§ REPRESENTATIONS IN CONTEMPT OF COURT PROCEEDINGS
'No order shall be made by any court pursuant to subsection (2) of section 4 of the Contempt of Court Act 1981 until the court has given an opportunity to make representations to any person who in the opinion of the court has an interest in the subject matter of the order and desires to make representations.'. —[Mr. Archer.]
§ Brought up, and read the First time.
§ Mr. ArcherI beg to move, That the clause be read a Second time.
This is a matter which was referred to in Committee by my hon. Friend the Member for Lewisham, West (Mr. Price) because it was relevant to another issue before the Committee. It was not then the subject of a separate new clause or amendment, but it is a matter on which I have subsequently received representations. I am grateful in particular to my hon. Friend the Member for Coventry, North-East (Mr. Park), who unhappily cannot be here tonight, who drew my attention to the matter in the first instance.
Section 4(2) of the Contempt of Court Act 1981 gives power to the court in certain circumstances to order that the publication of any report of its proceedings be postponed for such period as it believes necessary. Admittedly, that can be done only on one condition—that in the view of the court it is necessary to avoid substantial risk of prejudice to the administration of justice. But the subsection offers no guidance to judges as to how they should exercise that power. It simply leaves the discretion to them.
I do not intend that as a criticism of the draftsmanship. I served on the Committee of that Bill and I did not then suggest that the provision should say otherwise. There are some matters which judges will have broadly in mind when there is an application to exercise the power. On the one hand, there is the danger of a possible injustice to an individual if, for example, he is to face further charges subsequent to the proceedings. On the other, there is the public interest in there being the widest access to information.
But when a judge is confronted with an application in a particular case it is not always easy for him to hold in mind the wider considerations when being invited to concentrate on the details. No doubt, if there is an application to make an order under subsection (2), counsel making the application will explain to the judge in detail the possible injustice or hardship to an individual if the facts become widely known. Of course counsel for the Crown will give the court such assistance as he can, and that may involve pointing out the wider considerations.
Following a recent case in which the matter arose, I understand from an article in The Observer that the Attorney-General is proposing to make a statement to the House as to the instruction that he is intending to give to counsel appearing for the Crown in criminal trials. The Solicitor-General may be able to tell us the content of that, but I am doubtful whether those who may be most closely interested in the matter will feel that their interests are adequately dealt with while one counsel is urging the judge to make the order and the other is assisting from a position of neutrality. That is not the functioning of an adversary system; it is half an adversary system.
As the case in which the issue recently arose is proceeding, it would be wrong for me to refer to the facts 279 and the merits of the prosecution, but as I believe the order is no longer in issue I can properly say that it involved allegations relating to what took place inside a mental hospital. That is a matter of great importance in which the public has a legitimate interest. Had counsel instructed by The Observer not had an opportunity to point out the considerations arising from the public's right to be informed, the judge might have been left without the assistance of a balanced argument. I say no more than that.
The new clause proposes that this provision should be amended so that no such order should be made until an opportunity has been given to any interested person, who so wishes, to make representation. I accept that what constitutes "giving an opportunity" may require to be worked out in practice. Of course, it will frequently be necessary to make an order, if one is to be made at all, on the first day of a trial. But if it is a trial likely to attract publicity, I apprehend that the media will be likely to be aware in advance of the possibility of an application.
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It is not a new procedure for a court to have counsel in attendance, although not appearing for one of the parties to the proceedings, to make an application to the court to be heard. That happens in a number of contexts. Of course, if the procedure were to be abused it might be necessary to think again. It would not be reasonable to expect a court to hear a long succession of counsel instructed by different newspapers.
As the matter was raised in another place, it is possible that, by now, the Solicitor-General has had some opportunity to consult those concerned and also to discuss it with his right hon. and learned Friend the Attorney-General. We have put down the new clause principally to learn the Government's reaction. It appears to be a genuine problem which should be discussed.
§ Mr. Christopher PriceI apologise to my right hon. and learned Friend the Member for Warley, West (Mr. Archer) for missing the opening of his speech. I do not intend to address the House for more than a minute or two. This is, however, a very important issue.
I served together, I think, with my right hon. and learned Friend on the Standing Committee on the Contempt of Court Bill. The Bill went through Parliament labelled by the Lord Chancellor, if I remember rightly, as his little ewe lamb. It was introduced into the other place as a gentle little Bill that would liberalise matters to a small degree but make little difference. In fact, it has been used consistently ever since it received the Royal Assent by courts in different parts of Britain as though Parliament had intended it to be a new gagging and silencing procedure. It really should not be treated like that. I shall listen to the Solicitor-General's response with great interest.
I am unhappy about the way in which the Act was used in Nottingham in the series of cases that have gone on under Judge Hopkin in relation to Rampton hospital. I believe that Parliament and the public should know what happens in our psychiatric hospitals. Just as these gags were applied, Parliament was discussing the Mental Health (Amendment) Bill and hon. Members needed information of this kind in order to consider the Bill properly. I had the feeling at the time we were legislating that the Contempt of Court Bill would have effects quite different from those intended. I believe that the Act will have to be gradually changed and amended over the years 280 so that it does not become an oppressive instrument against free speech and open government. It is in that context that I shall listen carefully to the remarks of the Solicitor-General.
§ The Solicitor-GeneralI wish to answer first the specific points put to me. There are no plans for my right hon. and learned Friend the Attorney-General to make a statement. However, the Lord Chancellor has given clear advice to the justices. I should like to read one or two extracts. He remarked:
Whilst I am on the subject of contempt, perhaps it would be well if I said a word about your power under section 4 to postpone reporting. This again was inserted in the Act, not with a view to altering the law, for the power always existed, but for the purpose of clarifying it and making it available in a more accessible form.It is therefore not right for the hon. Member for Lewisham, West (Mr. Price) to say that Parliament was seeking to introduce a new gag. If it was being used as such, that would he another matter. However, it would be wrong to suggest that either the promoters, who promoted the Bill, or Parliament, by accepting it, had that in mind. I do not believe that any opposition was expressed during the course of the Bill. Experienced journalists and parliamentarians like the hon. Member for Lewisham, West must have appreciated how it could be used and must have taken the view—the hon. Gentleman would otherwise have spotted it arid made a fuss about it—that this was seeking simply to clarify the law and make it available in a more accessible form.My noble and learned Friend added:
The power to postpone reports, however, is designed to be used with the utmost caution. The right to report proceedings fairly and accurately is not only an essential freedom. It is also an extremely important safeguard against abuse in the administration of justice.The hon. Member for Lewisham, West will, I think, agree that the Lord Chancellor was expressing exactly his sentiments in positive terms. The Lord Chancellor went on:Complaints have been made that in certain cases courts have been making 'blanket' orders of postponement without clearly stipulating periods. This was never the intention. I must emphasise that no order should be made under section 4(2) unless it is absolutely necessary and that where it is absolutely necessary to use the power, the order should be made in every respect clear and precise both as to the period of postponement arid otherwise.I hope that this clear and forceful expression of opinion will give some satisfaction to the hon. Gentleman. The new clause raises the issue of whether a new obligation to give opportunities to make representations should be imposed, as a matter of law, upon the court. It is, of course, important that all interested parties should have the opportunity to make representations. I accept entirely that members of the press may have a genuine interest such as would make it right that they have the opportunity to put their views forward and that the court should have the opportunity to hear their views and take them into account.The only question before the House is whether it is necessary or even helpful to enshrine that in legislation as proposed in the new clause. I suggest that the new clause would not assist for three reasons: it is wrong in principle; it is imprecise in its terms; is unnecessary in practice.
It is already a principle of our law that the court will always hear arguments. The general rule is that the parties should be heard on matters affecting the conduct of a trial. This does not need be spelt out. In accordance with that 281 general principle, the court would always hear argument on the subject of publication from the parties to an action or a criminal prosecution. It seems to me that the new clause would create an obligation on the court to hear nonparties such as the press on the matter. The creation of such a new right on behalf of individual press representatives would, in my submission, have an undesirable and unnecessary effect. Adjournments, delays and costs would all be increased and the court might find itself seeking the assent of the local press corps before acceding to an application from a party for a postponement order. As I believe the right hon. and learned Gentleman mentioned in passing, if one were to have such a legal obligation it would be essential to define very precisely the class of persons entitled to be heard. I make no complaint that with the time and facilities at his disposal, the right hon. and learned Gentleman may not have been able to deal fully with that question. In the form in which it has come before the House, the new clause would be unsatisfactory in that respect.
More important, however, is this practical consideration. So far, where persons have wished to be heard, they have been heard. If that were not so, I should have considerable sympathy with the argument of the hon. Member for Lewisham, West and the purpose behind the new clause. In the two leading cases on this—the Horsham case and the Rampton case—if there had not been a way for the press to make its views known I might well have taken the view that there was a deficiency in the system. As the right hon. and learned Gentleman and his hon. Friend know, however, not only was the press able to put its views forward, it took a leading part in having a review of the making of the order. The National Union of Journalists promoted the proceedings for judicial review in the Horsham case and it was represented before the judge in the Rampton case when he reviewed his own decision.
I therefore put forward those three brief but, I suggest, substantial reasons for saying that the better course here is to go ahead using the principles well known to our law. We should leave a discretion in the courts as to whom to hear and when. We should rely upon them to exercise that discretion in accordance with the principles that we all know well and which were enshrined in what the Lord Chancellor said to the justices. We should rely, too, on the fact that, so far, all the evidence is that those who have a legitimate interest, and specifically the press, have been accorded the opportunity to be heard, and that our system permits the according to them of that opportunity to have their views expressed.
I therefore invite the right hon. and learned Gentleman to seek leave to withdraw the new clause. Alternatively, I must ask the House to reject it.
§ Mr. ArcherOnce again, we are grateful to the Solicitor-General for his careful reaction to our suggestions. At least we now know that the Attorney-General does not propose to make a statement to the House. My remarks were based on a report in The Oberver to the effect that he was expected to make such a statement this week. However, we can all be wrong and it may be that that was thought to be likely at the time.
I accept, of course, that when the original provision was included in the Act it was not intended to be repressive. 282 As my hon. Friend the Member for Lewisham, West (Mr. Price) has said, the danger is that when courts are under pressure and have to make up their minds on the spur of the moment it may not always operate in practice exactly as we envisaged when we discussed the matter in Committee.
If I may say so, I do not accept as a criticism the argument that one would have to define the expression used in the clause:
any person who in the opinion of the court has an interest in the subject matter".Those are all perfectly normal words in the English language and any judge before whom the matter is likely to come would be quite capable of applying them. I should have thought that such an expression could be operated perfectly well. The court can decide whether it considers that a person making an application has an interest in the subject matter. I said, of course, that I thought that it might require some working out in practice as to what constituted the giving of an opportunity, but that is a different matter.I am not sure that I entirely understood what the Solicitor-General meant when he said that the new clause was unnecessary because the court had the discretion already. He then cited two recent examples in which, if I may say so, the system did not operate as we envisaged. The court indeed heard counsel on behalf of sections of the press, but only after the order had been made and, as I understand it, only after the question had arisen whether members of the press were likely to be in breach of the order.
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We had it in mind that everyone should have his mind set at rest from the outset and that the matter should be clarified. Before the order is made, the person concerned should have the opportunity to address his argument to the court. If the Solicitor-General is arguing that there is no difficulty because a person is always entitled to stand up in court and to say that although he is not a party to the action and does not represent such a party he wishes the court to hear him before the order is made, that is probably right, although I was not entirely sure about this and I would welcome the hon. and learned Gentleman's assurance.
If the rule goes as far as that and judges are likely at appropriate times to exercise that power, I think that we should be satisfied. If, however, it is intended that the judge should make the order willy-nilly and that only when a representative of the press finds either that he has already been in breach of it or that he is likely immediately to be in breach of it can he address the judge, that is not what we had in mind at all, because that would not meet the mischief. I would therefore welcome anything that the Solicitor-General can tell us about that power, although I should say at once that we do not intend to divide the House on this today. Perhaps before I seek leave to withdraw the new clause the hon. and learned Gentleman would care to intervene to elucidate this point.
§ The Solicitor-GeneralI am happy to endeavour to assist. It is my understanding that the judge is entirely master of what happens in his own court. If he felt that somebody wished to express a view when he was considering making an order, I believe that the matter would be entirely in his discretion, on the general principle that he is master in his own court in terms of whom he decides to hear in it. In the cases that I mentioned, 283 although so far as I know there was no person in court who asked to be heard on the subject, events have proved that it is nevertheless open to the press to participate in the setting aside of an order, whether or not a representative of the press was heard before the order was made. If I am right on both those points, I believe that there is a fair opportunity for the press to be heard.
Mr. ArchieI am most grateful to the hon. and learned Gentleman for that intervention. I think that he has made us a little happier. In those circumstances, I beg to ask leave to withdraw the motion.
§ Motion and clause, by leave, withdrawn.