§ 3.56 p.m.
§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, I rise to move that this Bill be now read a second time, and, if I may, I would seek the indulgence of the House should my voice prove somewhat hoarser than usual. I shall try to make it carry as well as I can. I regard this as an important Bill, though, mercifully, it is not quite as long as some of those Bills which have occupied your Lordships' attention in the past Session, and although your Lordships will wish to discuss it, both now and at later stages, I hope that it will not give rise to too much controversy.
I fear that I can offer your Lordships very few surprises. On 7th May last, in reply to an Unstarred Question kindly put down by the noble Lord, Lord 658 Ardwick, I had the melancholy task of informing your Lordships that my poor little ewe lamb had been squeezed out of the warm fold of last Session's business by the more imposing flocks of my colleagues' legislative proposals; and in the course of that short debate—if I may switch my metaphor—I disclosed almost every card that I held in my hand. Therefore, what I have to say this afternoon will seem to many of your Lordships little better than vain repetition.
However, may I begin with one or two general philosophical sentiments. The first is that it is well known that from time to time politicians make asses of themselves; that lawyers, including judges, make asses of themselves, and that journalists also from time to time make asses of themselves. I am a politician, a lawyer, and a journalist, and therefore in a sense I can speak from the receiving end of all three. I am probably also the only person speaking in this debate who has been accused twice in his lifetime of contempt: once of contempt of court, and once of contempt of the House of Commons. Therefore I can speak from personal experience of being at the receiving end of that, too.
Conscious as we are of one another's shortcomings, it is very great fun for all three of our great professions to make fun of one another. But, my Lords, the truth is that none of us can get on without the other two. Each is essential to the wellbeing of the others, and since we all three live in glasshouses, we must be careful how often we throw stones; let him who is without sin among us cast the first. So that is my first general sentiment.
My second is this. In the judgment in the Sunday Times case the court was divided. The court was divided in the House of Lords, and it was divided at Strasbourg; and the reason for its division at Strasbourg, in particular, is that the Strasbourg court is a court of human rights based on the convention which we were discussing when Lord Wade introduced his Bill. There are two potentially conflicting human rights contained in the convention. The first is the human right contained in Article 6, which says this:In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".That is the first right involved in these cases.
The second is the right enshrined in Article 10 of the convention, which relates to freedom of expression and which begins with the unqualified words,Everyone has the right of freedom of expression"—and, of course, the freedom of the press is only a particular case of freedom of expression for everyone else. A free press cannot exist except as the possession of a free people, any more than a free people can continue to enjoy its liberties under the rule of just laws without a free press.
The Strasbourg court was divided in its opinion on the result of the Sunday Times case, but the members were all agreed on the principle to be applied when the two sets of rights came potentially into conflict. Justice, they said, comes first, but only to the extent—and here I quote—necessary in a free society";and, when seeking an explanation of the word "necessary" in this context, the court explained that 659 they intended it to carry a meaning somewhere between "desirable" and "indispensable". Whatever my opinion may be regarding the semantics of this, I venture to adopt the principle.
Even before the Sunday Times case I was of the opinion that the law of contempt was in need of clarification and revision; and since newspapers circulate more or less indifferently in each part of the United Kingdom, I was also of the opinion that it was necessary—and here I use the word in the same sense as the Strasbourg court—that the law of contempt should be identical throughout the realm. It was for this reason that in 1971, in conjunction with the Lord Advocate of the day, I caused the Phillimore Committee to be set up under the chairmanship of the late Sir Harry Phillimore. That committee reported to my noble and learned successor and predecessor in 1974, and through no fault of his—at least, I believe it was no fault of his—it remained lying on the shelf unimplemented five years later, when I became Lord Chancellor for the second time.
In the meantime there had been a Government discussion paper and a parliamentary debate, but no action. For aught I know, had it not been for the Strasbourg decision and various other incidents to which I shall come in due course, it might have gone on lying there. As the noble and learned Lord, Lord Elwyn-Jones, will testify, like Popes, Lord Chancellors have few divisions at their command in the mighty struggles which take place in the couloirs of power under the cloak of government. But at last my little ewe lamb has emerged into the open, and, with your Lordships' help, I hope that this time it will be allowed to grow up into a big sheep. Make no mistake: this is a liberalising Bill, and it is intended to be a liberalising Bill. If anyone doubts that, let them look first at Clause 6, the saving clause for the provisions which deal in the main with the strict liability rule and the Strasbourg decision. In that clause nothing is put outside the law which was inside it before the Bill became an Act, and no defence available before the Bill becomes an Act will be taken away by the Act. That is paragraph (a) and paragraph (b) of Clause 6.
Before I come to deal in detail with the clauses, may I, since this is a Second Reading, say what in the main the Bill does not do? The substantive parts of the Bill do not deal with intentional contempt. That is Clause 6(c), although the sentencing clause, to which I shall come, certainly does include it. They—that is to say, Clauses 1 to 6—do not deal with intentional contempt. For instance, they do not deal with throwing a tomato at the judge, intimidating witnesses, deliberately destroying evidence, and so forth. Equally, the Bill does not deal with civil contempt, apart from the sentencing provisions and one or two procedural provisions at the end. That is to say, it does not deal with deliberate disobedience to an order of the court—for instance, an injunction.
Apart from a number of provisions with which I shall have to deal one by one, the first six clauses deal with the so-called rule of strict liability in criminal contempt. That is the rule which puts editors and newspapermen generally in most fear. Moreover, they do not deal with the payment of potential witnesses—that is excluded by the definition in Clause 2— 660 such as that which occurred in the Thorpe case. The Press Council acted in that matter so vigorously that, rightly or wrongly—and I think I referred to this on 7th May—I thought matters could safely he left as they stood; and when I announced this decision I think it was tolerably well received both in this House and outside it.
There are three main purposes in the first six clauses: first, to implement the main recommendations of the Phillimore Report with what I hope to persuade the House are minor deviations; second, to harmonise the law of England and Wales with the majority judgment of the Strasbourg court in the Sunday Times case; and, third, to harmonise the laws of England, Scotland and Northern Ireland into a coherent set of rules. The Phillimore Committee recommended that strict liability should be limited to publications. That is, for instance, why it cannot apply to the payment of witnesses; it is limited to strict publications. Your Lordships will find that provision in Clause 2(1) of the Bill. It is this provision, of course, which, with the other, excludes payments to witnesses. This is a liberalising provision.
The Phillimore Committee also recommended that the strict liability rule should be limited to publications which create a risk—and here I quote the words—that,the course of justice in the proceedings in question will be seriously impeded or prejudiced".That is also a liberalising provision. It is achieved by Clause 2(2) of the Bill, and in my opinion it is perhaps the most important clause in the whole Bill. It is the better for being short, and it is made short deliberately because it is designed to be comprehensive—absolutely comprehensive—and because it is intended to be without qualification or exception. It follows exactly the words of the Phillimore Report, and for my part I can think of no better to express the purpose. It puts an end, of course, to the prejudgment criterion which was adopted by your Lordships' House in the Sunday Times case.
The Phillimore Committee also recommended that the times between which the strict liability rule should apply should be more precisely defined. That is a clarifying and therefore a liberalising recommendation. We seek to do that by Clause 2(3) and Schedule 1 to the Bill. Schedule 1 contains a deviation from the detailed recommendation of the report to which, if I may, I will return when I come to deal with the schedules.
Clause 4 also follows paragraph 141 of the Phillimore Report. The need for it was brought to notice by the Border Television case, as it came to be called. The law of defamation, as your Lordships know, protects reports of legal proceedings if published contemporaneously and in good faith. Clause 4 extends a similar protection to the law of contempt while retaining to the court the right to postpone reports by an explicit order postponing for that purpose. The reason for that is that there are cases where a premature release of facts in open court could prejudice current proceedings. An obvious example is the so-called "trial within a trial" when evidence of a confession is given and the judge has to decide as to whether it was properly obtained or not. It would be slightly inconvenient, to say the least, if, the judge having decided that it was inadmissible, the jury were able to read it in the papers the next morning. I think 661 there were subsequent proceedings which have shown the same point in relation to the Kray and Poulson affairs. These are referred to in the Phillimore Report in paragraphs 134 to 140. In fact, our intention is that editors should know so far as possible exactly where they stand. If there has been an order deferring, then they have to be careful; if there has been no order deferring they are perfectly safe.
Before I move on to the schedules, I point to what I believe to be the useful provisions of Clause 3 which, of course, as the noble and learned Lord will know, reproduces existing statute law, dating, I think, from 1960, protecting publication of matter where the newspaper is, without negligence, ignorant either that the proceedings are active (and here I use the word in the clause) or, in the case of the distributor, where without negligence he is ignorant that prejudicial matter is contained in a given publication. Clause 5 is new. Clause 5 implements the recommendation of paragraph 142 of Phillimore in favour of a special defence of general public discussion of matters of public interest to which the prejudicial matter is of merely incidental importance.
This brings me to Schedule 1 of the Bill which, as I have said, deals with the defined time limits before and after which the strict liability rule cannot apply. The Phillimore Report discussed this at length in paragraphs 115 to 132. There are really three vital points to be protected. The first, and to my mind by far the most important—and I hope that your Lordships will agree with me in this—is to safeguard the rights of a man charged with a serious crime to have a fair trial, the fount of justice so far as possible unpolluted by premature and prejudicial publicity. So far as regards jury trials and, to a lesser extent, before lay magistrates, this is of the first importance. So far as regards professional judges and judges of appeal the cases are obviously rarer and the danger less pressing. Magistrates' courts and tribunals, to which I shall refer later, are in the main in an intermediate position, but in these cases enforcement does not normally rest with the court at risk but with the High Court or its equivalent in Scotland.
The second principle to be protected—and this is of only slightly less importance—is the protection of editors so that they know exactly where they stand. The third, which is mainly of importance in defamation proceedings where the civil jury still persists as an institution, is to prevent the abuse of the so-called "gagging writ" by postponing to the last convenient moment the point of time for the commencement of the rule.
In civil proceedings we have sought to give effect to these principles by making the point of time at which proceedings become active the setting down of the action in the High Court, or, as the case may be, the fixing of the date of trial. That can be found in paragraph 12 of Schedule 1. In criminal proceedings, we have selected the grant of a warrant for arrest, the arrest without warrant, or the preferment or service of an indictment or charge. That can be found in paragraph 4 of Schedule 1.
The selection for England, but I think not for Scotland, of the warrant deviates from the precise recommendation of Phillimore. Phillimore recommended a slightly later point of time for the commencement of 662 the risk, namely the point of charge or service of the summons. It treated the arguments in paragraph 123 (where they are set out at length) as finely balanced. Our choice has given rise to some discussion, some of it rather ill-informed since I think the difference between the two recommendations can only apply to a very small minority of cases. I recommend the acceptance by the House of paragraph 4 of Schedule 1 as it stands, with my confidence considerably increased by the fact that, so far as I understood, it accords with the very well informed opinion both of the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Wigoder, in their speeches of 7th May.
It puts the quietus to the genuine and well-founded anxiety of the press as to the possibility of liability before proceedings begin—the imminent proceedings which have caused so much trouble—while at the same time safeguarding the accused from prejudicial publicity during a police search for a wanted man. The principal argument recognised by Phillimore in favour of the earlier point of time appears to me to be overwhelming. The disadvantage, it says, of the later point of time—and here I am quoting:is that it would allow comparatively unrestricted comment during a police search for the wanted man, which might culminate at any moment in an arrest and charge".Coupled with the main test in Clause 2 (namely, that in order to attract the rule there must be, as is stated in subsection (2) of Clause 2 a publication which creates a risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced) and coupled with the defence of innocent publication in Clause 3 of the Bill, reinforced by the new defence provided by Clause 5, I take the same view as I think the noble and learned Lord, Lord Elwyn-Jones, did in his speech on 7th May, that this provides an absolute protection in foreseeable cases.
This did not prevent some rather alarmist writers suggesting that the Bill under discussion would prevent all discussion about Lord Lucan, that source of perennial interest to those who write about such things, on the basis that there is something new to be said about Lord Lucan. I must describe that proposition as slightly preposterous. To begin with, the one argument of overwhelming importance which Phillimore gave for its own and slightly later point of time was that editors might be taken by surprise and would not know that a warrant for the arrest had been issued. I am bound to say that I think that an editor who does not know that a warrant for the arrest of Lord Lucan is out would be slightly unworthy of his job. It is almost impossible to conceive a publication about Lord Lucan which would satisfy the test in Clause 2—until at least his whereabouts are better known, if he is alive at all. In any event, any reasonable comment until he is found is covered by Clause 5. So I am not very impressed by this rather alarmist talk either on practical or theoretical grounds.
That is what I want to say about what I might call the first part of the Bill—that is, Clauses 1 to 6 and Schedule 1. There are a number of points of varying importance to which I should now draw attention in the remaining clauses and schedules. Some of these implement Phillimore, but they are concerned with matters other than the strict liability rule. The first and perhaps in some ways the most interesting 663 of these is Clause 7. The law of contempt has seldom been applied outside the ordinary pyramid of regular courts; though it has been held to apply to a coroner's court, an ecclesiastical court, and a court martial.
The reason for this comparative want of authority is that it is only since the war that the whole apparatus of inferior bodies and tribunals has proliferated. To my mind it is clear that no sensible distinction of principle can be drawn between any of the various organs through which the judicial power of the state can be exercised, though a vast array of distinctions of degree and probability could give rise to endless and somewhat profitless discussion. Throughout this field the general principle in the Phillimore Report applies. The law of contempt, says the report:is required as a means of maintaining the rights of the citizen to a fair and unimpeded system of justice".If one prefers to use the language of Articles 6 of the European Convention—which I have already quoted:In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".We think we have done right by clarifying the position of the High Court and its Scottish equivalents to punish contempt in the lower bodies of this kind. Those who are interested will of course recognise that this endeavour has been rendered necessary by certain obiter dicta in a recent case in your Lordships' House which I will not go into in detail. That is protecting them by virtue of the law of contempt but, save and in so far as they already have it, withholding from them jurisdiction to enforce the law. I made a slight error in the last sentence. What is protected is not the court; what is protected is the proceedings in the court.
Magistrates' courts, for example—and they are not a bad example—have some purely administrative functions. These are not protected by Clause 7. Their judicial proceedings, if they were not already protected, would be; and since the local valuation courts in the rating system were the subject of the House of Lords' decision (to which I have just made reference) I made special inquiries as to whether my advisers thought that the local valuation courts would be now protected if the Bill becomes law. The answer was that it was not intended that they should be, and it is believed that they are not since it is believed that their functions are administrative rather than judicial.
Clause 8 of the Bill derives from the facts which the Criminal Law Revision Committee published in July 1968 and subsequent events which, as a matter of fact, resulted from the Thorpe trial. In 1968 the Criminal Law Revision Committee in their report (Cmnd 3750) recommended no change in the status quo regarding the secrets of the jury room, because they said, at that time, the conventions were understood and observed, and so we all hoped they were.
Nevertheless, they recognised that it was undesirable for jurors to reveal what had passed in the jury room even after the conclusion of proceedings. I am sure that that view is correct, and now that there has been an open and deliberate breach in the convention we must decide what to do. In my opinion, it is essential for the protection of jurors that secrecy should be 664 observed, for the protecting of the accused that verdicts, particularly of those of acquittal, should be final and not the subject of subsequent debate, and for the respect in which the administration of justice is held that individual and inconsistent accounts by jurors of the deliberations in the jury room should not be bandied about in public discussion.
My Lords, one can make too much of a meal of this and I hope that I am not doing so. Jurors of course, we all know, do discuss privately with their friends what has taken place; and, provided this takes place after verdict and not before, it may be that no harm comes of it. This is safeguarded by Clause 8(1). Provided that individual cases are not identified, there is also a place for bona fide research in this field, and bona fide research has taken place sometimes of a most useful kind. That is safeguarded by Clause 8(2). It is also possible in pending or subsequent proceedings for some disclosure to take place in the interests of the administration of justice. We seek to safeguard this by Clause 8(3). It is also clear that prosecution in this field is not a proper occasion for private enterprise. This is taken care of by Clause 8(5) which makes it subject to a fine.
Clause 9 follows the lines recommended in paragraph 43 of the Phillimore Report and deals with the use in court of tape recorders, which is a matter which they then thought and which I think to be a necessary provision. Clause 10 is clarificatory; clarification was rendered necessary as a result of the Old Bailey case which was well publicised when a particular journal — not one of the nationals but a political party journal—published the names of two of the victims of alleged blackmail. It follows a footnote in Phillimore (No. 72 on page 60) which was added to the report after the deliberations of the committee were complete, and it follows the line of reasoning set forth in that footnote.
Clause 11 confers powers on magistrates to punish disruption or contempt in the face of the court and allows appeal up to the Crown Court, as indeed appeals to the Crown Court are universally allowed from magistrates. This follows paragraph 36 of the Phillimore Report but with rather heavier sanctions after six years than Phillimore then recommended. Clause 13 and Parts I and II of Schedule 2 apply criminal legal aid to contempt cases, and this of course again follows the Phillimore Report.
Clause 14 and Part III of Schedule 2 follow paragraphs 199 to 208 of Phillimore regarding sentencing powers. I think that they are more appropriately dealt with, if at all, on Committee. Clauses 12 and 15 are adaptations of the Bill to Scottish procedure. In this connection, may I apologise on behalf of my noble and learned friend the Lord Advocate, who is at the moment using his powers as an advocate in Luxembourg and could not be here this afternoon.
Clause 18 and Schedule 4 deal with Northern Irish applications. Clause 19(1) is a definition clause. Subsection (2) follows the Salmon recommendations of 1969 in restricting the application of the law of contempt as it applies to tribunals of inquiry. I do not think I need say anything about Clause 20.
I apologise for the rather "cataloguing" effect of this speech. It is in the nature of the Bill that I should have to explain it clause by clause. I think I can now bring it to a close and I commend the Bill to the House. 665 I must tell the House that I consider it to be a most valuable measure. I have taken the opinion from the Law Officers, who took counsel's opinion, and they are satisfied, as indeed am I, that it brings our law into compliance with the Strasbourg decision. I am satisfied that, except in the respects to which I have drawn special attention, it precisely follows Phillimore. I have sought to justify such deviations. It will leave the law, in areas with which it attempts to deal, a good deal clearer and a good deal more liberal than it is at present. No doubt there will be fuller discussion in Committee, but as it is I commend the Second Reading of this Bill to your Lordships. I beg to move.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 4.31 p.m.
§ Lord Elwyn-Jones
My Lords, the House will be grateful to the noble and learned Lord for taking us through the provisions of this Bill, which he has, if I may say so, rightly described as a very important one, dealing as it does with an important branch of the law. I think it was Ogden Nash who said that:Christmas is what roses is not a bed of them".Dealing with the law of contempt comes into the same category. Nevertheless, it is of great importance in the administration of justice in ensuring, or helping to ensure, a fair trial. On the other hand, it is equally important that its incidence should not unduly interfere with the freedom of the press and the right of the public to know what is going on. The Bill before us does not seek to codify the law relating to the press and to publications. Indeed, as the noble and learned Lord has pointed out, the savings provision in Clause 6(c) is very wide indeed. The clause reads:6. Nothing in the foregoing provisions of this Act …(c) restricts liability for contempt of court in respect of conduct intended to impede or prejudice the administration of justice".Phillimore, of course, attempted to deal with that part of the field of contempt also in various ways, and I should like to ask the noble and learned Lord whether it is the intention of the Government to follow this Bill with a later one dealing with interference with the administration of justice by way of criminal proceedings. Those criminal proceedings, of course, if the recommendations of Phillimore are carried out, would establish indictable offences in that field with a right to trial by jury. Indeed, the Phillimore Report recommends that that should be the procedure in those cases.
However, this Bill deals with a limited, albeit an important, part of the law of contempt. As the noble and learned Lord the Lord Chancellor has said, the most important part is Clause 1 which states:'the strict liability rule' means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so".That applies only to a publication whichcreates a risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced".As the noble and learned Lord has said, that involves a change in the law by adding "seriously" before "impeded" in line 17 of page 1. We on this side of the House think that the matter could be improved further by requiring that before the strict liability rule 666 applies the risk, too, should be serious; so that the provision in Clause 2(2) would read then:The strict liability rule applies only to a publication which creates a serious risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced".That will tend to diminish the bringing of more or less trivial proceedings for contempt.
We have been giving further thought to a further protection which might perhaps be introduced into the Bill, namely, a requirement that the consent of the Attorney-General should be given before contempt proceedings are brought. I do not wish to comment in any detail on a recent case, but it may well be that the intervention of the Attorney-General in that case might have prevented the difficulties which arose. The Attorney-General's consent is required in proceedings under the Official Secrets Act. When I was Attorney-General I received a large number of requests to take proceedings for contempt and I am happy to say that in those six years I took proceedings only once for contempt. I think one must remember that, while one is conscious of the anxieties of the press, it is not a weapon which Attorneys-General have thought it right to use. I am of the view—and I shall be interested to hear what my successor in office as Attorney-General has to say about this—that there would be some benefit and no loss to the public in requiring the intervention of the Attorney-General in this field, his concern being the protection of the public interest and his interventions being impartial and independent.
The strict liability rule is to apply not only to a trial by judge and jury but to a trial by a judge alone. The House may well ask: Is that really necessary? Phillimore thought that it was. The committee pointed out that the strict liability rule was intended not only to protect the judges but others as well, such as witnesses, against being influenced to the point of creating prejudice in their minds. Judges themselves differ in their views on this point. I am delighted to see that in the distinguished list of those who are to take part in the debate there appears the name of the noble and learned Lord, Lord Salmon, who gave evidence to the committee. He said that he would never have contempt in judge-alone cases. He added:If a judge is going to be affected by what is written or said, he is not fit to be a judge".That is typically robust language of the noble and learned Lord, if he will permit me to say so. However, the late Lord Dilhorne, who was not exactly fainthearted, as your Lordships will remember, took a quite different view. In the case of the Attorney-General v. the BBC, in the 1980 3 Weekly Law Reports, page 109, he said:This claim to judicial superiority over human frailty is one I find some difficulty in accepting. A man may not be able to put that which he has seen, heard or read entirely out of his mind and he may be sub-conciously affected by it".There it is: two distinguished judicial minds in disagreement—not for the first time, I may say.
On the whole, I am inclined myself to agree with the Phillimore view, that some degree of control is needed even where, for instance, a civil case is heard by a judge alone. But this is a field where I believe that the intervention of the Attorney-General may be useful in bearing in mind that the fact that the pro- 667 ceedings in question are proceedings before a judge alone should be a factor in considering whether proceedings ought to be brought.
Clause 2(3) of the Bill provides that,The strict liability rule applies to a publication only if the proceedings in question are active … at the time of the publication".The noble and learned Lord the Lord Chancellor has taken us through the provisions of the Bill in relation to the time factor. The present test is whether or not proceedings are imminent. When I was in office as Attorney, I received many representations by the press that it was far too vague, and far too uncertain a test of time, and the Phillimore Committee was impressed by that point of view. It recommends:In criminal cases the proceedings only become active"—so that the strict liability rule then bites—when an accused is charged".The formula in the Bill in paragraph 4 of Schedule 1 rejects that and substitutes instead,(a) arrest without warrant;or,(b) the issue, or in Scotland the grant, of a warrant for arrest".That is not only an earlier event in point of time than the time of charging, but it has been said to me by the press that it is also something of which they are less likely to be aware. In most cases, in practice, there will be little difference in time, for the charge usually follows fairly closely on the arrest. However, the departure from Phillimore has been universally condemned in the press, and I shall be very interested to hear what my noble friend Lord Ardwick, who has very great experience as a distinguished editor, has to say on this point. That which I am pleased to call my mind is a little more open on this matter than it was in May, because I think one really wants to take on board the anxieties of the press and of editors in this kind of field.
As to civil cases, in the Bill civil cases are to be active when the case is set down for trial or the hearing date is fixed. The noble and learned Lord, Lord Denning, has said that this could stifle comment for two years or more. I am not sure whether, in this context, the press would not find itself to be better off with the old test of imminence, importing as that does—I agree it is uncertain—a greater sense of proximity to the date of the actual trial itself than the date of setting down. But here, again, this is a point which we shall have to consider in detail at the Committee stage. Again, it will be interesting to hear the views of our colleagues from Fleet Street on this matter.
What I find a little more worrying in the Bill is that it applies the same tests to appellate proceedings as to whether contempt proceedings should be brought as it does to trials at first instance. Is there really a risk in the minds of three judges of the Appeal Court, of whom one at least will be a very experienced—I will not say hard-bitten; that may not be a very flattering description—Lord Justice of Appeal? Is it really to be feared that that trinity of experienced judges will be affected by comment in a newspaper or anywhere else in their consideration of an appeal, where, generally speaking, the point under consideration is normally a point of law anyway? In my submission, this is a matter which 668 we really must look at carefully, because I do not myself feel—and here, again, we have the prospect of eminent judicial figures in the field, including my noble and learned friend, Lord Gardiner, who will be winding up and whose views on this kind of matter we shall, of course, listen to with very great advantage—
Lord Paget of Northampton
My Lords, may I make just one point on what my noble and learned friend has just said? I, certainly, was very worried by the recent case of the two girls who murdered their father. The judge in first instance there underwent an enormous press attack upon him which was utterly and outrageously unjust. Did that not put the judges in the Court of Appeal in a very difficult position, in which they had to balance what I feel was a unanimous desire to reject the attack on the judge, with, at the same time, giving proper weight to what was still a very strong case for mercy?
§ Lord Elwyn-Jones
My Lords, may I, first, on a point of fact, indicate that the charge was a charge of manslaughter, not of murder. It is a not unimportant distinction.
§ The Lord Chancellor
My Lords, I think that the noble Lord is right in one sense. That charge was a charge of murder. The plea was a plea of manslaughter. That is what the sentence was about.
§ Lord Elwyn-Jones
My Lords, I am most grateful. I think that should be put on the record in that way. All I can say about that matter is that, in spite of the avalanche of pressure, the judges of the Court of Appeal allowed the decision to stand—
Lord Paget of Northampton
But, my Lords, may it not possibly have been because of the avalanche of pressure? Certainly, if I had been the ladies' counsel, I should have been terribly anxious that that avalanche of pressure would have the opposite effect to the effect that it did have.
§ Lord Elwyn-Jones
My Lords, I think that my noble friend is trying to get a little bit both ways. Let us consider the matter again in Committee. It is not at all easy and I do not think he is contending that it is. But I should have thought there were certain risks here. However, let us consider whether we really need to give the three Appeal Court judges the same extent of protection as the trial judge with a jury.
Coming to the other parts of the Bill, I welcome Clause 3, which states the defence of innocent publicacation or distribution. Clause 5 will, I think, go some of the way to meet the criticisms of the Court of Human Rights about the Sunday Times decision. It may be just a Committee point, but should not the word "serious" be introduced into line 4 before "impediment or prejudice", to maintain consistency with Clause 2 of the Bill?
As to Clause 7, which constitutes a very wide extension of the scope of jurisdiction to protect inferior courts, I must say that, at first sight, I was a little startled to see the phrase,any part of the judicial power of the State",669 coming into a Bill. I do not think I have ever come across it before. It smacks a little of the imperium of the Roman Emperor—
§ Lord Elwyn-Jones
My Lords, I gather that the noble and learned Lord the Lord Chancellor had a better classical education than I had in Llanelli Grammar School, and I will how to his knowledge on this matter. But it is, nevertheless, somewhat unusual to find this as a phrase in a Bill. More substantially, the description of the province of the law now is almost unlimited,The jurisdiction of the High Court … to prohibit and punish contempt of court or in respect of the proceedings of inferior courts extends to the proceedings of all inferior courts, tribunals and bodies (however described and whenever established) which are constituted by law and exercise any part of the judicial power of the State".Whether the press will find that to be a sufficient definition of the bodies about which they must be careful when they comment or report upon them, I doubt very much. I should have thought there is something to be said for a schedule setting out those bodies. Does it mean that all the tribunals coming under the umbrella of the Council on Tribunals are to be included? As I understood the observations of the noble and learned Lord the Lord Chancellor, administrative tribunals are not to be included. But that description in no way amounts to a sufficient definition. Perhaps this could be looked at again.
Turning to Clause 8, publication of jury's deliberations, I find myself in agreement with what is proposed in that clause, as so skilfully drafted. As it stands, it should remove the fear which existed that jurors would no longer feel free to perform their duties because of possible reprisals by criminals for whose convictions they were responsible, if there were free reporting of what went on in the jury room. On the other hand, academic or other researchers dealing with general issues about jury trials can safely pursue their legitimate studies of the jury system.
At this stage I have no comment to make about Clause 9, and I find myself broadly in agreement with what is proposed in Clause 10. When in due course we deal with Clause 10 it may be convenient to consider the implications of the decision of the court in the case of Miss Harriet Harman, the solicitor for the National Council for Civil Liberties. The freedom of journalists to make full use of documents not only produced but read in open court which has been put in issue by the court's decision in that case is obviously a matter which seriously affects the position of the reporter and of the press. It may well be that Clause 10 will be a convenient stage at which to remedy what seems to many of us to be a very unsatisfactory state of affairs.
Turning to Clause 11, dealing with offences of contempt of magistrates' courts, I wonder whether the magistrates alleged to have been insulted should themselves be the judges of the contempt; or whether or not the arrangements made in regard to High Court judges in the case of contempt—namely, that the facts should be reported to the Attorney and that he should be invited to take proceedings—would be the better course.
670 The provision regarding legal aid is obviously a desirable and necessary step. It seems to me that we are in for a very interesting and fascinating time during the forthcoming Committee stage of the Bill, and it is good that during this opening stage we shall—at any rate from this moment on, as indeed was the case before—hear some authoritative observations.
§ 4.55 p.m.
§ Lord Wigoder
My Lords, both the necessity for and the difficulty of this Bill arise from the fact that there is a conflict between two principles of very great importance to our society. The first principle is that the press must have the right to investigate, to expose corruption and dishonesty and to comment freely upon our legal system as it works. The second principle is the necessity for the legal system itself not to be subject to improper pressures or unfair comment which may pollute its course. It is because there is that conflict that I regret that only one noble Lord, the noble Lord, Lord Ardwick, has had the temerity to challenge the monopoly of the lawyers who have put down their names to speak in this debate. Many Members of your Lordships' House who hold the most distinguished positions in the media could be of the greatest possible assistance when we consider the problems posed by the Bill. I hope that they will find it possible to help during its later stages.
What perturbs me is that lawyers are notoriously a little over-sensitive about their own profession. We tend at times to be over-jealous about our procedures, and sometimes when we discuss them, to verge on the pompous. It is necessary that in its final stage this Bill should represent a proper, true balance between the claims of the law and the claims of the press. That is not going to be so if the debate is left exclusively in the hands of only one of those two professions. Indeed, I venture to think that already there are signs that in this Bill the balance has been tilted unnecessarily against the press.
I want to refer first to two aspects of that matter. The first is the point which has already been made by the noble and learned Lord, Lord Elwyn-Jones. Clause 2(2) refers to the strict liability rule applying to a publication which creates a risk that the course of justice will be seriously impeded or prejudiced. It cannot be sensible that we should legislate to cover every fanciful or remote risk. I respectfully agree with the noble and learned Lord, Lord Elwyn-Jones, that some word is necessary there. I should have preferred the word "substantial" to "serious", but that, at any rate, is not a matter about which we need fall out at this stage.
The other area in which it seems to me that the balance is tilted against the press involves our considering whether it really is necessary to protect judges sitting alone to quite the extent that this Bill sets out to do. I doubt very much whether our judges wish to be mollycoddled, if that is not too strong a term, in the way that is proposed here. The judges who sit in the Criminal Division of the Court of Appeal are not, despite the point made by the noble Lord, Lord Paget of Northampton, going to be influenced by press comment. They may well take account of it. No doubt it is right that they should know what public opinion is about any particular sentence that is passed. But 671 anybody who knows the noble and learned Lord the Lord Chief Justice, for example, would not wish to suggest for one moment that he is going to be subject to unfair pressure in any decision which he may make in the Critimal Division of the Court of Appeal.
It seems to me that the only time when strict liability should run in relation to appeal proceedings is on the rare occasion when the Court of Appeal orders a retrial and there are, therefore, going to be further jury proceedings. It is possible that a jury might then be influenced to some extent by comment which appeared in the press.
So far as civil proceedings are concerned, in Committee we should look very seriously at the possibility of limiting the area of strict liability to those civil proceedings in which a jury is known to be going to be involved. I appreciate the argument that sometimes it may happen that the parties to civil proceedings may be said to be prejudiced or put under pressure. However, I should have thought that the public interest in most cases, if not all, outweighs the undesirability of that happening. I believe that in civil proceedings we should concern ourselves only with the comparatively rare cases in which juries are involved. In those two areas it seems to me that at the moment the balance in this Bill has been tilted a little unfairly.
I do not want to suggest that I would wish to take up every point made by the press in the course of its criticisms of this Bill. Some of them are perhaps not entirely well founded. For example, I stand by the view that I expressed in the earlier debate on this subject, that the time when the strict liability rule becomes active is best set out in Schedule 1 and is an improvement on the proposals in the Phillimore Report. I believe that to say that the time should be on arrest without warrant or the issue of a warrant for arrest or the issue of a summons, is as late as one can possibly leave it and that to leave it later than that is to create a risk of very real prejudice to a defendant. I have in mind, for example, cases under the Prevention of Terrorism Act where a person may be arrested and is held at the police station, it may be for seven days or indeed longer, before he is charged. It would be quite improper that during the seven days the press should be totally free to comment on the crime, on the criminal, on the man's previous record, and so on.
The press also claim that they will find this new test will cause difficulties because they may not know whether a warrant has been issued or whether a person has been arrested, but I respectfully agree with the noble and learned Lord on the Woolsack that the provisions of Clause 3(1) give the press a complete defence if their lack of knowledge is one for which they are not to be blamed because they have taken all reasonable care to find out.
The other matter which the press have raised recently arises out of the rather curious case between Miss Harman and the Home Office. I do not wish to embark too far upon that case except to say that it seems to me that neither side came out of those proceedings precisely festooned with credit. One thing that was perfectly clear about that case was that the freedom of the press was in no way involved at all and I believe it to be a misrepresentation of that case to look upon it in that light. In those circumstances 672 I am glad that this Bill is not at the moment seeking to make any provision to deal with the specific rather unusual situation that arose in that case.
I have only two other general comments to make on this Bill at this stage. First, in relation to Clause 7, which seeks to extend the jurisdiction on contempt to tribunals, I think perhaps I should declare that I am a member of the Council on Tribunals but of course I am not in any way speaking on their behalf. It seems to me that it is necessary to look with some care at this proposal. Tribunals are intended to be informal, inexpensive places, lacking the formality of the courts, and I am not sure that there is a case for extending contempt provisions to tribunals at all, provided we can make it clear that the criminal law can cope with the sort of disturbances that have taken place, particularly at public inquiries, during the course of the last few years. If that can be dealt with—and I believe it can, probably under the existing criminal law and if not, by a slight amendment to the Public Order Act—then I should have thought it was not necessary to import the whole panoply of contempt proceedings into those informal tribunals.
I am also perturbed at the attempt in Clause 7 to try to define a tribunal as being a body which exercises any part of the judicial power of the state. I can see endless difficulties arising over that attempted definition. Perhaps I may give one example which has already caused some controversy, privately at any rate. Where there is a public inquiry and a planning inspector who makes his recommendation to the Minister, it would presumably be said that he was not exercising any part of the judicial power of the state, but, where the planning inspector gives the decision himself—as is increasingly the tendency nowadays—it may be that that consideration would not apply. I believe we shall have to look with some care at that definition if we decide in Committee that we ought to extend the contempt part of this Bill to tribunals as a whole.
The other clause about which I wish to comment is Clause 8, because I must confess that I am a little unhappy about it. This is the clause which seeks to make it a contempt of court where a jury's deliberations are published and of course it links Clause 8 to publication as defined earlier in the Bill in Clause 2. I do not object to it as it stands, but it seems to me that by inference it is removing from the area of contempt a large number of communications with juries after a case is completed, provided those communications are not published. I can give certain examples of this. At the present moment if, after a majority direction, the jury acquit, nobody knows whether the acquittal is unanimous or by a majority, but, as I understand it, it would now be open to anybody—defendant, counsel, solicitor—to go up to a jury after a case (provided they can get them to talk) to establish whether or not the verdict had been unanimous. Unless publication was involved, it would not be a matter of contempt.
Equally, and perhaps even more unsatisfactorily, if a jury had disagreed upon their verdict it seems to me that it would now be open—if the law was defined in this way in Clause 8—for counsel or solicitor to go up to any juror who was willing to talk after the case, after the disagreement, and discuss which witnesses were found to be satisfactory, which points appeared 673 to be impressive, how everybody might do better next time, and to have a general discussion about the facts of the case and the jury's deliberations. There again, unless publication were involved, it seems to me that that would not constitute a contempt under this clause. Indeed, as I read it, it does not deal with the issue where danger might arise to particular jurors if criminals discovered that those particular jurors might have been responsible for their conviction, because, if a juror cared to disclose to, let us say, a defendant's solicitor, that it was the fifth juror from the left in the back row who took the lead in pressing for his conviction. I cannot see that that would be a publication within the terms of Clause 8 as defined in Clause 2. That again is another matter at which perhaps we should look with some care when we come to the Committee stage.
At this stage I do not want to make any further comments on this Bill. It is a Bill full of interest. The noble and learned Lord on the Woolsack was optimistic, as ever, in indicating that perhaps it was not very controversial. I believe there are some areas of controversy into which we can usefully go with great care when we come to the Committee stage.
§ 5.9 p.m.
§ Lord Salmon
My Lords, the name of "contempt of court" is by no means apt. The law of contempt of court does not, as its name suggests, exist to protect the dignity of judges nor, for that matter, to harass the press. It exists solely to ensure that justice shall be done, and to this end it prohibits acts and words which might obstruct the administration of justice. The horror of trial by press, television, radio, occurs in many foreign countries. I am sure that we should all hate to see it imported into the United Kingdom, and I have no doubt that we never shall. Nor have I any doubt that contempt of court should apply to all jury cases; that is to say, to all indictable criminal cases, and to libel and fraud cases, which in the civil courts are the only cases that now come before a jury. A jury might well be affected and indeed seriously prejudiced by any comments appearing in the press during the course of the trial.
The law, however, does lay down that while the trial is being held the media must confine itself to giving correct reports only of what occurs at the trial. There is no doubt, I think, that a free press has the right, and indeed the duty, to bring before the public facts relating, for example, to fraud and other serious crimes. It is in the public interest that this should be done. Indeed, it is sometimes largely because the facts were discovered and brought to light by the press that criminals are brought to justice.
I confess that I had always thought that in any case tried by a judge alone contempt of court should not apply, because in my view a judge could not be affected by what is written or said out of court. As my noble and learned friend Lord Elwyn-Jones said, I have the temerity to say that if he were he would not be fit to be a judge; I do not resile from that. I am, however, very impressed by Mr. Robin Day's note in the report of the Committee on Contempt of Court. I think I agree with him that in cases tried by a judge alone the minds and evidence of witnesses might be affected, however immune to outside influences the judge 674 himself may be. I at the moment agree with Mr. Day that a date might be fixed, so that after that date the media would know that an expression of opinion in relation to the case could constitute contempt of court. That date should be published one or two weeks before the trial and should continue until judgment is given.
I do not think that the criticism of a judgment given at first instance, or in the Court of Appeal or in your Lordships' House, could be a contempt of court. Nor do I think that what may be said or written while an appeal is being heard could be a contempt of court, because to my mind it is quite incredible that Lords Justices and Lords of Appeal could conceivably be affected by anything the media might say or write about the case with which they were dealing.
§ 5.14 p.m.
§ Lord Mishcon
My Lords, with that poetry of language of which the noble and learned Lord who sits on the Woolsack is such a master, he described this Bill as his "ewe lamb", and the Bill has indeed had a good and faithful shepherd. I believe that by and large he has led the lamb into green pastures, but occasionaly he has led it by still waters, and it is as to which way those waters flow in the main that this Second Reading debate, I suppose, should mainly be directed. I want, if I may, to raise a few points of a general nature which occur to me.
In the first instance, may I say that, of course, as has been so often proclaimed in the learned speeches we have been delighted to listen to, this is a question of balance. It is a very necessary thing that not only have we got balance but we have got certainty, and one of the first findings of the Phillimore Committee was that the law of contempt was gravely uncertain. On this question of balance, I am afraid that I must say, with the greatest respect to the noble Lord, Lord Wigoder, that I believe that lawyers have to be more than careful and I do not think that they are in this connection too jealous of the duties that they have.
One often thinks of the thalidomide case as the starting-off point for seeing that the media should get indeed the greatest of freedom under our law, because of course it was in that case that the Sunday Times was injuncted first by the Divisional Court, and that injunction was then lifted by the Court of Appeal and reinstated by the House of Lords. I must say this—and I say it in the regrettable absence, I am sure only for a moment, of the noble and learned Lord, Lord Salmon, who so learnedly addressed us a moment ago—that it is a question not just of judges. Those of us who are practitioners in the law know that often parties to civil litigation are frightened by press comment of an unfair nature and of an oppressive nature, to the extent that they agree to settle out of court, very often unjustly, because they do not wish to walk into greater and more objectionable publicity.
And, much more important, in the criminal law it is not just the judges, it is not just the jury; it is a question of whether a witness will have the courage to come before the court after having a great deal of adverse publicity. Indeed this applies in exactly the same way in regard to civil cases where there are merely judges who are trying the matters at issue and no juries. Witnesses again are very necessary if justice is to be 675 meted out, and the fact that witnesses may or may not attend is a matter of grave consequence in regard to justice.
My Lords, I say this with the greatest respect to the national press and to the media generally: we are not dealing with a terribly tender and careful plant when we are dealing with the media as it has in fact evolved. I make no attack upon the press or the media. It is a necessary function of our democratic way of living; it is one of the bastions of our freedom. But more than occasionally, and certainly in regard to some cases that your Lordships can well remember, they have gone over the bounds of responsibility into an area of sensationalism, upon which they feed, but justice does not.
If I may go from the general to the particular, but not too particular, because that will be for the Committee stage, I listened with the greatest of respect, as one always would, to the noble and learned Lord the Lord Chancellor when he dealt with the definition in Clause 2(2) of this Bill and said that on the advice of the Law Officers, and indeed the advice that they themselves had taken, it would appear that this Bill fulfils the function which indeed it states very clearly in the Preamble it was meant to fulfil, which is to harmonise our law with the Convention on Human Rights, and indeed the decision at Strasbourg to which the noble and learned Lord the Lord Chancellor referred.
That definition does, indeed, follow Phillimore. But what it does not do is to follow the Phillimore recommendation which your Lordships will find on page 28 of the Phillimore Report and, indeed, on page 93 at recommendation 19. That recommendation is as follows:It should also be provided by statute that bringing influence or pressure to bear upon a party to proceedings shall not be held to be a contempt unless it amounts to intimidation or unlawful threat to his person, property or reputation".The Phillimore Committee had the benefit, before it issued its report, of having before it the House of Lords' decision in the Attorney-General v The Sunday Times. Therefore, the Phillimore Committee was able to look at the tests which were applied in that case. What the Phillimore Committee did not have the benefit of when it reported was, of course, the judgment of the court at Strasbourg. The only way in which this definition differs from the definition that was considered by the Divisional Court—and so far as I can sec was followed in the Court of Appeal and the House of Lords in the Sunday Times case—was the transposition of the word "serious" from "serious risk", which was what the Divisional Court was dealing with, to "serious impediment" and so on, which is what subsection (2) deals with.
§ The Lord Chancellor
My Lords, I think that the noble Lord has made a mistake. The House of Lords, as distinct from other courts, adopted a different criterion, and it was that criterion which was attacked by Phillimore and was the only live issue before Strasbourg. That was the so-called pre-judgment criterion, and it is that which we get rid of in this Bill.
§ Lord Mishcon
My Lords, I am more than grateful to the noble and learned Lord the Lord Chancellor. I could not have a better teacher and I am most grateful 676 for that lesson. I merely alter my point by saying that that at least was the basis or the formula used by the Divisional Court and the Court of Appeal. I beg with the utmost deference to venture to disagree with the noble and learned Lord the Lord Chancellor when he says that that was the only difference that the court at Strasbourg had with our law. Perhaps I may say that I am reinforced in that doubt by my own very noble and learned Law Society which has, in fact, prepared a memorandum saying that the Law Society itself has some doubts at this stage as to whether by merely having—and without adopting the other formula suggested by Phillimore—the definition in subsection (2), to which I have just referred, we do in fact harmonise our law with the convention and we do in fact find ourselves in a position where what we are doing is so adapting our law as not to offend against the Strasbourg judgment.
I shall move from that point very speedily to a point which has been made—and made much more effectively than I can make it—in regard to the matter of the tribunals. In fact, before I make that point there is another one which I should like to make on Clause 4(2). That is a subsection which deals with the power for judges to order that the publication of any report of proceedings should be postponed. It is my submission—and again it is the submission of the Law Society—that the basis upon which that power should be exercised should be clearly and much more precisely stated in this Bill.
One of the main sources of difficulty in relation to contempt law at present is whether courts can order the publication of reports of proceedings to be delayed. I hope that I shall not detain your Lordships too long if I show your Lordships the divergency of judicial opinion upon this matter as it appears now in our law reports. Mr. Justice Lawton as he then was in Regina v Kray (1969) Criminal Appeal Cases R421, said:I can see no reason why a newspaper should not report what happens in court even though there may be other charges pending. The reporting of trials which take place in open court is an important part of the function of a newspaper and it would not be in the public interest, in my judgment, if newspapers desisted from reporting trials, and from reporting verdicts and sentences in those trials, merely because there was some indictment still to be dealt with".In the case to which, I believe, the noble and learned Lord the Lord Chancellor referred—namely, Border Television Limited ex parte the Attorney-General and again in Regina v. The Newcastle Chronicle and Journal Limited ex parte the Attorney-General—the Lord Chief Justice said that every reporter should know about one simple form of contempt, the publication of material:relating to offences committed by or alleged against an accused, other than those charged.".I merely venture to suggest that unless the circumstances in which the judges can exercise their powers to order reports of legal proceedings to be deferred are defined in detail, the confusion which now so often arises may well continue.
My final point relates to Clause 7, to which reference has already been made, and it concerns the question of the tribunals, which may be included unless we are very careful; or, to put it another way, the doubt that may be left as the Bill now stands as to which tribunals may be affected. The noble and learned Lord the 677 Lord Chancellor referred, if I remember correctly, to the case of the Attorney-General v. the BBC, which was a case dealt with this year.
Perhaps I may give one quick example of the mess we may be in if the suggestion made by my noble and learned friend Lord Elwyn-Jones is not taken up—namely, either a list specified or another definition given. May I pose the question as to what would happen, for example, with a rent assessment committee? Is that an inferior court, tribunal or body which is constituted by the law, and does it exercise any part of the judicial power of the state? There is no doubt about it: when it fixes rents it perhaps does not exercise a judicial power, but we all know that rent tribunals have the power to order a notice to quit to be deferred. Is that the exercise of a judicial power? It is either necessary to have the list properly scheduled or it is necessary to have a definition like "courts of law", and therefore cut out the administrative tribunals and those which do not exercise the jurisdiction of courts of law. Having said all that, I am perfectly sure that your Lordships will agree that this is a Bill that deserves a welcome.
§ 5.29 p.m.
§ Lord Renton
My Lords, I am in favour of nearly all this Bill. It seems to me to be well conceived, overdue, and, if I may say so, much better drafted than some of the legislation of last Session. So far as it complies with the judgment of the European Court of Human Rights, it deserves respect. However, I shall not enter into the controversy between the noble Lord, Lord Mishcon, and my noble and learned friend the Lord Chancellor because I would wish to study the sources very carefully before doing so.
I am in favour of the whole of Clauses 1 to 6 and Schedule 1, including what I believe is the most controversial point in those parts of the Bill; namely, as to when criminal proceedings should become active for the purpose of contempt of court and publication. I believe that up until now we have always left things too late. Without citing again the examples in which this danger has arisen, I think the Government have now got it right.
My principal doubt arises on Clause 7. Not for the same reason as that given by the noble Lord, Lord Wigoder, who objects to any extension of the concept of contempt of court to tribunals, if I have understood him correctly. That principle was breached years ago. My objection is to the way in which it is proposed to do it as set out in Clause 7. It has already been briefly referred to by the noble and learned Lord, Lord Elwyn-Jones, but I think that we should consider carefully lines 20 to 23 on page 3, which says that:…the proceedings of all inferior courts, tribunals and bodies (however described and whenever established) which are constituted by law and exercise any part of the judicial power of the State".That, I say with respect to my noble and learned friend, is casting the net too wide. It is also imprecise and will create uncertainty as to whether or not a particular tribunal is covered by the law of contempt. The matter is by no means improved by the wording in Clause 19(1) where we find a definition of the word 678 "court", and then a reference to the Tribunals of Inquiry (Evidence) Act.
Surely lawyers, journalists, alleged contemnors, everyone, have the right to know precisely whether or not the proceedings in any particular tribunal will be governed by the law of contempt. It is a very elaborate law. It was already so before this Bill was introduced, and it will not become less elaborate when it has reached the statute book. I do not complain because it is going to become more elaborate, but surely if we can possibly do so we must deal with it now in a way which avoids creating any uncertainty.
There is a simple way out of this difficulty. I suggest that all those inferior courts and tribunals whose proceedings are to be protected by the law of contempt should be listed in a schedule to the Bill. It is not an exact analogy, but we do just that in the House of Commons Disqualification Act with regard to a huge range of appointments within the public service under the Crown. Therefore, there would be no difficulty about having such a list.
Of course some tribunals, not mentioned by my noble and learned friend, have already been given the protection of contempt of court by statute. There is of course the Tribunals of Inquiry (Evidence) Act 1921. That goes back a long way. All tribunals established under that Act have the protection of contempt of court. Then under Section 41 of the Charities Act 1960, which I piloted through its Committee and Report stages in another place with the able help of the noble and learned Lord, Lord Simon of Glaisdale, when he was Solicitor-General, strange as it may seem, we persuaded Parliament to enact that disobedience to certain orders, and very nearly administrative orders, of the Charity Commission might, on application of the Commissioners to the High Court, be dealt with under the law relating to civil contempt. So 20 years ago we already had that precedent. Then there are others, strangely enough, in the Pipelines Act 1962, and also in the Nuclear Installations Act 1965, and the Parliamentary Commissioners Act 1967, which perhaps is more natural because they are presided over by a High Court judge and their proceedings are the subject of public inquiry—some of their proceedings, but not all.
The examples that I have given show, incidentally, that some statutory tribunals which have judicial, or quasi-judicial functions, also have administrative duties to perform. The question will arise for my noble and learned friend to consider, whether the exercise of the administrative powers is also to be protected when the tribunal falls within his definition in Clause 7 of the Bill, because it also exercises judicial functions. We have to be very clear about this. The way to overcome this is surely to have the tribunals listed in a schedule, tabled I would hope by the Government at the Committee stage, and then we should all know what we are about.
The only other thing I wish to mention really arises on Clause 11. It is understood, and has been for centuries in this country, that all contempts of court should be dealt with promptly; especially those committed in the face of the court, a term of art well understood by lawyers. It has a wide meaning and covers a wide range of circumstances. With a few exceptions, up until now all contempts in the inferior courts could 679 be punished only on application to the High Court—a quite unnecessary palaver causing delay and expense when the matter should be dealt with as summarily and cheaply as possible. Therefore, in spite of what the noble and learned Lord, Lord Elwyn-Jones, said when he seemed to cast doubt on Clause 11, I welcome it. It gives power even to lay magistrates to deal with contempts committed in their own courts. That is an important change which is fully justified.
§ 5.38 p.m.
§ Lord Hutchinson of Lullington
My Lords, I should like to start by congratulating the Government on taking a step towards the implementation of the Phillimore Report. As regards human rights, some progress in this direction even after six years is a matter for congratulation. The Bill, I agree with the noble Lord, Lord Renton, is simply drafted and is clear, and it is perhaps what one might call a well-dressed ewe lamb. I would agree with, and I support, certain parts of this Bill. The unintentional prejudice to legal proceedings will only be caught where a publication causes those proceedings to be seriously impeded or prejudiced; the three defences are provided in Clauses 3, 4 and 5.
I agree with Clause 8, the preservation of the privacy of what goes on in the jury room, although I greatly regret its necessity. When the noble Lord, Lord Wigoder, expresses fears in relation to what may happen if this particular clause is passed, of course it is always the result that if you try to legislate to prevent something which up to that time has always been understood as a matter of honour and good sense, then you can always say that what is not prohibited is allowed. It seems to me that, if you are going to venture into this realm, you cannot possibly ever stop people asking individual jurymen what has happened in the jury room, but at least this will go some way towards preventing the publication of what goes on there.
The provision for legal aid I particularly approve of, and the good sense of being able to grant legal aid for counsel only or solicitor only. That said, I have some fundamental reservations about the Bill and I am pleased to find they turn out to be very much in line with those already expressed by the noble and learned Lord, Lord Salmon. I ask your Lordships to appreciate clearly what is the background to the Bill; why must there be a law of contempt? The only purpose surely is to protect the right of the citizen to a fair trial, and that of course includes the right to have resort to a tribunal, a court, which has the respect of the public and which will act independently and without prejudice.
That of course is the ideal, but in reality no court operates in a vacuum. Every court is subject to the pressures of society; courts are manned by human beings—judges, magistrates, lawyers, police officers—none of whom are paragons of virtue, and every individual who goes to court faces some prejudice in one form or another. Of course, the greatest potential prejudice that he faces is to find a judge, magistrate or lawyer who is incompetent, unfair, simply ignorant or too old. Although the noble and learned Lord, Lord Denning, said in his lecture on television, "Trust the judges", when one set of judges is always upsetting 680 the decisions of another set, it is difficult to know how to follow that injunction.
I do not know how many of your Lordships watched the television reproduction of the Lady Chatterley trial. Dr. Richard Hoggart, who gave a very perceptive commentary afterwards, pointed out that the significance of the trial was not that it opened the floodgates of pornography in the 1960s and 1970s (which, if I may say so, was a great relief to me and my noble and learned friend Lord Gardiner, as we had between us achieved the prevention of the destruction of that lady) but it was the total inability of an upright and intelligent judge and prosecuting counsel even to be able to comprehend that that book could be a work of art and that anybody could read it without being eternally depraved and corrupted. The jury acquitted, in spite of that incomprehension; and the jury acquitted in the second Kray case, although they knew perfectly well that certain people in the dock had just been convicted of the most outrageous murders.
Trials take place every day in circumstances of prejudice—indecent assaults against children in a local town and rapes of women in a local town—but in fact in court, in that atmosphere in the criminal process, British juries are able, and are shown to have been able time and again, to throw away those prejudices which they naturally always start with, as we all do. When a man is eventually arrested as being the Yorkshire Ripper, he will get a fair trial, and if Lord Lucan should pop up one day, he will get a fair trial, and on the face of it there could be no more prejudice—could there?—than that against those individuals.
I would therefore echo, though alter, the words of the noble and learned Lord, Lord Denning, to "Trust the jury". Juries are far more robust than many people would think. The trouble about the law of contempt is that it has grown up over the years as a collection of empirical decisions by judges in particular cases and instances, up until quite recently never going to appeal. Judges, if I may say so, have displayed to this question a paternalistic approach which is now, at this time, out of date, and have looked upon the legal process over the years as an innocent virgin who must be protected from all pressure, from all prejudice, save that of course of the judiciary itself, and so contempts by outsiders have been met with the severest sanctions after what is usually a totally summary procedure.
The time has come to relax this attitude and recognise the importance of the concept of free expression and simply to define the scope of the law which vitally limits that freedom. With that background, I wish to make a few comments on the Bill. It has already been pointed out—and I support those noble Lords who have pointed it out—that in Clause 2(2) the strict liability applies—to a publication which creates a risk that the course of justice—will be seriously impeded";but it must surely be more than a risk, because every trial is full of risks of that kind; it must surely be "a serious and immediate risk", and I would certainly go along with my noble and learned friend who suggested that the intervention of the Attorney-General might be incorporated into that procedure.
In Schedule I the liability regarding the criminal side arises when the criminal proceedings are active, and 681 that is when a person is arrested or on the issue of a warrant. I would still stick to the moment of charging, as suggested in the Phillimore Report. That is the moment when a person is brought within the ambit of the court. It is surely at that moment when the protection should start and when the person requires that protection. There is a good deal of sense in the complaint of the media: how are they to know when that moment is actually reached, whether it is the moment of arrest or the moment of the issue of a warrant.
We all know that persons are taken into custody or are taken to police stations "helping with inquiries" when they are not in fact under arrest, and that police officers' favourite phrase is that a person is "detained", a phrase unknown to the law; either they are arrested or they are not, and usually when persons go to a police station it is said that they "go voluntarily". Photographs of persons being arrested will be taken at riots or affrays at football matches and other such places, and those persons will be taken away to police stations but they may never be charged. I should have thought that in circumstances of that kind there would be difficulties for the media, if the moment that is hit upon is the moment of arrest rather than the moment of charge.
As has already been said with the highest possible authority, that of the noble and learned Lord, Lord Denning, in civil proceedings when a case is set down there would be a gagging of comment of this kind possibly in some cases for a period of up to 18 months or two years. I would absolutely go along with the suggestion contained in Mr. Robin Day's minority addition to the report, that surely it is not beyond the wit of the officials, or the wit of man, to have a list on to which a case goes at a certain time before it is due to be tried, and the media would know that from that time they were in danger.
I find difficult to understand why on earth it should be suggested that judges who are to try cases alone should need protection. I noticed that in introducing the Bill the noble and learned Lord who sits on the Woolsack did not at all mention the matter continuing and covering the appellate stage. If paragraph 14 of the schedule stands, after conviction and sentence all comment which could create a risk of serious prejudice will be prohibited if a notice of appeal has even been lodged. Of course that goes far beyond Phillimore. I must say that to me of all the persons who supported this suggestion the most unlikely was the noble and learned Lord the Lord Chancellor himself; that surprised me. He mentioned that he is one of the rare individuals in this House who has been the subject matter of contempt proceedings. In 1968 an article appeared in Punch under the authorship of a certain Quintin Hogg, who made the following observations about the Court of Appeal, which at that moment had delivered a judgment, or was in the process of doing so:Blindness descends upon the judges … Their judgment was unrealistic, contradictory and erroneous. They lambasted the police for not enforcing a law which they themselves have rendered unworkable … Everyone is out of step save the court".That was described by the judges in the Court of Appeal as rumbustious criticism—not only rumbustious, but regrettably inaccurate, but at the same time criticism 682 which was entirely without prejudice; and the Peers' stream of justice still flowed on unsullied.
If the Court of Appeal could withstand the full fury of a Quintin Hogg at his zenith, what fear is there of the News of the World or even the National Council for Civil Liberties or, if I may say so, any other noble Lord in this House? I venture to suggest that the judges need no protection as regards appeals and that those judges who are ignorant or isolated could indeed profit by the knowledge of public disquiet or dismay. I differ entirely from the approach of the noble Lord, Lord Paget of Northampton, in that surely it would be of assistance to a court of appeal to know that there has been disquiet, protest and public outcry. They are not going to be affected by it in their judgment, but it would make it possible for them so to frame their judgment that they can assist people who had in fact been ignorant of the real facts or who have made a wrong protest; or, if they find in the other direction, to show that they were perfectly justified in the attitude which they took. It is really extraordinary to think that any judge of appeal could possibly be affected by comments of that kind.
The only remaining matter that I should like to mention is that in Clause 2, in relation to magistrates' courts, it is not clear to me whether or not the procedural safeguards demanded by Phillimore are implied in the clause—that the accused person should know the charge and must be given time and opportunity to defend himself. So far as Clause 4(2) is concerned, I am also not clear whether there is any appeal against an order by the court if it orders that publication of any such report should be postponedfor such period as the court thinks necessary".That would seem to be quite unlimited, and to me it does not appear clear whether there would be any appeal against such an order, bearing in mind that it is a power given to magistrates as well as to judges. So far as the whole Bill is concerned, I end by saying that I would welcome parts of it, and that in my view it is a Bill which could be substantially improved.
§ 5.57 p.m.
§ Lord Rawlinson of Ewell
My Lords, may I commence by offering my apologies to the noble and learned Lord the Lord Chancellor for not being here when he moved the Second Reading of the Bill. Like most of your Lordships, I am always reluctant to miss any speech by the noble and learned Lord, especially on this occasion since the speech was about contempt of court. The noble Lord, Lord Hutchinson of Lullington, has just reminded the House of an occasion when Mr. Quintin Hogg was brought before the court on a matter of contempt, which was dismissed; and I hasten to add that on that particular occasion I was counsel for Mr. Quintin Hogg.
When the noble Lord, Lord Hutchinson, says, "trust the jury", I wholeheartedly agree with him in that sentiment. But he would be the first to appreciate that we do not actually simply trust the jury, because, for instance, in a criminal trial we make sure that the jury do not know the previous convictions of the person accused. We make sure that the jury do not hear what the soldier said. In other words, we have rules which restrict knowledge given to the jury because it is believed 683 that that knowledge would so influence the jury as to be unfair to the person being accused. Therefore, though I believe that the noble Lord, Lord Hutchinson, is right when he says, "trust the jury", one must look seriously at the rules and precautions so that a person can enjoy a fair trial.
Since this appears to be a time for reminiscences, may I point out that my qualification here is that in the case concerning the Sunday Times—the case to which almost every noble Lord has referred—I was party to the proceedings, party in the sense of the matter coming within my office. I was the person who brought the proceedings, and I happened to be counsel in the case itself; so I was doubly involved. Every dart wounded me and every time that, for instance, the Court of Appeal reversed the decision of the Divisional Court I suffered. When I came to the House of Lords I rejoiced. I am glad to say that by the time the matter went to Europe it was the turn of someone else to suffer.
There was a great deal of misconception about that case, to which I shall refer in a moment, but I should like to say that I so much agree with the noble and learned Lord, Lord Salmon, when he said that "contempt of court" is such a misleading name for what we are really seeking to guard against. It is not, as he so rightly pointed out, maintaining the dignity of the law and of the judges, but is indeed that which all born and bred in these islands believe is one of the great rights of every Britisher—that is, to have a fair trial; and that whatever be the crime he may eventually be convicted of having committed, and whatever his previous career and conduct may have been, nevertheless he will come before an unprejudiced jury and get a fair trial. We believe that that is one of the greatest liberties of the Englishman, and one of the paramount matters of importance in any society in which we live.
My Lords, other countries do not share that view. In Europe and in the United States of America they do not consider it so important. Their approach is therefore different; and, of course, that affects the whole consideration of the problem. We have made the decision that the paramountcy lies in the fair trial. As a result of that, freedom of comment has to suffer. But the vice of our system has been uncertainty for those whose duty it is, whose important duty it is, to report and to comment, as to when they are liable to be offending against the principle of the fair trial, thus to be guilty of contempt of court.
The vice on the Continent of Europe and in the United States of America is in the unfairness to the accused. For instance, on the Continent of Europe the person accused may be referred to as the assassin and be treated as the assassin before his trial has even commenced. That is wholly alien to our concept. In the United States of America, where the system of trial is of course very much more similar to ours, nevertheless because they do not have contempt of court they have to have a much longer and a much slower procedure. They have to have the voir dire, where hours and even days can be spent cross-examining members of the jury. It is said that an English case commences when the jury has been selected and an American case ends when the jury has been selected. 684 In fact, if you really wished to permit total freedom of comment you really would have to alter the whole of the basic process of the English trial.
I share the view of other noble Lords who have spoken that the Phillimore Committee got it about right. With regard to the cut-off point, whether it should be arrest or charge, I share the view of Lord Hutchinson. Indeed, I made a recommendation in a committee of which I was chairman when the party to which I belong was in opposition, that it should be at the moment of charge. But on reflection I can see the force of the decision which has been taken that it should be at the time of the warrant. "The police are searching for the foul murderer of Mrs. Y. His name is so-and-so; a warrant is out for his arrest". I do not think that that is really wholly desirable. Therefore, on balance I can see why the Government have taken this decision. The quotation which is always used of the Lord Lucan case seems to be very particular, and in general I can see the reason for their decision to make it the moment of the issue of the warrant.
Now I turn to the case of the Sunday Times v. Attorney-General. It was not the distillers who sought an injunction—nothing of the kind. The distillers complained to the Attorney-General and invited the Attorney-General to intervene. The Sunday Times submitted articles to the Attorney-General and sought the opinion of the Attorney-General as to whether or not those articles amounted to a contempt. I gave that opinion, and warned that in my opinion a second article which they were going to publish might be construed as contempt of court. I want to make it clear that the whole of this process was totally and wholly amicable. There were extensive discussions with my officials; and eventually, when my opinion had been expressed that that second article was a contempt of court, then there was the agreement that that should be tested in the courts. So the Attorney-General was a reluctant litigant, but he was doing the duty of the Attorney-General, from which he cannot escape—and any Attorney-General who is a popular gentleman is in my view certainly not doing his job properly as an Attorney-General. I say that in the presence here of a very popular man, the noble and learned Lord, Lord Elwyn-Jones, but he will understand what I mean. The very nature of the office is that you have to carry out tasks in the public interest and in the public name which you would probably much prefer not to do, but it is because of the burden which is put upon your shoulders.
So the implication which I heard on the radio shortly after that case was over, from somebody who ought to have known better, who said, "It is not very pleasant when you hear the Attorney-General banging on the door threatening to send you to prison", is utter and total bunkum, because it was the Sunday Times who asked for the advice, it was the Sunday Times who received the advice and it was the Sunday Times who agreed that this should be tested to see what the law was. So we came to court; and, as I have said, being party and counsel I was very satisfied with the final decision of your Lordships' House—a unanimous decision which upheld the Divisional Court and reversed the Court of Appeal.
685 Subsequently, when it went to the European Court of Human Rights, I believe that the approach of that court, because of the tradition of the European systems of law, was totally different. But the prospect of powerful media being able to influence an individual against defending or prosecuting a case is something which I think we should look on with very considerable reserve; and I agree with the noble Lord, Lord Mishcon, when he talked in his speech here today about the power of the press, which we must understand and appreciate. There is a great distinction between the private influence of you going to your neighbour and saying, "If you bring that case against that particular person, I shall never see or speak to you again", and where, for instance, a local newspaper takes upon itself, where there is an action pending, to traduce or attack one of the parties to it and say, "They have no right to bring that case", or "They have no right to defend it". You can translate that to the media, where you can have a whole television programme about a particular case. In my submission that is totally undesirable. Therefore, I believe that the limits which have been introduced in this Bill are the correct distinction and the correct balance.
My Lords, I turn to the point which has interested others this evening in your Lordships' House, about the prejudicing of judges of the Court of Appeal. This, it is said, is never possible. That may be true. I have never been a Lord Justice of Appeal, nor a Lord of Appeal in Ordinary, so I do not know. If they say it will not prejudice them, then, very well, I accept it. But there is another consideration that has nothing to do with them, but it has a lot to do with the rest of us; and it is the effect on public opinion of a vast barrage of comment—a vast barrage of comment all directed in one way. I believe that to permit such a barrage, unlimited, can have an effect upon public confidence in the administration of justice.
If there is a campaign for or against an appellant, then the decision of the judges or Lords Justices will be viewed in the light of that campaign in the press and the media; and either the result may arouse bitter hostility to the Court of Appeal or it will look as though the Court of Appeal has bowed to that campaign. Therefore, it is too much to say that you need not have any restraint upon comment where a matter is going to appeal. I have no doubt that the law of contempt needed reform. It was not right that editors should not have the degree of certainty to which they are entitled. The situation was too uncertain and it put upon them an unfair burden.
I should have liked to see in a Bill a proper codification of all the restrictions upon reporting, of the committal proceedings, of identification in rape complaints, of domestic proceedings and of children, of indecent evidence in matrimonial cases and cases of national security. It would have been far better if that had been in a Bill, but, if so, it would have been a very major and much more substantial Bill. This, clear as it is, is to me another example of what I believe to be our haphazard way of legislating and our haphazard way of making law. But, generally, I think it is right for the Government to have done what they have done. In my belief, we must base our attitude to such matters as this on where lies the paramountcy. And the paramountcy will rest—and 686 I trust will always rest—in our country and with our procedures upon the balance of a fair trial for the citizen.
§ 6.12 p.m.
§ Lord Gifford
My Lords, I approach this Bill from a point of view which I hope is not a controversial one: that we should encourage the widest possible participation of the public in the administration of justice. We have one unique and priceless asset within the common law judicial system; that is, that we actually invite members of the public to take part in the administration of justice by serving on juries; and, like my noble friend Lord Hutchinson, I believe that juries' verdicts are eminently to be trusted. But the participation of the public is needed also and is needed more in those decisions which are left to the judges and other judicial persons acting on their own. Justice, thank goodness! is not done behind closed doors, except in very exceptional cases. The reason why the public are invited and are entitled to come, either themselves or through their representatives in the press, to listen to cases is not in order that they might worship the majesty of the law but in order that they may pass their own judgment upon what is done both in terms of praise and in terms of criticism.
Much has been said this afternoon of the extent to which judges ought to be affected by expressions of public opinion. I take the view that judges ought to take account of public opinion and that the justice that they dispense is the better for it when they do so. I spent part of this summer studying the judicial process in a far-off country, but one which I think has a lesson for us this afternoon. The country is Mozambique, where they hold their trials and hearings amid the largest possible gathering of local people. At the end of the hearing, the judges invite the public to express their views and to ask questions. Then, when that has been done, the judges retire and they consider what is to be done with the case in the light of what the public has said. If they disagree with what the public has said, they can say so and can seek to educate the public to their view. So, in a different way, in this country the public should be encouraged and has the right to express its view of the judicial process, whether it be in newspapers or in public meetings or in demonstrations of a peaceful kind outside the court.
From that point of view, what has this Bill achieved? Certainly, as the noble and learned Lord the Lord Chancellor said in opening, it extends in some cases the circumstances in which it is legitimate for the Press and the public to comment upon pending proceedings—and that is a distinct gain. But there are other aspects of it which are alarming. The first, which has been referred to by many noble Lords, is what appears to be recognition of what is still a grey area of the law: that it is possible to be in contempt by commenting upon proceedings under appeal. That section of Schedule 1, I suggest, ought to be radically altered and the view of the noble and learned Lord, Lord Salmon, be put into law so as to be clear to all. There are other areas where openness seems to be attacked. Clause 9 has not been commented upon very much. That clause prevents the use of tape recorders in court. I would ask, why? Why, in a 687 public court, should there not be used a convenient, modern means of recording what has been said?—provided the court is not distracted by the use of wires, microphones and so on. Let the proceedings of the court be better disseminated; let the information be more complete by whatever means are available.
Another provision which seems to attack openness of reporting is in Clause 4(2) which allows a court to make orders preventing the publication of reports of proceedings in any case,where it appears to be necessary for avoiding the risk of prejudice to the administration of justice in those proceedings or in any other proceedings pending or imminent …".This, I would suggest, is a dangerous power. It is not needed. The circumstances in which the press must refrain from reporting proceedings—for instance, when evidence is given of previous convictions—are already perfectly well known.
Of course I accept that safeguards are needed. I think that all noble Lords have been unanimous in saying that jurors should not be subjected to a bombardment of press comment while they are trying to arrive at a verdict. Everybody also would accept that to hound, to victimise or to intimidate a litigant or a witness is something which must be avoided. In relation to this, I think that we must bear in mind that litigants who are great and powerful institutions are much more able to withstand pressure and adverse comment than is the ordinary impecunious individual. It would be much more legitimate, for instance, to campaign against the Attorney-General for bringing proceedings which people think he should not have brought, or to campaign against the Distillers Company, as was the case in the Sunday Times case, or against Sir James Goldsmith, or some great magnate using his financial power to bring proceedings against Private Eye, or cases of that kind than to make the same kind of attack on somebody who is much more susceptible personally and economically to pressure. I do not know whether it will be possible to provide for that kind of distinction in a Bill of this kind. Those safeguards ought to be strictly limited.
Side by side with the view that the public should have the maximum participation in the system of justice, is another point of view; that is, that the judges cannot be relied on to make objective decisions about contempt of their own process. They are, I think, too involved. They overestimate the risks. Let us not forget that the very genesis of this Bill is the fact that a European Court of Human Rights had to put right our own House of Lords for having taken a view which was in their opinion, as a court of human rights, too narrow. They were taking that view as sovereign judges not trammelled by a statute. Contempt of court is of course a judge-made law.
Only last week in the case of Harriet Harman (which has been referred to and on which I do not propose to comment in detail) we heard a judge describing something as a serious contempt which many commentators have considered to be an absurd view. If we look at the Bill in the light of those considerations, there are at least two causes for concern. The first is that it retains the power to deal with contempt of court exclusively in the hands of the judges. Much has been said about the value of juries. Contempt of court is a proceeding 688 which can be penalised by imprisonment or very severe fines. Why not let the jury determine whether there has been a risk of serious impeding or prejudice to the course of justice? It is a very vague criterion and one which the judges are likely to interpret very strictly and which the public, represented by a jury, is likely to interpret in the light of common sense. So let there be trial by jury.
The second worrying feature of the Bill is another clause which has not been much commented on, Clause 11, which creates a new offence of wilfully insulting a justice or wilfully misbehaving in a magistrates' court, and subjects that offence to a maximum penalty of one month or a fine of £500. I fail to see the need for this offence. I have been in magistrates' courts from time to time when decisions have been made which outraged the assembled public gallery. There were expressions of that feeling and the court has never found any difficulty in either calling for silence or asking for the police to eject the people who are shouting.
Why do we need a fresh offence of wilful misbehaviour or wilful insult? Let us recognise that what goes on in the courts provokes strong feelings, not just in the minds of the newspaper commentators but in the minds of those who listen. I would say that the balance of this Bill is wrong and that we can make a great deal better; and that we will get it better if we remember that we can trust the public and their representatives and that we should welcome their right to participate in the judicial process. We have talked all along about the need to protect the course of justice; but the course of justice is much better if the public are involved in it.
§ 6.25 p.m.
§ Lord Ardwick
My Lords, the noble Lord, Lord Wigoder, was good enough to refer to my temerity as the only layman to intervene in this debate. I remember what happened some years ago in another place when a Member found himself in the same situation as I am today. He was noted for his intellectual arrogance and he said that although not a lawyer he thought he could make a valuable contribution to the debate. Pritt, K.C., following him, referred to him rather disparingly as the "almost learned gentleman."
My Lords, my decision to participate in this legal moot is not an attempt to make a valuable contribution, but to enter a plea as the scarred victim of a vague law interpreted by unpredictable judges. I am scarred not by sins of commission but of omission. I have left out too many stories, and left unwritten too much comment. If anybody argues that few editors have been arraigned for contempt, it is because contempt makes cowards of us all—apart from a few brave souls such as Harold Evans or the noble and learned Lord who sits on the Woolsack. Most of us, faced with the law as it is, act as though the better part of valour is suppression.
Seriously, my Lords, it is only seven months since I put down an Unstarred Question on two of the problems which worry, chafe and inhibit journalists, and especially those working on fast-moving daily papers. One of those problems was what a layman might call the test for contempt; or a lawyer might call the definition of strict liability for the contempt of court. The other 689 problem was what the starting point of liability should be in civil and criminal cases. That debate of seven months ago was, of course, on a much narrower base than today's which covers the entire subject. But again I propose to concern myself only with the basic problems, leaving the other complexities to the noble and eminently learned Lords whose names are on today's speakers' list.
It is recognised, and certainly was recognised in that debate, that there are strong arguments for and against almost every proposal that Phillimore makes. Yet a consensus emerged in that last debate that on many subjects Phillimore has just about got it right, having examined in considerable depth the practical side of the problems. I must admit that there are those like the noble Lord, Lord Wigoder, whose instinct for freedom is as strong as that of anyone in this Chamber, who are still doubtful about the proposals for fixing the point in time when strict liability should run in criminal proceedings. And we were under no illusions as long as seven months ago, when the noble and learned Lord who sits on the Woolsack spoke to us and made clear that the Government shared Lord Wigoder's doubts.
The Lord Chancellor's conclusion was that the right moment in the criminal law at which to commence the point of liability was arrest or the issue of a warrant. The argument is that editors are protected, first, by the new definition of liability for contempt—that is, it must risk seriously impeding or prejudicing the course of justice—and, secondly, by the defence of innocent publication. That defence enables an editor to plead that he did not know and could not reasonably be expected to know that criminal proceedings were active. But what editors today are wondering is what inquiries should an editor make, or cause to have made, in order later to avail himself of this defence, should it be necessary. For example, if his reporter rings the police and fails to get information although an arrest has been made, is that sufficient evidence of innocent publication? As every journalist knows, some police officers are excessively cautious about giving any information at all, while in other cases there may be a well-established method for providing the press with information, the police may have good reasons for not revealing at that particular moment that an arrest has been made.
In the past, what has given editors most cause for anxiety was that liability begins when proceedings have become imminent—and we have never known how imminent "imminence" is. Now we are to have certainty, but the certainty about imminence is based upon an event about which there is no certain public knowledge: that is, the arrest or the issue of a warrant. At the Committee stage there must be amendments to be proposed for the starting point of liability both in criminal and civil proceedings.
In the May debate, I expressed belief in the Phillimore recommendation that liability should start in civil cases when an action was set down in the superior court because there was no discernible point in time later than that. I am afraid I was overlooking the minority proposal from Mr. Robin Day, who advocated fixing a point in time by the provision of a sub judice list for cases "shortly before trial". What is wrong with that? Another proposal would fix the point when the case came into the term's list. Surely there are, or there 690 could be found, discernible points which might be used to hold a fair balance between what the public interest requires and what the parties need to ensure a fair trial. Since May, there has arisen the absurdity of the Harman case, and it is the fear of judges who think like this which lies behind the journalists' concern about the vagueness of the existing law.
The Bill before us is regarded by editors as a mixed blessing. The Guild of Editors, to which I do not belong, goes so far as to say that unamended it may do more harm than good. I do not accept that judgment but they are justifiably concerned about the strengthening of the law of contempt in appellate proceedings and the extension of the law to inferior courts and tribunals. Of course it is impossible, particularly today, to defend all that the press does, and it would be wrong to pretend that newspapers do not have a commercial interest in wider freedom to publish. But that is not the whole story. The freedom of the press to give information is the freedom of the public to have access to that information: the only access they are likely to have. Once again I should like to quote the words of the late Lord Morris of Borth-y-Gest:We look to our newspapers to inform us in regard to current events; to give guidance on matters of public importance; 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".I am grateful for the distance the Government have come and for the definition of "strict liability" although it is capable of further improvement by insisting, as my noble friend has suggested, that the risk of seriously impeding or prejudicing justice must be "a serious risk". During the subsequent stages of the Bill we must argue very closely its provisions to ensure that the balance between freedom of information and comment, on the one side, and the needs of justice, on the other, has been found and that we have not merely exchanged the hazards of uncertainty for unnecessary frustrations of legitimate and indeed essential press activity.
§ 6.35 p.m.
My Lords, for obvious reasons, but not for a very long time, I hesitated to intervene in this debate. However, I feel it would be a sad occasion if one thing were to go unsaid. Some 11½ years ago the Royal Commission on the Law of Contempt as it affects Tribunals of Inquiry reported, mercifully shortly. There were eight recommendations. If one were to ignore one recommendation, which is a recommendation to legislate, and another recommendation which goes slightly outside the scope of the Bill, each of the remaining six recommendations, it appears to me, has been embraced by this Bill. As the chairman of the Royal Commission happened to be my noble and learned relative Lord Salmon, it gives me considerable, if vicarious, pleasure to note what must be some sort of parliamentary record.
§ 6.36 p.m.
§ Lord Gardiner
My Lords, I find myself speaking from this exalted position by request simply to sum up for the Opposition. That does not, of course, mean that this is a party political question. It should 691 not be, and I am sure it is not. It is a question on which we all have individual opinions. All I can do, therefore, is warmly to welcome the Bill and to summarise very briefly the points that have been made. We are all equally grateful to the noble and learned Lord the Lord Chancellor for introducing the Bill. We know it would have been his wish, had he been able to do so, to have introduced it during the last Session. We thank him too for the clear way in which he has explained the provisions of the Bill to us. I do not believe I am alone in thinking that, in so far as the Bill carries into law the recommendations of the Phillimore Committee, it is right, and in so far as it departs from them it is wrong. That has always been my feeling about the Bill, and so far as the media are concerned I think that is the sort of view which roughly has been expressed.
If I might start with a question of my own, the Phillimore Committee recommended a definition of "publication"; namely,any speech, writing, broadcast or other communication in whatever form which is addressed to the public at large".That is carried through in the Bill in Clause 2(1) except that these words have been added to it—or any section of the public".We have not had any explanation of this. I should have thought "a section of the public" is the exact opposite of "the public at large" and, like each of the points on which the Bill differs from Phillimore, is restrictive of the right of free speech. I think I am right in saying that there are no differences between Phillimore and the Bill which give more freedom of speech: it is all the other way. This seems to me to be an addition put in—or any section of the public"—which I should think would greatly extend the number of publications which would be subject to the law of strict liability.
On the opening clauses, my noble and learned friend Lord Elwyn-Jones has suggested the insertion of the word "serious"—"serious risk"—and also that prosecutions should be subject to the fiat of the Attorney-General. In that he was supported by the noble and learned Lord, Lord Hutchinson, and I would support both suggestions.
Also there is a very real and understandable controversy as to what, in the case of "strict liability", should be the moment in the criminal proceedings at which they should start and, in particular, whether it should be as proposed by the Phillimore Committee, when the accused prisoner is charged or a summons is served, or, as in the Bill, on arrest. This is obviously a very arguable point. It is one of the points made in a leading article in The Times of 28th November, headed "Too cautious reform of contempt". They preferred the recommendation of the committee to what has been suggested in the Bill. But, clearly, these are very much matters of opinion.
The question of appeals is another point on which The Times was unhappy. It said:Why, too, does the Bill put the press at risk of contempt during the period of appeal?I have never understood why it should be necessary, so far as appeals are concerned. But this, again, is a 692 matter which we can argue about at the Committee stage of the Bill. Some, of course, including the Law Society and, I think, my noble friend Lord Mishcon, have said that this should never apply in a case which is tried by a judge alone and not by a jury.
My noble friend Lord Mishcon, and also my noble friend Lord Gifford, have discussed the question of postponing reports—I will not add to what they said—and also the question of tape recorders. Why a tape recorder should be so unfavourably regarded, I am not sure. A tape recorder is simply the equivalent of the old shorthand note. Why, if somebody is entitled to take a shorthand note in a court of law, he cannot have a tape recorder if he wants to, and why that should be in the nature of a criminal offence, I cannot think.
As regards the defence that the publication complained of formed part of a legitimate discussion of a matter of general public interest, I understand that the clause purports to follow the Phillimore recommendation, but it does not quite do so, because it adds to the statement of that principle the words "in good faith". Perhaps at some time, if not today, the noble and learned Lord the Lord Chancellor might be kind enough to let me know what the effect of those words is supposed to be. In Recommendation (15) the Phillimore Committee said:It should be a defence to an allegation of contempt to show that a publication formed part of a legitimate discussion of matters of general public interest and that it only incidentally and unintentionally created a risk of serious prejudice to particular proceedings".We can go into these matters of detail at the Committee stage, but I wondered why in the Bill itself the words "in good faith" were added.
Clause 7, of which there has been a fairly general review, really will not do as it stands. That is the clause which refers to contempts in relation to inferior courts. At the very least, I should have thought there would have to be a list of them, because here is the constitution of a criminal offence and people must be entitled to know what they can and cannot do,in respect of the proceedings of inferior courts … tribunals and bodies (however described and whenever established) which are constituted by law and exercise any part of the judicial power of the State".I cannot believe that I am the only lawyer in the country who does not understand that at all, and if a lawyer cannot understand it I do not suppose that a layman will be able to.
It is a little disappointing that the Bill does not enact the provisions recommended by the committee on scandalising the court; that is Recommendation (21):'Scandalising the court' should cease to be part of the law of contempt. Instead, it should be made an indictable offence both in England and Wales and in Scotland to defame a judge in such a way as to bring the administration of justice into disrepute. Proof that the allegations were true and that publication was for the public benefit should be a defence. In England and Wales this offence should be made a branch of the law of criminal libel".That has apparently been left over, but, in the context of contempt of court as a whole, one has always to bear in mind that for at least the last 200 years the main objection which has always been made to our law of contempt, apart from its uncertainty, was that it was usually a case complaining about something said about 693 a judge. The judge was the accuser, the judges decided, and all the ordinary citizens' rights of protection—namely, trial by jury, a proper indictment and so on—were not applicable. That has always been the main complaint that, so far as scandalising the court is concerned, it should be subject to the ordinary criminal process of the law.
The one thing that is clear is that we are all going to have a very interesting Committee stage of the Bill. Although, as I have said, I am in a sense winding-up for the Opposition, this is not at all a question of party politics, but is something on which we all—lawyers and laymen alike—have our own views.
§ 6.46 p.m.
§ The Lord Chancellor
My Lords, I am not quite sure how I can sum up this rather rambling debate without transgressing on your Lordships' patience beyond endurance, because what we have really heard, except for one speech, is very largely a long catalogue of Committee points. All I can promise is that they will all be taken into account. I shall have them very carefully analysed and will see what we can do about them.
But I should like, if I may, to come back to one or two points of general principle, because I think that there were times when speakers were a little in danger of getting lost in the trees, without recognising that we were dealing with a fairly well-defined wood. I should like to begin at the point where I started my opening speech, by saying that what we are really trying to do is to reconcile two human rights. One is contained quite clearly in the first sentence of Article 6 of the European Convention, and the other is contained equally clearly in Article 10. The Strasbourg Court quite clearly laid down, both as regards its majority and as regards its minority, that the right thing was to say that Article 6, where necessary, must take precedence over Article 10, but only in so far as it was necessary in a free and democratic society. I have not quoted verbatim from the actual words which I gave in my opening speech, but that was the effect of them.
I must say to the noble Lord, Lord Gifford, whose speech I listened to with interest, that he is quite wrong in saying that the European Court do not have a statute to rely upon, except in the purely technical sense that they were relying upon the Convention on Human Rights, which for this purpose has for them a statutory force, and their decision was based upon their view of that convention—
§ Lord Gifford
My Lords, I apologise if I did not express myself very clearly. It was the United Kingdom which did not have a statute and, therefore, we had to rely on the House of Lords to interpret—I was submitting erroneously—the law.
§ The Lord Chancellor
Yes, my Lords. But I think that when the noble Lord reads what he said in Hansard he will find that I have not misrepresented him. If I have, I apologise at once. There is a very clear policy behind the Bill, which is to give effect to the two principles, Articles 6 and Article 10, in the Convention on Human Rights, and to give precedence to Article 6 in the sense in which the court itself, both 694 the minority and the majority, intended that it should be given precedence.
I agree with the noble and learned Lord, Lord Gardiner, whom I should like to thank not only in parenthesis but sincerely for the courteous words with which he began his speech, that the point of departure which I make in that search for a balance is identical with his own: that if you are going to do anything this Session you must start from Phillimore, and that the burden of proof rests upon those, including myself, at the point at which they want to deviate from Phillimore.
I must point out to the noble and learned Lord, Lord Gardiner, that the number of deviations which he adumbrated as his own opinion were far more numerous than my peccadillos. Take, for instance, the role of the Attorney-General, with which he began. The noble and learned Lord, Lord Gardiner, and to some extent the noble and learned Lord, Lord Elwyn-Jones, wanted the rule of strict liability to be triggered off by the Attorney-General only, omitting the fact that what we are trying to do and that what Phillimore is trying to do is to protect the rights of individuals who go to law or who have been brought to law on a criminal charge.
I read verbatim the first sentences of paragraph 187 of the Phillimore Report:We are sure that the Attorney-General must retain his right to act in the public interest where he thinks fit to do so … We believe, however, that the normal practice should be, especially where the alleged contempt is in relation to criminal proceedings, that the attention of the Attorney-General should be drawn to the matter before any private proceedings are begun".It is clearly laid down in the discussion on that point that in the last resort the private individual is to have the right to vindicate his own rights to contempt proceedings, where his own rights are in his view invaded, before an impartial and independent court which is there to judge things precisely of that kind. We are not solely concerned with public rights in this case. We are concerned with the right of the individual to have access to a court of competent jurisdiction. This is laid down in Article 6.
May I, in passing, refer again to tape recordings. From what he said about them, I should have thought that the noble Lord, Lord Gifford, had read neither the Bill nor the Phillimore Report. Referring only to what was said by the noble and learned Lord, Lord Gardiner, paragraph 43 lays down clearly the policy which is recommended in relation to tape recorders—that they should be allowed only by leave of the court, which is what our clause says—and gives at length the reasons for it, which I will not rehearse. It is we who are sticking to Phillimore. It is those who have criticised us who, on the whole, have deviated from Phillimore.
We have had a great deal of discussion about the alleged total immunity of the judge alone and the judges in the Court of Appeal from any kind of influence which the press may have. I think that my noble and learned friend on the Cross-Benches, Lord Salmon, whose views I always treat with the utmost respect, was a little too optimistic in his view of judges. He thinks that they are all as robust and courageous as himself. I am not so sure. I do not differ from 695 the view expressed by Lord Dilhorne, recently deceased, which is referred to in the Law Society's report:This claim to judicial superiority over human frailty",said Lord Dilhorne,is one that I find some difficulty in accepting. Every holder of a judicial office does his utmost not to let his mind be affected by what he has seen or heard or read outside the court and he will not knowingly let himself be influenced in any way by the media. Nor, in my opinion, will any layman experienced in the discharge of judicial duties. Nevertheless, it should be recognised that a man may not be able to put that which he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it".I am afraid that we must go into this in a little more detail so that we can see the wood for the trees. We are not, as a matter of fact, concerned only with judges and juries. We are certainly also concerned with magistrates and other laymen who have judicial functions to perform, either in the Crown Court or elsewhere. As the noble and learned Lord, Lord Rawlinson of Ewell, my previous defender, rightly pointed out, we are concerned with witnesses, and we are concerned with the law of evidence.
It is no good having a rule against hearsay or a rule against the disclosure of previous convictions and then blandly to say, "Trust the jury", having pumped into them outside the court everything which they are not allowed to hear inside it. That is carrying things to extremes. When we talk about judges being uninfluenced by what they read, I am not sure that I can accept it. What becomes of the rule that judges are supposed to listen to the arguments of counsel if they have been subjected to some kind of previous barrage of propaganda before counsel has had a chance to present his arguments? These are matters which we have to consider very carefully.
Let us consider also that we are not concerned only with the great national organs. We are not concerned with the organ which the noble Lord, Lord Ardwick, is famous for being connected with. We are not concerned with The Times, the Daily Telegraph, the Observer, the Sunday Times. We are concerned, maybe, with some small local paper. We are concerned with some scurrilous "rag" put out with a view to encouraging demonstrations outside a magistrates' court in order to influence the decision of a small bench of lay justices. We are concerned with organs which may desire in one way or another to cause rude telephone calls to be sent to magistrates who can be identified. We are not simply concerned with the great national organs. The right to freedom of expression and the right to a fair trial is the right of the individual in each case. It does not make sense to talk about Lord Salmon as a typical judge of appeal and Lord Ardwick as a typical editor of a national newspaper. We are talking about people who are possibly less upright, possibly less courageous and possibly less sensible than either.
When I am asked to explain why the words "any section of the public" appear in Clause 2(1) of the Bill, I have only to reiterate what I have just said: Is publication designed to affect only the attenders at a public meeting? Is publication of a small local paper or a small but highly tendentious organ to be entirely excluded from this rule? I should have thought that it was precisely that kind of thing which might most 696 seriously offend against it. It is a mere drafting point, but again it is a deviation from Phillimore which I am prepared to defend.
On the other hand, when I am asked to rule against any kind of contempt applying to appellate proceedings or judge alone proceedings, I am bound to say that I cannot find any such rule in Phillimore. What I do find in Phillimore is that the strict liability rule applies only to a publication which creates a risk that the course of justice in the proceedings will be seriously impeded or prejudiced. That is what I find in Phillimore, and if it be true and so far as it is true—and of course there is more than an clement of truth in it, a substantial truth—that when you are dealing with a serious case in front of a High Court judge or an appeal before three distinguished appellate judges or five distinguished Law Lords, you are dealing with a very different kind of court from what you are dealing with when dealing with a magistrate's court or a trial by jury.
I should have said that is exactly what Phillimore had in mind when he recommended a criterion for the triggering off of the rule which was applicable to any kind of court, because if we had a Court of Appeal composed (as the Court of Appeal until fairly recently was composed) of, say, Lord Scarman (Lord Justice Scarman as he then was), Lord Salmon (Lord Justice Salmon as he then was) and Lord Diplock (Lord Justice Diplock as he then was), I do not think anyone would have any more difficulty than Lord Denning in dismissing any conceivable case of alleged contempt as Lord Denning dismissed the case against me. It is absurd to think that such people could be seriously prejudiced. The Bill is designed in the terms of Phillimore precisely to cover all kinds of courts.
Of course I take the point made by the noble and learned Lord, Lord Elwyn-Jones, that it might be well to put the word "serious" in front of "risk" as well as the word "seriously" before "impeded or prejudiced". I will certainly look at that. I took the precaution of trying to find out what the draftsman thought about it while the debate was going on, and he thought it would make no difference at all because that is what the effect would be either way. At any rate I have made this claim for myself and the draftsman, that we were sticking to Phillimore and the noble and learned Lords who preferred the addition were deviating from him.
I have dealt with the point about the Attorney-General and I ought to have dealt with the point about scandalising the court. I think the noble and learned Lord, Lord Gardiner, and perhaps the noble and learned Lord, Lord Elwyn-Jones, overlooked this rather relevant consideration. The Law Commission's report on offences relating to interference with the course of justice has, so I am advised, superseded the Phillimore Committee in the recommendations—contained, I think, in Chapters 6 and 7—to which they were referring, that is reprisals against witnesses and scandalising the court. That report of the Law Commission, which was Lord Gardiner's own child—no ewe lamb, that child—is with the Home Office. I am told that they are favourably disposed, but no announcement has been made and that is why there is no reference in this Bill.
I do not want to talk about the case of Harriet Harman, or anything like that, partly because I suspect 697 that it may be under appeal and I might be in trouble if I did, but I should like just to say this to those noble Lords and noble and learned Lords who referred to it, that that was a case in which what was alleged was civil contempt. The Crown claimed Crown privilege for certain documents; the judge in the interlocutory proceedings having perused the documents, allowed—as he is now entitled to do under the House of Lords rulings—the interests of justice to outweigh the public interest element, but only on an undertaking that the documents should be used only in a particular way for the purposes of those proceedings. Whether or not the court was justified in saying that that undertaking had been broken is the issue at stake. Personally I should prefer to express no opinion whatever until the question of the appeal, if any, has been put out of mind.
I agree with the noble and learned Lord, Lord Gardiner, that obviously these questions will be looked at in Committee, no doubt with care, and I hope, so far as I am concerned, with an open mind after I have taken further advice on what has been said. I have said all that I need to say about the cut-off point at the moment. We shall discuss these questions again when we come round to it.
The only thing that I would seriously say to the noble Lord, Lord Gifford, who was the only one, I think, who expressed the view that the Bill gave him cause for alarm, is that any idea that we should introduce the practices of Mozambique into this country, which he seemed to favour, would give me a great deal more alarm than he has ever given to me; and I wonder how he knew that members of the public had been admitted to the Mozambique court. My belief about the courts run by Marxist dictatorships is that the public which gets into the courts would not include me, at any rate, and it would not include many members of the National Council for Civil Liberties or the English press either, and that any comments that that public was likely to make were not so much likely to engender a sense of justice in the judges as to bring pressure to bear upon them to do something which they knew they ought not to do.
§ Lord Gifford
My Lords, the noble and learned Lord has not been to the courts that I am thinking of. The public are the people of the village and they take a most serious interest and a useful participation in the affairs of the village and the decisions of the court.
§ The Lord Chancellor
My Lords, I know that the noble Lord, Lord Gifford, is in very good faith, but I suspect that he is a little more naive than he knows. So far as I am concerned, and so far as I think the great majority of Members of this House are concerned, what we are concerned with is basically a law founded on Phillimore. Those, including myself, who want to justify deviations from Phillimore, will have to justify them; but if we are not going to found ourselves on Phillimore we are not going to have a law at all.
In thanking my noble friend Lord Renton for his intervention, I should just like to say to the House that this Bill may be well-conceived, overdue (I think he said) and better drafted than a good deal of the legislation with which we have been dealing recently. I do not quarrel with any part of that, but I beg the House not to 698 kill it by kindness. I got the impression sometimes during this debate that everybody said: "This is a jolly good Bill; it ought to have been brought in before", but that nothing was quite right about it. If that attitude is going to be taken, I am afraid we may lose the Bill; so I hope the House will not blame me or claim undue rigidity if I pursue the course proposed by the noble and learned Lord, Lord Gardiner. I start with Phillimore and I demand justification for deviations from it. Having said that, I put the Question, That the Bill be now read a second time.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.