DEFENCE OF INNOCENT PUBLICATION OR DISTRIBUTION (Hansard, 16 June 1981)

§ Mr. Peter Archer
I beg to move amendment No. 3 in page 2, line 8, at end insert 'or does not know of and has no reason to suspect the existence of any fact or facts by reason whereby that rule applies to the matter in question'. This amendment arises from a matter that I ventured to raise in Committee. We have spent some time in the course of the Bill's progress discussing the proper extent of the strict liability rule. I have only to say that hon. Members are agreed about a matter to introduce a note of dissension. But all hon. Members have agreed that there is need to keep a careful balance between the right of free speech and the right to a fair trial. There is always room for further discussion about whether the balance is exactly right. I hope that Opposition Members have kept an open mind on the subject. I am bound to say that the Government, by and large, have done so. This is especially important when we discuss the balance of the strict liability rule. It is an exception to the rule that normally people should be subject to a penalty only where they intended to infringe the law.
I quoted in Committee from the learned authors of "Smith and Hogan: Criminal Law" who stated: The case against strict liability, then, is, first, that it is unnecessary. It results in the conviction of persons who have behaved impeccably and who should not be required to alter their conduct in any way. Secondly, that it is unjust. Even if an absolute discharge be given, the defendant may feel rightly aggrieved at having been formally convicted of an offence for which he bore no responsibility. That is a fair assessment of our normal reactions to the strict liability rule. But there are reasons in certain cases for excluding the normal defence that one offended only unintentionally. Basically, the rule, to paraphrase Phillimore, concentrates the mind. It encourages people not to take risks. That is a justifiable approach when the risks are being taken with other people's rights to justice. But it means that we have to be particularly careful about getting the balance right, and clause 3 is designed to do that. It introduces two defences to proceedings under the strict liability rule.
The question arises whether it should not be amended to include a third defence. The argument arises in this way. Let us suppose that the risk of prejudice that causes the publication to infringe the rule arises from a fact that could not possibly be known. I shall give an example. Let us suppose that it is intended in proceedings to call a particular person as a witness. Let us suppose that that fact is not known generally, and normally there is no reason why it should be known until the proceedings take place. Let us suppose that a newspaper editor publishes an article about that person, saying that no one in their right mind would believe a word that he says and that anyone who associated with him is probably dishonest. That, clearly, would introduce a substantial risk of prejudicing those proceedings, so it would fall within the strict liability rule.
In the present state of the Bill, it would be no defence to say that the fact that that person was to be called as a 914 witness could not have been known to the editor who published the article. I ventured to raise that problem in Committee, and the Attorney-General kindly said that he would consider the matter. We assume that he has done so, and we now invite him to give us a progress report.

§ The Solicitor-General for Scotland (Mr. Nicholas Fairbairn)
I understand and appreciate the concern of the right hon. and learned Member for Warley, West (Mr. Archer) that the balance of interests in securing justice for the individual, protection of the system of justice, and freedom of the press, which is part of the same process, is a balance which we are all anxious to get right, and something about which none of us on either side would wish to have a closed mind.
With great respect to the right hon. and learned Gentleman, the amendment does not advance the position at all. In Committee he spoke with great sincerity, and we all admired the line that he took. The amendment would not change the situation in any way. On the other hand, it might give rise to the opportunity to prejudice the individual by advancing arguments of ignorance which, without it, would perhaps not be available.
There is no attempt, as I am sure the right hon. and learned Gentleman appreciates, to muzzle the press. It is an attempt to ensure that proper caution is taken in all circumstances. The example that he gave was perhaps a good one of how one can throw caution to the winds on the basis of ignorance. To be fair to him, I cannot imagine how a newspaper would come to publish an article saying that someone who happened to be about to be a witness, or turned out to be a witness, was a person that no one should believe in any circumstances.
I have never read such an article. I can only imagine that it would be published subject to the defence that the newspaper was ignorant that the person was to be called as a witness. One could say to oneself "I wonder who will be called as a witness. I do not know. I can justifiably claim ignorance, and I shall then write in an article that I think that the witnesses may not be satisfactory." For example, the editor might know that criminal proceedings were pending, but he might claim that he did not know that identity was an issue, and publish a photograph. He might claim that he did not know that alibi was to be a defence, and publish an article about the whereabouts of the person. It is not a question of restricting the right of the press.
The safeguards in the Bill are such that a scrupulous person who is involved in the publication of material about a person involved in any litigation or criminal proceedings will be put on caution, and, with great respect, the amendment does not advance the position to the advantage of liberty of the press. Indeed, it might prejudice the administration of justice.

§ Mr. Archer
With the greatest respect to the Solicitor-General for Scotland, I find his argument extraordinary. His objection to the amendment is that it would give an opportunity of what he called "advancing arguments of ignorance". That is exactly what it is designed to do. We think that that opportunity should be given to people who can say honestly that they were ignorant. He then said that it would encourage people to throw caution to the winds. I do not see how being cautious can enable a person to know what legal advisers are proposing to do when they have not yet done it and have not announced it publicly.
The example that I gave must be less than clear. I was not postulating an example where a newspaper editor 915 published an article about the case. I postulated an example where he had no reason to associate the person with any case that was pending, but published an article about that person.
However, we have to decide whether we wish to divide on the amendment. I agree with the hon. and learned Gentleman that it s a matter of balance on which we can perhaps always have further thoughts. As my right hon. and learned Friend the Member for Aberavon (Mr. Morris) said earlier, unhappily we do not have many contempt Bills in which to enshrine our further thoughts. But we do not feel sufficiently strongly that we are right and the Government are wrong to carry the matter to a Division. I beg to ask leave to withdraw the amendment.