HL Deb 06 April 1883 vol 277 cc1609-17

Order of the Day for the Second Beading read.

THE LORD CHANCELLOR,

in moving that the Bill be now read a second time, said, that he had already explained the provisions of the Bill to the House, and he did not, therefore, intend to make a detailed statement, but would only refer to some Amendments he contemplated making in Committee. Since the Bill had been introduced objections had been taken to the 16th clause, which provided that in case of disobedience to any order of a Court of competent jurisdiction made against the holder of any office within the meaning of the Act, it should be lawful for the Court by further order to fix such limited time as the Court might consider reasonable for compliance with such order on pain of deprivation of such office; and if within the time so limited such order should not be duly complied with, or should afterwards be wilfully disobeyed, the office so held by such person might be declared vacant; and in that case such person should not be capable of being again appointed to the said office until after the expiration of three years from the time when the office was declared to be vacant. The 19th clause defined what offices—legal, municipal, and ecclesiastical—were to be subject to this provision. Since the Bill was introduced, the objections which had been urged against the 16th clause had been carefully considered; and they had been thought, upon the whole, to preponderate over the reasons which had led to the insertion of that clause in the Bill. He might explain, in the first place, that the 16th clause was thought to be hardly consistent with the general object of the Bill, which was to place certain limits upon the punishment inflicted for contempt of Court, and to limit the maximum fine to £500; while to give a power of deprivation for the same causes of offence might be the means of taking away a man's whole livelihood. In the second place, with regard to the motive of the clause, it appeared that in most, if not in all cases in which such a power would be useful, there would be some means of accomplishing the same object by an independent proceeding, either before the same or before a different authority. For instance, if a Judge of a Superior Court ordered a County Court Judge or Coroner to do a certain act, and he refused to do it, the proper authority to deprive him was the Lord Chancellor, who was subject to Parliamentary responsibility. In ecclesiastical cases the same thing might be done, for any sufficient cause, by means of a substantive proceeding properly taken for that purpose; and the whole subject of the constitution and power of the Ecclesiastical Courts, including necessarily the means of confirming junior judgments and orders, was now under the consideration of a Royal Commission, and it was thought better to wait for the Report of that Commission than to legislate at the present time on that part of the subject. Under these circumstances, he proposed to withdraw Clause 16, and so much of Clause 19 as might be found necessary.

Moved, "That the Bill be now read 2a"—(The Lord Chancellor.)

LORD FITZGERALD

said, that, although he accepted the principle of the Bill, he wished to point out that in reference to one matter it fell entirely short of public requirements. The Bill was one to amend the law as to contempts of Court, which was a very comprehensive subject. These contempts, for present purposes, might be roughly divided into two classes—one, a very large and extensive one relating entirely to civil and ecclesiastical matters, in reference to which it was a mistake to call them contempts of Court at all. For instance, if the Lord Chancellor made an order directing a trustee to bring into Court a sum of money, and he was unable to do so, the trustee would be liable to be committed for contempt. In the great majority of cases the contempt was in name only, and related to processes for enforcing civil rights. As to these, he did not intend to mate any observation. But there was, in addition, another class of contempts, which, to distinguish them, he might call criminal contempts, for which, in many eases, the persons committing them would be liable to punishment, either summarily or by indictment for a misdemeanour. For instance, there was the misconduct of persons in open Court. A man might be guilty of conduct in open Court which impaired the dignity of the Court, and the Court would immediately take cognizance of that which took place before the Court itself, and inflict summary punishment. That, however, was a power which it was rarely necessary to enforce. He had had the honour of a seat on the Bench for 22 years, embracing periods of great public excitement, and he had never had occasion to exercise that summary authority. But he had always felt that it was the knowledge of the existence of that power which, enabled him to maintain the order and dignity of the Court. If they conferred jurisdiction upon a Judge, they impliedly furnished him with authority to enable him to enforce that jurisdiction, and to preserve order and dignity in its administration. He was far, therefore, from objecting to the summary jurisdiction, as it at present existed for contempts in open Court, with a fine limited to £500, and the period of imprisonment to three months. But behind that class of contempts there was, again, another still more important, which was popularly known as "constructive contempts of Court." They arose, not in the presence of the Court, not in open Court, but outside the Court, and not in the presence of the Judge; and as to them, time and place had no application. They arose sometimes from speeches, but principally from the publication of newspaper articles in reference to some trial about to take place, or which was then actually going on. This constructive contempt depended entirely upon the inference that the party speaking, writing, or publishing intended in some way to interfere with and impede the administration of justice, and they had been known to our law for a very long period. It was unnecessary to consider when the practice arose—as far back as Edward III. they had it in practice—and from that time down to the present, though it was a power which was rarely exercised in modern times. There was one recorded case of a rev. gentleman, John Barker, who, having called a meeting of his parishioners in the churchyard, and made a speech on local affairs, in which he spoke disrespectfully of the King's Bench, and for that was called up and sentenced summarily to a term of imprisonment; and in another case, where, in a Petition to the Corporation of London, the party libelled the Aldermen, and also used words disrespectful of the King's Bench, he was indicted for the first and tried before a jury, but was summarily imprisoned for the last. No doubt these cases would not now be followed. In modern times this power of commitment had been confined solely to articles in the newspapers which were thought to interfere with the administration of justice. The doctrine of constructive contempt was one which he was not inclined to favour. It appeared to him that, if dealt with at all, it should be dealt with on some broad foundation. The present course of proceedings was exceedingly objectionable. If an article in a newspaper appeared, which was alleged to be such a contempt, and which, was one from which an inference could be drawn that it was intended to interfere with the administration of justice, the party was called up summarily, and the matter inquired into, the Judge being at once Judge of the law, of the fact, of the intention, of the sentence, and his decision was without any power of review. That was most unsatisfactory, and there could be no doubt that the doctrine had a tendency unduly to fetter the freedom of the Press, and in that light was important to them all. No doubt, there was a difficulty in dealing with it; but he would rather see the doctrine done away with altogether than continue to exist in its present form. There was no such law in any of the American States. The New York Code said— Every Court of Record may punish summarily disorderly, contemptuous, or insolent behaviour in the immediate presence of the Court tending to interrupt its proceedings and impair the respect due to authority; but it could not punish for publication out of Court where the remedy was by indictment; and he believed such a practice as ours of summary punishment for constructive contempts did not exist in any other country. Its effect was to enforce silence on the part of the Press, where the public interests required the fullest publicity and the closest criticism of what was going on. He had such an objection to the doctrine and practice, that he should prefer being guided by the maxim—"Nil falsi audeat, nil veri non audeat dicere." He need not say that constructive crime was in all cases contrary to the genius of the English law, I and that in such cases it was usual to interpose a jury for the protection of the subject. The objections to the present system were that it was uncertain, undefined, and depending on capricious discretion. There would be a great difficulty in defining constructive contempts; but he would suggest that it might be hedged round with some protections, and that in all cases a right of appeal should be given to the Court of Appeal. The effect of that would be to render the Judges more cautious, while it would leave them free in their action; and, above all, in time a series of decisions would be built up which would regulate and control the discretion of the Judges in the exercise of their summary power.

EARL CAIRNS

said, his noble and learned Friend on the Woolsack had expressed an intention to omit the 16th clause in Committee. That clause appeared to him to contain the most important part of the Bill. He thought it desirable that in a Bill of this kind the opportunity should have been taken of drawing a distinction between contempts, property so called, and those that were not so. There was contempt of Court, such as that of insulting Judges, and interfering with juries, so as to thwart the administration of justice. These were strictly contempts, and ought to be severely punished. But then there was another species of contempt which was entirely different. Under certain circumstances, Courts of Law called that which was merely the non-fulfilment of an order contempt of Court. But that was not a contempt at all. He was afraid that this Bill would keep alive that confusion of the two kinds of contempt which ought to be kept perfectly distinct. There could be no doubt that the Bill had originated out of certain things which occurred in a recent ecclesiastical suit. He should be glad to see the punishment of imprisonment put an end to altogether in cases of that kind. He did not believe that it ever did any good. In his opinion, it would be much wiser, instead of making a martyr of a man who offended against the Ecclesiastical Law, to allow him a locus penitentiœ, and, in the event of his not being able to conform within a specified limit of time, to inflict on him a punishment leading up to deprivation. If the 16th clause had been properly dealt with, he believed it could have been made to produce that result; and he owned to the greatest astonishment and regret when he heard his noble and learned Friend on the Woolsack express his intention of withdrawing the clause.

LORD COLERIDGE

said, he could not agree with his noble and learned Friend behind him (Lord Fitzgerald) that a material alteration should be made in the law as to constructive contempt. Judging from his present experience, he thought the practical importance of the subject had been a good deal over-estimated. He himself had never imprisoned but one man for contempt, and that was only for 24 hours; and he was a person who could not be got rid of without ordering his removal out of Court in custody. But with regard to constructive contempt, his noble and learned Friend had forgotten that offences were sometimes committed, not in the face of the Court, which, nevertheless, impeded the administration of justice. Those came within his noble Friend's description of constructive contempt. It not uncommonly happened that offences amounting to an interference with the course of justice were committed that did not take place within the walls of the Court—as in the case of threatening witnesses or interfering with persons serving on the jury. Those offences, although not committed within the walls of the Court, and, therefore, not being cognizable by the Court or capable of being dealt with summarily, might cause a serious interference with the course of justice in this country. More than once he had happened to know that the course of justice was interfered with in the manner he had suggested; and he was clearly of opinion that if there was no power vested in the Court of visiting summarily and at once such acts of contempt—though his noble and learned Friend had called them constructive only—the result would be disastrous to the administration of justice. So far as he knew, the cases in which this power of committal was exercised were extremely rare. He had hardly ever seen persons committed for contempt except in cases where the contempt was outrageous; and he did not believe that instances of constructive contempt were at all common. Tie thought, therefore, it would be bettor to leave the matter where it was, and there was no reason to believe that Judges would exceed their powers. A Court of Appeal could not be such a good judge of what particular act amounted to constructive contempt as the Judge who had tried the action in which the contempt had been committed.

LORD BRAMWELL

said, he entirely concurred with the remarks of his noble and learned Friend beside him (Lord Fitzgerald). Among instances of contempt there might be the case of a witness refusing to answer a question, or behaving in an offensive way. In such cases it would be impossible to review the Judge's decision. In that case he thought there ought not to be a right of appeal, as it would be impossible for a Court of Appeal to say whether the language, demeanour, and expression of the offender had been misconceived by the Judge. He did not make these remarks from any love for the power of committal. His noble and learned Friend had been on the Bench for 22 years, and had never had to commit for contempt. He himself had been on the Bench for 26 years, and had had only one case—that of a lad from the other side of St. George's Channel, who, when hearing evidence he did not like, persisted in expressing his disapprobation so loudly, that he was obliged to take notice of it. But as to what his noble and learned Friend had called "constructive contempt," it was different. Many acts of constructive contempt were-not, in reality, meant to be a contempt of Court. It often happened, for instance, that a plaintiff or defendant discussed the merits of an invention while the trial was going on. Although neither the Court nor the law was really offended by what he was doing, still the discussion was supposed to be an impediment to the Judge or jury making up their mind impartially. His noble and learned Friend on his left proposed that there should be a right of appeal in such cases. What reason could there be for allowing appeals in ordinary civil cases, and not allowing them in cases of this description? Take the case of a Judge who had held that a paragraph in a newspaper was of such a character that it might interfere with his duty, and accordingly, acting to the best of his judgment, he had fined the offender and sent him to prison—though it generally happened that the offender apologized and there was an end to the matter—why should not the offender have a right to appeal? The case could be brought before the Court of Appeal in the same way and with the same material as it had been brought before the original Court. He was satisfied that it would be a good thing to give some power of reviewing the decision of the Judge. If that decision enjoined silence where there ought not to be silence, surely it ought to be open to review. He did not himself see any difficulty in giving a right of appeal. As to what the noble and learned Earl (Earl Cairns) had said, especially with regard to the case of the clergyman who had been referred to, he thought the object desired might be obtained in the following manner. The great difficulty in such cases was that the offenders considered that, notwithstanding the sentence, and although they were told they were not to continue to exercise their functions, it was their duty to continue what they called their duty; they did not recognize the validity of the sentence. What, therefore, occurred to him as a remedy in such cases was this—that when these persons were in contempt, and persisted in performing those duties which they maintained belonged to their position, they should be treated in the same manner as a person who unlawfully intruded into the pulpit.

THE EARL OF MILLTOWN

said, he must express his regret at the absence from the Bill of any provisions for the exercise of the Royal Prerogative of Mercy. There was one case which had occurred some years ago on the old Home Circuit where a choleric Judge had fined the High Sheriff £500 for thanking the Grand Jury for their services, a duty which the Judge ought to have performed himself. Such cases were, no doubt, rare; but Judges were only mortal, and in sentences inflicted in the heat of the moment such an extreme case as that might occur again, where a power of revision by the Home Secretary might be desirable.

THE LORD CHANCELLOR,

who was indistinctly heard, promised to consider the suggestions that had been made before the Committee stage of the Bill. He should not, however, feel himself at liberty to recede from the statement he had made respecting the 16th clause. He agreed with the noble and learned Earl (Earl Cairns) in his desire to get rid of imprisonment, as far as possible, in ecclesiastical cases. The real truth was that cases such as those alluded to by his noble and learned Friend (Lord Bramwell) might result in acts of forcible opposition to the law, which could not possibly be dealt with without imprisonment. He hoped, however, that what had been said on that subject during the debate would receive the consideration of the Commission now sitting with reference to the Ecclesiastical Courts.

Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Friday the 20th instant.