EXCLUSION OF EVIDENCE (Hansard, 3 April 1985)

§ Mr. Douglas Hogg
I beg to move amendment No. 109, in page 8, line 2, after 'shall', insert `except as authorised by a direction given in pursuance of subsection (1A) below'.

§ The Chairman of Ways and Means (Mr. Harold Walker)
With this it will be convenient to consider amendment No. 110, in page 8, line 8, after 'persons', insert— '(1A) a direction as mentioned in subsection (1) above may be given by a court or tribunal if that court or tribunal is satisfied whether on application or otherwise that a failure to give such a direction would seriously prejudice the rights of one or more of the parties to the proceedings there before it. In the event of such a direction being given no matter given as evidence pursuant to that direction shall be published in any written publication available to the public or to broadcast except as authorised by direction made under subsection (1B) below. (1B) If the court or tribunal which makes such a direction as is mentioned in subsection (1B) above is satisfied that the effect of subsection (1B) is to impose a substantial and unreasonable restriction upon the reporting of the proceedings and that it is in the public interest to remove or relax the restriction it may direct that that subsection shall not apply to such matter as is specified in the direction. (1C) If any matter is published or broadcast in contravention of subsection (1A) of this section, the following persons, namely—

(a) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;

(b) in the case of any other publication, the person who publishes it; and

(c) in the case of a broadcast, any body corporate which transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,

shall be guilty of an offence and liable on

(i) summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;

(ii) on conviction on indictment to imprisonment for a term not exceeding 7 years or to a fine or both.

(ID) In this section— a broadcast" means a broadcast by wireless telegraphy of sound or visual images intended for general reception, and cognate expressions shall be construed accordingly; written publication" includes a film, a sound track and any other record in permanent form but does not include an indictment or other document prepared for use in particular legal proceedings.'.

§ Mr. Hogg
I take the view that these are important amendments. As I understand it, the effect of clause 9 as it stands is that in no legal proceedings other than those mentioned in clause 9(4) may evidence be adduced to the effect that an offence has been committed under clause 1 or that the warrant is in existence. That is a broad power. It is a statutory prohibition on the admission of evidence in court.
The first question that I must ask my hon. and learned Friend is whether at the moment there is any statutory bar on the admission of evidence relating to the issue of warrants or the identity of persons to whom the warrant has been issued. So far as I am aware, there is no such statutory bar. I feel sure that the Committee would appreciate my hon. and learned Friend's guidance. There is of course always the residual power of the judge to exclude, but I am not aware of the exclusion being used in circumstances such as these.
If I am right in thinking that there is at present no statutory bar, the Government are going beyond what was said in paragraph 7 of the White Paper, which stated that it was not the purpose of the Bill to extend the law beyond the existing custom and practice. If we introduce an exclusion rule which does not exist at present, we shall indeed go beyond present custom and practice.
1302 The purpose of the amendment is to admit evidence of the kind to which I have referred but which is now excluded in certain circumstances. There muse be, and there is, a general presumption in favour of the admission of relevant evidence. I do not mean a legal presumption —there is in fact a legal rule—but every member of the Committee will accept that as a general rule relevant evidence should be admitted to courts. Sometimes it is necessary to impose restraints on the publication of matters before a court. Sometimes that is justified. However, as a general rule, I am in favour of relevant evidence being admitted before a court.
One must recognise that the exclusion of relevant evidence can often cause real prejudice. That is a general proposition. May I test it by example? If I suggest an example, my hon. and learned Friend can always say that the example is a fanciful one, that such a case would be unlikely to arise, or that such evidence would perhaps be admitted or would not be relevant. However, I would like to test the proposition by considering two or three examples.
First, let us take the example of a libel case. A newspaper alleges of a Minister or a specific official that he has acted in a repressive, unreasonable or dictatorial way. That would seem to be a defamatory observation to make of any Minister or official. The Minister or official sues the newspaper for libel. The newspaper has in its possession evidence to show that the Minister or official had connived at, instigated or otherwise been a party to an unlawful interception or an interception which contravened clause 2 and the consequential clauses. Is it to be said that, in libel proceedings, a newspaper is not able to adduce evidence to show that an offence has indeed been committed under clause 1, or alternatively that the Minister or official has connived at a breach of, for example, clause 2? That is an extraordinary proposition. It does not seem right at all. That is one example of a case in which the interests of justice and of the parties involved require the admission of that class of evidence.
Let us take another example. An employee of British Telecom unlawfully intercepts a telephonic communication. That employee is of course committing art offence under clause 1. He is therefore dismissed. He then goes to the industrial tribunal and claims that he has been dismissed unfairly. However, the reason why he was dismissed is that he had been interfering with telephonic communications, which is an offence under clause 1. Is his employer to be prevented by the Bill from adducing evidence to that effect or cross-examining on that matter?
For a third example, let us take the case of a Post Office worker. Quite frequently—I mean no disrespect to the hon. Member for Newcastle-under-Lyme (Mr. Golding) — members of the postal service interfere unlawfully with the mail, for a variety of reasons. That happens in a significant number of cases every year, and could be an offence under clause 1. The Post Office dismisses that employee, and the employee goes to the industrial tribunal alleging unfair dismissal. The reason for his dismissal was an offence under clause 1. Is the Post Office to be prevented from adducing evidence, or cross-examining, to the effect that there has been an offence under clause 1? The answer must be no. Nevertheless, all of the cases that I have outlined are covered by the Bill in its present form and would prevent justice from being done. That is why it is a serious matter.
1303 I am aware that deeply sensitive issues must be involved in the material that might be put before courts. I have therefore put down the presumption that such evidence will not be admitted. That is the starting point. I have then incorporated the proviso that such evidence may be admitted if refusal to admit it would seriously prejudice the rights of one or more of the parties to the proceedings". We therefore start from the presumption—which my hon. and learned Friend the Minister would favour—that the evidence is inadmissible, and say that it must be admitted if the judge or tribunal gives a direction in the interests of justice. Even then I am prepared to accept my hon. and learned Friend's anxiety, because I have provided that the material should not be published unless the tribunal or judge thinks that it is in the national interest to do so.
I regard this as a modest means of dealing with the problem. A bar is likely to cause grave injustice, and I am anxious about its appearance in a statute presented by my hon. and learned Friend.

§ Mr. Waddington
I am grateful to my hon. Friend for raising interesting issues. There is no statutory bar on evidence being adduced on the existence of warrants, so there is no bar on questions being asked.
My hon. Friend said that the Government are now trying to do what they said in the White Paper they were not trying to do. With respect to my hon. Friend, he is wrong. He is obviously reading paragraph 7 of the White Paper which says that the Government are not seeking, through the introduction of the Bill, to broaden the scope of existing practices in the interception of communications. Paragraph 7 could not be read as referring to questions about the law such as my hon. Friend asked.
My hon. Friend's amendments are based on the assumption that the problem is that the courts will not be able to reveal publicly that in which there is a public interest. That is not the problem or, if it is, it pales into insignificance as compared with the real one, which is how we can afford to finish up with a system in which a rogue is enabled to discover the evidence which is available against him. We have to have a system under which a person does not learn, by bringing proceedings, what evidence there is against him. It would be absurd if, having constructed a tribunal to hear complaints, but under a special procedure which does not allow the complainant to know the evidence available against him, the complainant was able to go to a court of law and bring proceedings for the sole purpose of discovering that which he had no hope of discovering from the tribunal.
The Committee has already considered the tribunal for which special procedures are set out in schedule 1 which prevent the tribunal from revealing to one party information that it has received from another. This is absolutely vital, otherwise a person would be able to take an application to the tribunal and thereby discover whether a warrant was in existence in his name. The whole system would collapse.
9.45 pm
Precisely the same point arises over court proceedings. The circumstances are different but the principle is the same. Somebody should not be able to discover whether a warrant is to be directed against him just by mounting 1304 proceedings. These amendments do not mean that in any such proceedings evidence about interception would necessarily be presented. However, they are based on two assumptions: first, that it is known that there is such evidence to give, which in itself is unacceptable; secondly, that both parties might be involved in any consideration of whether or not a direction should be given, and, if it were, would be privy to what was presented as a result.
It does not take a great deal of imagination to conceive of circumstances in which an ingenious litigant would discover grounds with which he might expect to persuade the court that it was in his interests that evidence which he believed to be in the hands of the authorities and which he believed to be the result of interception was essential to secure his rights. Merely to start down this road means that the existence of a warrant may have to be confirmed or denied. This in itself would go too far and would prejudice the very confidentiality upon which the effectiveness of authorised interceptions so crucially depends.
My hon. Friend the Member for Grantham (Mr. Hogg) referred to the possibility of a Minister conniving at unlawful tapping and of a newspaper having evidence of it, with the Minister suing the newspaper and the newspaper therefore being put at a disadvantage. As I understand it, in those circumstances there would be no difficulty whatsoever because the Minister would have committed a crime under clause 1. My hon. Friend will see that, according to clause 9(3), subsection (1) does not apply to a relevant offence, and "relevant offence" means, among other things, an offence under Section 1 as provided in subsection (4)(a).

§ Mr. Douglas Hogg
My hon. and learned Friend does me an injustice, because I thought of that one as well. If he cares to look at subsection (3) he will see that Subsection (1) does not apply in relation to proceedings for a relevant offence. A libel case does not constitute proceedings for a relevant offence within the meaning of the clause.

§ Mr. Waddington
I do not really follow what my hon. Friend is saying. I am referring to clause 9(4) which contains a definition of "relevant offence".

§ Mr. Hogg
With respect to my hon. and learned Friend, that is perfectly true, but subsection (4) is dependent upon subsection (3).

§ Mr. Waddington
I shall look into that point when I have a little more time, but my advice is that if a Minister were guilty of a crime because an offence had been committed under subsection (1), the first part of clause 9(1) would not come into play. However, I shall take advice on that point and will write to my hon. Friend if he is correct in assuming that the explanation I have given is incorrect. One has to address one's mind to the main problem: that if one sets up a tribunal which prevents a man from finding out whether he has been properly intercepted, one cannot finish up with that man being able, by bringing proceedings in court, to obtain the information which he failed to obtain from the tribunal. One has to face up to that difficulty.

§ Mr. Hogg
I wish to make three brief points. First, my hon. and learned Friend the Minister must accept that he 1305 is extending the scope of the law in that there is at present no statutory bar to exclude such evidence and in future there will be such a bar.
Secondly, my hon. and learned Friend did not deal with the points that I made about unfair dismissal, and it is clear that in the two cases that I mentioned the employer would be at a substantial disadvantage as a result of the Bill.
Thirdly, we must accept that if the Bill is enacted in its present form injustice will be done to parties. As a general proposition, I am prepared to accept that the evidence should not be introduced, but I want a residual power to introduce it in some circumstances.
Having said that, I recognise that I am not about to persuade my hon. and learned Friend—

§ Mr. Maclennan
Will the hon. Gentleman allow others to comment before he seeks leave to withdraw the amendment?

§ Mr. Hogg
I am happy to oblige the hon. Gentleman.

§ Mr. Maclennan
The hon. Member for Grantham (Mr. Hogg) has done the House a great service by raising this issue, which has given rise to considerable anxiety. The whole of clause 9, with which the amendment seeks to deal, has been commented on most adversely by Justice, the British branch of the International Commission of Jurists, as being oppressive and going beyond what is necessary to confine the judicial remedy to the tribunal.
Clause 9 takes away a right which was previously enjoyed and does not need to be removed for the Minister to achieve his aim. I understand the argument that it is undesirable and, indeed, impossible to set up a tribunal and to allow a remedy through the High Court to proceed in parallel, but that is not the point to which the main thrust of clause 9 relates. In fact, it will preclude the possibility of a line of examination or cross-examination being pursued which may arise in the course of some quite different matter.
The circumstances of the Malone case spring to mind in this regard. If these provisions go through in their present form the circumstances of a case of that kind may never come to light again. I do not think that the hon. Gentleman has sufficient troops here to force a Division on the matter, but I sincerely hope that the issue that the hon. Member for Grantham has very properly raised will receive very careful consideration by the legal luminaries in another place.

§ Mr. Waddington
Perhaps I may reply to the last point. The hon. Gentleman suggests that if the new procedure had been in existence the Malone case would never have come to light. But once the Bill becomes law there need never be such a case again because a person such as Mr. Malone will have a remedy. He will be able to go to the tribunal.

§ Mr. Maclennan
With respect, the Minister misses the point. Mr. Malone would never have known that his telephone had been tapped if it had not been revealed in the course of examination of a policeman's notebook that something had been going on, leading Mr. Malone and his counsel to suspect that interception had taken place. We are men of the world. We appreciate how difficult it is to identify whether telephone tapping or any other form of interception has taken place and that it is only in circumstances of that kind that it will ever come to light.
1306 In reality, although in theory Mr. Malone might have a remedy, he would never know that he needed to exercise it.

§ Mr. Waddington
Surely this is nonsense. If Malone or his advisers had suspicions that his telephone was being tapped, in the old days one would look through a policeman's notebook to ascertain whether there was some evidence of it there. Under the new regime, he would he able to go to the tribunal.

§ Mr. Maclennan
With respect to the Minister, they did not have any knowledge or suspicion that this was taking place. It was only because the matter came out in cross-examination that it was followed up at all. I think that the Minister will find that this matter arouses anxiety in another place, and I have no doubt that it will have to be pursued.