HL Deb 28 November 1979 vol 403 cc459-74

5.55 p.m.


My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, that the House do now resolve itself into Committee.—(Lord Wigoder.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AMHERST Of HACKNEY in the Chair.]

The DEPUTY CHAIRMAN of COMMITTEES (Lord Amherst of Hackney)

I must tell the Committee that if Amendment No. 1 is agreed to, I cannot call Amendment No. 2.

Clause 1 [Circumstances in which reporting restrictions may be lifted]:

Lord WIGODER moved Amendment No. 1:

Page 1, line 19, leave out from ("satisfied") to end of line 20 and insert—

  1. (" (a) that it is desirable to do so in order to secure a fair trial for any of the defendants making the application; and
  2. (b) that the benefit to the defendant or defendants making the application is not outweighed by any reasonable disadvantage which is likely to be suffered by any other defendant or defendants relating to their trial.")

The noble Lord said: It really follows from what has just been said that it will be to the convenience of the Committee if Amendments Nos. 1 and 2 are considered together. I am sure that the noble Lord, Lord Mishcon, will agree that they are in fact alternative ways of saying very much the same thing.

It is unnecessary, I think, that I should remind your Lordships in more than a sentence of the object of this modest measure. Your Lordships will remember that under the 1967 Criminal Justice Act, which deals with the reporting of committal proceedings, if all the defendants agree that the proceedings shall be reported, they are reported, or reportable; if all the defendants agree that there shall be no reporting, then reporting restrictions are imposed; but if there is a difference of opinion among defendants, then under the present law any one defendant has an absolute right to lift the restrictions, however whimsical his decision may be and whatever grave prejudice might be caused to other defendants. What this Bill provides, as your Lordships will therefore remember, is simply that in that situation, where defendants differ among themselves, the magistrates should have an overall discretion, after hearing argument, to come to a conclusion as to whether or not the reporting restrictions should be lifted. With that general proposition I think there was substantial agreement in your Lordships' House on Second Reading, and it was also expressed outside your Lordships' House.

The issue that these two amendments raise is this. Given that the magistrates should have a discretion as to whether or not restrictions should be lifted, what criteria should they apply? As your Lordships will see in lines 19 and 20, the original Bill provided, first, that restrictions should be lifted only if the applicant made out his case that they should be lifted; and, secondly, that the criterion that should be applied was whether it was in the interests of justice so to do. The phrase "in the interests of justice" is a time-honoured phrase which has been used in, I think, much legislation and in many other instances where issues arise before a court; but criticism was levelled at the original phrase, "in the interests of justice", really on two grounds. First, it was suggested that it was perhaps too wide or too broad, or not sufficiently precise. It might, for example, enable magistrates to argue among themselves that it was always in the interests of justice that there should be publicity, or it was always in the interests of justice that there should not be publicity. Following on from that, it was suggested that it would be helpful if this Bill gave rather more assistance to magistrates as to precisely what tests should apply.

Among those who pointed out that this was perhaps a little broad in its original form were the noble Lord, Lord Mishcon, and the noble Lord, Lord Belstead, in the course of the Second Reading debate; and I was very much assisted by a letter I received from Lord Justice Lawton, who is the chairman of the Criminal Law Review Committee and a very distinguished criminal lawyer, who suggested that perhaps the test was rather too wide and that it would be better and of more assistance to magistrates to say that what they should consider was whether it was necessary for the fair trial of the particular defendant making application. In order to meet that point, Amendment No. 1 has been drafted; and I hasten to say that I acknowledge substantial assistance from the Home Office in doing the drafting. Amendment No. 1 provides that the magistrates should take the matter in two stages. They should consider first: Is it desirable to lift the reporting restrictions in order to secure a fair trial for any of the defendants making the application? That in effect means: Has a defendant made out his case for saying that there is a real chance that, if the reporting restrictions are lifted, an important defence witness may be forthcoming?

Your Lordships will remember that the Tucker Committee reported many years ago that this was a possibility, although a somewhat remote one. They said that they had been able to find 20 or 21 cases where that happened in half a century. But we would not want to rule out that possibility altogether. Therefore, the magistrates would consider, first, under Amendment No. 1: Has a defendant made out that, in order to secure his fair trial, restrictions should be lifted? Then, secondly, the magistrates would consider under paragraph (b) of the Amendment: Is the benefit to the defendant making the application outweighted by a reasonable disadvantage likely to be suffered by any other defendant? That is intended to deal with the rather unusual situation where a particular defendant can make out a case for saying that the restrictions should be lifted in order that he should have a fair trial but, nevertheless, it is apparent that he is playing such an insignificant part in the whole case that the benefit to him is as nothing compared to the grave prejudice that might arise to the people really involved in the case if the reporting restrictions were to be lifted.

It is submitted for your Lordships' consideration that an amendment on the lines of Amendment No. 1—and (b) to which I referred says, as I imagine the noble Lord, Lord Mishcon, would agree, much the same as his amendment says—would be of assistance to magistrates in deciding how to go about their task. For those reasons, it might be desirable to write this into the Bill.


May I use this opportunity of expressing, as was said on the Second Reading of this Bill, my own personal gratitude to the noble Lord, Lord Wigoder, for his initiative in originally bringing this Bill before your Lordships' House. It has achieved a purpose which is much to be desired and is possibly (if I can put it this way) the only good thing that has emerged out of the very tragic set of proceedings by way of trial, which trial is well known to this House.

In respect of the specific amendment before the Committee, I should not dream of detracting from the gratitude that I have expressed by trying to argue for the wording in my amendment and saying that it was superior to that of the noble Lord. In the amendment which, of course, is not yet before the Committee, I have only gone for simplicity. I had in mind that the consideration of this matter very often will be before lay magistrates, and it seemed to me that the more simple the guide given them the better. I hoped (and it is in consonance with a Law Society memorandum) that this amendment, setting out exactly what would be before the court, was a very simple way of doing it and would not occasion them great trouble in interpretation; namely, that all that they had to do was to see whether greater injustice would be done to the applicant by refusing the order than to any other defendant by making it. That, it seemed to me, was simplicity itself.

The noble Lord has introduced here two requirements: that they should have to see whether or not the application should be granted in order to procure a fair trial for the applicant; and, furthermore, that they had to go into the question of advantages and disadvantages, as set out in what seemed to me—and I say it with the utmost respect—somewhat complex language. Therefore, I only say to your Lordships—and I leave it entirely to the Committee—that it seemed to me that the more simple the guide the better. I hope that the amendment which I took the liberty of putting down achieved that object.


I rise as a supporter of the Bill. I have no intention of voting against any amendment which the noble Lord, Lord Wigoder, may propose, and still less of putting down any amendment myself. I want to make one or two observations in case they may be of assistance to the Committee.

This will be, obviously, a delicate jurisdiction. As the whole Committee knows, I have great confidence in the common sense of the justices of the peace. They will always do what Parliament says, provided that Parliament makes it clear what it is they are supposed to do. I have two short points to raise. First, on this amendment at present before the Committee. It refers to a "reasonable disadvantage". I have not really understood that expression, which seems to me a difficult one; and I have asked myself this question, which I hope is a proper one: What would be an unreasonable disadvantage? If what is in mind is that the justices should not pay excessive attention to a trivial disadvantage, that I can well understand; but if that is what is intended, I should have thought that the phrase would read "a serious disadvantage" or perhaps "a substantial disadvantage". But I am at some loss as to what exactly is a reasonable or unreasonable disadvantage.

The second point is this. Whatever we legislate, we shall, I hope, make it clear to the justices what they are to do. It is a delicate jurisdiction, not least because—and whether this was so in the Thorpe case I have no idea at all—one must envisage that the Press are naturally anxious to have as much material to put in their papers as possible, and they might approach a defendant with a reasonable offer provided that he would apply for the restrictions to be lifted. There are cases among defendants where one defendant, though he may not have said so publicly, intends to plead guilty. He cannot care tuppence whether it is reported or not. This is the sort of factor for which justices will have to be watchful.

There is this further difficulty for the justices: that they get a case where the applicant says, "I was nowhere near the scene of the crime at the time". He says he was in a cinema or a public place; and he goes on, "I want the restrictions on reporting lifted so that I may find witnesses. I can get my photograph published and the date and the time; and there may be people who may say, 'I know that man. He was sitting at the next table to us'." He obviously has a strong case.

The other defendant may then say, "We shall be gravely prejudiced because it will mean that the jury will have read all the case for the prosecution before they go into the jury box." This was the origin of the whole thing and the basis of the report of the Tucker Committee.

At this point I can see that half the justices may say, "We cannot take account of that because that applies to every single case. Parliament cannot have expected us to take into account a fact which is at present not peculiar to those who are opposing the application, but which applies in every case." The other half of the justices may say, "If Parliament meant that, surely they would have said so in the Act." We ought to make it clear to the justices whether the ground which must apply in every single case—that those who are opposing the application of course will be disadvantaged because the jury will hear the whole of the case for the prosecution before going into the jury box—is to be taken into account or is not. Those are the few observations that I wanted to make.

6.10 p.m.


I find myself so much in agreement with what has been said by my noble and learned friend Lord Gardiner that I am not going to take up time in saying it all over again. But there are two points that I should like to make. To start with, may I adopt what has already been said about the importance of simplicity. It is of the utmost importance that whatever we say on this subject, we say it clearly and simply, otherwise I envisage the first day of a trial being given up to stultifying arguments on these lines. Surely, we must do something about that.

The other point I want to make is that I confess that I came here this afternoon expecting to support the original wording of the Bill with its reference to "in the interests of justice". I would have done so, if necessary without any hesitation, because that clause is a very well-known clause, one that has been in use certainly since the beginning of this century, and one which, so far as I know, has never given any trouble in practice. Lord Wigoder's amendment so fully deals with the situation in a slightly different form that, like my noble and learned friend Lord Gardiner, I do not propose to attempt to interfere with it.

6.12 p.m.


When the House debated this Bill on Second Reading there was general agreement that the present position regarding reporting restrictions in committal proceedings involving multiple defendants was unsatisfactory. The House welcomed therefore the principle of Lord Wigoder's Bill which is an attempt to remedy the unsatisfactory position. The noble Lord, in introducing his amendment, has reminded us that the expression "in the interests of justice" was said by the noble Lord himself to be possibly—and I quote his words—" a trifle too lose and wide". It was a point which other noble Lords took up in the debate on Second Reading.

The noble Lord has reminded us of the view which Lord Justice Lawton had expressed, which the noble Lord, Lord Wigoder, reported to the House; namely, that applicants for the lifting of reporting restrictions should have to show that it was necessary to ensure their fair trial. It is fair to say that on the occasion of the Second Reading we agreed in the House that it would be desirable to return to this general area of the Bill again. It is for that reason that I welcome this opportunity to take part in this discussion.

I would not normally dream of inflicting my views upon the Committee, but I speak for the Government in this matter and perhaps the Committee will forgive me if for a moment I seek to express the view of the Department which I serve. It would perhaps he of convenience to the Committee. Very briefly, may I cover the ground again and see whether we need a different signpost from the one which is in the Bill—namely, the words "in the interests of justice." Perhaps the simplest form of approach to this would be to require a defendant applying for reporting restrictions to be lifted to meet a particular criterion. One test, of course, could be that it was necessary to lift reporting restrictions to secure someone's fair trial. We feel, so far as the Government are concerned, that there would be no question here of the court arbitrating. The court would simply be deciding whether a reasonable case for allowing publicity had been made out by one of the defendants using some narrow test, such as whether publicity was necessary or desirable for his fair trial.

I would expect that the commonest argument in such applications would be that publicity would bring forward witnesses who might otherwise be unaware of the case. If an application were made on that basis, I realise it is not easy to envisage what arguments could outweigh that consideration, but I suppose the codefendants might have good reasons for wanting reporting restrictions to be maintained and of course they should have an opportunity to put them forward to the court. However, this raises the question of the discretion the court should have, and what test it should apply, in deciding between the opposing cases made by the co-defendants.

The noble and learned Lord, Lord Gardiner, has said that we really must make clear what it is that the justices have to do. The question which has troubled members of my right honourable friend's department is whether it would be reasonable to expect a court to arbitrate between arguments, which must be of a very different character and one would have thought a different weight. For example, one defendant might apply to have reporting restrictions lifted on the grounds that publicity might bring forward fresh witnesses, while a co-defendant might argue that he was confident that the examining justices would throw out the case, and that publicity of the prosecution case purporting to link him with the applicant would damage his reputation. One does not know what view the court would take of such a conflict of views on such different grounds, nor how, in these circumstances, it could apply the Bill's test of the interests of justice.

It is at least arguable, however, that a court would not regard the effects of publicity on a defendant's reputation one way or the other as a relevant aspect of justice in this context. The amendment moved by the noble Lord, Lord Mishcon, introduces a different concept—I am speaking to the amendments as a group—by requiring the court not to say where the interests of justice are best served, but instead to assume that the lifting of reporting restrictions might well amount to a denial of justice to those co-defendants who wanted restrictions to be maintained.

The court would be asked, as I understand it, to measure which would lead to the greater injustice; the making of an order or refusal to make an order. I listened with care to what the noble Lord said in speaking to these amendments. I recognise that the noble Lord's amendment is designed to replace the somewhat abstract concept of justice which the Bill can be said to contain, and substitute a concept of injustice peculiar to each individual co-defendant. But I wonder whether the noble Lord's amendment is not open to very much the same kind of objections as the wording of the original clause without having the merit of using the time honoured words, "in the interests of justice"

The noble Lord, Lord Wigoder, put forward an alternative approach which, as I understand it, aims to make the whole problem more manageable. The amendment which the noble Lord has moved seeks to substitute for the criterion of the Bill the interests of justice, a somewhat narrower and more specific test. All of the co-defendants will continue to have an opportunity to make representations to the Bench. If an application for an order to lift reporting restrictions is to be successful, the applicant will first need to satisfy the court that the order is desirable to secure his fair trial. No doubt such an application would usually be based upon the possibility of bringing forward fresh evidence.

If the court is satisfied that the applicant has made out his case, it will then hear the representations of the other defendants. The noble and learned Lord, Lord Gardiner, queried the use of the words "reasonable disadvantage". As the noble Lord, Lord Wigoder, has most certainly been in touch with the Home Office in the drafting of this amendment, it would be reasonable for him to expect me to say that, as I understand the amendment, I think in deciding upon the application the court would consider the disadvantage relating to the trial which the co-defendants may suffer if the committal proceedings are reported. One would envisage a co-defendant claiming that publicity would prejudice potential jurors and could thereby be held to be a reasonable disadvantage to his fair trial.

That is the way I would understand the amendment working out. I realise the court would then have to weigh the various arguments and decide where the balance lies. As the noble Lord, Lord Wigoder, has explained, this amendment seeks to direct the court's mind really towards the eventual trial. I think it is fair to claim that this amendment would narrow down the issues the court must consider, by requiring that the application and the representations relate to the trial, and this ought to exclude arguments founded upon the effects of publicity upon a defendant's public reputation. To that extent, the amendment will perhaps strike many of your Lordships, I would have thought, as an improvement on the text of the Bill as originally drafted. However, the courts will, of course, still he dealing with unknown quantities and at the end of the day will still be balancing possibilities and probabilities with unknown values: but at least the focus for these considerations will be the trial itself.

I hope your Lordships will forgive me for being long-winded. I realise that all I have said has been flowing in one direction. The noble and learned Lord the Lord Chief Justice has now spoken and has given us advice on the merits of the wording of the Bill as it stands. I would just like to say from the Government side, therefore, that having had the benefit, on behalf of the Government, of hearing the views put by your Lordships, all with legal experience and with many of your Lordships very distinguished in law, not the least of them being the Lord Chief Justice, we feel it would be very much to the convenience of the Government if we were able to think about this a little more before your Lordships come to a final decision at Report stage. I therefore suggest that if the noble Lord feels it is possible not to press his amendment at this time he would find on this side a very grateful Government. However, this is entirely a matter for the Committee and for the noble Lord. If he wished to press the amendment the Government would in no way stand in his way.


I only wish to make my own position clear, if I may. Having heard the noble Lord the Minister, I would not dream of taking advantage of the situation and if the noble Lord, Lord Wigoder, decided to withdraw his amendment I certainly would not burden the Committee with my own. Your Lordships would then have the opportunity of considering the matter afresh at the Report stage. It is entirely a matter for the noble Lord, Lord Wigoder, in regard to his amendment.


Having listened to the observations of the noble and learned Lord the Lord Chief Justice, the noble and learned Lord, Lord Gardiner, and the noble Lords, Lord Mishcon and Lord Belstead, I have no doubt at all that the Committee will be unanimous in coming to the view that it would be premature to decide this afternoon on the precise wording of this particular part of the Bill. It is clearly of importance that it should be got absolutely right and I have no doubt that further discussions between now and Report stage will enable that to be achieved. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Lord WIGODER moved Amendment No. 3:

Page 1, leave out lines 21 and 22 and insert— ("(2B) It shall not be lawful to publish in Great Britain a written report, or to broadcast in Great Britain a report, of or referring to any application made under subsection (2A) above.").

The noble Lord said: In moving Amendment No. 3, I think I ought to say at once that I suspect it has only succeeded in replacing one drafting disaster by another. The original Bill, in lines 21 and 22, intended to provide that the argument as to whether the reporting restrictions should be lifted should be subject in itself to the same restrictions on reporting as the committal proceedings would be when they were heard, because clearly it could be extremely prejudicial if the arguments as to whether the restrictions were to be lifted was to be reported at length in the Press. The fault with the original lines 21 and 22 as drafted was that the provision was in fact really circular. It laid down that any application to lift restrictions on reporting should be subject to the general restrictions laid down at the beginning of the original section. That in turn, as the Bill stood, would have been open to an application by any defendant to lift the restrictions on the reporting of the application for the reporting, and so on and so on. It was clearly faulty.

The attempt was therefore made in Amendment No. 3 to replace that piece of faulty drafting by something which at least is clearer and which simply states in terms, following the wording of the original Act, that it shall not be lawful to publish any report of any application made under this section. The intention of that amendment is perfectly clear. I would suspect that the Committee would agree at once that the intention is one which they would share, because it would be manifestly unjust if an application in itself should be reportable in those circumstances. But the principal Act is somewhat complicated and perhaps I need say no more than this. Having had a word with the noble Lord, Lord Belstead, before I came into this Committee, I strongly suspect that the original Act has proved a little too involved for this form of drafting. Although your Lordships may agree that what this amendment seeks to achieve is desirable, it may well be that the noble Lord, Lord Belstead, will be able to persuade your Lordships without difficulty that this amendment should be withdrawn in order that it may be redrafted in a rather more satisfactory form. I beg to move.


If your Lordships will forgive me, I think that the apprehensions of the noble Lord, Lord Wigoder, are well founded. I would hesitate in any way to correct him, but I think that this amendment remains circular. I think it conflicts with Section 3(3) of the 1967 Act and on those grounds, therefore, the Government feel it would be a pity to accept it. However, we do accept the principle which underlies the amendment and, if the noble Lord felt able to agree to withdraw it, if there is any assistance which my right honourable friend's Department could give him in the redrafting of the amendment, we should be delighted to be of service.


In view of what the noble Lord has said, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

6.27 p.m.

Lord MISHCON moved Amendment No. 4:

Page 1, line 22, at end insert— ("(2C) Any defendant (whether the original applicant or not) shall have a right of appeal to be exercised forthwith to the Crown Court Judge in Chambers against any order made by the Magistrates Court as aforesaid.").

The noble Lord said: The purpose of this amendment is to deal with the applicant's right, or indeed the right of any other defendant who might he a party to the application which the Committee has just been discussing, to appeal. There is no doubt that your Lordships have regarded the question of the lifting of an order or the not lifting of an order to be of the utmost importance to defendants. In those circumstances your Lordships may feel it would be quite wrong not to include a right of appeal from the magistrates' decision.

In case it is thought that this is a cumbersome procedure, which might indeed hold up a trial which was due to start on a given date, only for the court and the witnesses to find that an application was made under this Act and the magistrates had found in a way which was not to the liking of one of the defendants, and then the matter was rudely adjourned in order that an appeal could take place, may I tell the Committee that, as I understand it, it is obviously envisaged that this should form a special application to the court, of which proper notice would be given. In any other circumstances it would be absolutely unjust to any other defendant who wanted to make a submission if he were suddenly faced with an application of this kind without any notice. Therefore, one would envisage, too, that under the Magistrates' Courts Act there would be a rule made which would provide for an application of this kind.

Again, as I understand the legal position, there would not be an automatic right of appeal from any—if I may use the term—interlocutory application from a magistrates' court. The only appeal would be against either the conviction itself or the sentence. No other procedure is provided for and, therefore, if one introduces this application into the Bill there has to be an appeal procedure, if your Lordships feel that that is merited.

I suggest to your Lordships, most respectfully, that this matter is important enough to an applicant. It is a matter that might itself be raised on appeal against conviction, if somewhat arbitrarily the magistrates had refused an application which might have helped a defendant, or granted it, which might have been to the disadvantage of another defendant. Therefore, one ought to know that the matter could be considered on appeal, and your Lordships will have seen from the drafting of this amendment that it requires that the appeal be entered forthwith and be heard by the Crown Court judge in chambers. I beg to move.

6.32 p.m.


If your Lordships supported this amendment and introduced the right of appeal there referred to, you would be departing entirely from the accepted policy and practice in this regard. For obvious reasons, there cannot be appeals against every decision which is taken, and wherever you go in the criminal law you find a point beyond which no appeal is allowed. In the case of a magistrate's decision, there is no provision for any kind of appeal until the case is finalised in the sense of a conviction, and then an accused person can appeal, looking back over the history of the case to point out what, if anything, was wrong.

There would be all kinds of difficulties, I venture to think, if against that background we now introduced for one purpose only the right of appeal. Certainly, some troubles might arise from the last two or three lines of the amendment, because I think there is no Crown Court judge in chambers officially under that title. I have never heard the title before and I do not think that it describes a recognisable individual. And how that right is to be exercised forthwith if the Crown Court judge is busy trying another case, I really do not know. For all those reasons, I urge your Lordships to say that we should not depart from established practice and create this right of appeal.

The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone)

I can only say that I agree with my noble and learned friend on the Cross-Benches. Despite the plausibility and the obvious desire for justice of the noble Lord, Lord Mishcon, I do not think this horse will run or, if I may mix my metaphors, I think there are too many eggs in this omelette.


May I indicate that I too, am a little dubious about the wisdom of this amendment, first because it seems to me to be inflating the importance of the whole matter dealt with by this Bill to an extent that is not entirely justified. I do not envisage a specific procedure before the magistrates, with its own separate rules, followed by its own right of appeal and so on. I envisage a short informal discussion between the parties, which is resolved by the magistrates who should be trusted to make up their minds on this matter, whereupon the committal will proceed.

The other matter that occurs to me is that there is likely to be yet another delay in the process which already suffers many delays, if counsel come to court for committal proceedings with their solicitors, with the parties, with their witnesses, and perhaps with witnesses from abroad, and are then faced with a situation where, after a discussion about whether there should be publicity, they all have to go away again until some suitable Crown Court judge can be found. It seems to me that it would cause a great deal of additional expense and inconvenience to the parties. I should have hoped, therefore, that it might be possible to resolve this matter without a right of appeal of this nature. As I have cited to your Lordships the helpful views of Lord Justice Lawton, I think I should add that he said in his first letter to me: The magistrates should decide whether there should be any reporting at all and their decision should not be appealable, either in the Crown Court or by way of judicial review",


Purely in self-defence from a professional point of view, may I make it clear that the purpose of this amendment and the whole purport of it stem from the recommendations of the appropriate committee of the Law Society. Therefore, in putting down this amendment, I did so in learned company, although obviously I have now heard very much more learned opinion than that company express itself against the amendment. The noble and learned Lord the Lord Chancellor used two metaphors. May I use a third and say that I find myself faced with a steamroller of learned opinion, and not only bow before it but try to get out of the way. In those circumstances, I do not propose to proceed with this amendment.

Amendment, by leave, withdrawn.

Clause I agreed to.

Remaining clause agreed to.

House resumed: Bill reported without amendment.