CONTEMPT (PHILLIMORE REPORT) (Hansard, 25 April 1978)

§ Mr. John Ryman (Blyth)

I wish to raise the subject of the Phillimore Report on the law of contempt. I am grateful that my right hon. and learned Friend the Attorney-General is here to explain the Government's position on this important report. As is well known, the eminent committee under Lord Justice Phillimore presented its report on the law of contempt of court in December 1974 and the Government presented a discussion paper last month inviting public and parliamentary discussion of this topic.

In the short time available for this debate, it is impossible to deal with many of the aspects of the Phillimore Report. To summarise, it is a difficult and technical subject of law which has troubled the courts greatly for many years. Lord Justice Phillimore's committee investigated the matter thoroughly, received oral evidence from many eminent persons and came to certain conclusions.

Those conclusions affect both civil and criminal law and reveal certain difficulties and deficiencies in the operation of the law of contempt as it stands. The Green Paper recognised this fact and said, in effect, that it was a difficult subject which 1341 required discussion and careful examination, that the law of contempt was necessary for all sorts of very good reasons and that the freedom of the Press, while paramount, involved a measure of restraint. The Green Paper said: As Phillimore pointed out, the crucial question is what measure of restraint is required. In all evidence received by Phillimore and others, there was no suggestion that the law was wrong in principle. Anxiety was, however, expressed about the uncertainty of its scope and application. The heart of the matter appears to be, as the Phillimore Report said: Our review of the law of contempt made it clear to us that in some important areas it fails short of the certainty it ought to have. This is especially true of these parts of the law which affect the Press. It went on to give the explanation for this state of affairs.

One of the most serious aspects of the law of contempt that the Government must consider is that it operates in such a way that in certain cases, particularly civil cases, the Press is unfairly muzzled and prevented from commenting on matters of legitimate public interest.

It is highly significant that we are debating this topic while the court in Strasbourg is hearing an important appeal on contempt in what is colloquially referred to as the thalidomide case. This was a piece of litigation which occupied the time of the courts in this country for a long time and raised many important points of public policy.

What I ask my right hon. and learned Friend the Attorney-General to do tonight is to say what view the Government have formed initially of this report. We have had now a period of three and a half years for this report to be considered, but the discussion document which has emerged—an excellent document and I congratulate its authors—gives no lead as to what the Government's thinking on the law of contempt is. It states the position accurately and succinctly and says, for example, in paragraph 5 on page 2: The main issues arising from the Phillimore recommendations concern:—

(a) the starting point for strict liability for contempt in both criminal and civil proceedings;
(b) certain proposed offences against strict liability;
(c) the extent of liability for prejudice intentionally caused; and
(d) the extent to which litigants may be subjected to pressure and influence."

It adds two additional factors which will have to be taken into account. The first is the case at the European Court of Human Rights, which started yesterday and to which I have referred, and the second is the Law Commission's report on offences relating to the administration of justice. All of these are highly significant matters.

The Government, in the course of the White Paper, having stated that the Phillimore recommendations are not seriously objected to in any substantial way, although individual criticisms could be made of one or two—I am abbreviating this for the purposes of the debate—put the alternatives which could exist instead of implementing the proposals made by Lord Justice Phillimore. In paragraph 15, on page 6 of the White Paper, the Government say: Among the possible alternatives to the Phillimore recommendations are:— then there is a list of five specific courses of action which would be open to those seeking to reform the law.

Against that background I have a question to put to the Attorney-General. The Government have considered this report for three and a half years. Do they in principle accept the report of the Phillimore Committee? Do they agree in principle that it is necessary to reform the law of contempt, difficult and technical though this is? Do the Government agree with Lord Justice Phillimore that the present law of contempt is not precise enough in the sense that there are technical difficulties which may arise in individual cases which make it uncertain whether contempt arises at all?

I apprehend that the Attorney-General has many cases referred to him complaining of alleged contempt and may or may not take up individual complaints referred to him according to whether he and his advisers consider that contempt has been committed. I respectfully suggest to my right hon. and learned Friend that the present law is unsatisfactory and, above all, particularly in civil cases, the borderline of what is contempt and what is not is not sufficiently clearly defined.

That point was stated very succinctly and graphically by an eminent Law Lord, Lord Diplock, in the thalidomide case 1343 which is referred to in paragraph 6 of the Phillimore Report. Lord Diplock said: There is an abundance of empirical decisions upon particular instances of conduct which have been held to constitute contempt of court. There is a dearth of rational explanation or analysis of a general concept for contempt of court which is common to cases where it has been found to exist. This is not surprising since, until the Administration of Justice Act 1960, there was no appeal in cases of criminal contempt against the decisions of those of the courts of first instance whose main function is to reach decisions upon the particular facts presented to them in the particular case with which they are dealing. Putting it another way, what the noble Lord was saying was that there are many examples of the courts having decided that certain facts constituted contempt but that there are no overall, guiding definitions and precise principles which make it clear to newspapers, reporters and all concerned in the media with reporting events exactly where freedom of speech ends and contempt begins.

In my respectful submission, that is an unsatisfactory state of affairs. I fully recognise that it is both a difficult and a technical subject, but the Government must grasp the nettle and give a lead in the discussion which they have now invited. I hope that the Leader of the House will enable a full day's debate to take place on the subject. It is quite impossible in the space of half an hour to deal with a report as comprehensive and as detailed as this or with a subject as complex as this. The time has now come when the Government, having invited public and parliamentary discussion, should state clearly and unambiguously what their feelings are about the matter.

We are aware of the difficulties, but despite those difficulties the Government should give a lead in the matter. Having stated in this excellent White Paper the pros and cons of the Phillimore recommendations, and having put forward alternative suggestions, the time has now come when the Government should say clearly where they stand on these important matters.

§ The Attorney-General (Mr. S. C. Silkin)

I have listened with considerable interest to my hon. Friend the Member for Blyth (Mr. Ryman) and taken careful note of what he has had to say on this, as he 1344 rightly says, difficult subject. He has performed a particularly useful service, because the Government are most anxious to get a debate started on the Phillimore Report.

As my hon. Friend knows, many have criticised the Government for not having legislated, but few have, like my hon. Friend, actually initiated debate, and informed debate is much needed if we are to reach the right answers. I assure him that the Government agree entirely that it is necessary to reform the law of contempt. The Government agree entirely that the present law is not precise enough.

As for the many cases which my hon. Friend rightly says are referred to me, in only a very small proportion of them do I decide to bring the matter before the court, although some of those seem to raise a great deal of controversy. But I suspect that that discretion will still be needed and will still be difficult, however much the law may be made certain and changed.

The Government have welcomed the proposals of the Phillimore Committee as a useful survey of this difficult branch of the law. The House would want me to thank those who, under the late Sir Henry Phillimore, have produced so valuable a survey. Many of the Phillimore recommendations are relatively uncontroversial. There are altogether 35 recommendations, but, as I explained in reply to my hon. Friend's questions on 10th April, the report raises certain points of particular difficulty upon which we are not yet satisfied that the Committee struck the right balance. Indeed, there have been several cases decided in the courts, since the Committee reported, which might well have affected its thinking on some of these issues if they had occurred before the Committee reported. In Scotland, the important case of Hall, which is to be considered by a full bench of the High Court of Justiciary, may well provide further help.

There is a tendency in some quarters to regard contempt of court as a sort of Establishment weapon for silencing the free flow of comment and information, and for making the task of the media more difficult. It is said "If only Phillimore were implemented, all would be well". I wish it were as simple as that. In this field there is always a difficult balance to strike. The freedom of the public to be 1345 informed is, of course, a vital freedom, in which the Press and the other media play a vital part, which I applaud. It is an essential part of democracy. But the right of the citizen to a fair trial is also vital and, of course, essential in a democracy.

It is my duty, and that of the other Law Officers, to safeguard both freedoms. Indeed, they should be complementary and not antagonistic. I make no apology for approaching the subject with special care and caution. The central Phillimore recommendations raise difficult and important issues on the delicate balance between these two public interests. We have heard much from the media, and it is right that we should, about the public interest in freedom of information. But, as yet, there has been too little explanation of the needs of the other major public interest involved, the fair administration of justice. That is why the Government decided that the right course was to place the central issues before Parliament and the public in a Green Paper for informed discussion. That is what we have done. We are not, as some suggest, seeking to make the law more restrictive. We keep an open mind, but the basic question to which we seek an answer is whether the central Phillimore recommendations go too far in favour of free Press to the detriment of fair trial.

The Green Paper raises four main questions for discussion. I should say a word about each. But I must first emphasise an essential aspect of the Phillimore Report, since it affects them all, especially in relation to strict liability. Phillimore recommended a new definition of contempt. It is, I believe, generally accepted that the present test of contempt is whether the words complained of create a serious risk that the course of justice may be interfered with. Phillimore changed the emphasis. It recommended a new test—whether the words complained of create a risk that the course of justice will be seriously impeded or or prejudiced. This change in definition alone would significantly shift the balance in favour of freedom of information. It alone would markedly reduce the area of uncertainty to which my hon. Friend rightly referred. That is the background against which the four questions must be examined.

1346 The first question is when the law of contempt should begin to impose strict liability for publication in criminal and civil proceedings. The present rule in England and Wales, which differs somewhat from the Scottish position, is that liability for contempt begins when proceedings are "imminent". This was criticised by Phillimore as being unacceptably uncertain and, because of that uncertainty as unnecessarily inhibiting the freedom of the Press. I do not think that there is dissent about that. The Committee was attracted by the logic of the view, expressed by an Australian judge, that contempt of court is historically and by its name and nature concerned with the position of courts, with proceedings in court and with the protection of parties to proceedings in court ". It therefore accepted a simple test. Conduct prejudicial to the course of justice should be regarded as contempt of court only if the proceedings to which the conduct relates have formally started and have not been completed. It followed that in criminal proceedings the starting point for strict liability should be the moment when the accused man is charged or a summons served. It took the time of charge as the most readily identifiable point of time and, therefore, the most acceptable.

The Committee fully acknowledge that there were strong arguments the other way. It has often been said that there is no logical dividing line which determines when prejudice may start to arise. Examples arise of the truth of the well-known saying, that it is possible very effectually to poison the fountain of justice before it begins to flow". Should then the pursuit of certainty carry greater weight than the risk of serious prejudice to a subsequent trial?

Therefore, the question here is whether Phillimore would swing the pendulum too far. To an accused person it may be just as important to be protected from prejudice during the period immediately before he is charged, when public interest in the crime is strong, as it is after a charge has been formally laid.

There is another public interest here, apart from that of the accused person. It is important also that the guilty should not go free because the prosecuting authorities do not believe that a fair trial can be guaranteed. It is important that 1347 a guilty man's conviction is not set aside on the grounds that he did not receive a fair trial; and it is right that the innocent should not be denied the opportunity to clear his name.

The Government, as I have said, keep an open mind. But we are not yet satisfied that a starting point as late as the formal charge is fair to the accused person. Some recent cases have shown that where there is a substantial delay between the commission of an offence and the time when a person is charged with it, widely published material, whether fact or comment, can seriously prejudice a subsequent trial.

I shall leave this aspect of the problem by putting a hypothetical case by way of illustration. Would it be right for a dramatised mock trial of an actual murder case to be shown on television when it is known that the police are seeking to find and arrest a particular person, not yet formally charged, with a view to his subsequent trial for murder?

The problems of prejudicial comment do not apply so acutely in civil proceedings. The Government are not opposed in principle to the majority recommendation of the Phillimore Committee that the starting point for liability should be the stage of setting down. There are, however, practical difficulties about the application of this recommendation. It is not altogether easy to determine an equivalent stage to setting down in the High Court for civil proceedings where there is no setting down procedure. Our aim is clear. It is to devise a rule which will confer the benefit of both simplicity and certainty in its day-to-day working.

The second main question is about defences. Phillimore considered that a publication which creates a risk of serious prejudice to legal proceedings can yet be justified if it is a fair and accurate report of the proceedings in open court, or if it is part of a legitimate discussion on a matter of general public interest. The Government have serious doubts about whether all the problems involved in these defences have been fully appreciated.

The proposal exempting fair and accurate reports of court proceedings was prompted by doubts which had arisen in the Poulson and Kray cases where there were widespread reports of proceedings against persons who were likely to be tried 1348 on other charges in the near future. The proposal broadly corresponded with what the law had previously been thought to be. But it has turned out to be by no means entirely straightforward. An accurate report of legal proceedings may include matters discussed in the absence of the jury which ought not to be reported in newspapers whilst the trial is in progress.

The Border Television case earlier this year provides an example of this. The accused pleaded guilty to some counts in the indictment and was tried on others of a similar nature. The pleas of guilty were reported. The judge stopped the trial and sent it elsewhere. He thought that essential for a fair trial. The Divisional Court agreed and found a contempt established.

The proceedings in 1975 against the Socialist Worker newspaper for disclosing the names of witnesses in a blackmail case were another example. In commenting on that case Phillimore proposed that the judge should be given a statutory power to prohibit, in the public interest, the publication of names or other matters arising at a trial. But such a power would have to be framed in the most general terms if it is to ensure that in all cases of genuine need a judge's request for non-disclosure would always be heeded. This is a very difficult problem. The Socialist Worker case came too late to receive more than passing reference in Phillimore. Its implications deserve serious study.

The proposed defence of general public discussion is intended to preserve the public interest in uninterrupted discussion of the issues of the day. All would agree that public discussion of important issues should not be stifled, perhaps for years. But, given the new test of serious prejudice, this seems unlikely to occur unless the discussion focuses closely on particular features of the litigation in question. Even with the present test, public discussion on the safety of drugs continued unabated throughout the thalidomide proceedings.

The third major question concerns the Phillimore proposal that it should not be contempt to bring influence or pressure to bear on a party to legal proceedings unless that pressure goes as far as intimidation or unlawful threats to his person, property or reputation and this, of course.

1349 was one of the issues which arose in The Sunday Times case.

The Phillimore recommendation makes no distinction between Press comment and criticism which is fair and temperate and that which is unfair and intemperate. The recommendation would permit both. The Government doubt whether that is right. We are all conscious of the great pressure which, as Phillimore acknowledged, the media can bring to bear on a litigant. Even a really virulent campaign of execration by the media against a litigant, designed to induce him to abandon his claim, would not necessarily be a contempt of court under the rule proposed by Phillimore. It is not entirely easy to follow the basis for this proposal, if it is accepted as a general principle that there is no contempt unless the publication creates a risk of serious prejudice.

In considering this question we shall need to take into account the decision of the European Court of Human Rights, to which my hon. Friend referred—the case which commenced yesterday. We hope to have the judgment during the course of this year.

The fourth main question concerns the Phillimore proposal that conduct which is deliberately intended to prejudice legal proceeding should be treated as contempt only if it relates to specific proceedings, as distinct from the administration of justice generally. The Committee took the view that conduct of the latter type should normally be dealt with as a criminal offence. But it may not be possible for the criminal law always to provide effective remedies. Parliament rightly insists that criminal offences must be framed in specific and restrictive terms. Again, I refer to the Socialist 1350 Worker case, where the newspaper published the names of blackmail victims who, by order of the judge, had not been named in court. The publication could not have prejudiced the particular proceedings, because the witnesses had already given their evidence. Publication was objectionable mainly because if permitted it would tend to deter blackmail victims from giving evidence in future cases. This could, without doubt, prejudice the course of justice as a continuing process.

It is for those reasons that the Government have so far been unable to arrive at firm conclusions on the implementation of the Phillimore proposals. It is for those reasons that before reaching our final decisions we have felt it important to bring these issues into the open by means of the Green Paper so that they may be widely discussed, and so that the Government may have the benefit of informed views upon them.

We are anxious to have the views of all those who are concerned with both freedom of information and fair trial. Both are fundamental human rights. The problem is to reconcile them. I am glad that we have the opportunity to discuss these difficult issues in this House, and I hope that this debate—I congratulate my hon. Friend on raising it—will stimulate further—