HC Deb 15 October 1976 vol 917 cc832-66
Mr. Lee

I beg to move Amendment No. 28, in page 5, line 19, after 'trial' insert 'before any conviction'.

Mr. Speaker

With this we are to discuss the following amendments:

Government Amendment No. 29.

Amendment No. 30, in page 5, line 26, at end insert— '(4) If at the conclusion of a trial at which any person is charged with a rape offence the accused is acquitted the name of the complainant should be published unless the judge rules otherwise'.

Amendment No. 31, in page 5, line 39, at end insert— '(5) Restrictions upon the disclosure of identity of the complainant shall not apply to any rape offence after the conclusion of an inquiry at a magistrates' court by examining magistrates where the magistrates concerned decided that there was not case to answer and dismissed the case.'.

Amendment No. 32, in page 6, line 45, at end add— 'Provided always that no restrictions stipulated in this section shall apply after acquittal of a person charged with any rape offence if such acquittal shall have been caused by the direction of the trial judge before or at the end of the case for the prosecution; or if at the conclusion of a trial resulting in the acquittal of the defendant, costs, or part of costs, are awarded to the defendant against the complainant or out of public funds.'.

Mr. Lee

These amendments were grouped together when this matter was before the House on 21st May. It is understandable that they were so grouped. I do not have a copy of Hansard for that date, but I believe that it was indicated during the last few minutes of the debate then, just before 4 o'clock, that these amendments were to be so grouped.

I think that it would be of assistance to the House if I were to remind hon. Members of the contents of the amendments. Government Amendment No. 29, in line 26, on page 5, seeks at the end to insert: '; but a direction shall not be given in pursuance of this subsection by reason only of an acquittal of a defendant at the trial'. Amendment No. 30, in line 26, seeks at the end to insert '(4) If at the conclusion of a trial at which any person is charged with a rape offence the accused is acquitted the name of the complainant should be published unless the judge rules otherwise'. That was the amendment standing in the name of the hon. and learned Member for Thanet, West (Mr. Rees-Davies). Also grouped in the same bracketing are two amendments which stand in my own name. Amendment No. 31 seeks in line 39, at the end to insert '(5) Restrictions upon the disclosure of identity of the complainant shall not apply to any rape offence after the conclusion of an inquiry at a magistrates' court by examining magistrates where the magistrates concerned decided that there was no case to answer and dismissed the case.'. I also tabled Amendment No. 32, on page 6, line 45 at the end to add Provided always that no restrictions stipulated in this section shall apply after acquittal of a person charged with any rape offence if such acquittal shall have been caused by the direction of the trial judge before or at the end of the case for the prosecution; or if at the conclusion of a trial resulting in the acquittal of the defendant, costs, or part of costs, are awarded to the defendant against the complainant or out of public funds.'. These matters were grafted together, and it is understandable why that should be done. The whole of this clutch of amendments is concerned with the position of anonymity and the circumstances under which it would not apply. Indeed, that is the whole basis of Clause 4.

I would deal briefly with the distinctions which may be drawn in respect of them. The hon. and learned Member for Thanet, West had only a few minutes at the end of the last debate to develop his argument, but I think he was about to advance the case that an acquittal by itself should not necessarily indicate that the complainant in the case was a liar. That is putting it bluntly. I suppose the hon. and learned Gentleman was bearing in mind the arguments used by the Court of Appeal in the case of the Queen v. Sporle and others—one of the many Poulsonic cases which have been before the courts of the land as a result of the shenanigans at Newcastle—when the Court of Appeal rejected the appeal of Mr. Sporle, the one time boss man of the Wandsworth Borough Council, who had advanced the argument that as Dan Smith had been acquitted in a separate trial, in which Dan Smith was the briber and Mr. Sporle the bribee, and as Dan Smith had been inexplicably acquitted and Mr. Sporle convicted in a separate case, the Court of Appeal should quash the conviction on the grounds of inconsistent verdits. The Court of Appeal, in a very learned way, was noticeably rude about the argument advanced and said that two different juries were entitled to take two different views and "not guilty" included "not proven" and that the only circumstances in which inconsistent verdicts could be brought in would be where the same persons were arraigned in the same trial and before the same jury.

As I understand it, although it is a matter of speculation, that was the way in which the hon. and learned Member for Thanet, West would have advanced this argument. Perhaps he might also have argued the case that if once one concedes the principle that anonymity should apply—it is a principle which totally and utterly repudiate—one should not lightly depart from it. However, as will be seen, the amendments which stand in my name go in a rather different direction. To be fair to the hon. and learned Member for Thanet, West he does suggest a rather different approach in Amendment No. 30 on the basis that if the accused is acquitted the name of the complainant should be published unless the judge rules otherwise'. 11.15 a.m.

In other words, it places upon the judge the burden to decide why a complainant's name should not be published. Presumably a successful defendant who was acquitted could invite the judge to say in terms "This woman has been disbelieved. This woman at the very least may be a liar and a perjurer. I have been subject to the ordeal of trial by jury, with all the awful consequences which might have flowed from conviction"—that is something that perhaps this House may have very much in mind in view of some of the events which have occurred this year—"and having been exonerated, I feel that it is now time for the person who has been disbelieved to bear the odium of the publicity which I consider she ought to bear."

That is the important point of Amendment No. 29 although it does not go far enough. I, therefore, turn to my own two amendments and in doing so I am tempted to quote the case involving a former Member of this House. It seems unfortunate that we have to quote cases of Members of Parliament in respect of this matter. It concerns Mr. Raymond Blackburn who many years ago, by some strange quirk of the selection panel, was once a Labour Member of Parliament before he became an anti-pornographic fanatic. After he had ceased to be a Member for one of the divisions of the city that I represent—he was hon. Member for Northfields, as I recall—he was tried and convicted for an offence under the Prevention of Fraud (Investments) Act. He appealed and his appeal was dismissed by the Court of Criminal Appeal, as it was in those days, although the House knows that that court no longer exists having been incorporated in the Court of Appeal simpliciter.

He then sought to go to the House of Lords by way of the Attorney-General's fiat as that was the only procedure by which it was possible to take a criminal appeal matter before the House of Lords. The then Attorney-General, Sir Lionel Heald, declined the certificate on the ground that there was no matter of exceptional public importance meriting a further appeal. Mr. Blackburn, as I recall, then applied for the mandamus procedure to direct the Attorney-General to reconsider the matter. The Lords adjudicated in this case in ringing terms, saying that there must be finality in criminal law and that there can be no greater finality than acquittal by a jury or conviction followed by a refusal of leave to appeal in the way that I have described.

Nowadays, the procedure would be a little more protracted because the final stage is that the Court of Appeal has power itself to certify that a point of law of general public importance is involved—not of exceptional public importance as was the case before 1961—if the House of Lords refuses leave to appeal to itself. That is the final point involved.

If there is finality in matters of conviction, there must surely be finality in matters of acquittal. Although there is, under a recent provision, a rather peculiar exception whereby there can be an appeal to the Court of Appeal Criminal Division after acquittal on a matter of law so that the Court of Appeal can have a second look at the matters of law canvassed, even if the trial judge is reversed, that cannot derogate from the acquittal. The acquittal stands and the acquitted defendant is not a party to the proceedings before the Court of Appeal. There have been very few cases under this head. I think that the hon. Member for Burton (Mr. Lawrence), who has had more experience of these matters and knows more about them than I do, will know to what I refer. I think that he will agree that have accurately stated this novel situation, which might at first sight seem to derogate from the principle of finality of acquittal but which in practice does not.

I have said that whether or not a jury acquits a defendant heavy with suspicion and believing that the case was almost made out but not quite—in other words, believing that the defendant was probably guilty of rape—or whether it is a state of mind of total conviction of the defendant's innocence, an acquittal is an acquittal. The verdict covers the whole spectrum from extreme suspicion to total exoneration.

I will forget for the moment the problems of Scottish law, although I may have to refer to the Scottish verdict of "not proven", and I am sorry that the Lord Advocate is not here to help us on these matters. But in those circumstances it seems wholly wrong that any trial judge should be placed in the invidious position of deciding whether an acquittal was convincing or not.

I hope that I shall not tread on the corns of procedure if I refer to the Nabarro case. So far as I know, no one has had the hardihood to use it in the courts, although I have been tempted sometimes to refer to a "Nabarro order on costs".

The late Sir Gerald Nabarro was convicted before one jury, his conviction was quashed on the grounds that other evidence had come to hand which was not available at the trial and ought to be admitted, the case was sent back for retrial and he was acquitted at the end of a trial in which, as far as I can recollect, none of that new evidence was adduced. He was nevertheless awarded costs after acquittal, no doubt because the learned judge very properly took the view that, whatever the tortuous path which had been described previously, an acquittal was an acquittal and that was the end of the matter.

If that is the case in such a situation, it is right that, after an accused person is acquitted of rape, he ought to have the right to say, "That woman is a liar and I demand that her name shall be disclosed".

There may be one or two exceptional cases, such as those of juveniles, which are governed by a different concept of law, in which the principle of anonymity is rightly applied to defendants, convicted or otherwise, and in which the procedures are much more in secreto, for social reasons. But when the person concerned is an adult, taking the oath and giving evidence as an adult, and he is disbelieved, it seems to me right—[Interruption.] I hope that my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) will listen to me. Our proceedings today may be shortened if he is minded to accept my amendments. No doubt he will express himself on that subject in due course.

Having, I think adequately, enunciated that principle, perhaps I might give one or two examples. Madame Tussauds on two notable occasions has had to pay damages for libel for making a waxwork image of someone who had been acquitted of murder. There was the celebrated case of Monson, I think in 1892. Somewhat tactlessly, the owners of that interesting and admirable establishment of entertainment for the young made a waxwork image of that gentleman, who was acquitted by a jury. They paid heavy damages for it.

They had to do the same, I think—I hope that I am not doing them an injustice—in the equally celebrated case of Harold Greenwood who was charged in 1920 with poisoning his wife. This was the famous Kidwelly murder case in the Famous Trials Series. He was acquitted right at the end of the trial, not by judge's direction on the way but by a jury, and he successfully sued Tussauds for defamation.

Those two cases illustrate convincingly the fundamental constitutional significance for the citizens' rights of acquittal on indictment, whether it occurs early or late in the proceedings. I know that distinctions are drawn which from the subject of separate amendments, but because they are bracketed together, I shall refer to them one by one.

I should like to refer first to Amendments Nos. 31 and 32.

11.30 a.m.

The Minister of State, Home Office (Mr. Brynmor John)

Although this is in no sense my Bill, I have discussed Amendment No. 31 with my hon. Friend the Member for Hemel Hempstead (Mr. Corbett), and we have agreed that there may be a valid point in what my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) is saying, although on a rather more limited scale than his amendment suggests. If, therefore, he will not press it, I will undertake to consider the matter, reply to him by letter, and if necessary put the matter right and incorporate such point as there is in the amendment in another place.

Mr. Lee

I appreciate that my hon. Friend the Minister of State may not be able exactly to formulate what he wants, but before I do what he suggests perhaps he can clarify. He says that the point applies in a rather more limited sense than my amendment suggests. Can he indicate in what sense my amendment should be whittled down? Unless and until I know that, it is difficult for me to decide whether what he has in mind would meet my wishes, whether it would go far enough to satisfy me.

Mr. John

My hon. Friend will know —if he does not, I need to remind him—that there are certain evidential points which may lead to a dismissal. It may be that in certain exceptional circumstances the magistrates' court does require, in the very exceptional circumstances we have in mind for publication, to have that power. It is in that sense that I invite my hon. Friend not to press Amendment No. 31 at this stage.

Mr. Lee

I hope I have it right, but do I understand that my hon. Friend is alluding to the fact that the dismissal of a case at the magistrates' court in committal proceedings is not an acquittal, that it is not an absolute bar to further proceedings, that matters may therefore be further introduced, that one cannot plead autrefois acquit?

Mr. John

indicated assent.

Mr. Lee

I see that my hon. Friend nods. The trouble is how one can draw a distinction. I do not know of any exception that he has in mind. Perhaps he could make it a little clearer. If he could, perhaps I could meet him.

At the moment, as far as I know—and I may be wrong on this point of criminal law—whatever the circumstances which lead the magistrates to dismiss a case before them on committal proceedings, whether it is because, having read the depositions or the committal documents, they are not satisfied that it all adds up to sufficient evidence, or whether, having heard the evidence on oath, they listen to a submission and then dismiss the case, it seems to me that the same provision applies. If my hon. Friend thinks that I have it wrong, he can say so, but it does not seem to me that he is drawing a distinction that is valid. Whilst he is ruminating on the point, I will describe why I think the provision should be applied in any event.

Although, as I have said, dismissal of a case before a magistrates' court is not a bar against further proceedings, in practice it is unlikely—and the exceptions are very rare—that further proceedings will take place. Of course, if a man, having been discharged from a magistrates' court after what we lawyers tend to call in our slang a Section 2 or Section 3 acquittal, outside the court tells a Press conference that he did commit the offence, whereas following a jury acquittal he cannot be retried on the matter on which he has been acquitted, in this instance he could be re-arrested, and one can envisage circumstances in which he would be, rightly, so re-arrested.

But if one leaves such peculiar exceptions on one side, it does not seem to me that in practice there will be many instances where that kind of thing is likely to occur. Let us consider the situation of a person who is discharged from a magistrates' court, not technically acquitted but where, for one reason or another, the magistrates are so dissatisfied with the case that has been put before them that they do not think that there is even a case to answer and that it is not right that the public should be put to the expense and inconvenience or that the defendant should be put in peril of the ordeal of trial, and therefore bring matters forthwith to a conclusion. What is the position then? Should a man be left for weeks, months, perhaps years, with the possibility of the reintroduction of proceedings hanging over his head at the behest of some person still enjoying the cloak of anonymity? I cannot believe that that would be a just approach.

I remind the House of a case in which a former Attorney-General, who, thanks to Lord Attlee's sense of humour, served in a Labour Government, had to consider a case. The Attorney-General was the present Lord Shawcross and the case was that of the murder of Joan Woodhouse in 1948. I shall not mention the name of the person who came before the magistrates' court, because it would be wrong to do so. I remind the House of what happened, and although I speak from memory I think that the details I give are essentially correct.

In the summer of 1948, the girl was found murdered in the estates of the Duke of Norfolk near Arundel. A man was shortly afterwards closely questioned and detained—the euphemism is "helping the police with their inquiries"—for some time. He was not charged and he was released.

Nearly two years later he was arrested on private information, the details of which were heard in closed court by the magistrates, who issued a warrant, having heard the evidence that was given in camera before them. The man was charged with murder and brought before the court. There was in those days no such thing as a Section 1 committal—a documentary committal—but in any case it would not have been an appropriate treatment for such a case. The evidence for this private prosecution was paraded before the bench, and after a submission on his behalf the defendant was discharged.

An application was then made by relatives of the dead woman to the then Attorney-General for his assistance in the preparation of a bill of indictment. He—and none of us would regard him as exactly Trotskyite—considered the matter and replied tartly to the then hon. Member for Gateshead, East, Mr. Moody, that it was the duty of the Crown to prosecute, not to persecute, which is an unexceptionable sentiment. One cannot keep raking over matters again and again. That is the answer on the point we are now considering.

The gravamen of my argument in support of Amendment No. 31 is that, for all practical purposes, this House ought to regard the discharge of a defendant from a magistrates' court on submission as if it were an acquittal, notwithstanding the fact that in law it is not, strictly speaking, a bar to further proceedings.

One may use another analogy—the Attorney-General's powers of entering a nolle prosequi, not often used, and not absolute bar to further proceedings in law. Nevertheless, for practical purposes it is treated as a bar and I can think of no instance where it has been withdrawn and matters have been further proceeded with.

Let me give another example of this grey area short of acquittal. Time and again for various reasons—because it is expedient to do so, because a defendant has been convicted or acquitted of something else, or because matters have been outstanding for so long—prosecutors ask that untried counts on an indictment, and indeed whole indictments, shall lie on the file and not be proceeded with without the leave of the courts or of the Court of Appeal (Criminal Division). In practice that means that the matter goes into deep freeze. All of us who have dealings with the courts know that once a matter lies on the file that is the end of it for all practical purposes, though there may be rare exceptions.

Would it be right if a rape count lying on the file, and therefore not the subject of an acquittal, gave the complainant an indefinite right of anonymity? I cannot believe that my hon. Friend the Minister of State would answer "Yes". I am sure that he accepts the substance of my argument.

One of the great objections to the whole Bill is that it tilts the scales of justice against an accused person. It is not a respectable or worthy argument that any libertarian would accept that because genuine rape is a horrible offence one should cut the corners of justice. That is an abominable doctrine. The more serious the offence, the more scrupulous the courts should be in protecting the rights of the accused.

11.45 a.m.

With Amendment No. 32 we come to the trial, where there is acquittal and in law total finality. I should like to remind the House of the various stages at which acquittal can occur. First, before arraignment, defence counsel can move to quash an indictment on the grounds that it is improperly constituted and that the offence, if there be any, revealed in the committal documents does not square with the indictment—I put it in rough lay terms, which is probably the best way to put it—and therefore there can be no trial. That is what used to be known as demurrer proceedings. A plea of demurrer is rarely used nowadays.

Acquittal comes at the second stage if the judge looks at the documents and bluntly takes the view that the whole matter is a nonsense and should never have been brought to trial. It is not a bad thing that a judge should take a robust view in that way from time to time. I remember reading of a case a year or so ago when a High Court judge took one look at the depositions, said "This is a load of rubbish" and physically tore them up. That saved the defendant the ordeal of a protracted trial, saved the public the expense, and saved the jury the tedium of several days of protracted adjudication.

The third, and much more common way in which a trial can be brought to an end is what is known as getting the case slung, to use our lawyers' vulgarism at the end of the prosecution's case, submitting that the evidence does not add up, that no offence is revealed, that the offence revealed by the witnesses is not appropriate to the counts on the indictment, or that although there is evidence it is so unsatisfactory as to be unsafe to leave it to a jury. Lawyers for ever invoke the celebrated case of The Queen v. Young. The Young doctrine has applied time and again in the courts.

Fourthly, having heard the defendant in the box, the learned judge may decide that it is clear either that he is innocent or that his explanations are so cogent as to make it impossible for any jury to find the case proved beyond reasonable doubt. He therefore stops the case there and then. If we are to draw a distinction between one kind of acquittal and another in these first four categories, I submit that it is only here that it can be done with any propriety.

Finally, there is acquittal at the end of everything, when the defence and prosecution have had their say, the judge has summed up, and the jury—whether they have retired for five minutes or five hours—acquit the defendant.

In law, all those acquittals are of equal value. Whether they come at the beginning, or the middle or at the end of the trial, they are all irreversibly valid. One can see some argument for drawing a distinction between some of them. That is rationale behind Amendment No. 32. It could be said that if the judge decides that the defendant should not even be called to give an explanation of his conduct in the witness box—in other words, that he has no case to answer—it must have been a pretty weak case.

I turn from the general to the particular. A rape case involves the quirks and idiosyncracies of witnesses, and in such circumstances as I have outlined it is a reasonable inference that the judge has concluded that the woman is a liar, a neurotic fantasist, or otherwise so unreliable a witness that nobody should be convicted on her words. In case anybody should think that this argument is exaggerated, let me mention what is contained in an extract from the Daily Telegraph of 6th October sent to me by an obliging constituent. I do not know whether the rape case outlined in that article has finished, and I shall not refer to any names because that would be wrong, but one passage is underlined in red ink by my correspondent. It came out in cross-examination that the woman who had made the accusation in the current case had on more than one previous occasion made an accusation of a similar kind against other persons, and those accusations were discovered to have been unfounded. Therefore, let us not have any talk about the impossibility of the existence of neurotic, perjurous women complainants, because they exist and they may put at risk the liberty, reputation and livelihood of innocent people.

I turn to the second half of Amendment No. 32 and to the words: or if at the conclusion of a trial resulting in the acquittal of the defendant, costs, or part of costs, are awarded to the defendant against the complainant or out of public funds … We are back to the situation in which judges, unsatisfactory as the situation may be, sometimes draw distinctions between some acquittals and others. Sometimes they award costs to a defendant who has had to bear part or all of the costs of his defence, and sometimes they do not. In so far as that is the practice—and I have said that I do not like it—the inference that should be drawn in that the judge, in the privacy of his own thoughts, has concluded that he agrees with the acquittal and takes the view that the defendant should not bear, in addition to his other ordeal just completed, all or part of the expense of his trial. If that distinction exists, it is at least arguable that where a judge in that peculiar and indirect way indicates his view of an acquittal by agreement with it, there is a slightly stronger case for disclosing the name of the complainant than if no award of costs is made.

It is unsatisfactory from another point of view because the defendant may be wholly legally aided and on a nil contribution basis—in other words, he has had to bear no part of the costs whatever. If that is the situation, the judge cannot even make a distinction in an indirect way by showing that he agrees with a jury's verdict because there is no basis on which he can award costs. There is no need to do so because nothing has been paid by the defendant. Even if it were proper—and I am not sure it is—for a judge to be able to indicate whether he agrees with a verdict, it does not apply in the case of poor people who, rightly, do not bear costs at all. That is one more reason why one should disclose the name of a person who has not been believed.

I summarise my argument by saying that I believe that this is a bad Bill involving a bad principle. I have already said —and I shall not repeat myself—"Why should rape complainants be treated with greater privilege than attempted murder complainants who may be in fear of their lives rather than of their reputations?". Having seen the terrified barmaid in the "Blind Beggar" public house case give evidence against the Kray brothers, I know what I am talking about. This peculiar Bill tries to give privilege in relation to a particular kind of offence, and that is wrong. It should be the aim of this House to improve the scope of any Bill and to seek to diminish the damage that it may do.

12 noon

Mr. John

It might be convenient if I indicated at this stage the Government's attitude to these various amendments and dealt also with Amendment No. 29, which stands in the name of the Home Secretary.

Amendment No. 28 would deal only with a period before conviction. It would be unsatisfactory if the discretion of the judge were to be limited to any particular stage in the proceedings. Amendment No. 30, in the name of the hon. and learned Member for Thanet, West (Mr. Rees-Davies) would make publication of the name at the end of the trial automatic unless the judge ruled otherwise.

Where I part company from my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) is when he appears to suggest that there is no case of acquittal other than that which suggests that the woman has lied or made up a story against the defendant, or otherwise behaved disgracefully. We know that there are many other circumstances in which there can be no doubt that rape has occurred but, because of some procedural difficulty or doubt on the part of the jury, there could be an acquittal. In those circumstances it would be monstrous and quite against the spirit of the Heilbron Report if a person were then to be faced with the spectre of the automatic publication of her name.

My hon. Friend was good enough to say that he opposed both the Heilbron Report and the Bill. However, the House has accepted the Heilbron Report and the principle of this Bill. The consequences for the majority must follow that. The Heilbron Report in paragraphs 152 to 162 fully rehearsed and canvassed the reasons why there should not be automatic publication or publication of the victim's name. If the burden of automatic publication were to be imposed, it would mean a reduced willingness on the part of a person who had been raped to complain, because she might feel unable to face the ordeal.

Secondly, such persons as did then complain would feel, because publication would follow, that they had a stake in the prosecution. There would be an adversarial, personalising effect on the trial far removed from the traditional prosecution view that what is needed is a fair presentation of the facts without colouring. I believe that such colouring might follow if a woman thought that the alternative to the defendant's being convicted was the publication of her name.

I come now to deal with Amendment No. 31. My hon. Friend the Member for Handsworth appears to be the only man I know who cannot take "yes" for an answer. I accept what he says about autrefois acquit. There are, in certain exceptional circumstances, arguments for the publication of the woman's name. The magistrates not having any such power at the moment, I am asking for time to consider whether there is an additional power which should be given to them to deal, not with the automatic point, which is what my hon. Friend has raised—and I accept that I go nowhere near his amendment in securing automatic publication of the complainant's name—

Mr. Lee

Why not?

Mr. John

For the obvious reason. My hon. Friend has not been listening, although he enjoined everyone else to listen to his arugments. Because of our acceptance of the Heilbron Report, we do not believe that publication should be automatic. But there are certain exceptional circumstances involving the sort of person who my hon. Friend thinks infests these cases in gay abundance, namely, the person whose conduct is very bad indeed. There may be circumstances in which magistrates would need this power. I am inviting my hon. Friend not to press this amendment and to let us consider the matter. We shall contact him and suggest how this situation may be put right.

Amendment No. 32 is diametrically opposed to the Heilbron Report. The House has accepted the principles of that report as enshrined in the Bill. Such an amendment as this can do nothing but wreck the Bill. There are circumstances in which an acquittal may arise, not because the person raped has been disbelieved but because of many other factors. I do not believe that publication of the complainant's name would be a desirable feature in such a case. If there were wilful contempt, the papers could be referred to the Director of Public Prosecutions for consideration of other proceedings. That is what Heilbron said and that is the correct course.

Mr. Lee

What about the position where it is desired to institute proceedings for malicious prosecution? The taking out of a writ is a public matter. The naming of a person in a writ is public. What bearing does that have on the situation?

Mr. John

My hon. Friend will know that in proceedings for perjury or any other proceedings in connection with such a case the anonymity rule does not apply. If my hon. Friend had read the Bill more carefully, I do not think that he would have made that point.

The last part of Amendment No. 32 reads: costs, or part of costs, are awarded to the defendant against the complainant". That would be a highly unusual affair unless the complainant was the prosecutrix. Section 48 of the Courts Act 1971 makes that clear. My main reason for rejecting the amendment is that it goes to the root of the Heilbron doctrine, to the root of the principle and it is highly dangerous for the House at this stage to depart from its acceptance of the principles of Heilbron and of the Bill.

Amendment No. 29 seeks to make it clear that it is only when the conduct of the complainant warrants publication that the judge should have a discretion under Clause 4(3) to publish the name. The mere fact of an acquittal does not of itself warrant a direction. The acquittal may be for reasons other than the conduct of the complainant and, therefore, it is unfair that she should face this kind of hurdle race with possibly a vested interest in the result of that hurdle race in circumstances in which she is not morally to blame. In exceptional circumstances, the judge has a discretion. I think that that affords all the protection that is necessary.

My hon. Friend referred to the effect upon the defendant of these proceedings. He will know, as I do, that, if the defendant is acquitted, the effect of New Clause 1 will be to prohibit publication.

Mr. Ivan Lawrence (Burton)

I think that it is right that the Opposition should state their view shortly on these amendments. Our attitude to the whole Bill has been made clear on previous occasions. We are not on the whole enthusiastic about it, but we shall not vote against it and certainly we shall not delay its passage by lengthy speeches.

However, we should have preferred certain of its provisions not to be there, because they distort the fabric of our law for no good enough reason. In some instances they introduce a complicating factor to the understanding of the law and give an impression of change which in reality does not exist because the practice and the operation of the law of rape in our courts is already along the lines of some of the proposals in the Bill.

We have doubts about the anonymity provisions in the Bill as a whole, although no such doubts about anonymity in the case of the complainant. But the fact remains that, having got a Second Reading, the principle of anonymity having been established and having been accepted by the House, there does not seem to be much advantage in making exceptions to it.

Mr. Lee

Are we to understand from that that whenever in future a Bill receives a Second Reading, the Opposition will consider themselves bound not to alter it in any fundamental way? That will be very interesting for those people moving the Aircraft and Shipbuilding Industries Bill.

Mr, Deputy Speaker (Sir Myer Galpern)

Before the hon. Member for Burton (Mr. Lawrence) takes up that point, I must point out to him that, strictly speaking, most of his contribution so far has been a Third Reading speech. I hope that he will address himself to the amendments under consideration. I presume that there will be a Third Reading debate later. Therefore, I invite the hon. Gentleman to confine himself to the amendments.

12.15 p.m.

Mr. Lawrence

I apologise, Mr. Deputy Speaker, for being general. However, I felt that it was important to make a few general introductory remarks in order to explain the Opposition's attitude to these specific amendments.

In answer to the question put to me by the hon. Member for Birmingham, Handsworth (Mr. Lee), I laid down no generalised principle. Clearly, he was not listening to me. I make it specific if I did not do so before. In this Bill, the principle having been accepted, there does not here seem to be much advantage in making the exceptions proposed. The balance of advantage and disadvantage in giving publicity to the complainant in cases where there have been forms of acquittal is in fact very narrow.

The hon. Member for Handsworth has given some very strong reasons on one side why the complainant should be disclosed by name after these events. But there are strong reasons on the other side, and one has been referred to by the Minister.

I pick up just one of those reasons. It does not necessarily mean that because there has been an acquittal, there has been a false accusation. There may be a situation, for example, where truly the complainant was raped but where the jury decided that there was either no corroboration, or no satisfactory corroboration, resulting in a situation in which the judge had to say to the jury "If you do not find that there is adequate corroboration, you must bring in a verdict of 'Not Guilty'" It would be the grossest of misrepresentations of the truth of the situation that in every case of an acquittal in a rape charge the complainant has been falsifying and, if she has not been falsifying in any case, it is unfair within the principles of this clause that the finger of scorn should he pointed at her.

The balance being a fine one and the principle being established as a result of the Second Reading debate, the Opposition do not feel minded to challenge the Government if this amendment should go to a Division.

I make one brief comment on Amendment No. 31. I am not quite clear why the Government consider that the other amendments would be a breach of the principle but not where the magistrates' court has dismissed the case.

Mr. John

I did not say specifically that I accepted that it was necessary to breach the principle. I said that, within the principle and within the limited exception allowed, there might be a need for the magistrates' court to have some power such as is given to a judge to order publication. That is what I wanted to consider. I gave no undertaking that it would he done.

Mr. Lawrence

I accept that, and perhaps when the matter is considered in another place, the proper result will be achieved.

Government Amendment No. 29 is the mere battening down of the hatches against the amendments and, therefore, consistent with everything that I have said. We have no wish to vote against that.

In the result, there is some consolation for any of us with doubts about whether these amendments should be opposed by the realisation that the matter will or may be fully considered by the House of Lords before coming back to this place, during which time, I understand, the opinions of the Criminal Law Revision Committee, for which my hon. and learned Friend the Member for South Fylde (Mr. Gardner) asked on 21st May when this matter was previously before the House, will be in the hands of the Government so that their decision may be wiser than some of us think it is at present.

Question put, That the amendment be made:—

The House proceeded to a Division

Mr. Lee was appointed a Teller for the Ayes, but no Member being willing to act as the Second Teller, Mr. DEPUTY SPEAKER declared that the Noes had it.

Amendment negatived.

Amendment made: No. 29 in page 5, line 26, at end insert: '; but a direction shall not be given in pursuance of this subsection by reason only of an acquittal of a defendant at the triar.—[Mr. John.]

Mr. Lee

I beg to move Amendment No. 44, in page 5, line 43, leave out 'any editor and any publisher' and insert 'and any editor'.

Mr. Deputy Speaker

With this we may take the following amendments:

No. 45 in page 5, line 44, at end insert 'or publisher thereof having knowledge of such publication'.

No. 46 in page 6, line 1, at end insert 'knowingly'.

Mr. Lee

Two principles are involved here. With respect I think that these amendments are rather oddly grouped, because they deal with two quite different matters. One deals with the question of publication responsibility and the other with our old friend the principle of mens rea—whether the act is committed knowingly. The Minister offered us half an olive branch in the last debate, but he did not give any undertaking that he would necessarily introduce an amendment in another place. Perhaps that is because of the absence of enough Labour Peers to ensure a Government majority. I would have thought that there was no difficulty in creating enough Peers for the purpose. Certainly the qualifications for a life peerage are so low that there should be no difficulty in getting enough people to go to the other place. I am not sure that the Minister's undertakings will be enough. If my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) comes forward with proposals of that kind, I shall look favourably on them.

Quite clearly this Bill seeks, through the aegis of Clause 4, to embrace a large number of persons who might conceivably be involved in some way in improper publication or disclosure of the name of a complainant. To a large extent it is understandable that the sponsors of this Bill should wish to widen the scope in this respect so that there will not be any loopholes to negate the principle in the clause. At the same time it would be wrong to pass over the provisions of the clause without comment, because there are a large number of categories of persons who in some way or another are involved by it.

I wonder about these categories. My hon. Friend the Member for Hemel Hempstead is a journalist and he knows that even though editors have diminished in importance since the days of C. P. Scott, they bear a can-carrying responsibility, largely related to what appears in their newspapers or periodicals. It does not seem to me to be a really adequate answer to say—and I imagine this is what is behind my hon. Friend's purpose in enumerating a large number of categories of people he wishes to involve—that the law of libel can apply to a wide category of persons who are in some way involved in the publication of defamatory matter and, therefore, for the same reason, we should involve a large number of persons here as well.

I should have thought it would be sufficient—if one accepts the principle behind the Bill, and I do not—to involve the person who wrote the article which disclosed improperly the name of the complainant and the editor or sub-editor responsible for vetting the copy. Publishers are comparatively remote people. One might just as well argue that the owners should be incorporated in the scope of the Bill, and why not? The owners dominate the newspaper and periodical world. We still have an edifying situation, in contrast with broadcasting, whereby newspapers, like professional footballers and cattle, are hawked and sold around from one tycoon to another.

We had the invasion by Lord Beaver-brook and the painful consequences of that many years ago. In recent years we had the late Lord Thomson of Fleet who made a comprehensive takeover bid for the whole of Fleet Street, and even more recently we had Rupert Murdoch doing much the same kind of thing. If the movers of this Bill really believe that publishers should be involved in the scope of the penalty clauses, why not the owners as well? Hon. Members will note that I am being brief. I want to move on because there are very important matters which I want to discuss later in detail.

Mr. Deputy Speaker

Order. There is no need for the hon. Member to tell us now what he intends to discuss after 2 p.m.

Mr. Lee

I turn now to the top of page 6. Clause 4(5)(b) says in the case of other publications, the person who publishes it". I want to insert the word "knowingly". When one word in this context means such a great deal, I would have hoped that the hon. Member for Burton (Mr. Lawrence) would take a rather less unheroic view of the duties of the Opposition than that which he has indicated so far. What he said on the last amendment will delight the Government Whips. He indicated that once the Second Reading has passed, that precludes drastic amendment of matters in the stages which follow:

It is no use his saying that this should apply to one Bill, and not to another. I am afraid he does not fit very well into the role of the Grand Old Duke of York. I shall look anxiously to see him join me in the Division Lobby later, or otherwise one can only wonder whether the Iron Lady is not a soft-leaded lady after all.

12.30 p.m.

During the 1966–70 Parliament Lord Hailsham, as he now is, sounded off philosophically, as he does sometimes, against the alarming increase in statutory offences. Such offences do not require as an ingredient of the defence the concept of mens rea. He was right to do so. This is a disturbing development in English criminal law. Some of his extravagant language and his forebodings about democratic tyranny—I think that was the term he used in the Dimbleby Lecture—would be more appropriately directed towards this kind of situation than to the wider scheme of the sovereignty of Parliament, which sovereignty has been in some measure destroyed by our unfortunate adherence to the Common Market.

If we do not include the word "knowingly" in the Bill, there is a danger that the principle of a statutory offence will be applied to this part of the Bill. The very fact that the clause enumerates such a large number of categories of persons who may be deemed to have committed an offence points in that direction. Some of those persons are remote from the act which would give rise to the complaint. After all, presumably only one person would be writing down the name of the complainant, and only one or two people —the sub-editor and maybe his editor—would be vetting that copy. A number of other persons would of necessity be fairly remote from the act complained of. Would it not therefore help to mitigate the matter if we followed the course I am suggesting?

I am sorry that my hon. Friend the Member for Hemel Hempstead is not here. I would have thought that the temperate and tolerant way in which he viewed amendments on 21st May indicated his willingness to accept my line of argument. We shall have to do without him and the other sponsors of the Bill, who seem to have gone off for an early lunch.

Is it not desirable ex abundanti cautela that we should include the word "knowingly"? The House will remember the furore which occurred a few years ago when, to people's considerable surprise, the Divisional Court in the case of Sweet v. Parsley decided that someone who owned a house in which, unknown to the owner, cannabis was being smoked was guilty constructively of the offence of permitting cannabis to be smoked. The furore was interesting because when the Court of Appeal made its decision there was, rather surprisingly, some correspondence in The Times, including a very powerful and cogent letter from my hon. Friend the Member for Feltham and Heston (Mr. Kerr), drawing attention to the peculiar situations that could arise if one held a person to be constructively guilty because, unknown to him, someone had committed an offence on his premises.

It would be amusing to consider what would have happened if that decision had not been reversed and if someone had managed to smuggle cannabis in and smoke it in the cells below the Court of Appeal. Would that have made the keepers or the authorities of the High Courts of Justice constructively guilty of permitting cannabis to be smoked on their premises? Would it reductio ad absurdum have had the effect of putting Her Majesty's judges, sitting in the courts that day, in peril of inadvertently committing the offence?

The matter went on appeal to the House of Lords. The late Lord Reid, whose contributions to the courts can hardly be over-estimated and who was until his death one of our most distinguished judges, was sitting, and common sense reasserted itself. The decision was reversed. In other words, we were rescued from a situation in which an innocent person could be deemed to have committed an offence without his knowing or even suspecting that an offence had been committed.

It is for that reason and because I do not want to see a repetition of the kind of contretemps which arose in Sweet v. Parsley that I move the amendment.

Mr. John

Perhaps I may state the Government's view on the amendment. I accept that the concern expressed by my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) on this point is reasonable. The Government might have accepted the amendment but for the existence of Clause 5(6). It is stated there that where a person is charged with an offence under Clause 4(5), it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication or broadcast was of such matter as is prohibited by subsection (1).

I believe that provides the sort of protection my hon. Friend seeks. I ask him to accept, therefore, that the amendments are unnecessary, even though they have done a valuable service to the House in probing the matter.

The matters involved in the amendments are peculiarly within the mind of the person concerned. If the amendments were accepted, they might place an unreasonable burden on the prosecution, but the overwhelming burden of my argument is that a defence is provided in Clause 5(6). This recognises the point made by my hon. Friend and provides a defence in these circumstances. I hope that he will agree that the amendments are not necessary.

Question put, That the amendment be made:—

The House proceeded to a Division

Mr. Lee was appointed a Teller for Ayes, but no Member being willing to act as the Second Teller, Mr. Deputy Speaker declared that the Noes had it.

Amendment negatived.

Mr. Lee

I beg to move Amendment No. 47, in page 6, line 9, leave out "£500" and insert "£100".

Mr. Deputy Speaker (Mr. Oscar Murton)

With this we may take Amendment No. 48, in page 6, line 9, at end insert 'or on conviction on indictment to a fine not exceeding £1,000'.

12.45 p.m.

Mr. Lee

Though my confidence has been diminished since the start of the day, I am still confident that some of my amendments will prove acceptable to the militants who have brought forward this Bill. I shall continue to conduct my arguments on a fairly low key, as I hope I have until now. I notice that two hon. Members in the opposite camp—Members of the non-Opposition—agree with me.

The first amendment seeks to reduce the penalty that may be summarily imposed. Even in these days of inflation £100 is still a sizeable figure. It is not desirable to vest in magistrates too much power for summary jurisdiction, not because they do not, for the most part, do their job well, but because, for the most part, their courts are overcrowded with work.

Anyone who goes near any of the London magistrates' courts, especially during the summer, which has been appropriately described as the foreigners' shoplifting season, will know exactly what I mean. There is an endless succession of cases going through the courts, especially those north of the river near Oxford Street. We should not burden them with additional duties.

When I considered tabling this amendment, I wondered whether it was right that magistrates should try these matters at all or whether it might be more appropriate to delete the provisions which grant them jurisdiction, particularly as I have tabled a second amendment which provides for trial on indictment. Once again the enthusiastic sponsors of the Bill have left the Chamber, leaving the Minister, the Opposition spokesman and myself to consider these matters as best we can without the benefit of their advice. I find it strange, but I am not unduly surprised by their attitude.

There are 11 sponsors of the Bill. One would have thought that they could take it in turns to stay in the Chamber. I have not seen some of the sponsors within the precincts of the House today. Others have flitted in and out in a rather spectral manner.

If this offence is important, it falls into two categories. It may be committed through carelessness and inadvertness with nobody intending any harm. In that case I should have thought that a modest penalty such as that provided for in Amendment No. 47 was adequate. One can readily see a situation in which through some confusion the offence might be committed entirely by mistake.

In that situation surely an apology, and perhaps a conditional discharge, would be a perfectly adequate way for justice to be done as between the offender and the complainant. In such a case the £100 fine, if anything, is excessive. Certainly it is an improvement upon the £500 fine, which, if I may hark back to the Oxford Street shoplifters, is regarded as being adequate to deal with wealthy people who go on a shoplifting spree. For what purpose they do so cannot possibly be imagined, except that it is rankly dishonest and anti-social.

The second category is different altogether. Someone might decide to publish and be damned, to use what I think was the Cudlippian dictum. In those circumstances we are faced with someone who is deliberately seeking to defy the law. I believe that this is a thoroughly bad Bill and I still hope that it will not reach the statute book. Judging by the amount of work that has to be dealt with by the other place, the likelihood is that it will not get through. Indeed, I have reason to believe that some amendments will be moved in another place. That means that we are in for some more fun.

Dealing with the Bill as it stands, and accepting and working from the false premise that it is right and proper that anonymity should be protected and that those who breach it unlawfully should be punished, we must carefully consider the penalties that are provided. Not even the most fervent supporters of the Bill have gone so far as to suggest that an editor or writer, for example, convicted of an offence under Clause 4 should go to prison. In parenthesis, there might be circumstances in which a wilful and unlawful publication amounts to a contempt of court. I strongly suspect that that is the case. The penalties include imprisonment and imprisonment generally is the penalty. No doubt my hon. Friend will have something to say about that when he replies. I hope that he will do so a little less perfunctorily on this occasion.

Leaving aside the armoury of contempt, which may make these penalty provisions unnecessary altogether, we still have to consider the proper way of dealing with the matter. If somebody deliberately flouted a court for no valid reason, it might well be that the penalty of £500 would not be adequate. The flouting might occur malevolently. That is one more illustration of the absurdity of the Bill—namely, that the whole of the anonymity concept can be destroyed by a person who has been acquitted taking out a writ for malicious prosecution. Although the chances of success are limited, all such a person has to do is to take out a writ in the High Court. When the name has been thoroughly circulated around the place—and these matters are news because writs for malicious prosecutions are extremely rare—he can issue a notice of discontinuance and drop the proceedings. In payment of a small amount of costs, he will have achieved his objective lawfully—namely, disclosure of the name of the complainant.

That would be poor news for the sponsors if they were present, but if they read this debate in Hansard they will discover that this part of their Bill is a nonsense. However, we shall deal with it on the basis that it makes sense. I think that my hon. Friend will agree that if there should be a more severe penalty than is provided for in the Bill, the offender should have the right of trial on indictment. Some complicated issues could arise in such cases, issues that might be regarded as being too complicated for justice to be done in the magistrates' courts, with all respect to lay magistrates.

The interpretation of much of the Bill will give no end of problems. My hon. Friend made much of what he thought was the adequate answer to Amendment No. 46 on the question of "knowingly". I hope that he is right. I do not think that he is wholly right, but let us assume that he is. At all events, the Bill will provide the courts with some vexed questions to decide. If we accept the principle contained in the Bill, there might well be some cases—I say this in complete seriousness, I am not being facetious or ironical—when the offence is so flagrant and wanton that it merits a higher penalty than is provided.

Certainly a £500 fine would be a fleabite to a newspaper organisation. Indeed, a £1,000 fine might be regarded as a modest penalty. If we accept that that be right, surely those accused of an offence should have the right of trial by jury. That is why I claim that the two amendments are self-balancing.

On the one hand, I seek to reduce the penalties that can be imposed by a court of summary jurisdiction because I think that they are too great for the inadvertent offender. At the same time, they are not great enough for the wanton and flagrant offender who seeks defiantly, and maybe for some improper or malicious motive, to publish and be damned. If that applies, and if that principle is accepted, such persons should have the right of trial on indictment. Perhaps it is just about arguable, although I have not sought to do so in the amendment, that these matters should not be dealt with by summary jurisdiction but on indictment. Perhaps they all ought to be indictment matters.

Looking at the realities of the situation, I think it not very likely that there will be many offences of this kind. However, where they are alleged to have occurred, it seems likely that they will raise quite complex issues, and where complex issues are involved, I should have thought that the House would agree that it is right that a jury properly directed by a judge is the right tribunal to adjudicate.

1.0 p.m.

Mr. John

In giving the Government's view of these amendments, I hope that my hon. Friend the Member for Binning-ham, Handsworth (Mr. Lee) will not take brevity for lack of interest. I shall certainly reply to the points he made, but I shall do so briefly because I believe that, though important, they lie within a brief compass. That is why I do it, not through lack of interest in his arguments or in the subject of the Bill.

I found somewhat unfortunate my hon. Friend's description of debate on possible amendments to the Bill as "some more fun" in prospect. It is a serious Bill touching a serious matter not only for—

Mr. Lee

Did my hon. Friend say that I spoke of "fun"?

Mr. John

My hon. Friend said that there was some more fun in prospect in the House of Lords.

Mr. Lee


Mr. John

No, I will not give way, because I heard what my hon. Friend said very clearly.

Mr. Lee

On a point of order, Mr. Deputy Speaker. I am sorry to intervene in this way, but quite clearly my hon. Friend has misunderstood me. If he thought I used the word "fun", I most certainly did not intend such a word, and he must have misheard. I do not regard this as a frivolous matter in the least.

Mr. John

I agree with my hon. Friend that it is by no means a frivolous matter. I shall now deal with the specific points which he put. First, he says that £500 may be too severe a penalty for an inadvertent offender. He knows that the penalty is a fine not exceeding £500, which gives the magistrates adequate room for taking account of the offender who is inadvertent. The whole scale of penalties, ranging from a conditional discharge up to the maximum fine, may be applied in accordance with the seriousness with which the magistrates view the particular case. That is an answer to one of the points my hon. Friend made in urging support for these amendments.

Second, my hon. Friend says that there are cases where a trial on indictment is more suitable, and therefore it should be taken out of the hands of the magistrates completely. To that I make two points in reply. The nearest analogy to these proceedings is to be found in section 3 (5) of the Criminal Justice Act 1967, which deals with the question of penalties when a person publishes the name of someone involved in commital proceedings where publication of that name has not been sanctioned. The maximum penalty there is a fine of £500. In the years since the passing of that Act, no one has complained about the adequacy of those penalties. Here, too, the figure is £500.

I understand the reasons for which my hon. Friend desires a transfer of the work load to the Crown courts, but that runs completely contrary to the Report of the James Committee, which spoke of the overburden on the Crown courts, about which I am sure my hon. Friend will know from personal experience much better than I. The overburden on Crown courts makes it desirable that more cases be tried summarily. The James Committee also made certain suggestions about maximum penalties imposed by magistrates' courts which might, in the most extreme cases which my hon. Friend cited, make the punishment fit the crime.

I am aware that the House has not debated the James Report and therefore I cannot speak for the House in this matter. However, it seems to me that, if and when the penalties which can be imposed in summary proceedings are considered, this Bill and these offences can be then considered.

Magistrates already have power in similar cases to impose a fine up to a maximum of £500. That is the identical provision in this Bill. It has not been thought unsuitable for magistrates to try such cases. It has not been thought inadequate that they may impose a penalty up to a maximum of £500. That is why I ask the House to reject the amendments. Indeed, I ask my hon. Friend, having canvassed and probed the question, to agree that £500 at this stage is the proper figure.

Mr. Lee

I shall reply briefly to what my hon. Friend has said. I had thought that the Opposition spokesman would have a view on this matter, but they appear to he completely speechless, which will be an interesting matter for comment on another occasion in a totally different context.

My hon. Friend has in some measure answered the questions, and he is right when he says that the Criminal Justice Act makes similar provision. I am not sure that he is right to anticipate the James Committee quite as he does. We do not know whether the James Committee will have its recommendations implemented. Its champion, whose names is so closely associated with it, is unhappily dead, which is a great loss to the criminal law, as my hon. Friend well knows, since Lord Justice James was one of the finest of our criminal judges.

I am bound to say that my hon. Friend's observations—or lack of them—with regard to the problems likely to be thrown up in this connection do not really convince me. This will be a difficult problem when it arises, and I still do not think that the magistrates' courts are altogether the most suitable places for these matters to be played out. However, having said that—I presented the amendments with complete seriousness, not seeking merely to be cussed—I feel in the circumstances that I should beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Lee

I beg to move Amendment No. 49, in page 6, leave out lines 12 and 13.

Mr. Deputy Speaker

I suggest that it will be convenient to consider at the same time Amendment No. 50, in page 6, line 17, at end insert 'or be is accused by way of a bill of indictment'.

Mr. Lee

These amendments can be dealt with briefly. It seems to me that the laying of an information is not the most appropriate way to bring a rape offence before a court. As far as I know, it is the kind of offence which, because of its seriousness, would normally be taken by way of a charge. The real objection here, however, is that, where proceedings are started by summons—as I say, that does not normally apply to this kind of offence—they often take a long time before they reach court.

Summonses are frequently returnable a long time ahead. In these circumstances, it seems to me that one has here one more example of the scope of this change being enlarged beyond what is necessary. I shall take an example which, I think, will give more reality to the situation.

There must be quite a number of cases in which rape is suspected and in which investigations are made and a person is suspected of committing an offence long before proceedings are taken. I am not now thinking of the case of a man who escapes, so to speak, and is not found until much later, because that is a different situation altogether. However, there may be doubt in the minds of the police whether the sexual act was consensual and it may not be until a considerable time later, perhaps until forensic tests have ben carried out on clothing and perhaps a search has been made for corroborative evidence, and so on, that the matter materialises in court. It may take a long time before it does so.

As far as I can see, under the provisions of the Bill, if it is enacted in its present form, there would be nothing to stop a man shouting from the housetops "I think I am going to be accused of rape by Mrs. Smith, who lives at …"— and from then giving the address and broadcasting it to the housetops.

If he does that before proceedings are instituted, as far as I can see he commits no offence. Once he has been charged, the blanket of secrecy and silence descends upon the scene, subject to the exceptions that we have already canvassed and in which we have been involved already on earlier amendments.

However, certainly this particular form of bringing proceedings does not seem appropriate to this kind of Bill. I should have thought that the Bill would be marginally improved by the deletion of subsection (6)(a).

I turn to Amendment No. 50, which would insert the words, or he is accused by way of a bill of indictment. Again, for the benefit of the militants who no doubt have the worst possible view of my motives in this matter, one will see that those words, if anything, widen the scope of the case. It seems an oddity that these secrecy provisions can apply to a person who is charged before a court but that where one proceeds by way of a bill of indictment, that does not apply.

I notice that the Minister is nodding. I am beginning to wonder whether one of my amendments, at least, will be accepted today. It would make my day to feel that someone had actually listened to what I have said. This would strengthen a bad Bill, but strengthen it nevertheless. One would feel that it should call down the encomiums of the militant sponsors for doing so.

I see that my hon. Friend the Member for Hemel Hempstead (Mr. Corbett), the progenitor of the Bill, has now returned to his place. I do not think that he was in the Chamber when I mentioned bills of indictment in an earlier context. Perhaps I may remind him that this is a procedure for which we provide as an alternative method of bringing matters before a court. Perhaps I may quote to my hon. Friend the appropriate part of the criminal lawyer's Bible, "Archbold", which deals with this point and defines it in literally the first paragraph, which states. A bill of indictment is a written or printed accusation of crime made at the suit of the Crown against one or more persons. An indictment is a bill which has been signed by the proper officer of a court in accordance with the provisions of the Administration of Justice (Miscellaneous Provisions) Act, 1933. By section 2(1) of that Act: 'Subject to the provisions of this section, a bill of indictment charging any person with an indictable offence may be preferred by any person before a court in which the person charged may lawfully be indicted for that offence, and where a bill of indictment has been so preferred the proper officer of the court shall, if he is satisfied that the requirements of the next following subsection … have been complied with, sign the bill, and it shall thereupon become an indictment and be proceeded with accordingly: Provided that if the judge … of the court is satisfied that the said requirements have been complied with, he may, on the application of the prosecutor or of his own motion, direct the proper officer to sign the bill and the bill shall be signed accordingly'. I think that that probably defines it adequately enough for the benefit of the discussion on this amendment, but I think it is already clear to the House that in their enthusiasm to get the Bill on the statute book, the sponsors of the Bill have made a "boob". I see that the hon. Member for Burton (Mr. Lawrence) looks a little surprised. I do not know why, but that seems to be the situation. I am interested to know whether the Minister has decided to accept these amendments. One of them, I suppose, is a deletion the other is an addition. I should have thought that between them they provide some measure of improvement in the Bill.

Mr. Lawrence

In an effort to be helpful, I should like to ask the Minister to look again at the wording in subsection (6)(b): he appears before a court charged with a rape offence". The time lag between charging a man and his appearing before a court charged with the offence may be fairly considerable. If the object of the exercise is to seal all the gaps by which the anonymity principle can be breached, this is one gap that might be blocked. It seems obvious, on the face of it, that the words he is charged with a rape offence would suit the Minister's book more adequately than the present wording.

1.15 p.m.

Mr. John

In response to that last matter, if the amendment is not pressed I shall undertake to look again at the wording to see whether all the gaps are covered. However, on the principle, I am bound to tell my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) that he is half right when he anticipates my reaction on this matter.

Concerning Amendment No. 49, I certainly would not advise my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) to accept its principle, because it would delay the beginning of the protection afforded by the clause, and I believe that that would be undesirable. My hon. Friend the Member for Hands-worth certainly made the point that before an information or a charge is laid, anticipatory noises can be made, but that seems no good reason for saying that even after a charge is made there should be a similar freedom.

Concerning Amendment No. 50, I accept the spirit of what my hon. Friend said.

Mr. Lee

Then why not accept the amendment?

Mr. John

Parliamentary counsel look at these matters, and, unfortunately for my hon. Friend, my advice is that the wording is not wholly satisfactory. If my hon. Friend agrees with my advice, I hope that he will agree not to press the amendment, upon an undertaking that a suitable form of wording will be introduced in another place in order to meet the point that he has validly put forward.

Mr. Lee

Is my hon. Friend giving an undertaking that it will quite definitely be introduced in another place?

Mr. John

As this is a Private Member's Bill, what I can undertake is that if my hon. Friend accepts my advice a suitable form will be prepared for introduction in the other place.

Mr. Robin Corbett (Hemel Hempstead)

I am prefectly prepared to go along with that very helpful and sensible suggestion, and I hope that my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) will accept it.

Mr. Lee

In those circumstances, overwhelmed as I am by this unusual attitude of co-operation and with the undertaking that a suitable form of wording will be introduced in another place, I am prepared to withdraw the amendment. I hope that my hon. Friend has a majority of people in the other place who would support this amendment. I hope that he has done some head counting among the peers, otherwise he may find some difficulties there.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Back to
Forward to