§ Order for Second Reading read.
§ Mr. Speaker
Various hon. Members have been seeking advice on the scope of today's debate on the Contempt of Court Bill, and in particular the matter of the judgment in the Harriet Harman case. Since the House will be considering legislation, hon. Members are entitled to debate the merits of any judgment. What would be out of order would be any personal reflection on a judge or the use of discourteous language in referring to him or her.
I hope that this statement makes clear the scope of today's debate.
§ 4.9 pm
§ The Attorney-General (Sir Michael Havers)
I beg to move, That the Bill be now read a Second time.
Before I turn to the detailed provisions of the Bill, I wish to emphasise how fundamentally important the law of contempt is in our legal system.
The press has stressed, with justification, and will no doubt continue to do so, the equal importance of the freedom of the public to be fully informed and the relevance of that freedom for the protection of democracy.
The other side of this equation is the right of a citizen to a fair trial, both civil and criminal. The law of contempt was, as the European Court of Human Rights has recognised, a reflection of the balance struck between two competing interests—the interests of free expression and the interests of the proper and fair administration of justice.
This Bill strikes that balance and what is more it does so with certainty and by clarifying and liberalising the law of contempt of court. By the phrase"the law of contempt of court" I mean the interference with the administration of the law so as to impede and pervert the course of justice. Its purpose is not to protect the dignity of the court but to preserve the fundamental supremacy of the law.
It is nearly 10 years since my noble and learned Friend, in his previous term of office as Lord Chancellor, set up with the Lord Advocate the committee under the chairmanship of the late Lord Justice Phillimore to examine the law of contempt of court. We are most grateful to the late chairman and the other members of that committee for the time that they devoted to their report, which was presented to Parliament in December 1974.
Hon. Members will, I am sure, agree with me when I mention the valuable contribution to the report made by Lord Cameron, who took the chair in the last year of the committee's deliberations during the serious illness of the late chairman. Finally, a word of gratitude to Sir Robin Day, who, although in general agreement with the committee's recommendations, prepared his own note on contempt in civil cases, which was, as one would expect, thought provoking.
Since the committee reported other events have occurred, notably the decision of the European Court of Human Rights in what is known as The Sunday Times case in 1979, as a result of which the need for reform has increased rather than diminished. Aside from the length of time since the Phillimore committee reported, the Bill itself has had a longer period of gestation than most, and 29 some of its more important points have been public property for almost a year, since my noble and learned Friend announced them in a debate in another place in May of last year. The Bill is largely based on recommendations of the Phillimore committee, but it does not implement all of that committee's recommendations. It also includes other provisions not based on Phillimore and, even where Phillimore is followed, it is not necessarily followed in every detail.
I pause there to observe that there seems to be a feeling in some quarters that the Phillimore committee's recommendations are to be regarded as holy writ, whose every dot and comma must be observed and carried out. Without detracting in any way from the extremely valuable work and report of that committee, I must emphasise that it is Governments who must take the ultimate responsibility in these matters and who must make up their minds on which proposals to lay before Parliament.
§ Mr. Geoffrey Johnson Smith (East Grinstead)
We understand that Governments have a right to make up their minds. However, is my right hon. and learned Friend aware that there is profound anxiety in the media—and particular representations have been made to me from those involved in independent television—about the provision in the Bill that recommends that the time of arrest rather than the time of charge should be the point from which strict liability for contempt in criminal proceedings should begin to run? The Phillimore report's recommendation was the other way round. So far as I can judge, no reasonable argument has been adduced from the Government for going against Phillimore.
§ The Attorney-General
I shall come to that matter in due course when I reach the relevant clause. To give my hon. Friend a foretaste of what I shall say, the Phillimore decision was shown to be dangerous by what happened in the Sutcliffe case—the Yorkshire murder. The Bill departs at only a few points from the recommendations about the rules which affect publications, but where it does so—and I shall come to them in detail in due course—it does so for good reason.
The Bill consists of three parts. The first six clauses and schedule 1 are perhaps the most important group of provisions. Then follow a miscellaneous group of provisions—clauses 7 to 12 and schedule 2—which seek to alter the substantive law of criminal contempt. Finally, there axe provisions about sentencing powers, enforcement of fines and so on.
The first six clauses are concerned with the rule of common law, which is described in clause 1—that is, the rule which prohibits conduct which tends to interfere with particular proceedings. It is called in the Bill the"strict liability rule", because it applies regardless of any intention to interfere with the course of justice. It is, I think, that rule which is of greatest interest to the press and about which the Phillimore committee made its most important recommendations. Broadly speaking, the committee recommended three things about it: first, that it should be confined to publications; secondly, that the test for breach of the rule should be more narrowly defined; and, thirdly, that its operation should be confined within defined time limits in relation to the proceedings in question; in other words, to get away from the imminent provision.
The first of these recommendations is implemented in clause 2(1). The Phillimore committee's reasoning behind 30 this is to be found in paragraphs 75 to 77 of the report. The main point to be observed is that there is no direct authority for the proposition that the strict liability rule applies even at common law to conduct other than publishing. The committee did have doubts about this recommendation, however, because, on the next page, in paragraphs 78 and 79, it points out the dangers of the practice—of which we saw an example two years ago—of promising payments to witnesses in pending proceedings especially if the amount is contingent on the outcome of the case. That practice is not, of course, itself a publication and therefore, in so far as it could now be held to be a contempt under the strict liability rule, it will cease to be such by virtue of clause 2(1). In future, an intention to interfere with the proceedings would have to be proved. In reaching their decision to implement this recommendation the Government have been impressed with the vigour with which the Press Council condemned the activity of the Sunday Telegraph in its dealings with Mr. Bessell two years ago.
Secondly, the Bill adopts the test of strict liability contempt recommended in paragraph 113, but with the important modification that the word"risk" is qualified by the adjective"substantial". This test reverts, though with tighter wording, to the sort of test which was being formulated by the courts until 1973. However, in that year, in Attorney-General v. Times Newspapers Ltd., known as The Sunday Times case, the House of Lords laid down that it was wrong to prejudge the issues in pending proceedings, and prejudgment accordingly became the test of contempt. That test was criticised by Phillimore and also by the European Court of Human Rights when The Sunday Times took its case there. It is the Government's view, based on a careful study of the judgment of the majority in that case, that the implementation of this recommendation of Phillimore will suffice to bring the law of contempt in this country into line with the terms of article 10 of the European convention on human rights, as interpreted by the court. The implementation of the recommendation as to a public discussion defence—as we find in clause 5—will make the assurance of our compliance doubly sure, though that defence could have had no application to the facts of The Sunday Times case.
I turn now to the time limits within which the strict liability rule will apply in relation to any particular proceedings.
§ Mr. David Mellor (Putney)
My right hon. and learned Friend has just mentioned a matter that concerns many of us, namely, whether the formulation meets what the European Court of Human Rights had to say. One school of thought believes that what that court was requiring of our legislation was that there should be an absolute certainty that the fair conduct of a trial would be prejudiced before proceedings for contempt were taken. If that view is right, the formulation does not go far enough. I do not know how far my right hon. and learned Friend has considered that.
§ The Attorney-General
The matter has been carefully considered. The only issue that the European Court of Human Rights was dealing with was the decision in the House of Lords that the test was to be the prejudgment test. We are satisfied that what we have done, particularly in clause 2(2), has provided for us to meet the objections made by the court.
31 The time limits are set out in schedule 1. As regards civil proceedings, the Bill follows the Phillimore committee's recommendation that in England, Wales and Northern Ireland the starting point should be, for High Court actions, the moment when the action is set down, and, in Scotland for actions in the Court of Session, when the record is closed. For other civil proceedings the Phillimore committee simply recommended a stage equivalent to the High Court stage of setting down. The best and most practicable equivalent is the moment when a date for hearing is fixed, and this is what will apply to all other civil proceedings in all courts and tribunals to which the strict liability rule applies, including interlocutory proceedings in the High Court. These are treated as separate proceedings for this purpose.
§ Mr. S. C. Silkin (Dulwich)
The right hon. and learned Gentleman referred earlier to the note of Sir Robin Day, who suggested that in relation to civil proceedings there should be a special list and that once that list had been published the media would be at risk. The Labour Government's Green Paper suggested that to do that would be much too difficult administratively and also in terms of cost. Can the right hon. and learned Gentleman confirm that that is the view of the Conservative Government?
§ The Attorney-General
The right hon. and learned Gentleman refers to what I think Sir Robin called the"sub judice list". The suggestion was that there would come a moment when the courts would have to publish cases, which would then be sub judice and subject to the strict liability rule. The right hon. and learned Gentleman is perfectly right. This has been considered with care, because sometimes there may be a long delay between the setting down of a case and the actual trial. However, the difficulties of administration seemed so great that it was decided to stick to the Phillimore recommendation on this point.
As regards criminal proceedings, the Phillimore committee's recommendation was, for England and Wales, that the strict liability rule should apply from the time the accused is charged or a summons is served on him. The Bill provides instead for strict liability to run from the relevant initial step specified in schedule 1(4)—that is, arrest, the issue of a warrant for arrest, the issue of a summons, and so on, as the case may be. As has been pointed out in the press and elsewhere, this is a significant departure from the Phillimore recommendation. It should be remembered, however, that when the committee considered the alternative which is now in the Bill—it is really the only possible alternative to what it recommended—it found the arguments very finely balanced. The arguments are well stated in paragraph 123 of the report. I quote the relevant passage:The choice lies between an earlier moment, such as the issue of a warrant for the arrest, or possibly the actual arrest, of the wanted man and a later moment such as when the accused is charged or first appears in court. The disadvantage of a later date is that it would allow comparatively unrestricted comment during a police search for the wanted man which might culminate at any moment in an arrest and charge. On the other hand, a warrant for arrest is usually issued in private, and even an actual arrest may not, for good reasons, be immediately announced by the police. In these circumstances the press might well not know whether they were at risk. Moreover, if the wanted man was never found publication would be restricted, at least in theory, as long as the warrant for his arrest still existed.32 That is how Phillimore balanced the two starting points. In the latter connection, one can of course immediately think of the Lucan case. The decision has not been an easy one, but I am now sure that the proposal in the Bill is right. The decisive factor, in my view, is that it is at the moment of arrest or the issue of a warrant or summons that the identity of the suspect becomes known, and it is in relation to the person as much as to the crime that the most prejudicial material can be directed. Some of the most damaging material one can think of is an account of the suspect's history, especially if it is unsavoury and includes previous convictions.
Again, once the identity of a suspect is known, he may be seriously prejudiced by publication of alleged facts linking him with the crime—facts which may be very much in issue at the trial. There may also be alleged facts linking him with similar crimes, as we have recently seen. All this can happen before the suspect is charged and therefore would not be restrained under the Phillimore proposal. As I have already mentioned, perhaps the most striking example that we shall see for many years was the publicity that followed the arrest of Mr. Sutcliffe before he was actually charged, where there was a good deal of prejudicial publicity after the arrest but before the charge. Under the Phillimore proposal, there would have been no restraints on that kind of publicity until the man was actually charged.
§ Mr. Keith Best (Anglesey)
I am sure that my right hon. and learned Friend will accept that in the introduction of a law which will involve strict liability one must be concerned for certainty. I was glad to hear my right hon. and learned Friend advance the Phillimore argument so effectively a moment ago. Of course there is absolute certainty when a man is arrested. But there is far less certainty when a warrant has been issued. As my right hon. and learned Friend said, warrants are often issued in private. In many respects, that will leave the press, as it were, in the dark. Does my right hon. and learned Friend accept that for the general public there is a closer coincidence between arrest and certainty, not on the issue of a warrant but on the arrest of a person after a warrant has been issued?
§ The Attorney-General
The problem here is the likelihood of damaging publicity to a person who will be standing trial. Again, I return to what happened at the beginning of January. If the Phillimore proposal were adopted, there would be no protection for any individual until he was charged. That might not be for a day or longer, particularly over a weekend. All that was said in that particular case could therefore legitimately be said in the future. I do not believe that any Member of the House wishes to see that repeated. When I come to the defences, I shall deal with what I think is perhaps the answer to my hon. Friend's worry.
§ Mr. Mellor
My right hon. and learned Friend will recall that I raised this matter with him at Question Time some time ago. It was apparent that all shades of opinion in the House shared the anxiety that I expressed, and indeed that my hon. and learned Friend expressed, about what the police had done. I think that there was something rather unfair about the way in which the press was blamed for publicising the matter, when the real problem lay with those who chose to call that ill-advised press conference and to speak in the way they did—namely, the police. 33 What guarantee is there that this will not happen again? Can my right hon. and learned Friend tell us what has been said to the chief constables about this?
§ The Attorney-General
I think that my hon. Friend can properly assume that the position at law was made clear to those responsible for calling the press conference. With regard to the duties of the press, while there may be a great temptation in the case of a press conference as explicit as that one, the press has great responsibilities. I am sure that the Press has the advantage of expert legal advice and does not have to follow its leader if it wishes to preserve the rights of the accused.
§ Mr. Donald Anderson (Swansea, East)
But is it going far enough simply to say that the position in law was clear to the chief constables? The chief constables were apparently acting in accordance with the existing law. There was nothing contrary to the law in what they did during that period which has caused so much concern. What additional guidance has therefore been given?
§ The Attorney-General
In fact, anyone who made the comments that were reported in that case was in breach of the existing law, because the existing law imposes strict liability when proceedings are imminent, as clearly they were in that case.
§ Mr. Christopher Price (Lewisham, West)
The right hon. and learned Gentleman will remember that I, too, raised this matter with him at Question Time and I made it clear that I deplored much of the press comment in the Sutcliffe case. But this is an issue in which a clear balance must be drawn between allowing the media to operate in a reasonable manner, without being too strapped down, and protecting the individual. Is the right hon. and learned Gentleman aware that a satisfactory solution to this whole issue in the end might be for him to have the responsibility for authorising all prosecutions of any kind under the Bill, so that there could be some assurance that newspapers would not be frivolously prosecuted?
§ The Attorney-General
I hope that the hon. Gentleman will allow me to deal with that later in the course of my speech. I shall not forget it. If I do, I am sure that I shall be reminded.
§ Mr. Clinton Davis (Hackney, Central)
I am a little puzzled as to why, if in the Attorney-General's view there was a clear breach of the law in the Yorkshire case, no proceedings for contempt against the police then ensued.
§ The Attorney-General
Usually, when there has been, shall we say, an alleged breach of the law with regard to contempt, a decision must be taken by those considering whether to initiate proceedings as to the effect of an application, for example, to the Divisional Court which would revive the very matters that are best forgotten until the trial is over. I think that the right hon. and learned Gentleman who was my predecessor would agree that usually a final decision is taken after the trial in which the contempt has been involved, simply because to do it otherwise hits the headlines all over again.
§ Mr. S. C. Silkin
I endorse what the Attorney-General has said about that. That was what I always tried to do. In addition to that aspect of the matter, however, in these circumstances there was this Bill about to bring certainty to the law.
§ The Attorney-General
The defence that is provided lies in clause 3, which re-enacts the defence of innocent publication. Under that clause, if the publisher did not know and had no reason to suspect that relevant proceedings are active, he has a complete defence to a charge of a breach of the strict liability rule. The Government have also taken into account two other difficulties over this starting point. The first is in the Lucan type of case where the suspect is on the run or has disappeared for a long period. As to that, I can only say that such cases are extremely rare and a contemplation of possible difficulties in relation to them should not, in my view, unduly influence our consideration of what would be right for the overwhelming majority of cases where the suspect is caught and brought to trial.
Another difficulty which has been voiced about this starting point is that it would inhibit the press in publishing warnings issued by the police about a particular suspect for whom an arrest warrant has been issued. It is plainly right that the police should be able to warn the public, through the press, that a particular suspect is dangerous and should not be tackled, or it may simply be that they issue a photograph or some other identification of the wanted man. As to that, I can only say that the present law, which undoubtedly applies at that stage of proceedings, does not seem to have inhibited the press in these respects. It is right that some restraint should be exercised, and therefore the continued application of the law at that stage may be a good thing, but the press has nothing whatever to fear from publishing, in reasoned terms, anything which may assist in the apprehension of a wanted man, and I hope that it will continue to perform this public service.
Another aspect of the starting points set out in schedule 1 to which I should draw the attention of the House is that of appellate proceedings. These are covered by paragraphs 14 and 15. They include not only appeals from Crown courts to the Court of Appeal, Criminal Division; they also cover appeals from magistrates' courts to the Crown courts, which are, if it is an appeal against conviction, a complete re-hearing, with witnesses attending.
I think that there has been some misapprehension about this in the many comments which have been published about the Bill. These paragraphs are said to impose a fresh liability. The reverse is in fact the case, and the imposition of fresh liability is ruled out, anyway, by clause 6(b). The position is that at common law the strict liability rule applies to all judicial proceedings, though the most recent judicial statements indicate that the press is allowed a great deal of latitude in commenting on proceedings pending before the Court of Appeal. For those who would doubt this, I would refer them to the case of Duffy, which is reported in 1960, 2 Queen's Bench reports, page 188, in which there really was the most tremendous attack upon the character of an appellant before his case was heard in the Court of Appeal.
What happens now, if the Bill becomes law, is that the effect of paragraph 14 will be to disapply the strict liability rule to the period after the proceedings at first instance are concluded but before notice of appeal is given.
When one is looking at the influence of prejudice or suspected prejudice on the minds of judges, so far as the judges of the Court of Appeal are concerned it is sometimes said that, because of their training and qualities, they cannot possibly be prejudiced in any way. It is even said by some appellate judges themselves. Lord Salmon went so far as to say that if he was prejudiced, he 35 was not fit to be a judge. Indeed, in the same argument, the late Lord Dilhorne said that subconsciously there is always a risk, even though the judge does not realise it, that he has been influenced. So, as always, the judges of appeal and appellate courts are not always agreed.
I do not want to venture an opinion on that question, but I do not in any case think that the answer to it would be decisive either way. The Bill provides as it does on this matter for two reasons. First, it would be anomalous to exclude any class of proceedings from the test laid down in clause 2(2). The implication of any such exclusion would be that those proceedings would be open to prejudice. The new test in clause 2(2) itself represents a considerable tightening of the existing law and it will require account to be taken of the fact that senior judges will be influenced much less easily than witnesses or a jury. It must also be remembered that the administration of justice depends to an important degree on the confidence which the public have in it, and one of the purposes of the law of contempt is to uphold that confidence. Of particular importance is the confidence of litigants that they will get a fair hearing. Wholly unrestricted comment could well have a severely discouraging effect and, if the court's ultimate decision was in the same direction as the opinions expressed in the press, the losing litigant is not going to believe that the court was not prejudiced against him. This is particularly serious in criminal appeals and it was one of the points made by the Lord Chief Justice in the case of Duffy.
§ Mr. Christopher Price
Does the right hon. and learned Gentleman really think that the right balance is struck in terms of appellate proceedings given the fact that sometimes these proceedings can last for very many years, and that very often there are issues in the proceedings which ought to be subject to very wide discussion? Is it not a little ironical that a Bill which arises, in the first instance, out of an attempted gagging weit by Distillers, which eventually went all the way up to the European Court, might, on the other hand, introduce very much more gagging of the press in the final resort, when the incident which brought it about was intended to do the opposite?
§ The Attorney-General
The present position is not restricting, because at present the strict liability test applies to an appellate procedings, as it always has done. But what has been done in the Bill has, first, excluded the time between sentence and notice of appeal, so there is a free-for-all time. It has also laid down now much more clearly than has ever existed previously that it must be where there is a substantial risk that the course of justice in the proceedings in question—and therefore the appeal, when we are dealing with that—will be seriously impeded or prejudiced.
When any court—the Divisional Court, for example—is looking at an alleged contempt of court in respect of proceedings which are on their way to a court of appeal, it will consider, when saying whether there has been a serious impediment or is a prejudice existing, the nature of the court that will try the case. I should have thought that it would apply a very different test from the one that it would apply where witnesses are to give evidence and a jury is to hear it.
36 I think that it was in 1969 that a predecessor of mine, dealing with a leading article in The Times after the conviction and sentence of some of the Rolling Stones at Chichester—I think that the leading article was headed"The butterfly on the wheel"—made very firm and strong but constructive criticisms of the judge, Judge Block, and the sentence that he imposed in that case. My predecessor was asked in the House about that. He said that there was no objection to reasoned sensible criticism. The mischief arises only when criticism is grossly unfair or brings in a whole lot of extraneous matter, which may or may not be true, or when it perhaps leads to quite serious misreporting of the facts of a case, as we saw in the Maw sisters case, when nothing like all the facts were referred to in the headlines in the newspaper that criticised Mr. Justice Smith for his sentence in that case.
I think that the protection that will be afforded to any publication on a case which is on its way to an appeal court is that obviously a different test will be applied when there are no witnesses; and prejudice to witnesses is just as important as prejudice to a defendant or party.
§ Mr. John Ryman (Blyth)
For the sake of completeness, will the right hon. and learned Gentleman tell the House what the Court of Criminal Appeal, as it then was, did in the light of the comments and the article in The Times in respect of the sentence imposed by Judge Block?
§ The Attorney-General
I will not say for a moment that the Court of Criminal Appeal was influenced by the comments that appeared in The Times. However, it quashed the sentence of imprisonment imposed upon Mr. Jagger and quashed completely the conviction of Mr. Richards.
Clause 6(b) includes the provision that ensures that clauses 1 to 5 and schedule 1 do not increase liability under the strict liability rule. This has always been the Government's intention. Clause 6(b) is included to ensure that that intention is carried out. Whatever latitude the press now has remains with the press. In addition, it has complete freedom of publication during the period between the end of the trial and the commencement of appellate proceedings.
I have already referred briefly to clause 3, which merely re-enacts, with necessary modifications, the existing defence of innocent publication and distribution under section 1 of the Administration of Justice Act 1960. It extends that defence to Scotland.
Clause 4 implements another recommendation of the Phillimore committee. As the House will know, there exists in the law of defamation a privilege protecting reports of legal proceedings. There has been some doubt whether a like defence exists in the law of contempt. This doubt has increased since the decision of the Divisional Court in the Border Television and Newcastle Chronicle cases about three years ago.
The facts were, briefly, that a woman was charged on an indictment containing several counts. She pleaded guilty to some and not guilty to others. Pleas were taken, as is usual, in open court but with no jury present. A jury was then sworn in to try the defendant on the counts to which she had pleaded not guilty and local newspapers and television, in the course of reporting the first day's proceedings, reported the guilty pleas.
37 In subsequent proceedings for contempt it was held by the Divisional Court that this was prejudicial to the trial on the other counts and that therefore a contempt had been committed.
The Government think it right that, as a general principle, what goes on in open court should be reportable without fear of falling foul of the strict liability rule. This is an area where court reporters and those who publish their reports are entitled to greater certainty. Clause 4 establishes a general defence in relation to court proceedings—that is subsection (1)—but subject to a power in the court to order reports to be postponed if they would create a risk of prejudice to the same or other proceedings—namely, subsection (2)—which codifies the existing common law power in this respect.
Thus, if a case like the Border Television case ever arose again, it would not be contempt to report the pleas of guilty unless the court had expressly prohibited it. The same will apply in cases where there is a trial within a trial, in open court but in the absence of a jury, for example, on the admissibility of a confession alleged to have been made by the accused.
It is well understood by experienced court reporters that such tilings should not be published until the trial has been concluded. In future, however, the court will in every case have to make an order under clause 4(2). The subsection will also apply to the more unusual case where what is said in one set of proceedings might prejudice another set. The Phillimore committee mentioned in paragraph 134 the Poulson trial as one example where that happened. It also mentioned the second Kray indictment, where Lord Chief Justice Lawton took exactly the opposite view.
§ Mr. Ivan Lawrence (Burton)
Is my right hon. and learned Friend proposing that all prosecuting counsel should draw the attention of the court to other proceedings that are pending in any case? If that is not done, the court may not know that there are other matters pending. That duty must be fairly placed on the prosecution if the new provisions are to have any realistic effect.
§ The Attorney-General
There will be duties placed upon the court in any event, and upon counsel. Whether those duties fall on both prosecuting and defending counsel will be a matter for them. For example, both counsel may say to the judge that another trial will be following. Usually the judge will know because he is likely to have to try it. However, if the second trial is to take place in another town, and if it is the view of counsel that disclosure of part of the evidence, or in any event the verdict and sentence, could be prejudicial to the second trial, it would be for the judge to decide whether to make an order not forbidding reporting for all time but postponing reporting until after disposal of the other matter. The provision will impose upon the court the duty to consider in every case whether to make an order. At present the courts do not have that duty. I can foresee that there will be oversights and that orders will not be made.
§ Mr. S. C. Silkin
This is a slightly puzzling provision, especially in its relationship to the trial within a trial in a jury case. We have always assumed that those proceedings ought not to be disclosed to the jury. In future will the judge have to make an order under clause 4(2) as soon as a trial within a trial starts? Is that really necessary? Surely that can be avoided by appropriate legislation.
§ The Attorney-General
It was considered whether with something as obvious as a trial within a trial the usual convention should be followed. However, my recent experience is that young and inexperienced reporters do not understand the conventions. They are submitting reports to their newspapers and if those reports are passed to an inexperienced sub-editor—I am talking of local newspapers—he may well let it through. This has happened more than once. We felt that it was safest to say that everything that takes place in a court can be reported in the press contemporaneously unless the judge excludes it.
§ Mr. Anderson
Does the Attorney-General rule out the suggestion that guidelines should be issued to clarify when and in what circumstances the discretion of postponement should be exercised?
§ The Attorney-General
I do not think that that is necessary. It is not very common to have a trial within a trial in a magistrates' court in a case that does not finish on the same day as; it starts. Therefore, there will be the one report the following day. Those who are responsible for making these decisions have a great deal of experience. We are considering pleas of guilty, trials within trials and parts of the evidence when a second case is to follow which involves the same defendants. I was thinking earlier of another example—namely, an admission of fact made in good faith, followed by a misunderstanding between counsel that leads to the admission having subsequently to be withdrawn. It could be a damaging admission of fact. If we start to define exactly the circumstances in which the judge may make the order, we may find that we have omitted an important circumstance. I believe that we can leave it to the good sense of the courts, with the assistance of counsel, to get it right.
§ Mr. Best
How will a judge make an order under clause 4(2) for the postponement of the reporting of proceedings? Will the judge say that the reporting must be postponed until the conclusion of a subsequent trial if that trial is imminent or is known to be taking place, or will the postponement be for a certain period? I appreciate that there must be discretion and latitude to enable a member of the judiciary to take into account the prevailing circumstances, but what is the position if it is known that there is to be a subsequent trial pending and for some reason that trial is not brought forward at the time that was orginally contemplated? Does that mean that there will be a blanket embargo extending into infinity on the reporting of proceedings?
§ The Attorney-General
I should have thought that one of the matters which the judge would consider when deciding to make an order—there is no question of a mandatory power; it is always discretionary— would be the likelihood of the other pending proceedings being heard within a reasonable time. If they had not yet been committed and if there were to be an old-fashioned commital, he might say that he would not make such an order. If the case had been committed and I were prevailed upon to enter nolle prosequi so that there was nothing left, I should have thought that in the court in front of which the nolle was entered an application could be made to the judge to release the material. Otherwise an application could have been made to the court where the order was 39 first made, not necessarily to the judge. That is as much as I can say at the moment, although I shall consider the matter.
Clause 5 implements the defence of general public discussion, recommended in paragraph 142 of the report. I have already explained the purport of clause 6(b). Paragraph (a) is to similar effect. Both are not necessary, but they can be described as the belt and braces to ensure that the strict liability rule is not in any way extended by the preceding clauses.
Paragraph (c) makes it clear that these preceding clauses are not intended to cut down the liability for conduct which is intended to impede or prejudice the course of justice. The Phillimore committee recommended that such conduct should continue to be capable of being dealt with as a contempt. That completes what I have had to say—I am afraid at some length—about the provisions of the Bill on the strict liability rule.
I shall now briefly refer to a Phillimore recommendation which is not implemented by the Bill, namely, that in paragraph 62 of the report that it should not be a contempt to seek to influence or put pressure on a party to litigation unless the conduct in question amounts to unlawful threats to person, property or reputation.
It is clear from the committee's reasoning that it had very much in mind the campaign against the Distillers company in connection with the thalidomide proceedings. The Divisional Court, which heard the contempt proceedings against The Sunday Times at first instance, held that the newspaper had overstepped the line in what was permissible in bringing pressure to bear on a litigant. However, the House of Lords took the opposite view. It held that a fair and temperate campaign designed to influence a litigant was permissible. The implication was that an unfair and intemperate one would not be. Since that is how the law was stated in the House of Lords, that is how it now stands. The Government regard it as satisfactory on this question. To move in the direction of the Phillimore recommendation—in other words, to allow unfair or intemperate campaigns against litigants—would be going too far. I consider that the committee's reasoning is untypically weak on this question.
The Government have therefore come to the conclusion that the court should retain the degree of power to protect those who have recourse to them. Those are the opinions expressed in the Court of Appeal and in the House of Lords in The Sunday Times case.
Clause 7 is intended to indicate to what courts and tribunals the protection of the law of contempt extends. It is not based directly on a Phillimore recommendation but seeks to give effect to the committee's first conclusion, that the law of contempt is required as a means of maintaining the rights of a citizen to a fair and unimpeded system of justice and protecting the orderly administration of the law.
The clause is designed to help to answer the question of what proceedings are protected by the law of contempt. When the Phillimore committee sat, that did not seem to be a problem. The committee made no reference to that question in its report. It seemed to receive no complaints about uncertainty in this regard. In various cases earlier this century, it has been established that proceedings in a coroner's court, in a court martial, and in a consistory court are covered. Until last year, there has been 40 practically no authority in relation to the proceedings in the various judicial tribunals which have been set up in recent years.
Last year, however, a case went to the House of Lords in which this question arose in relation to the proceedings of a local valuation court. It was decided by the Divisional Court and by a majority in the Court of Appeal that the law of contempt extended to protect such proceedings. However, the House of Lords held that it did not. Unfortunately, there was such a variety of reasoning in the House of Lords that the position is far from clear. It seems to the Government that that is not a good reason for distinguishing, for the purposes of the law of contempt, between different courts and tribunals, provided that—this is the important test—their functions are judicial. If, in the words of the committee's first conclusion, the law of contemptis required as a means of maintaining the rights of the citizen to a fair and unimpeded system of justice",it must be required wherever that justice is administered.
There may be more at stake in proceedings for wrongful dismissal or redundancy pay in an industrial tribunal than there is in many county court actions. Therefore, there is as much reason for the law to protect the former from prejudice as the latter. If there is anything in the argument that the more exalted judges are less susceptible to prejudicial influences, conversely, lower tribunals are more in need of protection.
Those inferior tribunals do not have powers to deal with contempts, and therefore clause 7 is expressed in terms of the jurisdiction of the superior courts to exercise the jurisdiction for them. The clause enacts the general principle which ought to apply—the wording is drawn from two of the Law Lords' speeches in the BBC case— namely that the jurisdiction extends to the proceedings of inferior courts and tribunals which exercise judicial as opposed to administrative powers. This is a distinction which is reasonably well known and covers also the situation where one tribunal, for example a magistrates' court, sometimes handles judicial proceedings and sometimes acts administratively.
§ Mr. Delwyn Williams (Montgomery)
Will my right hon. and learned Friend give us some guidance on when the proceedings will be considered to be active in respect of redundancy claims and unfair dismissal cases?
§ The Attorney-General
We deal with that matter generally in tribunals. I shall come to that question later. Otherwise, I hope that my hon. and learned Friend the Solicitor-General will be able to answer when he replies to the debate.
Clause 8 follows from a decision of the Divisional Court in the New Statesman case. It is intended to clarify the position regarding the publication of details of the deliberations of the jury, following a decision of the High Court at the beginning of last year in a case where a journal had published an interview with one of the jurors in the trial of Mr. Jeremy Thorpe.
This is not a new problem, however. It was considered by the Criminal Law Revision Committee in its tenth report in 1968. It concluded that, though it was undesirable for jurors to reveal what had passed in the jury room, even after the conclusion of the case, no legislative action was required, because the conventions in these matters were 41 understood and observed. Now, unfortunately, we see that the conventions are no longer observed, and we have to decide what is to be done.
I have no doubt that it is wrong and undesirable to seek in public to go behind the verdict of a jury. Interviews such as the one which was the subject of the proceedings earlier last year can easily lead to a re-trial of the case in the newspapers, since a published interview with one juror may well prompt a rejoinder by another and so on. It is most important for the accused that verdicts should be final, subject to any right of appeal that there may be, especially if the verdict was one of not guilty. That also applies to the publishing of matters which could lead to reprisals against certain jurors.
On the other hand, the jury as an institution should be no more free from scrutiny and discussion than any other institution, and part of such scrutiny must be an investigation of the way deliberations are conducted and verdicts are arrived at. Whatever provision is made must therefore permit bona fide research and the interviewing of jurors for this purpose, provided it is done without any view to publication or with a view to publication which does not identify individual cases. That means not only the defendant, but the jurors. Further, it is no doubt common for jurors to discuss their experiences privately with their families and friends; provided they do not do so while the case is still in progress there seems relatively little harm in this even if, on occasion, individual cases are identified in those private discussions. Clause 8 has accordingly been drafted so as to catch only publications, and only those publications which identify the particular case in question. It applies not only to the publisher, but to any person who seeks or any juror who grants an interview with a view to such a publication. As an additional safeguard against vexatious proceedings subsection (4) provides that in England and Wales and Northern Ireland proceedings may be brought only by, or with the consent of, the Attorney-General, or by the court itself.
§ Mr. Price
We had some discussion some time ago about this clause, which reverses the Widgery judgment. Will the Attorney-General confirm that in retaining his power whether to give permission to allow a case to go ahead he has in mind not only stopping vexatious proceedings but taking the whole public interest into account? Will he confirm that if he decides that, although publication might breach the law, in the final resort the public interest would be well served by publication, he might use his powers for proceedings not to be brought?
§ The Attorney-General
The public interest is always one of the matters that Law Officers take into account when deciding whether to take proceedings of any kind. They do not reach that stage until they have decided, first, that there is a case. Once they have decided that, they consider the public interest aspect.
That completes my survey of the principal provisions. I shall pass quickly through the rest because they are of secondary importance. On clause 9 we return to Phillimore for new rules as to the unofficial use of tape recorders. It has been said in some quarters that this provision bans tape recorders absolutely. It does not. It allows the judge to grant the use of tape recorders, but it bans publication of the tapes in any subsequent proceedings.
Clause 10 is meant to clarify the position where a court orders information to be withheld, for example, the name 42 of a witness in a blackmail case. It owes its origin to the footnote on page 60 of the Phillimore report, which was prompted by what subsequently became known as the Socialist Worker case. The clause in effect codifies the power which was held to exist in that case so as to ensure that where a court has power, as it may have, for example, in the interests of the administration of justice, for the physical protection of witnesses or on grounds of national security, to order that particular information to be withheld in court, it will not be possible to vitiate the order by publishing the information elsewhere.
Clause 11 gives a direct power to magistrates to punish disruption in court—that is, in the face of the court. This again is based on a Phillimore recommendation, but the penalties have gone up with the passage of time since Phillimore recommended them. Appeals will lie in each case to the Crown court.
Clause 12 makes criminal legal aid available for cases of contempt in court so that it can be granted by the court itself. This again was recommended by the Phillimore committee. Clause 13 implements certain Phillimore recommendations as to sentencing powers; in particular, a two-year maximum sentence is imposed on the present unlimited power to imprison. All terms of imprisonment must in future be for fixed periods—as they already are in Scotland—and provision is made for dealing appropriately with mentally disordered contemnors.
Clause 16 is a technical provision about the enforcement of fines. It, too, implements a Phillimore recommendation.
Finally, clause 19 relates to tribunals under the Tribunals of Inquiry (Evidence) Act 1921. The law of contempt is applied to such tribunals by section 1 of that Act. A committee under the chairmanship of Lord Salmon reported in 1969 on the application of the law of contempt to such tribunals in Cmnd. 4078. The new restrictions on the scope of the strict liability rule will apply, mutatis mutandis, to these tribunals, and in particular, as recommended by the Salmon committee, the rule will apply only as from the time when the tribunal is appointed until its report is presented to Parliament.
Clause 20 provides that, in general, and certainly as regards all the important provisions which have a bearing on publications, the Bill applies to the whole of the United Kingdom. This will surmount the difficulty of journals which circulate across the border.
I hope the House will forgive my making a long speech: there were a number of interventions. The difficulty is that some of the provisions of the Bill are not easy to understand or appreciate without some knowledge of the present law. I hope, however, that by now the House will be, if not wiser, at least better informed. By importing a great deal more certainty into the law and by some significant pruning of it here and there, the Bill now strikes the right balance between freedom of the press and the need to uphold the integrity of the administration of justice. As such I commend it to the House.
§ 5.5 pm
§ Mr. John Morris (Aberavon)
I am sure that I carry the House with me when I say that there was no need for the Attorney-General to apologise for the length of his speech, because we are grateful to him for the way in which he has set out an explanation of the clauses. On one matter I must congratulate the Lord Chancellor most sincerely. It is on his success in persuading his colleagues 43 that he could bring forward a Bill dealing with law reform. Anyone who has sat on a Cabinet legislation committee knows the rough house that it can turn out to be with a dozen or so Ministers propounding their pet Bills and the length of any Session normally being finite—hence the inevitable slaughter of so many innocents. The weakness of a Lord Chancellor without divisions in the form of wide political appeal for his proposals is self-evident in the absence of law reform Bills of this kind.
The Bill, whatever its weaknesses and omissions, has displaced some of the rotten Bills that the Government might have brought forward, and that, too, is a matter for congratulation. In the higher competitive atmosphere and the jostling of more politically orientated legislation, and against the background of the famous names—two come to mind immediately in the form of Faulks and Younger—who have fathered famous reports on law reform only to see them gathering dust in the pigeon-holes of Whitehall, Parliament must seriously consider ways of increasing the flow of law reform.
Before a committee is set up the need for it is made out, and if one does not act by way of considering reports—by accepting, rejecting or amending them—the futility of prolonged consideration will dawn upon those who give of their time and energy, and they will feel less inclined to serve on important committees of this kind. The House must examine the way in which it considers such proposals.
The Bill has three purposes, as we are told in the explanatory and financial memorandum. The first is to implement, with minor modifications, the Phillimore report. I join the Attorney-General immediately in endorsing his thanks to those who served upon that Committee. The Attorney-General did not use the words"minor modifications". In one context he certainly accepted that there was a significant departure from Phillimore.
The second purpose is to ensure that the United Kingdom law on contempt conforms with the requirements of the European Convention on Human Rights, in the wake of The Sunday Times thalidomide case. The third purpose covers a number of minor matters, including the prohibition of the publication of jury deliberations.
As I implied earlier, it is arguable whether these modifications of Phillimore are minor. Some of them are of considerable significance. I regard the Bill not as a package but as a series of individual measures dealing with particular aspects of the law. Secondly, there are significant omissions from Phillimore, to which I shall return in due course.
The Lord Chancellor argued that if his little ewe lamb had any chance of seeing the light of day and coming on to the fresh new pastures as a statute it should not be unduly encumbered on the way. That is the argument that was adduced to jettison some of the proposals that found favour in the Phillimore report. In Committee we shall examine with considerable care both the modifications and the omissions.
The Attorney-General has argued that the Bill conforms with the EEC convention, and we accept his advice on this for the moment. I hope that he is right, but, of course, that can be finally and fully tested only in the European courts themselves. The experience on this subject—certainly in 44 The Sunday Times case—has been very salutary for lawyers and our courts in particular, and therefore all that I can say on that is that we shall see in due course.
In my respectful submission, the House must address itself to the question: is contempt necessary? I use that as a shorthand phrase for what the Bill primarily deals with. I believe that it is, and that it is there not to protect judges, nor to uphold their dignity, nor to preserve their insularity as a sort of cordon sanitaire—although it may achieve some of those objects—but to protect the administration of justice. That is a somewhat wider concept, and inherent in that is the need to ensure a fair trial.
We are legislating today against a background of two articles of the European Convention on Human Rights. I read part of article 6:In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.In the same breath one has to consider article 10, where it is said:Everyone has the right to freedom of expression.This is where the conflict can and does arise, because the freedom of the press is but part of the more general concept of freedom of expression. It was the Strasbourg court which said that justice came first, but only to the extentnecessary in a free society.When the chips are down—and we must examine each instance case by case—I should be loth to sacrifice, to diminish or to erode the individual's right to justice in any way. We have to recognise that not only is there potential conflict here, but that there are enormous difficulties in putting the clock back. Our starting base is the law and practice as we find it, and rights can be taken away only where there are very cogent reasons for so doing.
There is undoubtedly a need for legislation, because in this area the common law, as is its wont, has grown up like Topsy. The result has been uncertainty—this has been referred to all already—and uncertainty in law, particularly where criminal sanctions are involved, must be countered, and, as far as possible, eliminated. That should be our aim.
Let me pose some instances of uncertainties that have been drawn to my attention. The first was mentioned by the Attorney-General. Is it contempt to interview a juror? Nobody knew until the New Statesman was brought before the court, which ruled that such an interview might or might not be contempt, depending upon the circumstances. Exactly which circumstances it should depend upon the court declined to say.
Was it contempt to name Colonel B? The Divisional Court said"Yes"; the House of Lords said"No".
Was it contempt for the BBC to screen a repeat programme critical of the Exclusive Brethen the day before a section of that organisation happened to be appearing before the Andover land and valuation court? The Divisional Court and the Court of Appeal said"Yes"; the House of Lords said"No". The total score of the judicial process was five judges on one side and five on the other.
The press has been encumbered with the albatross of conflicting decisions. The Attorney-General mentioned the first Kray trial, where the court refused to prohibit the publication of evidence—undoubtedly prejudicial to the defendants—at their second trial on second charges. In the first Poulson case the judge prohibited the publication of 45 certain evidence, for the very reasons rejected in the Kray case. There is no need for me to dwell on the saga of The Sunday Times through the courts. Our approach, in so far as the Bill replaces uncertainty with certainty, is to welcome it.
That brings me to the main area about which great anxiety has been expressed since the publication of the Bill, and that is as to the time at which strict liability for contempt begins in criminal proceedings. There has been considerable anxiety on this matter. In England and Wales the criterion that criminal proceedings become active for the purpose of strict liability when they are imminent is obviously unsatisfactory. The position, although clearer, is much more restrictive, as I understand it, in Scotland.
The Phillimore report suggested that the right point in England and Wales was the moment at which a person was charged or a summons served. As I understand it, there are comparable provisions in Scotland. The Bill, as the Attorney-General has explained, proposes a different starting point—when an arrest is made or a summons or arrest warrant is issued.
I concede—I do not think that the Attorney-General dwelt on this—that in most cases there will be little practical difference, because a charge will usually follow closely after arrest. There is a question of balance here, and it is very much a question of balance.
It would be quite wrong if our deliberations on this matter were dominated by the events in the Sutcliffe case. As students we were taught that bad cases did not make good law. Indeed, that was the inference that I drew from the words of the Attorney-General concerning the Lucan case. What happened in the Sutcliffe case was that a press conference was called in circumstances which certainly flew in the face of decency, if not in the face of the law as well. I am advised that the press in England and Wales only took their cue from that particular conference. It was the system that broke down.
The press is rightly concerned with the difficulties of the present proposal. It replaces, in its view, one uncertainty with another. Despite the defences available, the press will be put in peril, because the press will not necessarily know of the arrest or the issue of a warrant, and the proposal will tend to gag comment where a warrant has been issued and not executed because of the disappearance of the person concerned. We shall return to this matter in Committee.
It goes without saying that there is certainly no monopoly of wisdom as to where the balance should lie, and I hope that the Government, in the face of what I hope will be views expressed in all parts of the Committee, will not approach the problem with closed minds. I certainly am not satisfied that the case against Phillimore, despite the arguments of the Attorney-General this afternoon, has yet been fully made out.
With regard to civil proceedings, I confess that I should have preferred a later date to the one set down. Eminent views have been ventilated to the effect that a better day would have been a day that would result in a shorter time gap for strict liability to commence. I was attracted to Sir Robin Day's minority proposal. However, it may well be that the manpower implications and the cost render it impracticable. Those matters were set out fully in the consultative paper, and both the Attorney-General and my right hon. and learned Friend the Member for Dulwich (Mr. Silkin), the former Attorney-General, have advanced 46 that view this afternoon. Since the Press Council is content—despite arguments for other starting points—that it is a reasonable proposition, I am inclined to accept it.
I welcome the Government's acceptance, by way of amendment, that strict liability should be confined to publications that create a substantial risk that the course of justice would be seriously impeded or prejudiced. That is a big improvement in the Bill. I hope that it will remove a considerable amount of disquiet and that it will be warmly welcomed.
It is in that context that I wish to make clear to the Government that the sledge hammer of contempt proceedings should be brought only where necessary. The use of the word"substantial" removes the smaller nuts that might have been considered candidates for cracking. In the same way, the Attorney-General's consent should be necessary before contempt proceedings are brought.
Certain individuals—I shall not name them—have from time to time gone to the courts against various defendants in order to bring contempt proceedings. I know that leave has to be sought, but the importation of the word"substantial", together with the need for the Attorney-General's consent, will restrict the use of the machinery to significant cases and ensure a uniformity of approach.
The position of the Attorney-General brings me to the Harman case, which Mr. Speaker mentioned before we commenced our proceedings. The Bill contains many provisions that go outside the criminal concept of contempt. An opportunity has been taken to include a host of other matters. It is my firm belief that we should take this opportunity to remedy a situation whereby the law—to the layman—is an ass. There may not be another opportunity to do so for many years. In the meantime, the law will be exposed to ridicule.
The House will be aware that in the Harman case documents that had been revealed by the other side—the Home Office—following the legal process of discovery were read out in open court in the ordinary course of events. Miss Harman, as solicitor for one of the parties, had a duty to keep those documents confidential. That was right. The documents were disclosed to her under that condition. However, if a particular document is read out in open court for all the world to know, its character changes. It becomes part of the evidence. Our courts are open and the public have access to them. A good shorthand writer could take as many notes as he liked and could publish verbatim what had been revealed.
I understand that Miss Harman showed a reporter the documents that had been read out. I do not know whether the reporter had been in court, or whether his pencil had been sufficiently sharp. It matters not. It is difficult for the public to understand how, given the new and changed character of these documents—they having been read out in open court—it could still be held that it was a serious contempt to show them to a reporter after they had been shown to the world.
The court expressed itself strongly on various aspects of the case, such as the character of the prisoner, the kind of article written and the worthy aims of Ministers Indeed, they were my colleagues. One stirring phrase was:The danger of exposure was that critics—of one political colour or another—would seize on the confidential information disclosed so as to seek changes in Government policy or to condemn it.47 I leave the matter there. I have put it as neutrally as I can. It is difficult to understand how the quality of the various aspects of the case or the merits of the individual affect the issue one iota.
§ Mr, Mellor
I agree with much of what the right hon. and learned Gentleman has said and I am glad that he is saying it with such vigour. Was it not most unfortunate that the judge who dealt with the matter in the first instance seemed to think that there would not have been a contempt if the journalist had been writing for the New Law Journal or for the Law Quarterly Review? It was considered a contempt only because he was trying to communicate with a wider audience.
§ Mr. Morris
I am grateful to the hon. Gentleman for that intervention. The quality of the comment or the merits of individuals do not affect the issue one iota. The truth is that the contents of the documents were no longer confidential. They had been made public. The nub of the offence was being the vehicle for republishing what had already been made public. The reality was that the material in question had already been made public. The world could be told, yet it was an offence to repeat to individuals what the world could have known. That is an Alice-in-Wonderland situation, and in Committee we shall seek to remedy it.
§ Mr. S. C. Silkin
Does my right hon. and learned Friend agree that it becomes even more of an Alice-in-Wonderland situation when it is discussed in the context of a Bill in which clause 4(1) expressly states:a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith."?
§ Mr. Morris
My right hon. and learned Friend has put it so much better than I could hope to do. He has underlined his proposition by taking the Bill's very words.
§ Mr. Lawrence rose—
§ Mr. Morris
I shall not give way as I have already given way twice and I am taking up too much time. I understand that the Solicitor-General for Scotland will answer the debate and perhaps he will assist us on whether, and how far, the Attorney-General was consulted before the case was brought. Certainly it was not brought by the Attorney-General. Given what has been learnt, namely, that the Home Office accepts that Miss Harman acted in good faith and that lawyers for the Home Office attempted to settle the case almost at the door of the court, I should be surprised if the Attorney-General would have brought the case. If he had, there would have been an advantage, because it would have been considered outside the Department concerned. That Department was seriously concerned and was party to the action. Whatever decision the Attorney-General might have taken, this case endorses the need for uniformity of approach and for the Attorney-General's consent before such proceedings are brought.
Concern has been expressed about the provision that the strict liability rule should apply to all appellate proceedings from the point at which notice of appeal is lodged until the case is finally disposed of or abandoned. Despite the Attorney-General's argument, I suggest that it is in flat contradiction of Phillimore, which states in the summary to paragraph 132: 48Strict liability for publication should cease to operate when a verdict has been returned.There are different approaches to this problem. The risk of substantial interference is considerably less when juries are not involved. The case for contempt provisions in civil cases at first instance rests substantially on the need to protect witnesses. Judges are of lesser importance in their need for protection. I understand from one of the many documents that I have received that the media apprehend no danger in making strong comment on cases which are winding their way through the appeal courts, though in reality they would be liable for contempt. How far this will be a substantial risk in the context of the amended Bill is another matter, but that will be a big help.
Learned comment has been delivered of one's unfitness to be a judge if one is likely to be influenced. Indeed, the Attorney-General referred to this point earlier. Other instances have been given of attempts to influence. Judges are human. They have families. Indeed, I presume that they have morning papers delivered to them. It would be an unusual family if there were no comment within that family when the head of it was in the news by virtue of a particular case.
I am seeking to develop the concept that judges do not inhabit a sound-proof, light-proof, fortified island. They are members and part of our community. A judge may say"I am shutting my mind to this, that, or the other", but he is the last person to be able to give an objective view of the effect or non-effect of any extraneous matter upon his mind.
On the other hand, if there is public concern about a particular issue—we should address ourselves to this matter in Committee—should judges be immune from hearing comment? Frequent complaints are made in the House regarding the background of judges—that is no reflection on them as individuals—and the nature of their occupation, which necessarily entails their leading cloistered lives.
We cannot have it both ways. There are arguments on both sides of the issue. In Committee we shall listen with care to the Government's argument for this provision. It is clear that this is, in practice, a restriction in terms of Phillimore and what happens generally, and that is the view of the press.
A great deal of the time in the other place was taken up by consideration of the position of inferior courts. There is an extraordinary phrase in the Bill extending contempt to inferior courts, tribunals or bodies that exercise any part ofthe judicial power of the State".I understand that about 500 bodies could come within that definition. I hope that the Solicitor-General will tell us from where this phrase has emerged. What is its parentage? What does it mean? I find it difficult to understand, and I am not the only one who has difficulty in understanding it. Although pressed time after time in the other place, the Lord Chancellor refused to publish a list of the bodies concerned. I understand that he said that it could not be done.
If it is not within the wit of his Department to perform that service, imagine the difficulties of an editor trying to decide whether the valuation court is or is not one of the bodies concerned. Rather than asking hon. Members to put themselves in the position of the editor of one of our national quality papers, I invite them to put themselves in the position of the editor of a local newspaper—to be 49 parochial, the editor of the Port Talbot Guardian or the Glamorgan Gazette. We know that the great quality papers have their barrage of lawyers at hand. The Guild of Newspaper Eiditors has informed us of the obvious: that a small provincial newspaper editor has no such facilities. How are such people to know how they stand? If the Bill inhibits comment through the uncertainty that it will create, it will do a disservice to free speech and defeat one of the objects of the Bill—namely, to replace uncertainty with certainty.
Why cannot a list be appended in a schedule? If it is not complete—no one will fault the Lord Chancellor if he fails the first time round to have a perfect list—it can be amended under an order-making power from time to time. We do that for our disabilities for election to the House. That list is long and is added to or subtracted from from time to time. This is one of the most unhappy aspects of the Bill. I hope that good sense will ultimately prevail.
In any event, since this was neither foreseen nor approved by Phillimore, what is the case for having it at all? Most tribunals are already protected by legislation against those who might seek to disrupt their proceedings. Is protection of the kind envisaged for those bodies required at all?
On this issue the House would do well to consider the weighty words of Lord Salmon, who chaired the Royal Commission on tribunals of inquiry, to the effect that protection is not required by such inferior courts and tribunals against comment by the press. The truth is that the wider the umbrella for the concept of strict liability for contempt, the greater the reduction in the freedom of expression.
There are other important matters to which we shall want to return. There is not time now for me to discuss what the Attorney-General referred to as the wide power to postpone the publication of evidence. The definition needs to be looked at very carefully.
I wonder why we need to be so wary about the use of tape recorders in court.
As for the publication of jury deliberations, anything that is done to tamper with the working of the jury system needs double, if not treble, care.
The drafting of the clause, with the exceptions proposed, has caused considerable concern to be expressed by many eminent and experienced lawyers.
Another matter to which I should like to turn concerns the need to tackle the problem of confidentiality of source with proper, widely drawn safeguards. We should look closely at the need to protect the sources of those responsible for publication. Wherever practicable, in a free society the public should have a right of access to information—particularly in the public domain. From time to time there are matters of great concern which should be investigated. The ever-vigilant free press is frequently the only agency with the resources to do that. If its sources are dried up, if people fear to tell lest their names be disclosed—I am not proposing a charter for people because of their personalities; there are greater needs here—the losers at the end of the day will be the general public.
The courts, as a matter of practice, seek to avoid questions being put to journalists which would make them disclose their sources and to protect journalists from answering such questions unless it is felt absolutely necessary. I believe that practice should be put on a statutory basis. The underlying reason is not to protect the 50 journalist but to ensure the paramountcy of the public interest and to ensure that the channels of information are not dried up or obstructed.
The right of the public to know what is happening, unless there are good reasons to the contrary, is crucial to the good working of our society. The more complex it becomes, the greater the need to ensure that, at least when things go wrong, people should know. That stems from the Granada decision. Unless we take that on board, the real danger is the drying up of information, to the detriment of the public.
Had there been time, there are other matters to which I would have referred, but there will be an opportunity to consider them in Committee. I trust that the Government will approach further consideration of the Bill with a more open mind. My right hon. and hon. Friends and I will question the provisions. We shall probe. We shall seek to improve and we shall reach our conclusions not with closed minds but with a proper regard for the arguments put in Committee.
§ Mr. Percy Grieve (Solihull)
I will not follow the right hon. and learned Member for Aberavon (Mr. Morris) on his observations about confidentiality. I want to approach the Bill broadly. I was glad to hear him say that Her Majesty's judges did not inhabit soundproof, lightproof or fortified islands, because, by certain comments—obviously not from him—from time to time one might think that some of his hon. Friends thought that they did. The right hon. and learned Gentleman I am sure would agree with me that the judiciary displays most of the qualities required in men of the world who are called upon to carry out the important function of judging matters between fellow human beings.
I pass to the invitation issued by my right hon. and learned Friend the Attorney-General to the House to approve the Bill as, in an extremely difficult matter, having achieved the right balance between the protection of the litigant and the protection of those facing charges in the criminal courts on the one hand, and the necessity for a free and open discussions on matters of public interest in a free society on the other. I say that because our debate has been about that aspect of the law of contempt which relates to the protection of the litigant and the accused rather than to the narrow aspect which deals with the capacity of the courts to protect themselves from overt insult and misbehaviour in the court. No one in the House takes the view that anything in the Bill does more than is absolutely necessary to give the courts powers to protect themselves against misconduct within them.
The public, the other place and the House are concerned with a balance between the protection of the citizen on the one hand and, on the other, the rights of citizens as a whole in a free society to free discussion and information in the media about what is going on in the courts. One can question one point or another in the Bill, but on the whole it achieves precisely the right balance. I emphasise the need for protecting an accused and the litigant, because that is what the law of contempt—that is in the aspect of it with which I am dealing—sets out to do. It goes beyond what the court has to do.
The court is there to protect the litigant and the accused, but this branch of the law is designed to protect the individual in his fundamental right to have a fair trial. That trial must be protected, even at the expense of the rights 51 of society to know what is going on in the courts, as against the right to make free and sometimes grossly unfair comments.
For that reason I welcome clause 2 and the definition of"strict liability" in the matter of proceedings being active. I welcome further that criminal proceedings are to be regarded as active once the initial steps have been taken. An initial step may be arrest without a warrant. I understand the hesitations of the right hon. and learned Member for Aberavon and some of those on both sides of the House who intervened in the speech of my right hon. and learned Friend, suggesting that it might be at a later stage when a warrant has been issued, a man has already appeared, statements have been issued, or matters of that sort.
But one only has to have experience of what is said in continental newspapers where the rights of the accused are not protected as rigorously as they are here to see the dangers that we should face if there were free and unfettered comment once an arrest had been made.
§ Mr. Grieve
The hon. Member for Swansea, East says"In Yorkshire". Nothing could have brought this home more clearly to us than a recent case—which I shall not name because the less said about it the better. It is inevitable that the debate should take place in the light of what happened not many weeks ago. I trust that we have learnt the lesson to be drawn from that and have seen that we have to be most careful of public comment and comment in the media, therefore, in order to avoid any shadow of unfairness to the accused from the moment he is taken into custody. That case made it abundantly plain and clear. I do not criticise the definitions in clause 2 and in schedule 1. They have been correctly drawn and achieve the right balance.
I represented one of those accused of contempt in the contempt proceedings which followed the Bodkin Adams case. I have always been concerned for the defence of innocent publication. I am not sure that clause 3 goes far enough in protecting those who handle publications coming from abroad. The House will recollect that, in the contempt proceedings which succeeded the Bodkin Adams case, the various parties were charged with contempt in connection with an issue of Newsweek—making a comment which, in the law of this country, was plainly a contempt. There was brought into that case not only Newsweek, its representatives in this country, but W. H. Smith and Son Ltd., the distributors, and the manager of W. H. Smith and Son Ltd., who had not even opened a copy of Newsweek. I cannot depend on my recollection, because it was some time ago. They were all guilty of contempt and were all dealt with—though mercifully, in the case of those whose participation was so minor. I sometimes wonder whether the burden of proof in clause 3(3) is correctly put. No doubt that will be a matter for consideration in Committee.
I turn now briefly to one or two other matters in the Bill because, on the main point, the definition of"strict liability" and the definition of the period in which proceedings are active in criminal cases—I shall not discuss civil cases—the balance is right. I can remember in one famous criminal case the media were exercising a proper reticence in the circumstances in which one found 52 headlines such as"The strangler of Notting Hill" in quite respectable French newspapers. I am not suggesting that people were influenced by that sort of thing but one can see how far the press and the media can go once rules of this sort—designed for the protection of the individual and to give him a fair trial—are in any way relaxed.
I unreservedly welcome clause 8. It was once thought unnecessary for the protection of the integrity of the deliberations of a jury to be defined, but recent events, particularly the judgment of the courts following the New Statesman article on the Thorpe trial, showed that it is necessary to protect the integrity of the deliberations of a jury.
Clause 8 goes no further than is necessary to do that. I support it and I hope that the House will support it. It is essential that what goes on in the jury room should not be subject to leakage and, as a result, to discussion of, for example, the part taken by one juryman or another in debates. The whole of our criminal procedure in the Crown courts depends on the integrity of the deliberations of a jury. I have used that expression three times, because it is an essential description of what goes on in the jury room and the need to protect what goes on. I hope that clause 8 will have the welcome from the House that I believe it should be given.
§ Mr. Best
I wholeheartedly agree with my hon. and learned Friend that the confidentiality of the jury retiring room must be preserved in individual cases. However, I hope that he will support clause 8(2), which will enable the way in which matters are deliberated upon in a jury room to be discussed, though without reference to specific cases.
I think that my hon. and learned Friend and I agree that the jury system is fundamental to our system of law and it is right that every now and then it should be investigated to see whether it merits the praise that many of us give it.
§ Mr. Grieve
I completely agree with my hon. Friend. The jury system ought to be considered, weighed and investigated from time to time. To that end, it would be right to consider what has gone on in the jury room, provided that there is a cloak of anonimity over the case in question, and that is what clause 8(2) provides.
I have made the two points that I wish to make and I add only that I am pleased to see in clause 4 new provisions made for an order by a judge being necessary to protect the freedom from publication, pending the end of the trial, of matters that have gone on in the court, when their release to the press might prejudice the ultimate result of the trial. I refer, of course, to such matters as a trial within a trial and cases in which matters are discussed between a judge and counsel in the absence of a jury. In many cases such matters ought not to be made in public, in the full sense of the word, that are to be the subject of discussion or reporting in the media, until the end of the case. Hon. Members who practise in the courts will understand what I mean, as will anyone who has seen any part of the procedure of criminal justice in our courts.
I do not intend to say anything about the definitions applying to civil procedures. By and large, the Bill has my full support, though obviously there will be room for discussion of the details in committee. I give that support to the Bill as a balanced measure for which my right hon. and learned Friend the Attorney-General asked.
§ Mr. S. C. Silkin (Dulwich)
It is perhaps a pity that the Bill is called the Contempt of Court Bill. Contempt of court is a highly antiquated and inaccurate expression and that may be one reason why the attendance in the Chamber is not as great as we would wish. There may be many hon. Members who think that we are discussing a dry, technical legal subject when, in fact, we are debating the conflict and boundaries between two vital elements in a free society —free speech and a fair trial.
The sensitivity of getting precisely the right boundaries between the two concepts is hard enough in legislation. It may be that the long period that has elapsed since the setting up of the Phillimore committee—it will probably be a decade after its establishment before the Bill becomes law—has been influenced, at least in part, by the difficulties and sensitivity involved.
I know that it will strike an echo in the breast of the Attorney-General when I say that it is not only legislative sensitivity which enters the matter; it is also the sensitivity that enters into the various decisions that have to be made, particularly by the Attorney-General and the Law Officers when dealing with particular cases and making often difficult decisions about whether to bring matters before the courts.
The Law Officers may be virtually certain that whatever decision they take will be criticised by one side or the other and, on the basis of the experience of recent years, they can be reasonably certain that as new circumstances arise the courts will take different views at different levels. That is a matter which is bound to cause apprehension in the mind of any Attorney-General, however robust.
The fact that it has been the general practice in relation to criminal contempt that such matters are dealt with by the Attorney-General and the Law Officers—and I understand that the courts will ask a private person who seeks leave to bring proceedings whether he has consulted the Law Officers—introduces not only a standardisation of approach but something that I regard as even more valuable. If the Attorney-General has been involved in a decision and it is his decision, even though nominally a Government Department is the litigant, the Attorney-Genera] is answerable in the House. There are occasions when that is embarrassing and times when one would wish to avoid being answerable here.
I have had that experience at the hands of the right hon. and learned Gentleman and of others. I know of nothing more salutary to good administration and good decisions than to be answerable from the Government Front Bench when one makes a decision of a necessarily sensitive character. I believe that the decision, as often as possible, should be that of the Attorney-General. In relation to criminal contempt, I can see no difficulty about that being made a rule of law. Indeed, that is what the Bill does in clause 8 in relation to publication of the deliberations of the jury. It does so because we are bringing in something new. That is the only reason why a distinction is being made, so far as I can see, between the provisions of clause 8 and criminal contempt of court generally.
I hope that criminal contempt of court as a whole will be looked at again in this context. I accept entirely what the right hon. and learned Gentleman said about the vital importance of the new definition of the strict liability rule in clause 2(2). If, however, we are to get harmony and if 54 we are to ensure that absurd decisions are not made, it seems to me important that ultimately a single Minister should be responsible, and that he should be responsible to Parliament.
I wish to say a few words about the Harriet Harman case because it flows naturally from what I have been saying. I understand the point that the Lord Chancellor made repeatedly about the case in another place—that it was concerned with civil and not criminal contempt of court. I am bound to say that I think that the decision to bring proceedings was entirely wrong. I say, within the hearing of the Attorney General, that I do not believe that if he had been consulted—and I do not believe that he was consulted, as I have remarked about a previous matter in respect of which one of his colleagues was involved—those proceedings would have been brought. I cannot believe, in particular, that the Attorney-General, knowing, as he did at the time when those proceedings were brought, that the Government were about to introduce a Bill which, under clause 4, would give immunity toa fair and accurate report of legal proceedings held in publicand which under clause 5 would give a defence of publicationmade as or as part of discussion in good faith of public affairs or other matters of general public interestwould have advised his colleague to bring proceedings against a person who was doing no more, on the evidence available to me, than to make it possible for a person, who wanted to write on public affairs or other matters of general public interest, which he would be entitled to write under the provisions of clause 5, to do so in a way that ensured that anything he said about the proceedings in question was fair and accurate in the wording of clause 4. No Attorney-General with any imagination could possibly have given that advice knowing that those clauses would appear in a Bill to be introduced by the Government.
I know it is said that Miss Harmaa may have allowed to be known something other than matters which had already been read out in court. I have taken the trouble, because of the importance of this case, to ask her myself. She assured me not only that nothing material was made available but that this was accepted by the Home Office.
§ Mr. Mellor rose—
§ Mr. Alexander W. Lyon (York) rose—
§ Mr. Silkin
I wish to finish this part of my speech before giving way. I have only once, before this case arose, met the lady in question. We were on the opposite side in a television programme when she was complaining about my views on jury checks and I was upholding those views. The manner in which she conducted herself on that programme was such that I was prepared thereafter to accept her good faith in any matter in which she placed before me her account of what had taken place.
§ Mr. Mellor
I am grateful to the right hon. and learned Gentleman for what he is saying about this case, with which I agree. It carries so much force coming from the right hon. and learned Gentleman. Is not one of the most unfortunate aspects of the case that when the right hon. and learned Gentleman says, as is only right, that the Home Office always conceded that all these documents had been read out in court—this found its way into the judgment of Mr. Justice Park—the Master of the Rolls, for reasons best 55 known to himself, saw fit to go behind that finding of fact and suggest otherwise in a way that is most unfair to the lady concerned?
§ Mr. Silkin
The hon. Gentleman will know that I never criticise the Master of the Rolls. I shall leave his comment where it is. I am satisfied with the accuracy of what I was told. That is the important matter that the House should have in mind. If that is so, what was being done by this lady was to inform a person who intended to write about the case, as a public affair and a matter"of general public interest"—I use the wording of clause 5—and to enable that person who, no doubt, wanted fairly and accurately to portray what had been said in legal proceedings, to do so. How that could be related to the wording of clause 2(2)—which creates a substantial risk that the course of justice in the proceedings in question"—or indeed, any other proceeding—will be seriously impeded or prejudiced"—passes my comprehension.
I accept that this was a civil contempt, if it was contempt at all, and not criminal contempt. I understand the difficulties that might well arise if the Attorney-General were given the task of vetting all proceedings for civil contempt—people who fail to obey orders for discovery and that kind of thing. That would clearly be impossible. I do not suggest that the provision that I suggest should be included in the Bill, requiring his consent for proceedings for criminal contempt, could apply to civil contempt. I hope, however, that the Solicitor-General for Scotland, in winding up the debate, will be able to give an undertaking, on behalf of the Government that when a Government Department in future is involved in proceedings of this kind, the Government Department will not bring proceedings for civil contempt without first consulting and getting the consent of the Attorney-General. No legislation would be needed for that. Nothing would be required other than an undertaking to the House. Generally I do not like legislation by undertaking, but I believe that it is right in such circumstances. The possibilities for contempt of court constantly enlarge themselves. One never knows what new circumstances will arise which will bring a matter before the Attorney-General or the courts. One must look to those future possibilities as well as to anything that one can provide for in legislation.
I have spoken at length on a subject about which I feel strongly. I turn to my general approach to the whole subject of contempt of court. It concerns the sensitive balance between free speech and fair trial. My view is that where that balance has to be fixed there should be a burden in favour of free speech unless it is absolutely necessary that the burden should shift in favour of fair trial.
I have two reasons for saying that. The first is that that happens to be the provision to which we are bound under the European Convention on Human Rights. Free speech is to take priority unless it is necessary for the purpose of fair trial to do something different. The second reason is that unless we have free speech we shall not be able to defend fair trial. Free speech is necessary in itself for that purpose.
Whenever conflict arises and one has to decide, I am a free speech man unless fair trial is absolutely essential. I look at the Bill with that in mind. I ask myself a number 56 of questions about whether we have really gone as far as we can to give effect to that principle. My right hon. and learned Friend the Member for Aberavon (Mr. Morris) referred to appellate proceedings. I could refer to civil proceedings without a jury. I ask myself whether we are being over protective.
If, in addition to the provisions in clause 2(2), which greatly strengthen the protection of free speech, we introduced the safeguard of the Attorney-General's consent, many difficulties would disappear. The Attorney-General clearly would have regard to the probability or otherwise of the tribunal being affected by what had been published and whether the test in clause 2(2) had been satisfied as well as the other issues of public interest.
The provisions in clause 2(2) coupled with that addition to the Bill would be a strong safeguard which would obviate the need for removing that which I might otherwise wish to see removed from the ambit of contempt—that is, contempt in relation to an appellate tribunal and civil cases without a jury. I fully understand that in such cases not only the court but the witnesses and parties to the case might be affected by publication.
Having expressed those somewhat liberal views, I turn to clause 5. I am an objective person and I have some reservations about the liberality of that clause. The clause is founded on paragraph 142 of the Phillimore report. That paragraph perhaps does not deal with the subject matter with the detail and thoroughness exhibited in the rest of the report. It refers to a dictum of the Chief Justice for New South Wales in 1937 and states:We recommend that a defence on these lines"—that is for the discussion of public affairs—should be created by statute.I do not suppose that the Phillimore committee when it made that recommendation thought that the ipsissima verba of the text would become a statute itself. Clause 5 contains a concept so wide that I have great difficulty in accepting it.
Let us examine what it means. Unless we begin with a certain proposition the whole of clause 5 is inapplicable. We must start with the proposition that there is a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced. In other words, there must be a real risk that there will not be and cannot be a fair trial. In those circumstances clause 5 states that none the less publication might properly be made without danger of contempt of court as part of the discussion in good faith of public affairs or other matters of general public interest, so long as that substantial risk that there will not be a fair trial is merely incidental to that discussion.
In short, one can have a discussion even if the effect is that the person who is subject to criminal proceedings cannot possibly obtain a fair trial provided that the discussion is so wide that the reference to the particular case is only incidental to it.
The Solicitor-General for Scotland will recall the case of Atkins which was heard after Phillimore reported. The decision was that of the Lord Advocate in the Government of which I was a member. The situation that we are discussing arose in that case. The Lord Advocate decided that the prejudice to Mrs. Atkins was so great that he could not proceed with the trial and the trial was not proceeded with.
I am bound to ask whether we are not going too far, not in the general proposition that is contained in clause 5, 57 which I generally welcome, but in its formulation in a way that can have that effect. I hope that the Solicitor-General for Scotland will give us the benefit of his views in that regard. Important as free speech is, and important as it is to have a proper discussion of matters of general public interest, it should not be impossible to try people because of the prejudice that they will be under. We have to find a balance.
I was particularly concerned when I read a speech made in the other place by the Lord Chancellor about the starting point for criminal contempt proceedings in relation to Lord Lucan. He said that anyone would be able to write about Lord Lucan under the terms of clause 5. Clause 5 would be a very wide clause if the whereabouts and existence of Lord Lucan were a matter of general public interest that could be written about—the matter being taken outside the field of contempt. The clause should be reconsidered.
I have already spoken for too long. The Bill is an egg which has been a long time hatching. Some people may say that I sat on it myself for part of that time. They would be wrong. But the delay has done no great harm. Nor would there be harm in a further delay, during which Parliament could work out further the sensitive balance to which I referred.
It is better to get it right now than simply to be able to say that now, a decade after the setting up of the Phillimore committee, we have at last brought forward a Bill on contempt of court. It is better that that egg should be pure and wholesome than that it should be of the curate's variety.
§ Mr. Geoffrey Johnson Smith (East Grinstead)
I followed with close interest the comments of the right hon. and learned Member for Dulwich (Mr. Silkin), who, in a previous incarnation, carried considerable responsibility in this connection. I therefore follow his speech with some trepidation.
The right hon. and learned Gentleman gave a qualified blessing to the Bill. He thinks that it is a small but important step forward, but that the balance is not quite right. He said that there was of course a duty to protect the administration of justice and to protect the person who had to appear in court. That is true. He said that there was a conflicting principle—or could be a conflicting principle—in terms of the right of us all to uphold freedom of speech. He felt that the Bill was possibly not quite liberal enough and did not place sufficient emphasis on freedom of speech or freedom to report. That, at least, is the impression that I got.
I do not speak as a lawyer. It is well known that I am an innocent here, surrounded by legal luminaries. In fact, they may be the only people who surround me. The title of the Bill has perhaps persuaded my colleagues to absent themselves from the Chamber, because they know that if they get stuck on a matter that is excessively legal they are on a hiding to nothing. They can speak for only a few moments before they are interrupted by someone who knows the intricacies of the Bill and who knows how to interpret the words in a legal way, as opposed to the common-sense way, which some of us believe is just as important.
I am an innocent in these matters. On one occasion I inadvertently found myself on a charge of libel. It was brought against me by a rather curious cult known as the Scientology organisation. At the time, some of us did not 58 know how the law stood in that respect. In fact, I do not think that the BBC knew, and even the Attorney-General was somewhat confused. I am glad that I said what I did, because it turned out subsequently to be absolutely correct. I admired the British process of justice, but I was concerned at the time that in cases of libel, or in this case, contempt of court, it is vital, if we are to assure free speech—there was a question of people being muzzled in the case in which I was involved—that we know where we stand. If we are to uphold freedom of speech, the work-a-day journalist and the television reporter should know where they stand.
I welcome what was said by the right hon. and learned Member for Aberavon (Mr. Morris), who mentioned all the excellent newspapers of which Mr. Speaker has knowledge—local papers in the Principality of Wales which are so busy paying their staff to do the job of reporting that they do not have the wherewithal to employ expensive counsel to tell them whether they are within the law when they report. I shall come back to that point in a moment. In this respect my right hon. and learned Friend's Bill falls short, because I believe that it imposes unnecessary legal restrictions on reporting. However, in general terms I welcome the difficult task that my right: hon. and learned Friend has set himself, and 1 hope that the Bill will receive a Second Reading.
I approach the matter as one who has experience as a reporter. The profession to which I once belonged is quite good at communicating with the general public, but, at times, its members are very bad at communicating among themselves. I am supposed to follow the affairs of the media with some interest, and I do my best so to do, but I am bound to say that it was only just before the weekend, when I had left for my constituency, that anyone from the media thought it right to communicate to me his misgivings about this legislation. This morning I received a further missive.
So I apologise, partly because I feel inadequate on the legal side and partly because I am not as well informed as I might be. I accept a degree of responsibility myself, of course, but I can only assume that either the comparative silence of those affected by the Bill has been dictated by the fact that, on the whole, they approve of it, or that they are not alive to some of the dangers that it contains. I imagine that the latter is the more likely explanation.
I say that because I am not as well prepared to deal with the complicated matters in the Bill as I should wish. It may therefore be better if I confine my remarks, first, to the general proposition and then to one or two practical work-a-day matters. I shall then leave it to the good sense of the Government to accept amendments in Committee so that in the debates on Report and Third Reading the measure will receive the warmest approval of the House.
I know that Sutcliffe has been used as a ground for retaining in the Bill a provision that is contrary to that recommended by Phillimore, but Ministers do not cut much ice when they use that argument. As far as I can judge, the Bill was bred and phrased before the Sutcliffe affair broke in the press. It is argued that liability should begin at the time of arrest. In the Sutcliffe case, as proceedings were imminent the police and the press were already doing something that they should not have been doing. That was admitted by the Attorney-General. However, it did not stop the press reporting what it considered it right to report.
59 Law must be founded on common sense. If we ask the press to act with a restraint that goes against its basic interest to inform the public when it is important to do so, the law will break down.
§ Mr. S. C. Silkin
Is not one difficulty about fixing the time the fact that we could back almost indefinitely; in other words, that prejudice can be just as great even long before the time of arrest, or the issue of a warrant for arrest? The problem is to fix a time that is known and understood, even though one takes the risk that prejudice will otherwise occur.
§ Mr. Johnson Smith
That is true, but the Phillimore committee recommended the time of charge.
Let us suppose that strict liability runs from the time of arrest, as suggested. It may be some time before the charge is made. It is difficult, and at times impossible, for journalists to establish whether a suspect has gone to a police station in order to help or whether he has been arrested. Experience warns us that a considerable time may elapse before the police are willing to give an explanation or to clarify the position. There could, therefore, be a period of protracted uncertainty for the press, and in some cases it could, result in the premature curtailment of reporting.
On occasions a warrant is issued for the arrest of a homicidal maniac who is on the run. The press is invited to assist in achieving his capture. Photographs appear on television. The act of publishing photographs and descriptions of the man's alleged crimes and violent behaviour could, under the terms of the Bill, bring editors into contempt.
We then have people who flee the country. I believe that Lord Lucan was, last seen in my constituency. Many distinguished people live or temporarily reside in my constituency. Others escape, go abroad, and from a safe harbour proclaim their innocence, without risk of extradition. The media would be in contempt if they attempted to publish information on a person's background or criminal activities lest on a future occasion he were apprehended and brought back to the country to face trial. The case of the robber Biggs comes to mind. Therefore, from a practical point of view, the Bill is less than certain and helpful.
It is clear from his minority report that my old friend and colleague, Sir Robin Day, felt that in civil cases—this does not apply in libel cases—a long time could elapse between the incident and the matter coming to trial. Two years or more can elapse before the press is allowed to comment. In this country too often matters smoulder on, month after month, year after year. In the United States there is much greater freedom to comment. Because we have such laws, people are misguidedly led to believe that we need a glorified freedom of information Bill. The clause of the Bill dealing with such matters needs tidying up. I warmly commend Sir Robin Day's approach. He is a practical man, who has a knowledge of the law, which is more than most of us have who work in journalism.
The law on contempt and appellate proceedings has been pretty well covered this afternoon. However, in order to show that there is a meeting of minds across the Floor of the House and because in another place the voices of those who work in the media were silent, let me say that some of us on the Government Benches feel that there is 60 much to be said for reconsidering schedule 1(14). I give one practical example of how it could interfere with proper freedom of reporting. The provision is a direct rejection of the Phillimore committee's proposal. Defendants convicted after notorious trials could rush to file notice of appeal on the day of conviction in order to prevent publication of factual information about them not given in evidence or of comment on their criminal behaviour.
§ Mr. Johnson Smith
I should prefer my hon. Friend to develop his argument in his own time. He may be a little too legalistic with me.
I wish, too, to deal with the contempt of inferior courts. We have all kinds of wretched tribunals, no doubt doing excellent jobs. The Bill would extend the protection of contempt to proceedings of all inferior courts, tribunals and bodies, however described and whenever established, which exercised any part of the judicial power of the State. That is an unacceptable impost, particularly on local journalists. There are hundreds of such statutory bodies. There appears to be no evidence of a need for the extension. Lord Salmon, who is a well-known expert on such matters, and others were quoted. We can hope for a little more progress here with the weight of argument that has been put against the provision.
Particularly with regard to courts, the British tend to have a frisson when any device to update reporting is mentioned. Fleet Street, too, has its fair share to Luddites, which is one reason why our national press is in a mess. It is not illegal to broadcast court proceedings—I do not know whether local radio is aware of that—but it is illegal to televise proceedings. Nothing may be photographed in a court. The fear of media intrusion is too entrenched for anyone to embark on a successful campaign to televise courtroom proceedings, but I believe that we should have far greater freedom to tape-record court proceedings. Some pronouncements by judges are most interesting and deserve far wider publicity. Too often the comment from the popular press tends to show them in a ridiculous light. The technological advance that we have gained through radio could be used with advantage by those who wish to uphold the law and achieve a better understanding of it.
Let me deal with one reason why many hon. Members feel that we should have a freedom of information Bill. Clause 4(2) gives judges the power to order the publication of any evidence heard in open court tobe postponed for such period as the court thinks necessary.Clause 10 then provides that where a court has existing power to order suppression ofa name or other matterit may additionally give such directions to the media as it may deem necessary to ensure that such material is not published at all.
I believe that such provisions represent far too great an incursion into the principle that legal proceedings should be freely reported. Clause 10 is the more objectionable. Under that clause, courts will not merely approve arrangements whereby witnesses are referred to as symbols, or certain documents are not read aloud by counsel. Henceforth, the courts will be allowed to direct that if the press independently discovers the true identity of a witness or the true nature of unread evidence, it shall never disclose it. There is little wonder that people get 61 scratchy when they hear hon. Members talking about this as a matter in which there is a balance between free speech and protection of the administration of justice.
I put those points to my right hon. and learned Friends on the Front Bench in the full knowledge that they have worked hard and that the Bill is a serious attempt to cross a difficult minefield. I have every confidence that when the Bill reaches Committee they will take heed of what the House has to say on these matters.
§ Mr. Alexander W. Lyon (York)
I do not wish to follow the hon. Member for East Grinstead (Mr. Johnson Smith) in some of the matters that he raised. There are a number of matters of detail in the Bill on which I might take issue with the Government's conclusions. On the whole, however, the balance is one that I accept. Some of the points that I wish to raise are really Committee matters. I do not wish to serve on the Committee or to air those matters in this debate but I have no doubt that they can be dealt with by the time we reach Report.
I turn to one major point raised by the hon. Member for East Grinstead. There are arguments in favour of saying that the appropriate break-off point for strict liability in criminal contempt ought to be the charge rather than the arrest and the one weighty example that the hon. Gentleman can use, namely, the Lucan case, seems to argue persuasively for that point of view, but in most cases the time gap between arrest and charge is so short that it is unlikely to inconvenience the press very much, and it is likely to eliminate a serious risk of prejudice occurring at the trial if comment is made immediately after arrest and before the charge, which may be a day or two later.
Even in the Lucan case, I have considerable doubt about whether it is right for the press to write articles on the assumption that the man is guilty of murder simply because he has been charged and has not been seen for some years. The fact is that he is not guilty of murder. He has not been convicted by a court. For the press to write as though he has been so convicted is to eliminate any explanation that he may be able to give, if ever he comes back to light, of the circumstances of that night. I therefore believe that, even though the case may be persuasive to some extent, the argument against going for the charge as the break-off point is very strong indeed.
§ Mr. Best
Does the hon. Gentleman agree that if the House were to translate into reality the recommendation of the Royal Commission on criminal procedure on the question of when a person has to be charged after coming to a police station, many of the objections raised by my hon. Friend the Member for East Grinstead (Mr. Johnson Smith) would be met?
§ Mr. Lyon
First, I do not think: that that is one of the recommendations. The Royal Commission makes some curious recommendations on that point, which might extend the period quite considerably beyond the time when the person reaches the police station. I have considerable reservations about the report of the Royal Commission on criminal procedure. I do not wish to see it implemented for quite a long time. I shall be happy to implement it myself if ever I become Home Secretary, but I should not want it to be done before then, because there are a number of matters that I would wish to take out.
The point that I wish to raise is one that is not contained in the Bill, but which I hope will be by the time it reaches 62 Third Reading. That is the issue raised by the Harriet Harman case. I am well aware of the reservation that you, Mr. Speaker, put in at the beginning of the debate, and I shall try to keep within the terms of that. If I speak feelingly on this matter, it is for good reason. I have known the lady in question for rather longer than has my right hon. and learned Friend the Member for Dulwich (Mr. Silkin). I do not think that I have ever had the pleasure of debating with her in a television programme, but I have known her for a very long time. I also know a good deal about her predecessors at the NCCL.
The NCCL does not always have the best press among Conservative Members, and I know that there are reservations even among Opposition Members about some of the things that have happened in the past, but I believe that this young lady has integrity and ability well above the ordinary. Certainly she is manifestly concerned about her duty as a solicitor in the Supreme Court and would never have dreamt of breaching what she considered to be the law at the time when she did so. Indeed, she took exceptional care to ensure that she did not breach the law as she understood it at the time.
I am bound to say that as she understood the law, so did I. Moreover, my right hon. and learned Friend the Member for Dulwich, who has much greater experience than I, took the same view. More than that, so did the Attorney-General. When I raised the matter with the Attorney-General his reaction was the same as mine, namely, that if a document is read out in open court, the fact that that document is then written about later cannot conceivably be contempt of court. It was unthinkable to us that it should be so. It was my own immediate reaction and that of those with far greater experience than I have. I see two legal Members on the Conservative Benches indicating that they share that view.
That lady was then dragged before the court and told that she had committed a serious contempt, and was mulcted for costs as a result. She was then criticised not only by the judge at the puisne court, but by the Court of Appeal in very wounding personal terms. She was then criticised even more by the Lord Chancellor. That is an imposition on a young woman that is simply unjust. I cannot find words to encompass my distaste at what has taken place.
Recognising that I have some feeling about this, perhaps I might put the matter into its context. I can go back a long way on this issue. It goes back to the way in which the isolation units were established under the Government preceding the one of which I was a member. They were then continued by the Home Secretary whom I served as a Minister of State. Although this was not my area of responsibility, I was present at the meeting that finally terminated those isolation units—the minutes of that meeting being one of the documents that were produced in court. I can only say that when we arrived at that meeting we were all agreed that not only was it a bad thing to have isolation units but that they should never have been established in the first place. We thought that the whole experiment was an undesirable exercise of the Government.
After that, the prisoner who was most affected by his stay in an isolation unit sought to bring proceedings. He brought those proceedings through the NCCL. It may be argued that the NCCL should not act as a solicitor for 63 anyone in any proceedings, but it is perfectly lawful for it so to do, and it is equally perfectly lawful for one of its qualified solicitors to act as the person's solicitor.
The Master of the Rolls seemed to think that it was improper for such a thing to happen, and certainly improper for her to confuse her job as solicitor for the NCCL and solicitor for the plaintiff, but the plaintiff went to the NCCL because he thought that it was an organisation that would fight for his rights. This lady did all that she could for him—more, I accept, than most solicitors might be tempted to do, but she did it in a perfectly proper legal way.
She went to the judge who was deciding the discovery of documents and presented to him a formidable case for producing a large number of documents on discovery. It is true that the order went beyond an order that would normally be made in similar cases, but the judge thought it right so to do. About 6,000 documents—a very large number—were produced. Only 800 of them were read out in court. If there were any complaints about the remainder of the 6,000 documents I could understand the issue, because for documents that were not read out in court to be used in the press may very well be contempt in the discovery action.
After the discovery order had been made Miss Harman was written to by the Treasury Solicitor on behalf of the Home Office. She was asked to give an undertaking that she would not breach the confidentiality of those documents. She wrote back saying"You may take it that, as a solicitor of the Supreme Court, I understand what the law is on discovery and I will not breach discovery", and that general undertaking was accepted by the Treasury Solicitor.
When the case came before the puisne judge, her counsel read out all 800 documents. Those matters were referred to later in the contempt proceedings, and Mr. Justice Park said:Mr. Williams's counsel took five days to open the case and, in the course of doing so, all the 800 documents were read out in court.That was a finding of fact by the puisne judge in the contempt proceedings and is of fundamental importance to the understanding of this case.
In the course of the following few days a reporter of The Guardian came to see Miss Harman and asked if he could refresh his memory by looking at the documents. She then allowed him to look not at the 5,200 documents that were not read out in court, but only at the 800 that were. The reporter then went away and wrote an article that was highly critical of the Home Office and of civil servants, but it was not particularly connected with the circumstances of the case that the puisne judge had been trying. However, it so incensed the Home Office that it decided to take action against this lady.
My right hon. and learned Friend the Member for Dulwich is right. Something must be done about the way in which legal cases of this kind are brought before the courts so that they can decide what the policy ought to be when it is really for Ministers to decide what the policy is. I am told that the situation in the Home Office has changed. All that I can say is that I know of many cases on immigration, for instance, that have come before the courts for decision on a serious policy matter when they 64 have never been brought to my attention. They simply went out from the hands of the civil servants into the hands of the Treasury Solicitor, and the matter was decided then.
On this occasion I know for a fact that the Attorney-General was not consulted by the Home Office about whether it ought to bring contempt proceedings. The instructions were given to the Treasury Solicitor by the legal department of the Home Office, and that was all there was to it. Whether the Home Secretary ever saw that matter I doubt, too, having regard to some of the briefing that he later gave to the press. Certainly it ought to have gone to the Attorney-General and it did not do so.
When the proceedings came on, I went to listen to the opening day. I am bound to say that I never heard such a lot of windy waffle as I heard from the Treasury devil who opened on behalf of the Home Office. It was difficult for him to find any kind of legal authority for the propositions that he was putting forward. Nevertheless, the judge decided in favour of the Home Office—much to everyone's surprise, and again on arguments that I find particularly weak and unconvincing. The matter then went to the Court of Appeal.
§ Mr. Mellor
The hon. Gentleman has given such a careful account of the case that I do not think he should pass over one of the more interesting aspects of Mr. Justice Park's judgment, which was that, apparently, while it was contempt for the matter to be disseminated through The Guardian, it would not have been contempt had it been disseminated through the Law Quarterly Review or the Law Journal, or some legal publication. I do not know whether the hon. Gentleman was happy about that.
§ Mr. Lyon
I was going to come to that argument, but it comes so much more temptingly from one of the judges in the Court of Appeal, who calls it the"cynical" argument. I shall come to that in due course, because it is appropriate that these matters are dealt with seriatim—as people say in the law courts.
We got to the Court of Appeal, and there the opening arguments on the first day all seemed to be going Miss Harman's way. It seemed as though the judges in the Court of Appeal also thought that it was ludicrous to suggest that if documents had been read out in court it could possibly be contempt to repeat them outside. But then there was a lunch break, and the Master of the Rolls went off and read the article in The Guardian. When he came back it was a very different kettle of fish. From then on, they were stout defenders of the Establishment against the ungodly of the press, and it was done on that basis.
The Master of the Rolls tells us that he has to have the right to decide issues according to justice and not according to precedent because he wants to take a decision on social policy in a way that he considers to be right and proper in the circumstances. I hope that in future people will look at this judgment to see what his attitude was on social policy. I venture to suggest that if we had had to take the decision in this case, our evaluation of the social policy implicit in the judgment would have been very different. We are the ones who are elected by our electorate to decide social policy, not a gentleman who has been isolated from the cut and thrust of the debate about social policies by so many years on the Bench.
The Master of the Rolls tells the country—this was quite widely reported—that he regarded it as being in the public interest that these highly confidential documents should not be made public. He went on to say: 65It was in the public interest that these documents should be kept confidential and not exposed to the ravages of outsiders.What he means by that is the public at large. He continued:I regard the use made of these documents to be highly detrimental to the good ordering of our society. They were used so as to launch a wholly unjustified attack on Ministers of State and high civil servants—who were only doing their very best to deal with a wicked criminal who had harassed society and was serving a long sentence for armed robbery.Even if that was what it was done for, it cannot be said to be contempt of court if the information that arises in the course of a case, criminal or otherwise, is used thereafter for some other purpose, for advancing some other argument. If the material is brought out in public, whatever the way in which it is thereafter used in public discussion, it cannot be contempt of court.
I take leave to doubt whether it was against the public interest for this information to be disclosed. I have read the article. Even though I was a Minister in the Home Office, I am bound to say that some of the information that came to me of the discussions of the civil servants arrived as something of a surprise. I am bound to say also that it was an unpleasant surprise. As the discussion continued over a couple of years, the original intention of the isolation unit had been changed by the arguments advanced by civil servants. The arguments had been accepted by Ministers without a full understanding of the implications. It was only at the final discussion of Ministers that it was recognised that it was not only wrong that it should ever have been started but probably illegal.
§ Mr. Anderson
Is there not public interest not only in the substantive issue but in the accurate reproduction of what has gone on in court?
§ Mr. Lyon
I was coming to that. For the moment want to deal with what was brought out. In fact, what was brought out by the argument was beneficial to the public good. That demonstrated how decisions were made in the Home Office and how Ministers came to a false conclusion upon inadequate evidence and inadequate briefing.
That surely is a good thing. It should happen. It should happen much more widely. We all agree that it should happen. If it happened generally, it would make for better decisions. Therefore, the Master of the Rolls was wrong in assuming that it was against the public interest that these matters were made public. However, even if he was right, my hon. Friend's argument is valid. If the matter was read out in open court, it must be right that the reporter could write whatever he liked about it. After all, the Court of Appeal accepted that The Guardian could have paid several hundred pounds and obtained a full transcript of all that was said. It was accepted that it could then have produced what it liked and that Miss Harman would not have been in this state. How can it conceivably be said to be contempt of court if that mechanism could have been adopted?
One of the judges called that a cynical argument. I regard it to be a valid argument of common sense. If we could have had a tape recording of the 800 documents that were read out, and if we had gone away and played it, according to the Court of Appeal that would not have been wrong. However, Miss Harman allowed the reporter to read the documents so that he could quote them accurately. It is because she did that that she is held in contempt. Her organisation, which depends upon voluntary contributions, will have to pay the costs. So far the 66 Goverment have not said that they will pay their own costs. That is another factor that should be borne in mind in dealing with the Government's attitude.
§ Mr. Mellor
I cannot help but agree with the hon. Gentleman on this issue. Presumably, if the article referred to by Mr. Justice Park had appeared in a learned legal journal and someone from The Guardian had spotted it and reproduced it, there would have been no contempt. Does the hon. Gentleman agree that it was deplorable that the fact having been admitted and agreed throughout the proceedings at first instance that all the documents were read out, the Master of the Rolls sought to go behind that and in his judgment suggested that probably some of them had not been read out?
§ Mr. Lyon
I take both those arguments. Indeed, I was about to turn to them. The first argument is manifest. If a legal journal can take it, so can anyone else. If someone had been in court listening to what was said and had left the court and spoken on a tub at Hyde Park Corner, according to the Court of Appeal that would have undermined the State. How ludicrous can we be?
I turn to the hon Gentleman's second argument, which is the most manifest injustice of all. The puisne judge at first instance found as a fact that all the documents were read out in open court. However, in the Court of Appeal, the Master of the Rolls, having had his luncheon spoilt by reading the article, in the earlier part of his judgment said that there was some doubt whether the 800 documents were read out.
He quoted from Miss Harman's affidavit and said:Note her words 'all material parts'. She does not identify those parts. Probably she does not know what they were. She was not in court all the time. I should imagine that no one except the shorthand writer or the tape could tell what parts were read and what were not. I should be very surprised if every word of every one of the 800 documents were read out.Counsel would select the parts to be read. He would say"I do not think it is; necessary to read this paragraph", or the judge would say"I have already read it, do get on." There was no foundation for any of the remarks of the Master of the Rolls in that context. The judge had found that for five days counsel for the plaintiff had read out the 800 documents in full.
§ Mr. S. C. Silkin
Will my hon. Friend take it from me that it was because of those remarks of the Master of the Rolls in his judgment, coming on top of what had been said in the court below, that before I made my speech in this debate I took it upon myself deliberately to ask Miss Harman that very question. I received the answer that I gave the House, namely, that everything material that was shown to the reporter had been read out, and I believe that implicitly.
§ Mr. Lyon
And rightly so. However, whatever Miss Harman has said retrospectively about what was read out, there is a good deal more weight in the fact that the judge so found in the court below. It was a finding of fact in the judgment that was before the Master of the Rolls. He had read it. It was the appeal against that judgment that he was considering. He went on to misinterpret the evidence in a damaging way against Miss Harman.
If there is anyone in the Chamber who wants to say that it was not damaging, let him consider the use made of it by the Lord Chancellor in another place during the discussion on an amendment on this very issue. On 10 67 February, during the discussion on the amendment, he said that he started with the proposition that it was not a question of press reporting of the case. He continued:It has nothing whatever to do with a press report of any case. Miss Harman was not adjudged guilty of any contempt because she had disclosed to a member of the press a document which had been read out to the court. She was adjudged to be guilty of contempt because, as an officer of the court, she had made a promise and had broken it.Later in his speech he said:This is what the noble and learned Lord the Master of the Rolls said about that"—that is the reading of the documents—and I make no comment as to whether he was correct as a matter of fact."—[Official Report, House of Lords, 10 February 1981; Vol. 417, c. 175–6.]The Lord Chancellor then read out the passage that I have read. That was negligence on the part of the Lord Chancellor and a serious underpinning of the criticism of the Master of the Rolls of a girl who was totally innocent of the factual part of the charge against her. That has to be made clear.
There is only one way in which Miss Harman can be vindicated in the attitude that she took in the course of the case, and that is by the appellate part of the House of Lords allowing her appeal. However, the issue can be dealt with by the House during the discussion of the Bill. I have laid the groundwork for an amendment which I hope will be carried in Committee, and which I shall certainly wish to move on Report if necessary.
I hope that by that time the Government will concede that a serious injustice has been done not only to Miss Harman, but to the reporter who used the story, and to all reporters who might wish to argue that because a matter has been read out in court they can use the information in material thereafter. The relevant provisions should now be changed in a suitable amendment.
I hope that the Government will go a little further, in view of the manifestly unjust way in which they have brought about that prosecution and the fact that it was totally contrary to the understanding of law. They could have changed the law if they had wanted to in the Bill, and they did not have to take that lady to court. I hope that they will give her an assurance that all her costs, certainly all the costs of the Home Office will be met out of public funds.
§ Mr. David Mellor (Putney)
I am happy to begin by echoing the words of the right hon. and learned Member for Dulwich (Mr. Silkin), who said that this was a most important debate. He went on, most eloquently, to say why. There must have been something which caused this debate not to be much of an attraction. I suspect that it was because, as my hon. Friend the Member for East Grinstead (Mr. Johnson Smith) said, all taking part were lawyers. People would look at the short title of the Bill and conclude that it was an arid piece of legalism of a kind that would detain only that much-maligned breed, the lawyer-politician, and that there was nothing in it of wider public significance.
If I say nothing else tonight, the one thing that I should like to put on record is that the Bill is important. It is of concern to more than lawyers. As the right hon. and learned Member said, it deals with two matters of fundamental importance in a free society. The first is the 68 supremacy of the law. The second, which is of not much less importance, is the right of the public to know in a free society.
There must be rules to protect a free and fair trial and to prevent prejudice, but equally those who seek to make those rules must be clear that, in so doing, they are not seeking to uphold the majesty of the law with no end result in mind other than just to maintain the majesty of the law. They must be aware that the press has a vital role to play in society. While it is not difficult for any hon. Member to find occasions when the press has abused its position and has launched totally unworthy campaigns, it would be equally right to pay tribute to the number of occasions when the press has pursued matters which would not have been brought to public notice had the campaign not been launched, matters which are of fundamental importance to our society in the way in which things have shaped up. The thalidomide case was such a matter.
Given how many issues of public interest come before the courts and which are therefore affected by the law of contempt, we are dealing with a range of issues about which the public will want to know. We are deciding how much they should know when court proceedings are in train. I understand that we are dealing not with calculated attempts to prejudice a fair trial, but only with involuntary matters which have the effect, under strict liability, of being a contempt of court, regardless of the intention with which they were published. That should lead us to be even more careful before we make rules too restrictive and before we are too inclined to prevent publication of matters which are of legitimate public interest. In so far as one has a balance of mind tilted for or against restriction, one should approach these matters firm in the opinion that there would be a restriction on publication only when there is a proven and well-established reason for that restriction.
The nub of the Bill is clause 2(2). I welcome the Government's decision to alter the Bill as originally drafted, so that, instead of dealing with a risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced, they have accepted the view of the Lords that the word"substantial" should be added.
That leads to an interesting and valuable point. My right hon. and learned Friend the Attorney-General rightly said that we should not assume that the Phillimore report was holy writ and therefore should not assume that the Government were honour-bound to follow it slavishly. We agree with that, although we equally recognise that the Phillimore report was the product of a number of well-qualified persons devoting much time and trouble to considering the matter. We would not want lightly to put their recommendations on one side. It would be equally right that the Government should be as undogmatic in their approach to their amendment as they suggest we should be in considering Phillimore. I hope that the willingness of the Government to compromise on perhaps the crucial clause in the Bill and to add the word"substantial" will also be the way in which they will look at some other clauses.
While welcoming the way in which my right hon. and learned Friend introduced the Bill, and while recognising the clear need for it, I share some of the misgivings eloquently expressed by my hon. Friend the Member for East Grinstead. My profound wish is that when the Bill 69 emerges from Committee it will do so in a form different from that at Second Reading, which I assume it will obtain tonight.
The first point on clause 2 is whether the new definition, even with the addition of the word"substantial", meets the requirements of the European Court of Human Rights. The European Court of Human Rights was not technically sitting in judgment on what the House of Lords said in The Sunday Times case, because the House of Lords, as the highest court in the land, is supreme. However, because the Government are under a signed treaty, they are under an obligation to introduce into law those matters which are found by the European Court of Human Rights to be wanting in any judgment. I have looked at the judgment. I wonder whether we have gone far enough in the definition to satisfy that judgment. On the case of The Sunday Times the court said:The interference complained of did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression … the Court therefore finds the reasons for the restraint … not to be sufficient under Article 10(2). That restraint"—this is the crucial phrase—was not necessary in a democratic society for maintaining the authority of the judiciary.In other words, the test which seems to be being postulated by the European Court is necessary for the protection of the judiciary.
The rest of the judgment seems to imply a requirement that there was a degree of certainty—an almost absolute certainty—that justice would be materially interfered with before the contempt rules could be seen properly to apply within the context of the treaty. I wonder whether clause 2(2) goes as far as the requirement of the European Court. I am sure that my hon. and learned Friend the Solicitor-General for Scotland will consider that matter in his reply.
I now turn to the requirements on the criminal law. I support the line that the Government have drawn—that the proper time to think about the institution of contempt proceedings in proper cases is when the warrant is issued or when the accused is arrested without a warrant. I accept that Phillimore said that the appropriate time should be when the defendant is charged. However, I do not think that it would be possible for me to defend what Phillimore said, but equally I expect my right hon. and learned Friend to take action, as he did against the constabulary in Yorkshire when it chose, prior to charging Sutcliffe, severely to prejudice his trial by some of the things that were said and done at that notorious press conference.
I suppose that my hon. Friend the Member for East Grinstead was right to say that the Government had probably already arrived at that conclusion before what was done in that case. I nevertheless think that they are vindicated in taking that decision by what happened, and I was encouraged by what my right hon. and learned Friend said about his attitude to what the police had done and the fact that, behind the scenes, words had obviously been spoken. It would be disgraceful if there were a repetition in any other case of what went on there, and nothing could be more damaging to justice than that it should be thought that police officers were above the rules that the rest of us must observe.
The media have to exercise their independent judgment, but I suggest that in this case they were as entitled as in any other to report what must have seemed to them a perfectly valid event, given that it was done under the aegis of the chief constable. It is difficult to 70 blame the media for publishing something when such an event is put on. I think that I am pushing at an open door here. I do not imagine that there is much dissent about the proposition on either side of the House.
One matter that it may be important to raise in Committee concerns the defendant who has absconded. Plainly, it would be wrong if the press were to think that anything in clause 2 prevented it from giving proper assistance to the police by publishing details of the man on the run, even accompanied, in the proper cases in order to alert the public—we have to accept this—by somewhat lurid details of what he was supposed to have done. Clearly, one would want to avoid prejudicial matters being published, but there are occasions when that consideration must take second place to the need to apprehend someone who is reasonably believed to be dangerous. Those who have considered the case of Tuite will recognise what I am talking about.
Then there is the point about the right of the media to comment on potential defendants who have absconded overseas. My right hon. and learned Friend the Attorney-General said that he did not think that that happened very much. I thought about it for about two minutes after he said that, and I came up with Lord Kagan, the financier Binstock and John Gaul. Those names were the product of two minutes thought and I imagine that hon. Members can think of other examples.
Is it against the public interest that the press should be permitted to comment on the alleged activities of people in that position even though a warrant has been issued but when there is no imminent likelihood of the warrant being executed—when some of the said gentlemen are flaunting themselves in certain pleasant foreign parts saying that they are outside the grip of British justice? It would be a nonsense if they were entitled, having cocked a snook at us all, to be protected from legitimate comment in the British press about their activities.
I do not believe that my right hon. and learned Friend can maintain that that is not a problem. It is a matter that we shall have to examine closely. However, I accept the fundamental line drawn on criminal matters in the Bill. I have considered the interesting argument that has been advanced of whether we worry too much about prejudicing criminal trials. It was pointed out that the most dreadful things were published in the first trial of the Krays. Yet within a few weeks people who had been convicted of extremely serious offences in the first trial were acquitted of similar charges in the second. It can be said that all the defendants in the Thorpe trial were acquitted, notwithstanding some singularly lurid publicity beforehand. In the recent"anarchists" trial, although it, too, was given a great deal of publicity at the time, the defendants were acquitted. There may therefore be a point in saying that juries are not as susceptible as we think, but on the whole I believe that the accused is entitled to the maximum amount of protection, and I support what the Government have done.
I must confess, however, that I have the greatest misgivings over the way the Bill is formulated in respect of the rules applying to civil proceedings. The Government have set the time limit as the setting down of the action. Many of us are experienced in the civil courts. It can be 18 months or two years before a case comes on for trial. It is said that the suggestion by Sir Robin Day that a sub judice list of cases that are to come on within the following two weeks should be published would add to 71 public expense. I am not sure how much it would add to public expense because warned lists are put out and one could simply convert the warned list to the sub judice list for the purpose of this argument. There is not, therefore, a great deal of merit in the public expenditure argument.
§ Mr. Best
Is not a more substantial point the fact that the vast majority of civil cases are tried by a judge alone? Effectively, one is saying that the judges have to be protected from reading the newspapers because they may be swayed undesirably in their final determination of a case, which surely is nonsense.
§ Mr. Mellor
My hon. Friend's comment reminds me of the conductor whose audience clapped at the end of the first movement. He turned and said"There is more to come". That is also true of my speech. My hon. Friend the Member for Anglesey (Mr. Best), with his usual perspicacity, has anticipated the next point I intended to make. The text of that point was provided by Lord Salmon when he said in his usual trenchant style:If a judge is going to be affected by what is written or said he is not fit to be a judge".I gather from my right hon. and learned Friend the Attorney-General that we have to put in the balance against that an observation by Lord Dilhorne that even though a judge may think he is not being prejudiced, he may be anyway. That does not strike me as one of that late Law Lord's more distinguished observations.
Anyway, what is the consequence of accepting that that observation is right? Our system is built—and this is one of the matters on which I might agree with the Master of the Rolls—upon judges being capable of almost superhuman feats of intellectual power in order to define precisely what the law and the public interest are in sometimes extremely complicated circumstances. If we accept that High Court judges have that skill, we have to accept that they have the ability to assimilate evidence and facts from whatever source—learnt from their time in society or from their time in court—and to come to a sensible conclusion.
If we think that a judge opening The Sunday Times over breakfast may be prejudiced about the work that he will be doing that week by reading an article about it, to what arguments do we open the gate as a consequence? Do we say that a judge who is educated in a certain school might well be prejudiced in his views on society as a result?
Do we suggest that a judge who has lived most of his professional life in the cloistered calm of the Temple might soak up some of the social prejudices there so that he would be unable to do justice to some of the broader cases that come before him? These arguments are advanced, although I do not for a moment agree with them. If we accept that a judge will be prejudiced by an article about a case he is reading, that opens up a tidal wave of possible prejudices that he might be incapable of dismissing from his mind. One undermines the position of the judiciary in a pretty fundamental way with that line of reasoning.
This leads me to a point that I hope hon. Members will not regard as being too extreme. I see no need for any contempt rules for civil litigation that does not involve trial by jury. That is true, too, in the criminal sector once a case has gone beyond the stage of a jury trial. I do not want to weary the House on the point now, but I hope that in Committee this matter will be most seriously considered. 72 I certainly take the view that the basic common-sense approach must be that adopted by Lord Salmon, that a judge does not need this kind of protection. One will have to listen to an extremely well constructed argument before one can be convinced that the contrary is the case.
I accept the need for clause 4. Plainly, it will assist the accurate reporting of proceedings in court, although it is interesting, as the right hon. and learned Member for Dulwich observed, to note the bearing that clause 4 has on the Harriet Harman case that we have been discussing such a lot during the debate. I accept also the need for clause 5 and the defence that it provides. Generally, I express a good deal of satisfaction with part I of the Bill, while having severe doubts about part I as it affects civil proceedings.
I turn now to clause 8, which deals with the publication of a jury's deliberations. I was one of the those who sponsored a Ten-Minute Bill, brought in by the hon. Member for Lewisham, West (Mr. Price) because of concern felt by hon. Members on each side of the House at the implications for the administration of justice if jurors were to be approached—and possibly even paid sums of money—to give an account of why they reached a particular decision, and for that information to be published fairly luridly in the media. That is an example of the sort of instance in which publicity of that kind would be undesirable.
I welcome the way in which my right hon. and learned Friend introduced the clause by saying that any institution, even the jury, has to be called into question at some point and that it would not be right to restrict those who are undertaking research into the way that juries work, but that what had to be stopped was the identification of the case, for nothing can be more damaging than that certain anecdotes about the jury room should be associated with a particular case where there was a celebrated conviction or a celebrated acquittal.
I express some reservations about clause 11, which is concerned with insults to justices of the peace. Not much attention has been paid to it. If the Bill is not amended, such an offence will be visited by imprisonment for one month, or a fine of £500, or both. Before approving such a clause, we would need to know that there was a particular problem at the summary justice level that required such a clause. I incline to the view that the case has not—to my satisfaction, at least—been made out. I hope that the Committee will look at that matter with some care.
I should like to make one or two observations about the Harriet Harman case. It is interesting that we should have had this most vivid example of how the courts deal with" the present contempt of court rules as they have been understood. If anything drives me to believe that the more certainty we can put into the Bill, the better, it is an examination of one or two of the pronouncements in the case. I speak as a lawyer with a good deal of respect for my profession and for those of my profession who sit on the Bench, but I do not think that the case reflects all that much credit on some of the things that were said in it.
There are grave doubts whether the proceedings should have been brought in the first place. I echo what has been said from each side of the House—that it would be right that in future the Attorney-General should have the power to say whether a Government Department should bring proceedings of this kind. Certain hon. Members have 73 said—and it has not been contradicted—that, had the Attorney-General been asked, he would have refused his consent. From my own independent reading of the case—and I have already made clear where I stand on it—I would hope, given the respect with which my right hon. and learned Friend is held in this House, that we should all like to believe that he would not have given his consent had he been asked.
I should like to mention some of the crucial points in the case. I do not want to weary the House, because the hon. Member for York (Mr. Lyon) has already given his account, but it is difficult to have a great deal of confidence when one finds that an attempt is made to draw what appears to be a quite arbitrary distinction between a reporter looking at the documents which have been read out in court for the purposes of disseminating them through a daily newspaper and someone looking at them for the purpose of disseminating them, or some part of them, through the medium of a legal periodical. That seems to me to be a distinction entirely without any merit at all. It is very sad that that kind of distinction should apparently weigh heavily with the courts at the present time.
I do not think that any of us is saying that there are not cases in which the confidentiality of documents disclosed in legal proceedings should not be preserved. My view of the case would be quite different if these were some of the hotly contentious documents that had never been made public. Once one undermines the principles that lie beneath discovery, one is on very treacherous ground indeed. But I should be very concerned if we did not deal with some of the matters raised in the other place by an amendment proposed by Lord Gifford that would, in effect, give a statutory backing to the proposition that documents lose their confidentiality once they are read out in open court and may thereafter be disclosed with freedom. I regret the need for that to be put in a Bill. I should like to think that it is such a common-sense proposition that we need not spell it out. But that manifestly is not the case, so I am inclined to the view that probably we shall have to give serious consideration to doing so.
I support what the hon. Member for York said about how unfortunate it is that, if cases go on appeal, a fundamental rule should apparently be broken—that is, the rule that the appellate court is bound by findings of fact made at first instance. If I were Miss Harman, I should bitterly resent some of the observations suggesting that the documents were not read out in open court when it was always agreed by the Home Office that they were.
Without wanting to go too far, I have to say that one of the regrettable aspects of the case, in each of the courts in which it was heard, is that, while the Home Office was bending over backwards to say that it was in no way impugning the lady's good faith and that it was done just to clarify the law—if that were the intention, I can only say that we know what the road to hell is paved with—it certainly did not achieve that objective, or at least not in a way that any of us would have wished. The Home Office having made that point of view so clear, it was most regrettable that apparently judges in both courts that heard the case should have rather resented, from the terms of the judgment, that the Home Office had ever made the concession. The judges made it fairly clear that they rather wished that the Home Office had not done so.
It is not a happy case but it is a very fitting backdrop to the debate, because it makes clear to us that we have 74 an obligation to ensure that the Bill eventually leaves this House with as many i's dotted and as many t's crossed a,s possible, so that the certainty that we want to find—and that has been submerged by centuries of decided cases—is at last achieved. As part of our duty to a free society, we owe it to those who operate in the media that they should know how far they can go, and that those people who are officers of the court should know what they are doing when they take on the implied undertakings that solicitors take on when acting in judgment.
All of us who operate in the courts and all of us who take an interest in the courts have a right to know where we stand on this fundamental matter I hope that we shall manage, in the course of the debates on the Bill, to clarify the law, so that we can all feel proud of what we have done, and so that the Bill, when it becomes an Act, can stand as a monument to our good sense for many years to come.
§ Mr. Donald Anderson (Swansea, East)
I echo the closing flourish of the hon. Member for Putney (Mr. Mellor) and join him in expressing the hope that when the Bill comes back to the House—indeed, when it leaves the House—there will be a greater degree of certainty for all involved in the interpretation of this difficult branch of the law.
I recall an eminent professor who prefaced his magnum opus with the words:To my wife, at last, at long, long last".It is in the same spirit that one views the Bill. At last there is an attempt to put into effect the recommendations of the Phillimore committee, and hence to clarify the law of contempt and to deal with related issues which have arisen over the six or seven years which have passed since the publication of the report.
This is not a party issue. On most matters that have already been canvassed in the debate it is clear that experienced and reasonable people can take different sides. The issues are often finely balanced. The proper aim is to increase certainty in this area of the law. Despite the Lord Chancellor's protest at the beginning of the Bill's passage in the other place, to the effect that he did not intend to die in any ditches over the Government's stand, I was disappointed that he did not make any substantial concessions. Other hon. Members have mentioned the apparent concession that was made, namely, the addition of the word"substantial" to clause 2(2). That provision states:The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.That word was added with the Lord Chancellor's proviso that in his view it made no difference whatsoever. He implied that if certain eminent people wanted it, they should have it. That is the tone of that concession that the Government made in the other place.
Although there was weighty and learned argument on a whole range of other issues, that was the only concession and it was made in the spirit that I have suggested. The Bill defines the frontiers, but it does not expand them. As has been said, it is a question of where to draw the line between conflicting public interests, namely, freedom of expression, a free press and a fair trial.
75 The Government have probably come down on the right side on most of the controversial issues. However, I shall turn to those areas in which they have failed to do so or in which further consideration in Committee is needed.
It has been asked whether the institution of proceedings should require the consent of the Attorney-General. My right hon. and learned Friend the Member for Dulwich (Mr. Silkin), who held that high post for five years, gave his weighty opinion. The Attorney-General has a reputation for independence. Even if Pandora's box were opened and if all the subordinate judicial bodies were to be included, the Attorney-General's workload would not substantially increase. Such a provision would avoid vexatious proceedings and would act as a useful sieve. It would also allow a degree of consistency and would establish a useful policy line.
I was impressed by what my right hon. and learned Friend said about distinguishing between the need for the Attorney-General to intervene in criminal matters and for proceedings not to be instituted by Government Departments—as in the Harman case—without his consent, and civil proceedings. Indeed, he argued that civil proceedings should be seen in a different light. That is a weighty consideration, which I hope the Government will consider. I also hope that in Committee the Government will revise their views.
The hon. Member for Putney referred to clause 11, which is relevant to the institution of proceedings. It gives a power to magistrates to commit a person into custody for one month or to fine him £500, or both. That is contrary to the recommendation of the Phillimore committee that the limit should be seven days or a £20 fine.
§ Mr. Martin Stevens (Fulham)
I intervene as a magistrate. Does not the hon. Gentleman agree that the concept of contempt for discourtesy to magistrates is wrong-headed? For many centuries, there has been a splendid tradition in magistrates' courts that defendants can address magistrates in whatever robust language they might choose. The House will know that magistrates can deal with such abuse in a dignified and detached manner. It would be a shame if some element of self-importance were to begin to enter the lay magistracy.
§ Mr. Anderson
I think that I agree with the hon. Gentleman. I had been about to quote what the Master of the Rolls said in his book"The Due Process of Law", which was published last year—Insults are best treated with disdain—save when they are gross and scandalous".Although I am confident that the majority of magistrates will adopt the view expressed by the hon. Member for Fulham (Mr. Stevens), I take the view that a minority are impressed with a sense of their own importance. They are likely to consider the limits of one month or £500. Those limits are vastly in excess of the committee's recommendations. Even if one were to allow for inflation, the £20 found in 1974 would amount only to £50. I hope that it will be accepted that £500 is excessive when compared with the mischief involved.
There is a possibility of injustice when magistrates are prosecutors and judges in their own cause. Clause 12 appears to envisage summary or speedy judgments. In relation to the provision of legal aid, clause 12(2) states:the court may assign for the purpose any counsel or solicitor who is within the precincts of the court.76 Injustice could well arise. However, I am sure that the Committee will consider that provision carefully.
I turn to the second important issue, namely, the point at which the proceedings should be active for the purpose of the strict liability rule referred to in clauses 1 to 6. Again, this is a finely balanced matter. There is a danger that if there were a bar after the warrant but no arrest, proper comment, such as that made on the Lucan case, would be gagged. Indeed, there is a danger that those who could assist the police in the apprehension of fugitives from justice would be muzzled. The line must be clearly drawn. When it is stated that a person is wanted by the police and that a warrant has been issued for his arrest, there must be a point at which press comment can indicate that the person is dangerous but does not go into such further and better particulars about his background as to make the possibility of a fair trial impossible.
For example, after the escape from Brixton of Mr. Tuite, Commander Duffy referred to Mr. Tuite asa prominent member of the IRA and a public enemy".He referred to Mr. Tuite's possible escape from Britain asa major coup for the IRA".He described Mr. Tuite in the following way:Dedicated and dangerous … I accuse him of having put bombs in central London … I cannot outline enough how important he is in the terrorist scene affecting the country at this time.Such comment goes well beyond the comment necessary in the apprehension of someone who is apparently a dangerous criminal. The Government have probably come to the right conclusion. They have set a marginally earlier time than the Phillimore test, namely, at the point of arrest without warrant or issue of warrant. Allusion has already been made to the disgraceful behaviour of the police following Sutcliffe's arrest.
On the civil side, one knows of the dangers in the past, particularly in defamation proceedings, of issuing a writ immediately and allowing it to snore soundly for many years thereafter, thereby gagging comment. This provision for the setting down of the trial appears to cut out the absurdities of the old gagging writ, which was wholly unsatisfactory.
I note what the hon. Member for Putney said about there being no need for a time limit in civil proceedings. I am sceptical about that, but no doubt in Committee the hon. Gentleman will be able to pursue that argument.
The sub judice list suggested by Sir Robin Day appears to have considerable administrative difficulties. It also poses difficulties for the provincial press, which cannot afford the battery of legal advice available to the national press.
§ Mr. Nicholas Baker
As regards civil litigation, does the hon. Gentleman agree that there is danger—this is where I disagree with my hon. Friend the Member for Putney (Mr. Mellor)—of documents exposed or produced in the course of discovery being publicised? Surely that is a ground for the provisions of this legislation to apply to civil litigation.
§ Mr. Anderson
If a document were passed to a litigant's legal advisers on discovery, it would still be within the protection of the court. The Harman case related to the reading out of a document in public. It may be that I have missed the point made by the hon. Gentleman. I am not sure of its relevance to the point that I was making.
I turn to the relevance of strict liability to appellate jurisdiction. Currently there is a grey area or no man's land 77 from the time of judgment until appeal. Thereafter, the bar begins from the time that proceedings are commenced. Lord Salmon, who has already been quoted, said that he thought that it was inappropriate. I concede that the point may be met in part by clause 2(2). It is unlikely, in relation to a judge, that there will be a"substantial risk" orthat the course of justice in the proceedings in question will be seriously impeded or prejudiced.There will be a heavier burden in relation to appellate judges.
Although there are dangers, particularly in relation to sentences in criminal matters, there may be some merit in having some public discussion for judges, who to a certain extent are cloistered. Judges should be made aware of evolving public attitude to certain matters. For example, one thinks of the case of the brothel keeper in south London, which reached the headlines last year, or the case of the two sisters accused of murdering their violent father. So long as the full facts are made clear, public opinion filtered through the press should perhaps have an effect on the views eventually taken by appellate judges.
I am impressed by the arguments in favour of attempting to set out a schedule of the bodies within the scope of the jurisdiction. My right hon. and learned Friend the Member for Aberavon (Mr. Morris) wondered about the parentage of the phrase in clause 7:proceedings of all inferior courts, tribunals and bodies (however described and whenever established) which are constituted by law and exercise any part of the judicial power of the State.I understand that that was obtained from a judgment of Lord Scarman. But, that having been said, it does not make the problem any clearer.
On Second Reading in the other place the Lord Chancellor said:our intention is that editors should know so far as possible exactly where they stand.The refusal by the Government to set out a schedule is clearly inconsistent with that aim. There are difficulties, as set out by the Lord Chancellor, but I am impressed by the fact that his legal advisers are uncertain about what the status of local valuation courts will be when the Bill becomes an Act astheir functions are administrative rather than judicial." — [Official Report, House of Lords, 9 December 1980; Vol. 415, c. 661–3.]Accepting the problem, what about those bodies which are mainly administrative but which sometimes perform judicial functions, such as rent tribunals? Are they within the ambit of the clause only when acting judicially?
That is not helped by the interpretation clause, which provides:'court' includes any tribunal or body exercising the judicial power of the State".Does that mean a court which is actually exercising the judicial power of the State or one which has among its functions that of exercising the judicial power of the State? It seems unfair to impose such a burden on editors when the Government are not prepared to assist. This can be done by a schedule which allows flexibility and ease of amendment.
Are not the Government impressed by the fact that when the matter of a schedule of the relevant judicial bodies was forced to a Division in the other place, two Law Lords were prepared to act as Tellers? I refer to Lord Diplock and Lord Fraser of Tullybelton. Are the Government not also impressed by the fact that Lord 78 Fraser was prepared to have a cockshy at setting out a schedule without the resources available to the Government?
I shall say nothing about the Harman case, save that it appeared to be a considerable error of judgment to allow that case to be brought in the first place. That was recognised by the Home Office when it tried to negotiate its way out of it at the last moment. I feel confident that the Attorney-General, had it been brought to his attention, would not have sanctioned the bringing of that case. That is another argument for at least insisting on the authorisation of the Attorney-General being required.
I turn now to clause 9—"Use of tape recorders". I note what is said in paragraph 42 of the Phillimore report regarding tape recorders. I am not wholly convinced by this proposal. The tape recorder is the modern equivalent of the shorthand writer. It is not liable to make the business of the court any more difficult. Tape recorders are not bulky devices. If there is to be this restriction on the use of tape recorders without the authorisation of the court., why are the Government not prepared to give publishers the same defence in respect of tape recorders as they are given in clause 3(2)? This point was not made in the other place. I hope that by the time the Bill reaches Committee the Government will have considered giving publishers the same defence.
§ 8 pm
§ Mr. Keith Best (Anglesey)
Unlike one hon. Member, I do not propose to embark on an attack on a member of the judiciary, not least because hon. Members, as; legislators, are ultimately responsible if a member of the judiciary, acting within the law, comes to a conclusion with which we disagree. It is incumbent upon us to ensure that we have the law correct if in any case we feel that a member of the judiciary has acted contrary to the principles that we want to see enshrined in the statutes.
I share the misgivings of the hon. Member for York (Mr. Lyon) about the Harriet Harman case. Considering that case, not as a member of the legal profession but as a member of the general public, it becomes almost impossible to try to defend the ultimate conclusion that was drawn. How can it be comprehensible to a member of the general public that when documents are read out in court—they were available for anybody who might have listened to the proceedings—a person is held to be in contempt if he or she publicises the documents in whatever form thereafter? That is impossible for any member of the general public to understand.
What concerns me about the Harriet Harman case is that it throws the law of contempt into contempt. We must be the guardians of ensuring that no legislation that might be held up to ridicule by the general public reaches the statute book. I will say nothing more about that case, except that I hope that we shall amend the Bill to deal with that sort of situation before it returns on Report.
I followed carefully what the right hon. and learned Member for Dulwich (Mr. Silkin) said in expressing his disappointment that this subject had not aroused greater support and interest among right hon. and hon. Members. The House filled up a short while ago. By a remarkable coincidence, I always seem to speak to a virtually empty Chamber. Prior to my rising the House seems to empty. That may have something to do with the detail or delivery of my speeches. It is something to which I shall have to 79 pay special attention. However, I am grateful for the attention of the hon. Member for Swansea, East (Mr. Anderson).
The Bill should have much wider interest, not just among lawyers but among all hon. Members and people outside the Chamber. We hope that it will fundamentally secure the relationship between the rights of individuals and the freedom of the press, so that both know exactly where they stand.
My hon. Friend the Member for East Grinstead (Mr. Johnson Smith) said, seemingly with some chagrin, that he was surrounded by legal luminaries. I assure him that with my knowledge of the law I am more like a Belisha beacon than a steadfast light. Although he is not a lawyer, that does not invalidate his excellent speech.
Some interest has been shown in the Bill from outside bodies. London Weekend Television sent a massive opinion to hon. Members. We are told that the document was commissioned and has come from learned counsel. It is 21 pages long and therefore must be the envy of many of us who practise at the Bar but do not churn out documents of such magnitude or content.
I have been listening carefully to the speeches to find whether the author of this legal opinion is in the Chamber, but so far I have not heard anything that was in such proximity to what is contained in the opinion as to give me evidence of that. There is a consensus in the House that there is a need for the law of contempt. No one has said that we should sweep away that law. There is a need for it to protect the individual. That must be our greatest concern.
Several hon. Members referred to the need to achieve the correct balance between the rights of the individual to secure a fair trial and the freedom of the press to report the proceedings of the trial. I shall address my remarks to the question whether I feel that the Bill has that correct balance, accepting the great difficulty faced by the promoter of a Bill in trying to effect that correct balance. There is no doubt that if the Bill is enacted it will be welcomed broadly, if it clarifies the law. I do not intend to rehearse the previous law and the difficulties that have been manifest under it for so many years.
When I intervened in the Attorney-General's speech I suggested that there was a great need for certainty. I meant that, and other hon. Members have referred to it. We must have an Act to which people may refer to enable them to come to a clear conclusion about their rights and liabilities and the dangers they face under the law of contempt.
We have seen a number of anomalies in the past—I refer to two of them. The first is the case surrounding the Exclusive Brethren, when five judges decided that the programme was a contempt and five judges decided that it was not. How on earth can any member of the general public discover where his rights and liabilities lie in such a situation? The hon. Member for Swansea, East tossed a coin in an explanatory gesture. No words can explain it better.
My second example is the Kray trial, which is referred to in the opinion. It states:At the first Kray trial, the judge refused to prohibit publication of evidence undoubtedly prejudicial to the defendants at their second trial on separate charges. At the first Poulson trial, the judge prohibited publication of certain evidence for the very reason rejected in Kray.80 It goes on to refer to the 1976 case of Border Television whichwas fined for publishing details of a defendant's 'guilty' plea, on the ground that this might prejudice the jury on the charges he was contesting—despite the absence of any judicial order.I hope that the hon. Member for Swansea, East will not criticise me if I do not follow the example that he quoted of the brothel keepers. In my recollection the report of that suggested that a Member of Parliament might have been involved. I do not think that that would help.
§ Mr. Best
I am grateful to my hon. Friend. The matter has been clarified to my complete satisfaction by the intervention of my hon. Friend. I am glad that we have managed to do that, if nothing else.
I have some misgivings about the suggestion that it should be for the Attorney-General to decide whether to bring proceedings. I view such proposals with caution. If it is difficult to draft proposed legislation, or if we are concerned about the way in which it will appear on the statute book, we should not say that because it is difficult to put what we want into a Bill we will shift responsibility on to the shoulders of the Attorney-General, confident that he will come to the right decision and that even if he does not he will be answerable to the House.
That is not the right way to do it. If we are not capable of putting into legislation rights and duties under the law of contempt, we should not try to escape from the responsibility by placing the burden on the shoulders of the Attorney-General.
§ Mr. Christopher Price
Does not the hon. Gentleman take too lightly the answerability of the Attorney-General to the House? If we put him in charge of all contempt prosecutions, we can make him explain to us his policy in such prosecutions. The alternative is the sort of situation that the hon. Gentleman referred to in relation to the Scientologists and other cases, because there is no organisation on the side of the judges that can perform that function.
§ Mr. Best
I take the hon. Gentleman's point. I have complete confidence in the present Attorney-General, but we should not have such matters decided by the length of the Attorney-General's foot, or whatever other part of his anatomy he may employ in coming to a decision. If matters were left to the Attorney-General, one incumbent might take one view and another a different one.
§ Mr. Arthur Davidson (Accrington)
But that happens anyway in all cases in which the Attorney-General has to use his fiat. Over the years there has been no great criticism of the way in which Attorneys-General have used their fiat.
§ Mr. Best
I take that point, too. However, if we are capable of putting a matter succinctly into legislation, we should not have to go to the Attorney-General. It would be far better if members of the public were able to pick up a book of statutes and read therein where their responsibilities and liabilities lie, without having to come here to listen to the mood in which an Attorney-General finds himself.
I know of no criticism of the way in which Attorneys-General have issued their fiats, but I am concerned that in contempt matters, which are potentially highly tendentious 81 and in which summary justice may be meted out, people should be able to discover their rights by looking at the relevant statute, rather than in any other way.
When dealing with any law revolving around strict liability we must take great care to preserve the likelihood of justice for a potential defender. That is why I am concerned about the burden of proof. It is unfortunate, to say the least, that we should be placing strict liability on the statute book and casting the burden of proof back on to the shoulders of the defendant to establish that effectively there was not contempt because he did not know or had no reason to suspect that relevant proceedings were active. That causes me considerable concern.
Clause 3(3) states:The burden of proof of any fact tending to establish a defence afforded by this section to any person lies upon that person.I hope that my hon. and learned Friend the Solicitor-General for Scotland will explain why it was not considered that the matter could be dealt with by enshrining into clause 2 words such as"A person should be culpable of contempt if, knowing or having reasonable cause to believe, that proceedings were active" and so on. In the matter of criminal contempt that would place the burden squarely on the prosecution to establish that a defence was not raised. It would leave the defendant free and he would not have to go to great lengths to try to establish an innocence that probably already exists.
A number of hon. Members referred to the question of when proceedings become active. The matter was dealt with in paragraph 123 of the Phillimore report. My right hon. and learned Friend the Attorney-General read out the paragraph and dealt fairly with the point, because, I suspect, he knew that a number of hon. Members would raise it. The committee concluded:the right point in England and Wales is the moment when the suspected man is charged or a summons served".My hon. Friend the Member for Putney (Mr. Mellor) said that he was satisfied that the Phillimore recommendation could not be adopted and that the Bill had got it right, because of the Sutcliffe case. I must take issue with my hon. Friend. I think that most people, both inside and outside the House, agree that what the police did in that case was wholly wrong, but one instance does not invalidate the Phillimore conclusion that proceedings should become active at the time of arrest or when a man is charged.
There is a great need for certainty. My hon. Friend the Member for East Grinstead quoted from the submission of the Independent Television Companies Association Limited, which is a precis of the counsel's opinion to which I referred earlier. The submission draws attention to the difficulty that a member of the press might have in trying to establish whether a suspect who had gone to a police station had been arrested or was assisting the police.
One would not level charges of impropriety at the police if, when a journalist telephoned the police and asked whether Bloggins had been arrested or charged, an inspector replied"I am sorry. We will not tell you anything about it". In many circumstances one would not criticise the police for that. It is not their function or duty to assist the press in that manner. However, what criticism would there be of the police if the Bill became law and a police officer refused to tell a member of the press what had happened to a suspect? If that member of the press published a report, he might find himself in jeopardy of criminal contempt.
82 It may be said that such a person would be protected, because he would be able to say that he had taken all reasonable care. Would he? I am not satisfied that it is clear that in those circumstances he would be regarded as having taken all reasonable care to discover the status of a suspect. Consequently, subject to further argument, I am still persuaded that in the interests of certainty, bearing in mind that the public will read the Bill when it becomes an Act, there should be a more definite time. As the Phillimore committee suggested, it should either be the time of arrest, which is a clear action, or the time when a man is charged.
I take the point of the hon. Member of York that this is not a problem because arrest and charge are almost coterminous, or there is only a small lapse of time between the two. I noted the hon. Gentleman's condemnation of the Royal Commission on criminal procedure. I hope, however, that he will be sufficiently generous to agree with me that many of the problems and much of the concern enumerated by hon. Members would be assuaged if there were a definite time between the arrest and the charge which was mandatory on the police. That might deal with many of the problems. It would persuade me more to the line that my right hon. and learned Friend has taken in the Bill.
I take the point that clause 4 will preserve the right of a member of the press or anyone else to publish proceedings. This is fundamental to the freedom of the press. I am not suggesting amendments that might be more properly raised in Committee, but it might be better if clause 4(1) proposed that a person was not guilty of contempt of court under the strict liability rule in respect of a full, fair and accurate report. At the moment, the clause refers toa fair and accurate report".In my experience a great disservice can be done when members of the press, for whatever reason, only partly report cases. I think especially of sentencing. All hon. Members believe that an element in sentencing must be the deterrent effect. If we are to have reports of proceedings pour encourager les autres—that is how most people will have access to the way in which the courts view particular crimes in sentencing policy—it is essential that members of the public should know the main factors that were taken into account by a judge or magistrate in coming to a conclusion that a man should be dealt with in a particular way.
I recall reading a newspaper report of a person who had come before a court. The report said that the court heard that he was receiving supplementary benefit and he was placed on probation. I understood that the fact that a person was receiving supplementary benefit was not critical in terms of the question whether he should be placed on probation. I wonder how many members of the public, reading that report in a cursory way, would conclude that if a person were receiving supplementary benefit he would automatically be placed on probation. It is important that members of the public should not be misled unwittingly by a point of omission rather than of misrepresentation. There is nothing in the Bill that deals with that.
I welcome clause 4(2). It is important, from the point of view of certainty and clarity, that members of the press should know where they stand. I hope that orders made: under clause 4(2) will ensure that this is the case.
83 Clause 8(2) refers to the right to publish matters concerning juries' deliberations so long as the actual case and the members of the jury or, indeed, the defendant are not identified. This is important. When we look at our judicial system now and again to see whether it is carrying into effect the aspirations of many of us, we have to examine the basis of that system—the right to jury trial—and to see whether in these days juries are capable of coming to the conclusions that we should expect on hearing the evidence. One can speculate about that only through access to the manner in which certain juries have come to a conclusion, although I endorse the confidentiality that must be given to particular proceedings.
In court only recently one of my colleagues at the Bar said that he had appeared in a case in which a trial had proceeded for three days before a member of the jury passed a note to the judge saying"I am almost stone deaf. I have hardly heard any of the evidence. Does it matter?" In those circumstances, one has to look carefully at the whole question.
Many of the clauses need to be examined carefully, although it may be more proper that that should be done in Committee. In conclusion I would only say that I endorse thoroughly clause 9(1)(b) that it should be contemptto publish a recording of legal proceedings".If, however, there is to be a contempt, why is there the need in clause 9(1)(a) to prohibit the use in court of a tape recorder or the bringing into court of a tape recorder? I would have thought that this was an essential adjunct for a member of the press to ensure that he had an accurate report of the proceedings. I believe that clause 9(1 )(a) is probably tautologous in the light of clause 9(1)(b).
I hope that these matters will be taken into account before the Report stage. It is critical that we should get the law of contempt right. It should be phrased with such a degree of certainty that it will be comprehensible to the vast majority of people. If we fail to achieve that, we shall find that the law of contempt itself is held in contempt by members of the public. That does this place no good. It does our law no good. Ultimately, it serves to destroy society.
Mr. Deputy Speaker (Mr. Bryant Godman Irvine)
The shortest of the last four speeches took 21 minutes. Five hon. Gentlemen want to make their contributions before the Front Bench spokesmen make theirs.
§ Mr. Christopher Price (Lewisham, West)
I do not know whether it is permissible for non-lawyer to take part in the debate. However, I want to make a Second Reading rather than a Committee stage speech. I am against the Bill as it stands. I hope that some of my hon. Friends will vote against it. I shall explain why I believe that the Bill should not be put on the statute book at the moment.
The Bill has been drawn up by lawyers to deal with what is fundamentally a social problem, rather than a legal one. The Bill is about open government. It is about how much the public are allowed to know about the High Court of Justice. In issue after issue it deals with the problem for the convenience of lawyers, rather than for the convenience of the public. For that reason, unless it is 84 substantially altered or the Solicitor-General for Scotland gives us hope of change, it is not a good enough Bill to be given a Second Reading.
The only reason why the Bill is before the House is that the Government lost at Strasbourg. That is not a party point. The Government's Law Officers brought a case, which went to Strasbourg, and that forced the Bill to be introduced. Instead of the opportunity to open up the courts in much the same way as we have opened up Parliament being seized, the opportunity has been taken to restrict the freedom of the press.
I shall explain why I believe that the openness of the courts should be analogous to the openness that we now have in this Chamber. The authority for that goes back to the first great case of Wason v Walter, as a result of which the House first had to legislate on the freedom of the press. Lord Cockburn said of that case:to us it seems clear that the principles on which the publication of proceedings of the Courts of Justice have been held to be privileged apply to the reports of Parliamentary proceedings.Recently, in The Sunday Times case, Lord Denning said of parliamentary proceedings—and the double standards of Lord Denning are clear for everyone to see:Whatever comments are made in Parliament, they can be repeated in the newspapers without any fear of an action for libel or proceedings for contempt of court.Other judges have disagreed with that, but that is Lord Denning's view. Broadly, as I see it, Lord Denning's view is that there must be open government in Parliament and that everybody must hear what is said in Parliament, but in his court he intends to re-interpret the rules whenever he wishes so that the openness of the courts is subject to his whim.
The openness of the courts should be analogous to the openness of Parliament. I do not wish to harp on the Harriet Harman case, because it was described well by my hon. Friend the Member for York (Mr. Lyon), but one must remember that Lord Denning talked about wicked men and people who might seek to make changes in Government policy. That was against the backdrop of the Home Office covering up and being desperate not to allow Parliament or even Ministers to know. My hon. Friend the Member for York told us that the documents discovered in the Harman case were a surprise to him—and he was a Minister of State at the Home Office at the time. The cover-up by the Home Office has been backed up by every device that the law can find in order to achieve a degree of closed justice in the courts.
In bringing forward the Bill the right hon. Gentleman could at least have produced some sort of amendment to the Harriet Harman situation. To bring forward the Bill, particularly in view of what Lord Hailsham said in the House of Lords, repeating Lord Denning's completely untrue statements about Harriet Harman—
§ Mr. Deputy Speaker (Mr. Bernard Weatherill)
Order. The hon. Gentleman knows that we can have no criticism of judges.
§ Mr. Price
I was criticising the judgment, not the judge. I studied the Selwyn Lloyd ruling very carefully, and I shall seek to stay within it. Lord Hailsham, in his legislative rather than his judicial capacity, said in the other place that Harriet Harman broke a promise. That is what the case was about. At no time was there any allegation from the Home Office that Harriet Harman broke a promise. That allegation simply came from a part of Lord Denning's judgment. I do not criticise that 85 judgment; I simply state it. If we want a contempt of court Bill that will produce the sort of openness in our courts that we are striving after in Parliament, it will have to be a very different Bill from this measure.
I do not want to go over old ground, but there is one allegation that has not been mentioned and that I hope will be answered by the Solicitor-General for Scotland. Harriet Harman was criticised for conduct unbecoming an officer of the court, and I am told that all the Home Office documents—the psychologist's daily reports on the responses of prisoners, which were part of the evidence that might have gone forward—were destroyed by the Home Office after the proceedings.
I say that simply to present the background to the situation. The Government are operating as closed a system as they can of the only access that the public have to what is going on, that being the openness of the courts of justice and of this House of Commons, and our newspaper, television and broadcasting systems. Far from making it easier for the newspapers and other media to inform the public about what is happening, by codifying the law and thus preventing any natural development of the law, as happens from time to time, especially with the consent of the Attorney-General, we are freezing the law in its present arthritic state.
I come to what I consider to be a crucial amendment by means of which the Bill could be made more acceptable. I hope that the Attorney-General will take his fiat over the whole of contempt proceedings. When my right hon. and learned Friend the Member for Dulwich (Mr. Silkin) was Attorney-General, he went into court in important and crucial cases, such as the Gouriet case, and said"I am not answerable to you, Lord Denning. I am answerable to the House of Commons." That answerability to the House of Commons strengthened him and enabled him to use his powers of Attorney-General and take into account the public interest as expressed by the House of Commons. We must allow the Attorney-General some control over proceedings under the Bill. I do not trust judges—Lord Denning or anyone else—to interpret the Bill in the spirit that the House would wish. I am certain that they would switch back to the spirit of the Denning-Harriet Harman judgment, which I very much hope we can overturn here.
We must have some control over prosecutions. The Attorney-General should be able to decide that he will not prosecute, because the breach is in the public interest, as happened in the jurors matter. I do not say that because I particularly like Attorneys-General. I have crossed swords with many of them. However, they are answerable in the House for their actions.
The Bill does not deal with the central issue of openness with which it all started—the scandal of the Distillers company trying to gag The Sunday Times over thalidomide. The Bill takes the minimum of the Phillimore report and throws in some provisions over jurors stemming from the Thorpe case, but it ignores the Harriet Harman case. It is therefore not worth passing in its present state. Last year the Government scrapped the Bill dealing with the protection of official information because they realised that it was out of tune with modern requirements. They should do the same with the Bill. If they do not, and if I am on the Committee, it might prove extremely difficult to get the Bill through.
§ Mr. Ivan Lawrence (Burton)
I hope that the hon. Member for Lewisham, West (Mr. Price) will forgive me if I do not follow him in pursuit of his hobby horse. He takes an odd view of our system if he denies that our courts are open.
The right hon. and learned Member for Aberavon (Mr. Morris) began by making an important point. Much that should be done for law reform has not been done because of the limitation of our legislative process. We must consider improving the process. A string of matters requires legislation, not only because those who sit on Royal Commissions will be less inclined to do so if we ignore their findings but, more importantly, because the law needs to be reformed, particularly in an age when society and its norms are changing rapidly. Steps should be taken to reform the law on obscenity, the rules governing our criminal procedure, and so on.
I also agree with the right hon. and learned Member for Dulwich (Mr. Silkin) that it is a pity that the title of this measure is Contempt of Court Bill [Lords]. The title masks the issue that we are debating. We are talking not about dry, legalistic technicalities but about something far more important. In so far as the Bill makes clear and certain what is vague and confused about how the press may handle the criminal process, everyone welcomes it, even, I suspect, the hon. Member for Lewisham, West. The debate has mainly been about whether and, if so, how far, the press should be given more or less freedom to publish facts on or surrounding court proceedings.
There may be a difference of great importance between criminal and civil justice. In the criminal system, the liberty of the individual is at stake. I propose to address myself mainly to the effects of the Bill on the criminal law.
In a perfect world the Bill would not be necessary. We could rely on the press always to exercise restraint and judgment, never to say anything that could prejudice a criminal trial and always to be wise in publishing facts and opinions in which the public had an interest.
Unhappily, we do not live in such a perfect world. We live in a world of mass circulation newspapers and periodicals, hungry for readers and desperate for survival. We live in a world where innuendo of a sexual and corrupt kind—and sometimes not just innuendo—sells copy as no statement of goodness can. How often does the right of the public to know mean the right of the public to know something good about somebody? We live in the world of William Hickey and of Private Eye. We in Parliament must therefore take care, for we are the protectors of the liberty of the individual every bit as much as we are the protectors of the right of the public to know—and perhaps even more so for the individual.
What concerns us here, therefore, is how far we should allow the press, television and radio to go in reporting details of trials and of circumstances leading to trials where that right might conflict with the liberty of the subject. It has been said—indeed, my right hon. and learned Friend the Attorney-General has said it—that what we are concerned with here is justice, as though press reporting of impending or current court proceedings were a significant factor in achieving justice. But it is not. Justice is what goes on inside the court. Justice is the interest of society as presented by the prosecution, weighed against the interest of the accused as presented by the defence. Justice in a particular criminal case cannot be 87 done through what the public reads or hears outside the court. But justice can be denied by what witnesses, jurors and even judges read, hear or see while a case is in process.
The right hon. and learned Member for Dulwich said that he believed in the primacy of the right to free speech, so long as it was consistent with justice. But the two are not to be weighed against each other in a criminal trial. What a reporter says in the use of free speech while a case is in process is of incomparably less importance than the rules of justice which protect both society and the accused inside the court, leading up to the court case or after the first court and before the appeal court. In the context of the criminal trial, the right to free speech in the sense of the right of the press not to be muzzled is all but irrelevant.
If I am right in that view, it follows that we should permit publication only of such matter as will not, or is not likely to, interfere with justice. It also follows that we should be careful before extending the right to publish beyond the confines already worked out over the years as appropriate to the cause of justice.
§ Mr. Christopher Price
The hon. Gentleman referred to criminal trials. But does he not agree that most of the well-known prosecutions for contempt brought in recent years have not been cases in which the liberty of an individual has been at stake? They have concerned either civil cases or criminal cases involving not an individual but a company. In fact, contempt has substantially been used not to protect individuals, but to protect powerful bodies from being exposed.
§ Mr. Lawrence
What the hon. Gentleman says may be correct, but I am addressing my remarks to the rather narrower confines of the effect of the Bill upon criminal trials. I wish to ask how the Bill measures up to the test that I have applied in the context of criminal trials.
First, a clear statement of the rules which will prevent injustice caused by inadvertence will protect the press, and is to be welcomed because it does not unfairly harm the accused.
Clause 3 then provides a defence where no malice or negligence exists. That is fair to the press, and it is to be welcomed because it will not harm the accused.
Clause 5, which gives a defence to discussion in good faith of matters of general public interest if the prejudice is merely incidental, is fair to the press and is to be welcomed because that does not unfairly harm the accused.
Clause 6, as the Attorney-General pointed out, is a complete answer to fears that the Bill extends the general liability of the press in any way. That, too, is to be welcomed, because that will not unfairly harm the accused.
Contemporaneous proceedings may be reported fairly and in good faith under clause 4 unless the court rules otherwise. That protects the press and is to be welcomed because it will not unfairly harm the accused; but there are three observations on that matter that I wish to make.
First, I think it is necessary for the Attorney-General to give some direction to the prosecution to alert the judge in appropriate cases, otherwise it will be very unfair to judges. It happens that judges are not told everything, and it might be wrong that they should be told everything about 88 an accused and pending trials. Therefore, they should be alerted, and that requires some action on the part of the prosecution.
Secondly, this debate might be subtitled"The Contempt of Court Bill—or How I came to Respect and Admire Miss Harriet Harman". I do not know the lady—except to smile at. I make no comment upon her proceedings. But I think that it is clear that the predominant view that we have heard in this Chamber today is that if clause 4(1) does not cover her situation, it probably ought to cover it. Perhaps my right hon. and learned friend will look at that matter.
Thirdly, although there is a good argument for allowing there to be accurate reporting by a tape recorder, there is a better argument for removing the distraction to juries and witnesses of the constant clicking and clacking that some machines in court would introduce. I think that that answers the allegation of tautology which was made by my hon. Friend the Member for Anglesey (Mr. Best).
There is so little that the press needs to fear from this Bill and so much is it protected by it that there is little about which it can complain. But there are some areas of major contention. I should like to deal with three of them.
The first area is the time at which criminal proceedings become active and, therefore, subject to contempt of court proceedings. I agree completely with the Government placing the time of activity at the time of arrest, if there is no warrant, or, if there is a warrant, at the time the issue of that warrant. I agree with all the reasons—I shall not repeat them—that have been given for that by my right hon. and learned Friend and others, particularly the example of the sort of thing that happened in the Sutcliffe case, whether or not the police were to blame. How can it fail to prejudice a trial if the time between the arrest or the issue of a warrant is used by the press to throw dirt or some accusations against an accused person? One thing is certain and that is that the press is unlikely to speak well of the man.
The matter of an accused person for whom there is a warrant of arrest going abroad has been raised. I think that my hon. Friend the Member for East Grinstead (Mr. Johnson Smith) said that he thought that that was unjustified. Certainly my hon. Friend the Member for Putney (Mr. Mellor) said that.
§ Mr. Delwyn Williams
Will my hon. Friend deal with the situation in which a reporter—perhaps a junior reporter—rings up a local police station and asks whether Mr. X, a prominent public figure, has had a warrant issued for his arrest or has been arrested without warrant, and he is told by a junior secretary in the police station that she does not know? The junior reporter may be right and the prominent person has been arrested. Will my hon. Friend deal with this practical dilemma that will confront the national press in such circumstances?
§ Mr. Lawrence
I intended to deal with that issue later in my remarks, but I shall turn to it immediately. I concede that there is a problem. But a reporter might phone the police station now to ask whether a man has been arrested. He may be told that the police do not know. The situation will be no worse under the Bill than it has been until now. I concede that it is an issue that will have to be resolved. I hope that my hon. and learned Friend the Solicitor-General for Scotland will be paying some attention to it.
I return to the argument that I was rehearsing about those who go abroad when they have had a warrant issued 89 against them. The predominant view expressed in this debate seems to have been that it does not matter if dirt is cast at them and something prejudicial appears, because they were rather stupid to go abroad. I cannot agree. Someone may go abroad who is innocent of the offence with which he is charged. If the press conducts a campaign of innuendo or direct accusation against him, it is little wonder that he does not want to return to face the courts. He will feel that he may be unduly prejudiced. Furthermore, such a man is innocent until found guilty.
I much deplore any likelihood that matters will degenerate into a trial by the press as opposed to trial by the courts.
§ Mr. Delwyn Williams
It seems that the burden of proof has shifted on to the cub reporter. Until now the burden has always been on the prosecution, but the Bill shifts it and places it on the cub reporter, leaving him to prove his innocence. I regard that as a retrograde step.
§ Mr. Lawrence
I shall not go into that, partly because I do not know the answer. I suspect that my hon. Friend is wrong. I leave the issue to my hon. and learned Friend to clear up when he replies.
Justice hardly benefits from delaying the time at which the newspapers can publish something detrimental about somebody who will be before the courts. All that that does is to improve a newspaper's circulation. I do not consider that that is a sufficiently justifiable reason for allowing it.
I played a part in one of the cases that has been mentioned. The press and television representatives were at the front door when the police arrived, kicked in the door and arrested the accused persons. That was a grave abuse of the system and I am delighted that the Bill will, in effect, make that sort of coverage unlawful.
The second issue is the press claim that it is prejudiced by not always being able to publish before an appeal. Is it right, the press ask, that permisssion to publish material after sentence should be taken away if someone quickly files a notice of appeal, with the result that the press cannot publish a report of the proceedings? My hon. Friend the Member for East Grinstead said that that was a bad result of the Bill. I do not agree. If the process was not completed whereby a man is found to be guilty and properly sentenced, why should he be attacked or prejudiced by having the press publicise in those circumstances all sorts of matter that might prejudice a later court?
It has been said that judges would not be influenced. That may be. But I am worried that it might seem to the accused person that a judge who had been subjected to prejudice would bend to it. I have the greatest confidence in the judiciary. I do not think that there are many judges who would bend to prejudice. If they were aware of a great deal of prejudice, they would probably lean the other way, but that is not the issue. It is important not only that justice be done, but that justice be seen to be done by the accused person. The more we can remove from that person the grounds for thinking that he is a victim of an injustice, the better our system becomes.
There has been argument about the publication of jury deliberations under clause 8. It is right to curtail the jury's freedom to make money out of publicising proceedings in a jury room or of the newspapers to make money out of exploiting them in relation to a specific, well-known case. If the provision were not there, more and more jurymen might be encouraged by the press to give accounts of what 90 went on in the jury room. That would throw a doubt on the validity of the criminal process. Those doubts would be undesirable.
I should like to have spoken about other matters, such as the need for the Attorney-General's fiat and the list of bodies that might be listed in order to eliminate doubt about what courts the Bill applies to. There is the question of whether sources should be disclosed. No doubt that will be raised again in Committee. There is the question of whether we should go on using in modern statutes of this kind archaic, anachronistic words such as"wilfully", which do not now mean very much and which are often confusing.
The Bill is important in the context of criminal law because it clarifies and helps to preserve the principles which we all hold most dear, such as trial by due process, not trial by press, and the civil liberties of the individual and his right to a fair trial free from the prejudice which might result in an unfair conviction.
§ 9.2 pm
§ Mr. Arthur Davidson (Accrington)
I agree with the hon. Member for Burton (Mr. Lawrence) that someone who has been tried by a court should have a right to feel that he has had a fair and impartial hearing. However, frequently, without the intervention of the press, he may not have had a fair hearing, or the hearing may have been fair but the verdict may have been wrong. It is that balance of allowing the press to influence properly which we are discussing today.
This is not a major Bill or a major liberalising measure. It does not go one jot towards bringing about a more open, liberal society. However, to do the Attorney-General justice, he does not advance the Bill as such. It is a minor Bill which will in some of its clauses give the press greater freedom and restrict it in others.
The Government would have been wiser to have adopted the Phillimore formula, that the starting time for contempt should operate from charge rather than arrest. I say that despite the Sutcliffe case and the irresponsible behaviour of the press in that case. That did much damage to the argument that I am advancing.
I entirely agree with what the hon. Member for Putney (Mr. Mellor) said about civil contempt. I would do away with it entirely. It is unnecessary. The influence which the press can bring to bear upon a judge sitting alone is very small. Judges ought to be influenced by what they read. Their attitudes should be formed partly by what the press conceives to be public attitudes, whether it is right or wrong. After all, judges sit in the public interest. I do not see, therefore, why we should go through all the paraphernalia of making civil contempt operate from the time when a case is set down for trial when we can do away with it entirely. That is an argument that I have advanced for a long time, and I am therefore glad that the hon. Member for Putney agrees with me. Will the Solicitor-General for Scotland look at that point?
It would be impossible for me to speak in the debate without referring to the Harriet Harman case. The absurdity of that judgment is how it can be unlawful to publish something that has already been published. That is the crux of the matter. For the law to be respected, the reason behind a judgment should be understood by the public. The public cannot understand how it is an offence—to use shorthand language—to pass on information that anybody could have read if he had been 91 in the court. For a distinction to be drawn between a learned journal and a reputable national newspaper is false and reflects no merit on the law. If the criticism of a national newspaper is that it tries to influence Government policy, that is exactly what good legal journals should be doing, too. That is what they are in business to do. It is a false distinction which makes a mockery of the law.
I should have liked to speak for much longer, but I shall stop now in order to give the hon. Member for Moray and Nairn (Mr. Pollock) a chance to make his contribution, since he has been sitting in the Chamber for a long time.
§ 9.7 pm
§ Mr. Alexander Pollock (Moray and Nairn)
I am obliged to the hon. and learned Member for Accrington (Mr. Davidson) and to you, Mr. Deputy Speaker, for my being able to participate in the debate. It may surprise you that it has taken until this time for a Scottish view to be expressed in the debate, although to me it is a question of better late than never.
I speak as a member of the Scottish Bar, and it is important for me to express a warm welcome for the Bill, which has implications north of the border as well as in other parts of the United Kingdom. I trust that my hon. and learned Friend the Solicitor-General for Scotland will agree with my suggestion that over a number of years the press in Scotland has had the feeling that it has been treading on glass because of a number of somewhat harsh judgments which have been enunciated on the strength of the personality of particular Lords Justice General. Therefore, if the Bill can clarify the law and ensure the retention of impartial reporting of criminal trials while allowing the press a clear understanding of its rights and obligations, we shall be doing a considerable service to the administration of justice in Scotland.
I have two brief queries for my hon. and learned Friend. The first concerns clause 8, which deals with"Publication of jury's deliberations." The clause seeks to make it a contempt of court to publish any particulars of votes cast by members of a jury. The assurance I seek is this. At present a jury is asked whether the verdict it has given is unanimous or by a majority. That is noted by the clerk of court. Am I to take it that there is no question of any change in that proceeding in the light of clause 8 and that clause 8 deals only with particular matters relating to particular votes rather than the general form of the verdicts being given?
My other query relates to clause 12, dealing with legal aid in Scotland. It makes provision for legal aid to be available for cases involving contempt, but, as I recall, a judge in the High Court has the power to deal instantly with questions of contempt and can impose a sentence there and then. Clause 12(4) deals with any case involving contempt, not just a case involving the publication of proceedings. What is to happen? Is there to be a denial of the power at present imposed by the judge pending clearance of the legal aid application? Is it to apply only in appelate proceedings, or is it to apply only to questions of publication? Perhaps my hon. and learned Friend will deal with these matters in his reply. But those are minor matters compared with the main import of the Bill, which should be welcome in all parts of the House.
§ Mr. Peter Archer (Warley, West)
It is perhaps a matter for regret that some hon. Members who wished to contribute to the debate ultimately did not have the opportunity to do so. It is a measure of the interest that has attached to the debate.
The House has been debating a conflict of two great principles, both precious to those who care for the liberty of the individual, and both going to the very root of our democratic way of life. One is the right of free speech—the right freely to relate facts to all who will hear them, the right to expound one's opinions, so that democracy may continually draw fresh strength and inspiration from new ideas. There is no need to eulogise further. The benefits of free speech are obvious to us all and, whatever limitations may sometimes have to be imposed on it, the central principle is not called in question.
Some of us may regret that that right is most effective in practice only for those who can afford to purchase the means of publishing their views, while those with more limited bank balances must rest content with speaking to more limited audiences. But if to some of us the media sometimes appear to lack balance, the answer must lie in somehow providing a wider spectrum of opinions, not in depriving the community of the media that we have already or making them less effective. If the media are deprived of their rights to publish, the public are deprived of their right to read. Freedom of speech is not only freedom for the speaker; it is also freedom for his hearers.
That is one principle. The other principle is the right to a fair trial, the right to live one's daily life under the protection of the rule of law, secure in the knowledge that, although no legal system can guarantee that its courts never make a mistake, they will reach their conclusion after evidence and argument fairly presented. That, too, is an important protection for all of us, for real or potential victims of injustice, and particularly for the inarticulate and for nature's losers.
My right hon. and learned Friend the Member for Aberavon (Mr. Morris) read out article 6 of the European Convention on Human Rights, lying within the same convention as article 10—two great principles for which some of us would go to the stake. But what is to happen where they conflict and where dedication to one entails an attack on the other?
We are all against sin, but perhaps that is why the Devil is portrayed with a cloven hoof. It is not made easier when we reflect that our attachment to each of these principles is measured precisely by how greatly we value it when it is under pressure. We can all extol free speech when we are listening to our friends and when we approve of what is being said. The test of our devotion to free speech is when we are exploding with indignation at every word and when we are horrified at everything we hear.
We can all believe in the rule of law for attractive children, for pretty girls, and for charismatic heroes. The test of our belief in the rule of law is our determination to guarantee a fair trial for those whom we would not invite to our dinner tables, however lacking in photogenic qualities they may be, and however bad they be at handling the media. The situation is not made easier by the fact that each side of the debate often seeks to bolster its position with bad arguments. We may suspect that a person is driven to a conclusion by unworthy motives or for reasons 93 that he would not perhaps acknowledge, even to himself. Of course we may suspect that a crusading editor is less concerned with upholding the truth than with upholding his circulation figures. Of course we may suspect that a particular judge is less concerned with the purity of justice than with his own dignity or importance. The principles stand undiminished although the spokesmen may be unworthy of them.
As my right hon. and learned Friend the Member for Dulwich (Mr. Silkin) and my hon. and learned Friend the Member for Accrington (Mr. Davidson) pointed out, it may be true that without free speech we cannot defend a fair trial. The two are not always in conflict. Sometimes they are interdependent. As my right hon. and learned Friend the Member for Dulwich said, this is not a dull Bill but an exciting exercise in accommodating the best in both principles. Perhaps it is a pity that the Bill has the rather dull title of Contempt of Court Bill.
Particular individuals among us may favour one side of the balance. The hon. and learned Member for Solihull (Mr. Grieve) came down in favour of a fair trial. With some force, he pointed out that some Continental countries may get things a little out of balance. The hon. Member for Burton (Mr. Lawrence) also came down on that side. My hon. Friend the Member for Lewisham, West (Mr. Price) was more concerned with the other principle. He thought that the Bill offered an opportunity to reassert free speech in general.
But the epic clash between these two fundamental aspirations cannot be decided in a single global judgment. As my right hon. and learned Friend the Member for Aberavon said, it is not a question of black and white. Those who seek to dispose of all the arguments in one allembradng declaration have not understood the nature of the problem. We can only examine each proposal and see whether we believe that due weight has been given to all the considerations involved.
There is no magic formula. We can try only to ensure that we get the balance right in each case. We on the Opposition side do not always agree with the solution that the Government have proposed in the Bill. If we recognise that it is a matter of judgment and not always a matter of wilful blindness, we hope that they will be prepared to consider the possibility that, in any given case, they may be wrong.
I should like to reassure the hon. Member for East Grinstead (Mr. Johnson Smith), who, like my hon. Friend the Member for Lewisham, West, almost apologised for not being a lawyer. I regret that more non-lawyers, particularly those with experience of journalism, did not participate in the debate. The hon. Member for East Grinstead painted rather a fearsome picture of lawyers in the House. He painted a picture of hon. Members waiting to leap on unconsidered phrases and to tear non-lawyers to pieces. I hope that we are not as frightening as that. Indeed, I do not think that we are. I do not believe that our colleagues are so terrified of lawyers. I hope that we can encourage non-lawyers to contribute to all our discussions on law reform.
A great deal of the debate has centred on the criterion of strict liability. As regards clause 2(2), we believed that the Government were wrong. We thought that the risk that the course of justice would be impeded was not enough unless it was said to be a"substantial risk". We are pleased that the arguments of my noble Friends Lord Elwyn-Jones and Lord Wigoder prevailed with the Lord Chancellor in 94 the other place. On that occasion, a good thing came out of Nazareth. We must give credit where it is due, whatever the source.
Then comes the question: when do proceedings become active for the purpose of the law of contempt? I agree with the hon. Member for Burton that the problem in criminal proceedings is more important, because there the liberty of the individual is at stake. The Government's proposals are set out in paragraphs 3 and 4 of schedule 1. The controversial issue in England is the proposal that they should become active immediately upon arrest without warrant or on the issue of a warrant for arrest.
It is difficult to imagine a greater weight of opinion ranged against the Government on this matter. It was a departure from the Phillimore committee's recommendations and that was a conclusion reached by the committee when in London there was an average of about 22 weeks between committal and hearing on indictment. I suspect that the period is now much longer. So the period of restriction will be that much longer and the danger that the proceedings will be prejudiced will be correspondingly diminished.
In another place my noble Friend Lord Gardiner pointed out that the proposal had received adverse criticism from The Times, The Guardian, The Daily Telegraph, the National Council for Civil Liberties, the International Press Institute, the Guild of Newspaper Editors, the legal journals and the Law Society. It also received a great deal of criticism in another place. I suppose that in this debate the Government may console themselves with the support, or at least the qualified criticism, of my hon. Friends the Members for York (Mr. Lyon) and Swansea, East (Mr. Anderson).
The arguments have been rehearsed so often that if I repeat them mine will be just a small voice in a mighty chorus. I urge the Government to realise that it is important that, where we are imposing sanctions by this weighty process for contempt and dealing with a rule which imposes absolute liability irrespective of intention, those concerned should know with maximum certainty when they are at risk. It is not always easy to know when someone has been arrested, because he may already have been at the police station for some little time.
Those concerned are not always the large organisations with a vast legal staff and with long periods of leisure for research. All too often they are the editors of small provincial newspapers with deadlines pressing on their necks. My right hon. and learned Friend the member for Aberavon mentioned the Port Talbot Guardian. I confess that it is not part of my daily reading. I read it only infrequently. Perhaps I could give as examples the Express and Star, the Sandwell Evening Mail and the Warley News Telephone. But this was the very reasoning by which the Attorney-General supported the simplicity of procedure in clause 4. I submit that it applies equally to the procedure in clause 2.
Indeed, the Bill seeks to make the law of contempt more simple and certain. Of course, there is the additional point mentioned by the Attorney-General in connection with the Lucan case where the suspect has not been arrested because he has not been found. In the meantime, if the criterion is to be that in the Bill, the media will be silenced on that matter.
In another place the Lord Chancellor said that he had regarded the question as nicely balanced, but that the Sutcliffe case had provided for him a startling 95 demonstration that his first reaction was right. It is true that this debate has taken place against the background of the Sutcliffe and Tuite cases. But there is always a danger of over-reacting to a single case. The Attorney-General said that the position had been made clear to those responsible. It is perhaps reasonable to hope that there will not be a repetition and that it should not weigh unduly against all the other factors that we are trying to balance.
On civil proceedings, one view expressed by my hon. and learned Friend the Member for Accrington and the hon. Member for Putney (Mr. Mellor) was that we did not require a law of contempt, or at least a rule of strict liability. But if we are to have one, I am a little troubled by the proposal in the Bill, since the period between setting down and hearing has been lengthening. I understand that the trend is that the period is getting longer. The Phillimore committee cited periods of between six and nine months in the Queen's Bench division, with the heavier cases taking up to 15 months. I suspect that period is now longer.
I must confess that, like my right hon. and learned Friend the Member for Aberavon, I was somewhat attracted to the suggestion made by Sir Robin Day—as he then was not—at the time of the Phillimore committee when, in his minority report, he suggested a special list of cases—a sub judice list. The Attorney-General says that there may be administrative problems about that. Perhaps we can pursue it further in Committee. It is a matter on which we shall be interested in further views.
Obviously the argument against there being a rule of contempt becomes stronger when we consider appeals. That raises the question whether the court needs to be protected at all. The hon. Member for Putney, my hon. Friend the Member for Swansea, East and my hon. and learned Friend the Member for Accrington took the view that we perhaps did not need a rule of contempt of court.
§ Mr. Grieve
It is not a question of protecting the court, but of protecting those who appear before the court, not only for what prejudice might inure, but from what prejudice they think might inure.
§ Mr. Archer
I was going to make that point. It was made by the hon. Member for Burton. When the hon. and learned Gentleman was not in his place I said that I appreciated that when we tried to achieve a balance he and his hon. Friend had taken the view that the balance lay more in the direction of a fair trial than the Bill had recognised. My hon. Friend the Member for Lewisham, West took the converse view. Of course it is true that justice must be seen to be done, but it is a matter of balance and, as my right hon. and learned Friend said, if a judge is a spokesman for the community and is expressing the judgment of the community on the person before the court, it may actually assist the court to know the reactions of non-lawyers to what emerged in a lower court. I should be surprised if judges did not at times welcome that sort of guidance.
There are a number of speeches on which I wished to comment, but I shall have to wait for an opportunity in Committee. I will comment, however, on clause 7 and the protection of inferior courts. Two objections have been voiced to the Government's present formula. The first is that it extends the protection to a wider range of courts and tribunals than the public interest requires. The AttorneyGeneral argued that if the most senior judges are not 96 susceptible to influence, perhaps the less exalted adjudicators stand in more need of protection. However, there is a danger that with 500 of those tribunals it may become impossible for local publications to say anything without falling over the feet of one or other of them.
Another question canvassed in another place by Lord Wigoder was whether for this purpose there should be a distinction between strict liability and deliberate contempt in the face of the court. That has not been pursued in the debate and I hope that we shall have an opportunity to pursue it in Committee.
But there is a further objection. It is impossible by applying the test in this clause to know whether a particular court or tribunal is included. It would require about 500 decisions to establish whether particular tribunals were within the protection. My right hon. and learned Friend the Member for Aberavon questioned the paternity of the wordsjudicial power of the State".My hon. Friend the Member for Swansea, East got there first, but I can help my hon. Friends. That phrase came from the speech of Lord Scarman in the case of the Attorney-General v. BBC. For that purpose it was a felicitous expression. Lord Scarman was not trying to draft an Act. It was not open to the Law Lords, sitting judicially, to draw up a list of tribunals in the form of a schedule. But that might well be a reasonable approach for those drafting legislation.
The Lord Chancellor spoke of the difficulty of making a list—he called it the Ko Ko position. He said that we cannot be sure that we have included all those who should have been included. The Government, with all their resources not being able to draw up a list, transferred the problem to the shoulders of the newspaper editors, many of whom have far fewer resources. But what is so worrying? If it becomes clear that a particular court or tribunal has been omitted from the list, it can be included next time round. Indeed, on Report in another place Lord Fraser produced a list. The Lord Advocate responded by pointing to a particular tribunal that had been omitted, but that can hardly be a reason for condemning the list. If we are never to have a schedule in a Bill until we are 100 per cent. certain that we have got it completely right, we shall never have a schedule in a statute. That is another matter to which we shall return in Committee.
Perhaps more of a matter for criticism is what is not in the Bill. Some of my hon. Friends obviously see the Bill as an opportunity to amend other defects in the law, and they are entitled to do so. I understand that the Government consider the Bill to be a limited measure. We have all had experience of arguing for a place in the legislative programme and being told"Do not be too ambitious. If the Bill contains too many issues, debates will be prolonged and we shall not be able to steer it onto the statute book". I have never understood that reasoning. A Bill may be as contentious for what it does not contain as for what it contains. It may attract as much debate and consume as much time on provisions that are not in it. If it is right that the law relating to, for example, the reading of documents in open court requires to be amended, it may impose no greater delay on the Bill to include it.
In another place my noble Friend Lord Gardiner gave a whole list of Phillimore recommendations which are not in the Bill. I take the point made by the Attorney-General that the Phillimore report is not holy writ and that the Government and ultimately the House must make up their 97 minds, but if the Government rely on the support of the Phillimore report for the proposals in the Bill, they must not complain if some of us equally point to Phillimore when something is lacking from the Bill.
Perhaps the most important single issue in the debate is what has come to be called the Harriet Harman amendment. Hon. Members on both sides have had a great deal to say about that. It has almost become the Harriet Harman debate. I should like to add my tribute to those of my right hon. and learned Friend the Member for Dulwich and my hon. Friend the Member for York to Miss Harman. I have known her for quite a long time and I can speak for her integrity. But that is not what we are debating.
It is necessary here, too, to balance conflicting principles. The first principle is that infomation and advice tendered in confidence should normally remain confidential. There is, and ought to be, such a principle. It is not easy to be frank and uninhibited when contributing to a policy discussion if we fear that all we say may be made known to the world, our competitors, people with whom we are conducting arm's-length negotiations or people who may take one of our remarks out of context and publish it. I do not believe that the rule should be different when a Government Department or the board of a public industry is involved.
In conflict with that principle is the principle that the court should have access to such documents as may be necessary to decide the case fairly. From time to time the courts have to balance those two principles, but they do that in deciding whether to order disclosure of the document in that litigation. That has nothing to do with this issue.
The third principle is that proceedings of the courts should be open to the public so that all who wish to do so may satisfy themselves that justice is done. That principle is no more and no less absolute than the others. Even when the document has been disclosed the court may rule that it should not be referred to, that if it is referred to it should be read silently and not aloud, or even, as a last resort, that the court should sit in camera. In deciding those matters the court must balance the need, so far as is consistent with justice, to protect confidentiality against the need for justice to be done in public. But again that is not the issue that we are discussing.
The issue that concerns us arises when the court has already decided on discovery and decided that the document shall be read out in open court. When a court has ordered disclosure and a document has been read aloud in open court, where anyone may hear and where any reporter who happens to be present may report it, can it amount to contempt to show its text to anyone who wants to get it accurate?
If Mr. Leigh had been present and had taken down what was read out, no one would have committed an offence. Presumably, if Miss Harman had memorised the text of the documents and recited it aloud in the hearing of Mr. Leigh, there would have been no offence. It is difficult for the public to understand how someone can be said to have infringed an undertaking to use documents only for the purposes of the case by assisting someone to record accurately what is said in the course of the case. My hon. and learned Friend the Member for Accrington put the matter succinctly when he asked how it can be an offence to publish what has already been published. I do not think that the public would understand the need for a law of contempt to protect documents that have been read out 98 before the world. As my right hon. and learned Friend the Member for Dulwich pointed out, this arises in the context of a Bill which declares it to be lawful to give a fair and accurate report of proceedings that have taken place in court. I hope that the hon. and learned Gentleman the Solicitor-General for Scotland will be able to give the undertaking for which my right hon. and learned Friend asked, namely, that in future no Government Department will initiate proceedings for contempt without consulting the Attorney-General.
I should have liked to say something about the disclosure of sources, to which my right hon. and learned Friend also referred. I must reserve that pleasure for another occasion. We shall also have some remarks to make about the consent of the Attorney-General, partly because of the need for harmony and consistency of approach in the bringing of these proceedings and partly, as my hon. Friend the Member for Lewisham, West emphasised, because of the importance of the principle that someone who is answerable to the House should decide these matters. If we needed an object lesson in this, it has occurred in the Harriet Harman case.
This is a jurisdiction which we should watch jealously. Its history is not always attractive. I am told that it developed in the seventeenth century as the common law judges adopted the practices of the Star Chamber. Judges, ever since, have pointed out how important it is that they themselves should keep watch on the way in which the courts approach the liberty of the individual.
We welcome the liberalising elements in the Bill so far as they go. We agree with the Attorney-General that clause 6 operates as a valve to ensure that none of the Bill's provisions flow backwards in an anti-liberal direction. We welcome the provision in clause 12 of legal aid for those involved in these proceedings. We welcome the fact that the Bill, in some respects, replaces uncertainty by certainty. We congratulate the Government on insinuating the Bill into their legislative programme. A controversial Bill on law reform becomes increasingly rare, and I agree with the hon. Member for Burton that the Government are to be congratulated. We on the Opposition Benches would not wish to do or say anything to discourage the Government from oiling the machinery of law reform.
For those reasons, I should not advise my right hon. and hon. Friends to divide the House, pace my hon. Friend the Member for Lewisham, West. But we would not wish the Government to be misled into believing that they will have a quick and easy Committee stage. This is not a dull, technical Bill. It is an important, exciting Bill. It deals with problems that have bedevilled us for a generation. None of us knows how long it will be before we have another opportunity.
§ The Solicitor-General for Scotland (Mr. Nicholas Fairbairn)
As most hon. Members have said, this is a matter of great concern. It involves two enshrined principles in conflict. With great respect to all of us who are learned Members of this House, were great principles not in conflict we would be out of a job. It involves, indeed, a principle, as several hon. Members have stated, of the conflict between what is sometimes loosely called free speech and fair trial. We should be clear about this matter. Whereas free speech is a matter that all of us may have, every day and in all time, there are not many moments when we are either in trial or involved in civil 99 litigation. It is important in balancing these two matters to remember that it is an individual in a very special situation whom we have to protect in the interests of justice. In criminal matters there is a fundamental and a proper presumption of innocence. In civil matters there is an argument which both of the parties assume they are right in pursuing. We want to approach the matter with caution. I hope that I shall be able to answer the points made by hon. Members. The debate in Committee and on Report will be one of principle and responsibility, not of dogma or prejudice.
I turn first to the starting point. As my hon. Friend the Member for Moray and Nairn (Mr. Pollock) said, Scotland can be a late voice. But in Scotland we have a different procedure and different experience of contempt of court. That is not a matter for regret.
A fundamental purpose of the Bill is to make the law of Scotland and England in these matters the same. For a long time there has been a difficulty. Newspapers published one side of the border, or which mention cases which occur one side or the other of the border, are subject to different laws. It is not offensive to say that in recent times the courts in Scotland have been even more jealous of the protection of fair trial than have the courts in England.
In both jurisdictions the press has shown and does show an immense responsibility and an understanding of the principles of our freedom. One freedom is the protection of the individual when the law, in the form of the State, elects to accuse, or when two individuals decide to challenge one another over rights or duties.
I take the view that making the active point the point of arrest is an important distinction. That is the right time. For some time in case law in Scotland we have taken that view. Certainly the Government's view is that if the purpose of preventing comment after a certain moment is the protection of a fair trial, surely that protection must come from the moment when the individual is identified and when it is sensible to imagine the charges or the matters with which he is concerned.
The Phillimore report demonstrated the disadvantage of the later period and the advantage of the earlier period, but I believe that what I say is fundamentally right. With respect, it brings the law of England closer to what has been the recent and traditional law in Scotland.
I turn to the various matters which were raised by hon. Members. The right hon. and learned Member for Dulwich (Mr. Silkin) made an important and excellent speech. He said that he was a free speech man. We are all free speech men, but we know that liberties and duties often conflict. I was immensely impressed by what the right hon. and learned Gentleman said about clause 5. I accept that the fact that one prejudices a person's fair trial is incidental to free discussion is something that we shall have to consider again. That was a matter of fundamental importance.
In the Scottish case of Atkins, which the right hon. and learned Member cited, no one could say that the television report—a disguised, if somewhat thinly disguised, exercise of the case to come—was a discussion of euthanasia or the removal of life support systems. Nevertheless, it would not have been excused, as might have happened under clause 5, had it fallen under the guise of a general discussion. We cannot allow a situation in 100 which it is possible to prevent a trial from taking place by the expression of a contempt. That is what happened in the Atkins case.
I turn to the speech of my hon. Friend the Member for East Grinstead (Mr. Johnson Smith). He said that the Sutcliffe case did not cut much ice because the Bill preceded Sutcliffe. That is not an important concept. The procedure in the case of Sutcliffe was clearly wrong. The matter was active from the moment of his arrest—if the Bill is passed. I am sure that such a matter could not occur again, and I am sure that none of us would want it to recur, whether the case was notorious or small.
My hon. Friend said that there was difficulty in taking the time of arrest, because time could elapse between arrest and charge. However, that will not be a long time. If a person who helps the police with their inquiries is eventually charged, surely we should protect that person. If it is wrong in the case of the person who has been arrested, surely it is wrong to delay the matter so that prejudice may be printed in the meantime.
I want to give the House this assurance: when the media are asked to assist in the apprehension of a person, there will be no question of their being guilty of contempt. I want to make it absolutely clear that when the press is asked or assists in that matter, the question of its being guilty of contempt of court does not arise.
§ Mr. Christopher Price rose—
§ The Solicitor-General for Scotland
I should like to finish this matter. Recently, I and my noble and learned Friend had to consider whether to issue a photograph and description of the propensities of a person who was believed to have committed certain offences. It was a difficult decision to take, but it is one which is taken with responsibility, and which the press treat with responsibility.
§ The Solicitor-General for Scotland
With respect, the defences in the Bill demonstrate that the person who acted in that way would not be guilty of contempt. If the hon. Gentleman is not satisfied, he can table an amendment to safeguard the matter.
My hon. Friend the Member for East Grinstead was worried about the extent of tribunals. The noble Lord Fraser of Tullybelton gave a list of tribunals. It is almost beyond definition. The question is not what the list is but what the tribunals are doing and whether they are indulging in judical activity.
§ Mr. John Morris
Following the intervention of my hon. Friend the Member for Lewisham, West (Mr. Price), the hon. and learned Gentleman referred to a defence in the Bill. I am not familiar with the defence that he is referring to.
§ The Solicitor-General for Scotland
I wish to move on. I am not avoiding the issue, but I have only a short time to deal with a large number of matters. The right hon. and learned Gentleman will know that good faith is preserved in these matters. However, if he is concerned, he can put down an amendment.
The hon. Member for York (Mr. Lyon) mentioned the Lucan case. I agree that merely because a person has 101 disappeared it is wrong that he should be the subject of comment, when eventually he may be charged. Another hon. Member also mentioned the case of a person going abroad. Again, it is not right that a person may be forced to stay abroad merely because of what has been published about him.
The hon. Member for York and other hon. Members dealt at length with the Harman case. In justice, I must deal with the matter, although in a way it is subsidiary to the Bill. First, let me remind the House that it was a civil and not a criminal contempt. What is most important is the integrity of the process of discovery. I do not go into the merits of the case, which may yet be the subject of further appeal.
If the amendment put forward in another place were included, the logic of the matter would be that one could obtain documents under discovery and read them out, relevant or irrelevant, in order to discharge their confidentiality. The proper way to handle the matter is to go to the other side or, with the leave of the court, obtain the documents if they have been read out and there is doubt about what was read out.
However, as in the whole Bill, there is a conflict of two principles—confidentiality and the right to know. I do not wish to go into the rights or wrongs of the decisions taken. I understand the feelings, subjective and objective, that have been expressed, but we should not overlook the danger of undermining confidentiality and the need to protect the process of discovery. My right hon. and learned Friend the Attorney-General would not be willing to give an undertaking that in all cases in which a Department of State wished to bring such a proceeding he should first give his leave.
§ Mr. Alexander W. Lyon
If what the hon. and learned Gentleman is concerned about is the confidentiality of documents that are obtained on discovery, surely the matter is best dealt with by the court. The judge or counsel on behalf of the Home Office could ask for the documents to be considered confidentially in chambers or not to be read out in court. In the case being discussed, no such application was made. Once a document is read out in court, it is nonsense to say that it is confidential. Anyone in court can hear it.
§ The Solicitor-General for Scotland
I appreciate that. There are differences, with respect, between the cynical argument in the legal journal and the matter in question. In the proceedings of the other place Miss Harman is quoted as saying:As far as the general purposes of the NCCL is concerned you may rest assured that as a solicitor I am well aware of the rule which requires that documents obtained on discovery should not be used for any other purpose except for the case in hand".—[Official Report, House of Lords, 10 February 1981; Vol. 417, c. 177.]I do not wish to go into the merits of that matter. I can only say that I believe that it is important that it should not undermine the principle of discovery and that we should approach it in the understanding of conflicting interests.
The hon. Member for Putney (Mr. Mellor) asked whether the Government thought that we had gone far enough in view of the European court's decision in The Sunday Times case, in which the court had said that that restraint was not necessary to protect the authority of the judiciary. With respect, that is not the test. We are protecting not the authority of the judiciary but the 102 individual in a position of accusation or dispute. There is a presumption of innocence which I trust will never be undermined by anybody in favour of openness or shutness of any kind at all.
On the matter of civil proceedings, it has been suggested that the period is too long. That argument may or may not have validity. We were reminded of Lord Salmon's comment, that if a judge is affected by what he reads, he should not be a judge. With great respect, I am not sure that he should not have said that if a judge is not affected by what he reads he should not be a judge. At any rate, I am certain that within every judge there is a juror seeking to find his place.
I therefore believe that this is important over a long period—indeed, the longer the period, perhaps, the worse the peril. For instance, in a notorious divorce or defamation case or in litigation of one kind or another, if a campaign of vilification took place, a long period between the fixing of the hearing and the hearing itself would make it all the easier for prejudice to occur.
The hon. Member for Swansea, East (Mr. Anderson), who was good enough to advise me that he could not be present for the winding-up speeches, raised certain matters of importance. He pointed out that certain things which had been said about an escaped prisoner were perhaps improper. I repeat that I see no risk to the press in attempting responsibly to assist in the apprehension of a criminal and to advise the public of the danger that he represents to them.
My hon. Friend the Member for Burton (Mr. Lawrence) said that we did not live in a perfect world—a sentiment that found agreement. Indeed, as I believe I said at the beginning, those of us who are lawyers would not be lawyers if we lived in a perfect world. I agree with the hon. Member that what we are looking for is justice. I am not sure that I agree with him that the right of the press is all but irrelevant. I believe that the press has an important pan to play in the principle of justice. But the rights of the individual and the light to a fair trial must be regarded as paramount at this point in the system of justice.
The hon. and learned Member for Accrington (Mr. Davidson), who was gracious enough to give time to my hon. Friend the Member for Moray and Nairn, said that he was worried that civil contempt was unnecessary. We may debate that matter in Committee, but I know of cases in which I believe that it is necessary, and I think that it is important.
My hon. Friend the Member for Moray and Nairn asked whether I could give an assurance that majority verdicts could be announced in Scotland. The answer to that is"Yes."
The right hon. and learned Member for Warley, West (Mr. Archer), if I may say so, concluded with an important and responsible speech.
This is an attempt to ensure that justice is pure. It is an attempt to ensure that we get fairness of trial without impinging on freedom of speech. This is an important and pure measure. I commend it to the House.
§ Question put, That the Bill be now read a Second time:—
§ The House divided: Ayes 137, Noes 25.103
|Division No. 88]||[10.00 pm|
|Alexander, Richard||Berry, Hon Anthony|
|Baker, Nicholas (N Dorset)||Best, Keith|
|Beaumont-Dark, Anthony||Bevan, David Gilroy|
|Blackburn, John||Lawrence, Ivan|
|Braine, SirBernard||LeMarchant, Spencer|
|Bright, Graham||Lennox-Boyd, HonMark|
|Brinton, Tim||Lloyd, Peter (Fareham)|
|Brooke, Hon Peter||Lyell, Nicholas|
|Brown, Micheal(Brigg&Sc'n)||Macfarlane, Neil|
|Browne, John (Winchester)||MacGregor, John|
|Bruce-Gardyne, John||MacKay, John (Argyll)|
|Buchanan-Smith, Alick||McNair-Wilson, M.(N'bury)|
|Buck, Antony||Madel, David|
|Carlisle, John(LutonWest)||Major, John|
|Carlisle, Kenneth(Lincoln)||Marlow, Tony|
|Chalker, Mrs. Lynda||Marshall Michael(Arundel)|
|Chapman, Sydney||Mates, Michael|
|Clark, Hon A. (Plym'th,S'n)||Maude, Rt Hon Sir Angus|
|Clarke, Kenneth (Rushcliffe)||Mawhinney, DrBrian|
|Cockeram, Eric||Maxwell-Hyslop, Robin|
|Colvin, Michael||Mayhew, Patrick|
|Cope, John||Mellor, David|
|Cormack, Patrick||Meyer, SirAnthony|
|Costain, SirAlbert||Miller, Hal (B'grove)|
|Critchley, Julian||Mills, Peter (WestDevon)|
|Dean, Paul (NorthSomerset)||Moate, Roger|
|Dorrell, Stephen||Morgan, Geraint|
|Douglas-Hamilton, Lord J.||Morrison, Hon P. (Chester)|
|Dover, Denshore||Murphy, Christopher|
|Dunn, Robert(Dartford)||Myles, David|
|Emery, Peter||Needham, Richard|
|Fairbairn, Nicholas||Neubert, Michael|
|Fenner, Mrs Peggy||Normanton, Tom|
|Finsberg, Geoffrey||Osborn, John|
|Fookes, Miss Janet||Page, Rt Hon SirG. (Crosby)|
|Fraser, Peter (SouthAngus)||Page, Richard (SW Herts)|
|Gardner, Edward (SFylde)||Parris, Matthew|
|Garel-Jones, Tristan||Proctor, K. Harvey|
|Gorst, John||Rees-Davies, W. R.|
|Gow, Ian||RhodesJames, Robert|
|Grant, Anthony (HarrowC)||Rifkind, Malcolm|
|Greenway, Harry||Roberts, M. (CardiffNW)|
|Griffiths, Peter Portsm'thN)||Shaw, Giles (Pudsey)|
|Gummer, JohnSelwyn||Shaw, Michael(Scarborough)|
|Hamilton, Michael (Salisbury)||Shepherd,Colin(Hereford)|
|Hannam, John||Silvester, Fred|
|Havers, Rt Hon Sir Michael||Sims, Roger|
|Hawksley, Warren||Skeet, T. H. H.|
|Hayhoe, Barney||Smith, Dudley|
|Holland, Philip(Carlton)||Speed, Keith|
|Hooson, Tom||Speller, Tony|
|Howell, Ralph (NNorfolk)||Spicer, Jim (West Dorset)|
|Hunt, John(Ravensbourne)||Spicer, Michael (SWorcs)|
|Hurd, HonDouglas||Sproat, lain|
|Jopling, Rt Hon Michael||Stainton, Keith|
|Kellett-Bowman, MrsElaine||Steen, Anthony|
|Kershaw, Anthony||Stevens, Martin|
|Knight, MrsJill||StradlingThomas, J.|
|Lang, Ian||Taylor, Teddy (S'endE)|
|Tebbit, Norman||Wheeler, John|
|Thompson, Donald||Whitelaw, Rt HonWilliam|
|Townend, John(Bridlington)||Williams, D. (Montgomery)|
|Viggers, Peter||Wolfson, Mark|
|Waddington, David||Younger, Rt Hon George|
|Walker-Smith, Rt Hon Sir D.||Tellers for the Ayes:|
|Waller, Gary||Mr. Carol Mather and|
|Watson, John||Mr. Alastair Goodlad|
|Alton, David||Mikardo, lan|
|Atkinson, N.(H'gey,)||Powell, Raymond(Ogmore)|
|Beith, A. J.||Richardson, Jo|
|Campbell-Savours, Dale||Ross, Ernest (Dundee West)|
|Cryer, Bob||Ross, Stephen (Isle of Wight)|
|Dubs, Alfred||Skinner, Dennis|
|Eastham, Ken||Soley, Clive|
|Flannery, Martin||Steel, Rt Hon David|
|Freeson, Rt Hon Reginald||Thorne, Stan (Preston South)|
|Haynes, Frank||Wilson, William (C'trySE)|
|Hooley, Frank||Tellers for the Noes|
|Howells, Geraint||Mr. Andrew F. Bennett and|
|McKelvey, William||Mr. Christopher Price|
|Maynard, Miss Joan|
§ Question accordingly agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).