Hate Crime: England & Wales review of aggravated offences and stirring up of hatred offences

Status: The Law Commission started this project in late 2012 and aim to produce their final report by February/March 2014

A crime is recorded as a hate crime if the victim or anyone else believes it to have been motivated by hostility or prejudice based on a personal characteristic. The criminal justice agencies monitor hate crimes related to five main characteristics – disability, gender identity, race, religion and sexual orientation – but not all the existing legislation that protects victims from such crimes covers all five. The law responds to hate crime through aggravated offences, offences of intending to stir up hatred towards certain groups and enhanced sentences for those who demonstrated hostility based on the victim’s membership of a certain group. This project is concerned with the aggravated offences and offences of stirring up hatred. The aggravated offences are contained in Part II of the Crime and Disorder Act 1998. They allow perpetrators of certain offences, such as assault and harassment, to be charged with a specific aggravated form of the offence where hostility is demonstrated on the basis of race or religion. The law relating to the stirring up of hatred is contained in Parts III and IIIA of the Public Order Act 1986. The offences prohibit the stirring up of hatred on the grounds of race, religion and sexual orientation. This project came to the Law Commission by a reference from the Ministry of Justice, following the Government’s Hate Crime Action Plan. We have been asked to conduct a review to look at:

extending the aggravated offences in the Crime and Disorder Act 1998 to include where hostility is demonstrated towards people on the grounds of disability, sexual orientation or gender identity, and the case for extending the stirring up of hatred offences under the Public Order Act 1986 to include stirring up of hatred on the grounds of disability or gender identity.

Governance of the BBC

The BBC has recently had a torrid time. After being hugely applauded for its coverage of the 2012 London Olympics, the fallout from the Jimmy Savile child abuse affair was followed swiftly by an item on Newsnight which led to the wrongful implication of Lord McAlpine, the former Conservative Party Chairman, in a child abuse case involving boys living in care homes. These cases have led to a series of internal inquiries and reports which, up until July 2013, have cost £5 million.  In addition to this, £19 million has been set aside as potential compensation for victims of abuses which may have taken place on BBC premises or in connection with the production of BBC programmes. 

Further problems have arisen over a series of failed technological changes which have cost the BBC some £100 million, as well as the excessive severances paid to BBC executives who have taken redundancy or early retirement.  As a result, key questions have been raised regarding the governance of the BBC, and the performance of the BBC Trust in its role as overseer in particular.  Lord Patten, the current chairman of the BBC Trust, has announced that he will not seek a second four year term when his current term expires in 2015. Some are calling for the recently introduced governance structure to be reviewed, and possibly for the Trust/Executive division - itself introduced following sustained criticism in the aftermath of the David Kelly Affair, during which time it was argued that the Board of Governors were, at the same time, both the cheerleaders and judges of the BBC – to be scrapped.  Running alongside side this is an issue that continues to surround public sector broadcasting: the so-called Public Sector Broadcasting Requirement (PSBR) and the extent to which this should extend beyond the BBC.  In particular, should this requirement be reduced or abolished in respect of ITV and Channel 5?  In addition to this is the issue as to whether or not the licence fee should be top-sliced in order to help fund Channel 4 and/or a separate PSBR commissioning channel.

Some key reports which discuss these issues are:

House of Lords Communications Committee: Media Convergence Report (2013)

This looks at regulation in a converging media landscape in which consumers are increasingly watching TV through smart TVs that are capable of receiving both online channels, which are not currently regulated for political impartiality, and licensed broadcasts that are. The report considers the implications of this and also looks at the future of the Public Sector Broadcasting Requirement.  The report is also critical of the complex complaint structure operated by the BBC, and serves as a useful source of information in relation to the regulatory structures that the BBC in particular, and the media and Internet more generally, have to adhere to.

For a full text of the report see the following link:

http://www.publications.parliament.uk/pa/ld201213/ldselect/ldcomuni/154/15402.htm

 

Public Accounts Committee: Broadcasting Corporation: Off-Payroll Contracting and Severance Package for the Director General, Twenty-Second Report of Session 2012-13, 13 December 2012

This report was a product of the short Director-Generalship of George Entwistle, who resigned after just 54 dates amidst the fallout  from Newsnight’s decision not to broadcast an item about child abuse concerning Jimmy Savile,  possibly to avoid having to pull two Yuletide tributes to the recently deceased TV personality. The severance payment paid to  Entwistle then opened up further questions regarding the levels of severance pay paid to recently departed BBC staff and the role of the National Audit Office in  monitoring  BBC spending stressing the corporation’s accountability to the licence fee payer.

The Public Accounts Committee commented rather acerbically that:

1. The severance package awarded by the BBC Trust to the former Director General was out of line both with public expectations and what is considered acceptable elsewhere in the public sector. The Director General resigned under a compromise agreement that included 12 months’ salary of £450,000 in lieu of notice. This was twice the amount he was contractually entitled to in the event of his resignation. By agreeing to this payment, the BBC Trust may have secured the Director-general’s quick departure, but it did not act in the wider public interest. Public servants should not be rewarded for failure. The BBC must ensure that severance payments do not exceed what is absolutely necessary or reward under-performance.
2. The BBC Trust agreed to pay the former Director General additional benefits that we consider an unacceptable use of licence fee payers’ money. The Trust agreed to give him 12 months’ private medical cover and contribute to the cost of legal fees and public relations advice connected with his resignation. The BBC Trust should not have agreed to these terms and it should make it clear to all BBC managers that such payments will not be offered in the future.
3. Severance payments and elements of the remuneration package for senior staff appear to have been excessively generous. Severance payments to 10 other senior departing managers since 2010 have totalled together over £4 million. We were also told that as part of their remuneration package the BBC is providing private medical cover for 422 senior managers at a cost to licence fee payers of more than £667,000. The BBC Trust should agree to a review by the Comptroller and Auditor General into the scale and nature of severance payments made across the BBC, which should include any and all additional benefits.
4. The BBC Trust should have agreed to an immediate and independent audit by the National Audit Office. By choosing to defer an audit examination of the severance package by the Comptroller and Auditor General, the BBC Trust delayed a timely independent examination of value for money and hindered parliamentary scrutiny. Where its own use of licence payers’ money is in question, the BBC Trust should not inhibit the Comptroller and Auditor General’s ability to decide when an audit should be carried out.
5. We welcome the action taken by the BBC to address our previous findings on its off-payroll arrangements. The BBC commissioned a review of its arrangements in response to our concerns and is planning to review all 6,123 contracts that it has with personal service companies. The BBC Trust should monitor progress in completing these reviews and the BBC’s use of personal service companies, and inform this Committee of any issues that it identifies.

For a full text of the report see the following link:

http://www.publications.parliament.uk/pa/cm201213/cmselect/cmpubacc/774/774.pdf

The severance pay scandal  rolls on and both Lord Patten and the BBC Trust have come under scrutiny and criticism for not being fully aware of  the nature and extent of various severance payments – see the uncomfortable cross-examination of BBC officials by the Public Accounts Committee:

House of Commons Oral Evidence on BBC Severance Packages, 10 July 2013 (Uncorrected evidence), HC 476-I

A subsequent refusal by the BBC to name the recipients of over-generous severance packages has led to a constitutional stand-off with the Public Accounts Committee, with threats of action for contempt of Parliament.  The Committee, however, does not have the power to dispense with the provisions of the Data Protection Act 1998 and rights of privacy under Article 8 ECHR.  It has been suggested that the National Audit Office should carry out an anonymised audit of the disputed cases. The BBC has said that it is prepared to name the staff involved in approving these payments, however:

Severance Payments and Wider Benefits for Senior BBC Managers, Report by the Comptroller and Auditor General presented to the BBC Trust, 20 June 2013

“We asked the NAO to carry out this review following public concern about the size and frequency of severance packages at the Corporation, and this report shows that those concerns were justified. Although the BBC has achieved significant savings in its senior manager pay bill, some of the NAO’s conclusions are deeply worrying, particularly the failure to follow agreed severance policies in a number of cases as a result of weak governance from the BBC Executive in the past. Such practices are unacceptable, and I have no doubt that they will, quite rightly, be met with considerable dismay by licence fee payers and staff alike.

“The Trust is clear that there cannot be a repeat of such a fundamental failure of central oversight and control. We welcome the Director-General’s plans to introduce a cap on severance payments to £150,000, bringing it well under that operated by the Civil Service, and we have asked the Exec to increase the transparency of the BBC’s severance payments by disclosing more information in the Annual Report and Accounts. We will also expect a follow-up review to be carried out within two years.”

Anthony Fry, BBC Trustee and Chair of the Trust’s Finance Committee, 1 July 2013

 “The BBC has too often breached its own already generous policies on severance payments. Weak governance arrangements have led to payments that exceeded contractual requirements and put public trust at risk.

“The BBC’s proposal to cap redundancy payments, announced in 2013 by the new Director General, is a signal of change for the better. It is well below the maximum that applies to civil servants.”Amyas Morse, Comptroller and Auditor General of the National Audit Office, 1 July 2013

For a full text of the report see the following link:

http://www.nao.org.uk/wp-content/uploads/2013/07/10193-001_BBC_BOOK.pdf

BBC Accountability and the Use of Licence Fee Payers’ Money: Failure of the Digital Media Initiative

The BBC faces another embarrassing inquiry by the Public Accounts Committee following the abandonment of its much-vaunted in-house digital media platform (DMI).Essentially, the DMI project was aimed at enabling all BBC staff to access a catalogue of digital material through their desktop.The project has now been written off, at a cost written off of nearly £100m, following a mea culpa letter sent from Anthony Fry, the BBC Trustee who oversees expenditure matters,  the Public Accounts Committee Chair Margaret Hodge  on 24May 2013:

It is of utmost concern to us that a project which had already failed to deliver value for money in its early stages has now spent so much more of licence fee payers' money.  The Trust is extremely concerned by the way the project has been managed and reported to us and we intend to act quickly to ensure that that there can be no repeat of a failure on this scale.

It is the Trust’s intention to commission an external review immediately.  The review will be carried out by PwC and will seek to establish what went wrong within the BBC in terms of project management, control and governance. We will, in particular, wish to understand how the reporting to the Executive Board, its Audit Committee, and the Finance Committee of the Trust appears to have failed to give any true picture of the extent of the problems with this project until late 2012.

 For a full copy of the letter see the following link:

http://www.bbc.co.uk/bbctrust/news/press_releases/2013/dmi_letter.html

Finding of the Editorial Standards Committee of the BBC Trust, 14 December 2012: Newsnight, BBC Two, 2 November 2012

In the highly-charged - almost hysterical - atmosphere that arose following the revelations surrounding Jimmy Savile, considerable interest began to develop in potential cases of historic child abuse  which had either gone  unreported, been covered up, or were ineffectively investigated by the police at the time of their taking place.  It was within this highly-charged atmosphere that a Newsnight report was broadcast, based on the testimony of an individual who claimed to have been a victim of sexual abuse at the hands of a senior Conservative Party politician while living in a North Wales care home as a child.    This, he told the programme, had been the former Tory Treasurer and associate of Margaret Thatcher, Lord McAlpine. Although  McAlpine was not actually identified in the programme, he was  quickly  identified on the Internet as viewers pieced  together the numerous clues contained in the programme.  It turned out that his identification was mistaken. 

Following the fall-out from  this affair an internal review was carried out by the Director of BBC Scotland, Ken McQuarrie. The McQuarrie Report  was published in  redacted from in December 2012. The report was damning  in its criticisms of the Newsnight report and highlighted a number of basic failures  on the part of those involved in its production to follow basic journalistic procedures:

Summary:

On 2 November 2012, Newsnight broadcast a report into child sexual abuse in North Wales care homes in the 1970s and 1980s (the “Newsnight Report”). In the Newsnight Report, it was claimed that two victims had been abused by “a leading Conservative politician from the Thatcher years”. The alleged perpetrator was not identified. By the time the Newsnight Report was broadcast, there had been 12 hours of speculation online regarding the identity of the alleged perpetrator. We now know that the man anonymously alleged to be the perpetrator in the Newsnight Report was Lord McAlpine.

The following week, on 9 November 2012, Newsnight broadcast their own apology and also included a clip of an interview that had been recorded with the abuse victim, Mr Messham, earlier that day, in which he offered his “humble apologies to Lord McAlpine” for wrongly identifying him as the abuser. The then Director-General of the Executive, George Entwistle, commissioned a report by Ken MacQuarrie, Director Scotland, into what had happened (the “MacQuarrie Report”) (see Appendix 1).

To summarise, as at the date of the finding, the following actions have been undertaken by the Executive:

• Mr Entwistle resigned from his role as Director-General.
• An apology has been broadcast on Newsnight.
• The BBC agreed terms to settle Lord McAlpine’s libel claim for £185,000 plus costs and an apology was made in court.
• Three BBC employees have been subject to disciplinary action.
• All new investigations by Newsnight were suspended and remain so.
• Collaborations between the BBC and Bureau of Investigative Journalism (“BIJ”) were put on hold and remain so. The Editorial Standards Committee of the Trust (the “Committee”) requested that the Executive provide answers to various questions with a view to identifying the editorial failings that occured [sic], so that the members of the Committee could assess whether there were any systemic failures within the organisation that contributed to the broadcasting of the Newsnight Report. Details of the questions asked are contained within the body of this document. The Executive provided answers to those questions in a report on 14 December 2012 (the “Executive Report” (see Appendix 2). The Executive Report concluded that:
  • Basic journalistic checks on the story were not applied.
  • The Newsnight team did not make adequate attempts to seek validation for the story beyond what the reporter delivered.
  • Jigsaw identification of Lord McAlpine became possible and this risk increased during the day leading up to the broadcast.
  • The decision to broadcast the Newsnight Report was wrong.

 

The Executive Report was considered by the members of the Committee on 14 December 2012. In summary, the Trustees concluded that:

• There was a serious breach of the Editorial Guidelines relating to accuracy (the “Accuracy Guidelines”) (see Appendix 3).
• The Trustees found the broadcast allegations were not based on sound evidence and had not been thoroughly tested.
• As a result of the inaccuracy, the audience had been misled.
• The combination of the Newsnight Report and online speculation had led to Lord McAlpine being incorrectly identified as Mr Messham’s abuser.
• This has been a grave breach which had been costly to all concerned.
• The Trustees wish to put on record an apology to Lord McAlpine and to the public for this serious failure of BBC journalism.

For a full copy of the report see the following link:

http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/appeals/esc_bulletins/2012/newsnight_2nov.pdf

The Pollard Review, 18 December 2013 BBC Response The BBC Trust published the conclusions of an internal inquiry by Nick Pollard, the former Head of Sky News, into a dropped Newsnight investigation which featured allegations of sexual abuse by Jimmy Savile.

The independent review sought to establish whether there were any failings in the BBC’s management of the relevant investigation, including the broadcast of Jimmy Savile tribute programmes on  BBC channels. The BBC Trust also subsequently asked Nick Pollard to investigate how inaccuracies had appeared in a blog about the investigation and how the corrections to that blog were handled.

While the report exonerated the BBC from any deliberate wrongdoing there were concerns that the procedures and lines of authority and line management needed to be clarified and improved – among the recommendations were:

• The BBC’s news and editorial management needs to be reviewed. That is a key job for the acting and designate Directors General. It is certainly not the case that everything in BBC News management needs repair. There have been two immensely damaging failures in Savile and McAlpine, with the first paving the way for the second, but BBC News has continued to do outstanding work and I do not suggest it needs to be torn down brick by brick. But it must be right to understand and repair the parts that have let down the whole.
• That examination ought to start at the top. I do question whether the Director General’s status as ‘editor in chief’ is of continuing utility. At present, the role seems to me to bring ultimate responsibility without the practical ability to step in at an early enough stage and make a significant difference if required.
• Several witnesses (including the current Director of News) told us they believed the Savile affair – and in particular the BBC’s poor handling of it after the investigation was halted – would not have happened (or at least would not have been so damaging) if the role of Deputy Director General once occupied by Mark Byford had still been in existence. The role was abolished as, essentially, a high profile cost saving about two years ago. It may not be right simply to recreate that role, but the roles and responsibilities at the top of the BBC and how it interacts with the News Division need examining.
• BBC News depends on delegated editorial authority and in an organisation of such size that is inevitable and appropriate. However, there needs to be an effective way of dealing with problems when they arise. It is clear to me that in the Savile case that did not happen. One problem was an adherence to too ‘rigid’ and structured a way of referring things up the management chains and a reluctance to bypass them. This problem needs to be recognised and addressed.
• Similarly, a culture of ‘waiting to be told’ seems to have played a significant part in the problems I have described.  Fostering more inquisitiveness and initiative at all levels would have helped. …
• The BBC needs to look again at its practices for handing material to the police. The Newsnight Savile investigation produced an extremely unusual issue – a story that was not deemed convincing enough for broadcast yet included material that the police should have been given. It is unlikely such a situation will occur often but the wider issue about how and when material should be handed to the police needs to be considered, both as a matter of law and as a matter of good practice.
• Finally, I offer a journalist’s take on some relatively straightforward but very important lessons that should be learnt from the Savile experience.
  • Employ good journalists and have faith in them.  Gather credible evidence and rely on it.
  • Recognise that personal relationships and trust are indispensable.
  • Have editorial executives who inspire confidence and loyalty in programme staff.
  • Insist on mature and open discussions about the strength of stories.
  • Be ready to collect more evidence if what is gathered is not enough.
  • Be prepared to hand over a story to another programme if it needs more work (it won’t happen often and it goes against the grain for many people but it would have been the perfect solution here.  Panorama could have broken the Savile story even though Newsnight had decided not to run it).
  • Don’t let a poisonous atmosphere develop on programme teams.
  • You can’t lay down procedures that stop people leaking.  You can only try to persuade people that it’s a corrosive practice, which it is.
  • Challenging decisions is good.  No-one has a monopoly on wisdom.  There shouldn’t be a rigid and unapproachable structure.

For a full copy of the report see the following link:

http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/our_work/pollard_review/pollard_review.pdf

For a full copy of the BBC’s response to Pollard’s findings see the following link:

http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/our_work/pollard_review/pollard_response.pdf