The Crown Prosecution Service has let down the Jewish community. Sadly, in this regard it joins a depressingly long list of other failing institutions, including the police, quangos, the courts, the NHS, the BBC and many others.
The CPS’s newly issued guidance on antisemitism was presented as a major intervention. In truth, it was a missed opportunity. The problem has never been that prosecutors lacked guidance manuals. The problem is that, time and again since October 7, obvious antisemitic offending has not been prosecuted properly, or at all. Unless that culture changes, fresh guidance will make little practical difference.
In my view, as a former Attorney General and Solicitor General, and someone who for many years prosecuted at the criminal Bar, it is the failings of the CPS which are amongst the most damaging for the Jewish community but also for Britain and our international reputation. Obvious antisemitic offences have repeatedly gone un-prosecuted, unpunished and undeterred. When they have actually been prosecuted they have often been undercharged, delayed and sometimes mishandled.
Nearly three years on, the cumulative effect of years of sustained antisemitic chanting of abuse, slogans and harassment has contributed to a normalised environment of hostility and demonisation of Jews in this country. And it isn’t just words – in the months after October 7 there were incidents where bus drivers allegedly failed to stop to pick up visibly Jewish children on their way to school in north London. I raised in the House of Commons how even in Alabama in 1955 Rosa Parks had been picked up by the bus driver, albeit that she was forced to sit at the back. In 2023 some Jewish children were reportedly not picked up at all – and where were the police arrests or public prosecution for that stain on Transport for London?
But let’s look at one of the most frequent issues – the use of antisemitic language and the way it has been left unpunished. Amongst other examples, the CPS has not prosecuted individuals for saying “terminally deranged Zionists need to be put down.”
These failures have been repeatedly raised with the CPS whose stock response is that “Zionism is not covered by the legislation.” But this response is deliberately obtuse – it is patently obvious that antisemites have adopted the word “Zionists” and use it as a synonym for “Jews”. It is the intent of the word that should matter. When it comes to racism against Black people, the authorities are not so idiotic as to claim that the use of the N-word is a “derivative of an anthropological taxonomic term”. They would undoubtedly and rightly prosecute someone shouting that appalling word at a rally because it would be brazenly obvious to the lowest intelligence that the intent in using the word is racist. Likewise, the CPS would surely prosecute a use of the nationality “Pakistani” in its shortened form because it is patently obvious that the use of that word is being applied in a racist way and not to describe someone’s perceived geographic place of origin or heritage. Why is this same common sense not applied when Jews are the victims of racism?
People shouting about “Zios” outside synagogues have not been arrested or prosecuted apparently because someone has advised that Zionism is a political term. It is crass stupidity. It is right that people don’t get arrested as a racist for shouting “Socialist!” at someone, because socialism is a political ideology, but we all know that Zionism has been usurped by the radical left and extremist Islamists to mean Jews.
The real scandal is that a prosecution has not even been attempted. Why not let the courts decide what the intent of the conduct was? The lack of willingness to prosecute is the real problem at the CPS – and no amount of newly-released guidance is going to make any difference to that.
There is also a major problem with the CPS undercharging when they discover the courage to charge at all. There have been several occasions where they have sought to charge an offence of disorderly conduct (under the Public Order Act section 5) which carries minimal sentencing and is one of the most minor offences on the books, instead of “racially aggravated hatred” under section 18 of the same Act, a conviction for which would almost invariably result in a term of imprisonment. Low level summary offences (which are dealt with by magistrates) are often charged against antisemites instead of the more serious offence options. Such low level charges subsequently often fail because time limits expire or the test of proportionality much more easily allows charges to be dropped later.
In the late 1990s the Crown Prosecution Service had more courage. At that time, technological advances meant that cheap hidden cameras started to come on the market, and some offenders started to use them to secretly film women undressing in changing rooms and the like. Parliament had not yet passed a law to criminalise this behaviour but everyone knew it was wrong. In at least one case the decision was made to attempt to prosecute an offence under the Public Order Act, on the basis that the offender had committed “insulting” behaviour by planting a hidden camera in a women’s lavatory. Legally, this might have looked a stretch because clearly Parliament had not countenanced the word “insulting” encompassing the hiding of a camera to film people undressing. However, the issue was tested and the court convicted.
Today, the Crown Prosecution Service has lost its bottle. It has failed to even test whether a prosecution for using the term Zionist as an antisemitic form of abuse would result in a successful conviction. Issuing new guidelines will not move the dial. The CPS must do better. They should urgently establish a dedicated Antisemitism Unit at the CPS to take charge of prosecutions for alleged antisemitism. That will at least have some prospect of addressing current failings in the prosecution of antisemitism in this country.
Sir Michael Ellis is a Conservative politician and barrister who served as Attorney General in 2021 and 2022
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