§ 5.38 p.m.
§ Lord LLOYD of HAMPSTEAD rose to call attention to the Report of the Committee on Contempt of Court (Cmnd. 5794) and the Government's discussion document (Cmnd. 7145); and to move for Papers. The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. I believe that there is at any rate one matter upon which your Lordships will be in agreement; namely, that as this report—the Phillimore Report—appeared in 1974, this debate has not occurred too soon. In fact, the matter has not been previously discussed in your Lordship's House, and except for a brief adjournment debate which took place, I understand, in April of this year, the matter has not been discussed in the other place, either.
§ However, we have the very useful Green Paper which was issued by the Government in March 1978. I understand that it is a Green Paper, though it is masquerading as a White Paper. When I inquired as to this I was given to understand that these days Green Papers always do appear as White Papers. Whether this is due to a great shortage in the factories of printers' green ink, I do not know. Nevertheless, with your Lordships' permission, I shall refer to this document as a Green Paper.
§ First, I wish to pay a tribute to the work of this very distinguished committee under the eminent chairmanship of the late Lord Justice Phillimore. It was a small committee, but it had a very distinguished membership, and it is worth noting that it consisted not only of lawyers but also of a number of eminent laymen, including General Sir John Hackett, and Mr. Robin Day, who contributed a valuable dissenting note on one particular point, but who otherwise agreed with all his colleagues.323
§ As your Lordships will have seen from the committee's report, it went into these complicated matters with great care and thoroughness, and it arrived at no less than 35 recommendations by way of suggestions whereby the law could be improved. Many of these suggestions, of course, are relatively minor and uncontroversial; and for the purposes of opening this debate I propose to confine myself to what are described in the Green Paper as "central recommendations", in particular those relating to two crucial points. One is the definition of "contempt", particularly as affecting the Press and the media generally, and the other is the question of the time from which the law of contempt should apply, again especially as affecting the media. I would think that no-one in a democratic society such as ours would deny the importance of the freedom of the Press. On the other hand, no more will he deny (unless, perhaps, he may be a journalist) that the use of the law of contempt to ensure fair trials and avoid what has been called "trial by newspaper" is one of the great institutions which has been created by our common law judges.
Experience in other countries, particularly in the United States, has revealed what seems to us, at any rate, a sorry state of affairs, where, before a man has actually appeared in court for trial, he is subjected to a process of arraignment and, indeed, conviction by newspapers, long before he has had an opportunity to make his defence in court—and this is done in the name of the fundamental freedom of speech. Nor, indeed, is the experience on the Continent very much happier. A very well informed commentator, Dr. Mann, an Anglo-German lawyer of eminence, wrote in a recent number of the Law Quarterly Review in regard to our law of contempt and described it as:
… one of the most exemplary contributions of English law to civilisation, the maintenance of personal liberty and standards of public life. Anyone familiar with conditions of the continent will be conscious of the great evil which trial by newspaper is doing there".
I could not help but notice the other day, in what is commonly described as one of our quality Sunday newspapers, a comment in regard to a proceeding which was then very shortly to commence. It said:
There have in fact already been television programmes in the United States going over the details of the case and containing long interviews with many of the witnesses".
Then it uses these words:
that is the word chosen, "niceties"—
of the English concern not to prejudice a jury with information which may not eventually be presented at a trial are largely baffling across the Atlantic and the Channel, where trial by newspaper is well enshrined as one of the fundamental freedoms".
Your Lordships may feel that that is not a very happy reflection; and I venture to say—and I propose to say no more than this—that current example may perhaps be giving us some inkling of how the media would approach such matters if they were given carte blanche, and that may perhaps give us some reason to reflect whether very soon we may not have to take a long and anxious look at the operation, as it functions at present, of Section 3 of the Criminal Justice Act 1967.
§ As your Lordships will have seen from the Report, the Phillimore Committee come down firmly on the crucial need to do nothing to weaken the control over the mass media by the courts in order to preserve the fair administration of justice. What they do point out is that there is a very real difficulty here—the difficulty of striking a balance between two great public interests. On the one hand you have the right to comment on and criticise freely all matters of public concern, while on the other there is the need to preserve the proper administration of justice and ensure that every accused person will have a fair trial which will not be predetermined by some other public body or organisation. In this connection, the Committee recognised two main criticisms of the present state of the law, and it is these two about which I am going to say a few words. The first is that under our existing law it is not clear what criteria apply in deciding whether a contempt has been committed. That is the first point. The second main point is: At what moment does liability for contempt begin?
§ As to the first point, a great deal of concern has been aroused recently, of course, by the celebrated thalidomide case, which ultimately reached your Lordships' House in its judicial capacity under the name of Attorney-General v. 325 The Times. The case was there decided in July 1973, and was reported in the Law Reports in 1974. I am very gratified to see that in the order of speakers there will shortly be following Lord Rawlinson, who of course played a leading role in that case and is probably better informed as to it than anyone else. We shall await his views on this matter with the greatest possible interest. One thing which emerged from that case was that there was a great deal of judicial disagreement as to the appropriate test to be applied. At the end of the day, in the House of Lords (not, perhaps, the end of the day as the future may portend, but at the end of the day so far as that case in our courts is concerned) their Lordships came up with what was in effect a new criterion—the criterion whether the article in question, the article in the Press, would prejudge issues which occur in the proceedings.
§ The Phillimore Committee criticised all the different approaches that had so far been developed in our courts, and in particular they criticised that criterion put forward by the House of Lords in the thalidomide case, which they thought had moved too far against the freedom of the Press. They particularly deplored the fact that public discussion may be stifled simply because of the uncertainty of the law and the fact that people do not know really when they can comment or how far they can go. However, Phillimore recognised that there was a very real problem here and that discussion on important public matters ought not to be suspended simply because, quite incidentally, there might be some prejudice to a possible litigant.
§ What they proposed, therefore, was to reconstruct somewhat what was regarded before the thalidomide case as the normal criterion applied, and they proposed the test in this form. They suggested that the law should be altered to make the crucial test of whether contempt had been committed, whether the publication creates a risk that the course of justice will be seriously impeded or prejudiced. This test more or less followed the traditional pattern which had been applied in the divisional court in the thalidomide case, with one important difference.
§ What the committee proposed was that the emphasis should be moved away from the degree of risk to t he degree of harm, 326 so that the question now would be whether serious harm or impediment was likely to occur. Phillimore thought that this test should apply both to criminal trials and civil litigation. A further complication has occurred which is referred to in the Green Paper. The thalidomide case has now been referred to the European Court under the European Convention which your Lordships were discussing only the other day. The judgment has not yet been given but it is awaited. The full court of the European Court is proposing to give judgment—we do not know exactly when; but it appears that it probably will not be until early next year.
§ I suggest that the implications of this case, as ventilated before the European Court, might be quite serious from the point of view of this country because if the outcome of these proceedings in the European Court were to produce a decision laying down that our whole attempt to preserve safeguards to protect accused persons on trial against undue prejudice from the Press or other media is misconceived, and that something like the Continental system, what one might call the European system, were to prevail, this would undoubtedly be a very serious setback for justice in this country.
§ At any rate one can certainly understand, if I may say so, the situation of the Government that it is impracticable for the moment to introduce new legislation until we know what the European Court has decided and what affect this may have on the future development of our law. I should not expect the noble and learned Lord who sits on the Woolsack to make any direct comment at this moment to your Lordships upon this judgment which is still pending before another court; but perhaps the noble and learned Lord might feel that he could at least disclose to us some of the Government's thinking in relation to this issue and how he feels that the traditional safeguards of our law can be preserved in any event, because I think that this will be one of the anxieties which will be foremost in your Lordships' minds.
§ There is also a further point, as indicated in the Green Paper, that certain aspects of this matter are now also being considered by the Law Commission. According to the Green Paper, their final report on this was expected during 1978. One 327 would venture to ask the noble and learned Lord the Lord Chancellor when this final report can now be anticipated.
§ If I may venture a general comment on this crucial point which I have so far discussed, I suggest that when it comes to amending this aspect of law by legislation, if amended it is to be, any criterion that we adopt is likely to have some uncertainties. I do not think that it is possible in a matter of this kind to have an absolutely clearly defined criterion. It is rather like trying to define in an Act of Parliament some notion such as negligence. It is a general standard and there is a limit beyond which precision will not go. But, having said that, I would think that one is also left with the position at the end of the day, whatever criterion you have, the balancing must to some extent be left to the judges. It is for the judges to evaluate whatever principle is finally accepted and apply it to particular cases. I think that this is a respect in which we can entertain considerable confidence in the discretion of our judges to apply any such criterion with fairness.
§ As to Phillimore's own proposal, it seems to me, with all respect, that there is much to be said for the formula that they put forward and that it is probably to be preferred to the formula which was adumbrated by their Lordships in the House of Lords' decision. Prejudging an issue does not seem to be the sort of test which meets all the necessary situations and, indeed, you could very easily have many situations where an issue could be said to be pre-judged without necessarily causing a trial to be unfair. There is also the question of defences to which I shall refer briefly. Phillimore favoured a new defence of fair and accurate reports of proceedings in open court; but they rejected the idea of a defence that publication was for the public benefit. On the other hand, they favoured the introduction of a new defence in the case of contempt to the effect that the subject-matter is under public discussion and could only affect pending proceedings incidentally. I confess that that sounds rather a vaguely-framed defence and one cannot help wondering whether it would not tend to increase the uncertainty of the law without necessarily producing any very powerfully beneficial result.328
§ Lastly I should like to say a few brief words on the second crucial issue, the question of the starting point of liability— a matter which has given rise to very considerable difficulty. At the moment, our courts—that is, the courts in England— apply the test of whether proceedings are imminent. This of course has been criticised as a very vague notion and very difficult for editors and newspapers to decide what constitutes "imminence". Phillimore therefore proposes to cut the Gordian knot by trying to fix a much more exact point of time at which one could say that contempt proceedings would be capable of being brought. They say that for this purpose you should distinguish between criminal and civil proceedings. In cases of criminal proceedings they go for the moment when a suspected person is charged, charged with an offence.
§ On the civil side, they suggest that the appropriate date would be the date of setting down an action. There certainly would seem to be considerable advantage in having relatively fixed points of time of that kind; although the Green Paper points out that these suggestions give rise to some considerable technical difficulties. On the whole it would seem that those difficulties are not by any means insuperable. What one would like to know from the noble and learned Lord is whether he can shed any further light on the Government's thinking on this crucial issue and, particularly, whether he would care to comment on the recent decision in the Scottish courts where the Scottish High Court of Judiciary in the case of Hall and Associated Newspapers came down firmly in favour of the view that the crucial time for the purposes of Scottish law should be when the accused person is arrested or, perhaps, when the warrant itself has been granted.
§ The basis of this suggestion is, one would think, a very convincing one. What the High Court of Judiciary said was that that is the moment when the accused first comes within the protection of the court and that is the moment from which the law of contempt ought to operate. It would be very interesting to know whether the Government have reached any further reflections in the light of that Scottish decision. Time does not permit me to comment on any of the other valuable proposals included in the 35 recommen- 329 dations to which I have referred. It would be interesting to know from the noble and learned Lord the Lord Chancellor whether the Government intend in any event to introduce legislation to give effect to those recommendations, apart from those I have already discussed.
§ In conclusion, I feel very strongly that the Phillimore Committee put us strongly in their debt for the very careful study that they have given to this vitally important area of law, and that it is now for the Government and Parliament to make up their minds what action is needed and to take appropriate action, I hope in the very near future. I further hope that it will be done without calling for any further inquiry. My Lords, I beg to move for Papers.
§ 6.2 p.m.
§ The LORD CHANCELLOR (Lord Elwyn-Jones)
My Lords, I am sure that the whole House—as I certainly am—will be most grateful to my noble friend Lord Lloyd of Hampstead for having raised this important subject this afternoon and for his lucid survey of many of the difficult issues involved. It was in the hope of stimulating public discussion on these issues that the Government published their discussion paper—which is a neutral description of it, in view of its whitened colour—in March this year; and of course the Government will wish to pay particular regard to the views expressed in Parliament and particularly here tonight by the distinguished experts who, I am glad to see, have put their names down to speak before the Government come forward with firm proposals.
I should also like to echo what my noble friend has said by way of thanking the members of the committee which under the alas! late Lord Justice Phillimore carried out such a valuable and thorough survey of this technical and complicated branch of the law. I remember giving evidence to the Commission and having a pretty tough time indeed under the questioning of Mr. Robin Day and other members of the Commission.
I should like at an early stage in what I have to say to correct the impression which I fear is being created in some quarters that the continued maintenance of the law of contempt is simply a Government device to shackle the Press. We 330 have no such unworthy motive. It is significant that the first and unanimous conclusion of the Phillimore Report was that the law of contempt is required as a means of maintaining the rights of the citizen to a fair and unimpeded system of justice and of protecting the orderly administration of the law. An my noble friend has said, the Committee made 35 recommendations, many of which are uncontroversial, although some, like the recommendations that magistrates should have power to punish for contempt in the face of the court—a proposal with which I agree—break new ground.
The recommendations on which interest has largely focused are those concerning the rules prohibiting publication of material which is liable to prejudice the administration of justice because it is here that freedom of speech, which includes of course freedom of the Press and other media of information, can conflict with the due administration of justice or, putting it more directly, with the vital right of the citizen to a fair trial. Both of these are of fundamental importance in our society, as in any free society. Often they are complementary and assist each other, but in the area of the law of contempt, as my noble friend has said, a balance needs to be struck between them. Exactly where the balance is to be struck is a difficult and delicate matter and often a matter of personal judgment. I have doubts about the approach of those who press simply for the full implementation of the Phillimore recommendations. As I hope the discussion paper has indicated, it is not, I fear, as simple as that.
The discussion paper picked out four central issues which were the subject of one or more recommendations in the Phillimore Report about which the Government have reservations and about which we think further discussion and debate is desirable. I should like to take this opportunity of thanking those who have responded to the paper by submitting letters and memoranda to my Department and to the Crown Office in Edinburgh. The fact that the discussion paper picks out these four issues does not mean that the Government necessarily accept in their entirety all the other recommendations in the report; but there is one other about which I should say a word first, of all. Perhaps the most serious criticism which 331 the Phillimore Committee levelled at the present law was its uncertainty, especially as it affects the Press.
One aspect of this uncertainty is that each court which has had to consider a case of alleged contempt by the Press has applied its own formula as to the test of strict liability for contempt—that is to say, liability even though the contempt was unintentional—and each formula has, I fear, tended to be slightly different. The Phillimore Committee recommended not only that a statutory formula should be enacted, but that the emphasis should be shifted so that publications would be caught only where the potential prejudice or impediment to the administration of justice is serious. This would not only enlarge the area of Press freedom but also make its boundaries less uncertain. It is a point which needs to be borne in mind when we are considering the four issues raised in the discussion paper, to which T now turn, because it is relevant to all of them and is an important background consideration if these other matters are also to be dealt with.
The first question is that of a starting point for strict liability for publications which may cause prejudice to civil or criminal proceedings. The present position in England is not wholly clear. For a long time it has been assumed, on the basis of judicial statements in a number of cases, that there may be strict liability when the proceedings are imminent. In Scotland until this year it was assumed, on the basis of the Stirling case in 1959, that the courts would impose strict liability at an even earlier stage, namely, when the prosecuting authorities started to investigate a crime. However, the Phillimore Committee say that they could discover no case either in England or in Scotland in which strict liability had actually been imposed in respect of a publication before proceedings, civil or criminal, had started. They found only one case where that had been done— and that was in Northern Ireland in 1961— where two prejudicial articles about a murder suspect appeared on the day before he was arrested, and the circumstances were such that the reporters in question, as well as the suspect, knew very well that he was likely to be arrested before long. However instructive the facts of that case are, the report of it 332 indicates that the court did not go very deeply into the question of the starting point for strict liability. The committee thought that the uncertainty of the "imminence rule", if it can be so called, had in their words:… an inhibiting effect on the freedom of the Press which is out of all proportion to any value there may be in preserving it".They propose the simple rule that strict liability for contempt in relation to criminal proceedings should not begin until the proceedings have started. For this purpose the moment they selected was the time when the accused was charged with an equivalent rule in Scotland, since it is said that is a readily identifiable moment.
The Committee acknowledged, however, that there are strong arguments the other way. I think it is clear that there is no precise moment at which prejudice may start to arise, and that it may be caused before an arrest is made is borne out by the facts of the Northern Irish case to which I have referred. As was said by a judge in a case some 75 years ago:… it is possible very effectually to poison the fountain of justice before it begins to flow".For this it matters not whether or not the prejudicial conduct is deliberate.
An important point which is sometimes overlooked in discussion of this question is the defence provided by Section 11 of the Administration of Justice Act 1960, that if the publisher did not know or had no reason to suspect that the proceedings were pending or imminent he should not be guilty of contempt. That is an existing statutory defence.
Again, it is in the public interest that a guilty person should be convicted, but if his case has been so prejudiced that he cannot get a fair trial by reason of "trial by newspaper" or the kind of illustration my noble friend was giving, his conviction may have to be overturned—that has indeed happened on at least one occasion in the United States—or at least the prosecution might have to be abandoned and a guilty man, for that reason, go free.
It is for consideration, therefore, whether in the pursuit of certainty the Phillimore Committee's recommendation would go too far and create an unacceptable risk that a suspect will be seriously 333 prejudiced before he is charged. A memorandum I received recently indicates that my doubts on this are shared by the Law Reform Committee of the Senate of the Inns of Court and the Bar, although it is only right that I should say that in relation to civil proceedings they recommend going further than Phillimore and confining strict liability to publication in relation to cases which are to be tried by jury.
As my noble friend mentioned, there has been a new development in Scotland this year on the starting point in criminal cases. In the case of Hall, he was arrested in January and two days later an article about him was published which it was thought might be prejudicial. Hall was subsequently charged with murder and his trial received a good deal of national publicity. In the contempt proceedings against the newspaper which published the article, a court of five judges of the High Court of Justiciary was specially convened to hear the case. In a very full judgment the court laid it down that there is a starting point for contempt of the jurisdiction by the court, and that point is the moment when the accused is arrested or a warrant for his arrest is issued. The court went on expressly to disapprove of the dicta of Lord Clyde in the Stirling case, that the court's jurisdiction in the matter of contempt by prejudicial publication may run from the time at which a crime is suspected and investigation by the criminal authorities has begun. Although the court's ruling in this case was that the starting point should be the arrest or the issue of a warrant for arrest rather than the time of charge, as Phillimore recommended, this conclusion is not really very far from that recommendation. It remains to be seen whether this view will be followed by the courts in the other jurisdictions in the United Kingdom, but all I can say at the moment is that we are keeping an open mind on this question and will listen carefully to views which may be expressed in this debate.
The problem of prejudicial publication does not arise so acutely in civil proceedings. Here the Phillimore Committee's recommendation was that the starting point should be when the case is set down or, in Scotland, when proof or jury trial is ordered. The main difficulty here is practical rather than a matter of principle.
334 In many civil proceedings, there is no such stage and although the committee recommended that provision should be made for such other proceedings by rules of court, the result, I fear, could well be a confusion of different starting points.
One aspect of this matter to which the committee drew attention is that of the "gagging writ", by which is meant a writ served simply in order to involve the law of contempt for the purpose of stifling adverse publicity about the writ server. Perhaps the Press has been excessively timid in this area, but it is of course something which has to be borne in mind when we consider this question. Clearly the objective which the Government and, I think we, should have in mind is to have a clear and simple rule.
The second main issue raised in the discussion paper is that of defences, to which again my noble friend referred. The committee made four recommendations regarding defences: two are that a publication which creates a risk of serious prejudice to legal proceedings should be justifiable if it is a fair and accurate report of the proceedings in open court or if it is part of a legitimate discussion on a matter of general public interest. The Government have serious doubts about whether all the problems involved in these defences have been fully appreciated.
The proposal exempting fair and accurate reports of court proceedings was prompted by doubts which had arisen in the Poulson and Kray cases, where there were widespread reports of proceedings against persons who were likely to be tried on other charges in the near future. The proposal broadly corresponded with what the law had previously been thought to be; but it turned out to be by no means entirely straightforward. An accurate report of legal proceedings may include matters discussed in the absence of the jury, which ought not to be reported in newspapers while the trial is in progress. The committee referred to this problem in connection with arguments in the absence of the jury regarding the admissibility of evidence which is so frequent a feature of criminal trials, alas! today. But it may arise in other ways as well. The Border Television case earlier this year gives an example. The accused pleaded guilty to some counts in the 335 indictment and was tried on others of a similar nature. The pleas of guilty were reported. The judge stopped the trial and sent it elsewhere. He thought that essential for a fair trial. The Divisional Court agreed and found a contempt established.
The proceedings in 1975 against the Socialist Worker newspaper for disclosing the names of witnesses in a blackmail case were another example. In commenting on that, Phillimore proposed that the judge should be given a statutory power to prohibit in the public interest the publication of names or other matters arising at a trial. But, my Lords, such a power would have to be framed in the most general terms if it is to ensure that in all cases of genuine need a judge's request for non-disclosure should always be heeded. This, I think, is not an easy problem. The Socialist Worker case came too late to receive more than a passing reference in Phillimore. Its implications clearly deserve serious study. Argument in the Colonel B case, raising some of the same issues, was begun in the Appellate Committee of your Lordships' House last week but consideration of it is still continuing. It is of course sub judice and I make no comment upon it.
The proposed defence of general public discussion is intended to preserve the public interest in uninterrupted discussion of the issues of the day. I think we would all agree that public discussion of important issues should not be stifled. But, given the new test of serious prejudice, this seems unlikely to occur, unless the discussion focuses closely on particular features of the litigation in question. Even with the present test, public discussion on the safety of drugs continued unabated throughout the thalidomide proceedings.
The third major question concerns the Phillimore proposal that it should not be contempt to bring influence or pressure to bear on a party to legal proceedings, unless that pressure goes as far as intimidation or unlawful threats to his person, property or reputation, and this, of course, was one of the issues which arose in the Sunday Times case.
Unlike the House of Lords in that case, the Phillimore Committee drew no 336 distinction between Press comment and criticism which is fair and temporate, and that which is unfair and intemperate. Their recommendation would permit both. The Government doubt whether that is right. We are all conscious of the great pressure which, as Phillimore acknowledged, the media can bring to bear on a litigant. Even a really virulent campaign of execration by the media against a litigant, designed to induce him to abandon his claim, would not necessarily be a contempt under the rule proposed by Phillimore, unless, presumably, it was liable to prejudice the court or to deter the party's witnesses.
The fourth and last main issue concerns the Phillimore proposal that conduct which is deliberately intended to prejudice legal proceedings should be treated as contempt only if it relates to specific proceedings, as distinct from the administration of justice generally. The Committee took the view that conduct of the latter type should normally be dealt with as a criminal offence. But it may not be possible for the criminal law always to be able to provide effective remedies. Parliament rightly insists that criminal offences should be framed in specific and restrictive terms.
Again, I refer to the Socialist Worker case, where the newspaper published the names of blackmail victims who, by order of the judge, had not been named in court. The publication could not have prejudiced the particular proceedings, because the witnesses had already given their evidence. Publication was objectionable mainly because, if it was permitted, it would tend to deter blackmail victims from giving evidence in future cases. This could, without doubt, prejudice the course of justice as a continuing process.
It is for the reasons I have endeavoured to explain that the Government have so far been unable to arrive at firm conclusions on the implementation of the Phillimore proposals, and we have published the Green Paper so that we may have the benefit of informed views upon them.
As my noble friend said, there are two other factors which have to be taken into account before final decisions can be reached. One is the forthcoming decision, to which my noble friend has referred, of the European Court of Human Rights 337 on the complaint of Times Newspapers Limited in regard to the decision of this House in the Sunday Times thalidomide case. I understand the decision in that case will not now be made until the New Year. In view of the impact which the decision of the European Court could have, it is plainly essential for us to know what it is before we can decide on the way in which the law of contempt should be reformed I do not think that I shall venture to anticipate what our response will be, until we hear the decision of the European Court. Here, again— and I give my favourite quotation from Lloyd George—it is undesirable to traverse a chasm in two leaps. So we had better wait to hear what the decision of the court will be; and we shall know in the New Year.
The second factor is the forthcoming report of the Law Commission on offences against the administration of justice. The Phillimore Committee referred to other branches of the criminal law, which are designed to protect the administration of justice, and observed that it was not possible to consider the law of contempt in isolation from these related areas of the law. I certainly share that view, particularly in view of the Phillimore recommendation that the scope of the law of contempt should be restricted. If all or any of those restrictions on the scope of contempt were to be implemented, it would be more necessary for all concerned to know how far the mischief could be dealt with in related areas of the criminal law. I hope that the Law Commission's report—this is my response to my noble friend's question—may be in my hands during the first half of next year.
I conclude by once again congratulating my noble friend on his initiation of this debate, and by assuring the House that whatever is said tonight will be given the most careful consideration by the Government, before they bring forward legislative proposals in due course. I cannot, for a large number of reasons, promise that it will happen in this Session of Parliament.
§ 6.27 p.m.
§ Lord RAWLINSON of EWELL
My Lords, if there was any doubt among the intrepid noble Lords who are not lawyers, and who are still here after an hour of debate, that the law of contempt is not 338 complex and difficult, I think it will have been speedily discharged. It may be some comfort to them to know that I do not exclude those distinguished noble and learned Lords who sit on the Cross-Benches from those who find the subject difficult. The media claim that it is so confused and uncertain that it imposes many difficulties upon them, and there is some justification, if not much, for their claim. However, if it be the duty of Parliament to assist the Press and journalism generally by the enacting of some at least more workable, clearer system, whereunder the Press can know better what may or may not be published without offending, I think the Press in return should move into an area in which they could reciprocate, and stop the risking and muddying of the streams of justice, by ceasing the system of payment, direct or indirect, of monies for services or stories by persons whose notoriety arises from proceedings in court. That is an activity which generally scandalises very many people and may lead to consideration of whether to prohibit such activity, or to make disclosure of any such payments compulsory. I say that by way of introduction, because I want to make it clear that I am in favour of Parliament attempting by enactment to clarify this difficult branch of the law.
The history of the Phillimore Committee, to which the noble Lord, Lord Lloyd of Hampstead, referred, pointing out how powerful a committee it was, is that it was appointed by my noble and learned friend Lord Hailsham when the last Administration was in office. That followed the establishment of three committees by the then Leader of the Opposition, before that Administration came into office, on defamation, the Official Secrets Act and contempt of court. Those are three areas on which I do not think there can be any doubt among those who practise in the courts, or those who are engaged in public life, or indeed those who are engaged in publishing or in ordinary activities, that the law is not adequate for the present day and needs serious attention.
Defamation—largely judge-made law, which is not satisfactory—results today in totally unreal awards of damages. The recommendations of the committee which sat under Mr. Justice Faulks surely need urgent Parliamentary attention The 339 proposals of the committee on the Official Secrets Act which sat under Lord Franks also need urgent Parliamentary attention.
Contempt of court is probably the most complex of all subjects. A very powerful committee was brought together by my noble friend. As noble Lords will appreciate, it included three judges— alas! two of them are now dead—and a very experienced editor. As the noble Lord, Lord Lloyd of Hampstead, said, it also included a television journalist of unique distinction and a military academic of the first rank. It was a small committee, but one which was very well equipped to deal with this complex matter. It had this unique combination of law and journalism, plus the academic with the soldier's approach to these problems. It differs in that sense from certain more recently appointed committees which are manned by persons without such obvious authority and experience.
This very powerful committee spent three and a half years on the matter. It was the subject of detailed and thorough study—much greater study than can be given by learned judges who have to face this problem now and then (fortunately not very often) when a case of contempt of court appears before them. I, like the noble and learned Lord the Lord Chancellor, appeared before the Committee as a witness and I can testify to the care and penetration with which they probed the problem. Their conclusions, therefore, must surely bear the greatest weight. The onus is upon those who reject their conclusions to establish the reasons why their conclusions should be rejected.
I do not accept all of the committee's conclusions. I was in the unenviable position of being both a party and advocate in the case to which the noble Lord, Lord Lloyd of Hampstead, referred. It is, I suppose, the leading case in contempt. It is always difficult when one has to appear in those two roles. One is always advised, of course, never to be one's own advocate, but on occasion the Attorney-General has to be both. I note with interest that one of the noble Lords before whom I made submissions and who totally rejected them is to speak in the 340 debate. Another noble Lord before whom I made submissions and who agreed with them is also going to speak in the debate. Therefore, I await their contributions with the greatest interest.
It is right to say that we have to await the decision of the European Court of Human Rights, although I am not quite sure why we have to do so. The possibility of their rejecting the conclusions of the highest court in this land on an issue which is wholly domestic and wholly apt only for our processes and proceedings is one which disturbs me, for it concerns very much the authority of our courts. I am minded to say that we have to await what they will say because of the treaty to which we are a party, but I shall not be very much guided by the advice which they may give in their decision. Secondly, there is the Law Commission's report on offences relating to the administration of justice. That is very important.
I believe that the time has come to make up our minds. The committee sat for a long time and was manned by very distinguished people. Their report was published three and a half years ago and we have had all that time in which to consider it. The Green Paper is a very important and useful document and I understand the difficulties which any Administration must be faced with in dealing with this problem.
In our modern age, "contempt" is an awkward title. It does not give the impression of what it sets out to do. It gives the impression that contempt of court is a weapon to maintain the dignity of judges. It is nothing of the kind. It is not intended to maintain their dignity. It is intended to maintain the authority of the courts of law. On the authority of the courts of law, on the acceptance of the authority of the courts of law, and on the enforcement of the authority of the courts of law in no small part rests the concept of freedom under the law. A free society requires the enactment of law after debate in Parliament and the implementation of the historic common law.
It is vital that out liberties should be guarded by the institutions established by law and by nobody else. They are not to be decided by gossip, or rumour, or scandal, or by unelected journalists 341 or other outsiders, or by elected or unelected parliamentarians. Parliamentarians should be the first to understand the importance of the need to maintain the authority of the courts of law. Parliament is very jealous of its privileges. For many years I served in another place on the Committee for Privileges. They are rightly jealous of their rights and of the authority of Parliament, which is designed to enable parliamentarians to execute their duties without improper pressures from outside. That is also true of the courts.
Parliament should be the first to support the instruments which have been set up to execute the law which Parliament has enacted. Therefore the courts must be entitled to protection from outside pressures. They must be entitled to see that their authority is upheld. The parties concerned—accused, prosecution and witnesses—are entitled to protection and relief from influence in proceedings. That is why I say that the Appellate Committee of this House was correct in the case of the Sunday Times. No matter what is the particular position of the parties, where there is a deliberate attempt, in my view, to influence the conduct of litigation, which has ultimately to be decided by the courts, it is wrong and should not be accepted.
The administration of justice, which has got to be impartial, must be un-pressurised. That is of primary public interest. I emphasise the words "public interest". By that I do not mean public curiosity, which is often merely trivial and prurient. Greater judgment, even when there is the right to report, might well be exercised over the form of reporting. But it is of major public interest that the public should be able to see, hear and witness the administration of justice by the courts, because the dispensation of justice is probably the most important function that a civilised State has to exercise and makes all the difference between a totalitarian State—where the will of the State is the will of the Government and the will of the Government is the will of the Party, and that they make the law—and a free society.
Therefore, major importance has always been attached in the United Kingdom, as the noble Lord, Lord Lloyd of Hampstead, 342 made clear, to fair trial and prevention from outside influence. That involves restrictions upon other rights. If any danger threatens that fundamental principle, then that other right must give way. The noble Lord was right to point to the kind of practice overseas—for instance, the headline "Arrest of the Assassin" or, in another jurisdiction, as he pointed out, the district attorney giving his Press conference. The United Kingdom has resolutely rejected that kind of practice.
Also, we have to accept the modern factor that there has been a greatly increased extension of the influence of the media and its access to a vast audience. Therefore, it is important to ensure that there is no lessening of the principle, and the extent of the increased influence exerted by the media must not be ignored. Ten years ago there was no restriction upon the reporting of committal proceedings. In 1967, however, a limitation was imposed by the Criminal Justice Act. My own view, quite apart from tie quirk of the enacted law which permits one of many accused to have publicity even if the others of his co-accused do not wish it, is now that there should be a change; that the committal proceedings should be treated in a similar way to interlocutory proceedings in a civil process, and that therefore the reporting of the committal proceedings should be no longer permitted.
Even during the trial, as the noble Lord, Lord Lloyd of Hampstead has pointed out, there has arisen nowadays a new fashion in daily and weekly magazine style of articles, and even in television commentaries during the course of a trial. We must realise that this; could lead to what happens overseas, where juries are kept together without access to Press or television during the trial because it is vital that a jury should not be influenced by any outside pressure, either for or against the prosecution or defence. They decide upon the evidence, and that is why we have established a set procedure and the rules of evidence.
As I have said, it is clear from the Green Paper that the Government have borne in mind all those matters, and they have been impressed by the difficulties. However, I think the time has come when we all have to make up our minds. It is 343 no longer possible for us to be able to say, "These are the difficulties. What shall we do? We will deal with each case as it comes along". The difficulties that we then give to the judges are too great. Therefore I believe that we cannot leave the situation as it is and that codification is required. I believe that Phillimore got it about right.
Therefore, in my view—and I will sketch this through quickly in a debate in which many noble Lords wish to speak—there should be total restriction upon committal proceedings, because I treat that as an interlocutory process unless the charge is dismissed and the accused are discharged, when, as now, publication should be permitted. As now, there should be restriction on certain domestic proceedings and matters relating to children, with power for the judge to lift the restriction. As now, there should be restriction on the identification of rape victims and the accused (only recently introduced), until the accused is convicted when, of course, his identity may be made public. As now, there should be restriction on indecent evidence and evidence in matrimonial proceedings. As now, on application of the Crown under Section 8 of the Official Secrets Act in cases concerning national security, the court should be able to go into camera.
Then there is the case to which the noble and learned Lord the Lord Chancellor referred, the publication of evidence prior to verdict of any matter in a jury trial: where the accused has pleaded not guilty there should then be no publication of matter indicating that that accused has pleaded guilty to other offences or that he has any previous convictions; nor should there be publication of any part of the proceedings in open court where the judge has ordered the jury out of court. Finally, I believe that there should be a total restriction—now I think it will have to be in statutory form—of any matter which may lead to the disclosure of the identity of a witness whom any court has directed should be permitted to give evidence anonymously, provided the court has exercised that power on the grounds of national security, personal danger to the witness or where disclosure was likely to impede the prevention or detection of other offences or the apprehension and prosecution of offenders.
344 I would make the publication of those matters in conflict with those proposals an absolute offence, with penalties and with power to the Attorney General to apply for injunction to restrain any breach. Apart from offences in the face of the court, which I do not propose to deal with and which I think Phillimore suggested should be separate absolute offences —disturbances in the court, scandalising the court and judges—I believe there should be no strict liability for contempt by publication which tends to prejudice a fair trial before, in a criminal case, a charge has been preferred or a summons issued (which is the Phillimore recommendation), and in a civil case where the case has been set down for trial or a date has been fixed for hearing.
I personally have much sympathy with the proposal which the Law Reform Committee of the Senate of the Inns of Court have put before the noble and learned Lord the Lord Chancellor, and to which he has just referred. The case of Hall v. Associated Press has shown that the law of England and Scotland has drawn much closer together than it was thought, when the law of Scotland was thought to be that of Lord Clyde in Stirling v. Associated Newspapers. It is obviously desirable that the law in both countries should be the same because clearly, whatever border may come into existence after devolution, the publications will still flow across it.
So I consider that in modern times we should accept the main Phillimore majority recommendations. That would give to the Press the yardstick, that is to say a moment in time when comment would be replaced by strict reporting, and make the test the serious impeding or prejudicing of a fair trial. I consider that on balance there are difficulties and, although there are certain risks and as much detail will have to be considered in drafting the legislation, that the acceptance of such recommendations, while freeing the Press from reasonable anxieties and uncertainties, would still maintain a devotion to the fundamental principle of the paramount importance of a fair trial and the administration of justice.
§ 6.46 p.m.
§ Lord DENNING
My Lords, I hope your Lordships will forgive me for speaking out of turn. My noble friend Lord 345 Wigoder has been kind enough to let me say a few words now because I have an engagement later in the evening. Like the noble and learned Lord the Lord Chancellor and my noble and learned friend Lord Rawlinson, I gave evidence to Lord Justice Phillimore's Committee, and as Lord Justice Phillimore and I sat on the thalidomide case in the Court of Appeal—and I hoped that we had decided rightly, but the House of Lords decided otherwise—perhaps I may say a word or two in support of the committee's recommendations.
The law of contempt of court in England has been evolved by the judges. There is hardly any statute dealing with it at the moment and, on the; whole, the judges have done well. Comparing it, for instance, to the United States of America, if I go there or to other countries they want to know about our law of contempt of court. In the constitution of the United States of America freedom of the Press is guaranteed so highly that it takes precedence over, it seems, even a fair trial and many other fundamental interests. I hope that we shall be able to keep the right balance here. It is between, on the one hand, the importance of a fair trial and the administration of justice and, on the other hand, the importance in the public interest that matters of national importance should be discussed and made public to the world at large, whether in the Houses of Parliament or in the newspapers, so that all may know what is concerned.
I should like to say one word on the thalidomide case. The trouble with the drug was that in the year 1962 all the deformed babies were: born; ten years later cases had not come to trial. It was a grave national concern and there should have been a public inquiry, but there was none. It was all the subject of individual litigation carried on for all that time, so much so that eventually, in 1972, not only in the newspapers but in the other place there was a debate when the whole matter was raised. Was it not right also for the newspapers at that stage, in a matter of public interest, to discuss it, even as the House of Commons had discussed it? The rules of sub judice apply in these Houses equally as well as in the courts of law, and the laws should be parallel in each. Therefore, I would suggest there is a great deal to be said 346 for what is implied in Lord Justice Phillimore's recommendations, that perhaps the law went too far in condemning the newspapers in that case.
As I read Lord Justice Phillimore's committee's report, they would propose the test! is there a substantial and serious prejudice to the course of justice in a pending suit? I would suggest that it may be desirable that there should be legislation upon it. But I would agree with my noble and learned friend the Lord Chancellor: let it wait for the European Court, but do not let us be bound by it; do not let us let them give too much rope to the newspapers. Because the other thing which the courts in England have done is to stop trial by newspaper. We have not got that evil as they have in the United States.
And what about gagging writs in the civil cases? We have had them a little while ago. A shareholder circularised the other shareholders; he went to the company meetings saying that there had been wrongdoing among the directors. And what happened? A writ was issued against him for libel and for slander. The next time he wanted to raise the matter it was said, "You cannot comment now. It is all sub judice. It is contempt of court if you comment on these proceedings", because the writ had been issued, a gagging writ, especially issued to try to stop the truth being known or fair comment being known. I hope, certainly from what has been held by the judges, that we shall no longer allow these gagging writs.
I would add only one or two more words in support of what Lord Justice Phillimore's committee said. How much I would agree with what I gather the Court of Session has said in Scotland: let the newspapers be restrained from the moment the charge is made or the accused arrested, or whatever it may be. But it is making it too uncertain a test, as some cases have said, that they must not comment once a charge is imminent. Do not we know how the newspapers will put in a photograph of a man whom the police may wish to interview, or speak of people who are helping the police with their inquiries? What are they but comment before the man is charged? For certainly, I would commend what Lord Justice Phillimore suggested in criminal trials, that the rule comes down once the man is charged. As 347 to civil cases, it should not be as early as just the issue of the writ or even the setting down. I ventured to suggest to Lord Justice Phillimore's committee that comment should not be strictly prohibited until the case is coming near for trial.
All these are really only small points on our present law. On the whole, the law of contempt of court at the moment works well. It stops abuses by the newspapers, and on the whole, certainly in preserving order in the courts, we have followed the advice of Lord Justice Phillimore's committee, and that, too, works well. Our law on contempt of court is, I believe, more effective than that of any other country in the world. Let us maintain it, but let us put on the small amendments suggested by Lord Justice Phillimore's committee. Wait, of course, for the European Court, but I am not quite sure whether the Royal Commission are going to deal with contempt of court. Perhaps my noble and learned friend the Lord Chancellor will be able to tell us. I am not sure it is a matter which needs much alteration from what it is at the moment. At all events, I would welcome and hope the Government can do something about Lord Justice Phillimore's report.
§ 6.55 p.m.
§ Lord WIGODER
My Lords, I have the uneasy fealing that I am taking part in the rather artificial ritual of an elaborate gavotte, a routine devised by our democracy in order to enable us to avoid taking difficult decisions on matters of real importance. The steps that we have taken so far, which are familiar in many other areas apart from contempt of court, have been first of all to set up a Royal Commission in June 1971, to invite representations from everyone who is interested; the Royal Commission then reports after just under three years of diligent sitting. For some extraordinary reason it takes nine months for the report actually to be printed. There must perhaps have been problems with the new technology even in those days. After the report is printed there is a further delay of three and a half years while the Government reflect upon the reflections of Phillimore upon the whole problem, an even longer period than the Phillimore Committee itself took.
348 The Government then issued a Green Paper in March of this year, and I think I must, if I may, join with those of your Lordships who have congratulated the noble Lord, Lord Lloyd of Hampstead, on the almost indecent haste with which he has managed to bring the matter before your Lordships' House after a lapse of only another seven or eight months. I would suspect that if the routine is now carried out faithfully there will be, after the debate in your Lordships' House, a further period after which it will be pointed out by the Government that as no consensus was reached in the debate in Parliament it is clearly not practicable to take any further steps for the time being. I used, perhaps, not an appropriate meta-phore when I referred to a gavotte; it is really rather more of a politicians "excuse-me."
Phillimore achieved something of course, at once, or almost at once, because Phillimore made various recommendations as to contempts which were committed in the face of the court, which would have resulted in the proceedings taken there and then by the judge being rather more of a judicial nature and rather less of instant retribution. Those recommendations have been largely acted upon as a result of the indications given by the Court of Appeal in 1975. That much has been achieved.
I do not know if I may weary those of your Lordships who are not legal historians and who are, I believe, very much now in the minority in your Lordships' Chamber, by reminding your Lordships of the famous occasion, in I believe, the Shoreditch County Court. A particularly meek and mild county court judge gave judgment against a woman plaintiff, at the end of which she picked up a large brown paper bag, removed from the bag a dead cat and hurled it at the judge's head. After the judge had removed the dead cat from his lap he, in his mild way, uttered the most dire threat that he could think of; he used the immortal words "Madam, if you do that again …". That situation—and there are recorded contempts of that nature throughout the history of the courts— has, I think, been adequately dealt with now as a result of the Phillimore Committee, and for that we ought to be grateful.
349 But for contempts outside court problems of course arise. They arise, as many of your Lordships have pointed out in this debate, as a result of a genuine conflict between two real and important public interests. It is, therefore, inevitable, I think, that any solution to that problem must lie in a series of compromises, and must not lie in saying that either the principle of the purity of the administration of the law or the principle of freedom of the Press is always to have precedence.
I am very sorry that every noble Lord who has put his name down to speak on this topic this evening is, in fact, a lawyer. I should have thought that this topic was of at least as much concern to those many Members of your Lordships' House who are, in one way or another, concerned in the media and particularly the newspaper industry. However, because everyone who is to speak is, in fact, a lawyer I hope very much that noble Lords will not gain the impression that lawyers are oversensitive about this matter. I should not think it appropriate that we should seek to be so. We should try to hold a proper balance between the integrity of our administration of the law and the freedom of the Press. I therefore suggest that the Phillimore Committee was right when it recommended that, in terms of strict liability for publication, there would have to be serious prejudice shown in order that contempt should be committed. We ought not to be too touchy about the trifling prejudice that may result in one way or another.
When the Phillimore Committee went on to consider the time after which contempt might become possible of commission, I wonder whether perhaps somewhat unnecessary and exaggerated emphasis was not placed on the dangers to the administration of justice by publications in newspapers or programmes on the media. I should have thought that, in the vast majority of cases—both civil and criminal—in which juries do not take part, the chance of prejudice to professional judges in courts of appeal, to judges in courts of first instance or to lay magistrates is, in fact:, negligible and is not a threat that ought to be regarded as very grave.
As to the danger where juries are concerned, I am bound to say again that 350 I regard it as being somewhat exaggerated. I am inclined to believe that juries in the first place forget very quickly what they read in the papers, and certainly something that they have read in the papers two or three weeks ago or two or three months previously goes very easily out of their minds when they settle down to try a case. Secondly, when juries are told by the judge to put out of their minds anything they may have heard or read about a case, I am in very little doubt that they are perfectly capable of doing so with complete success.
I should like to remind your Lordships of a murder case in which the Kray family were involved. It was a particularly unpleasant murder case which was tried in two separate trials. The first murder was publicised on the front page of every newspaper day after day, and there was a conviction. When the trial for the second murder started the following day, it was argued that it was impossible for any jury not to be prejudiced by what they had read. There was evidence in the second case. The case went to its conclusion and the jury in the second case, in fact, acquitted the defendants. That I think indicates that juries are not quite so easily prejudiced, and we ought not perhaps to be too mealymouthed about the possibilities of prejudice in that way.
The London School of Economics has done a certain amount of research on juries with simulated trials and it has monitored juries listening to the same trial. It might be of assistance if it could do some research into this aspect of the matter and have a simulated trial with different juries, in some cases giving the jury utterly prejudicial information, but telling the jury to put it out of their minds. I would strongly suspect that the result would show very little difference whether the juries were given that prejudicial information or not. After all, in the United States of America very frequently extremely prejudicial information is published in the Press—for example, about the defendant's previous convictions—at the moment he is arrested. I doubt whether that leads to any more miscarriages of justice in the United States than we have in this country.
One other matter of possible prejudice to juries that I want to mention— especially as it has been mentioned by the 351 noble and learned Lord, Lord Rawlinson— concerns committal proceedings in cases of notoriety where there are a number of defendants and one defendant elects to remove the restrictions on publicity. Under the present law the restrictions must be lifted for all the defendants As I understood him, the noble and learned Lord, Lord Rawlinson, was suggesting that the restrictions ought not to be removed in those circumstances in relation to any of the defendants.
I wonder whether a third course might not be more acceptable, and whether it ought not to be recognised that there may be valid reasons for removing the restrictions on publicity—for example, it may be that fresh evidence will come to light, witnesses may be found as a result of the publicity and so forth. And, that in such a situation, if one defendant out of a number of defendants seeks to remove I the restrictions on publicity, the reasons should be put to the court, to the magistrate, and the magistrate should decide where the interests of justice lie if there is, in fact, a genuine conflict of interest.
Bearing in mind what I believe to be correct about the fact that our judges will certainly not be prejudiced by printed matter appearing before the trial, and that juries are far less likely to be prejudiced than is commonly supposed, I should very much support the recommendation of the Phillimore Committee that the effective time should be the actual commencement of the proceedings, and not any earlier date at which it is said the proceedings might be imminent. Certainly in the civil sphere that would have a very remarkable effect in reducing the evil consequences of gagging writs, about which the noble and learned Lord, Lord Denning, spoke. I know that it is possible to construe certain passages in the Sunday Times' thalidomide case as indicating that the Press might take its courage in both hands and ignore gagging writs in future. However, I think that one cannot blame the Press for being a little reluctant to rush into this rather difficult area.
The only other problem that I should like to raise for one moment is one which has not, I think, been considered either by the Phillimore Committee or in the Government Green Paper, and it is not 352 one upon which I can offer any reflections as to a possible solution, or, indeed, want to invite the noble and learned Lord on the Woolsack to do so this evening. However, what might have been thought at one time to be wholly unrealistic is perhaps now a real possibility; and is, that a flagrant contempt of court might be committed under the cloak of Parliamentary privilege in one or other of the Houses of Parliament. Where that happens it might, of course, not in itself be prejudicial because there are very few potential jurors in the ordinary way sitting in the public galleries. However, where that happens it appears to place in real difficulty the position of, for example, Hansard; the position of newspapers that normally report the proceedings in the Houses of Parliament, and in particular the position of the broadcasting authorities if they happen to be broadcasting the contempt at the time it is uttered in the House of Parliament. I can see that it could very easily be possible to make most damaging remarks about pending or current cases in one or other Chamber of the Houses of Parliament, and recent history rather indicates that that is no longer the remote possibility that it might have been thought to be some years ago.
I hope that the Government will not eventually take the view that the problem is too difficult to deal with; I hope that they will accept the majority of the Phillimore Committee's proposals. I believe that that would create an area of certainty where much is uncertain, and I believe that those proposals would adequately protect the integrity of our administration of justice; but that they would, at the same time, extend and ensure the continued existence of the freedom of the Press. Like all of your Lordships, I know that where there is freedom of the Press it is bound to be exercised from time to time with grotesque irresponsibility. I do not think that that is any reason for seeking to whittle it down. In those circumstances, I hope that the Government will, in due course, find that the recommendations on the lines of the Phillimore proposals and the main issues are acceptable and can be brought into effect.
§ 7.10 p.m.
§ Lord GARDINER
My Lords, I have a special reason for being grateful to my 353 noble friend Lord Lloyd of Hampstead for enabling us to discuss this report this evening: It is that in my very old age I have reluctantly come to the conclusion that recent Governments have appointed too many Royal Commissions and too many committees, and not paid enough attention to what happens when they report. I am afraid that sometimes—and I draw no distinction between the Parties—Governments appoint commissions or committees because it means that they do not have to worry about the particular matter for quite some considerable time.
I should like to cite one example from something that has happened in the last 48 hours. I remember in the 1960s going to a conference of international Western lawyers in Stockholm on the question whether or not a citizen should have a right of privacy. In January 1970 Justice produced a report on privacy accompanied by a draft Bill which they persuaded a Private Member of the other place to introduce. On Second Reading the then Home Secretary, now my right honourable friend the Prime Minister, said that if only the supporters of the Bill would not press the Second Reading to a Division, the Government would appoint a Government Committee on Privacy. Wisely, or unwisely, the Justice supporters accepted that offer.
Then the Younger Committee on Privacy was appointed, and it reported in July 1972. So the Government had already gained two and a half years. That report of course dealt not only with privacy, quite apart from computers, but also with computerised personal information. Three and a half years having elapsed since then, in December 1975—by which time six years had been gained—the Government published a White Paper containing their views. It did not really deal at all with a large part of the field, but it did deal with computerised information. I thought that it was a first-class White Paper and I strongly supported the conclusions to which the Government then came. They settled what was their policy in relation to computerised information, but they said that from a practical point of view it needed a practical committee which knew about computers to work out how it was actually to be done.
Therefore, in June 1976 the Government appointed a data protection committee. 354 That committee worked very fast, considering the difficulty of the field. It took 18 months to report. It heard everyone who had knowledge on this subject—the manufacturers of computers, the users of computers and civil rights bodies. It received 300 written representations and saw, I think, 60 witnesses. The day before yesterday it produced its report. Here it all is. It contains the views of all those people and their recommendations as to the practical way in which to deal with computerised information, accepting, of course, the policy principles which the Government had laid down.
The day before yesterday, in announcing the publication of the report, my right honourable friend the Home Secretary pointed out that:The general framework of the Government's policy … was described in the White Paper".He then said:Before reaching any conclusions; on the committee's recommendations the Government will wish to have the views of computer users and others who would be affected by the recommendations, and will also take full account of views expressed in Parliament and elsewhere. Representative organisations who are known to have a special interest in the subject will be approached direct by the Government Departments concerned".—[Official Report, Commons, 5/12/78; cols. 556–7.]So all the people, who have already said what they thought to the committee and whose views are all set out in the report, are to be approached by the Government all over again. They are to repeat to the Government the views which they have already expressed to the committee. Obviously, that will take at least a year, and by that time the Government will not be in office. In June 1971 the then Government appointed this committee, being clearly of the opinion—with which I think we should all agree —that this was an area of the law which needed an overhaul.
In June 1971 the then Government appointed as chairman of this committee on contempt of court a judge who was not only distinguished as a judge but as a Lord Justice. I think that it would have been difficult to find any judge who was as capable, as extremely sensible or a man of as great common sense as that chairman.
We have now has the opportunity of seeing the Green Paper. Of course, I 355 make no complaint at all that it looks as though someone in the office of my noble and learned friend on the Woolsack has been told, "You think out all the possible objections to the recommendations being made." That is quite natural and quite right because it is to contribute to public discussion. In its report the committee give the reasons for favouring its own recommendations. Therefore, it is quite natural and proper that we should have had put before us all the objections.
I do not know what other speakers will say, but so far this debate has been of an unusual character. I have heard a great many debates on reports of commissions and committees, and what usually happens is that those who object to the recommendations turn up to object and those who agree with the proposals do not bother to come. However, so far tonight broadly speaking, every speaker—and certainly the noble and learned Lord, Lord Rawlinson of Ewell, the noble and learned Lord, Lord Denning, and the noble Lord, Lord Wigoder—has said that the recommendations in the report are correct.
I listened not only with interest but with pleasure and profit to what my noble and learned friend on the Woolsack had to say. However, there is something which he did not say, and I quite understood why he did not say it. He did not indicate whether or not there was any prospect of the recommendations being implemented. One understands the difficulties. As I understand it, the legislative programme is fully engaged and there is no room for anything else. In any case, the Government want to hear everyone's views. So far as I know, this matter has not yet been debated in the other place and it does not look as though there is any real prospect of anything being done. However, if I am wrong about this, I hope that my noble and learned friend on the Woolsack will say so when he replies.
I am only surprised that people are still willing to sit on commissions and committees, because more and more of the reports are not heeded. At least this report is being debated, whether or not it will lead to anything. But in many cases reports will not lead to anything and if my information is correct, Governments are finding it increasingly difficult to get 356 people to sit on commissions and committees if their reports are not implemented. Here the debate so far as shown that the general view in this House is that it was right to appoint this committe, that it has done a very good job and that, broadly speaking, the recommendations of the Phillimore Committee are right. Of course, 40 out of the 41 recommendations were unanimous. If that is the case, is it really impossible to hope that some time this Session—even towards its end—the Government could implement these recommendations?
§ 7.20 p.m.
§ Lord MORRIS of BORTH-Y-GEST
My Lords, the Green Paper which we are discussing pays tribute to the Phillimore Report as having been of the utmost value. Respectfully, I agree. Respectfully, also, may I commend the course followed by Her Majesty's Government in issuing this Green Paper and in inviting the views of members of the public, and inviting those views on the broadest possible basis. I am firmly of the opinion that public opinion can be, and should be of immense consequence in the development of our law and in ensuring that our law is in accord with, and is kept in accord with, rational and enlightened lines of thought.
We are discussing contempt of court. It is a strange phrase. It is a compendious phrase. The Phillimore Report pointed this matter out but said, and I think rightly, "Well, it is useful perhaps to keep the terminology because, broadly speaking, we know what we have in mind when we speak of contempt of court". But I would so much agree with those of your Lordships who have pointed out that it does not have as its basis any question of protecting the amour propre of members of the Judiciary. It has far deeper and more secure foundations.
I can think of no more helpful survey of contempt of court than is to be found in the speech of the late Lord Reid in the thalidomide case. We have to have in mind that the Phillimore Committee was appointed before the House of Lords gave their views in the thalidomide case, and I think we have to have in mind that the thalidomide case was very special indeed. It related to a great national tragedy. The facts were desperately sad, and the 357 proceedings extended over some years. I am sorry that my noble and learned friend—who is literally my noble and learned friend—Lord Denning, has had to leave for another engagement, but it was clear from his speech that he thought that the decision of the Court of Appeal was right.
May I just remind your Lordships of what happened. The Sunday Times published a number of articles pointing out what a great tragedy had taken place; pointing out the sufferings and deprivations not only of the infants themselves but of their parents; pointing out the need there would be for sustenance for future years. All those articles came to the notice of the then Attorney-General, my noble and learned friend Lord Rawlinson, and he decided to take no action in regard to them. Very respectfully, I think he was right.
There then came a time when the editor of the paper, very fairly, wrote to the Attorney-General and said, "Well, now I am proposing to publish an article on rather different lines. This article is going to set out various facts which can be asserted against the defendants in the case, Distillers, and this article might convey to any reader the idea, 'Oh, well, Distillers must be negligent'". That matter came before the Attorney-General, and he thought, "That is going too far". The matter went to the Divisional Court and the Divisional Court, if my recollection is correct, said that they agreed with the point of view presented by the Attorney-General. It went to the Court of Appeal, presided over by my noble and learned friend, and they took a different view. Then it came to your Lordships' House in its judicial capacity, and five Law Lords took the view that the decision of the Divisional Court was to be preferred to that of the Court of Appeal. But I suggest to your Lordships that what is really important is to see whether one does not find principle laid down in that case, and principle which is clearly laid down, and principle which really does today guide us when we have to consider what is contempt of court.
With your Lordships' leave, I should like to quote just two or three sentences from the speech of the late Lord Reid, for whose wisdom I have always had unbounded regard. They are as follows: 358The law on this subject is and must be founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should in my judgment be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be a real prejudice to the administration of justice".Is there not there the clearest possible guidance for all of us?
I would be very reluctant to quote any words of my own, but I did, I note, say:A court will therefore only find ' contempt' where the risk of prejudice is serious, or real, or substantial. If a court is in doubt whether conduct complained of amounts to ' contempt' the complaint will fail".When dealing with matters of public policy there is so often the process of balancing conflicting interests, as Lord Reid laid down. We believe in the freedom of the Press. We depend upon the Press. We look to our newspapers to inform us in regard to current events. We look to our newspapers to give expression to competing views on matters of public importance. We look to our newspapers to expose all forms of tyranny, corruption, evil practices, or harsh dealings. We must not restrict the ability of the Press to do all of those things unless it is really necessary to do so.
Here comes the divergence of public interests; on the one hand, the public interest that, with proper safeguarding of individual rights, there should be freedom of expression, and, on the other hand, the public interest that the administration of justice should not be prejudiced. We believe also in the rule of law. We believe that our courts will safeguard for us that rule of law. We believe that only by the upholding of impartial courts of justice shall we be saved from anarchy. So there comes this process of balancing public interests, and this balancing has to take place in an infinite variety of special sets of circumstances.
Some have taken the view, and the view has been expressed, that there are uncertainties in the law relating to contempt. What exactly does that mean? I submit that there are no uncertainties in regard to the principles involved, so clearly 359 laid down by Lord Reid. There is nothing wrong, in my submission, with those principles. The only uncertainty is that when a case of alleged contempt comes into court it cannot be known with certainty in advance what the result of the proceedings will be. Nor could anyone rationally expect to be able to turn to some document and find specific directions as to what he could or could not say in various circumstances; the range of their variety could not conceivably be spelled out.
That is so in various branches of the law. A court may have to decide whether a publication was or was not obscene. The writer could not sensibly say there was no book which specifically set out what words in what contexts could be safely published. The motorist knows he must not be negligent, but he could not be heard to say that he found no words in any statute which laid it down with precision what variety of driving at a particular point, on a particular road at a particular time, and in any one of a rich variety of different sets of circumstances, would transform slight ineptitude into negligence.
I submit that the Phillimore Report contains many valuable proposals which should demand further consideration, and they have been referred to: should there be powers given in magistrates' courts; should there be limits in regard to circuit courts; should there be some statutory limit as to a punishment that could be awarded in the High Court; should there or should there not be some separate criminal offence of scandalising the court?
The noble and learned Lord, Lord Rawlinson, put before us some interesting suggestions as to limiting the reporting generally of interlocutory proceedings. I fully see the force of all he said, but those proposals really belong to our law generally; they are not specifically related to the law of contempt. If adopted, they might have the result that the opportunities for contempt of court would, in that particular field, be limited.
Reference was made to cases of blackmail. If a learned judge says the name of the victim who gives evidence need not be disclosed—possibly, if the learned judge goes further and says the name of the 360 victim must in no circumstances be reported in a newspaper—what is to happen if some newspaper gives the name? Newspapers in those situations have, I think, invariably in the past acted in the public interest and in a wholly correct way. But supposing one publishes the name? If the judge had given a direction, it would be flouting the court and the complaint might be upheld for that reason. But if there is any doubt as to whether there is full power in the judge to give the direction that a name is not to be published, possibly that might be considered in the future.
There is one recommendation of the report which I respectfully suggest should be approached with considerable caution, and that is No. 4, in these words:The law as it stands contains uncertainties which impede and restrict the reasonable freedom of speech. It should be amended and clarified by statute so as to allow as much freedom of speech as is consistent with the basic purposes of the law of contempt".Do we really need a statute for that purpose? If I am correct in submitting that what was laid down by Lord Reid is the guiding principle, how is that to be improved by seeking to anchor that principle whithin some particular words on the Statute Book? I respectfully suggest that the Government should be cautious in adopting that proposal.
In conclusion, let me summarise my view. If a complaint is made to the court, the investigation must involve considering very many different matters: what are the proceedings; what are the issues in them; what stage has the case reached; when will it be tried; how will it be tried; was the publication complained of made with some particular object; what was the reason for making it; is the complaint trivial or serious? If the publication was made in entire ignorance of the existence of the litigation, then there may be, as there is now, a statutory defence.
I personally have some doubts whether it is helpful to use the phrase "strict liability". Liability depends on examining all the facts and circumstances and then the judge coming to a conclusion as to whether the line has been exceeded. I personally doubt whether some rigid time element could usefully be introduced, for example that the complaint can relate 361 only to the time after setting down. Some publication just before, or even a long time before, setting down may in some circumstances be very damaging. But are these not all matters which come within the balancing process? Every consideration must be weighed by the judge—I emphasise every one—not only as to the time and the nature of the publication but every single circumstance, and then the court must decide whether it has been established that the publication would result in prejudice to the administration of justice and whether the risk of such prejudice is serious, real and substantial. For my part, I think we can safely leave it to our judges to protect our freedoms and the administration of justice.
§ 7.40 p.m.
§ Lord HALE
My Lords, it is always a privilege to listen to the noble and learned Lord who speaks with such clarity and eloquence, and indeed on this occasion, so far as I can see, with very little disagreement. I have in mind here the kind of problem that faces us from time to time when we hear the noble and learned Lord, Lord Hailsham of Saint Marylebone, intervening, or speaking, as he did, at the end of the debate on human rights, making some very pertinent comments about the state of the law, the conduct of the law, and the mass of legislation. He called it a cloaca maxima, which I should think is almost contempt of some kind on its own.
Personally, I have no quarrel whatever with what was said about the law of contempt and with what the Phillimore Report said about the law of contempt on criminal proceedings. Of course, I agree that it is essential that we should take all steps that are appropriate to maintain the dignity, the authority, and the respect which our judges have a right to expect as men of the highest ability and the highest integrity. The only difficulty about this is that they always disagree. They disagree about everything. Now we have the great advantage of having, I think, five ex-Lord Chancellors and one prospective Lord Chancellor, and a much larger number of Law Lords than usual, even if the number has been diminished in recent times by one or two tragic deaths.
362 The Sunday Times published a very frank and full article in which it tried to explain why the Court of Appeal reached a decision unanimously on on; matter while the House of Lords so constantly reversed it unanimously in the same matter. I think that it was put quite fairly. I am sorry that the noble and learned Lord, Lord Denning, has gone because no one enjoys his judgments more than I do. Many have profited from them more than I have because I am not now capable of the mental effort which would enable me to profit fully, but no one has read his judgments with more admiration than I, and no one has realised more than I that here is someone with permanent beliefs.
The Sunday Times says that the main belief is that on the whole the judges know best. That was the note upon which I heard the noble and learned Lord, Lord Morris of Borth-y-Gest, conclude, as I have done previously. There is much to be said for it. The difficulty is that however good are our judges now, we have lived through the years of political judgments, Party political judgments. I recall when I first came into this building. I had to apply for leave to proceed in forma pauperis to the Lords on an appeal under the Workman's Compensation Act 1906. The facts, quite briefly, were that my client, who was not a member of a union—he was not old enough, being only 14 or 15—was doing the work of a pit pony down below. That is literally the fact. He was handling the tubs, pushing the tubs, spragging himself to stop the tubs, breaking the tubs as they went along the line, and trying to control them on slopes. There was a large, heavyish row of tubs in seams only a few feet high. In those days as such applications had to be made by a solicitor, I found myself making my maiden speech here, after having spent a weekend with a wet towel around my head. I addressed Lord Dunedin, who himself was almost qualifying then for a special birthday party of the kind which my noble friend in front enjoys.
I had sent the papers on the case to Norman Birkett, whom I had the privilege of knowing. He had written back stating, "Get leave in forma pauperis, and I will take this myself." He made only one condition: he was committed fully in a 363 murder defence which could clash with my case, and that in fact happened. However, even the absence of one of the great advocates and one of the great men of our time—one with whom I was lucky enough to work in close and intimate contact in a number of matters over the years—did not, I think, alter their Lordships' minds.
My lad, in trying to sprag himself against a pit prop to bring the tubs to a standstill, had suffered injury; it did not appear to be slight, but it certainly did not appear to be serious. However, a couple of days later his doctor found that he was suffering from osteomyelitis— grave infection of the bone—which required his being taken away to the infirmary. He lost his compensation because he had not given notice of the accident. That was the judicial interpretation of the time. There were scores of decisions like that. I do not want to go back on some of these matters. I do not want to rake over old scores, but the Sunday Times says that the real difference is that the Court of Appeal like to say what it thinks the law ought to be, and the House of Lords try to say what it is. The noble and learned Lord, Lord Hailsham, was speaking about the recent decision on the Statute of Limitations. I have not given the noble and learned Lord notice about this, and I apologise to him. He is always so courteous that I know he will not mind my making this single comment. I remember reading very carefully the judgment of the noble and learned Lord, Lord Simon of Glais-dale. He hated to have to decide that the words used in the Act could not bear the meaning which it was sought to put upon them. It is not easy.
I am one of those who are really afraid that, notwithstanding all the gifts of our judges, our law is in danger. I think it is in danger from more than one thing. There is too much law; it is too expensive; and we are churning out committees. This matter is raised today at the instance of my noble friend Lord Lloyd of Hampstead, and I congratulate him upon it; but my very valued noble and learned friend Lord Gardiner was today taking a penitential path, almost, when he talked about the appointment of too many committees and of too many areas being 364 opened up for research. What is our position today? I do not think anyone is really likely to disagree with very much in the Phillimore Report. I think the provisions are sound and well reasoned. But I think that time is not on the side of reform.
I think we acted quite sensibly in recent times in the case of some questions which were not raised. The noble and learned Lord, Lord Rawlinson of Ewell, was Attorney-General at the time of the Sunday Times and thalidomide case. Let us face one thing first: There was never any possibility of a fair trial in the thalidomide case. Public opinion would not have liked to see a fair trial. Public opinion knew that, on the one side, you had a very wealthy and prosperous company with immense resources, and, on the other, you had a spectacle almost too tragic to see. My only complaint about what happened in that connection is this— and I must say that I read all the judgments in that case in the House of Lords. I thought it was a very moderate decision. I thought the law was being put in a less authoritarian way than it might have been some years ago. There is a rather strange thing about this law of contempt. The fact is that it is more often counsel who engage in outspoken criticism of the Judiciary, and in so doing may well be doing their absolute and necessary duty. We used to complain sometimes of the alleged pusillanimity of counsel.
I come now to the point on the Green Paper. We are discussing one or two points about the law of libel, which I think is in a quite dreadful state at the moment. We have been talking about reform for a long time. I took part in the proceedings at the Committee stage of the Defamation Bill in yesteryear, which was introduced by Mr. Harold Lever. I was supposed to be seconding him until I took a distinct dislike to the measure half way through and said, "This is a newspaper proprietor's charter." Indeed, I think I managed to get an Amendment made to the Bill in regard to which the noble and learned Viscount, Lord Dilhorne, when he read it, said, "This must go, and must go at once because it would enable group libel on the widest possible scale." But nothing is done about libel. I think it was the noble and learned Lord, Lord Salmon, who said that in matters of this kind he would 365 have no contempt by comment at all. I would be tempted to agree with that, but I would go further and say something with which no one will agree. I personally would rather like to see libel actions abolished altogether.
The noble and learned Lord on the Woolsack and the Green Paper have called attention to this practice of gagging, which is a pernicious and vicious practice. The Green Paper says that, on the whole, it now appears to be on the decline. I do not know what figures the noble and learned Lord has, but I have no doubt he has them and I have no doubt this would not be there unless there was something to suggest it; but all my personal information from colleagues in the law is that it is used, particularly by men in eminent positions, to suppress criticism of any kind. Not only that, but these men then issue writs to defend their character. There is a procedure for dismissing an action for want of prosecution. There is a case for saying, "We are just waiting for a witness from Tierra del Fuego or Tristan da Cunha, he has been a long time coming and we ask for an adjournment", and it seems to be always granted. These cases drag on and on. The man is not defending his character at that stage: he is suppressing criticism.
In the end, the costs are enormous. How on earth can a libel action cost £90,000? I have no sympathy for the people who bring them; I almost invariably advise them not to. But in my view the gagging procedure is a contemptuous use of the legal process. In the end, it is settled on terms endorsed on counsel's briefs; and the judge no longer asks, as he invariably did in my early days, what the terms of settlement are, which would at least show whether the time of the courts had been wasted or abused. Subject to that, my Lords, I think this is an excellent report, but I do not think for a minute that anything is going to be done about it for a long time.
§ 7.59 p.m.
§ Lord FRASER of TULLYBELTON
My Lords, I wish to refer to only one narrow point in this rather wide field. I want to refer only to the question of contempt of court in relation to criminal proceedings, and, within that part of the field, only to the single question of what 366 should be the starting point in time for the law of contempt to apply. I think it is agreed on all hands, and was approved by the Phillimore Committee, that restrictions should apply throughout the period that criminal proceedings are in progress, and the question is: For this purpose, when do criminal proceedings start?
The recommendation of the Phillimore Committee was, as I think the noble Lord, Lord Lloyd of Hampstead, pointed out, that, in England, they should be deemed to start when the suspect is charged and, in Scotland, when he is first publicly charged, which is a formal step in the proceedings. The previous law in Scotland had been that protection might go back much earlier, to the time when the crime was known to have been committed and the investigation by the authorities had begun. That was the decision referred to earlier in the case of Stirling, which was always the subject of a lot of criticism in Scotland and, I dare say, in England as well. The recommendation of Phillimore was to put the beginning of protection much later.
Then there was the recent case of Hall, referred to earlier tonight, which put the beginning of the protection at the date when the suspect is arrested on a specific charge or when the warrant is granted for his arrest. It seems to me that arrest is the right time for protection to begin and the decision in Hall is to be preferred to the recommendation of Phillimore. In many cases there will not be much gap in time between the two; but arrest is the time when the suspect's right to protection begins. He is entitled to have his solicitor informed and he is entitled to be brought before a magistrate on the first lawful day after his arrest, and his right not to be interrogated arises at that time. There is every logical reason for saying that his right not to have his case prejudiced by publication of damaging particulars should arise also at that time.
That will be seen from the case of Hall. He was arrested on the 16th January on a charge connected with murder which attracted a great deal of publicity. There had been five or six murders in England and some in Scotland, and there were a lot of police inquiries and Press publicity. On the 19th January, three days later, the article complained of was published 367 in a newspaper. It was an article described by the court as being as clear an example as could be found of what is sometimes called "trial by newspaper". The accused man was named in the article and a lot of particulars about him were given. It was very prejudicial to his chances of a fair trial. He was not formally charged on the murder charge until about a week later. He was charged with murder on 27th January.
It seems to me that there is every reason in principle why the date of his arrest should have been treated (as it was by the court) as being the time when protection was required, when his need for it arose and when the law ought to provide it. It is so in principle, and it was so from a purely practical point of view that he required protection from then on. My Lords, I can see that it might be said to be difficult in some cases. The newspapers might not know when the man was arrested and, if so, on what charge. If that were shown to be so, that might be a good excuse or plea in mitigation. Where, as in this case, publicity was attached to it, the police had been making statements, day-to-day inquiries, and the newspapers were reporting what was going on and the police were digging to find the next body and so on, they well knew when he was arrested and there was no difficulty about fixing knowledge in that case.
I would therefore suggest that we should not be too frightened of drawing back to the time of arrest as the beginning of the proceedings. It is important to remember that in criminal proceedings the time span is usually not very long. It is quite unlike civil proceedings—and the thalidomide case is an exceptional example—for even in ordinary cases, a year or two, or even three years with appeals, is not out of the way. One can quite see that one may have to cut down the time during which contempt of court may be committed; but in criminal proceedings, which do not normally last very long, I would say that Phillimore was a little too late in coming in. I would suggest that the time of arrest in both Scotland and England is the appropriate date at which contempt should begin to be possible.
§ 8.4 p.m.
§ Lord MISHCON
My Lords, in dealing with the subject-matter of the Motion so lucidly put to your Lordships by my noble friend Lord Lloyd of Hampstead, we are looking at principles which have flowed through the stream of our common law over the centuries. It would appear to have been somewhat muddied in the process. This is very understandable, as we are now regarding them in the light of developed and developing concepts of freedom of expression as well as in the far-reaching, and consequently, in some ways dangerous growth of the extent and power of the media. Our objective, as has been said many times in this debate, must be to safeguard, on the one hand, the proper administration of justice and, on the other, the freedom of speech, of reporting and of comment especially upon matters which are of public interest and importance.
It is no easy matter as is shown by the report of the Government discussion paper which—if I may adopt the Lord Chancellor's neutral phrase—is by no means a colourness document. It is no easy matter as those documents clearly show. I should have thought in this context that the comments of the noble Lord, Lord Wigoder, were somewhat unfair in this particular case especially. Indeed, if I may borrow his dancing metaphor I would say that of all subjects this is one upon which we certainly cannot do a quickstep because if we do we may well trip up.
I want to follow my noble friend Lord Lloyd of Hampstead in limiting my remarks to that part of the law of contempt which is applicable to the Press and the other media. In this connection there is one basic principle upon which I should have thought no one would disagree—until I heard the speech of the noble and learned Lord, Lord Morris of Borth-y-Gest. It is that, having regard to the serious penal consequences which can befall those who are held to contravene the law of contempt, it should be as certain as is practicable in its terms and its extent. That, in particular, applies to matters of strict liability and that, as the noble and learned Lord the Lord Chancellor explained, is where the media would be liable even if the contempt is unintentional.
369 With the greatest possible respect to the noble and learned Lord, Lord Morris of Borth-y-Gest, no one can say that there is any certainty at all of definition at present. I must repeat that the greatly varying expressions as to the law and its application which were contained in the judgments in the case many times mentioned in this debate—namely, the Sunday Times thalidomide case—first in the Divisional Court, then in the Court of Appeal, and, finally, in your Lordships' House, are proof of that. The Phillimore Report worthily attempts the basis of a statutory definition in such strict liability cases with the words that were quoted by my noble friend Lord Lloyd of Hampstead, which I need not repeat. It is a pretty clear and simple definition. In its turn it is based upon and is (and I here respectfully agree with my noble friend Lord Lloyd of Hampstead) an improvement upon the formula which was adopted by the Divisional Court in the Sunday Times case and very desirably avoids—and I say this with deference to certain noble and learned Lords who gave judgment in your Lordships' House in that case—it very desirably avoids the view that any mere prejudging of the issues is in principle of itself a contempt. It is difficult to give any definition to prejudging.
As the report points out, in the way in which one learned Law Lord worded his judgment, an opinion in a law journal on a legal issue or in a scientific journal on, for example, deformities which could arise from thalidomide, might well be caught. As the Government Paper pointed out, the requirement in Phillimore's definition of serious prejudice embodies in itself a significant narrowing of the limits of contempt in law and a corresponding increase in freedom of publication. One would have thought that Phillimore had the balance about right, even though the assessment of what is serious must inevitably again be left for the court to decide. It could, however, in most cases be pretty accurately forecast by those advising the Press and other media.
As has been pointed out, the report also deals with another uncertainty in the present law of England and Wales so far as publications are concerned; the point of time at which in regard to criminal and civil proceedings the axe 370 of strict liability falls. Here it would seem that the report and the Green Paper are at some variance. For what it is worth, I find myself on the side of the report. But whatever be the right choice to make, the present position I suggest cannot remain.
At the moment it is impossible for laywers to advise the media with any degree of certainty as to the precise stage when the axe of contempt in criminal and civil proceedings falls. Indeed, it is not an axe; it is much more like- a sword of Damocles hanging over the heads of those who would wish to publish and comment, and it is not possible to say when that sword is supposed to fall. From the decided cases the media at present can only be advised that the stage in criminal and civil proceedings is when such proceedings are "imminent", and that advice must then be followed by those celebrated lawyers' words often heard but not much appreciated by the layman, that when proceedings are imminent will depend in each case upon its facts.
How can this be good enough in such a serious situation with such a serious offence, when considerations of public good and interest may also be involved? The report recommends a degree of certainty and fixes a stage in both criminal and civil proceedings; in the former when a charge is preferred, and in the latter a setting down stage. Mr. Robin Day—a not unknown member of the Phillimore Committee—would have it after that stage; that being the dissenting note to which the noble Lord, Lord Lloyd of Hampstead, referred.
I will not weary your Lordships with the material arguments, which include the danger to a fair trial in criminal proceedings, of comment in some cases before a charge is actually preferred; and in civil proceedings the well known "gagging writ" to which the noble and learned Lord, Lord Denning, referred, in which the plaintiff's object in commencing proceedings is not to prosecute an action to trial but literally to try to stop public comment upon issues which may well be of public interest, and the difficulty of dealing with some civil proceedings on this basis when they have no stage in their procedure of setting down for trial.
They are proper points to be discussed and, with great respect to the noble and 371 learned Lord the Lord Chancellor, I would have thought that there are solutions to these problems; and, indeed, some worthy suggestions have already been made. All I desire to say is that there must be some degree of certainty in this context; that the present position is quite unsatisfactory, and, for my humble part, the recommendations of the report seem workable and fair in a situation where one has of necessity to strike a reasonable balance.
Out of consideration for your Lordships generally and, in particular, for the noble and learned Lords who are still to speak and to whom your Lordships would much prefer to listen, I shall confine myself to one other subject which I think was touched upon by the noble Lord, Lord Rawlinson of Ewell, in his speech. This was a matter which was referred to in strong terms in the Phillimore Report. I refer to the undesirable practice of some organs of the Press in offering substantial sums to witnesses for their story usually, and for obvious reasons, for publication after the trial in which they are to testify. One suspects—again for obvious reasons—it is often made conditional upon the result of the trial.
Having regard to matters which may be present to your Lordships' minds, I propose to say no more this evening about this particular subject, except to express the hope that this practice will be considered for inclusion in any statute dealing with contempt, and to remind your Lordships that it caused public concern as long as 12 years ago in the Moors murder case, as will be seen from Hansard of 11th May, 1966, volume 728 at column 400. The Attorney-General at that time said that the Government of the day would examine this practice. Nothing appears to have happened since. The Phillimore Report says:We regard this potential danger as sufficiently grave to warrant further inquiry as to its prevalence, and if found necessary legislation to restrain or wholly prohibit this practice. We recommend that such inquiry should be carried out".Your Lordships may well feel that this recommendation is well founded. May I conclude by expressing my thanks to the noble Lord, Lord Lloyd of Hampstead, for introducing his Motion so that our attention can be given to a part of our law 372 which needs far-sighted, balanced and fairly urgent attention.
§ 8.17 p.m.
§ The LORD CHANCELLOR
My Lords, with the leave of the House, I should like to make one or two responses in regard to matters that have been put to me. In regard to what my noble friend Lord Mishcon has said, may I say that I was the Attorney-General at the time who prosecuted in the Moors murder case. What shocked us there was the payment by newspapers to witnesses who had not yet given evidence. What followed was a public protest by myself, and immediate action by the Press Council who set up a code of practice regarding this matter. That had a valuable effect for a time in checking the worst abuses; but abuses are again creeping in. I must not let it be thought that I was guilty of inactivity in that matter. I did what was open to me to do at the time.
I hope that I may be able to persuade my noble and learned friend Lord Gardiner—with whom I so rarely disagree—that the position that the Government have taken regarding this issue is not a product either of laziness, deliberate obstruction or inability to make up their mind. I take the view, contrary to that of the noble and learned Lord, Lord Morris of Borth-y-Gest—and it is very rarely that I disagree with him, either—that there is room and need for a Bill to create greater certainty in the field of the law of contempt. While I have every confidence in his judgment and in what the judges have done, it must be conceded that uncertainty exists. What the content of such a Bill should be is not something to which I can at this point of time commit myself. I cannot say exactly what it will contain. It will be a complex Bill covering a sensitive field. It is right now at this moment to await the event which I mentioned; namely, the judgment of the European Court of Human Rights in the Sunday Times case. Whatever its impact will be, we cannot ignore it; it will have to be considered.
Secondly, it would also be prudent to await the report of the Law Commission on offences against the administration of justice. That is shortly due to be published. This field is a crucially important one, and I should like to assure my noble and 373 learned friend that I certainly did not give instructions to my Department to draw up a list of objections and then cheer when a lot were produced—on the contrary. For once, he has done me less than justice. I assure him we are in earnest in wanting to see the law put on a proper footing on any points where it can be shown to be defective. But there are difficult issues here and, if I may be forgiven for a slight reproach, those that I mentioned have been somewhat brushed aside in one or two speeches. I say that, well understanding the complexity of the matters that we have to deal with. However, I have to say this: There are differences between the views of Ministers and committees that arise from time to time. However distinguished the membership of those committees may be, it is for Ministers to bear the responsibility for the decisions they take and the legislation they introduce.
In this highly sensitive field of maintaining a balance between the right of a man to a fair trial and the right to maintain a free Press, there are difficult issues and it is imperative that the matter should be approached with deliberation. If we have deliberated too long I am sorry, but I hope that before long at least we shall reach finality, and my own view is that we shall be dealing with some Bill concerning this matter. As to the timing of it, I cannot yet give an undertaking.
§ 8.21 p.m.
§ Lord LLOYD of HAMPSTEAD
My Lords, before seeking leave to withdraw my Motion, it is incumbent on me to express my thanks to all those who have come forward and participated in what I think has proved to be a most interesting and valuable debate. I think it has contributed a great deal in assisting the Government to form final views on the admittedly difficult problems with which the Phillimore Report has wrestled.
Though one appreciates, of course, that there are these other matters which will inevitably cause some further delay, I think it can rest as our firm hope that the outcome of this debate will be reasonably speedy decisions on the part of the Government, and that possibly we shall even see an appropriate Bill before this Parliament ends its life. In that hopeful 374 spirit, I beg your Lordships' leave to withdraw my Motion for Papers.
§ Motion for Papers, by leave, withdrawn.