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15 Mar 2017

Throwing in the Towel – Racial hatred, judicial review and the case of Mr Falter

It is unusual for the CPS to admit it was wrong all along, even more so only two days before an important court hearing. Nevertheless, this is precisely what has happened last week when the CPS agreed to re-take its decision not to prosecute a prominent neo-Nazi for inciting racial and religious hatred.

The judicial review of the original CPS decision was brought by Mr Gideon Falter, chairman of the Campaign Against Anti-Semitism (‘CAA’), against the Director of Public Prosecutions. Mr Falter had ample cause for complaint. On 4th July 2015, Mr Jeremy Bedford-Turner, a prominent neo-Nazi, made an incendiary speech to a rally of his supporters in Whitehall. The speech contained insinuations of blood libel (the accusation that Jews kill children in order to bake bread for the Passover Feast), an assertion that Jews were not the victims of the Holocaust and predictions that people in Britain would rise up and overthrow their Jewish oppressors.

Mr Falter’s case was that the speech constituted incitement to racial and/or religious hatred and that the decision not to prosecute him was unlawful. Any threatening, abusive or insulting words intended (or likely by virtue of circumstances) to stir up racial hatred constitute a serious offence.[1] Equally, since Jews are a religious as well as a racial group, Mr Bedford-Turner’s words appear to fall squarely within the offence of stirring up religious hatred.[2]  Whilst the CPS guidance on prosecuting these offences makes clear freedom of speech has to be considered, it also points to prosecutions of various individuals whose words went “well beyond the voicing of an opinion”.[3] The list includes Neil Martin (who published Facebook posts encouraging attacks on the black community) and Abu Hamza (who had, among other things, advocated the killing of Jews and claimed the UK and US governments were controlled by them). It might be thought that Mr Bedford-Turner’s actions were comparable. Not so, according to the CPS. Despite Mr Falter’s request that Mr Bedford-Turner be charged with the relevant offences, the CPS concluded that it was not in the public interest to prosecute.

Normally, the decision not to prosecute is the end of a matter. In R v Direcitor of Public Prosecutions ex p C [1995] 1 Crim App R 136, the court made clear that it would only overturn decisions not to prosecute where the policy leading to prosecution was unlawful, the decision not to prosecute contravened the prosecutor’s own settled policy, or where the decision  was perverse. Later cases have not seen fit to loosen these strictures.

Whilst the published CPS policy on this matter is not extensive[4] it is difficult to make meaningful distinctions between the conduct of Mr Bedford Turner and some of the other racists and anti-Semites who have been successfully prosecuted. Moreover, whilst cases of this nature are highly fact-sensitive, the CPS policy clearly envisages the prosecution of people acting as Mr Bedford-Turner did. Thus, the decision was potentially both perverse and a violation of CPS policy.

So why would the CPS throw in the towel in the Falter case? One reason may simply be that their defence was unlikely to succeed. Given that the content of Mr Bedford-Turner’s speech was agreed (as well as publically available on YouTube) and the fact that it was precisely the kind of conduct which the anti-incitement legislation is designed to prevent, the CPS may simply have decided that there was no point in contesting the action.

Whilst the facts must have played a part in the CPS decision to cave in, the timing of the CPS capitulation means it cannot be the whole explanation. It was 20 months between the speech being made and the CPS decision to review its decision. Whilst prosecutors claimed that they wanted the decision reviewed by a “more senior lawyer”[5] it is difficult to see why this stage could not have been reached many months ago. Nothing in the available evidence or the law has materially changed since the case began. Therefore something else must have compelled the CPS to give up the ghost.

One key factor in the CPS’ decision is likely to have been the threat of adverse publicity. Few people are less popular with the public or press than those on the extreme right of politics. Whilst reversing their decision exposed them to criticism, it may have dawned on the CPS that finally admitting an obvious mistake (even at a late stage) was preferable to being seen as defending a racist before the High Court. Of course, the CPS would not have been defending Mr Bedford-Turner – only their own decision not to prosecute him – but it might not have come out that way in the press. The U-Turn could therefore have been as an exercise in damage containment.

Another key factor in the CPS decision may have been the fear of setting a significant precedent. Almost all judicial reviews of decisions to prosecute (or not to prosecute) have failed. Had Mr Falter’s case succeeded (as it seems it was likely to), the judgment might have provided guidance on the law which made it easier for complainants to challenge CPS decisions, including under the CPS’s new Right to Review Scheme. Prosecutors might then have faced many more judicial reviews. Even if those future cases did not succeed, they would have taken up already over-stretched CPS resources.

The issue of precedent-avoiding in this case raises the question of how many other cases exist where the CPS has capitulated. It is quite possible that many other judicial review claims have been issued without receiving any publicity. This author knows of at least one other case in which the issuing of judicial review proceedings was swiftly followed by the CPS agreeing not to contest the claim. Judicial reviews against the DPP are not handled by the local CPS unit which made the challenged decision, but rather by the appeals unit. Could the more senior lawyers be deciding not to contest claims that might result in unhelpful law?

Whatever the wider policy of the CPS, giving in before their decision was actually reviewed means that the court has given no guidance on how the decision should be approached a second time. The CPS therefore do not have to worry about what the court said about this particular case. In theory, they could decide (again) not to prosecute, ensuring that their decision was better reasoned this time. A more considered decision would be much more difficult to judicially review. However, it would also expose the CPS to more damaging publicity.

Overall, though fascinating in terms of legal strategy, this victory is only half the battle for Mr Falter. He still awaits the outcome of the CPS’s second attempt at the decision and must hope that good sense prevails second time round.

[1] See section 18 of the Public Order Act 1986.

[2] See section 29B of the Public Order Act 1986. This offence is slightly narrower than that of inciting racial hatred in that it can only be committed if the individual intends their conduct to stir up religious hatred (the circumstances are irrelevant).

[3] See Violent Extremism and Related Criminal Offences

[4] Ibid.

[5] See: https://www.theguardian.com/world/2017/mar/07/cps-far-right-legal-challenge

Please also see Nick Barnard’s article reviewing prosecutorial decisions here.

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