§ 7.11 p.m.
§ Report received.
§ Clause 1 [Circumstances in which reporting restrictions may be lifted]:
Lord WIGODER moved Amendment No. 1:
Page 1, line 5, leave out ("For section 3(2)") and insert ("At the beginning of subsection (2) of section 3").
§ The noble Lord said: My Lords, Amendment No. 1 is a paving amendment for Amendment No. 2 and, with your Lordships' leave, I will address myself to the two amendments at the same time. As we now proceed to sail on to, I hope, the more placid waters of the prosaic details of this modest little Bill, there are amendments to be presented to your Lordships at this Report stage. They are amendments of some substance to the form of the Bill although they do not in any way alter its intention.
§ The first two amendments in fact substantially alter the structure of Clause 1 of the Bill and their object is to provide, in a situation in which some defendants on committal proceedings have elected that reporting restrictions should be removed and others wish them to remain, precise criteria by which the magistrates can decide those issues. I ought to say, in putting forward these amendments, that they have taken some little time to emerge since the Committee stage of this Bill. I am deeply grateful to the noble Lord, Lord Belstead, and to his colleagues in the department for their most invaluable help with the drafting of the amendments which are now before your Lordships.
§ These two amendments, as I say, alter the structure of Clause 1 of the Bill. The original draft of the Bill replaced Section 3(2) of the Criminal Justice Act 1967. The new amendments, as drafted now propose to leave Section 3(2) untouched, so that the new proposals are contained not in a replacement section but in a new section, Clause 3A, which is set out in Amendment No. 2.
The position is that, Amendment No. 2 being the substantial one, your Lordships
will see that the really substantial part of this amendment is subsection (1) of the proposed new Clause 3A. It deals there with the position where there is an application to lift reporting restrictions and where there is objection to that application. The test that is now proposed by these amendments is that set out towards the end of subsection (1) of the new Clause 3A:
… the Court shall not make the order if, after hearing the representations of the parties, it considers that any increase in the applicants' chances of securing an acquittal, a conviction or a lesser offence or a lighter sentence would be outweighed by a reduction in the objectors' chances of doing so; and in this subsection acquittal' includes a determination not to commit for trial".
§ The precise criterion has been the cause of some difficulty in the course of the progress of this Bill. As I originally drafted it, it merely suggested that the criterion should be "the interests of justice". There was considerable discussion about that and, as a test, it was criticised—I concede with some validity—because it was not precise and because it did not give sufficient assistance to magistrates in applying their minds to the problems that are posed, and also because "the interests of justice", as an expression, might be perhaps construed as applying to matters which are not strictly relevant to the actual proceedings with which the magistrates were concerned. Therefore the original proposal, "the interests of justice", came under some criticism, as I say.
§ At Committee stage, after much reflection, what was put forward was a modification of that and it was suggested that the justices should have regard to the necessity to secure "a fair trial" and that the benefit to the defendant making application was not outweighed by the disadvantage likely to be suffered by any other defendant relating to the trial.
§ That again came in for some criticism, because primarily the concept of "a fair trial" gives rise to a little difficulty in relation to this Bill. I think all of us know what "a fair trial" is, but on reflection it does appear that the concept of "a fair trial" might include matters which are not relevant to the decision that the examining justices would have to take. For example, it has been pointed out to me that the way in which the trial is conducted and whether, for example, the court was in any way biased, are mat 1578 ters that would have to be considered if one were asking: is this a fair trial? But that is not the sort of consideration the examining justices would have to consider in deciding whether or not to lift reporting restrictions.
§ Conversely, the real issue, as was made quite clear throughout the history of the Bill, when reporting restrictions are in issue, is the probability of an essential, a vital or a useful witness being traced. I think that on reflection it could properly be said that "a fair trial" can take place in the absence of a vital or a material witness. Therefore it is now proposed that the test should be the precise test set out in subsection (1) of the new Clause 3A. The magistrates consider, where there is a contested application, what is the increase in the applicant's chances of securing an acquittal, a conviction of a lesser offence or a lighter sentence. They consider what is the position in relation to the respondents', the objectors', chances in that regard, and they come to their decision accordingly.
§ Of course, as is provided in this subsection—and I am grateful to the Magistrates' Association for this proposal—the word "acquittal" includes a determination not to commit for trial. I would concede that my immediate reaction to that test, as it was drafted and suggested to me, was that it was perhaps a trifle cumbersome; but the more I reflected on it the more it appeared that, though it might appear to be a little cumbersome, perhaps that is something that arises out of the nature of the Bill itself and is not something that could properly be laid by way of complaint against the draftsmen. I now suggest to your Lordships—and I hope you will agree—that that is a clear and satisfactory test which the magistrates can apply. They will know what it is that they have to look for and how to deal with it.
§ I should draw the attention of your Lordships to the fact that there has been an alteration in this subsection from the previous proposals that were put forward, in that the onus has now been altered to this extent. In the extremely unlikely event that the magistrates came to the conclusion that the chances of the applicants and the objectors were precisely equal, they would allow the application and allow reporting restrictions to be 1579 lifted. Whereas previously, when we were talking in terms of the concept of a fair trial or the interests of justice, the onus had been put upon the applicants to satisfy the magistrates that it was necessary to lift the restrictions in the interests of justice or to secure a fair trial.
§ Again, it has been necessary to reflect with some care upon whether this was the fair and proper course to take. It seems to me, on reflection, and having consulted a number of my friends at the Bar, that this is the right way round to put it, for two reasons: first, because it is consistent with the way in which the original parent Act of 1967 is expressed, under which any defendant who wanted restrictions lifted had an absolute right to have them lifted; and, secondly, and perhaps more importantly, if the magistrates came to the conclusion that an applicant had made out a genuine case that it was necessary for his chances of securing an acquittal, a conviction of a lesser offence, or a lighter sentence that restrictions should be lifted, it is right that the magistrates should be slow to come to any other conclusion, and should come to such a conclusion only where the objectors had clearly made out that their case was stronger than that of the applicants.
§ That, therefore, deals with the main part of the only substantial amendment now before your Lordships, and that is new subsection (1). I should refer briefly to new subsections (2) and (3), which are also part of Amendment No. 2. The new subsection (2) replaces the original attempt in the Bill to ensure that, whether or not reporting restrictions are lifted on the committal proceedings as a whole, they shall continue to apply to the hearing of contested applications as if restrictions have not been lifted.
§ The reasons for that are, of course, obvious. During the argument—if there is an argument—as to whether or not restrictions should be lifted, there may well be matters said before the magistrates which it is clearly undesirable should be reported until the end of the proceedings. This amendment, as now drafted, will prohibit the reporting of any such matters until the proceedings are at an end, because the case is dismissed by the examining justices, or until the last of the defendants has been tried—if there 1580 is a committal for trial—and prejudice can thus be avoided. I should add that the last three lines on the first page of the Marshalled List simply make lawful the reporting of the facts as to whether or not restrictions have been lifted. That clearly can prejudice nobody.
§ The amendment continues over the page with a new subsection (3). That is, I think, a formal matter. The Bill as originally drafted did not include any transitional provisions. This includes the simplest form of transitional provision, by stating that the section would not apply to committal proceedings begun before the commencement of the Act. I hope that those amendments will commend themselves to your Lordships. I beg to move.
§ 7.25 p.m.
§ Lord MISHCON
My Lords, my noble and learned friend Lord Elwyn-Jones has asked me to apologise to the House, and especially to the noble Lord, Lord Wigoder, for the fact that he has been called away for an urgent appointment. I know that he would have wished, as we all wish, to thank the noble Lord, Lord Wigoder, for again having brought this Bill before us to deal with a matter which is obviously a very important one, and which was emphasised so much in a recent trial.
My only observations relate to the amendment which now finds its way into subsection (2) of the new Clause 3A. It is perfectly true that many of us were worried earlier about too vague a direction to a court, which had to decide on an application whether or not there should be publicity for a trial. I think most of us had in mind that there would very often be a lay Bench, and that they should be directed to a balance of injustices that might occur.
I must confess that I never had in mind that there would be a complicated formula which would make a very substantial hearing of an application of this kind. I now find, as your Lordships do, that what the court is expected to do, after hearing the representations of the parties, is to consider whether the increase,in the applicants' chances of securing an acquittal, a conviction of a lesser offence or a lighter sentence would be outweighed by a reduction in the objectors' chances of doing so".1581 Then they have to go on to consider whether or not there is any effect on the success of an application made, when there is no case to go to trial. It seems to me, with the greatest respect to the draftsman, that this is going to mean almost a trial of the proceedings before the application is itself properly dealt with.
I am making those observations only in the hope that before Third Reading there may be second thoughts in regard to this question. I do not propose to oppose the amendment as such, but there could be a simplification not only of the wording but of the onus put upon the court, many of us would feel a little more happy. At the moment, it is a very complex matter and we have listened with great attention to the explanation given by the noble Lord, Lord Wigoder. I hope that, on reflection, it can be simplified before the Third Reading.
§ 7.28 p.m.
§ The PARLIAMENTARY UNDER-SECRETARY of STATE, HOME OFFICE (Lord Belstead)
My Lords, I am grateful to the noble Lord, Lord Wigoder, for giving us another opportunity to consider this difficult question of how courts should decide between the competing claims of co-defendants, as regards the lifting of reporting restrictions in committal proceedings. And it is a difficult problem, as our debates so far have demonstrated. The two noble Lords who have spoken have not entirely agreed this evening, and this is the third draft to try to provide guidance to magistrates examining these applications. One thing, however, is certain, that no single solution which has so far been hit upon stands out as self-evidently the right one. Nevertheless, I very much welcome these amendments to which the noble Lord has spoken and, if I may, I will confine my few remarks simply to the effect of subsection (1) of new Section 3A of the 1967 Act.
The noble Lord, Lord Wigoder, referred to the doubts which were expressed in the previous stages of the Bill about whether a general expression, such as "the interests of justice", is too wide and whether it gives magistrates adequate guidance. If he will forgive me for saying so, I take a different view from that of the noble Lord, Lord Mishcon. It seems to the Govern 1582 ment that this amendment goes to the heart of the matter by attempting to focus attention on the critical considerations in contested applications. Moreover, there is a simplification, in that the narrower focus which this amendment represents should also encourage defendants themselves to confine their representations to the relevant considerations.
When we debated this Bill in Committee I ventured the observation that one of the questions which most troubled the Government was whether it would be reasonable to expect a court to arbitrate between arguments of a very different character and perhaps of different weight. I shall not weary the House by going over that ground again, but it is against that background that I particularly welcome this amendment and why I take a different view from that of the noble Lord, Lord Mishcon.
Lord Wigoder has referred to the fact that reference to "a fair trial", which figured in the amendment at the Committee stage, has now disappeared from the noble Lord's amendment. What this amendment seems to me to achieve is now a balance of like with like, cumbersome though the wording may be. The court is being asked to consider, first, whether the lifting of reporting restrictions would have any effect on the defendant's chances of securing an acquittal, conviction for a lesser offence or a lighter sentence; and if the court considers that a lifting order could have such an effect it must then weigh the beneficial effect for the applicant against the detrimental effect on the objector. In other words, the court is being asked to assign probabilities for two sets of circumstances which I suggest to your Lordships are comparable.
I would not for one moment pretend that this will always be an easy process, but the effect of the wording of the amendment is that guidance is being given to the examining magistrates that an application for the lifting of reporting restrictions will normally be granted unless the objector can show that he stands to lose more than the applicant stands to gain. I agree with the noble Lord who moved the amendment that this is the right way of placing the onus.
I think that this amendment is probably as near as we shall get to a balance be 1583 tween the conflicting interests of co-defendants and that it gives as much guidance as possible to the magistrates' courts who are going to be required to decide applications on the lifting of reporting restrictions.
May I add one last thing? As your Lordships may remember from the Second Reading debate, the Royal Commission on Criminal Procedure would wish to take into account in their deliberations any clear consensus of parliamentary opinion on this subject. I think it would be rash to predict that we have as yet reached a consensus of opinion. After all, another place has yet to consider the Bill; yet I am sure that the noble Lord's amendment should be accepted as being a very real improvement.
§ Lord WIGODER
My Lords, I am grateful to both noble Lords who have spoken. If I may say so to the noble Lord, Lord Mishcon, my immediate reaction was similar to his. Then I began to reflect on the amendment which the noble Lord, Lord Mishcon, had himself moved at Committee stage, in which he invited the magistrates to consider whether greater injustice would be done to the applicant by refusing such an order than to any other defendant by making it. The more I thought about it the more it seemed that the only form of injustice which the magistrates could properly consider was the injustice which is now set out in detail in the new amendment. I hope that on reflection the noble Lord will come to the view that the new amendment does meet the point that he has raised. It deals with the test which he proposed but in a rather more precise way and a rather more helpful way to the magistrates. In those circumstances, I hope that Amendment No. 1 will be accepted.
§ Lord MISHCON
My Lords, this is an evening during which many of us have been asked to reflect again. I, therefore, am pleased to reflect.
§ On Question, amendment agreed to.
§ 7.34 p.m.
§ Lord WIGODER moved Amendment No. 2:
(2) After that section there shall be inserted the following section—
Contested applications under section 3.
3A.—(1) Where in the case of committal proceedings relating to two or more defendants—
(2) An order under subsection (2) of section 3 of this Act shall not apply to reports of proceedings under this section; but any decision of the court to make or not to make such an order may be contained in reports published or broadcast before the time authorised by subsection (3) of that section.
(3) The foregoing provisions of this section shall not apply in relation to committal proceedings begun before the commencement of this Act.").
§ On Question, amendment agreed to.
Lord WIGODER moved Amendment No. 3:
Page 1, line 23, leave out subsection (1).
§ The noble Lord said: My Lords, this is a technical amendment. The Bill as previously drafted required, I think, a provision that the expressions used in the Act would have the same meaning as in the Criminal Justice Act 1967. The way that the Bill has now been redrafted writes a new section in the 1967 Act. Therefore the interpretation section in that Act suffices, and it is quite unnecessary to have a separate interpretation section in this Bill. I beg to move.
§ On Question, amendment agreed to.
§ Lord WIGODER moved Amendment No. 4:
Page 2, line 2, at end insert—
("() This Act shall come into force at the expiration of a period of three months beginning with the date on which it is passed.").
§ The noble Lord said: My Lords, this is a commencement provision which provides that the Act should come into force three months after the date of Royal Assent. Three months has been selected as what it is hoped is a reasonable time after the Act receives Royal Assent for advice to be given to courts as to the details of the new procedures. I beg to move.
§ On Question, amendment agreed to.