were too broad to allow any firm conclusions to be drawn on this point.
121. The findings suggest that there should be further analysis of strategies surrounding the investigation of antisemitic incidents, for example: those concerning suspect identification, the quality and quantity of investigative actions, and victim/investigator interface. The CPS will share its findings with the police so that options may be explored. Police forces have reported to the CPS that they have taken forward significant work in this area. Options will be considered alongside the work that has already been initiated.
122. Victims seeking to withdraw their evidence would also appear to be a factor in cases failing to progress to prosecution. The analysis found that, in 58% (18 out of 31) of NFA cases, the reason for NFA was that the victim did not wish to support a prosecution. The CPS proposes to work closely with the police, as well as organisations such as the Community Security Trust, to consider what joint measures might be taken to build on the work already being undertaken to support the victims of antisemitic crime. The role of appropriate, alternative non-court disposals will also be considered as part of this proposal.
123. Of those cases charged with a racially or religiously aggravated offence, most (17 out of 21) resulted in a guilty conviction - only one case ended in a not guilty verdict. This suggests that where a suspect has been identified and there is sufficient evidence to provide a realistic prospect of conviction and the prosecution is in the public interest (in accordance with the Code for Crown Prosecutors), the CPS achieves a high level of successful prosecutions.
124. It is important to note that this analysis draws on a relatively limited sample - it is based on antisemitic incidents reported to two police forces in one financial year. Caution should therefore be exercised in drawing inferences on the extent and characteristics of antisemitic crime at a national level.

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Recommendation 9

125. The review of incitement to racial hatred cases revealed that internal communications between the CPS Areas and CTD concerning policies and procedures need improvement. The findings suggest that frontline prosecutors would benefit from better guidance designed to assist them in identifying cases and properly referring them to CTD. This review has further underlined the importance of continued community engagement in this area.

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