Criminal Justice (Amendment) Bill [H.L.] (Hansard, 17 December 1980)

§ Lord Wigoder
My Lords, I beg to move that this Bill be now read a second time. As your Lordships are aware, this is the second occasion upon which I have moved that this Bill should be read a second time. During the last Session this Bill passed through all its stages in your Lordships' House but there was no possibility of it going further in the other place partly because of the extreme pressure of legislation during that Session. The position now is that I venture to reintroduce this Bill because some of my legal colleagues (rather than my political colleagues) in another place are anxious to see whether they can find an opportunity for this Bill to go forward in another place if your Lordships decide to take the same course on this occasion as you did last Session.
This is a very modest little measure which was greeted with substantial support from a number of distinguished legal figures both inside and outside your Lordships' House. It deals with the question of the lifting of reporting restrictions where there are committal proceedings and where there is more than one defendant.
Your Lordships will recall that the present position is that there can be no reporting of committal proceedings unless there is an application on behalf of the defence to lift those restrictions. If all the defendants agree that there should be no reporting, then there will be no reporting and this Bill does not affect that position. Similarly, if all the defendants agree that the restrictions should be lifted, then the restrictions will be lifted, and again this Bill does not affect that position.
This Bill is only concerned with the situation where there is more than one defendant and where there is a dispute between the defendants as to whether the restrictions shall be lifted or not. The present position 1175 there, which appears to be unsatisfactory, is that any one defendant, for however trivial a reason and however trivial a part he may be alleged to have played in the matter that is being investigated, can as of right demand that reporting restrictions should be lifted, even though this may be to the very real detriment of the other defendants who are involved in the case.
The Bill recognises that there is a genuine conflict of interest on occasions. There can be the occasion when a defendant is entitled to have the reporting restrictions lifted because by means of publicity it is just possible that some essential witness might be traced. This is an unusual occurrence but it can happen and one would not want to seek to deprive a defendant of that opportunity where there is a bona fide application to that effect.
On the other hand, in a great majority of cases, there is very real danger that the reporting of committal proceedings may gravely prejudice the position of some defendants. That can happen in four obvious ways. First, the lawyer concerned who appears for the prosecution may open the case in very dramatic terms which are reported in the press but the evidence may fall far short of the opening. Secondly, defendants who will be pleading guilty at the trial may have made long written statements implicating other defendants. Those can properly be read out during the committal proceedings, but if they are published it may very well prevent a fair trial of the other defendants involved. Thirdly, inadmissible evidence may well be put in at the magistrates' court to the prejudice of other defendants, whereas at the trial that evidence may not appear at all. Fourthly, the whole nature of our committal proceedings is such that they give the impression of being uncontested by the defence, and a report of those proceedings may appear to indicate that there is only a prosecution case and no defence case at all.
I should stress that I am not primarily concerned with the very occasional notorious case in which this issue has arisen in recent years. I am much more concerned with the very large number of small cases where the local press in particular may at the moment find themselves as a result of an application by one defendant free to report committal proceedings in the local newspapers to the possible grave prejudice to the jury which will hear the case in due course.
In that situation, all that this little Bill provides is that, where there is disagreement among defendants as to whether the restrictions shall be lifted or not, then representations shall be made to the magistrate and the court shall decide what is the proper course "in the interests of justice". That is the phrase that is used in this Bill. Your Lordships may recollect that during the last Session at the various stages of this Bill there was considerable discussion as to what the precise criteria should be. In the course of the Report stage, after much very valuable assistance from the Home Office, your Lordships decided that rather more specific criteria should be written into this Bill.
The Bill as at present before your Lordships goes back to the original Bill as introduced last time. This will give the opportunity for your Lordships to express other views on further reflection as to what are the appropriate criteria at a later stage in the progress of 1176 this Bill, should you be good enough to give it a Second Reading today. Your Lordships may perhaps remember that the noble and learned Lord, Lord Widgery (then Lord Chief Justice), expressed very strong views in the course of the progress of the Bill last Session that the phrase, "in the interests of justice", used in the Bill today was perhaps the most satisfactory of the various alternatives available.
If your Lordships wish at a later stage to suggest amendments to the criteria, I shall of course be very happy to consider them and to seek the decision of the House upon them. I am fully aware of the fact that various technical formal amendments are necessary to the Bill in its present draft which would follow the lines of the various formal amendments suggested by the noble Lord, Lord Belstead, in the course of Report stage during the last Session. I shall be very happy to reintroduce similar amendments at Committee stage if your Lordships are kind enough to give this Bill a Second Reading. With those short observations, I beg to move that this Bill be now read a second time.

§ Lord Boston of Faversham
My Lords, we are all grateful to the noble Lord, Lord Wigoder, for introducing his Bill and providing us with this further opportunity to consider the changes proposed. It may be, as he has said, a modest measure, but I think that the amendments of the law that it proposes are in fact significant and important. I must congratulate him in having got off the mark so swiftly after the start of the Session. Last Session he was not exactly slow; the Bill received a Second Reading eight weeks after the State Opening. This Session this Second Reading debate is taking place just under four weeks after the State Opening.
I did not take part in the proceedings on the Bill last time but I have read all the debates which took place. What strikes one most is the unanimity of view that the present law is wholly unsatisfactory and needs to be changed. With that, with respect, I completely agree. The second thing that strikes one about those debates is the fairly wide agreement that change is needed as a matter of some urgency.
One thing which I think was very much in everyone's mind last time and perhaps is again somewhat to the fore tonight, is the unsatisfactory state of the present law as revealed particularly by the committal proceedings at Minehead in 1978. Almost another 18 months have gone by since this Bill was first given a Second Reading and the problem was urgent then. I believe it is even more urgent now.
The problem itself is clear and has been explained with, if I may say so, his customary clarity by the noble Lord, Lord Wigoder; so there is no need to go over that ground again. I would just add that I believe it is plainly wrong that on the basis of a whim or fancy, or for no reason whatsoever, a defendant should be able to foist a particular course upon another defendant or indeed upon other defendants.
Your Lordships will be grateful to the noble Lord, Lord Wigoder, for having emphasised that presenting the Bill as it was originally presented last time gives an opportunity for reconsideration of amendments which 1177 were put forward last time and perhaps of others which might be put forward this time.
I must confess that I am not over-concerned about which particular choice of words from among the alternatives so far considered whould be used to achieve the basic aims of this Bill. On the whole, I would go for simpler version as the better. Like the noble Lord, Lord Wigoder, I, too, was impressed by the support given during the Committee stage in our previous debates last time by the noble and learned Lord the Lord Chief Justice to the original version of the Bill, which is again before your Lordships' House, rather than the alternatives adopted on Report last time—though I think it is also true that the noble and learned Lord indicated that he would not oppose the amendments proposed by the noble Lord, Lord Wigoder, at that time.
There is only one other matter I would wish to mention and that is this: this is a matter which, among many other perhaps more major matters, is being considered by the Royal Commission on Criminal Procedure. I think it is right that so far the commission has not reported on this matter. I do not know whether the noble Lord, Lord Belstead, is able to give us any information tonight about the course of events in connection with that and indeed about the course of events that might follow it: that is to say, any legislation which might be forthcoming. But, even if there is a positive answer on both those points—that is to say, even if we can look forward to receiving the report soon and also to receiving proposed legislation shortly thereafter—this matter is an urgent one. Clearly, there would have to be a fair amount of time before the report and any such legislation could be considered. Therefore I would suggest that perhaps the best course in any event would be to seize this opportunity now presented by the noble Lord, Lord Wigoder, to deal with this very necessary and urgent problem. I certainly hope very much that your Lordships will give this Bill a Second Reading tonight and I hope, too, for a speedy passage thereafter.

§ The Parliamentary Under-Secretary of State, Home Office (Lord Belstead)
My Lords, we are indebted once again to the noble Lord, Lord Wigoder, for bringing this matter before the House. As the noble Lord has explained, this Bill is identical to the one that he introduced last year, which passed through all its stages in this House but made no further progress in Parliament. While there was general agreement last time (and it has been echoed in the speeches made by the noble Lords, Lord Wigoder and Lord Boston) that the present position on the reporting of committal proceedings gives cause for concern, there was rather less agreement during our previous debates on this Bill about the best way of curing it. The noble Lord, Lord Wigoder, proposed then, as indeed he has again, that in cases of dispute between multiple defendants in committal proceedings the court should decide whether or not to lift reporting restrictions by the test of the "interests of justice".
A number of noble Lords expressed reservations about the adequacy of that test and in our debates we considered a number of alternative approaches, in the hope of establishing clear guidelines for the magistrates. 1178 In its final form as it left the House, the Bill contained a formula which was certainly more specific. Whether it was a clearer statutory guide than the original words "interests of justice" was a question which the House had debated at some length. In the months since the House last debated the matter, clearly the noble Lord has been reconsidering the matter. Against the background of our debates in the last Session, I wonder whether there is not something to be said for taking a fresh look at the words, "interests of justice" as a test. Upon reconsideration it may turn out to be a more serviceable formula than it was previously credited as being. At any rate, we now have the opportunity for the House to look at it again.
If this Bill again commends itself to the House, there are just three points I should like to make before it comes to us in its later stages. The first has been referred to by the noble Lord, Lord Wigoder. There are, so we believe in the Home Office, technical amendments which need to be made, and we await those amendments for the Committee stage.
Secondly, Section 3 of the Criminal Justice Act 1967, which this Bill seeks to amend, is itself under sentence of death, having been consolidated as Section 8 of the Magistrates' Courts Act 1980. When that Act comes into force, which we expect to be in the spring, Section 3 of the 1967 Act will be repealed. The noble Lord may perhaps wish to give some thought, therefore, to the Long Title of the Bill.
Finally, the whole subject of committal proceedings, as the House will know, is within the terms of reference of the Royal Commission on Criminal Procedure. The noble Lord, Lord Boston, specifically mentioned this and my reply to him is that I understand that the report of the Royal Commission is expected to be published early in January. I cannot, of course, go further than that this evening so far as any possibilities of legislation arising out of the report will be concerned; but the noble Lord is absolutely right in saying that, first of all, the digestion of the report and then the possibilities of legislation will take time. It is certainly not my purpose, as it was not the noble Lord's, to suggest that the reason for the existence of the Royal Commission is reason for opposing this Bill today. However, I am sure that if this Bill makes progress your Lordships will want to examine it very carefully in the light of whatever the Royal Commission has to say on this topic.

§ Lord Wigoder
My Lords, I am grateful to the noble Lord, Lord Boston, and to the noble Lord, Lord Belstead, for their encouraging remarks, and I take on board, of course, the detailed points made by the noble Lord, Lord Belstead.