Criminal Justice (Amendment) Bill [Lords] (Hansard, 19 June 1981)

§ Mr. Edward Gardner (South Fylde)

Lord Wigoder, who introduced the Bill in another place, described it as a modest Bill. Modest both he and the Bill may be, but in my submission it is an important though short Bill, and I should like, as its supporter in this House, to commend it to hon. Members and at the same time to acknowledge with gratitude the initiative and the skill with which Lord Wigoder made the Bill possible.

The Bill seeks to cure a serious defect in the law relating to the lifting of reporting restrictions on committal proceedings in magistrates' courts, from which, as the House knows, criminal cases may be committed for trial by jury. The present law is contained in section 8 of the Magistrates' Courts Act 1980, which was originally section 3 of the Criminal Justice Act 1967. The Bill seeks to amend the provision, that relate to reporting restrictions in committal proceedings.

The present law, briefly, is that if one defendant wishes to have the reporting restrictions lifted he can make an application to the committing or examining justices and he must be granted his right to have publicity for the committal proceedings. There is no harm in that. Most people would regard it as a beneficial and right provision. But frequently there is more than one defendant involved in a case. What happens if one defendant wishes to have the reporting restrictions lifted and another, or more than one other, thinks that publicity of the committal proceedings would be exceedingly harmful to justice, from his point of view, because of any prejudice that might be caused? Under the present law, the defendants who are present with one defendant who wishes to have publicity have no right to appeal to the magistrates for them to 1313 exercise any discretion, because they have none. Once an application is made by one defendant for publicity the application must succeed.

The Bill cures what many of us consider to be a serious defect or anomaly in the law by allowing defendants who may not want publicity to make an application to the examining justices on the ground that no publicity would be desirable, for reasons that they would be entitled to give. The examining magistrates would have a power that at present they do not possess, to make up their minds whether to grant leave under the application or whether to refuse the application.

The importance of the Bill and my personal involvement in its history provoke me to think that I owe an explanation to the House about how and why the Bill was introduced and what exactly it will do.

The history of the Bill starts in 1848. I am glad to say that although its history starts so far back it will not take me long to cover the intervening years, bringing it up to date. Section 19 of the Indictable Offences Act 1848 allows the examining magistrates who listen to the committal proceedings not to sit in open court, provided, as the Act says, that the ends of justice will be answered by so doing It is only right that I should tell the House that such researches that I have been able to make added to the researches of Lord Wigoder in another place, seem to indicate that the power that first came into being in 1848 has not been widely used at any time. Even so, the provision was thought to be so valuable that it was repeated in the Magistrates' Courts Act 1952. Section 4(2) of that Act allows examining justices to sit in camera if they so choose. From researches it would appear that since the days of the Act only on very few occasions have the examining magistrates sat in camera—and then only for security reasons.

The date that I wish to bring to the attention of the House is a significant date, and relates to a significant event in 1957. In that year there was a trial for murder that attracted attention not only in this country but in many countries overseas. It was the trial of one Dr. Bodkin Adams, who was charged with murder. On the committal proceedings, the evidence referred to by the prosecution included the deaths of three of the doctor's patients.

In those days, of course, there were no restrictions on the reporting of committal proceedings, although there were statutory bars against the reporting of certain matters related to indecency, and where the interests of children and juveniles were involved. Apart from that, the press had an unfettered right to report whatever was brought up by way of evidence and comment at the committal proceedings. On that occasion, as one would expect, the media generally were almost saturated with reports of the committal proceedings.

When the matter came for trial, the prosecution—which, as I said, had referred to three deaths of the doctor's patients—relied only on one death. It was felt—properly, in my view—that grave prejudice had been created by the publicity surrounding the committal proceedings, which had referred to three of the doctor's patients having died, whereas on trial he was examined by a jury who were invited to come to a conclusion on one death only. In the result, the prejudice that might have 1314 been almost impossible to overcome apparently did not affect the jury's mind in any way, because its verdict was one of "Not guilty".

However, the fear that in a future case prejudice so grave as that created by reports of the committal proceedings might result in a miscarriage of justice caused the Government of the day to set up an inter-departmental committee under the chairmanship of Lord Justice Tucker to consider the question whether there should be reporting of any kind, or some kind of restricted reporting, of committal proceedings. The Tucker committee came to the conclusion, and recommended, that there should be no reporting whatsoever of committal proceedings, except so far as it related to the report, if such were the case, that the defendent had been discharged.

I feel that I should not be by myself on this Bench today. I should have beside me my right hon. and learned Friend the Secretary of State for Education and Science. Around 1964 he and I were considering the consequences of reporting committal proceedings. That was at a time when the matter was being discussed and when it was recognised that the prejudice that might be aroused in this way not only affected the national cause celebre but might—and frequently did—attach itself to the local reporting of local crime where cases were being committed for trial.

We were attracted by the Tucker recommendation of no reporting at all, but on balance we felt that there might be occasions when reporting of committal proceedings could be of assistance, rather than prejudicial, to a defendant.

There are two arguments for reporting committal proceedings. The first is an obvious one, which, no doubt, will be attractive to most people. In basic principle, the press must have the right to report criminal cases. Against that is the fact that committal proceedings are not a trial but an inquiry by magistrates, which may or may not result in a trial. It is the magistrates' duty and purpose to decide whether there is sufficient evidence to support the prosecution's allegations, in which case the matter will go to trial, or whether there is insufficient evidence, in which case no further proceedings will be taken.

The second argument is that if reports are published in the media a defendant who cannot trace a witness may be helped, either locally or nationally, by the publicity that flows from committal proceedings. The Tucker committee took that point into account. It discovered that during the past 50 years the tracing of witnesses through the publicity of committal proceedings had been successful in only 20 cases.

There is a formidable range of arguments against reporting committal proceedings that in their weight and cogency overwhelm the argument for unrestricted reporting. The first argument is that when the prosecution open a case to the examining magistrates they do so not on the strength of testimony that has come before a court but upon the statements of witnesses who may later be called upon to give evidence from the witness box. It is not an exaggeration to say that on occasions the prosecution are tempted, if not encouraged, by those statements to pitch their opening of the case far too high and above what is justified by what ultimately will be the evidence adduced in the court of trial.

The second argument is that the evidence called during committal proceedings may later be ruled to be, or, because of various circumstances, may become, inadmissible when the case comes to trial. During the 1315 debate on the Bill, a former Lord Chancellor in another place said that the enthusiasm of prosecution witnesses often tended to wane between committal and trial.

The prosecution's opening speech is reported. Anticipation of evidence through written statements is reported. If there is more than one defendant, some of the defendants may decide to plead guilty when they come for trial. If that happens, statements that have been read in the magistrates' court will no longer be admissible against the defendant who is fighting the case. It is the experience of those who have charge of either the defence or the prosecution that in many instances statements that have been made by witnesses become rather surprising when they are set against the testimony that is given by the witness called on trial. However, it is all reported. There is no way in which one can avoid it being reported unless there are restrictions.

The fourth of the reasons that I submit are good reasons for reporting restrictions in some circumstances is the distinction between committal proceedings and trial. Committal proceedings are merely preliminary inquiries by examining magistrates to reach a decision—a vital decision—whether there is sufficient evidence to justify a person being committed for trial. If there are no reporting restrictions and the magistrates decide not to commit for trial there will be nothing improper in the press reporting what has been submitted in open court.

My right hon. and learned Friend the Member for Runcorn (Mr. Carlisle)—now the Secretary of State for Education and Science—and I came to the conclusion, which I hope the House will think was the right conclusion, that there was an overwhelming argument in favour of some form of restriction on reporting. We decided together that we would write it all down as an opinion, which was eventually published with recommendations that we were bold enough to make in a small booklet entitled "A Case For Trial". Some years later, in 1967, when the then Criminal Justice Bill was being considered by the House, the recommendations that we had made in our pamphlet were brought into legislative form by the Government of the day. They appeared first in section 3 of the 1967 Act and they are now in section 8(2) of the Magistrates' Courts Act 1980. The subsection states: A magistrates' court shall on an application for the purpose made with reference to any committal proceedings by the accused or one of the accused, as the case may be, order that subsection (1) above"— in which publicity is not allowed— shall not apply to reports of those proceedings. It is relevant to refer to another trial, namely, that of Mr. Jeremy Thorpe. At that trial many of us thought that the law was exposed, as having a flaw that before the trial we had not thought to be as serious as obviously it was demonstrated to be.

As I have sought to explain, one defendant could override the wishes of his co-defendants if he wished to have publicity on committal proceedings. As the House will recall, in the Thorpe trial, one defendant wished to have publicity, with the result that the other defendants, who had different interests, had to cope with the consequences of that publicity, which some of us thought, on the face of it, was gravely prejudicial, or might have been gravely prejudicial, to the interests of the other defendants.

1316 As in the Thorpe trial, in which there was an acquittal, the stains of the evidence that had been rejected by the jury could remain deep and indelible upon a man's character and reputation for the rest of his life. To many of us that seemed an intolerable, unanticipated and never-intended consequence of our original proposals in the 1967 Act.

The Bill first went through the other place due to the initiative of Lord Wigoder, who was good enough to consult me about its contents, of which I fully approved and to which I hope the House will also give its approval. I believe that the Bill is necessary, and has been proved to be necessary if we are going to reach the point of being able to deal with publicity or non-publicity in its most just form.

In its present form, the Bill merely says that: Where in the case of two or more accused one of them objects to the making of an order"—— that is, an order for publicity—— the court shall make the order if, and only if, it is satisfied, after hearing the representations of the accused, that it is in the interests of justice to do so. It is in the interests of justice that the Bill is now brought before the House for its Third Reading. I hope that I am right—I believe that I am—in saying that it is in the interests of justice that I now commend it to the House.

§ The Minister of State, Home Office (Mr. Patrick Mayhew)

It may be helpful to the House in considering the Bill if I say a few words about its background and about the Government's attitude towards it. The House will be grateful to my hon. and learned Friend the Member for South Fylde (Mr. Gardner) not only for having introduced the Bill in this House, but for what he said about it just now in a comprehensive speech.

The House will recall that the event in recent times which first drew the attention of Parliament and the public to an anomaly in the law relating to the reporting of committal proceedings was the case at Minehead magistrates' court in December 1978 to which my hon. and learned Friend has referred, when four defendants were committed for trial on a charge of conspiracy to murder. One of them asked for reporting restrictions on the committal proceedings to be lifted, and under the law as it then stood and as it stands today the court was obliged to make an order lifting restrictions. The preferences of the other defendants were not and could not be taken into account.

I agree entirely with everything that my hon. and learned Friend the Member for South Fylde said about the disparities that may reveal themselves between what has been said in statements taken from witnesses, subsequently used by the prosecution—statements which form the basis of the opening of the prosecution's case at a magistrates' court on committal proceedings—and what ultimately emerges as their evidence, if indeed it emerges at all, because it may prove to be inadmissible in the trial proper. Of course, I agree completely with what my hon. and learned Friend says about the nature of committal proceedings. They are not a trial but merely an inquiry by examining justices to see whether there is a case to go for trial.

My hon. and learned Friend made a strong case about the disparity that may reveal itself. The evidence may not prove to be nearly so strong when it is given on the occasion of the trial as it was when it was opened in the 1317 magistrates' court and perhaps reported in a notorious case in the press. It is, of course, a possibility that it may be made worth somebody's while to ask for reporting restrictions to be lifted to the prejudice of those who stand in the dock as co-defendants.

Shortly after the conclusion of the Minehead committal proceedings, my hon. and learned Friend who is now Solicitor-General for Scotland introduced a Ten-Minute Bill with the intention of amending the law governing the reporting of committal proceedings. Although designed to deal with the same problem as today's Bill, it adopted a rather different approach. It would have removed the right of a defendant to apply for reporting restrictions to be lifted, and would thus have imposed a complete ban on reporting committal proceedings. It would also have extended the categories of persons who might be prosecuted for unlawful publication to include distributors, retailers, wholesalers, importers and sellers of newspapers or periodicals. Finally, it would have increased substantially the maximum penalties for unlawfully publishing the details of committal proceedings.

The Bill received an unopposed Second Reading in January 1979, and had passed through its Committee stage by the time that Parliament was dissolved before the general election in May 1979. Within a few weeks of the start of the first Session of the new Parliament, a quite different measure was introduced in another place by Lord Wigoder. I shall not rehearse each of the formulae that were considered and rejected during the debate in the other place, but the Bill as introduced in this House was in a very different form from that in which it started life there.

The Bill as introduced in this House would have required a court in the event of a dispute on this issue between defendants not to make an order lifting restrictions if, after hearing the representations of the parties, it considered that any increase in the applicant's chances of securing an acquittal, a conviction on a lesser offence or a lighter sentence would be outweighed by a reduction in the objector's chances of doing so if reporting restrictions were to be lifted.

In other words, the court would have had to have weighed the prospects of advantage to the applicant against a dimunition in the prospects of acquittal for objectors. In the event, the Bill did not make progress in the House and there was thus no opportunity for a debate here on that rather more complicated formula.

1318 At the beginning of this Session, Lord Wigoder decided in effect to start again from first principles. The Bill was reintroduced in a form identical to the one which he had sponsored in July 1979, using the interests of justice as the test that the courts would be required to apply. The Bill as it now stands reflects that formula.

The Government believe that the test of the interests of justice is one that magistrates' courts would find it possible to apply. It is about as wide a criterion as it is possible to devise, but I believe that that is right. It is not possible comprehensively to list all the considerations that are relevant in each case, but they will certainly include the weighing of the interests of an applicant against those of objectors to the lifting of restrictions as regards the ultimate outcome of the proceedings. Amendments made in another place were merely to improve the drafting of the Bill. They did not affect its substance.

My hon. and learned Friend the Member for South Fylde is to be congratulated on being able to offer the Bill to this House for Third Reading less than a month since it was first read in the House on 20 May. I think that that progress alone demonstrates that the Bill enjoys general support in all parts of the House. The Government note that support, which may reflect a certain unease in the public mind about the present state of the law. If that is indeed the case, the Government have no wish to see the Bill delayed at this late stage of its progress.

I do not overlook the fact that the report of the Royal Commission on Criminal Procedure, published in January, proposed the abolition of committal proceedings in their present form in magistrates' courts. That, of course, would eliminate the problem that the Bill seeks to resolve. The Royal Commission's proposal, however, is a radical one which will require, and is receiving, the most careful consideration because it seeks to make a fundamental change in criminal procedures which have existed in England and Wales for many years. That will necessarily take some time, as would any legislation which might eventually be introduced. In the meantime, committal proceedings will continue to take place and the Bill will make what the House clearly regards as a useful, if modest, contribution to the conduct of such proceedings.

The Bill is in no sense a Government Bill, but it touches an important part of the criminal justice process and deals with a matter of real public concern. Accordingly, I warmly commend it to the House.