§ 7.44 p.m.
§ Lord WIGODER
My Lords, I beg to move that this Bill be now read a second time. This modest Bill seeks to deal with the situation where there is more than one defendant at committal proceedings in the magistrates' court and there is a disagreement between the defendants as to whether or not the restrictions on reporting the proceedings should be lifted. I suspect that there will be widespread agreement as to the extremely unsatisfactory nature of the present situation, although there may well be some difference of opinion as to what is the best way in which to deal with the situation.
The problem arises as a result of a rather curious history which I should perhaps outline, but only in a few words. In 1848 Section 19 of the Indictable Offences Act gave the magistrates power, if they chose so to exercise it, not to sit in open court when they were conducting committal proceedings. The power was expressed in these terms in the Act:It shall be lawful for such justice or justices in his or their discretion, to order that no person 981 shall have access to, be, or remain in such room or building without the consent or permission of such justice or justices, if it appear to him or them that the ends of justice will be best answered by so doing ".I remind your Lordships of that because the phrase "the ends of justice will be best answered "perhaps echoes the expression that I have suggested should be incorporated in the Bill before your Lordships' House today.
However, although that power was given to the justices in 1848, it appears not to have been widely exercised. They appear to have sat in open court. The power not to sit in open court was repeated in the Magistrates' Courts Act 1952 where, by Section 4(2), examining justices were allowed to sit in camera if they so chose. As I understand it, since that date justices have, in fact, sat in camera only where security considerations have arisen, and not on any other grounds.
In 1957 many of your Lordships will remember that there arose the trial of Dr. Bodkin Adams. At the committal proceedings evidence was given by the prosecution that involved referring to the deaths of three of the doctor's patients. Those committal proceedings aroused great public interest. In its way and in its day it was a very sensational trial indeed, and the evidence given at the committal proceedings was, of course, widely reported in the Press at the time. At that time there was no restriction on publication of committal proceedings, except for certain very limited statutory limitations in regard to indecency and certain matters where the interests of children or juveniles were concerned.
After the widespread reporting of the committal proceedings, when it came to the trial the Crown in fact abandoned the evidence as to two of the deaths and proceeded on one death only. Inevitably, the jury must have had in their minds the evidence that they had acquired through reading the newspapers. It is clear that deep prejudice might have been caused to the unfortunate doctor. I say "might have been caused "because in fact, as your Lordships will remember, he was acquitted. Had he been convicted, he would have had the most profound grievance as to the prejudice that must have arisen as a result of the reporting of his committal proceedings.
982 In those circumstances, in 1957 a departmental committee, under Lord Justice Tucker, as he then was—the Tucker Committee—was set up to consider whether the Press should be free to report committal proceedings. I am pleased to see that one member of the committee—the noble Viscount, Lord Bridgeman—is here today to help us in the course of this debate. That committee reported in 1958 and, in a word, recommended that there should be no reporting whatever of committal proceedings unless the defendant was discharged at the end of the proceedings, in which case the Press would be free to report what had happened.
As is the way with departmental committees, legislation followed some nine years later in 1967, and it was not, in fact, legislation on the lines recommended by the committee, because in 1967 there was the Criminal Justice Act. Section 3(1) of tht Act contained a general prohibition on the reporting of committal proceedings, subject to Section 3(2), which read in this form:A magistrates' court shall, on an application for the purpose made with reference to any committal proceedings by the defendant or one of the defendants, as the case may be, order that the foregoing subsection shall not apply to reports of those proceedings ".What happened in the 1967 Act was that there was a general bar upon reporting committal proceedings unless any one defendant chose to exercise his right to ask that the reporting restriction should be lifted.
As was fairly quickly established in a series of cases, it was made clear that that meant that any one defendant had an absolute right to ask that the restrictions should be lifted. He could do it without cause or reason, at his merest whim, because he was being paid by the Press, or for any other reason, as he chose. Even though in the trial he was playing a minor role, nevertheless the restrictions were lifted automatically, as soon as he asked that they should be, in relation to what might be a number of defendants against whom there were many much graver allegations. That is the unsatisfactory position that has now become clear, and that is what this Bill endeavours to deal with in a limited way.
The present position is that if no application is made by any defendant to 983 lift the reporting restrictions, then they are not lifted; they remain in force. The Bill before your Lordships this evening would not affect that situation in any way. If at present all the defendants apply to lift the restrictions, then they are lifted under the law as it is at present, and they would he lifted under the Bill that is before your Lordships' House this evening.
This Bill deals only with the situation where there is a difference of opinion among defendants as to whether the restrictions should be lifted or not. The present situation is that if any one defendant applies, the restrictions are automatically lifted. What this Bill proposes—and I shall comment on the way it proposes to deal with it in a moment—is that where there is a difference of opinion, and one or more but not all the defendants make such an application, then the court shall have a discretion as to whether the restrictions are to be lifted or not.
It is necessary, in order to appreciate the conflict of interest that may arise between defendants on this matter, to summarise for a moment the principal arguments against reporting committal proceedings and those in favour of reporting committal proceedings. The arguments against reporting committal proceedings which found favour with the Tucker Committee, and which have been generally accepted since that date, are really that they can amount to a grave risk of prejudice for the defendant at his trial, or indeed a belief by the defendant that there is a grave risk of prejudice—which, in its way, is just as harmful.
It can happen perhaps in four principal ways. First, because the prosecution speech that opens the committal proceedings may be somewhat over-enthusiastic. It may be reported at great length in ebullient terms. The evidence may not come up to the prosecution opening speech; nevertheless it is not the evidence that is reported, it is counsel's opening observations.
Secondly, evidence which, as a matter of law, is not admissible and will be ruled to be not admissible at the trial, might be tendered at the magistrates' court and reported extensively. Thirdly, as a particular example of that, where there are 984 several defendants, some defendants who will in due course be pleading guilty at the trial may have made long written statements implicating other defendants. Those statements are quite properly read out during the committal proceedings, and yet they would not be referred to at the trial of those defendants who were contesting the case.
Fourthly, committal proceedings being in fact a preliminary inquiry as to whether there is a case to answer, inevitably the proceedings are somewhat one-sided. They consist of the prosecution presenting their case and not the defence. Therefore, the reporting can lead to a distorted view of the whole situation. It is in those ways that there can be a grave risk of prejudice to a fair trial. Indeed, I willingly accept that in many cases juries are remarkably successful in putting out of their minds prejudice of that nature, but there can also be prejudice to a defendant's reputation with his family and friends where matters are given and reported in the Press in that way which are subsequently, for one reason or another, not supported by evidence.
I ought to stress that although one's mind has perhaps been drawn to this problem by the recent committal at Minehead, this Bill is not primarily to deal with the situation that arose in 1957 with Dr. Bodkin Adams, or with a trial 22 years later in 1979. This difficult situation, where there is a danger of prejudice arising in this way, arises daily in innumerable cases up and down the country which are not sensational, which do not obtain national Press coverage, but which can be reported at great length in the local Press. Proceedings in the magistrates' court are covered in detail, the case is then sent for trial, and in due course at a Crown Court 10, 20, or 30 miles away, the defendant is acquitted, and he may he lucky to get half a line in his local paper reporting that fact.
The arguments in favour of reporting committal proceedings come down, I think, to two. First, it is said that the Press ought to have the right, as part of their basic freedom, to report committal proceedings. I doubt whether that is an argument that in these days is seriously persisted in. I would be the last person to want to seek to diminish the proper freedom of the Press. The Press must have a 985 right to report criminal trials. But we are dealing here not with criminal trials but with preliminary proceedings where there is an investigation to see whether there is a case to answer.
The other reason put forward in favour of allowing Press reporting is that it is said that, as a result of the publicity, there may be important defence witnesses who will become available, having read the papers, who might not become available otherwise. That is in theory an entirely valid argument. In practice, it is an extremely remote possiblilty. The Tucker Committee discovered that in half a century there were some 20 cases in which this could be said to have happened, and they had some doubts as to whether it had happened in all 20 cases. My own experience—not as great as that of the Tucker Committee—is that I have certainly never known it happen. I have known of cases where the publicity has given rise to witnesses coming forward for the prosecution, but that is not a matter that we are discussing this evening.
In that situation it is clear that there may be a genuine conflict of interest between defendants, and that the present state of the law is thoroughly unsatisfactory under which, on the whim of any one defendant, there is an automatic lifting of restrictions which may be to the actual, or believed, great prejudice of his co-defendants. It is in order to deal with that situation that I venture to introduce this Bill into your Lordships' House.
What it provides is very simple. It provides in Clause 1(1) that the existing Section 3(2) of the Criminal Justice Act 1967—which I read to your Lordships earlier—should be removed, and that there should then be substituted two new subsections. Subsection (2) simply preserves the present position where all the defendants apply that the restrictions should be lifted, and if all the defendants apply then subsection (2) says that the restrictions should thus be lifted. The crux of the matter is in Clausel(2A) which reads:Where there is more than one defendant, and an application is made for this purpose by one or more, but not all, of the defendants, then the court, after inviting representations from all the defendants, shall make such an order as aforesaid only if it is satisfied that it is in the interests of justice so to do ".986 In other words, the onus of proof is put firmly on the party making the application that restrictions should be lifted, to satisfy the court that it is right that that should be done.
The test I have proposed there—that it is in the interests of justice so to do—echoes perhaps the words of Section 19 of the 1848 Act which I read. It is of course a test that is well known to the courts in many ways. Trials frequently begin with an argument as to whether two defendants should be tried together or two counts or charges should be tried together and the court has to decide "in the interests of justice"—a rather loose general phrase—where the proper balance lies. At the same time, I should indicate to your Lordships that observations have been expressed to me that perhaps the expression "the interests of justice "may in this particular case be a trifle too loose and wide, and that it might helpfully be modified so as to give more assistance to magistrates as to what it is they should consider.
In particular, I should mention that Lord Justice Lawton—who, as your Lordships will know, is the chairman of the Criminal Law Revision Committee—has been kind enough to write (and to tell me that I may use his letter) suggesting that instead of using the phrase "the interests of justice ", the court should be asked to consider in relation to the applicants whether it is necessary to lift the restrictions "for their fair trial." I take that matter no further at this stage. If your Lordships were good enough to give the Bill a Second Reading, this question of the precise terminology, the criteria the magistrates should use, could properly and helpfully be considered at a later stage in the Bill.
I should mention, about the Bill in its present form, Clause 1 (2B) which is intended—and I hope the intention is clear—to preserve the position that if there is a dispute in a court as to whether or not the restrictions should be lifted, the dispute itself should not be reported. Unfortunately, the drafting is clearly erroneous; I have, I believed, solved the problem of perpetual motion in the form in which I have drafted it by simply referring back to the original subsection again, but that is also a matter which could easily be put right at a later stage.
987 I would hope that the Bill, subject to its improvement at a later stage, represents a very wide consensus among those who have been perturbed at the present position. The Attorney General, Sir Michael Havers, in Hansard on 25th June 1979 at what is page 93 of the rather crude typescript copy I have, answered a Parliamentary Question which was clearly on the lines broadly set out in this Bill. The Law Society has recently given evidence to the Phillips Commission on Criminal Procedure which I understand is, for practical purposes, on all fours with the proposal in this Bill, and perhaps the noble Lord, Lord Mishcon, will be able to help us on that when he speaks.
I have been told by the noble and learned Lord, Lord Edmund-Davies, that I may cite him to your Lordships as one who supports the terms of the Bill. The noble and learned Lord, Lord Diplock, has indicated to me that I can mention his name as one who agrees entirely with the objectives of the Bill, though he would like to consider its precise wording at a later stage. I have referred in part to the letter of Lord Justice Lawton, and perhaps I should read a little more from his letter because it may be helpful to the House. In the course of his letter he says:In my opinion the magistrates should decide whether there should he any reporting at all and their decision should not be appealable either in the Crown Court or by way of judicial review ".That is a matter which might also be borne in mind at a later stage. The letter continues:If reporting is to be allowed, whether on the application of one or all of the defendants, I suggest that Clause 1 (2A) should be redrafted to put the burden on those wanting it of satisfying the court that it is necessary for their fair trial. The discretion which your draft gives the magistrates is, in my opinion, far too wide. Allowing reporting if one or more defendants satisfies the court that lifting restrictions will be necessary for a fair trial will meet the argument that Press reporting can produce witnesses, although the evidence before the Tucker Committee shows that this very rarely happens ".In addition to Lord Justice Lawton, I am able to tell the House that the noble and learned Viscount, Lord Dilhorne, has similarly intimated to me that I may indicate his wholehearted approval of the suggestions that Lord Justice Lawton made in that letter. There is, therefore, a very wide consensus, I would suggest, that the present position is thoroughly 988 unsatisfactory, that it can be dealt with in a simple way and, in those circumstances, I beg to move.
§ Moved, That the Bill be now read 2a—(Lord Wigoder)
§ 8.7 p.m.
§ Lord ELWYN-JONES
My Lords, I am sure the whole House will be grateful to the noble Lord, Lord Wigoder, for his initiative in introducing this Bill, so enabling the House to consider whether the present provisions of the Criminal Justice Act 1967, governing restrictions on the reporting of committal proceedings, are working in the best interests—and he used the attractive phrase of the 1948 Act—"of the ends of justice ".
There is of course another public interest in this matter as well, and Lord Wigoder touched on it, namely the right of the Press to have as much access as is practicable and possible to proceedings in court. There is an old truism of the law that where there is no publicity there is no justice, but of course there are already several statutory exceptions to that broad propositon.
It is indeed a happy thing, as Lord Wigoder said, that the noble Viscount, Lord Bridgeman, is here; he was a member of the Tucker Committee which reported unanimously on this matter in 1957, and it will be interesting to hear from him whether, looking back over 22 years, he is now disposed to change his views at all in the light of the experience that has accrued in the meantime.
I am bound to say that I myself was impressed, as indeed I think was Lord Wigoder, by the grounds which influenced the approach of the Tucker Committee in seeing the need for restriction on reporting committal proceedings. Those he has identified, the first being that reports of committal proceedings often include reports of evidence which is not subsequently given at the trial proper or indeed is excluded at the trial proper on the grounds that the statement is inadmissible for the several reasons on which a statement, or indeed an admission, can be challenged. Those of us who have been engaged in the prosecution or the defence process have had many experiences—happy or unhappy, depending upon which side we were on—of this kind of matter.
989 Very often the enthusiasm of prosecution witnesses wanes in the interval between their original commitment to give evidence for the prosecution and the trial. Their memory fades. Pressures—I am not, of course, suggesting they are improper pressures—may be brought to bear on them, and the zeal and confidence with which the prosecution initially launched upon the process withers away when the time of trial arrives, and the enthusiastic prosecutor finds himself handling a skeleton rather than a living body. I say that with feeling in the light of some of my own experiences in this field.
But there it is, my Lords; it means that if those matters which are not in fact evidence at the trial are widely reported at the committal proceedings, it may be that, even if there is an acquittal of the accused, the harm done by the reporting of matters which were never in fact evidence in the case may damage the accused's reputation for ever. Often an acquittal is not as extensively reported as the trial itself. The other element which naturally caused concern to the Tucker Committee was, as the noble Lord, Lord Wigoder, said, that the enthusiasm of learned counsel opening a prosecution is again, for the kind of reasons I have mentioned, not borne out when the trial takes place.
Now I come to the third factor. Inevitably, the report of committal proceedings is usually one-sided in character. In 19 instances out of 20 only the prosecution case is described and developed at the committal proceedings, and a prudent defender will normally be well advised to hold his fire until the time of trial before the jury who will decide the guilt or innocence of the accused. So there again is an indication of the one-sided feature of reporting of committal proceedings, and therefore it is obviously right that there should be appropriate restriction placed upon it as a general rule, because it is damaging that there should be a sense of grievance, and indeed the feeling of public concern about that was one of the factors which influenced the Tucker Committee.
It is a matter of interest that there is no pre-trial publicity in Scotland or indeed on the Continent for pre-trial proceedings. Those proceedings are conducted in private. In Scotland the procurator fiscal does his 990 stuff, and in France the juge d'instruction also conducts the preliminary processes. There is no occasion for publicising the proceedings because they do not take place in public or in the presence of reporters. I must say that I do not feel that there is any great evidence of harm being caused to the administration of justice by reason of that fact.
I must also say that during the course of my career at the Bar I have very often been anxious about the damaging consequences that two-fold detailed repetition of unsavoury sexual abnormality in murder cases may have. I shall never forget, when I had the sombre duty of prosecuting in the case of the moors murders, how there were day after day in London reports covering pages of the evening papers, and it was the same in all the local papers throughout the country. There were daily reports of abominable events. I will not dilate on the matter further. To have taken part in the case was one of the most painful experiences of my career. The evidence was trotted out in detail day after day after day in a society which, like all societies, has its proportion of mentally disturbed people for whom imitation of such crimes may indeed have a dangerous attraction. So there is a menace and a threat in two-fold repetition.
Nevertheless having said that, I consider that it is right, as the Act ultimately provided, that there should be a saving option for a defendant who does not fear advance publicity, or is not worried about it from the point of view of his future reputation; he may not have a very great reputation to lose. But he may feel that perhaps somebody will come forward who may help him. I confess that during many years of practice at the Bar I came across one case where that occurred. That was when I held the high office of Recorder of Swansea, an experience that I shall treasure as one of the most happy in my legal life. Somebody did come forward on that occasion. I will not go into the details of the case; it was not a very attractive one to recount. But such a happening is, I believe, highly exceptional. Nevertheless it is a factor which the individual concerned is obviously very anxious about, and I am interested in the suggestions made by Lord Justice Lawton by way of amendment of the noble Lord's Bill to cover 991 precisely the kind of factor which an accused individual might seek to rely upon in applying for the publicity in his case to be reported.
Now, as the noble Lord, Lord Wigoder, has pointed out, the difficulty arises where there is more than one defendant and one of the defendants alone wishes to have the reporting restrictions lifted while the others do not, and take the view that their fair trial, or their position in the eyes of the law and of the public, would be damaged by the lifting of the restrictions before they reach trial. The solution offered in the Bill is in effect to give a discretion to the committing magistrate to decide the issue, having borne in mind the interests of justice in the matter, or the alternative language suggested by Lord Justice Lawton.
I am rather doubtful about this proposed solution because I believe that a great many difficulties stand in the way of the exercise of a judicial discretion in this matter. It would present the justice of the peace with an almost impossible task. He would have to try to weigh the degree of possible prejudice which might arise as between various defendants, and to decide whether on balance the prejudice to the defendant of taking one course was greater than the prejudice to another by taking a different course. The magistrate would have to do so without having knowledge of the case for the prosecution, which would not have been disclosed to him at that point, and without knowing what the defence of the respective defendants would be to the charge or charges brought against them. That is the kind of information that would be needed to enable the magistrate to decide the issue.
I do not consider that this is quite analogous with the consideration of an application for the severance of an indictment or for separate trials for defendants, where usually the issue is the problem of one giving evidence against the other, and matters which are rather more capable of becoming justiciable I should have thought than the issue which the committing justice would have to decide in the exercise of the suggested judicial discretion. I may be wrong about this—I am not saying it dogmatically—but this is my present feeling about the matter.
992 In the light of that, my own view at the moment is that the better course would be to follow the general principle of the Act. If any defendant believes that he would be prejudiced by the evidence being reported, then that should be decisive and there should be no reporting during the course of a trial in which he is in the dock. However, if a defendant persists in making his application for publicity, he should certainly be given the opportunity to put the point, but, in addition, he should be given the opportunity to apply for the separate trial of his case. It might well be that in the examination of that application his enthusiasm, bearing in mind the cost, labour, delay, et cetera, of a second trial, may wane and he may think it not worth pressing the point any further. I also appreciate, of course, that it could well be costly and would involve delay. However, if the trial of that one man standing out followed the trial of other co-defendants and the trial of those co-defendants resulted in acquittal, it could well be that, in those circumstances, the prosecution would not proceed with the individual's case anyway. One does not know; and one cannot give an assurance, of course, that that would necessarily follow. At any rate, I put that suggestion forward for further consideration, and I approach this matter fully agreeing with the noble Lord, Lord Wigoder, that the present position is not satisfactory and that we should move forward to endeavour to deal with its unsatisfactory nature.
My Lords, the noble Lord mentioned the existence of the Royal Commission on Criminal Procedure. They are examining this and other problems in this field, I have no doubt, in great detail; nor do I have any doubt that, as Royal Commissions do, they will be having lengthy consultations with those interested and those concerned. I am wondering whether, in all the circumstances, the best course may not be to await the outcome of the deliberations of the Royal Commission before we proceed to legislate in Parliament on this matter. This is not to say that I should for a moment resist the Second Reading of this Bill. Indeed not; and it may be that the Royal Commission might tell us that they would like to hear more views from, particularly, noble and learned Lords in this House, 993 who have apparently indicated that they support the objective of the Bill, as indeed I do myself. Indeed, the noble Lord has been able to call on some weighty names in support of the general objective that he has in mind, which I also share.
My Lords, that is my conclusion on the matter. As I say, I put it forward without dogma, but I venture to think that the course which I propose is the one most likely to meet the needs of the situation, although I would not go to the stake about it.
§ 8.24 p.m.
§ Viscount BRIDGEMAN
My Lords, after listening to that very authoritative speech from the noble and learned Lord, Lord Elwyn-Jones, on the Front Bench opposite, and after hearing the list of legal luminaries whom the noble Lord, Lord Wigoder, says are going to support him in his action, it seems to me the most appalling cheek for a mere layman to get up and intervene in this debate. But, as the noble Lord, Lord Wigoder, mentioned the Tucker Committee, and as, since the noble and learned Lord, Lord Tucker, is no longer alive and I am the only Member of this House who was on that committee, I thought I ought perhaps to come here tonight and give one or two of my recollections about it. Of course, I ought not to have been on that committee at all. The original intention of my noble friends was to appoint the late noble Lord, Lord Merthyr, but he was sent to redefine the boundaries of Nigeria, and I was drafted in to take his place. So there I sat, trying to look at the scene from the only angle which I understood, which was that of one who sat regularly as the chairman of a magistrates' court in a country district doing the same sort of work, I imagine, as the court at Barnstaple normally does.
My recollections of the proceedings of that committee are still pretty clear, and I would hasten to say to the noble and learned Lord opposite that the report was a unanimous one. It reflected my opinion as well, and I have not had any reason to change my mind since. The evidence, as I recollect it, fell into three parts. First, there were the "sitters on the fence ", and we can leave them alone. Secondly, there was the evidence which came very largely from the Press, which took the 994 line that it was wrong to restrict the reporting of anything which the public had a right to know. In order to make that point, they had to argue that the risk of putting juries wrong was not so great as some people might have supposed; or, alternatively, that it was wrong to base legislation on one particular case—namely, the Bodkin Adams case. But the third category of evidence—and, as far as I remember, it was by far the largest body of evidence—was in favour of restrictions on reporting.
Therefore, the Tucker Committee made a perfectly clear recommendation, and with the leave of the House I should like to read three lines of it:We recommend that unless the accused has been discharged or until the trial is ended, any report of committal proceedings should be restricted to particulars of the name of the accused, the charge, the decision of the court and the like ".That is in bold type. Then, in smaller type:No lesser reform would he both adequate and practical ".That is a perfectly clear recommendation, my Lords, so one cannot be surprised if I come as a member of that committee to support any step which goes towards its complete implementation.
My Lords, when I reached the conclusion I did, which was to sign the report, there was another aspect of the situation. It was quite subsidiary, but it comes to my mind fairly regularly on this sort of occasion, and that is what a good thing it is if you can in any way save public or private time and public or private money. I think that we in this House sometimes gaily pass laws which create offences and then find, when those laws have to be enforced, that a lot of time and money is spent which may not be worth the purpose it was supposed to serve; and that, in particular, a lot of police time is wasted. So, quite apart from the merits of the case, I was very glad to find that it fitted in with my views about that.
My Lords, I am bound to confess that, having signed the Tucker Report, as the other members did, I lost sight of the whole matter except in so far as I found, while I was still chairman of a magistrates' court, that I could not remember a single case in which, when it was clear that there was a case to answer and the defendant was going to be committed for trial, every- 995 body was not fully ready to adopt the procedure which was available to them. Granted that we did not deal with any very serious cases, but there it was. My own attention was not drawn to the matter until I read about the recent proceedings at Barnstaple, when I realised that a loophole had been left by whoever drafted the Criminal Justice Act, which made possible what I consider to have been a public nonsense of the greatest magnitude. So we now have this Bill which I very much hope will get a Second Reading. Anybody who has looked into the matter at the very least will realise that the drafting of this Bill will need a great deal of careful attention to meet the points that we have heard about from the noble and learned Lord opposite.
I do not think it is for a layman to take part in this discussion. I am certainly completely unqualified to do so. All that I would say is that, if safeguards are to be provided, I hope that it will not be possible for any case to be reported in the magistrates' court if it is to go forward with a case to answer unless the magistrates, or whoever else are responsible, are genuinely satisfied that such a course would be (if you like) serving the ends of justice; and not for any other reason.
§ 8.31 p.m.
§ Lord GARDINER
My Lords, my only object in being here this evening is to thank the noble Lord, Lord Wigoder, for introducing this Bill and moving its Second Reading. As a result of recent events, it is obvious that this is a relatively small part of our law which wants reconsideration and wants it fairly urgently. His speed in moving the Bill is to be greatly commended, for it gives us an early opportunity of considering it and I think that, of the two places, this is the best place for it to he considered. It is not, on any view, a matter of party politics and I am sure that we shall be helping the country on the whole by trying to tackle this on an early occasion.
It has never been altogether an easy question and there are altogether five or six different alternatives. One alternative would be to go back to what the law was before the 1967 Act was passed. That is a possible view. I spent a little time this afternoon reading the debate which took 996 place on this clause in 1967. I think that the noble Viscount, Lord Bridgeman, and I are the only Members of this House now present who took part in that. On that occasion, the noble and learned Viscount, Lord Dilhorne, moved an amendment to omit the clause altogether; and took it to a Division. I hope and believe that he has changed his mind since, but this is a possible view.
A second alternative would be to say that no preliminary proceedings before the justices, except for the particulars allowed by the section, should ever be reported. There is something to be said about this, because the suggested alternative, one can see, may give rise to certain difficulties. All that can be said against it is that we must think of those people who want witnesses to an alibi or even witnesses who were present but whom they do not know and could obtain when they are really innocent; and who wish to get evidence to support their case. As the noble Viscount, Lord Bridgeman, knows, his committee went through the question of how often this happened. They found that in 50 years there were 21 cases. I cannot remember precisely, but either 10 or 11 were acquitted; so that in 50 years there may have been 10 or 11 cases in which this happened, and no doubt it is right that we should provide for it.
There is one case I remember in which it simply resulted in a man going to the police station and saying, "I have read about this case. It was I who did it; and not this man ". Perhaps one should be at pains to try to allow, if one can, for those things. Then we get the question of whether the restrictions should be lifted because one person has asked for it. One sees the difficulties of that. One of the matters which the noble Lord, Lord Wigoder, might care to bear in mind, which has not been mentioned but which troubles me a little in thinking of the law being left as it is or, possibly, even if it is changed, is this. What happens if you get one man who is guilty, who knows he is going to be convicted (so that he does not mind what happens) and who is paid a large sum of money by a newspaper to ask for the restriction to be lifted? I do not know whether, under the proposal of the noble Lord, Lord Wigoder, justices should always ask somebody who has asked for the restrictions to be lifted 997 whether he has made a deal with a newspaper. But in the days in which we live and the large amounts of money which newspapers are prepared to pay, this is perhaps a consideration which should be borne in mind.
I do not disagree in any way with the general lines of the proposal which the noble Lord has put forward in the Bill with those amendments which he himself has adumbrated—and I am sure that he will take into account, also, the observations made by my noble and learned friend Lord Elwyn-Jones—subject, if I may be permitted to say so, to one point. That is—and I may be quite wrong—that I surmise that it may be some years before the Royal Commission on Criminal Procedure reports. If that surmise is right, it may be that this is a matter of some urgency which ought to be dealt with now.
Of course I shall be particularly interested to hear the views expressed by the noble Lord, Lord Belstead, because very much depends on what the Government attitude is to the Bill and whether or not they contemplate some amendments themselves. For the moment, I will reiterate my thanks to the noble Lord, Lord Wigoder, for having moved in so smartly so as to enable us to deal with this point.
§ 8.37 p.m.
§ Lord MISHCON
My Lords, may I be permitted to re-echo the last words of the noble and learned Lord, Lord Gardiner, in commending the initiative of the noble Lord, Lord Wigoder, in bringing this Bill before the House. I mention what I am going to say for very definite reasons in regard to the Royal Commission on Criminal Procedure which has been mentioned. What I wanted to say was this. The recent proceedings in Minehead have called public attention to four matters which had worried practising lawyers for some time. The first one is the whole question of committal proceedings, the need for them and how they are carried on. The second one is the question of agreements between the media and witnesses in regard to the publication of stories or articles.
The third one is the right of silence of the accused, the negation of the right of comment by the prosecution and the 998 limitation upon the right of a judge when addressing the jury to deal with the matter of the silence of the accused. The fourth, and last, is the one with which this Bill deals; namely, the application for the lifting of reporting restrictions where more than one defendant is involved and in regard to the question of Section 3(2) of the Criminal Justice Act 1967.
Without any doubt at all, if I may so submit, there are two matters of those four which stand out as needing urgent attention. One is the question of agreements with the media and witnesses; and I need not say any more about that because I believe that there will be a Bill before this House dealing with this very matter. The second item which calls for urgent attention, in my submission, is the question of the right of one of the accused (as we saw recently in the Minehead proceedings) to insist upon publication when the rest of the defendants do not want it. That is something with which we have to deal, if I may say so, immediately; and we need not wait and should not wait for the Royal Commission to report.
The Law Society, the venerable institution of which I am a very humble member, was mentioned by the noble Lord, Lord Wigoder. I am proud to be able to say that I am authorised by the Law Society to tell your Lordships that they agree in principle with this Bill. There are two comments, as was fairly mentioned by the noble Lord, Lord Wigoder, which they make, but they are not comments that apply to the Second Reading; they are comments which may be thought about and lightly touched upon between Second Reading and Committee stage. One is this: it is felt that the question of an application of this kind is of such importance to the applicant who makes it and to the other co-defendants who disagree with it, that it should not be left to the magistrates alone to decide without any right of appeal. It is the view of the Law Society that consideration should be given to an appeal against the decision of the magistrates to the Crown Court, the judge there sitting in Chambers.
The last point is a topic which has been raised in the course of this discussion: whether, when one leaves it to the court, it is right and proper however appropriate it might he in another context to quote the language of the 1848 Act to leave 999 their consideration to the definition that it is,in the interests of justice so to do ".It is felt that this is far too broad a definition of their responsibilities. Indeed, the court might think that it had to look at the whole consideration of whether publication of the committal proceedings in any event is a just thing, and that the wording ought to be very much nearer a consideration by the court as to whether greater hardship would be caused to the defence of the applicant if the application were refused than would be caused to his co-defendants if it were granted. Having said that, may I say that, from my own point of view and as a member of the Law Society, I commend this Bill most definitely to the House for Second Reading.
§ 8.42 p.m.
§ Lord BELSTEAD
My Lords, the impression I have gained from the speeches which have been made by your Lordships this evening is that, in the words of the noble and learned Lord, Lord Gardiner, this is not an easy question. Should committal proceedings be published? That is the issue into which the committee under Lord Justice Tucker was asked to inquire 20 years ago; the Tucker Commitee recommended that unless the accused was discharged or the trial was ended, any report of committal proceedings should be restricted to a recital of the main particulars. Nine years later, the Government of the day took a somewhat different view: although the Criminal Justice Act 1967 provided that there should not be publicity for committal proceedings, it none the less enabled a defendant who preferred publicity to secure, as of right, that the restrictions on reporting should not apply in his case.
That remains the law on the subject today. Last year, my honourable friend Mr. Fairbairn, who is now Solicitor-General for Scotland, introduced a Bill which would have prohibited reporting beyond the bare essentials, in effect bringing the law into line with the Tucker recommendations, but this Bill, as your Lordships will know, was amended in Committee and it did not pass into law.
As someone who is not a lawyer, I must bear in mind that we are discussing a procedure preliminary to a trial, a proce- 1000 dure which is not concerned with establishing the guilt or innocence of the accused. Because noble Lords who are distinguished in the law have spoken, because we have also had the advantage of a speech by my noble friend Lord Bridgeman, who was a member of the Tucker Committee, and because the main arguments are essentially the same as those put forward when the 1967 Act was debated in Parliament, I will claim your Lordships' time for only a few minutes in trying to explain the Government's view of the Bill for which we are indebted to the noble Lord, Lord Wigoder.
The main argument for restricting publicity which has been mentioned by many of your Lordships is that publication of evidence brought in committal proceedings may jeopardise the chances of a fair trial in the Crown Court because members of the jury who have read newspaper reports have come to certain conclusions prior to hearing the evidence given at the trial. So far as the Government are concerned—and I am sure we are at one on this—there is no implied criticism of the media in saying this because it is usual for only the prosecution case to be presented to the examining justices, who will have to make up their minds about whether to commit the accused for trial on the basis of that case, so, as the noble and learned Lord, Lord Elwyn-Jones, said, 19 times out of 20 we only hear of one side of a case when full committal proceedings are reported.
It can also be argued that jurors may be prejudiced by prosecution evidence that was not challenged at the committal proceedings, was faithfully reported in the Press or on TV or radio, but is subsequently ruled inadmissible at the trial. Similarly, as the noble Lord, Lord Wigoder, said, the prosecution opening speech may be rather enthusiastic so it is not supported by the committal evidence or evidence given at the trial, and the prosecution may also adduce evidence at the committal proceedings which—for reasons about which the noble and learned Lord, Lord Elwyn-Jones, hazarded a few guesses—in the event is not used at the trial. It is this sort of information which, it is said, could prejudice the minds of those who may in due course serve on the jury if they read about it in the Press or see it on the television beforehand. Of course, whether or not committal proceedings are reported, there is nothing secret about 1001 them since they normally take place in open court. In theory at least therefore a juror can come into possession of advance knowledge of a case. But restricting Press reports does of course effectively make this unlikely.
The noble Lord, Lord Wigoder, adduced all these arguments and he will forgive me for running over them again but I thought it was right to do so at the end of this debate. The Tucker Committee considered all these arguments and concluded—did they not?—that there was no evidence one way or the other that reports of committal proceedings prejudiced trials. However, using its common sense—so it seems to me—the Committee pointed out that the result of full committal proceedings must be that everything which tells against the accused is published twice and what is in his favour only once, and concluded that publicity at the committal stage ought to be restricted. My noble friend Lord Bridgeman commended that view again this evening.
The arguments which persuaded Parliament against following Tucker entirely in 1967 were, in the first place, the possible benefit that publicity may prompt witnesses to come forward. The noble Lord, Lord Wigoder, said that he had known of no such cases personally in his career at the Bar. The noble and learned Lord, Lord Elwyn-Jones, told us of one case; and the noble and learned Lord, Lord Gardiner, reminded us of the Tucker statistics on this point, but reminded us, too, that when it happens only a few times it must be important.
I am bound to say that I am advised that there is no strong evidence to support this contention and perhaps it is right for me to record that Tucker dismissed it as "an extremely rare occurrence ". It has also been asserted that reporting of committal proceedings can have the beneficial effect of dispelling rumour and gossip about the nature and circumstances of a crime, which might otherwise continue unabated until the trial. To this Tucker commented drily that, "some hold the contrary view ". Finally, it has been argued that there is an element of paternalism in denying a defendant the right to have his case publicised if he thinks it is in his interests. It is this last argument which carries weight, and without compelling evidence I should like to make 1002 it clear that the Government would be reluctant to remove entirely from defendant the opportunity to have his committal proceedings reported by the Press who are reporting what takes place in open court. The difficulties arise where there is conflict between co-defendants as to whether or not there should be publicity.
After this debate, your Lordships are familiar with the provisions and the objectives of the noble Lord's Bill which seeks a middle course by proposing that where there is conflict between the defendants they should all have an opportunity to present their arguments for or against maintaining the restrictions and the court shall make an order to lift the restrictions only if it is satisfied that it is in the interests of justice to do so. I am bound to say that this may well be a difficult decision for the court to take. One might have, I suppose, two defendants, one of whom is a swindler on a large scale and the other co-defendant is an accomplice who has perhaps played only a brief and relatively unimportant role. At the committal proceedings the accomplice might well want publicity so as to bring forward further evidence against the swindler and thereby play down his own role; the interests of the other party would be likely to be the opposite. In such a case, I think the court would not find it easy to decide where the interests of justice lay.
I confess also that I am not entirely sure as to what extent it will be necessary for submissions to the court for or against publicity to disclose the defence case. As I have understood the debate, to be obliged to do so would be a departure from existing practice, since at present there is no general obligation on the defence to disclose their case before the trial. Also—and as a non-lawyer I am diffident about raising this point—it seems vital to discover the sort of considerations which should weigh with the court in deciding for or against publicity and whether the phrase " in the interests of justice " gives sufficiently clear guidance. The noble Lord, Lord Wigoder, addressed some remarks to this particular problem and, if the Bill makes progress, I think we may wish to return to this point to see whether it is desirable to try to give a clearer signpost to the court as to what is expected of it.
1003 I was going to venture to conclude that the problem with which the noble Lord's Bill will have to deal could be solved in any one of three ways. The noble and learned Lord, Lord Gardiner, made it six ways, and he would certainly be right; but for simplicity, and for my own benefit, may I say that what I had in mind was: prohibiting publicity of committal proceedings; by allowing publicity upon the application of a defendant or by leaving the court to decide. The noble and learned Lord, Lord Elwyn-Jones, put forward a fourth method of advancing, and I am sure that the noble Lord, Lord Wigoder, will be wishing to take the noble and learned Lord's suggestions into serious account before the next stage of the Bill.
The fact at the moment is that this Bill chooses what I might call my third solution, which carries with it some practical problems; but let us bear in mind that the noble Lord's Bill is designed to improve on a situation which is clearly not regarded as satisfactory by any of your Lordships who have spoken this evening. As several speakers have said, the whole area we are discussing lies within the terms of reference of the Royal Commission on Criminal Procedure, and I understand that on consideration of the Bill of my honourable friend Mr. Fairbairn a few months ago, the previous Home Secretary, Mr. Merlyn Rees, ascertained that the Royal Commission would have the question of reporting restrictions under review. However, your Lordships may wish to be made aware that on that occasion the chairman of the Royal Commission expressed the view that if a clear consensus of parliamentary opinion on this subject became evident, the Royal Commission would wish to take such a consensus into account in formulating its own views. That is also the view of the Government.
§ Lord ELWYN-JONES
My Lords, can the noble Lord help us as to whether my noble and learned friend Lord Gardiner's pessimistic estimate that the report, to coin an ancient phrase, would be a matter more of years than of weeks is an accurate one, or has he some more hopeful message that we may look forward to an earlier report?—because that would certainly influence my view on this matter.
§ Lord BELSTEAD
My Lords, I am sorry: I was afraid that the noble and learned Lord would ask that question following upon the remarks made by the noble and learned Lord, Lord Gardiner, on this matter. I have not the answer readily available and I think it would be for the convenience of the House if I wrote to the noble and learned Lord, and perhaps made other speakers in the debate aware of the letter I was writing to him.
So far as the expression of opinion by the chairman of the Royal Commission is concerned, the view of the Government is the same. We recognise that this is a topic about which there has been much concern. We welcome this debate and if the principles of the noble Lord's Bill command the support of your Lordships this evening, the Government would not wish to stand in the way of its progress. It may, as 1 think the noble Lord recognises, be necessary to put forward some amendments for consideration during the Committee stage of the Bill.
§ 8.55 p.m.
§ Lord WIGODER
My Lords, I am deeply grateful to the noble Lord, Lord Belstead, for what I regard as a most constructive and helpful approach on behalf of the Government. I am grateful, too, to all those noble Lords and noble and learned Lords who have made such interesting and valuable contributions to this short debate.
It would be wrong to take any time at this stage of the evening, except perhaps to make two comments. So far as the Phillips Commission is concerned, however long or short the time may be before it reports, it is perfectly clear that it is going to report on a whole series of very much more important issues than this, and that they are issues which are going to be bitterly and hotly contested throughout in both Houses of Parliament. I cannot believe that effective legislation can follow the report of the Phillips Commission for some considerable time afterwards. If your Lordships agree that there is an urgent problem to be dealt with here, then I would suggest it might not be wise to wait for what might be a very considerable time.
The other comment I would make concerns the suggestion made by the noble 1005 and learned Lord, Lord Elwyn-Jones,that this matter might perhaps be dealt with, where there was a difference of opinion among defendants, by allowing separate trials to take place. Perhaps I might give my immediate reaction to that, although I should like to think about this suggestion very carefully. We all know, as a matter of practice, that where two defendants are jointly charged, their prospects of acquittal are greatly increased if they can obtain separate trials; and it might be tempting for defendants in such a situation to find that they have a new statutory means of securing a separate trial if one of them can find, by some device, a method of asking that reporting restrictions should be lifted.
I am in no doubt, having listened to this debate, that your Lordships would agree that the present position is unsatisfactory and that your Lordships would also agree that somehow the right must be preserved for a defendant to lift the restrictions on reporting, provided he can satisfy the court that he has a good, honest, valid reason for doing so. I believe in fact that will be in a very, very small number of cases, and therefore that it ought to be practicable for us to find a means of resolving this problem at a later stage.
When the noble Lord, Lord Belstead, indicated that it might be desirable for assistance to be given in amending this Bill, I would say, if I may, that I did not take that as a threat but as a very sub- 1006 stantial encouragement. I should be deeply grateful for any assistance that might be forthcoming. If your Lordships were good enough to give this Bill a Second Reading, it may be that we might perhaps postpone the Committee stage until after the Recess. That might give all of us the opportunity to take further soundings and have further consultations so that we could come back to a Committee stage with amendments that would enable this Bill to pass into legislation in the near future. In those circumstances, as I say, I am grateful to all of your Lordships who have helped in this debate, and I ask the House to give this Bill a Second Reading.
On Question, Bill read 2a, and committed to a Committee of the Whole House.