§ 40. Mr. GardinerTo ask the Solicitor-General what criteria the CPS adopts in prosecuting individuals for incitement to racial hatred. [50387]
§ Solicitor-GeneralEach case which the police send to the Crown Prosecution Service—involving an allegation of incitement to racial hatred—is reviewed by a Crown Prosecutor. All cases are carefully considered to make sure that they meet the tests set out in the Code for Crown Prosecutors.
There are two stages in the decision to prosecute. The first stage is the evidential test. The Crown Prosecutor must be satisfied that there is enough evidence to provide a "realistic prospect of conviction". He must consider objectively whether the evidence can be used and is reliable. The Crown Prosecutor must also consider what the defence case may be and how it is likely to affect the prosecution case. A "realistic prospect of conviction" means that a jury or bench of magistrates, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged.
If the case does not pass the evidential test, it must not go ahead, no matter how important or serious it may be. Ordinarily, if the case does pass the evidential test, the Crown Prosecutor must then consider the second stage test to decide if a prosecution is needed in the public interest. In cases of any seriousness, a prosecution will usually take place, unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour. The Crown Prosecution Service will start or continue a prosecution only when the case has passed both tests.
However, offences brought under Part III of the Public Order Act require the Attorney General's consent to prosecute—so whether or not the public interest requires a prosecution is a matter for the Attorney-General.