§ 9 pm
§ Mr. Rifkind
I beg to move amendment No. 170, in page 23, line 17, leave out second 'the' and insert 'a',
§ Mr. Deputy Speaker (Mr. Richard Crawshaw)
With this we may take Government amendments Nos. 32 to 34.
§ Mr. Rifkind
Amendment No. 170 is a minor drafting amendment which has no policy implications. However, amendments Nos. 32 to 34 are far more substantial. Those hon. Members who served on the Standing Committee will remember that we had a vigorous debate on the question of the reporting of child witnesses and child offenders by the press in the event of their conviction. There was a considerable debate and a number of my hon. Friends expressed the strong view that there should be an opportunity in certain circumstances for identities to be revealed.
The Government have given considerable thought to the points that have been made, and the amendments before the House now represent one aspect of the Government's response. Our proposal is that children who are witnesses—those who are neither the offenders nor those named in the charge—to a particular incident involving adult offenders may have their identities published. However, there will still be a residual right for the court to prohibit publication, if the judge thinks that that is appropriate. For example, there could be a situation in which a child, purely by accident, sees a crime taking place while he or she is walking down the street. Clearly he or she would be a witness to that crime. It is some- 614 times in the interests of that child that his identity should be published—perhaps his actions will be commended for bravery by the court. Also there may be other circumstances in which it is natural and proper that his identity should be published. However, I emphasise that there is a residual right for the judge to prohibit publication in special circumstances so that the interests of the child are fully protected. Nevertheless, the restriction on the freedom of the press in this area is removed. I am sure that there would be general agreement that it would be unreasonable to insist upon the restriction.
There is another area in which we have sought to take action, although legislation is not required. When I met the newspaper editors they indicated that it was all very well for the court to have discretion in all cases to allow publication, but the problem in the past in summary cases, where these restrictions have applied for many years, was that no one had drawn the judge's attention to the fact that he had this discretion. All that has happened is that a child has been convicted, the prohibition has been enforced and the judge has never had drawn to his attention his rights to allow publication in particular circumstances. Clearly the defence do not refer to it and the prosecutor has no particular interest in making it known to the judge.
In order to respond to that legitimate concern of the press, the Lord Advocate has indicated that he intends to issue a standing instruction to all advocate deputes and fiscals in order to ensure that in all circumstances where a child has been convicted of an offence and where publication would not be permitted unless the judge used his discretion to allow it, the fiscal or the depute or whoever is responsible for the prosecution will draw to the attention of the judge his right, if he so wishes, to allow publication. I emphasise that it will not be the function of the prosecution to encourage publication. His function will simply be to remind the judge that he has this right and it is then entirely for the judge to decide the issue. That at least will ensure that the issue is considered on its merits on each occasion. That is not unreasonable.
§ Mr. Buchan
Why is the Under-Secretary so keen to send out this instruction when his right hon. Friend, in relation to 615 chief constables and their subordinates in the matter of search, was not prepared to accept the suggestion that a circular should be sent out to guide chief constables on that important matter? Yet on this issue, which concerns the privacy of young people, the Government are prepared to send out an instruction that the matter should be drawn to the attention of judges.
§ Mr. Rifkind
I answer the hon. Member with a simple explanation. The relationship between the Secretary of State and the chief constables is different from that which exists between the Lord Advocate and his staff. The relationship between the Secretary of State and chief constables is a delicate one. Chief constables have full autonomy. They manage their own responsibilities. It is quite wrong for the Secretary of State to seek to instruct, or to bring pressure to bear upon, chief constables.
§ Mr. Rifkind
It is to bring pressure because that is what will be meaningful. That is why that form of action is suggested. But when we are dealing with the relationship of the Lord Advocate with the deputes and the fiscals we must remember that they are his staff. He is responsible and they act under his instructions. It is right that it should be so. That is the relationship that is intended to exist.
Therefore, it is only sensible that if it is thought appropriate that the judge should be reminded of his opportunity to use his discretion in that way that is the way the system should operate. The Government feel that this is a reasonable balance between two reasonable points of view. This is a delicate problem because these are statutory restrictions on the freedom of the press. If we are to impose such restrictions—and the Government accept that they are necessary—it is not unreasonable that the judge should be reminded of his discretion to exempt a particular situation from prohibition in circumstances that justify it. That is the intention of the proposals, and on that basis I commend the amendments to the House.
§ Mr. Millan
The Under-Secretary's statement is extremely unsatisfactory.
616 First, I deal with the question of the contents of the clause and the nature of the amendments moved by the Under-Secretary. I say straight away that I would prefer that the clause was left as it was.
There has been a ridiculous press campaign on the issue and I am sure that the Minister has caved in to some extent. Some of the humbug that one reads in the press on these matters is nauseating. Having said that, I make the point that, if the Minister was about to cave in. what is in the amendment is probably the least offensive thing that he could have proposed because he is dealing with witnesses rather than an accused young person.
The Minister is also dealing with cases where proceedings are not against a young person. We are really talking about an adult offence. I notice that amendment No. 32 provides that the judge can say, despite the new provision, that if there is to be no publication he need not give reasons. The judge does not even have to say that he is satisfied that it is in the public interest. He is, therefore, left with a considerable amount of discretion.
Though I do not like these amendments, and though I think it is a great pity that the clause is being amended at all, I do not think that they will do tremendous damage, although there may be many cases where it will be undesirable that a witness should be identified.
I find the second part of the Under-Secretary's statement not only unsatisfactory but offensive, because the Lord Advocate will instruct prosecutors to tell judges their business. One must assume that judges know the law. In some cases that may be a naive assumption, but it is one which I have so far made. One must assume that judges know perfectly well that when they deal with young people under this clause there will be no publication.
Judges must also know that if they wish publication—or do not wish to prevent publication—they are entitled to decide the issue. If I were a judge and some young prosecutor proposed to instruct me in my business I would take an extremely dim view of it. I do not suppose that I could stop him from telling me what I should be doing, but I do not think that my response to him would 617 be agreeable. If the same prosecutor were to keep reminding me—as he presumably would have to since he is under instructions from the Lord Advocate to tell the same judge the same story every time a particular case comes up before him where this provision would be relevant—the prosecutor would get short shrift.
The Government are making an extraordinary and foolish proposal. It would have been much more dignified if they had simply told the press that it was talking nonsense that was contrary to the public interest which the Government are charged to defend, particularly the interests of young people. They do not exist to give in to the prejudices of the press. On that basis they should have made no change.
The change in the clause is bad enough, although it is comparatively minor. The Government's other proposal is silly and offensive. I hope that the Lord Advocate, who is basically a sensible man—I say that in a friendly sense, with no intention of being patronising—and who takes a balanced view of these matters will, for the sake of his reputation, not proceed with this ridiculous proposal.
§ Mr. Michael Ancram (Edinburgh, South)
I thank my hon. Friend the Under-Secretary for having fulfilled the commitment that he gave in Committee to look at the matter again. In the amendment he and my hon. and learned Friend the Solicitor-General have obviously reconsidered the matter on the basis of the argument advanced, and for that we are grateful.
I still have certain reservations about the clause. They are the same as those I expressed in Committee. In spite of the protest from the Labour side, I do not believe that there is any difference between the two sides on the purposes of the clause—
§ Mr. Ancram
The hon. Gentleman asks me not to incriminate him. I find it difficult to do otherwise on most occasions. The purpose of the clause is to protect young people. That purpose can be adequately served by the law as it stands. The right hon. Member for 618 Glasgow, Craigton (Mr. Millan) made a profound comment. He said that we must assume that judges know the law. He was saying that judges should be able to apply the law at their discretion without having to be told by anybody what to do. That is the existing position. This is a question of important principle, because, as the Under-Secretary said, it is a delicate matter when we legislate to restrain freedom. It is even more delicate when we legislate to create restraints on freedom in general terms, where the power is already vested in the court to create those same restraints in particular circumstances.
It is always better to leave these matters to the court and the judge who knows the particular circumstances at the time. We must assume that the judges know the law. I believe that they are capable of applying their discretion fairly in this matter. It would have been better to leave it to the judges to protect young people. I hope that although my hon. Friend has gone so far by tabling the amendment—ironically, in the amendment he is creating the sort of discretion for judges that I argue should be applied across the board—he will consider how the clause operates in practice, so that perhaps at a later date we shall be able to restore the situation.
§ Mr. Maxton
I begin by making a technical point. I do not understand why amendment No. 32 is placed where it is. It makes nonsense of the wording of the clause. If the Minister wanted to table that amendment, I do not understand why it was not applied to line 19, where the clause provides that the name of a person under the age of 16 shall not be reported as "being a witness therein". Why did the Minister not amend line 19? There is a certain amount of tautology now, because at one point the clause says that the name of a witness under 16 years of age cannot be revealed under any circumstances, and five or six lines further on it says that it can be. That is bad drafting, and I hope that the Minister will look at that point again.
My major objection is that the press poodles on the Conservative Back Benches barked and the Minister caved in on an important principle. The only 619 example that he gave as a reason for producing the amendment was that of a child in the street seeing a crime, perhaps performing an act of some bravery by stopping a thief, and then being a witness. That is already covered in the clause, which states thatthe court may at any stage of the proceedings if satisfied that it is in the public interest to do so, direct that the requirements of this section shall be dispensed with",and the case may be reported. If the court considers that the public should be informed about the case, it may direct that it should be reported.
The Minister has reversed that process. Instead of saying that in certain circumstances a court may direct that the name of a witness under the age of 16 may be given, he has said that a witness under the age of 16, as long as the person who is being prosecuted is more than 16, shall be reported except under special circumstances. That is reversing the basic intent of the clause. That is wrong. I should prefer it not to be a decision for the judge. There will be cases, for example those involving incest, rape and sexual offences, and cases where there has been intimidation of witnesses—and witnesses under 16 are more likely to be intimidated than those over 16—where reporting could create serious problems.
The clause was adequate as it stood, with one exception, to which we have tabled an amendment. I always find the cries of "press freedom" phoney and false. The press is not free. It is owned and controlled by remarkably few people. Much of it is scurrilous. It is aimed at titillating and not at genuine reporting. The more that we keep children out of the newspapers, the better. The amendment does not improve the clause.
§ Mr. Peter Fraser (South Angus)
The contribution of the hon. Member for Glasgow, Cathcart (Mr. Maxton) has confirmed my feeling that it is right to have misgivings about the clause. In Committee I advanced the reasons why I thought that the Government were making a grave error in the clause. I do not intend, on Report, to detain the House with a repetition of those arguments. I wish to make a few short observations. I accept that my hon. Friend the Minister was absolutely right to bring before the House, in this clause, an opportunity to rectify an existing anomaly between the 620 reporting in solemn procedure and the reporting in summary procedure in Scotland. It is difficult to understand why different tests should apply in one form of procedure as opposed to the other. They should be the same.
As hon. Members who served on the Committee will know, I adopt an opposite view to that taken by the Government. It would have been better if the Government had allowed the existing onus in solemn procedure to continue, namely, that the publication of any court proceedings involving children should be permitted unless the judge ruled differently. Like my hon. Friend the Member for Edinburgh, South (Mr. Ancram) I found the observations of the right hon. Member for Glasgow, Craigton (Mr. Millan) quite extraordinary. We recognise that a judge who has listened to the whole trial is in the best position to make a decision about what is in the public interest, what should be published, and what should not be published. In those circumstances, it would have been better for the existing onus in solemn procedure in Scotland to have been left as it was. That is the direction in which the public interest and open justice lie.
The hon. Member for Maxton—[Hon. Members: "Cathcart".] I apologise; I mean the hon. Member for Cathcart, although "Cathcart" is too sacred a word in the Tory Party to apply to the hon. Gentleman. The term "press poodle" has too frequently been applied to both my hon. Friend the Member for Edinburgh, South and myself to cause us even a moment's trepidation. However, I do not want to press a Division on this amendment.
§ Mr. Buchan
Perhaps the hon. Gentleman will clear up a mystery. How is it that Conservative Members have seen infringement upon infringement of all our freedoms and have sat silent, yet on the first occasion on which editors of the popular press intervene in order to get the right to publish the names of kids under 16 involved in crimes they immediately leap to their feet in defence of the freedom of the press barons? The hon. Gentleman asks why we call them press poodles. Had they said one word in defence of the other freedoms that are under attack in the Bill we might have had an atom of respect. As it is, there can be none.
§ Mr. Fraser
That is possibly the most irrelevant intervention in the debate so far. I might have had some respect for the hon. Gentleman had he at any time had the honesty to admit that in the Bill there are more additions to the liberty of the individual in Scotland than there are restrictions upon it. Had the hon. Gentleman had the courage to say that, I would have listened to what he said in his intervention.
There is something of a question mark over the amendments that have been introduced by the Government. However, I shall not cause a Division on them. I hope that in future there will be an opportunity to see whether they have worked, and whether it is possible to separate the identity of a witness from that of either the victim or the complainer.
§ Mr. Dewar
I suppose that if one did a narrow, pettifogging, numerical head-count through the Bill to the point made by the hon. Member for South Angus (Mr Fraser) would appear to have a superficial validity, but it is not a matter of quantity; it is rather one of quality. The sad thing about the Bill is that the number of obnoxious clauses are few, but they are extremely damaging. While we have never denied that there are useful things in the Bill, we fear that they are very much outweighed by those that will damage essential liberties and the workings of the criminal justice system.
I agree with the hon. Member for South Angus on one point, which is the split that has existed in the law in relation to the reporting of the names of children under summary and solemn procedure. He at least has had the courage to say that he would have moved for consistency, but he would have done it in the wrong way by destroying the safeguards on summary procedure and bringing the law into line with what had been the situation in respect of solemn prosecutions.
I think that the Government have been correct in saying that that would be totally unacceptable, and that if we are going for consistency—and there is a strong argument for that—we should standardise on the powers contained in section 374 of the 1975 Act, which protects a juvenile who is the subject of a summary prosecution. That section makes it clear that there cannot be publication in those cases.
622 After all, that is also consistent with the children's panel situation, as set out in, I think, section 58 of the Social Work (Scotland) Act. What we were dealing in the solemn procedure cases was an anomalous fag-end, and the Government have been absolutely right to bring the whole matter into line.
I believe that there has been a good deal of hyprocrisy, bombast and something bordering on hysteria in the campaign that has been fought on this issue. There has been a suggestion—the phrase was used by my hon. Friend the Member for Glasgow, Cathcart (Mr. Maxton)—that on this occasion the Government have caved in. I do not think that the Government have caved in although we are delighted if that impression was given. We have not a cave-in but a somewhat soggy sag.
The Under-Secretary of State tried to produce a cosmetic amendment to present to the press and to say to them "We are good boys really. We have done our job for you." In fact, he has not wanted to concede the principle that is worrying the editors. I have news for him. He has been found out. In its letter of 30 May the Scottish Daily Newspaper Society anticipated this amendment and said:It is believed that the Government are prepared to modify clause 22 to provide that child witnesses not named in the charge may be identified subject to possible direction by the court.It was right. The letter continued:In the view of the Scottish Editors, this is not nearly sufficient.So, when the hon. Member for Edinburgh, South (Mr. Ancram) rushes loyally to the defence of his Ministers and tries to misrepresent the position, he is totally wrong. The press will not be taken in, and it will recognise that this amendment constitutes only a minor change. I am grateful for that, but we should recognise that it does not give the press what it wants. We should be thankful for that small mercy.
Will the Under-Secretary of State clarify certain points? As I understand it, the new amendment makes it clear that a witness cannot be restricted, and has a right to publish until such time as the court makes an order to the effect that he cannot publish. Certain cases 623 were raised by the Scottish editors in their letter, which stated:Not so long ago a gunman burst into a Dundee primary school classroom and threatened to shoot the teacher. The clause, as drafted, could preclude naming the school and picturing the children because some of them might be witnesses at the forthcoming trial.Is it correct that that case would be covered by this amendment and that the editors would be free to print pictures of the school and to name it, despite the fact that the children might be witnesses at the forthcoming trial? There may be some interesting areas of contempt of court, but on the assumption that at that point no one had been arrested, I should not have thought that contempt would apply. But the editors felt that as this clause was originally drafted it would prevent that kind of reporting and that sort of picture appearing. Has that anxiety been laid to rest?
I believe that, on the whole, the line has been held by the Government, perhaps with a little embarrassed shuffling. I am grateful that it has been held, however reluctantly, at the end of the day. They are right. This protection should be extended. Protection is more important in this case than in cases covered by section 374 of the Criminal Procedure (Scotland) Act 1975, which are minor summary matters. We shall support the Government, even in the face of mutiny by their Back Benchers.
I agree with my right hon. Friend the Member for Glasgow, Craighton (Mr. Millan) about the extraordinary procedure that is proposed whereby the procurator fiscal will bob up at any time and remind the judge about his duties and responsibilities under section 22 of the Criminal Justice (Scotland) Act 1980. That will be a laugh. I wonder what will happen if he forgets to do it. Will that be a ground for appeal? Perhaps the Under-Secretary of State can tell me. In any event, I am grateful that we are still moving down the right road and, despite the somewhat embarrassed shuffles, we shall get almost where we should be.
§ Mr. Rifkind
The hon. Member for Glasgow, Garscadden (Mr. Dewar) was showing distinct signs of schizophrenia in the welcome that he gave to the Government's approach to the clause. Nevertheless, I recognise what the hon. 624 Member for Renfrewshire, West (Mr. Buchan) has just said, and I am grateful to him for that.
In answer to the specific question about the example of a gunman breaking into a school, I have not the slightest doubt that in these circumstances there is absolutely no reason why the press should not name the school or, indeed, give much other information as well.
If the hon. Member for Garscadden rereads clause 22 he will see that it merely refers to newspaper reports of proceedings in a court. Until the proceedings are in a court, clause 22 cannot be relevant. There may be other matters affected by the law of contempt, as the hon. Gentleman recognised, but the press need have no fear concerning its general ability to report in a very detailed way.
Even when the proceedings are taking place in court, the press can give very wide detailed descriptions of what is alleged and what has happened. The only thing the press cannot do is to identify the names of the children involved. The press can indicate the whole circumstances in which a crime took place, the way in which it was committed, and all the other matters of legitimate public interest. As I have already indicated, what the press cannot do—unless the judge directs otherwise—is to identify the child or children involved. That is the purpose of the clause.
§ Mr. Rifkind
I accept that some of the newspaper editors—and some of those who have commented on the clause—have misunderstood what will still be possible and what, indeed, has been possible over the years in summary cases. I have no doubt that members of the press read the reports of our proceedings and will be in no further doubts as to the implications of the clause.
§ Amendment agreed to.
§ Amendments made:
No. 32, in page 23, line 25, after '(i)', insert
'where the person is concerned in the proceedings as a witness only and no one against whom the proceedings are taken is under the
age of 16 years, the foregoing provisions of this subsection shall not apply unless the court so directs;
No. 33, in page 23, line 28, after 'section', insert:
'(including such requirements as applied by a direction under paragraph (i) above'.
No. 34, in page 23, line 33, leave out 'requirements of this section' and insert 'said requirements'.—[Mr. Rifkind.]
§ Mr. Norman Hogg (Dunbartonshire, East)
I beg to move amendment No. 35, in page 23, line 42, leave out ' £ 500' and insert ' £ 5,000'.
In Committee, Opposition Members very strongly supported the clause, and we are a little concerned about the developments that we have just discussed. The main misgiving that we had was that the fine proposed for a breach was so inadequate. In Committee on 5 June, my hon. Friend the Member for Glasgow, Cathcart (Mr. Maxton), in a speech which strongly supported the generality of the clause, spoke very strongly in favour of the fine being increased. That is my view and it is the view of my right hon. and hon. Friends. It accounts for the fact that we have tabled the amendment that is now before the House.
The first and most important interest in the matter is that of the children. It is best put by Mrs. Eileen Griffiths, the press secretary of the Scottish Association of Children's Panels, in a letter to the Glasgow Herald of 3 June in which she said:Is it not in the best interests of society to reform these youngsters, who hopefully differ from their adult counterparts in that some of them at least are still impressionable enough to be changed for the better? Attempts at reforming such children are likely to be doomed to failure once they have been publicly labelled and given a bad name.That powerfully underlines the importance of the clause. We have been stressing in Committee and here this evening the importance of the clause. That is why we believe that the fine should be increased.
If the House accepts that the offence is serious, the fine proposed is inadequate. It is equal to a contempt of court. If the House accepts that view, it is surely hopelessly inadequate when we consider recent precedents for fines for contempt.
626 In January 1978 London Weekend Television was the defender in a case brought against it because it had broadcast photographs. It was fined £ 50,000 and its executives were each fined £ 11,000.
Nearer home, Radio Forth, reported in The Times on 22 December 1979, was fined £ 10,000 and its chief executive was fined £ 1,000 when one of four arrested personsbrought a petition and complaint before the High Court alleging that Radio Forth broadcasts were made after it was known that persons had been arrested.I draw attention to those precedents because I believe that those fines were right. They reflected a proper decision by the court. If we are talking about protecting children and arguing that they should be given the opportunity to start again at an early stage in their lives, and if the press chooses to be irresponsible in that respect and acts in breach of clause 22, the fine must properly reflect the seriousness of the matter. We could do that by accepting the amendment and increasing the fine to £ 5,000.
§ Mr. Bill Walker (Perth and East Perthshire)
I intervene briefly because I do not often find myself in agreement with the hon. Member for Dunbartonshire, East (Mr. Hogg), although there have been occasions on which we have managed to come reasonably together on some matters.
The hon. Gentleman will be delighted to know that I support the intention behind the amendment. I have not been happy about the clause, for many reasons. I did not speak in the earlier debate on this clause, but I assure Opposition Members that I do not think that we have got it right even now. Therefore, I am concerned about it.
It is important to protect children. I do not believe that the present level of fine would necessarily deter. As Opposition Members know, I am a great one for deterrents. Therefore, I believe that the fine should deter.
§ Mr. Rifkind
I can answer the points raised by the hon. Member for Dunbartonshire, East (Mr. Hogg) and my hon. Friend the Member for Perth and East Perthshire (Mr. Walker) straightforwardly and simply. They have asked that the fine be increased to £ 5,000. At the moment, the maximum fine for an 627 offence of this kind is £ 50. Therefore, the figure in the clause represents a tenfold increase in the maximum from £ 50 to £ 500.
§ Mr. Rifkind
I shall not give way. This is a small point. To suggest that we should increase the fine in one go from £ 50 to £ 5,000 takes it much too far. A tenfold increase at this stage is appropriate. There may be circumstances in future years to justify a further increase, but it is not appropriate at the moment.
§ Mr. Buchan
I do not think that the Under-Secretary of State has got the kernel of the argument. The kernel of the argument is the assumption that the press, in view of the representations made to us, intends to behave in a responsible fashion. Because we accept that the Daily Express, The Sun, and so on will behave in a responsible fashion, those who transgress should receive a much heavier penalty. The Tories were moved to weep and plead for the poor press barons, but they cannot argue with such conviction without accepting that they are liable to a greater penalty if they transgress. Recognising the new responsibility that has been shown in the pressures that have been brought to bear upon us to allow the press to print the names of people under 16 years of age involved in incest cases, by the same token, if the press should transgress, a £ 5,000 fine seems moderate. I am astonished at my own moderation in supporting the amendment.
§ Amendment negatived.