§ 6.44 p.m.1724
§ On Question, Whether Clause 5, as amended, shall stand part of the Bill?
§ The Earl of CORK and ORRERY
In spite of what my noble friend on the Front Bench says, I still regret to say that there is absolutely no point in the amendment to which the Committee has just agreed. I have said why I think it is useless, and I beg to move that Clause 5 be omitted from the Bill.
§ 6.34 p.m.
§ On Question, Whether Clause 5, as amended, shall stand part of the Bill?
§ Their Lordships divided: Contents, 9; Not-Contents, 11.1723
|Balerno, L.||Hale, L.||O'Brien of Lothbury, L. [Teller.]|
|Beswick, L.||Houghton of Sowerby, L.|
|Clifford of Chudleigh, L.||Monson, L.||Somers, L. [Teller.]|
|Abinger, L.||Glenkinglas, L. [Teller.]||Kimberly, E.|
|Buxton of Alsa, L.||Harmar-Nicholls, L.||Mottistone, L.|
|Cork and Orrery, E. [Teller.]||Inglewood, L.||Orkney, E.|
|Energlyn, L.||Kilbracken, L.|
On Question, amendment agreed to.
§ the temporary absence of my noble friend Lord Ardwick, would it be convenient for the House to adjourn for a few momments until he is found?
§ Lord DENHAM
My Lords, I think it would probably be for the convenience of your Lordships if this were to happen. Shall we say for five minutes?
§ Lord ELWYN-JONES
My Lords, I see that my noble friend has now entered the Chamber, in what might be called the nick of time.
Lord ARDWICK rose to ask her Majesty's Government whether, in legislating on contempt they will have regard to the findings of the Phillimore Committee on the tests that should be applied to determine whether a contempt has been committed and what the starting point of liability should be in civil and in criminal
cases. The noble Lord said: My Lords, may I have a moment to get my breath? I think I came from the Guest Room in five seconds flat. It is of course presumptuous in a House which contains the most eminent lawyers in the land for a lay Peer to put even an Unstarred Question, the most humble basis for a short debate, on such a difficult branch of the law as contempt. Indeed, contempt was described by the noble and learned Lord, Lord Rawlinson, in a previous debate as probbably the most complex of all subjects. Yet I feel it is necessary to do so. The law of contempt, says the Phillimore Report, falls short of the certainty it ought to have. And I quote:
this is especially true of those parts of the law which affect the press".
§ It is as a newspaper man that I speak: as a former editor who has trembled and, I fear, retreated before the uncertainties of the law. The contempt can happen to almost any of us. Indeed, even the saintly C. P. Scott once went to court with his pyjamas and his toothbrush, thinking he would not return to his office. Fortunately, the judge was Lord Hewart, who had been a leader writer of the Guardian, and he did not take too harsh a view of the mistake the Guardian had made.
§ As I say, I speak as a former editor, and I am, I should say, chairman of the Press Freedom Committee of the Commonwealth Press Union, but today I speak only for myself, though with the full encouragement of some journalistic colleagues. I trembled because in my earlier posts as editor or as acting editor I did not enjoy the advice of a resident lawyer specialising in contempt and libel, as I did later, when I was editing a national newspaper. Indeed, after an editor had been sent to prison and the Lord Chief Justice had said that the long arm of the law might stretch out now to directors, there was very generous provision for lawyers in newspaper offices. But in my early days I had to make my own decisions, and often they were hasty decisions. I had to take a risk or lose a story to a bolder competitor. But of course it is not just for the comfort and the convenience of editors that changes in the law of contempt are needed. The freedom of the press to give information is also the freedom of the public to receive it.1726
The late Lord Morris of Borth-y-Gest said in the last debate on this subject:
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".
§ The newspaper press of Britain operates under tighter restraints than any other press in the Western democratic world. There are some people who would welcome their wholesale removal. I am not one of those. I do not want to see trial by newspaper or, what is even worse, trial by the more emotive medium of television. What I and many others look for is an easing of the restraints where they chafe and inhibit most, and where it can be argued that those restraints do more harm than good. There is a maxim taught to every young reporter, "When in doubt leave out"; but what is a prudent course for novices is a pusillanimous one for mature editors. While they ought not to relax their care and vigilance, they should not be placed in unnecessary danger in carrying out their public responsibilities.
§ The Phillimore Committee spent over three years investigating how the law of contempt actually operates, and much of their time was spent looking in depth into the practical problems of ensuring that a proper balance is kept between the right of the citizen to a fair trial and the freedom of the press. The report was well received and the recommendations, if they were adopted by the Government, would bring a little more clarity to the law of contempt and would slightly tilt the balance towards the freedom of the press. When the noble and learned Lord, Lord Rawlinson, said he thought Phillimore had just about got it right, he was voicing a general view, and I hope the Government will tell us today that they share that view.
§ The report was published in 1974. Four years later my noble and learned friend the then Lord Chancellor presented a discussion paper to Parliament. It summarised Phillimore's arguments with great fairness, but it also seemed to the noble and learned Lord, Lord Gardiner, as if somebody in the office of the Lord Chancellor had been told, "Think out all the possible objections to the recommen- 1727 dations being made". That was a perfectly reputable course, but the impression one got from that discussion paper was that the Government of the day were not only cautious but possibly sceptical of one or two of the recommendations.
§ On the initiative of my noble friend Lord Lloyd of Hampstead, the Lord Chancellor's paper was debated in this House in December 1978, and it was a debate in which no lay Peer dared intervene, not even those with interests in the media. I was away at Strasbourg fighting for my country's lamb or something of that character, and my reason for raising the issue once again is that, since the last debate was held, we have a new Government and that new Government have undertaken to legislate at last on contempt.
§ It has been said that the decision of the Strasbourg Court of Human Rights has made legislation necessary. That court found that the House of Lords, in upholding an injunction to prevent the Sunday Times from publishing an article on the thalidomide tragedy, was in violation of the Convention on Human Rights, even though the purpose of the Lords' decision was to avoid prejudice to an impending action. That Strasbourg decision lies outside the narrow scope of my Question tonight, although it would be interesting to have even a hint of how the Government's mind is working on the problem that that decision poses. I believe it is unlikely that the Bill on contempt will be seen this Session, so I thought it would be useful if one could elicit not what the Government intend exactly to do—that would be an impossibly high ambition—but to learn their broad philosophic approach to the subject.
§ When I put the Question down there was some apprehension in Fleet Street that the Government might not be convinced of the wisdom of some of the Phillimore recommendations which the newspapers themselves would most warmly welcome, and a subsequent speech by the Attorney General to a joint meeting of the Law Society and the Guild of Editors gave a hint that there was some ground for such apprehension. For this brief debate I have tried to keep to the narrowest of paths. I do not wish to challenge the need for restraint on the interviewing of jurors or the purchase of witness's stories for publication after trial.1728
The first question I wish to put is whether the Government are broadly in accord with Phillimore in its proposal to change the test for contempt. The current test, it seems, is whether a serious risk has been created that the course of justice may be interfered with. The accent is on the word "risk"—what my honourable friend in another place, Mr. Arthur Davidson, described as a theoretical, tangential risk of prejudice that may be used to frighten an editor. Phillimore takes the accent of seriousness away from the word "risk" and puts it later in the sentence. The real evil, it suggests, is the risk that the course of justice will be seriously prejudiced or impeded. As the discussion paper pointed out:
The requirement of serious prejudice embodies in itself a significant narrowing of the scope of contempt, and a corresponding increase in freedom of publication".
§ It would be comforting if the Lord Chancellor were to say tonight that the Government accept this proposition. I have heard people claim—with what authority I do not know—that this in itself would bring us fairly closely into line with the Convention on Human Rights.
§ The next test is at what point in time the law of contempt should begin to impose strict liability in criminal proceedings. In England and Wales, we are advised, liability begins now when proceedings are imminent. The problem always is, how imminent is imminent? How does one measure future time? Phillimore found "imminence" generally to be unacceptably uncertain and an unnecessary inhibition on press freedom.
The committee said:
The evidence submitted to us is that this uncertainty has an inhibiting effect on the freedom of the press which is out of proportion to any value there may be in preserving it".
§ Instead, Phillimore suggested, liability should begin in criminal cases only when the court proceedings have formally begun; that is, when the accused is charged or a summons served. Of course, there is always danger of prejudicing a subsequent trial, even by what is published on the very day the crime is discovered, and one Scottish judge believed that liability should begin as the police begin their investigation. That is obviously too early.1729
§ But is the Phillimore recommendation dangerously late? There are fears that this is the view the Government are now taking, for according to the legal correspondent of the Daily Telegraph, the Attorney General, at the conference to which I have referred, indicated that the Government intend to substitute for the test of "imminence" a provision that risk of contempt in pending criminal trials will run from the time an accused is arrested or a summons or warrant is issued.
§ This is one of the two feasible alternatives put to Phillimore. The committee conceded that the later date at which liability might begin had one obvious disadvantage; it would allow fairly unrestricted comment during a police search for a wanted man, although that search might culminate at any moment in an arrest and subsequent charge. And yet, the committee point out in firmly rejecting that solution, a warrant for arrest is usually issued in private and even an actual arrest might not, for good reasons, immediately be announced by the police. The press then might not know that they were at risk. Suppose the wanted man was never found. Suppose he got away with the swag to South America. Publicity would at least theoretically be restricted so long as the warrant for his arrest remained in being. In some ways the Attorney's proposed new rule could be more restrictive than the present one of imminence. One wonders what the police, who often call on the press for help, think of making the issue of a warrant the point of commencement.
§ When we come to the question of where liability should begin in civil cases, the layman—and perhaps the lawyer, too—sends for wet towels to put around his head. So I shall fall back on the discussion paper for its neat summary. The Phillimore majority recommendations are that liability should start when an action is set down in the superior court, though it may be nine months before the case is heard, and that in other cases it should start from the date on which proceedings are commenced. This has at least one great virtue: a later starting point, and so more freedom of comment. Its drawback is that of having different rules for different 1730 proceedings and possible confusion over interlocutory proceedings.
§ There are some who would like an even later date if there was such a discernible point in time, but it seems that there is not. There are others who would like liability to begin earlier—that is, on the date on which main proceedings are begun. This, it is argued, would not be too onerous if the test for contempt were narrowed in the way that Phillimore recommends. I myself should like to see the Government stick to Phillimore. There is no solution of this general problem of contempt which does not throw up very strong arguments both for and against. There is this to be said for Phillimore: that the committee did look deeply into the practicalities; that it carried out quite enormous research; that it did receive a massive amount of evidence, written and oral; and that, moreover, it was a committee of high competence.
§ My Lords, there are two tendencies at work in society today. One is a growing distaste for the media—as though they were responsible for the evils that they report to us. The other is a kind of public determination to accept fewer limitations on the freedom of expression. The restraint on the media, the need to ensure a fair trial, and the public need for information all have to be kept in delicate balance. Phillimore gets it just about right, and I hope that when the Government come to legislate they, too, will get it just about right.
§ 7.2 p.m.
§ Lord WIGODER
My Lords, those of us who are participating in this short debate will, I believe, first want to express our gratitude to those noble Lords who abstained from voting in the previous Division. That has precipitated this discussion at a somewhat earlier hour than might otherwise have been the case. Your Lordships will also want me to thank the noble Lord, Lord Ardwick, for enabling us to discuss this important matter yet again, and yet at a time which is of very great importance. There have over the years been frequent discussions of the issues involved in this Unstarred Question. The history of the matter is known to your Lordships. In the past 10 years the question has dragged a rather weary way—from 1971 when the Phillimore Committee was first established, 1731 to 1974 when it reported, to the years of discussion between 1974 and 1978, and eventually to the issue of the Green Paper in 1978.
That has been followed by an indication in the last gracious Speech that there will be legislation in the near future, and perhaps it would be helpful if the noble and learned Lord, when he replies to the debate this evening, is able to indicate whether there is still to be an opportunity for such legislation to be introduced in this Session, despite the very crowded nature of the parliamentary timetable. I mention that point only because if it now appears likely that the introduction of a Bill will have to wait until the next Session, no doubt the noble and learned Lord on the Woolsack will bear in mind that this is the kind of measure that might be peculiarly suitable to be introduced into your Lordships' House at the beginning of a Session.
The delays in this matter have been very long since the Phillimore Committee was set up. It is tempting—and on previous occasions I have indeed been tempted—to suggest that in a way the routine method by which we deal with difficult problems in this country is that we appoint Royal Commissions or committees, we then have Green Papers and unlimited discussion, and thus decisions can be avoided altogether. I am not entirely sure that that is a fair comment in relation to this particular problem, because I believe that the more one goes into it, the more difficult some of its ramifications appear to be. The importance of this discussion this evening, and the reason why we are particularly grateful to the noble Lord, Lord Ardwick, for raising the matter, is that it gives what may be a final opportunity for comment in your Lordships' House on the issues that are raised, before the Government prepare the Bill which they have promised to bring forward.
The problems are clear. First, there is the clash of two important principles, the clash of right against right, the conflict that may arise between the freedom of the press, its right not only to report, but to investigate and uncover, and to probe; and the quite different, but equally important, right that the administration of justice should remain pure, unsullied and untainted from outside sources.
1732 I hope that this is perhaps an area into which commonsense can enter and that lawyers will not be over-sensitive about possible fanciful risks to the administration of justice. I hope, too, that lawyers will not seek to overestimate or to exaggerate the effect which possible press comment can have, particularly on juries in criminal trials. Certainly my own experience, and I think that of many of my colleagues, is that juries, once a trial begins, are much less susceptible to outside comment than is sometimes popularly supposed, and that if they are directed, as of course they are where there is such comment, to put out of their minds all matters except the evidence actually given in court, they are able to do that with very remarkable success.
The issues raised by Phillimore and by the Green Paper are many and varied, and if I may say so, the noble Lord, Lord Ardwick, has, most helpfully, concentrated this evening on only two of the principal issues upon which it might be helpful to make merely the odd comment. The first issue that the noble Lord raises is the test of contempt, by which I assume he means, as appears from his observations, what is to be the definition of the strict liability for contempt of court. The noble Lord has mentioned to your Lordships the definition that was proposed in the Phillimore Committee's report—that there must be a risk that the course of justice will be seriously impeded or prejudiced—and as far as I can see that proposed test has not met with any disapproval from any responsible organisation. The Phillimore Committee propose that that test should be made statutory. That proposal has received widespread support, and I hope that the noble and learned Lord on the Woolsack, when he replies to the debate, will be able to indicate that there are no real problems with regard to the test proposed by the Phillimore Committee.
The other issue which the noble Lord raises is a much more difficult one; it is the issue as to the time from which strict liability should run in criminal and civil proceedings. I know even less about civil proceedings than I know about criminal proceedings, and I wish to concentrate very much on the criminal side of the matter. In criminal proceedings the issue is raised at perhaps its starkest. At one moment the press is performing the most 1733 invaluable of public services. It can be uncovering crime and corruption in high places, which sometimes it may be able to do better than can the ordinary machinery of law enforcement.
Indeed much is owed in recent years to the investigative journalism carried out by the serious press in this direction. That function is invaluable; and yet, all of a sudden, a moment comes when, if the press continue to probe and to comment, a fair trial becomes impossible for the very people who have been uncovered by the activities of the press. It is therefore of crucial importance, I think, both to the press and to those who are interested in the proper and fair administration of justice, that, if possible, there should be a precision about the point at which what is at the one moment desirable suddenly becomes totally undesirable.
The difficulty is that this precision is not as easily obtainable as one would hope. The present position, as the noble Lord, Lord Ardwick, has indicated, is that, in criminal proceedings, strict liability for contempt appears to run once proceedings are imminent. The noble Lord has pointed out the difficulties to which that expression has given rise, and the problems as the Phillimore Committee explained them. There is the second proposition, which is the one which was put forward by the Attorney-General recently, which appears to be that the time should run from the moment when an accused person is arrested or a summons or a warrant is issued. In relation to that point, comment has been made, quite rightly, that of course it may not be known when an arrest has happened; and, indeed, that a warrant, when issued, may run indefinitely—for years, indeed—before the particular person is arrested.
I see, of course, the difficulty that is levelled against the proposal made by Sir Michael Havers; and yet I think it must be borne in mind that if absolute precision is not possible, the press may on occasions act where an accused person has been arrested and they do not know of the fact. This, I think, would not make them necessarily liable, because, as the Green Paper points out, and quite rightly so, there is in Section 11 of the 1960 Administration of Justice Act a defence to the media if they find themselves involved, 1734 through ignorance, in publishing matters unaware of the fact that, for example, a person has been arrested. The alternative proposal is the one which was put forward by the Phillimore Committee and which the noble Lord, Lord Ardwick, appears to favour. That is the one in which the time is said to run from the moment when a man is charged or when a summons is served. That has the very definite advantage of being precise and clear. On reflection, perhaps, I think it has something of a disadvantage in that it may be so late in the process of the criminal courts that it may encourage publication of matter at a time when it is in fact bound to prejudice the fair trial of a person.
I have in mind, for example, the provisions of the Prevention of Terrorism Act. There, a person can be arrested, questioned and detained for five days, or even longer in appropriate circumstances, before he is in fact charged. Under the Phillimore proposals—and, of course, I do not think the Prevention of Terrorism Act was in force at that time—throughout that period of time it would be open to the press to comment quite freely on the particular person who has been detained, on his previous activities and on all the surrounding information relating to the alleged offence that the press can find; and this, I think, might give rise to very real difficulties when it came to the fair trial of that particular person. Equally, the Phillimore Committee's proposal about a summons, that it should run from the date of the issue of a summons, can again, I think, give rise to serious difficulties. An offence can be discovered by the press, indeed, or by the police, it can be written up at length and it can be known that a summons has been applied for, and yet, if Phillimore is to be adopted, it would mean that comment could continue quite unfettered after the summons has been granted until such moment as, by chance, the police are able to serve the summons on a particular defendant.
It may be, on reflection, that the Phillimore Committee's proposals, although they have the very great virtue of precision, have the disadvantage that they put the time back so late that they will encourage comment in ways that may seriously prejudice the administration of justice. It may be—and I do not always say this when I address your Lordships' House—that perhaps the proposals which the 1735 Government appear to have in mind, if Sir Michael Havers was correctly reported, have something to be said for them because of the difficulty in any alternative propositions. I have dealt almost entirely with the question of the time from which strict liability runs in criminal proceedings. In civil proceedings it is perhaps of very much less consequence. There are very few jury actions, and it may be that contempt is a rather academic proposition in cases in which juries are not concerned. But the proposal there that contempt should run from the time when the proceedings are set down does not appear to give rise to any very real difficulties.
Perhaps I may, in two sentences, be out of order and ask the noble and learned Lord on the Woolsack about two other matters which are not specifically covered by the terms of the Unstarred Question: first, whether it is right that the Government are contemplating including in their legislation proposals to deal with the situation where jurors disclose information about what has taken place in the jury room during a criminal trial or at the end of a criminal trial; and, secondly, whether the Government are contemplating including in the legislation proposals to deal with contingency payments to witnesses, which has been something of a blot on our system of justice, perhaps, in recent years. My Lords, we are grateful indeed to the noble Lord, Lord Ardwick, for raising these matters, and we look forward with great interest to the observations in reply from the noble and learned Lord in due course.
§ 7.18 p.m.
§ Lord LLOYD of HAMPSTEAD
My Lords, I, too, should like to express my gratitude to my noble friend Lord Ardwick for giving us this opportunity to discuss this topic. I say that particularly as I was responsible for initiating the earlier discussion, which took place in December 1978. Time seems to pass in these matters; year succeeds year, and yet we still find that nothing has been implemented. It is fair to say, I think, in relation to the time of our previous debate, that we were all awaiting, perhaps with some apprehension, the outcome of the Sunday Times thalidomide case, which was then before the European Court of Human Rights. I 1736 say it was with some apprehension because I think what was apprehended was not so much that that court might disagree with the view that the House of Lords took of the particular circumstances in the thalidomide case but rather because it was feared that the Court of Human Rights might possibly take a view adverse to the strict system of control over what has been called trial by newspaper that had been so skilfully and valuably developed by our common law judges.
In the event, however, we now have the judgment, which was delivered as long ago as March 1979, and we have now ascertained, of course, that that court did not reach a decision which in any way cast doubts on the validity of our desire to control trial by the mass media. In fact, that decision could be said to have come within a very narrow compass. It was a decision of 11 judges against nine. The view that the majority took was that, within the margin of appreciation which was allowed to the national courts under the convention, nevertheless the House of Lords in applying its test of whether the issues had been prejudged by the publication in the Sunday Times had not adequately appreciated the relevant circumstances. The Court of Human Rights, examining those circumstances, came to a different conclusion. I do not wish to weary your Lordships with details of the findings of the court which, as the case has been fully reported, are readily available. I suggest that we do not need to quarrel with what was a very moderate judgment and that really the only question is how best we can ensure, so far as it can be ensured, that there is less likely to be any conflict between the decisions of our own courts and any subsequent applications to the Court of Human Rights.
The Phillimore test, which has been referred to earlier by the two noble Lords who have spoken, I do not need to repeat. That test has been widely applauded and I should have thought that if it were adopted into legislation it would go a long way towards precluding any likelihood of disagreement between the decisions of our courts in the future and a possible decision of the Court of Human Rights.
However we modify our law in this respect, one must always bear in mind that there is no way in which we can 1737 ensure absolutely that there will be no conflict in future between our courts and the Court of Human Rights. The margin of appreciation will always remain as between the two tribunals, and even if we were to adopt—as some have argued not necessarily in this particular context but in the general form that we should adopt the actual words of the convention by incorporating it into our law, we should then have the issue to be decided by our courts; namely, whether a restriction on freedom of speech was necessary in a democratic society for the purpose of maintaining the authority of the judiciary.
I think that it would be difficult to dispute the point that such a rule would provide no firm criteria whatsoever for a national court to decide an issue of this sort. From the point of view of our courts, this might well not be regarded as a genuinely justiciable issue at all—particularly in regard to what is necessary in a democratic society. I venture to suggest, therefore, that it would be far better for our law to follow Phillimore in modifying the test to be applied on the lines that Phillimore suggested and then leave it to the Court of Human Rights to say, in accordance with their particular articles under the convention, whether in any subsequent case, any marginal case, our courts had conceivably reached a decision which was not in total accordance with the Convention of Human Rights.
As I have already said, I think that if that change were made in our law, the prospect of any future disagreement between the two tribunals is minimal. The really crucial point is that, far from having cast any doubt on the validity of our approach in controlling the mass media where trials are involved, the Court of Human Rights made it clear that, in general, our law of contempt fell within the scope of what was permissible within the convention; so that only a very marginal change (if any) needs to be made in our law to bring the two into line. Also, I think it is a fair point to make that there is a good deal of difference between a civil trial and a criminal trial and the need for a severe measure of control by way of the law of contempt in civil cases is probably a good deal less pressing than in the criminal sphere—although I would rather doubt, despite the views that have been expressed in 1738 some quarters, that we should be justified in eliminating this control altogether; and, certainly, Phillimore was not in favour of so doing.
I wish to add only a very brief word to the further issue, which is the question of the appropriate starting point for liability. In the case of civil trials, Phillimore suggested that the best course to adopt would be to take the date when an action is set down for trial as the date when the law of contempt would come into operation. That is something which would create a number of difficulties, many of them of a rather technical character, but the fact of the matter is that if one is to choose a point of some certainty, it is difficult to see what other date one could reasonably suggest. Mr. Robin Day in his interesting dissenting note to the Phillimore Report suggested taking some date such as two weeks before the actual trial; but this, again, is a matter which would create probably even more considerable technical difficulties than the date of setting down. Therefore, on the whole, Phillimore in this, as in so many other matters, probably reached the right conclusion.
In regard to criminal cases, I would wish to say very little indeed. I listened attentively to the way in which the noble Lord, Lord Wigoder, put his various arguments on this matter. I think that anyone listening to the way he presented it would agree that it is an extremely difficult matter to determine. There are advantages and disadvantages on both sides. I confess that I personally lack sufficient experience in regard to criminal matters to be able to evaluate this controversy to a sufficient degree to express a firm view either way. The only suggestion that I would make in conclusion is that it is desirable, at any rate, that some clarification be made of the existing position, which is admitted to be very unsatisfactory. Whether it be on the lines that Phillimore suggested or in the way in which, apparently, there have been some indications that the Government may be thinking, I think that few would dispute that, by either method, the present state of the law would be considerably improved.
§ 7.30 p.m.
§ Lord GARDINER
My Lords, this has always been a very troublesome subject and I am indebted to a publication of the 1739 Writers and Scholars Educational Trust, in association with the British Institute of Human Rights, for a review not only of the subject as a whole but with special reference to the thalidomide case. Although a former chairman and former governor of the latter, I have had nothing to do with the publication. It reminds us that it was in 1785 that the great Erskine said:By this proceeding the party offended is the judge; (he) creates the offence without any previous promulgation; avoids the doubtful and tedious ceremony of proof, by forcing the Defendant to accuse himself (i.e. without indictment or jury); and inflicts an arbitrary punishment which if not submitted to and reverenced by the nation as law (i.e. through parliamentary enactment) is to be the parent of new contempts to be punished like the former.In 1798 another legal commentator asked:To what purpose was it to destroy the Star Chamber if it was intended that the House of Lords should exercise the like arbitrary power?Mr. Gladstone promised to introduce a Bill, which he did in your Lordships' House. But it had to be withdrawn in the other Chamber because of the pressure of Irish affairs. Other Bills were introduced in 1889, 1892, 1894, 1896, 1901, 1902 and 1908. In April 1906 the House of Commons passed a resolution that:The jurisdiction of judges in dealing with contempt of court is practically arbitrary and unlimited and calls for the action of Parliament with a view to its definition and limitation".A similar resolution was passed by them two years later. Everybody was then overcome by all that initiative and practically nothing happened until the Justice report in 1959. That resulted in two improvements recommended by Justice: namely, first, a defence of innocent dissemination; and, secondly, that there ought to be a right of appeal.
Then we had Aberfan and the Salmon report and a White Paper was produced. There were Private Members' Bills which again failed. At long last, the Phillimore Committee was appointed and reported. Then—and I had forgotten this—in July 1977 there was the final report of the Royal Commission on the Press. Referring to the general welcome extended to the Phillimore Committee's recommendations, it said:They would provide an acceptable and perfectly practical solution to the potentially conflicting requirements of free reporting, fair and unprejudiced legal proceedings and certainty as to what the law is. We wish only to stress the desirability of early action to clarify the law".1740 Just as today we are indebted to my noble friend Lord Ardwick for enabling us to consider this question again, so in 1978 we were given that privilege by my noble friend Lord Lloyd of Hampstead. In that debate, the noble Lord, Lord Lloyd, indicated that regarding the test he would accept the Phillimore recommendation but was rather more doubtful about the starting point. The noble and learned Lord, Lord Rawlinson of Ewell, speaking I think from the Conservative Front Bench, said (at column 339 of Hansard of 7th December 1978):This very powerful committee spent three and a half years on the matter. It was the subject of detailed and thorough study—much greater study than can be given by learned judges who have to face this problem now and then (fortunately not very often) when a case of contempt of court appears before them. I, like the noble and learned Lord the Lord Chancellor, appeared before the committee as a witness and I can testify to the care and penetration with which they probed the problem. Their conclusions, therefore, must surely bear the greatest weight. The onus is upon those who reject their conclusions to establish the reasons why their conclusions should he rejected.In conclusion, he said:So I consider that in modern times we should accept the main Phillimore majority recommendations".The noble Lord, Lord Widoger, in substance said the same and so did I. The recommendations were supported by the noble and learned Lord, Lord Denning; Lord Morris of Borth-y-Gest, was more doubtful as to whether legislation was really necessary. The noble and learned Lord, Lord Fraser of Tullybelton, preferred with regard to the time the Scottish position to the English position.
My noble and learned friend Lord Elwyn-Jones told us that the Government had not yet made up their minds. They had very helpfully published a Green Paper putting forward every possible objection to everything that the committee had recommended, which was a great help to us because this meant we had all the possible objections in our minds when we came to the conclusion that the Phillimore Committee were right. As the noble and learned Lord made clear, the Government had not yet come to any conclusion in the matter. He said—obviously rightly—there were two things we had to wait for before coming to a final conclusion: one t was the expected report of the Law 1741 Commission on offences relating to interference with the course of justice; and the other was the decision of the European Court of Justice in the thalidomide case.
I have read the Law Commission's report on offences relating to interference with the course of justice. Subject to the judgment of those who may follow me, it has not assisted me very much. It deals almost entirely with peripheral offences relating to interference with the course of justice, hardly at all with the question of contempt of court, and not at all, as far as I could see, on the only two parts of that which are raised by the Motion before the House.
So far as the decision of the European Court of Human Rights is concerned, they were obviously very familiar with the position here, including the Phillimore Committee's Report. They themselves pointed out that even the Green Paper seemed also to have been familiar with it. It does not differ from the main recommendations in question tonight of the Phillimore Committee. On the actual point at issue, their final conclusion was, in substance, to say, after dealing with the facts of the thalidomide case:The question of where responsibility lay in this kind of tragedy was a matter of public interest and did not cease to be so merely because the facts formed the background to pending legislation. The article may have obliged Distillers to comment in advance of their case, but may also have prevented unenlightened speculation. In these circumstances the court concluded that the restrictions did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression. The reasons for the injunction were therefore insufficient and the restraint was not proportionate to the legitimate aim pursued by the House of Lords and was not necessary in a democratic society for maintaining the authority of the judiciary: There has accordingly been a violation of Article 10.'".My Lords, I am sure that we shall all he most interested to know what the view of the noble and learned Lord who sits on the Woolsack is as to the bearing of the two questions before the House on the decision of the European Court. May I say that my noble friend Lord Janner, whose name appears upon the list of speakers, is unfortunately detained elsewhere. He has asked me to say that there is a report, of which he has given me a copy, from the Law Society on the report of the Phillimore Committee.
1742 As far as I have been able to see, on the only two points before the House, they accept the first, which is the Phillimore recommendation as to what the test should be on what constitutes contempt, subject to the fact that they would like some provision making it clear that the defence does not apply to a publication which is specifically forbidden by some other part of the law. Secondly, they accept the proposed starting point. The report also deals with a lot of other matters in relation to contempt and the Phillimore Report, but they are not either of the two questions which alone are raised by the Motion before the House. Therefore, as far as I am concerned, I remain a Phillimore man. I thought it was an extremely good report and I would hope very much that, on the only two points raised in the Question before the House, we shall come to the conclusion that the Government should implement the recommendations of the Phillimore Committee.
§ 7.41 p.m.
§ Lord JACOBSON
My Lords, may I join in expressing gratitude to my noble friend Lord Ardwick for giving us the opportunity of this debate. Like him, I have edited national newspapers. So far as I can remember, I have not been involved in contempt proceedings, but I put that down to good luck rather than good judgment. What worries editors about the aspect on which I should like to speak tonight is that no responsible journalist wants to see trial by the media or to see all restrictions on reporting and comment swept away: certainly not. But what worries editors most is the imprecision of the law as it stands. Not even the highly competent lawyers who advise editors can, in my experience, do more than explain the dangers of walking across a minefield where even the sappers who laid the mines have forgotten where they are. In Scotland, of course, the mines are laid even more thickly than in England or Wales.
The second main worry is the waywardness with which the law, it seems, is applied. As the Guardian newspaper pointed out on 3rd March 1980:The police themselves are frequently in breach of it (or at least abet breaches by newspapers and television) when they release names, photographs and other details of a person sought for questioning whose hearing in court may subsequently be prejudiced1743 The Guardian added:In civil cases there are serious conflicts between what the public interest may require and what silences either plaintiff or defendant should be able to rely on for a fair trial".The Phillimore Committee came to the conclusion that the law as it stands contains uncertainties which impede and restrict reasonable freedom of speech; and that the law as it stands contains uncertainties which impede and restrict reasonable freedom of speech, and that the law should be amended and classified by statute so as to allow as much freedom of speech as is consistent with the basic purpose for which the law of contempt exists. That surely is the nub of the matter.
In regard to the area which most affects the daily production of newspapers, the starting point in criminal cases of liability, Phillimore recommended that contempt should apply from the moment a suspected person is charged or a summons served. That is precise and free from ambiguity and, from the point of view of journalists and the police, it is a workable arrangement. It appears that the Attorney General has it in mind that contempt in criminal cases should be applicable from the moment a summons or warrant for arrest is issued or an arrest is made. This formula seems to me to create new uncertainties and difficulties. It was considered by the Phillimore Committee and rejected on the grounds that a warrant for arrest is usually issued in private, and even an actual arrest may not be immediately announced by the police, for very good reasons. Newspapers may not be told by the police, when they inquire, whether a warrant has been issued or an arrest made, and so they would not know whether or not they were at risk. In my experience, it is a great deal easier to establish whether a charge has been made.
May I briefly refer to another recommendation in the Phillimore Report. Section 41 of the Criminal Justice Act 1925 prohibits the use of cameras in courts and their precincts. The prohibition of cameras in court is of course unarguable, but the definition of "precincts" is a source of some uncertainty and sometimes of friction between photographers and the police. The report suggested that a map or plan should be displayed, wherever 1744 practicable, indicating the boundaries of the precincts of the court. That would be useful and I hope that when there is legislation this recommendation will be included.
As other noble Lords have pointed out, it is five and a half years since this report was published. It is one of a number of reports on defamation, on official secrets and on other things relating to the press. The only progress we have had so far is represented by this useful discussion document. Successive Governments come in, professing the best of intentions in regard to the freedom of the press, and they go out having done precisely nothing. It sometimes makes those of us who are or have been journalists wonder whether the respect that politicians profess for a free press in a democratic society really exists. Here we have a report, to my mind a cautious report, that has had the approval of the vast majority of the press, of the Press Council, the Guild of Newspaper Editors and of outstanding legal minds on both sides of the House. May we hope that when the noble and learned Lord on the Woolsack rises he will have some words of cheer for us.
§ 7.47 p.m.
§ Lord McGREGOR of DURRIS
My Lords, my noble friend Lord Ardwick has given us the opportunity to discuss where we should draw the line between the freedom of the press to contribute information and comment to public discussion and the constraints upon publication necessary to ensure the fair and proper administration of justice. Justice requires that a trial should not be endangered by prejudicial publication. Freedom of expression requires the minimum practicable uncertainty about the legal constraints upon publication which have to be observed. As the noble Lord, Lord Wigoder, pointed out, these "public goods" are of crucial importance to all citizens and not only to lawyers, newspaper men and broadcasters.
In so far as the terms of reference of the Royal Commisson on the Press appointed in 1974 related to the independence and editorial standards of the press, the Commission ought to have examined the law affecting the press. However, as my noble friend Lord Jacobson has said, the committees on privacy, the 1745 Official Secrets Act 1911, contempt of court and defamation all reported between 1972 and 1975, and the Royal Commission could not have traversed the same ground as had been covered by these expert committees. Their report of 1977, therefore, went little further than to make two general observations.
First, they urged on the Government the importance of acting with all possible speed and publishing a single Green Paper, or a White Paper with green edges, setting out their policy on all the recommendations of all the committees. The remits of these committees are closely related and bear directly on freedom of expression and hence on the freedom of the press.
Public discussion among experts and laymen was called for by the Green Paper on Contempt of Court published two years ago. Apart from the unhappy Bill on official secrets, this Green Paper has offered the only glimpse of a Government's thinking or policy on any of these matters. This is a sad comment on the official reception of the labours of hard-working committees. May we expect a response from the present Government to the Royal Commission's hope for a more general statement of policy that will include, but go beyond, the report of the Phillimore Committee?
All noble Lords who have contributed to this debate have pointed out that where we draw the line, between the proper administration of justice and the freedom of the press, turns on two issues of finding an acceptable test of contempt. All noble Lords who have spoken have agreed that the test recommended by Phillimore is sound, is justiciable and will meet the necessary requirements both of the administration of justice and of the press and broadcasting.
The other test which has to be considered is where in the legal process should be the starting point for strict liability. As a layman, I found the discussion on this, both in Phillimore and in the Green Paper, very confusing. Different starting points were proposed—the issue of a writ, the setting down for trial and various other proposals. All appear from the Green Paper to have more or less weighty disadvantages. I should have liked to be able to make a choice with information— 1746 its absence from the Green Paper disappointed me—about the quantitative consequences of different choices. For how long would the Press be constrained, if the starting point was the setting down or the issuance of a writ? I hope that when the recommendations of the Phillimore Committee, or some alternatives, come up for legislation, we shall be provided from the criminal and civil judicial statistics with that kind of information.
One issue which was touched upon, at least in its history, by the noble and learned Lord, Lord Gardiner, seems to have had almost no discussion at all. I refer to the court before which newspaper men or broadcasters, arraigned for contempt of court, are brought. As I understand it as a layman, we have a very curious procedure. Whoever is arraigned goes before the Divisional Court, the evidence is all given by affidavit, the court has in its armoury very severe sanctions—imprisonment and sequestration of property—yet those penalties are imposed after a trial from which, again, as I understand it, all the criminal safeguards are missing. There is no cross-examination of witnesses and the like.
The issue in such a case should, in every instance, go to the heart of where you draw the line between the two public goods which affect vitally the whole community. This seems to me to be a matter not for lawyers only but for ordinary citizens, and I should like to see such trials taking place in a criminal court, perhaps in the Crown Court, under ordinary criminal procedure, before severe criminal penalties are inflicted. But what matters in this field, as my noble friends who have extensive experience of editing national newspapers have pointed out, is that there should be certainty. Where there is uncertainty, we must have a half muzzled press. I therefore hope that the Government may be able to give us some expectation of future legislation in this area.
§ 7.57 p.m.
§ Lord ELWYN-JONES
My Lords, the House will be grateful to my noble friend Lord Ardwick, speaking as an editor and journalist of great experience—as is my noble friend Lord Jacobson—for introducing this debate this evening on the law relating to contempt of court.
1747 The speech of my noble friend Lord Ardwick had the great quality of not being dogmatic, and conceded that on at any rate some of the issues that we have been discussing the arguments are nicely balanced.
The broad balance that has to be struck in this field is between freedom of speech, which of course includes freedom of the press and of the media and, on the other hand, the right of the citizen to a fair trial. Perhaps the journalist is inclined to attach more importance to the first proposition, and the lawyer rather more importance to the second proposition, than the other side is prepared to accept. But what I think has clearly emerged from our debate is that it is generally conceded that there is need for a law of contempt, and I believe it is further conceded that it is desirable that it should have a statutory framework.
When we discussed the matter in December, I think it was the late Lord Morris of Borth-y-Gest who alone repudiated the need for any statutory change at all, and took the robust view that the common law and the wisdom of the judges could deal with the matter. But that, I think, was a minority view. Certainly, I agree that there should be a statutory framework, and I can only regret that during my term as Lord Chancellor I was not able to introduce legislation to achieve it. Whatever legislation is introduced, I doubt whether it will achieve complete certainty in a field where the arguments are so balanced. On the form the legislation should take, I think there is common ground that what is needed is trimming and, where appropriate, restricting the scope of the common law, rather than attempting to codify the law of contempt altogether in a statute.
The first issue that has been stressed is what test should be applied to strict liability for contempt. I certainly agree with the proposition which was advocated by the Phillimore Committee that the emphasis should be shifted so that publications would be caught only when the potential prejudice or impediment to the administration of justice is serious. I think that that change will be helpful to our friends in Fleet Street. I supported the proposition in the debate in December 1748 1978, and it will surprise me very much if tonight the noble and learned Lord the Lord Chancellor does not support it also. I think we can at any rate start with that ground. It should go some way towards reducing the feeling and actuality of restraint which my noble friends, who have had experience of the press, have emphasised. The effect of that alone would enlarge the area of press freedom and make the boundaries of that freedom less uncertain.
The main discussion in our consideration of the matter this evening has been the starting point for strict liability for publications which may cause serious prejudice to civil or criminal proceedings. I concede that the present position is not wholly clear. For a long time it has been assumed, on the basis of judicial decisions, that there may be strict liability where proceedings are imminent. When we considered the matter in December 1978 there was almost unanimous support for a fixed starting point, and I agree. There is, however, a division of opinion as to whether it should be the Phillimore recommendation; namely, that the starting point should be when the accused is charged, or whether we should follow the moment selected by the High Court of Justiciary in Scotland in the case of Hall v. Associated Newspapers Limited,. namely, the time when the accused is arrested or a warrant is issued. That case, incidentally, enlarged quite considerably the scope of freedom, if that is the right word, of the Scottish journalist in relation to what had existed before.
But whichever of these formulae is chosen it would be an improvement on the imminence test. If the date chosen were the date when the accused is charged, as the Phillimore Report has recommended, and not the date of the issue of a warrant for his arrest, it would follow—and my noble friend Lord Ardwick has conceded this—that it would allow unrestricted and possibly seriously damaging comment during a police search for the wanted man which might culminate at any moment in his arrest and charge, and that there would be a risk of damage to the accused by the kind of prejudice that we are considering.
On the other hand, as again my noble friend has pointed out and as, indeed, the report pointed out, a warrant for arrest—this is one of the difficulties of the propo- 1749 sition—is usually issued in private; and even an actual arrest may not, for good reasons, be immediately announced by the police. It was put to me when I was Attorney General that in these circumstances the press might not know whether they were at risk, but I would venture to make the point that if a newspaper were made the subject of contempt proceedings, in those circumstances the defence of innocent publication or distribution would he, and certainly ought to be, available to the publisher if he could show at the time of publication that, having taken reasonable care, he did not know and had no reason to suspect that proceedings were active. I wonder whether my noble friends who have expressed concern about this matter have weighed in their minds the value of that protection to them, even if there were a disposition to move from the Phillimore test to the test of the Scottish courts.
The question of the starting point in civil proceeings has been raised, and my noble friend Lord McGregor of Durris has asked a question which it may well be the noble and learned Lord the Lord Chancellor can answer; namely, what the time factor will be between the period of setting down for trial and the trial proper. I am afraid that it would be very difficult for any statistic to provide any firm answer to that question. Circumstances will vary from case to case.
There is constant pressure to reduce the time. A good deal of success has been achieved but I am afraid that it will not be possible to give a precise answer. However, the Phillimore Report recommended—and I agree with the recommendation—that in civil proceedings the starting point should be the time when the case has been set down for trial, or the equivalent stage in other civil proceedings. At present strict liability sterns from the commencement of proceedings, so this change which is proposed by Phillimore, and with which again I agree, would be helpful.
On appeals from, or a review of, the decision of the court in a criminal or other proceeding, again the starting point should be, in the case of an appeal, the point in time of the notice of appeal or of an application for leave to appeal and, in the case of review proceedings, the point in time when the relevant originating process 1750 is issued. I think that a statutory embodiment of these propositions would be helpful and would increase certainty so far as the press is concerned.
It is interesting that the Bar Council put forward the proposition that there should be no strict liability for unintentional prejudice in regard to civil proceedings unless the case was tried by judge and jury, but I agree with the view of the Phillimore Committee that, even in non-jury cases, witnesses need to he protected. The public, and indeed the parties, would not be readily totally convinced that the barrage of prejudice raised against a defendant or, indeed, a plaintiff in a case might have no effect upon the judge.
There were other matters raised in the debate, points of detail, but I have ventured to concentrate on the two main points of difference and discussion. With regard to the impact of the decision of the Court of Human Rights, clearly the Government must take cognisance of that decision. We have accepted the right of petition to the European Court of Human Rights. Although, frankly, there is a good deal of legal opinion differing with the conclusion that the Commission came to, including the majority of the Lords of Appeal themselves, I agree that the outcome of that case should be accepted and that a publication made as part of a discussion in good faith of public affairs or other matters of general public interest should not be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is unintentional and only incidental to the proceedings. If this were the approach which was followed in the legislation, I think it would help to reduce the restraints to which my noble friends have referred.
Whether in the light of what I have said I can be classified as—and that seems to be the thing that is sought—a Phillimore man or not, I do not know. In so far as I have departed from it and have affronted my noble and learned friend Lord Gardiner and thereby appeared almost heretical, I hope he will forgive me, and will take a more generous view of the matter. This is an important issue and I think that certainly we on this side of the House will support to the Government for statutory embodiment on the lines I have ventured 1751 to express, and it will surprise me if on matters of substance what we are about to hear may not differ fundamentally from what I have ventured to say.
§ 8.11 p.m.
§ The LORD CHANCELLOR
My Lords, my second innings today is one which is of a more technical character than my first. I was in fact hoping by now to have been discussing the Second Reading of a Bill, but as I am not in that position I am grateful to the noble Lord, Lord Ardwick, for giving me an opportunity of answering his Unstarred Question, and to other noble Lords who have played their part in this short debate for giving me an opportunity to discuss the question slightly more at large in certain detail.
I have one qualification which no other noble Lord who has taken part in the debate has had, so far as I know. There have been distinguished editors, and ex-editors; there have been distinguished lawyers and one distinguished sociologist. But I am the only person who has actually been charged with contempt, and so I think I have a right to speak. I was defended by the noble and learned Lord, Lord Rawlinson of Ewell. I was acquitted triumphantly by the noble and learned Master of the Rolls, and I had to pay a very considerable sum to my solicitors by way of costs.
So I come now to the subject of the Question. My Lords, I set up the Committee under the late Lord Justice Phillimore in June 1971. I did so because I thought that the law of contempt was overdue for reform and was likely to be reformed only as a result of a Blue Book of some kind. The Phillimore Committee reported to the noble and learned Lord, Lord Elwyn-Jones, whom I should like to thank for his helpful remarks, in December 1974.
Six years have passed since then, and the law is still unamended. In the meantime, events have come and gone. As has been mentioned, the late Government issued a discussion paper in March 1978. The Sunday Times case has been decided by the Strasbourg Court. The Law Reform Commission last autumn published their report which superseded, in my view, Chapters 6 and 7 of the Phillimore Report in two matters at least, and in Scotland the picture has further changed as 1752 a result of the Hall case, which, as the noble and learned Lord Lord Elwyn-Jones, pointed out, at any rate removed one of the supposed or real mines in the Scottish minefield. In England the Divisional Court was asked to decide and in the event failed to decide—whether the secrets of the jury room were protected. One noble Lord has asked me about that.
If I were of the opinion in June 1971 that the law of contempt needed reform, your Lordships will not he surprised to hear that I am even more of that opinion now. Unfortunately, the best laid plans o' mice an' men gang aft agley, whatever "agley" means. Having obtained, I thought with some sense of triumph, the consent of my colleagues to the inclusion in the Queen's Speech of the Contempt Reform Bill, to my disappointment I have had—and I am now answering the noble Lord, Lord Wigoder—to exchange that hope for a promise, I hope a firm promise, that it will be taken early next Session and will be available for introduction into your Lordships' House. But here I really must warn noble Lords, and in particular the noble Lord, Lord McGregor of Durris, and perhaps to some extent the noble Lord, Lord Jacobson, that the perfect is often the enemy of the good. I must remind the House once more of my predecessor Lord Campbell's dictum that law reform is either by consent or not at all. This applies no less in the 20th than in the 19th century. Too many attempts to improve the law to the point of perfection deters one Government after another from attempting it. What I can do with your Lordships' co-operation is to make the law better than it was, and that is my humble purpose.
Of course, the basis of the Bill must be Phillimore. It could, in fact, be nothing else. In addition—and here I am replying to the noble Lord, Lord Lloyd of Hampstead, and to the noble and learned Lord, Lord Elwyn-Jones—I shall accept the decision of the majority of the Strasbourg Court in the Sunday Times case. I did not myself agree with that majority, but as a matter of principle, having adhered to the Euro Convention, it is obviously wise, other things being equal, to accept the interpretation of the convention as offered by a majority of the Strasbourg Court, even though it was the comparatively narrow majority of 11 to nine. That at any rate is my conclusion.
1753 I shall also follow the Law Commission rather than Phillimore on the abolition of the offence of scandalising the court, but I do not anticipate that that will be contained in the Bill on contempt. If I err in that respect, I err on the side of liberality or liberalism. If wrong, I can at least plead in mitigation that no one has been punished for this offence—although I was accused of it—at least in England and Wales for about 50 years.
As the House will be aware, as the law stands the law of criminal contempt is indeed one of strict liability. Although mitigated by the defence of innocent publication, available as the noble and learned Lord, Lord Gardiner, reminded us since 1960, it still includes an clement of strict liability. The editor or the author can fall foul of the criminal law without the guilty knowledge which ordinarily forms an essential part of a criminal offence. Phillimore proposed that there should be a clearly defined statutory test. I wholly accept that recommendation.
The Bill will therefore begin by adopting the test advocated in. paragraph 113 of the Phillimore Report. That is the answer to the first part of Lord Ardwick's Question. I am fortified in this decision by the advice I have received, and which I accept, that this formula will also satisfy the requirements of the majority of the Strasbourg Court in the Sunday Times affair.
This, however, will be reinsured by what I have to tell the noble Lord in reply to the second arm of his Question, and this relates to time limits. The Phillimore Report pays particular attention to this. In fact, in Northern Ireland only—and there only in one case—has a publisher actually been penalised for a publication relating to proceedings which have not yet started. So, although one can state the case about uncertainty, I think one can also exaggerate its practical importance. To that extent the matter is academic and, as I have said, the Hall decision in the Court of Session refused to follow the Northern Ireland precedent in that respect in the Scottish jurisdiction. Therefore the first part of my answer to the noble Lord, Lord Ardwick, on the second limb of his Question is that strict liability should operate only within fixed time 1754 limits. That is in accordance with Phillimore.
The question then arises: between what limits? Phillimore recommends when a person is charged or a summons is served, and, in the slightly different procedure in the Scottish jurisdiction, at broadly similar moments. Since then there has been controversy in the press. Mr. Robin Day wrote a letter to The Times. The relevant paragraph which sets out the issues in Phillimore is paragraph 123, and here I think the question is very fairly and precisely stated. The report says:The choice lies between an earlier moment such as the issue of a warrant for the arrest or possibly the actual arrest of the wanted man and a later moment such as when the accused is charged or first appears in Court. The disadvantage of a later date 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".That was the point made by the noble Lord, Lord Wigoder. The report continues:On the other hand, a warrant for arrest"—which is the point made by the noble Lord, Lord Jacobson—is usually issued in private and even an actual arrest may not, for good reasons, be immediately announced by the police. In these circumstances the Press might well not know whether they were at risk. Moreover if the wanted man was never found "—and I suppose that in that connection your Lordships can think of the Lucan case—publicity would be restricted at least in theory as long as the warrant for his arrest still existed".These powerful arguments on either side have obviously exercised my mind considerably. My provisional conclusion is that the right moment in the criminal law at which to commence the point of liability is arrest, issue of a warrant, or charge, whichever is the earlier.
My answer to the arguments made by the noble Lord, Lord Jacobson, and I think by at least one other of the noble Lords who have spoken, is that which was put forward by the noble and learned Lord, Lord Elwyn-Jones, and by the noble Lord, Lord Wigoder. The real protection of an editor in such circumstances lies partly in the test itself—the test which was recommended by Phillimore and which I have accepted—and partly in the defence of innocent publication, which means that 1755 if he did not know, and could not reasonably be expected to know, he gets off completely. My view, for what it is worth, is that that and the certainty of the moment of time give the press enough protection to enable it to carry on its business in reasonable confidence.
We shall also include (and I think this is material to the present discussion) the defence to which the noble and learned Lord, Lord Elwyn-Jones, referred—the defence of the discussion of public affairs in good faith, under which even serious prejudice will not be treated as a contempt if the risk of serious prejudice is merely incidental to a discussion. I need hardly add that this corresponds to paragraph 142 of Phillimore. As the judgment of the Strasbourg Court makes plain, the debate is about the need to protect the administration of justice and the need to uphold the freedom of the press.
The Strasbourg Court concluded—and here I think unanimously, and in any event I agree with it—that the protection of the judiciary comes first, but only to the extent "necessary in a democratic society". They explained that the word "necessary" is in their view carrying a meaning which is intermediate between "desirable" and "indispensable". I do not know that I can improve upon that. I myself believe that the compromise I have outlined fulfils both criteria adequately. It is not absolutely identical with Phillimore, but I believe that it fairly reflects the thinking of the committee and the decision at Strasbourg on which it is based.
The problems of the time limits in appeal proceedings and in civil proceedings areas I think more than one speaker has stressed—far less acute and will be precisely defined in the Bill. The noble Lord asked in his Question specifically about civil proceedings. The answer is that the terminus a quo is the moment of setting down where setting down is a step in the procedure before the Court. Where the setting down is not a step in the procedure the time limit will be the point of time at which the date is fixed for hearing. That again is in conformity with Phillimore recommendations.
I think perhaps I have now answered the terms of the noble Lord's Question and at this hour I think it would be imprudent to stray far beyond them, but 1756 I have about two other things that I want to say. In the broad, the answer to both limbs of the noble Lord's question is, Yes. But there will be other matters dealt with in the Bill which are not covered by those terms and I should make it clear that this is so.
In my view, for instance—and I was asked this by the noble Lord, Lord Wigoder—the Divisional Court's judgment in the New Statesman case leaves too much undecided. In the Bill, when it comes, we shall endeavour to define the extent to which the duty of confidentiality of the secrets of the jury room ceases to be a mere matter of moral obligation and becomes a matter amenable to legal decision. This is a wide question which I shall not attempt to handle now. But our present intention is to include a clause on the subject.
It is not intended to include a clause about contingency payments. That does not mean to say that the law does not exist, but the conclusion we reached, after discussing the matter in the light of the Press Council's dealing with the particular question arising out of the Thorpe case, was that we had better leave the matter as it was. The Press Council dealt with the matter severely and very properly and we all agreed that although the question of contempt can undoubtedly arise it would be imprudent to try by legislation to deal specifically with the matter in the Bill.
It is not intended to include the extent to which pressure or influence can legitimately be brought to bear on the parties to litigation. That was canvassed by the House of Lords in the Sunday Times case and the Appellate Committee came to the conclusion that—and I quote—a "fair and temperate campaign was permissible. It is also, I think, fairly obvious that intimidation or unlawful threats to property, person or reputation are not acceptable to the law and at present we propose to leave the matter there.
However, we intend to clarify the position regarding the power of courts to prohibit the publication of names and other details in cases, for instance, of blackmail and other matters, such as those canvassed in the Leveller case. These are questions which ought not, in our view, to be left unclear and without 1757 clarification by Parliament, but for details I would ask noble Lords to wait for the introduction of the Bill.
I conclude by thanking the noble Lord, Lord Ardwick, again for asking his Question and the House for giving me the opportunity of replying to it. I hope we shall resume our discussion with any luck—and one needs that in this world—on the Second Reading of the Bill when it is introduced (as I hope) early next Session into this House. That is my answer to the noble Lord's Question.