§ 4.13 p.m.
§ House again in Committee, on Amendment No. 15.
§ Baroness Jeger
I rise very briefly to support the amendment. I do so mainly because as a life member of the National Union of Journalists I am very concerned about the effect that the case referred to by my noble friend is having among people who work for the press. It is very many years since I did any court reporting, but certainly we were given to understand and appreciate that there were strict rules that had to be scrupulously adhered to. I am puzzled by the present situation. A court reporter takes down in his own shorthand a statement read out in open court. It is then transcribed, and I was always given 363 to understand that it was perfectly proper to use it, because once a statement had been made in open court it was the property of the public. Therefore, there could be nothing improper in the reproduction of that statement in one's newspaper.
Now we are given to understand that if perhaps a reporter's shorthand is not as good as mine once was, or if the speaker is not as audible as one would wish, and therefore the reporter seeks assistance by borrowing the document from which the statement was read, that process somehow introduces a question of illegality and punishment. I can assure Members of your Lordships' Committee that this is a matter of great concern to all those who work in this field and that it is an essential part of the openness of our courts and of the necessity of justice being seen to be done that there should not be imposed any restriction which seems illogical and which does not seem sustainable in common sense.
I shall not detain the Committee further because the more legal matters have been very fairly put by those who have spoken already, but I felt it only right to remind your Lordships that this important question of informing the public of what is going on and what is being said in the courts of this land is essential to the freedom of full and fair reporting, and I very much hope that the amendment will be supported.
§ Lord Elwyn-Jones
The proposition that to show a journalist, after it has been read in open court, a copy of a document, however confidential, which could have been freely and fully reported, and indeed quoted in the press, can, if the document is subsequently used, amount to contempt of court, appears remarkable. As my noble friend Lady Jeger has said, openness about, and reportability of, what is said and done in what is significantly called open court is a vital feature of our court proceedings. Exceptions to that principle and practice are few and are carefully defined, and I think that we owe a sense of gratitude to my noble friend Lord Gifford for having moved this amendment.
We are not I think precluded by the sub judice rule from referring to the desirability of legislation to clarify—and it does apparently need clarification—an important point of principle and of practice of the kind with which we are concerned in the amendment. I support it, and I am sure that we all await with interest the views of the noble and learned Lord the Lord Chancellor on a matter which, as my noble friend Lady Jeger has said, has caused considerable concern to Fleet Street and to the public at large.
§ Lord Ritchie-Calder
I, too, want to support the amendment in the same terms as my noble friend Lady Jeger. I, too, was a professional reporter and a court reporter, and a pretty efficient shorthand writer. I thought it was very commendable if I checked my shorthand against the documents of the court. Is it to be alleged that, had I been imperfect in my shorthand, I was committing a crime by checking my shorthand against a document?
§ Lord Gardiner
I should like to add a few words in case the noble and learned Lord would like to help us on the point. One matter that has troubled the public 364 a good deal about this case is its obvious contrast compared with the contemporaneous case of Tuite. Tuite had been committed for trial, and so there was no question whatever that the period of strict liability had begun. Having been committed for trial, he escaped from custody. In those circumstances it would of course have been quite proper for the police to put out a notice stating,This man is wanted. He has escaped from custody"—and, if they thought it right, addingTell a policeman, but don't try to arrest him yourself—he may be dangerous".What in fact happened—and I take this from a leading article in the Guardian of 23rd December, the accuracy of which I think is not in question—was that after the escape Commander Peter Duffy, head of Scotland Yard's anti-terrorist squad, told a press conference that Tuite wasa prominent member of the IRA and a public enemy";that his escape from Britain would be a major coup for the IRA, and that he was dedicated and dangerous. He said:I accuse him of having put bombs in central London".What many people fear is the extraordinary contrast between a solicitor who gets proceeded against, not by the Law Officers, not by the Attorney-General, but by the Home Secretary, who then offers to withdraw the case if the costs are paid, and this sort of statement made by the police, because in these circumstances it looks as though the police are not subject to the law of contempt of court at all. I wonder whether the noble and learned Lord might think it right to make some comment upon that extraordinary contrast.
§ The Lord Chancellor
I think perhaps this is a convenient moment at which I should intervene in this debate. If it has shown nothing else, it has shown the necessity that I should explain to noble Lords what the Harman case was about, although, of course, it is desirable that I should be very careful not to express any opinion about the merits of the appeal, which is now before the Court of Appeal. I believe it is to be tried by Lord Denning, so we all await his decision with bated breath.
Perhaps I may start at the opposite end and deal first with the remarks of the noble and learned Lord, Lord Gardiner, not only because of his immense eminence but also because they are fresh in my mind. There is no doubt that the law of criminal contempt of court applies to the police no less than to the press, and it may be that at a later time in this Committee stage we shall have to say more about that. I hope that others will say it rather more vigorously than I shall, but there is no doubt that they are bound by the law of contempt. At least, that is my view.
Secondly, I would say to the noble and learned Lord that there is no contrast between the Harman case and the Tuite case, as portrayed by the noble and learned Lord. What he was saying was relevant to the law of criminal contempt but not relevant to the law of civil contempt. The Harman case, as I shall develop in due course, has nothing to do with the law of criminal contempt, with which this Bill is almost entirely concerned, and has everything to do with the law of civil contempt.
365 Now may I, again following the matter up in reverse order, say a word to reassure, I hope, both the noble Lord, Lord Ritchie-Calder, and the noble Baroness, Lady Jeger? Again there is no fear for the press in this. The Harman case, whatever its merits or demerits, never suggested that the journalist concerned had committed a contempt of court. Nor, indeed, could it have done so on any view of what took place. I must say to the noble Lord, Lord Ritchie-Calder, and I think to the noble Baroness, Lady Jeger, that this had nothing at all to do with the report of the case in the press. That would in any event be protected by Clause 4 of the Bill. It had to do with a feature article which subsequently came out in which certain parts of the documents were used for the purposes of the feature article and not for the purpose of a press report of the case. Having said that, I must now, I think, begin again at the beginning.
§ Baroness Jeger
Can the noble and learned Lord help further by telling a poor journalist what is the difference between a report and a feature article? They are very close together.
§ 4.25 p.m.
§ The Lord Chancellor
In this case they had nothing to do with each other, and so there was no question of a difference. They were just quite different things. This was a feature article about the activities of a certain group inside the Home Office, but I think that perhaps the thing will disclose itself syllable by syllable as I proceed with my rather boring remarks. I have really got to begin at the beginning again. I was not quite sure what the noble Lord, Lord Hutchinson, had to do with the case. He said he played a part in it, but in my report of the case, which comes solely from The Times newspaper, he is not marked down as one of the counsel. I can remember one time when I put down a Question in the House of Commons about the use of the prerogative, in the days when there was a death penalty, in a case in which I defended somebody for murder. Somebody (I think it was the noble and learned Lord, Lord Elwyn-Jones) warned me off doing any such thing, and I had to withdraw my Question. At any rate, that, perhaps, again, is another story.
First, there were two quite separate issues in the Harman case, with only one of which Lord Gifford, with respect, dealt. Let me first deal with the one with which he did deal, and then with the one he did not. This has to do with what is technically called the law of discovery. I know that I am talking to some people who know far better than I do, and certainly as well as I do, exactly what the law of discovery is, what it is used for and how important it is to civil but not to criminal litigation. But I think I ought to say something about it on the assumption that one starts with a mind completely blank of knowledge as to what it is about, and I hope that my noble and learned friends on the Cross-Benches and noble and learned Lords opposite, and the noble Lord, Lord Hutchinson, and the noble Lord, Lord Gifford, will forgive me.
When you bring an action against somebody else—it may be a commercial action or it may be some other kind of action—you are in the ordinary course liable to what is called "discover your documents"; that is, 366 you have to swear an affidavit to say what documents are in your possession relating to any of the disputed matters in the case. The awful thing is that you have got to "come clean". Very often your clients come to you and say, "This was a confidential document; it was an inter-office memorandum; I cannot possibly disclose it to the other side". You say to them, regretfully but firmly, "I am very sorry, but you have got to; and, what is more, I am very sorry but if you do not I shall have to withdraw from the case, for if I do not I shall probably be charged with professional misconduct, because I will have condoned an affidavit which to my knowledge was not complete". This surprises people. I do not suppose noble and learned Lords will have failed to have had numerous cases in their own practices where they have suffered a good deal of discouragement from their own clients at the unpopularity with which this advice has been received. But it is a matter of honour among members of the Bar that we insist upon it with the utmost punctiliousness.
But there is one safeguard, and that is that the documents are disclosed only for the purpose of the litigation. The courts will not allow them to be disclosed for any purpose other than the litigation in question. It is a matter of very important public policy that discovery should be complete, honest and absolutely candid, and that the other side should be put into possession of all the documents in the possession of their opponents, other, of course, than those which are protected by legal professional privilege—and any rule of law or any alleged liberalisation of the law which encouraged lack of candour in discovery would be a real blow against the administration of justice. That is the first question which has to be investigated when Lord Denning comes to discuss the issue in the Harman case.
I do not want to take the thing too far lest I transgress the sub judice rule. But that was the first issue in this case, the use which can be put to documents discovered. But now I am coming very much closer to the nub of the case because as, again, noble and learned Lords will know—and again I apologise to them for teaching them the elements of what they already know—until about (I forget the date) certainly the end of the last war it was universally accepted in English law, although not in Scots law, that if a Minister swore an affidavit to say that it was against public policy to disclose certain types of document owing to their confidentiality that affidavit was taken at its face value and nobody could go behind it at all.
Of course, the effect was that, to a greater or lesser extent (usually to a lesser extent but sometimes to a crucial extent) the interests of the public as a result of this peculiar privilege of the Crown—and it was called "Crown privilege" although it extended to certain other types of information—could be to interfere with the rights to justice of the litigants in a case, whether or not the Crown was a party to the case. Crown privilege applied to libel cases, for instance, between two individuals just as much as it did to a case between Mr. Williams and the Home Office. From a case called, I think, Conway v. Rimmer but, at any rate, not very long ago, the House of Lords, reversing a decision of the House of Lords during the war in a case I think called Duncan v. Cammell Laird (which 367 disclosed the law to be what I have just stated it used to be) said that this was such a serious infringement of the right of the subject to justice in a civil case in a civil court that the courts in England would take to themselves a right which I think they have always possessed in Scotland, in a class claim for privilege—not a claim about a particular sensitive document, but a case related to the class of a group of documents because they were members of a class to which Crown privilege was attached—without in any way disputing the veracity of the affidavit by the Minister to inspect the documents themselves in respect of which privilege was claimed; and then took to themselves the right to say whether, having looked at those documents, they were so intimately connected with the subject of the dispute and necessary for the doing of justice between the parties, that the Crown privilege would be overridden by the courts in the interests of one or both parties to the litigation. That is the law of England at the present day as it has been, for very much longer, the law of Scotland.
Obviously, this presented a good deal of difficulty to a judge who in the first place might have to exercise a certain amount of judicial gymnastics if he had to forget what was in the documents in question. That was quite easily got round because the question of privilege would then be decided by a different judge from the judge who ultimately heard the case. The present case, which was a case between a person called Williams and the Home Office, related to the activities of a particular group within the Home Office; and the Home Secretary (I think it was the present Home Secretary but it might have been his Labour predecessor) swore an affidavit claiming class privilege for about 8,000 pages of documents of a group on the basis of class privilege.
The plaintiff, not unnaturally, challenged this group affidavit and Mr. Justice McNeill, I think in Chambers, having produced the documents ordered the disclosure of a very great number of them, although perhaps it may be not all, in the original affidavit. He did so after there had been correspondence between the parties in which the solicitor for the defendant, Miss Harman, had given an express undertaking that they should be used solely for the purpose of the litigation. Even if she had not given such an undertaking, there would no doubt be such an implied undertaking inherent in the nature of discovery; but in this case there had been correspondence in which the undertaking had been expressly given. There is no saying that Mr. Justice McNeill who was dealing with the privilege claim would have come to the conclusion that he did—namely, that the documents should be disclosed to the other side—if such an undertaking had not been either implied or given.
I am not suggesting that was the slightest bad faith on anybody's part in the whole of this proceeding; but, in fact, what happened was that some of the documents were read out in court and some of those which were read out in court were, contrary to the undertaking, given by the solicitor to the defendants to a feature-article journalist who subsequently founded a feature article upon quotations from them. This was not a report of the case. I can well understand that all parties acted in good faith. There never was, or 368 could have been, a suggestion that the journalist in question could have been guilty of contempt and it certainly could not have applied to a journalist who simply wanted to report the case accurately and fairly within Clause 4.
There is no connection whatever, I hasten to say—and I hope that by now I have persuaded your Lordships of this, if of nothing else—between that and criminal contempt, which consists in interfering with the administration of justice in advance of trial in a criminal case—which was the situation which the noble and learned Lord, Lord Gardiner, was considering. I am afraid that I take my stand, first of all, on the point that I raised when my noble and learned friend Lord Scarman in our previous debate raised an amendment the implications of which I said I would consider further: that, on the whole, I am resistant to attempts to enable a Bill which is designed to implement the Phillimore Report relating almost entirely to criminal contempt to be used as a vehicle for investigating the whole question of civil contempt.
It would open up a very much larger field and, although I do not expect to be cross-examined—and if cross-examined I shall plead some kind of privilege from a candid reply as to the exact state of the Government's programme—I can tell the Committee that this is no idle statement on my part. I am anxious to get this Bill on to the statute book this Session if I can. If I open the field at all much wider than it is open, I shall not succeed. At any rate, I take my stand on the principle that this was a case about civil contempt and not about criminal contempt at all. It does not directly affect the freedom of the Press. What it does relate to is the degree to which discovery should be confidential. That is the general point. The narrower point is that discovery had in fact been given of the documents in question after a plea of Crown privilege had been made in relation to documents. I may say that that related to documents about the previous Government, not about the present Government. I do not make a party point about this but raise the point in order to illustrate that there is no party point about it. One of the documents was a statement inside the Government machine of Dr. Shirley Summerskill as a Minister.
I put my own view before the Committee quite frankly. Apart from the question of the principle that I am unwilling to enter into the field of civil contempt because I do not know there where I would stop, especially after Lord Scarman's amendment last time, this matter has yet to be clarified by the courts on what is a much more complicated issue than the press has so far realised; namely, the law of discovery. It may take a little time. I do not think that necessarily it will. Not all Lord Denning's judgments are appealed to the House of Lords; there are some that are not—perhaps even the majority which are not—and sometimes the Court of Appeal are not unanimous in their opinions.
I think that Parliament would be much wiser to see how this matter is illustrated before it tries to legislate it. I hope that I have persuaded the Committee that this is not the simple thing it looked at first sight when one read the reports in the press. If anyone wants any further detail, I will try to give it. I can refer them to a report in The Times Law Reports which 369 is rather fuller than the account of the matter that I have given.
Having said that, I do not want finally to close the mind of the Government at some stage in this Bill (though not the present) to examining any issues, when they emerge, with a little greater clarity. I hope that I have shown myself both reasonable in my approach and understanding of the points which various noble Lords have raised. Having said that, I urge the noble Lord, Lord Gifford, who I agree has rendered a service to the Committee in raising a matter which has attracted a great deal of legitimate public attention, not to press his amendment, at least at the present stage.
§ Lord Gifford
I feel very heartened by the debate which has taken place on this amendment. I should first like to thank all noble Lords who spoke from this side of the Committee for their warm and distinguished support of this amendment. I am heartened also that nobody has raised technical problems or suggested that the amendment I propose would not cure the serious state of affairs which those who have supported this amendment believe exists.
I am even more heartened by the fact that there has not in any quarter, even from the noble and learned Lord the Lord Chancellor, been a speech of opposition to the principle of this amendment. What the noble and learned Lord said in seeking to clarify the issues in the Harman case concerned principally the question of Crown privilege that arose in that case.
This has to be said in reply: the question of Crown privilege, with great respect, does not affect one jot or tittle the issues raised by this amendment, because however these documents came to be read out in court, however they came to be disclosed, whether the Crown objected to their being disclosed or not, the fact was that these documents were read out in open court and—to quote the words of Mr. Justice Park:Further, it had been accepted that reporters who had been in court during the hearing could have made notes or obtained a transcript, and that the use of such material in making the article would not have been a contempt".Having said that, I certainly accept that this is not the right time for the Committee to take their considered view. The Houses of Parliament should not determine this issue until at least we have seen what at the very last moment is the up to date state of the law.
Having said that, I am grateful for the indication that has been given that once the law is clarified this is a matter which will, as it should, be given consideration by the noble and learned Lord, and in that spirit I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ Clause 8 [Publication of jury's deliberations]:
§ 4.46 p.m.
Lord Hutchinson of Lullington moved Amendment No. 16:
Page 3, line 26, leave out ("subsections (2) and (3)") and insert ("subsection (3)").
§ The noble Lord said: I rise to move this amendment, since the noble Lord, Lord Wigoder, who wished to move it, has only recently arrived. He has asked me whether I would move it, and I now do so. This is a 370 paving amendment. I should also like to speak to Amendments Nos. 17 and 18. I venture to suggest to the noble and learned Lord the Lord Chancellor that if this clause remains in its present form serious damage may be done to the system of jury trial in this country. I would ask him to consider again whether it is right for this clause to stand as it is. The clause has been added because the convention that what transpires in the jury room should never be disclosed has recently been broken by a journalist deliberately—and, in my opinion, deplorably—seeking information after a trial is over and then publishing the information which he was able to obtain from a juryman.
§ Hitherto, a notice in the jury room and that convention has secured the integrity of what takes place there. Lawyers have always been in doubt as to whether there was any legal sanction to back up that convention which has been so well observed up to now. Many hoped that when such a breach came before the court the court would robustly hold that any such interference with what has happened within a jury room, speaking to or asking for information from jurymen themselves, would be held to be a contempt of court. In that way we would have had an umbrella covering that area in the criminal process, and each case would have come before the court and there would always have been the universal threat that any such behaviour would be held to be a contempt.
§ Sadly, when this case came before the court another view was expressed because it was held that it did not imperil the finality of the verdict in the case. Clause 8 therefore is an attempt to create a statutory sanction. The mischief caught by Clause 8 is publication or an inquiry with a view to publication. Therefore surely what is not advisable is every other form of approach to or solicitation of jurymen, certainly after verdict and, I would submit, arguably before verdict too, unless that approach amounted to an intentional attempt to pervert the course of justice. Of course, with many approaches to jurymen it would be quite impossible to prove that, and in any event that might not be the purpose of the approach.
§ May I take the position after verdict. Once the jury have left the jury box and the verdict has been returned, academics, social scientists, friends and enemies of parties, lawyers and journalists will be free to approach jurymen to find out what went on. They would say, "We are not going to publish anything but we would like to know why you came to the verdict that you did. What went on? What view did you take of the judge? Did you have sympathy with the defendant? Did you believe the police?"—and so on.
§ Jurymen will be harassed; some will be bullied and pressurised, and some may well be offered payment. The information, I would suggest, obtained will be stored away for use at a future date and, in cases of local and national interest, rumours will be rife and will circulate on the information which will be obtained by persons who approach jurymen in that way. Unscrupulous people of course will be able to write in journals—and the names of some journals will occur to many of your Lordships at once—where articles will appear from which it will be very easy to infer which case is being referred to.
§ What of the friends or enemies of the accused? They will seek out jurymen and find out who it was 371 who swayed the jury to a conviction or an acquittal; and I would suggest that jurymen will be at risk from some form of reprisal. What about the friend of the accused who discovers an irregularity in what went on in the jury room? What pressure will jurymen have put upon them to disclose or even invent some irregularity which happened during the discussion of the matter in the jury room? Then that friend will go to the defendant's solicitor and, before you know where you are, there will be a notice of appeal, based on what they have heard from a juryman who was so approached. I may say in passing that it seems to me that no provision is made in this Bill at the moment for the proper disclosure of what went on in the jury room, if in fact the basis for an appeal is that something happened in the jury room which should not have happened.
§ What of the researcher and the investigative journalist? The noble and learned Lord the Lord Chancellor said on Second Reading that Clause 8(2) was there to cover the bona fide researcher; but where, I would ask, is the guarantee of bona fides in this clause? So long as you do not mention the case or the name of the juror, you can, as far as I can see, publish anything that your interrogation of jurors reveals, whoever you may be. We are not talking here of respectable professors from Birmingham or even of Marxist professors from the English Faculty at Cambridge: we are talking about any scribbler or any journalist who will have this freedom. And what of the researcher in any event, bona fide or not?
§ Clause 8(2) seeks to give protection to what I venture to describe as a most dangerous animal, the sociologist. Two of these are well known to criminal practitioners, Messrs. Baldwin and McConville. With the blessing, I regret to say, of money from the Home Office, they have conducted much pseudo-scientific research into the conduct of jurors. They have produced a book based entirely on the opinions of persons who have taken part in jury trials, from the judge down to the most junior detective constable. They have filled the book with tables and graphs, apparently of a most scientific kind, and at the end of it all on one page the reader will find that in certain questionable acquittals 49 per cent. of the police thought the verdict was perverse, 35 per cent. of the judges thought the verdict was perverse and only 10 per cent. of the defending solicitors thought it was perverse.
§ It is a fact that this enormously interesting scientific inquiry took months and months. I am very glad to say that members of my profession, despite the obloquy put upon them, refused to take part in this ludicrous exercise when asked to express opinions. I was asked to express my opinion as to whether or not a client was guilty; I was asked for my opinion as to whether or not the police told the truth or as to whether the jury took this or that into account, when the whole training of one's profession is that one's opinion of those matters is utterly and totally irrelevant and no better than the opinion of any member of the public who is listening to the trial.
Such are the researchers, and I would ask the noble and learned Lord the Lord Chancellor whether he really wants to give the weight of his great authority to this approach to the matter of research into juries? Those two gentlemen say in their book:
It seems to us there is no good reason why the jury room should continue to be inviolate. It is time that researchers were given access to the jury room ".
The jury is indeed becoming the last bastion and guarantee of our freedom in this country, and here the ordinary citizen stands firm of purpose between the subject and the Executive. It is a guarantee in every case that human justice, as opposed—I say it expressly—to lawyers' justice, is in fact arrived at. A verdict is reached by 12 ordinary untrained people, giving consideration to a whole complex of relevant matters, and feeling their way to a joint decision on the question: in the end in this case is there a reasonable doubt?
§ I suggest that this process defies analysis. To examine and question one juryman out of 12 away from the other 11 is totally futile; and what leads one person to a conclusion may differ in kind and in emphasis from what leads each of the others. Pseudoscientific inquiry, I suggest, is flawed from the start.
§ And what, may I ask, in any case is the purpose of this research which this clause wishes to protect? Clearly it is—is it not?—to discredit the system, because our dear professors are not going to spend hours and hours and months of their time in establishing that indeed the jury is the lamp that shows freedom still lives. I ask: Why should members of the public be subject to this examination? Why should they be harassed by researchers and inquiries into why they came to the conclusions that they did come to? Jurors are not necessarily articulate people. I suggest that they should never be asked to justify their decisions.
§ This clause, protecting what is called bona fide research and what happens in the jury room, will not only diminish the confidence which the public has in the jury verdict, but will put at risk the finality of the verdict itself. It will certainly, also, put at risk the independence of the juror, because the reason why the juror is prepared to speak totally frankly when he is in that jury room is because he knows that what he says there will never be known to anybody outside. If he thinks that our two professors will waylay him in the hall of the Central Criminal Court and ask him the reason for the views that he expressed, then I suggest that he will clam up and the system of jury trial will be forever harmed.
§ In my submission, this kind of inquiry is mischievous and barren and any interference with the jury is, in itself, to be deprecated. As all your Lordships know, because the whole question has been so much before the public recently, the disaster of jury vetting is a good example of what happens when you begin to interfere with the operation of this absolutely essential institution.
§ I should like the noble and learned Lord the Lord Chancellor to know that, before moving this amendment, I had spoken to the chairman of the Bar Council and to the chairman of the Criminal Bar Association, and I have the authority of both to say that they are deeply concerned at the moment as to the implications of this clause. Blackstone said that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate. If we want the jury system to continue then, in my submission, it is vital that it should remain inviolate and this clause has not really been properly thought through.373
§ May I just add this? If there is a disagreement in a trial and the case has to be retried, what is there at the moment to stop one of the parties, the friends or the lawyer from asking one of the jurors, who has left the court after the disagreement, as to the reasons for the disagreement in that trial and so to glean vital information in preparation for the retrial?
§ If I may turn finally to the amendment, I ventured to say on Second Reading that there was an inherent danger in legislating for one part only of an area of common sense and convention, because that would make other aspects of behaviour permissible by implication. Therefore, I submit to the Committee that the only way of dealing with this matter, if it is to become part of the law in a statute, is to have total prohibition. Nothing less will do and nothing else will achieve the purpose.
§ I know it will be said that total prohibition, as is suggested by the words of this amendment, would catch the ordinary juryman talking to his wife, talking in the pub or talking to his friend about what had happened in the jury room. The safeguard against that, of course, is in subsection (4), under which proceedings could be brought only with the consent of the Attorney-General. Therefore, I beg to move.
§ 5.5 p.m.
§ The Lord Advocate (Lord Mackay of Clashfern)
The purpose of this clause is a very limited one; namely, to deal with the mischief which was identified as a result of the decision in the Divisional Court in the New Statesman case. With a good deal of what the noble Lord, Lord Hutchinson of Lullington, said, we would agree, in this sense, that up until now the situation has been reasonably satisfactory, having been regulated by convention, and, of course, it is in that reasonably satisfactory situation that the research, to which the noble Lord referred, has been carried out.
So far as interfering in this matter is concerned, the view that we took was that it was right to interfere to the extent necessary to deal with the particular mischief, and the important point about the particular mischief was that it was by way of publication and identified the particular case. We are doing nothing more than legislating to prevent that from happening. We are not, as I understand it, seeking to legislate to allow any other undesirable practice.
It seems to us, particularly having regard to the way this matter has developed, that it would be unwise to put the prohibition further, against the people who might be involved, than is necessary to deal with the particular mischief that I have mentioned. It is clear from what the noble Lord said that he accepts that if his amendment were to be carried a great amount of perfectly innocent conversations would be subject to it. In my view at least, it is not satisfactory that the only protection an innocent conversation should have is in the fact that the consent of the Attorney-General is necessary before proceedings are taken.
Parliament, in legislating in this form, is surely expressing its disapproval of all that is covered, but is saying, "It is wise that the Attorney-General's consent should be required" simply as an added protection. It is not intended, surely, that the Attorney-General, in applying his mind to this matter, would be asked by 374 Parliament to apply his mind to considering situations which Parliament thought were perfectly all right. Therefore, certainly, I would strongly suggest to your Lordships that it is not right to cover in the clause, even subject to the consent of the Attorney-General, situations which are perfectly in order, perfectly innocent and perfectly harmless. As I said, what we have sought to do is to deal with the matter on the basis of the harm which we see has developed.
A good deal of what the noble Lord said related to the possibility of research. Of course, that is a possibility which exists, apart altogether from the clause, and it is true that there are some persistent researchers who are anxious to get information from sources. It applies, surely, far beyond the jury room. It is not only jurymen or jurywomen who are subject to requests, from researchers. People who come out of aeroplanes, come off trains and all kinds of other people are often subject to so-called market research by very persistent people. But that is not a particular reason for dealing specially with the matter.
Accordingly, what we have thought it right to do—and I respectfully suggest to your Lordships that this is the correct approach—is to make a rule prohibiting as contempt of court the publication of the material described in Clause 8(1) but not to extend it where the mischief does not arise; namely, where the particular proceedings are not identified. That does not, in our view, affect the present situation so far as other matters are concerned. The jury system, great institution that it is, surely can stand up to properly conducted research. The judgments that are reached by the researchers will depend on their methods, the weight of their authority and the power of their arguments. I took it from the way the noble Lord described the particular piece of research to which he referred that he was not particularly impressed by it as a useful piece of research, notwithstanding the eminence, apparently, of some of those who supplied answers to the researchers' questions.
Good research is a good thing; bad research is no doubt a bad thing. This particular clause does not attempt to distinguish between these but simply limits the mischief to the situation in which, as we see it, the mischief arises. Accordingly, I would respectfully invite your Lordships to take the view that, as it stands, the clause does what is necessary to deal with the mischief that has arisen and that in the present situation it is not wise to do more.
§ 5.12 p.m.
§ Lord Wigoder
I know that the noble and learned Lord the Lord Advocate will accept that nobody is seeking for one moment to make party capital out of this discussion. There is a very deep and genuine perturbation throughout the criminal Bar that the entirely unintended result of this clause is going to be disastrous to the process of criminal trial.
What this clause does is for the first time to make a statutory contempt of court in relation to the publication of jury deliberations. That is in Clause 8. I add that in Clause 6 there are the words:Nothing in the foregoing provisions of this Act— … (c) restricts liability for contempt of court in respect of conduct intended to impede or prejudice the administration of justice".That does not apply to Clause 8. Once Clauses 6 375 and 8 are passed in their present form the argument will be almost irresistible that the only form of contempt of court which can be proceeded against in relation to the disclosure of jury room secrets is the form of contempt set out in Clause 8 and that no other form of contempt is therefore going to exist except for the statutory form, as set out in Clause 8. Indeed, as the noble Lord, Lord Hutchinson of Lullington, made clear, it is arguable that for practical purposes there is at this time no common law contempt of court in relation to jury room secrets. There have been a small number of cases where applications have been made for committal for contempt of court on the grounds of disclosure of jury room secrets. As the noble and learned Lord will know, in the great majority of those cases the applications have not been granted and the proceedings have failed. So there is very little in the way of a common law contempt that can deal with the disclosure of jury room secrets.
The only other branch of the law that can possibly deal with such disclosure is the offence of attempting to pervert the course of justice. The result of the Government's introducing this clause into the Bill and making clear that what might otherwise have been regarded as dealt with by the common law, or in one or other of those ways, is now to be dealt with in this statutory form is inevitably to lead a very large number of people to believe that provided they are not caught by Clause 8 or by the offence of attempting to pervert the course of justice they arc free to do as they like so far as jury room confidentiality is concerned.
I want to put three simple examples to the noble and learned Lord the Lord Advocate and ask him two questions about each example: first, would he agree that once this Bill is passed the behaviour which I have indicated would not be any offence known to our law? Secondly, would he agree that such behaviour would be utterly undesirable? The first example is this. It is of a juror who in the course of a trial happens to meet the defence solicitor in the cafeteria and says to the defence solicitor, "You may like to know that our jury thought your client gave his evidence very well in this case, but there is one point that is troubling us. Nobody seems to have realised this, that and the other. What is the answer to that?" If a juror did that, it would certainly not be a contempt of court under the common law, nor would it be, in my view, an attempt to pervert the course of justice.
May I give a second example, the one touched on by the noble Lord, Lord Hutchinson of Lullington, who I follow with pleasure, not for the first time. Let us suppose there has been a disagreement at the end of a jury trial, that the defence solicitor, or a friend of the defendant, gets into conversation with a juror and that the juror says, "We were nine to three. What worried the three of us on one particular side was the evidence about such-and-such a thing, which some of us thought was acceptable but which some of us thought was not acceptable". That disclosure by a juror would not be an attempt to pervert the course of justice. It would not be a contempt of court. But it would be thoroughly and utterly undesirable.
My third example is this. After the proceedings have been completed there has been the conviction of, let us say, a gang leader on serious gang warfare charges 376 and, for one reason or another, the gang want to get at those on the jury who were the ringleaders in securing a conviction. The members of the gang would be entirely free to go up to the jury, to cross-examine all of them in turn, as and when they could find them, in order to establish which members of the jury had swayed the jury into bringing about the conviction in order that those jurors might be taught a lesson in one way or another. That would not be a contempt of court, either under this clause or under the common law. It would certainly not be an attempt to pervert the course of justice. But it must surely be thoroughly and totally undesirable. I beg the noble and learned Lord to recognise that a series of very, very serious situations would arise once this clause was made law, and that really ought to be avoided and requires this clause to be reconsidered.
It might be possible to reconsider this clause and at the same time to allow scope for bona fide research. I do not think that the words "bona fide" appear anywhere in this clause. It might be possible to redraft the clause to allow bona fide research under limited conditions, with permission given by some judicial authority on certain terms. That would be one way of approaching the matter.
With the noble Lord, Lord Hutchinson of Lullington, I myself prefer to approach the matter the other way and to suggest that what is required is an amendment to this clause which would in fact prevent any such research. I can only say that I do not believe there are in existence researchers who will think that they are going to make their fame and fortune by writing learned treatises demonstrating that the jury system works fairly and impartially and is entirely satisfactory. Anybody who sets out on research into that topic is going to set out from the beginning with a bee in his bonnet and attempt to prove a thesis because he knows there is going to be profit from establishing that particular thesis. That is the reason why the noble Lord, Lord Hutchinson of Lullington, and I would prefer revising this clause in order to prevent any form of investigation at any time into jury room confidentiality. But if the Government take a different view and they take the view that some form of research should be permitted, I still invite them most earnestly to say that even then this clause requires drastic amendment if it is not to have disastrous consequences.
§ 5.20 p.m.
§ The Lord Chancellor
Perhaps I ought to say a word in view of the eminence of the speakers, although the word I say will almost inevitably be a reiteration of what my noble and learned friend said from his position beside me.
There is a curious reversal of roles in this little debate that we have been having. Hitherto the "ranks of Tuscany" have been attacking us for lack of liberalism; further liberalisation of the law is what they have been demanding. Here we have a situation in which they are saying: "Tighten it all up. You are lax; you are 'wets'; you are a couple of sociologists"—which I gather is a new word of abuse, according to the noble Lord, Lord Hutchinson of Lullington.
§ Lord Elwyn-Jones
"Leaking" is also alleged, if the noble and learned Lord will permit me to say so.
§ The Lord Chancellor
And I am going to leak some more before I am finished. I am not going to say that there are not things which might be looked at again, but I really think we have it about right. We have decided, in the light of the New Statesman case, that there was a mischief and we wanted to legislate by creating in fact a new form of an old crime—a new offence—to deal with that particular mischief and not to make too big a meal of it. I want to draw a distinction which was drawn in rather a different connection by the noble Lord, Lord Mishcon, and others in the second of the reports by Lord Wolfenden. There is a difference between a sin and a crime. Personally I have always regarded the confidences of the jury room as sacrosanct. I know perfectly well that the sacrosanctity of the confidence of the jury room is pretty "leaky", to use a phrase popular among the present generation.
For instance, I was briefed (a million years ago!) in what was called the Brighton trunk murder No. 2, and I was told by the circuit butler after a verdict of acquittal that the jury had been 10 to two for a conviction but that the two had sat the 10 out. I have a father-in-law who sat in a libel case and he told me exactly what went on in the jury room. I was in a case, which is reported, called Boston v Bagshaw which was a civil libel case in which I was opposed by the chairman (no less) of the Bar Council—not the present one but a former chairman. After the verdict, and after I had acquired judgment in my favour, he got 12 affidavits from all 12 jury men to say exactly what they had intended to say. I was shocked to the marrow but the Court of Appeal dealt with the matter quite adequately. They decided not to look at any of the affidavits. Nobody was prosecuted and the world went on much as it had gone on before.
I do not really believe that it is necessary to create crimes on this scale. Obviously, after the New Statesman case we had to think about it. We had to think, first, shall we make a new offence? Second, if we make a new offence, shall we prohibit any leaks, except for the purpose of offences which might be committed inside the jury room? Third, shall we alter the jury oath? We considered all these things.
Years ago when, as Judge's Marshall, I used to swear the Grand Jury, there was in the Grand Jury oath a direct prohibition against disclosure, but there is not in the jury oath as it stands now. These considerations were thought through quite carefully, and we decided that the mischief, as my noble and learned friend has put it, was in fact quite adequately dealt with in the way we had dealt with it. A lot of other things are immoral, a lot of other things are a breach of confidence, a lot of other things are very shocking and should not take place, but they do. Are we going to make it a crime? Answer, no. That is my present view but, in view of what has been said, I will of course consider whether there are cases that we have not looked at.
To be honest, I was not particularly impressed with the three cases raised by the noble Lord, Lord Wigoder, and following my usual practice I will start at the wrong end and work up to the beginning. Where there is an attempt, for the purposes of retaliatory action against a member of the jury—which was his third instance—to ascertain which way the jury had voted 378 for the purpose of "taking the mickey" out of them, in my opinion that is clearly a contempt of court. It is criminal contempt already, and it will continue to be a criminal contempt whenever it is committed and by whomsoever it is committed; and it is of course a lot of other things besides.
Secondly, as regards the case about disagreement, both the noble Lord, Lord Hutchinson of Lullington, and the noble Lord, Lord Wigoder, raised it: supposing the solicitor for the party who is to suffer a second trial tries to find out what affected the jury, I think this is an undesirable practice but I doubt whether it is a crime. I was shocked to the marrow when the solicitor in Boston v Bagshaw got affidavits from the members of the jury—not just private disclosures. I think it is highly undesirable, but I do not think it ought to be a crime, nor do I think it would be particularly helpful.
I have had cases where juries have disagreed and there have been retrials. One resulted in a conviction the second time and my client complained of me because I had made a speech for two hours in reply on the first occasion and made a speech for only an hour and a half on the second occasion. He thought I was neglecting my duty and there was a complaint against me, which I am happy to say never resulted in my being disbarred.
I was in another case where there was an acquittal. That was because I refused to act the second time. I said to the client: "Somebody else will do this better"—because one always does it worse the second time round. I really do not see what value there would be to a defendant in asking a juror after a disagreement: "Did you believe Police Constable X or did you believe my witness Y?" The next jury might take the opposite point of view and come to an agreed conclusion.
On the noble Lord's first case, I am not at all clear that an attempt by a solicitor to interview or to be spoken to or to be replied to in any way by a juror during the course of the trial is not in itself a contempt now. I should have thought it was an act of gross professional misconduct.
§ Lord Wigoder
Clearly I did not make myself clear on that matter. I was suggesting for that very reason that it was the juror who volunteered the information to the solicitor.
§ The Lord Chancellor
I followed that and, as a matter of fact, it happens much more often than one would think; but in those circumstances the right course quite clearly is not to prosecute the juror, which is what this amendment would do. The right course is to tell the judge at once what has happened, to discharge the jury and start again. That is the only way in which it can be handled and it is not an infrequent happening. To my knowledge it has happened in the course of my lifetime on dozens of occasions.
There are times when there has obviously been a mistrial and then the case has to be stopped and started again. Judge Bernard Gillis used to tell his fellow Benchers of a story that they discovered, when a jury returned their verdict, that from the beginning there had been 13 jurors in the jury box and the trial had to be started again. The first time they had noticed it was when the verdict was returned. There are lots of things 379 which can go wrong with jury trials but we do not want to make them all contempt of court. I will, of course, without any prejudice report this and discuss it with the Attorney-General and with my officials, because there may be cases where we ought to tighten it up.
Perhaps I ought to say one other thing to the noble Lord, Lord Hutchinson—one of the many people who have defended me from criminal prosecutions, I am happy to say, as successfully as my noble and learned friend Lord Rawlinson. I have great scepticism about sociology and research, but I do not endorse the hostility with which he regards this, with apparent impartial malevolence, without fear or favour, affection or good will—as a judge improvidently once said to me when he took the judicial oath and was made to say it again, rightly the second time.
I am not hostile to research. Let me give an example. There was a very useful work done by Dr. Hood of Oxford University on the jury trial, which did not involve as a matter of fact any of the malpractices the noble Lord, Lord Hutchinson, objected to. He had a dummy jury at the back of the court which he then interrogated, and he had some very interesting results comparing the verdict of the dummy jury with that of the real one in the jury box. I thought it was a very good piece of research and very well done. So I am not endorsing the atttack on research. I remain myself an unbeliever, an agnostic, but not an atheist on the subject. Having said that, I do hope the noble Lord, Lord Wigoder, and the noble Lord, Lord Hutchinson, will take it from me that I shall look at this again, but without any real desire to deliberalise it.
§ Lord Hutchinson of Lullington
I am most grateful for those last words coming from the noble and learned Lord the Lord Chancellor—if I may say so, a most enjoyable but difficult ex-client. I am bound to say on the question of research that, when the learned Lord Advocate says that the clause does not seek to distinguish between good and bad research, that is really the essence of the objection to it. I am afraid I remain filled with impartial malevolence towards that type of research.
I am not against research, research into conduct of members of the Bar, research into my conduct in court, research into the whole way that the process is conducted. Let that go on; I have no fear of that; that is perfectly right and perfectly proper. What I do object to is research which involves ordinary members of the public being asked questions about what they have done and said in the privacy of the jury room. That, I would have suggested, and I still maintain the position, is an entirely different matter. It is a harassment of members of the public who already do an incredible job in coming to the courts and spending hours and hours listening to evidence and giving verdicts. If they are going to be subjected to questioning afterwards, questioning which in itself can achieve absolutely nothing, I should have thought that all noble Lords here would have agreed that that was wrong. Listening here, with all their experience of debates, and then, if they are not voting according to the Whip, coming to a conclusion as to how in the end they feel about the matter, how many noble Lords would be able, if a sociologist grabbed them in the corridor 380 afterwards, to point to the specific matters that, after four or five hours of debate, had convinced them that they should go one way or the other? It is a perfectly idle form of research, and I would still say may do irreparable harm to the whole system of jury trial.
That is all I wish to say. Of course, having regard to the last words of the noble and learned Lord the Lord Chancellor, if he undertakes, as I am sure he will, to give this matter more thought and take soundings, certainly in the profession, and elsewhere, I will certainly withdraw this amendment and will not move the two other amendments which follow it.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 17 and 18 not moved.]
§ Clause 8 agreed to.
§ Clause 9 [Use of tape recorders]:
§ On Question, Whether Clause 9 shall stand part of the Bill?
§ 5.37 p.m.
§ Lord Renton
I have not tabled any amendments to Clause 9, but I suggest to my noble and learned friend the Lord Chancellor that it requires a little more thought. I think it could be improved in the direction of some liberality, which I will explain. Of course, the clause as it stands is based on the Phillimore recommendations in paragraphs 42 and 43 of their report. But it is now more than six years since Phillimore reported and since then there has been a great advance in the use of tape recorders, and indeed in the construction of tape recorders. I believe that there are now some quite effective ones which would fit into something the size of a pocket watch, and which by way of receiving microphone have something just stuck into the lapel of one's coat like a trade union badge or British Legion badge, or something like that. So we have to think in terms of the general availability and increased use of these, and indeed the difficulty of detection sometimes when they are used. We want the law to be enforceable and we do not want to create a situation in which there has to be a lot of searching of people in court to ensure that the law is being obeyed.
Of course, the court reporters, whom we used to refer to at one time as the shorthand writers—that term is now obsolete—now use them in many cases as a matter of course; that fact is acknowledged in subsection (4) of the clause and there is no problem about that. But I think that subsection (1)(a) needs to be looked at. I suggest that it should be the other way round from the way that it is expressed. At the moment it is to be a contempt of court to use a tape recorder or other instrument for recording sound in court except with the leave of the court. I suggest that such use should be allowed unless the court otherwise orders. This arises mainly in relation to the use of tape recorders by counsel and by journalists.
So far as counsel are concerned, although counsel have not got into the habit of using them, there would be an obvious advantage to them in doing so, especially in cases lasting (shall we say?) several days in which there is only one counsel employed, and nobody else to take a note. Then there is the case, which sometimes one has experienced in practice, when there are two counsel but one of them falls ill. Moreover, there is 381 even the deplorable circumstance, which luckily I only experienced in its most acute form on one occasion, when I asked my junior for the note that he had been taking of a rather long cross-examination and I took the note home for the night and, of course, it was totally illegible. Of course, there may be other examples—the circumstances could easily be multiplied.
But, so far as journalists are concerned, they already use tape recorders regularly at public meetings and on some other occasions, and I would stress that their reports are more likely to be accurate by reason of the fact that they have used tape recorders than if they have not done so. That being so, why should we not let them use tape recorders freely for preparing newspaper reports of court proceedings, subject, of course, to the kind of safeguards that are already contained in subsection (1)(b) and fortified in subsection (2) and subsection (3) of this clause?
It obviously would be very wrong if the broadcasting media were to use tape recorders in order that there could be broadcasts of extracts from court proceedings. That might, indeed, be said to be prejudicial to the outcome of those proceedings because such extracts would be edited. They might be loaded for or against one side or the other. So that should be forbidden. Those are the thoughts which occur to me. I think that the suggestion that I have made for putting subsection (1)(a) the other way round is something that is more likely to reflect the realities of the situation and introduce more liberality. I trust that my noble and learned friends will give this favourable consideration.
§ Lord Gifford
I was one of those who criticised Clause 9 on Second Reading. But, like, I think, the noble Lord, Lord Renton, I decided that it was preferable to raise points at this stage—on the question, whether the clause shall stand part—rather than put forward any specific amendments. On reflection, the worries that I have about the clause as it stands can be allayed if the noble and learned Lord the Lord Chancellor were able to give some indication of the sort of circumstances in which he thinks that trial judges ought to, or would, or would be likely to give their leave for tape recorders to be used.
There are two particular instances where I feel that tape recorders can be a positive assistance to fairness and justice. The first is where an impecunious client is facing an opponent with large resources and the opponent with large resources has stenographers in court busily writing everything down word for word and providing transcripts to that side for use during the case, the impecunious client having to rely on notes. The second case where I personally would be very keen to use a tape recorder—I would not normally, I think; I prefer to use my notes—is when a county court judge is delivering judgment. County court judges do not, as a rule, have tape recorders installed in their courts and there can be the most awful wrangles in appellate courts as to whether a certain county court judge really said the things which counsel's notes have recorded him as saying.
Having given those two instances, I hope in a helpful way, I hope some clarification can be forthcoming.
§ Lord Roskill
As a former trial judge, I should like to intervene for one moment to express my respectful 382 disagreement with the proposal which has come from my noble friend Lord Renton. Leaving on one side the examples which the noble Lord, Lord Gifford, gave a moment ago, and to which I shall come in a minute, I can imagine nothing more alarming and more terrifying than to try a case, either criminal or civil, which has perhaps attracted a large amount of public attention, with an absolute battery of tape recorders around the court. Anything more distracting for witnesses, anything more distracting for counsel and anything more unnecessary to the successful trial of the action, it is difficult to imagine.
The noble Lord mentioned the case where no note is available. I have never known a case where the trial judge in any court has not taken a full and elaborate note and if someone does not know what has been said he always makes his available to counsel. The suggestion is quite unnecessary. But what is much more serious is that there is in the High Court a proper system of recording. There is a shorthand note taken of every statement from a witness and copies are available, admittedly on purchase. In criminal trials there is a shorthand note available and the judge, of course, always takes a very full note because at the end he has to sum up. It is totally unnecessary to have recordings.
As a trial judge I have from time to time been asked—and I remember one request at the Central Criminal Court—to permit a tape recording to be taken of the evidence. I refused and I refused without any hesitation. One result would be that we would get rival versions of what a witness has said. Tape recorders will be set up in different parts of a court, the acoustics of which are notoriously unsatisfactory, and bits will be picked up by one tape recorder and other bits picked up on another.
There is only one way of properly recording a trial and that is the way in which trials are perfectly properly and adequately recorded at present. There is not in the Court of Appeal today the slightest difficulty except—and I come back to the point made by the noble Lord, Lord Gifford—as regards county courts where the Court of Appeal is entirely dependent upon the note taken by counsel or solicitors. In that case I would accept that there is a case for some system of recording the judgment, although in the vast majority of cases one gets, by agreement between the judge and counsel, a perfectly satisfactory note. But in my experience I have known county court judges take their own tape recorders into court and produce a perfectly good tape which is made available to the parties on request. With that limited exception I think that this would be the most retrograde step and one not to be encouraged.
§ Lord Renton
Before the noble and learned Lord sits down, I should like to say that I listened very carefully to what he said and it would seem to me that the logic of his remarks would be that we should not have anything like subsection (1)(a) at all, whether in its present form or in the form which I suggest.
§ The Lord Chancellor
Perhaps I might intervene for a moment in this dialogue from behind me. I think 383 that really the Phillimore Committee got it right. Quite obviously technological advances have taken place, as my noble friend Lord Renton, has said, and they have taken place, I may say, in video as well in audio equipment. No one has so far suggested that we ought to allow anybody to take a video into court.
What really emerges from this discussion is that there are some uses of tape recorders in court which are legitimate and desirable, others which are questionable and others which are unquestionably bad. What the Phillimore Committee said and what is in my clause is as follows:The basic principle in all such matters is that a court must have power to regulate its own proceedings,".It goes on to say:but some uniformity of practice is no doubt desirable. We see no objection in principle to the use of recording machines. For many purposes they are no more than a modern substitute for shorthand, and in some courts they are officially used as such. The main objection to the use of recorders is that they produce a more dramatic but not necessarily more accurate account of what occurred in court. We consider that it would be particularly undesirable for recordings to be broadcast or otherwise made public especially since, in the wrong hands, they can be tampered with so as to produce a false record of what occurred. Such a practice could well make witnesses even more nervous than they tend to be already ".Respectfully, I think that the Phillimore Committee got it more or less right. I certainly visualise a liberal use of the permission to be granted by judges, in the regulation of their own proceedings, to authorise the use of a tape recorder to legitimate persons like court reporters and counsel, as my noble friend Lord Renton suggested. For instance, I visualise a judge saying to a particular reporter—and there is usually only about one in a county court—"Mr. Smith, you can use your recorder generally unless I tell you to the contrary". But, for the reasons given by my noble and learned friend Lord Roskill, I think that the judge must give leave.
At the idea of a battery of people coming in without any kind of control, recording not all but particular parts of proceedings and perhaps selling them to other people, my mind begins to boggle, if my mind ever does boggle—it is past boggling at my age. But, on the other hand, somewhere in my brief it says—though I cannot turn up the actual passage that says so—that there were pirate tape recordings of particular witnesses during the Thorpe proceedings which were on sale to America. I cannot believe that my noble friend Lord Renton would have liked that, or would have thought that the judge ought expressly to prohibit it before it became illegal.
One starts with the proposition that a court is entitled to regulate its own proceedings, and the form which regulation takes must vary with the development of technology and also with the type of court, the type of proceedings and perhaps even with the temperament of the judge or the nervousness of the witnesses. But I think that we have it right, and, with those explanations, I hope that the Committee will be prepared to let the clause stand part of the Bill.
§ Lord Renton
I think that it would be discourteous if I did not acknowledge the careful thought which my noble and learned friend has given to this matter. However, I would simply point out that under my alter- 384 native proposal the court would still have control of its own proceedings and, under the clause as it stands, there would be occasions when my noble and learned friend's mind would still boggle because the judge, feeling that he should allow a tape recorder to one counsel, would hesitate to deprive other counsel of having one. Then we would have just what my noble and learned friend Lord Roskill feared, a battery of tape recorders displayed by counsel alone, to say nothing of the journalists. However, I certainly would not wish to press this any further. As I say, I am grateful to my noble and learned friend.
§ Clause 9 agreed to.
§ [Amendment No. 19 not moved.]
§ Clause 10 agreed to.
§ Clause 11 [Offences of contempt of magistrates' courts]:
§ 5.55 p.m.
Lord Gifford moved Amendment No. 20:
Page 5, line 9, leave out paragraph (a).
§ The noble Lord said: I beg to move Amendment No. 20, which stands in my name as well as that of the noble Lords, Lord Mishcon and Lord Hutchinson of Lullington. It might be convenient if we discussed Amendment No. 21 as well, because the purpose of both amendments is to restrict the scope of the offences which are introduced by Clause 11.
§ Clause 11 deals with an extension to the magistrates' court, which at the moment has only limited powers, of the powers to commit and penalise for contempt. Amendment No. 20 arises from the Phillimore Report. Phillimore noted that magistrates in England and Wales have for many years had summary powers to punish disobedience to court orders and to punish recalcitrant witnesses. At paragraph 37, the committee recommends that similar powers should be given to magistrates' courts to deal with a contempt in the face of the court.
When we look at the nature of the mischief which the committee felt ought to be dealt with, we see that in paragraph 36 the only clue is as follows:
There have been instances recently of disorderly conduct in magistrates' courts which have brought proceedings to a standstill. The offenders may sometimes be removed from court, but this represents no deterrent to those who make a practice of disruption".
I end the quotation by emphasising the word "disruption".
§ The effect of the amendments that stand in my name would be to leave it as an offence for someone wilfully to interrupt the proceedings of the court, but they would delete other parts of Clause 11 which, I would suggest, go quite absurdly wide. Under Clause 11 it is to be an offence to insult a justice or to insult a witness, solicitor or counsel, whether in court or when they are travelling to court or returning from court. Wider still, it is to be an offence for someone otherwise to misbehave in court. Quite what other kinds of misbehaviour are intended is not stated.
§ I should have thought that magistrates and other judicial officers ought to expect the occasional jibe or insult from time to time from people who feel upset at the justice that they may dispense. If that interrupts proceedings, one can see a need for some kind of 385 power. If a breach of the peace results, is intended or is likely from some such insult, there is the criminal law to deal with it. But the idea of a magistrate who may be the object of a jibe having the power to detain the insulter until the rising of the court and then at the end, as it were like some headmaster punishing a misbehaving schoolboy, meting out a penalty which can be as much as one month's imprisonment—a power which makes the magistrate the victim, the witness, the prosecutor, the judge and the jury—is one which fills me with some foreboding.
§ It is said that in cases of contempt in the face of the High Court the judges are able to deal objectively with the affront to justice and not, as it were, to take it personally. Whatever may be the merits of that proposition—and I do not think that it is always true—magistrates are not used to wielding this kind of power and if they are to be given it, I think that it should be confined to offences which can reasonably be determined, such as the interruption of proceedings, which after all is the mischief with which Phillimore sought to deal. I would suggest that these amendments limit those powers to what is necessary to do justice, and to what is necessary to implement the Phillimore Report. I beg to move.
§ The Lord Chancellor
With the greatest respect to the noble Lord, Lord Gifford, I think that he is making rather a meal of this. I think he has overlooked two important facts. The actual wording to which he objects is lifted verbatim from Section 157 of the County Courts Act. I have done a little research and I find that the County Courts Act is now dated 1959, but the particular words to which he objects have been in the County Courts Acts, so I am informed as a result of my secondary research, since 1846.
During that entire period, which included the reigns of the glorious Judge Cluer and the glorious Judge Hill-Kelly, whom some of us remember, and others, not once has there been any trouble of any kind resulting from these words. I really think that it is better to have the same words in the two Acts than different words in the two Acts; otherwise I can see a large number of cases going to the Court of Appeal based on the difference in nomenclature.
The Magistrates' Association has always pressed me to do something of this kind. The Phillimore recommendation at paragraph 37 is:We recommend that similar powers"—that is, similar powers to the county courts—should be given to magistrates' courts to deal with contempt in the face of the court".The difference between Phillimore and the present draft relates to penalties. It is partly due to inflation that we have increased the monetary penalty, but it is not entirely due to inflation that we increased the monetary penalty, nor the penalty they recommend in respect of imprisonment. The reason for that is that the Phillimore Committee recommended that the magistrates' courts could certify for the Divisional Court who would have the unlimited powers of committal, and this arises as a summary offence only.
I am quite prepared to look at the penalties which are higher than Phillimore recommended, but, on the whole, I stick to Phillimore on the substantive law. I quite agree that the word "wilfully" has given rise 386 to criticism in some directions, but if you look up Halsbury's Statutes you will see that that has been now the subject of some judicial determination and definition and is the now familiar word. I think that "wilfully misbehaves might, if it became frequently used by the magistrates—but I do not suppose they will use it any more frequently than the county court judges—be the subject of some judicial determination. But I would prefer to keep it as it is. When the noble Lord, Lord Gifford, says, "Well, people must put up with a certain amount of insult", I wholly agree with him; but then they do, and I do not see on the whole why magistrates and witnesses in magistrates' courts should be subjected to any greater degree of insult than county court judges and witnesses in county courts.
I can remember one case—I think probably before Lord Gifford was born—when I appeared in one of the Norfolk county courts, North or South Walsham, I think. A witness whom I had cross-examined most ineffectively, but successfully as it turned out, appeared suddenly from behind a pillar as I left the court and said, "Young man, you made me out to be a liar. Take that and that and that!" And hit me three times with her umbrella. Why that should he permissible in a magistrate's court and not in a county court, I do not know. As it was a county court I went in and said to the judge that this peculiar episode had happened. He sent for the policeman. The policeman looked at the witness and said, "Now, now, now", and that was the end of the whole of the episode. It seems to me that on the whole I was right to complain.
I can remember another occasion when the lady who was prosecuting a client of mine brought all her friends to witness the discomfiture of my client, and he got off rather lightly thanks to a merciful plea of mitigation which I had put forward. All the friends chased me down the corridor of the Central Criminal Court, and I think I would have been hatpinned but for the fact that the lift suddenly came down, opened its doors, I leapt in, the lift closed and took me up to another floor. Why this should not happen equally in the magistrate's court and the Central Criminal Court, I do not know.
On the whole I am content with this. I hope that the noble Lord, Lord Gifford, is satisfied that I am not a true enemy of human liberty, but I think "wilfully misbehaves" would have covered both types of conduct.
§ Lord Hutchinson of Lullington
When one is just about to give an example one always finds that the noble and learned Lord the Lord Chancellor has experienced the situation one is going to give in a far more excessive form than any example one can give oneself. I am rather surprised that he would not welcome with open arms this amendment. He talks about making a mouthful, but surely these eight or nine lines are in themselves a mouthful. All that is wanted is simply a provision for the disruption of the court proceedings. Surely to be insulted is an occupational hazard that all those who go to court are prepared to accept and suffer, and regrettably there are justices of the peace throughout the land who have a somewhat inflated view of their own importance.
387 The fact that these words come from 1846 is, if I may say so, to the point, because society has developed since 1846. It is not such a paternalistic situation as it was in 1846 in the Petty Sessions around the countryside. I would have suggested that if you keep these words, "or otherwise misbehaves in court", you will have examples of ladies coming into court in trousers and being told to get out and put a skirt on, and people who chew gum or break peanuts, or do all sorts of things of that kind, considered by some justices to be misbehaving. Having regard to the enormous powers which they have in this clause, I would ask the noble and learned Lord the Lord Chancellor to look at this again and see whether it could not be put in one line that this should simply cover behaviour which causes disruption of court proceedings, and that that is surely enough.
§ The Lord Chancellor
I frankly do not think so. Magistrates are entitled to have their proceedings conducted in a dignified manner. Witnesses and counsel who appear as advocates in court should be entitled to be protected from the sort of thing which has happened to me in my own time. A form of words which has served county court judges—including those whom I have mentioned, perhaps disrespectfully, from my own youth—over 100 years will serve very well at the present. I will of course think about the matter between now and Report, but I am not very much inclined to change these hallowed, sanctified words which have served us so well for so many years. After all, I am a Conservative.
§ Lord Gifford
I am grateful for the assurance that there will be another look, and I hope that when it is given it will be remembered that when we come to the magistrates' courts we are dealing with a much wider range of dispensers of justice, many more of them; we are dealing with laymen; and dealing with laymen who are having to deal on the whole with more controversial issues than come before the normally quiet county courts.
Therefore, while there may have been no complaint about the use of these powers, while I think the noble and learned Lord said that they had never been used, which perhaps indicates that they are not really needed, I should like to look at it again, and I am glad that the Government will. With that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 21 not moved.]
§ 6.10 p.m.
§ On Question, Whether Clause 11 shall stand part of the Bill?
§ Lord Renton
I invite attention to subsection (4), which is a flagrant example of non-textual amendment when it should be done by textual amendment. The provision reads:The foregoing provisions of this section shall have effect as if enacted in the Magistrates' Courts Act 1980; and for the purposes of section 108 of that Act (appeal to Crown Court) an order under this section shall be treated as an order made on conviction".388 The Magistrates' Courts Act 1980 is a valuable piece of consolidation and we will not get anything like a clean statute book unless we follow up consolidation with textual instead of non-textual amendment, as we have on this occasion. I do not have with me my copy of the Report of the Committee on the Preparation of Legislation, but this was one of the things they were most keen about, that we should try to get the statute book into a good state. Under the direction of my noble and learned friend the Lord Chancellor fine work has been done on statutes in force, but that work will be nullified if we have non-textual amendments of this kind, so I hope the draftsman will be asked to put this in order between now and Report.
§ The Lord Chancellor
I certainly take on board what my noble friend said. I am not sure I would accept his description of it as a "flagrant example of non-textual amendment". All that this subsection was designed to do was to ensure that, for the reasons given by the noble Lords, Lord Gifford and Lord Hutchinson of Lullington, in discussing the last amendment, there should be an appeal by way of rehearing to the Crown Court if someone suffered any of the penalties under the preceding provisions. However, I shall of course refer what my noble friend said to the draftsman. He is one of the most experienced draftsmen in the business, so my noble friend can he sure that the point will be taken and examined in very safe hands, better than mine.
§ Clause 11 agreed to.
§ Clause 12 [Amendment of the law in Scotland relating to certain offences by witnesses]:
§ On Question, Whether Cause 12 shall stand part of the Bill.
§ Lord Mackay of Clashfern
This clause, by amending Section 344 of the Criminal Procedure (Scotland) Act 1975, provides that in Scotland a witness in a summary prosecution who wilfully fails to attend court after being duly cited or unlawfully refuses to be sworn or refuses to answer any question which the court may allow or to produce documents in his possession when required by the court or who prevaricates in his evidence, shall be guilty of a criminal offence rather than being guilty of contempt of court. On reflection, I consider that this new provision would not work satisfactorily and that it would be advisable to retain unamended the present provisions of Section 344, which leaves this matter as a particular type of contempt of court, and accordingly I invite the Committee to agree that the clause should not stand part of the Bill.
§ Clause 12 disagreed to.
§ Clauses 13 and 14 agreed to.
§ Clause 15 [Penalities for contempt of court in Scottish proceedings]:
§ 6.15 p.m.
Lord Mackay of Clashfern moved Amendment No. 22:
Page 7, line 34, leave out ("(4)") and insert ("5)").
§ The noble and learned Lord said: This is designed to correct a drafting error; subsection (4) should be subsection (5).
§ On Question, amendment agreed to.
§ Clause 15, as amended, agreed to.
§ Clauses 16, 17 and 18 agreed to.
§ Clause 19 [Interpretation]:
§ 6.20 p.m.
§ On Question, Whether Clause 19 shall stand part of the Bill?
Regarding subsection (2), I have two questions for clarification. Bearing in mind the interpretation in subsection (1) of "court" and the provisions in Clause 7, I am rather puzzled as to the necessity for the specific reference to tribunals of inquiry under the 1921 Act. Further, the second part of subsection (2) refers to the time when a contempt would be active. I ask these questions because the Schedule 1 is specifically set aside for providing for the times when proceedings are active, and I am wondering whether that might be a happier place in which to place the timing of contempt as it applies to the 1921 Act.
§ Lord Renton
I support my noble friend Lord Morris in what he says, especially on his second point. It is strange in an interpretation clause to have this point of substance made about the time at which proceedings become active when all other such points are dealt with in Schedule 1. I support Lord Morris in suggesting that this point also should he stated in Schedule 1. To the reader of the statute this could be regarded as a bit of a trap; one does not expect to find in the interpretation clause matters which are plainly dealt with elsewhere in the Bill.
§ The Lord Chancellor
This is a highly technical piece of drafting. I do not want to be a bore about it and I will explain it in, I hope, intelligible language. The first thing to remember is that under Section 1 of the Tribunals of Inquiry Act 1921, contempt of court applies to tribunals of inquiry. What is a tribunal of inquiry, and what are proceedings in front of it? A tribunal of inquiry is not a court, and proceedings before it are not judicial proceedings between parties at all, and therefore a totally different series of considerations applies to the application of contempt of court to tribunals of inquiry.
Noble Lords will remember that tribunals of inquiry were started in 1921 owing to the very unsatisfactory nature of the Marconi scandal proceedings before a Select Committee; it was found that members of that Select Committee of another place voted on purely party lines, and not a great deal of public satisfaction was had by anyone. Thus, tribunals of inquiry, which on the whole have proved themselves over a number of years, have, I think rightly, taken the place of the old Select Committee procedure in a great number of cases. However, having attended or read debates about almost every tribunal of inquiry under the Act since it came into force, I am bound to say that in almost every case there has been controversy after the report has been delivered, as well as a complete attack upon tribunals in principle and in detail. 390 Contempt of court does apply to tribunals, though the nature of the proceedings before them is not the same as the nature of proceedings before a court where advocacy is practised between parties and issues defined by pleadings of one kind or another.
In other words, in order to define the activity there is needed a definition different from that contained in Schedule 1, which applies to courts and judicial proceedings. I dare say that it would have been possible to draft the point the other way by adding an entirely new schedule or an entirely new paragraph to the provisions of Schedule 1, but the experienced draftsman thought that it was better to treat tribunals separately. They do not exercise any part of the judicial power of the state in the ordinary sense of the word, and they arc animals of a colour that is very different from the other animals with which we are dealing in connection with contempt of court.
The separate provision as to when proceedings of tribunals become active is necessary because it was desired to follow the Salmon Committee recommendation in this regard. In addition, because tribunals are unlike any other court proceedings it is better to deal with them expressly rather than to leave the position in doubt by letting them be covered by some other general words in Schedule 1, especially under the heading "Other proceedings at first instance", which occurs in the schedule. The reason why the special provision is contained in Clause 19(2) is that it seemed better not to scatter around too many different parts of the Bill the provisions about the 1921 tribunals Act. At present the provisions are all in Clause 19.
The last question which my noble friend Lord Morris adumbrated, and of which he was courteous enough to give me notice, was why the Bill speaks of the "time" when the tribunal is appointed and not the date of the instrument by which it is appointed. The reason is that the press deals in times of day and not in dates. For instance, let us suppose that a tribunal was not appointed until the afternoon and we had inserted the word "date" instead of "time". The newspapers could in the morning still be technically liable under the strict liability rule. So we put in "time" instead of "date".
This is a highly technical drafting matter. However, I am myself content with the drafting, and I hope that I have dealt with some of the questions which both of my noble friends have asked me.
§ Lord Renton
I am very sorry to appear obstinate. I try not to be, especially when my noble and learned friend the Lord Chancellor is dealing with a matter. I fully accept what he says in relation to the first part of subsection (2), and I take his point that when dealing with the 1921 Act and the tribunals under it it is an advantage to have the references to it all in one place.
However, I must confess that even after having heard him—and he is so persuasive—it sticks in my gullet that the last part of subsection (2) should be placed simply in an interpretation clause when all other references to the moment when proceedings become active are contained in a schedule. As a happy and constructive compromise may I suggest to my noble and learned friend that subsection (2) of Clause 19 is simply turned into a clause on its own. Then the various difficulties which have been mentioned 391 will have been met, and I do not think that any of the views which my noble and learned friend has expressed will have been defied.
§ The Lord Chancellor
I shall certainly take the advice of the draftsman on this matter, but my noble friend must not complain if the advice of the draftsman, which I shall probably follow blindly, proves to be not identical with his own advice.
§ Lord Renton
But may I remind my noble and learned friend that it is not draftsmen who are responsible for the contents of Bills, but rather the Ministers who are in charge of those Bills?
§ The Lord Chancellor
That is perfectly true, but sometimes Ministers prefer to follow the professionals rather than the amateurs.
§ Clause 19 agreed to.
§ Clause 20 [Short title, conunencement and extent]:
§ 6.26 p.m.
Lord Mackay of Clashfern moved Amendment No. 23:
Page 9, line 45, leave out ("12,").
§ The noble and learned Lord said: This amendment is consequential on the deletion of Clause 12. I beg to move.
§ On Question, amendment agreed to.
§ Clause 20, as amended, agreed to.
§ Schedule 1 [Times when proceedings are active for purposes of section 2]:
The Lord Chancellor moved Amendment No. 24:
Page 10, line 8, leave out from second ("proceedings") to end of line and insert ("commenced by motion for committal or attachment in").
§ The noble and learned Lord said: This is a technical drafting amendment and its purpose is to exclude summary proceedings for contempt in any superior court in England and Wales and in Northern Ireland from the definition of "criminal proceedings" in paragraph 1 of Schedule 1. Although summary proceedings for contempt in England and Wales and in Northern Ireland are criminal, the procedure relating to the exercise of this jurisdiction in the superior courts is more akin to civil procedure and it would therefore be more appropriate for such proceedings to be covered by paragraphs 11 to 13 in Schedule 1, relating to civil proceedings.
§ As at present drafted, Schedule I excludes from the definition of "criminal proceedings" proceedings for contempt in the High Court of England and Wales or Northern Ireland, but not proceedings for contempt in other superior courts; for instance, the Restrictive Trade Practices Court. That would produce the anomalous result that, for the purpose of Schedule 1, contempt proceedings in the High Court would be treated as civil proceedings, whereas contempt proceedings in other superior courts, which enjoy the same powers as the High Court, would be treated as criminal proceedings. The simple answer is to make it clear that proceedings for contempt in all superior courts should be treated as civil proceedings for the purpose of 392 the schedule. That is what the amendment does. I think that that is all I need say. This is a highly technical drafting point. I beg to move.
§ On Question, amendment agreed to.
§ Lord Gardiner moved Amendment No. 25:
§ Page 10, leave out lines 23 to 29 and insert—
- (" (a) in England and Wales, when the accused person is charged or a summons served;
- (b) in Scotland, when the person is publicly charged on petition or otherwise or at the first calling in court of a summary complaint").
§ The noble and learned Lord said: There are some who regard this particular provision as at least one of the most important in the Bill, and I thought that I should approach it from the basis of an observation which I frequently heard the noble and learned Lord the Lord Chancellor make; namely, that law reform is by consent, or not at all.
The object of the amendment is simply to replace the existing provision in the Bill with the recommendation of the Phillimore Committee relating to the time when strict liability should apply. The consent of the National Council for Civil Liberties has not been obtained. It objects to the present provision and supports the Phillimore recommendation. The consent of the International Press Institute has not been obtained. It supports the Phillimore recommendation, and says:
It is here that the purported liberalising and clarifying effect of the Bill, as far as the press are concerned, entirely fails. In criminal proceedings—the most frequent area of difficulty—the Phillimore Committee recommended, as do we from our experience, that the strict liability rule should apply from the time of charge or service of a summons rather than the earlier time of arrest or issue of warrant.
This for two main reasons. First, there may be much delay between warrant and charge. It is during this very time that the Press can so often serve the public interest by helping in the apprehension of the wanted man. Secondly, it may be difficult to determine conclusively from the police or otherwise whether an 'arrest' has been made or warrant issued, whereas it is police practice to announce charges as soon as they are made. (In the Second Reading debate Lord Hailsham dealt only with the second of these reasons, saying only that everyone knew of the warrant of arrest for Lord Lucan.) In fact most journalists and editors presently treat the strict liability rule as beginning at the time of charge under the existing uncertain law preventing comment on proceedings 'pending or imminent'. The [Institute] also considers that strict liability should end at the time of verdict …".
That, of course, is a very different point. For those reasons they oppose the provision and support the Phillimore reform.
It has not obtained the consent of the Guild of British Newspaper Editors, because they object to the provision and support the Phillimore Report. It has not obtained the consent of the Outer Circle Policy Unit, who express the same view. It has not obtained the consent of Justice; and it has not obtained the consent of the Law Society. The Law Society say this:
As to civil proceedings, they recommended the setting down for trial as the starting point and the Bill has adopted this. However, as to criminal proceedings, they"—
that is, the Phillimore Committee—
rejected the issue of the arrest warrant, or arrest if without warrant, as the starting point … They thought that these events were not sufficiently public and newspapers might well not know of their having happened. Also, in certain cases, comment might
be restricted for an obviously excessive length of time e.g. when a wanted man was not found for a long time (or ever)—for example, a warrant exists for the arrest of Lord Lucan.
The 1978 Discussion Paper 'Contempt of Court' questioned the Phillimore recommendation and seemed very much more restrictive in preference. It considered even what was then thought to be the Scottish rule: the time of the commission of the crime, though the decision in Hall v. Associated Newspapers Ltd. … has since established the granting of an arrest warrant, or arrest without warrant, as the rule in Scotland.
We continue to favour the Phillimore proposal. We agree with that Committee's view that the law of contempt, combining strict liability and a summary procedure, should be invoked only where there is 'a serious and immediate threat to the administration of justice. This in practice is only likely to arise when the trial is due to take place in the near future'.
Furthermore, it should also be borne in mind that strict liability is only designed to control the publication of comment which inadvertently causes prejudice or the risk of prejudice. Where the risk is deliberately created, this constitutes contempt regardless of whether strict liability applies or not and this applies to the publication of comment which the publisher knows or ought to know, to be likely to have this effect, even if not actually intended to do so".
§ Then they go on to deal with another point.
This has not the support of any legal newspaper so far as I have been able to discover. It has not the consent of The Times. The Times, in a leading article of 28th December, said this on the point:
The Phillimore proposal was that, in criminal cases, the risk of contempt should run from when a suspect is charged. The Bill lays down the moment of arrest without warrant, or the issue of a warrant for arrest, as the critical time. This is an improvement on the present quite unsatisfactory state of the law, which uses the criteria of 'imminence'. However, whereas the time of charge is a definite and clear legal moment, there may be a greater uncertainty in ascertaining if and when an arrest has been made.
Why, too, does the Bill put the press at risk of contempt during the period of appeal?
That, of course, is a separate point.
It has not the consent of the Guardian, which, in a leading article on 7th March headed,
Phillimore got it right",
Phillimore therefore concluded that contempt should apply from the moment a suspected man is charged, or a summons served. This formula maintains—in practice reinstates—the protection to which defendants are entitled without creating any ambiguity among reporters or leaving the police without help from the media in the interval between a warrant and a charge".
The difficulty is in finding where any consent comes from. I will not burden your Lordships with further quotations, but the Daily Telegraph— not a notoriously Left-Wing paper—did not support it in its article of 28th November. On this provision the Bill obtained no support from the Sunday Telegraph of 30th November; nor from the Sunday Times of the same day, which referred to the Bill as
a classic example of too little too late".
Therefore I am still somewhat puzzled by what the noble and learned Lord means when he says, as I have heard him say not infrequently, that law reform must be done by consent or not at all. It is very difficult to find any legal body or any national newspaper which agrees with the Government upon this point; all of them appear to prefer the recommendation of the Phillimore Committee.
§ I quite appreciate, of course, that the noble and learned Lord is entitled to say that as long as he has one consent that is sufficient, and that is the consent of the 394 noble and learned Lord, Lord Denning. I do not object to that at all. Respectfully, I do not subscribe to the doctrine of the elected dictatorship. We may have a funny system of elections, but on the whole it tends to elect a strong Government and a strong Opposition, which I am inclined to think suits us best. I cannot see any reason why a Conservative elected Government should not be able to get their legislation through the House of Lords at all; so I am not saying that out of disrespect for the system. It is only when there is a Labour Government that it is an intolerable situation, but not when there is a Conservative Government.
But it is very difficult, I think, for anyone to say, "I really only put law reform forward to which I think there is general consent". I cannot think of any other case in which there has been so much opposition to a provision, or so much agreement to what ought to be there—namely, the recommendation of the Phillimore Committee—than has happened in this case. In saying this, one has, I think, to remember that this provision appears in a Bill which does not implement Recommendation 6 of the report of the Phillimore Committee, as to conduct intended to pervert or obstruct the course of justice; it does not implement Recommendation 19 of the Phillimore Committee, on bringing influence and pressure to bear: it does not implement Recommendation 20, about threatening or taking reprisals; it does not implement the very important Recommendation 21,
that scandalising the court should not be a contempt but that defaming a judge so as to bring the administration of justice into disrepute should again be an indictable offence to which there should be a defence if the allegations are true and in the public interest";
and it does not implement Recommendation No. 22,
that all distinctions between criminal contempts interfering with justice and civil contempts breaching a court order or undertaking should be abolished";
or Recommendation 28,
that where summary trial of contempt by a judge alone is retained there should be various procedural safeguards to ensure inter alia that the accused knows the charge and can defend himself and mitigate, and that the Attorney General is informed
What has disappointed so many of us is that so many of the recommendations which arc in the interests of the freedom of speech of the ordinary citizen have not been implemented.
§ As to this clause, I respectfully invite the Government to think about it again, if they would, and to consider whether even at this stage, or a later stage, they should not accept this amendment. I will then withdraw the amendment. If I may venture a final reflection, it may be that we live in times when there is less regard for authority than there used to be. There is some reason, I think, to be a little apprehensive that in the future we may see an increase in civil disorder. If so, it is the move necessary that law and order should be maintained—and does not all experience suggest that law and order are more likely to be maintained if the relevant laws meet with the general support of the public? I beg to move.
§ Lord Mackay of Clashfern
As the noble and learned Lord, Lord Gardiner, has said, this is a point at which the Bill departs from the recommendations of the 395 Phillimore Committee. I think that I can fairly claim that this is a matter which has given us a good deal of thought and we have tried to propose a solution which seems to us to be right. We have sought to approach the matter as one of principle. It is true that in matters of this sort one might expect the newspapers to favour the later time rather than the earlier time—and not everyone to whom the noble and learned Lord referred has yet seen the force of the reason which prompts us to adopt this particular test. So far as the preservation of order is concerned, we consider it important that the machinery of justice, the administration of justice, should be sufficiently protected to enable civil order to prevail—so that the last point that the noble and learned Lord made is a point with which we have sympathy but, in our view, what we have done will tend to promote that in this particular area.
When the Phillimore Committee came to consider this matter it is obvious that they found the considerations to be rather finely balanced. May I remind the Committee of precisely what they said: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".They clearly recognised that particular disadvantage of the later date—and there may be others. The report goes on:On the other hand, a warrant for arrest 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".So the essence of the reason for which they chose the later time is this basic one, that, if they chose the earlier one, the press might not know that the time had already started. They go on to add in relation to the more exceptional cases:Moreover, if the wanted man was never found publication would be restricted, at least in theory, as long as the warrant for his arrest still existed".They recognised there the practical point which I think was raised in relation to the amendment that the noble Lord, Lord Wigoder, put forward on the last occasion to seek to deal with that particular matter. But the basic reason for which the Phillimore Committee went for the later date was, I would submit, on that passage, that the press might not know whether they were at risk.
That point is completely dealt with by the provision to the press of the defence of Clause 3:A person is not guilty of contempt of court under the strict liability rule as the publisher of any matter to which that rule applies if at the time of publication (having taken all reasonable care) he does not know and has no reason to suspect that relevant proceedings are active".Accordingly, we have sought to deal with that difficulty in that way by providing to the press a defence in that situation. It seems reasonably clear that if the case is one which the press are interested in reporting they will follow it sufficiently closely to be able to make the necessary inquiries.
In our view, the proper way to approach this question is to consider in principle when proceedings have 396 started. Since the Phillimore Committee reported, as the noble and learned Lord, Lord Gardiner has, mentioned, the High Court of Justiciary in Scotland, constituted as a five-judge court so that it could review earlier judgments (and, therefore, in a particularly authoritative judgment as far as Scotland is concerned) considered this matter from the point of view of principle. They said in the course of giving their opinion:We have no doubt that it can be said that from the moment of arrest the person arrested is in a very real sense under the care and protection of the court".Then I pass on for the sake of brevity. They continue:From the moment of arrest the process of apprehending, charging and bringing a person to trial has begun and the beginning of that process is one of two points of time at which relevant proceedings have commenced so as to bring into play the contempt jurisdiction of the court where prejudicial publication is concerned".Analysing the position properly, at the time of arrest proceedings have started. If they have started, then why not take that as the time at which proceedings have started? Why create an artificial rule for the purposes of contempt of court laying down that proceedings, although they have, in fact, started, have not started until some later date? The other point of time that they mentioned is in relation to a case where the court grants a warrant. They go on to say:At that time the court, in the person of the sheriff, is informed of the identity of the person accused on prima facie information and grants its authority for his apprehension for the purpose of being formally charged and thereafter, it may be, of his committal for further examination or until liberation in due course of law with a view to possible trial on indictment. At this point of time it cannot be disputed that the court has become seised of proceedings against an individual which, if they move through all subsequent stages of the process, will end in trial. The machinery of the administration of criminal justice has in these circumstances been set in motion by the court itself and there is no more ground in logic or expediency, and certainly none in authority, for denying to such an accused person, any more than to a person who has been arrested, the full measure of protection against the injury which he may sustain by the publication of material prejudicial to a fair and impartial trial".That decision was very carefully considered. It departed, as the noble and learned Lord, Lord Gardiner, has said, from the earlier view taken in Scotland; and the court approached the matter as one of principle. I venture to claim, although it is a Scottish case and I know it has no direct authority in the common law system, that the method of analysis, the way in which the court reached its conclusion, should, I would suggest, commend itself to the Committee. The disadvantage of the later starting point is, in our view, a strong one. At the moment of arrest or the time of issue of a warrant or summons, the identity of the suspect is linked with the particular crime that is in question; and it is in relation to that, that the most prejudicial material can be directed. Some of the most damaging prejudicial material is an account of the suspect's past history, especially if that contains matter which it would not be appropriate to bring out at the trial. It might even be worse if it includes an account of previous acquittals, because that might suggest that on this occasion at least he should not have the benefit of the treatment that he obtained earlier.
In our view, it is quite wrong that at this time, when the accused person has become linked in this way with the particular charge, he should be deprived of the 397 court's protection and should be exposed to publication of prejudicial material affecting the particular matter with which he is charged. Accordingly, our view is that, while the Phillimore Committee's recommendation is entitled to very considerable respect, the reasons which they have given on this occasion are overcome by other matters in the Bill and by the considerations to which I have referred.
I should close by saying that the consideration that the noble Lord, Lord Mishcon, referred to regarding the experience of recent weeks is a strong reminder to the Committee that this may be a most important matter and that this interval of time between the time proposed in the Bill and the time proposed in the amendment may be of very critical importance.
Perhaps the experience of the past weeks also casts a little doubt on what the noble Lord, Lord Ardwick, said at Second Reading (at column 688 of Hansard of 9th December 1980):If anybody argues that few editors have been arraigned for contempt, it is because contempt makes cowards of us all … Most of us, faced with the law as it is, act as though the better part of valour is suppression".It may be open to doubt whether that is as true today as it was when he said it. In that situation, I would commend to the Committee the time which we have chosen in the Bill rather than the time suggested in the amendment.
§ Lord Ritchie-Calder
Since the noble and learned Lord the Lord Advocate of Scotland has spoken, may I intervene as a Scottish crime reporter. I think what we are discussing here, from a long experience of reporting crime, raises all the issues which I suggest my noble friend has raised. As a crime reporter—and I am talking now not about the responsibility of editors but people finding and deploying the facts—you are forced into the most incredible situations if you do not know where you stand.
We see it now in this incredible euphemism which annoys me every time I hear it on the air or read it in the press that somebody is "assisting the police in their inquiries". What you can attach to that as a crime reporter is unlimited. You are talking about people whom you may have interviewed outside the charge itself and therefore by reference are identifying because they are now "assisting the police in their inquiries". We are beggaring the language. We are going to drive reporters and, I suggest, editors into the most incredible, tortuous ways of avoiding contempt. I am talking as an ex-crime reporter—I do not mean an ex-criminal—and you know what the police are thinking, you have been well-informed about what the police are thinking, you know exactly whom they are interrogating. Most of the time—certainly in my experience of crime reporters—we are assisting the police in their inquiries. We were not trying to interfere with their inquiries, we were assisting them in their inquiries. Therefore at a point at which you are talking to Norman Thorn, are you identifying him? Are you at risk in a case like the Norman Thorn case, in which I was actually involved? When you ask him you know exactly why you are asking him because you know the police have told you information leading directly to him. At the moment you are committing somebody like Norman Thorn.
398 All I am trying to say is that in terms of practical journalism it is not just a question of protecting the editor or the lawyer who advises the editor. But we are concerned in this definition in protecting the man on the job who is not going out to wreck law and order; he is trying to determine the facts and he does not know at what point he is involving his newspaper in contempt.
§ Lord Wigoder
I am not sure that the expression used by the noble and learned Lord the Lord Advocate about experience in recent weeks takes us very much further in this particular amendment. Perhaps all that that experience shows is that if the case is sufficiently notorious whatever rules are laid down they are going to be quite flagrantly and deliberately broken.
Having said that, may I go on to say that I think that this is one of the controversial issues in this Bill on which—although there are arguments both ways—the Government are right. I say that with some reluctance because I appreciate that in saying that I am to some extent imposing a restriction upon press freedom which in principle I would very much not want to do. The reason I say it is that the test proposed in the schedule when the time should run is "arrest". The test proposed in the amendment is "charge". Between arrest and charge a period can elapse in which press comment—unrestricted—could be very very harmful to the prospects of a fair trial.
This is a development since Phillimore reported and I have in mind particularly the Prevention of Terrorism Act under which a terrorist, after some bomb incident which may have killed a number of people, can be arrested and may well not be charged for seven days. It may even be for a longer period than that. I find it difficult to see that we should cater for allowing the press the right of unrestricted press comment on the man who has been arrested and the crime he is alleged to have committed during a period as long as seven days. If one is going to allow comment of that sort, then it may be we are laying the way open to press comment that will seriously interfere with the administration of justice.
§ 6.58 p.m.
§ The Lord Chancellor
I want to be as discreet as I can about this matter, but I think that the speech of the noble and learned Lord, Lord Gardiner, compels me to say what I am about to say. He quoted a very large number of citations including The Times and the Guardian. He did not quote one quotation after Sutcliffe—not one. He did not quote what The Times said about Sutcliffe. He did not quote what the Guardian said about Sutcliffe. There you had a crucial case. Article 6 of the Convention of Human Rights says:In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".We heard the noble Lord, Lord Mishcon, at our previous meeting refer indirectly to the Sutcliffe case, and what he said about it will be within the recollection of the Committee. This is precisely the point at which the amendment we are discussing is crucial. It is the 399 point: it is the only point, I venture to say. What did The Times, from which the noble and learned Lord cited pre-Sutcliffe, say about it?—The press and television have little to be proud of in their treatment of the arrest and subsequent charge for murder of Mr. Sutcliffe".That is what they said—"little to be proud of". Even this afternoon, the noble and learned Lord cited the case of Tuite, which was active, and he asked whether the police were bound by the law of contempt. What did The Times say about that in relation to Sutcliffe? It said this:Even more seriously, perhaps, members of the police must have told representatives of the media details of evidence which would almost certainly form part of the prosecution case".I could go a great deal further than that if I wished. The Telegraph published a photograph of that euphoric press conference held by the police. What is the time at which a man is entitled to a fair trial, and what is the point of time at which he is entitled to the protection of the law of contempt? What did The Times say about that? It says very precisely that it is the point after arrest and before charge very often; and that is the point which arose in the Sutcliffe case—after arrest and before charge. The noble Lord's amendment would reverse that. The Times said:It is precisely in that sort of case—where a heinous crime is alleged—that a defendant most requires the protection of the law".What did the Guardian say, post-Sutcliffe, which the noble and learned Lord quoted pre-Sutcliffe? The Guardian produced a cartoon in which two Eskimos were looking at a police helicopter coming down in the Arctic waste; and one Eskimo was saying to the other:They are looking for an impartial jury".I wonder why the noble and learned Lord divides his mind into compartments like this. He attacked the Government over a wide range of criticism, but on the one vital point—and I repeat "the one vital point"— of his amendment he failed to notice what had happened in the last few weeks. If ever I had doubts as to whether our judgment about the point of time was right—and I did have doubts; I expressed them on Second Reading—they were dissipated by what happened in that critical case. There we had a man before charge being brought to the court for the purpose receiving it, being put in fear of his life by a demonstration, started by the press and perhaps instigated by members of the police force—and the noble and learned Lord asks us to accept his amendment without disclosing a word of that.
§ Lord Gardiner
I have never felt too competent on the law of Scotland and I do not propose to express any opinion about it. So far as Sutcliffe is concerned, this is of course a case which I believe at the moment is sub judice, which is why I took Tuite in preference. It is no good the Government suggesting, with the greatest respect, that the reason they decided to jettison the unanimous report of the Phillimore Committee on this point and choose the opposite period was because of the case of Sutcliffe. They had decided this quite apart from the Sutcliffe case. I gather from what has been said both by the noble and learned Lord, Lord Mackay, and the noble and 400 learned Lord the Lord Chancellor, that it is accepted that no legal society can be found which thinks the Government are right on this point and that Phillimore was wrong. I have never known, at least in the last 10 to 20 years, such a unanimous body of opinion among lawyers—who by no means always agree—and not only legal societies but the press as a whole.
I will consider what they said about Sutcliffe, which I did not go into earlier for the reasons I have given, but I will certainly do so before the Report stage of the Bill, and I shall be grateful, if the noble and learned Lord the Lord Chancellor, if he thinks it right, would also consider what I have said before the Report stage, and then we can consider the matter anew. But I think it is desirable in these days to have laws which, if possible, have the general support of the public; and I feel it is a real obstacle to the choice which the Government have made that there is this very unanimous broad support among nearly every public organ for the solution of the unanimous Phillimore Report. With that, I will ask leave to withdraw the amendment.
§ The Lord Chancellor
The Government have been asked a question and I will answer it. Yes, of course it had nothing to do with Sutcliffe, which had not then happened, which led us to make the decision we did. I quite agree; that is obvious and that is true.
Secondly, of course one must not be unduly influenced by recent events; but I think there has been a great public revulsion of feeling since Sutcliffe, when people saw the dangers of what can be done between arrest and charge. The noble and learned Lord's citations all derive from the supposition that nothing much can happen between arrest and charge. Sutcliffe has shown that, however unanimous, that opinion is wrong. Phillimore admitted that the balance of argument was very fine; that was the burden of his thought. I agreed on Second Reading that I thought the balance of argument was very fine. I said then, and I say again, that I thought the point of time we had chosen was the right point of time; and in our debate last summer the noble Lord, Lord Wigoder, and the noble and learned Lord, Lord Elwyn-Jones, agreed and pointed out that the press was protected from the main arguments in Phillimore by Clause 3 of this Bill. But I will of course look and see what can be done. There may be an intermediate stage, of course, between the warrant for the arrest and the actual arrest.
I will make all these inquiries, but I am bound to say to the noble and learned Lord that I absolutely reject the kind of general charges he was making at the end of his first speech. I deeply resent the kind of suggestion which was then made; and although I will look at this again, my own mind has been very much altered and the doubts I had have been very much reduced by the experience of the last few weeks. I believe that we are living in an age when law and order is in doubt, and the assumption appears to be made too readily that populism, in its various forms, is always on the side of mercy and freedom. That has not been the experience of my lifetime and it has not been the experience of the last few weeks. It was not demonstrated outside the magistrates' court the other day. On the contrary, it is vital that a man should have a fair trial, and my noble and learned 401 friend Lord Rawlinson was right when he wrote to The Times and said that what had occurred on that day undermined the presumption of innocence.
§ Lord Harris of Greenwich
I should like, if I may, to say just a few things about this. I started off when considering this matter at the beginning very much taking the same view as my noble and learned friend Lord Gardiner, but I am bound to say I have changed my view to some extent as a result of what happened in the Sutcliffe case. It raises substantial issues, which make one go back and consider one's own position very carefully indeed. But I am bound to say to the noble and learned Lord the Lord Chancellor that I am worried, if I may go back to Clause 3(1), as to whether this does represent an adequate defence for a newspaper. That is because subsection (1) says this:A person is not guilty of contempt of court under the strict liability rule as the publisher of any matter to which that rule applies if at the time of publication (having taken all reasonable care) he does not know and has no reason to suspect that relevant proceedings are active".About the first proposition—namely, whether "having taken all reasonable care" he knew—I have no difficulty at all. I think that is perfectly reasonable. But I am, bluntly, troubled by "has no reason to suspect". That goes a great deal too far. It makes it very difficult for a newspaper to defend itself adequately, not in a case such as Sutcliffe, but in much more marginal matters, when it has to be decided by subeditors, working under very heavy pressure late at night, whether that represents an adequate defence—all the more so as the onus of proof will naturally be on the newspaper to prove its position in the matter. All I would say to the noble and learned Lord is that I should be extremely grateful, as one who, on balance, shares his view on this matter, if he would look at the language of Clause 3 of the Bill.
§ Lord Gardiner
We have several things to think over. I thought, in Sutcliffe, that the real trouble was the police. If the police call a press conference, I doubt whether we shall ever get a state of affairs in which the newspapers accept that it is quite all right for the police to prejudice a man's trial as much as they like, but the newspapers must not say what the police told them. But I shall certainly review that again, in the light of what the noble and learned Lord the Lord Chancellor has said.
§ he Lord Chancellor
May I say that I agree with what the noble and learned Lord has said, and I repeat what I said in connection with an earlier amendment, that policemen must remember that they must obey the law no less than editors? If editors are provoked by policemen to break the law, I know who is most to blame.
§ Lord Hutchinson of Lullington
May I say to the noble and learned Lord the Lord Chancellor, who has thundered about the Sutcliffe case, that the law at the time of the Sutcliffe case was in relation to proceedings being imminent? It is perfectly obvious, in view of what the noble and learned Lord has said, that the 402 police and the press were breaching the law. If that is so, no clause here will make any difference to that. And why have no proceedings been taken against those persons who have breached the law? It is not a question of a new clause being required to fill a lacuna which has been disclosed by the Sutcliffe case. As the noble Lord, Lord Wigoder, pointed out, it has never been answered. But the Sutcliffe case is nothing to the point. In the Sutcliffe case it was obvious that proceedings were imminent. Therefore, with the greatest possible respect, I do not quite see the argument that this clause is suddenly being revealed as a necessity by the Sutcliffe case.
The noble and learned Lord the Lord Advocate has talked about the moment of charge as being the logical moment when the protection should come. But, in an accusatorial system, the moment of accusation is the logical moment when protection should come in. Taking up what the noble Lord, Lord Ritchie-Calder, has said, the practical reality is that when a person in a police station is charged he can be asked no more questions about the matter concerned. He has to be cautioned and the reality is that that is then publicised. When a person goes to the police station to help with inquiries, in many cases the police say that he goes voluntarily. He remains in the police station voluntarily. You are told, when you ask in court whether he could have left if he had wanted to, "Oh, yes, at any moment he liked".
But there comes a moment in the police station when, if that person says "I am going", they reply, "No, your aren't. You are under arrest". At the moment, that can happen at any time up to four or five days. But at some moment when someone is incarcerated in a police station, he suddenly wakes up to the fact, as he is prevented from seeing a solicitor, that he is entitled to leave that station if he wants to. That is the moment when the police say "No, you don't. You are under arrest".
How on earth are the press to know, when someone is in a police station, whether he is under arrest or not under arrest? The whole trouble here is the lack of certainty. The moment of charge is the realistic moment when everybody knows what is the situation, and there is no playing around. The police admit and say at once when a person is charged. When the subeditor, or whoever it is, is deciding what comment is permissible, it is the nature of the charge which will be relevant to what can be said.
It may well be that everybody thinks that someone has been taken in for a murder charge, but after three days' hard interrogation all they can charge him with is stealing. When the charge is eventually made, it is one of simple theft and not of murder at all. During those three or four days, the press has been entirely gagged, because they should have suspected, they think, that the man in the police station was, first, under arrest and, secondly, was under arrest for murder. In reality, neither was so.
§ The Lord Chancellor
I must say to that that the noble Lord, Lord Hutchinson, has missed two absolutely vital points. First, he has asked a question in relation to the Sutcliffe case which, in the nature of things, I should be quite wrong to attempt to answer. Prosecution is not for the Lord Chancellor. I make no 403 comment at all about whether or not an offence was committed in that case under the existing law. All I say is that, above the importance of the freedom of expression, there lies the necessity for a fair trial, and the moment of arrest, or the moment of the warrant, as the Bill now says, may be the moment at which the man who may be charged is entitled to the protection of the law. To my mind, that overrides the other consideration. Article 6 overrides Article 10 in terms of the Human Rights Convention.
Secondly, as regards helping the police with their inquiries, naturally enough, I have a certain amount of sympathy with some of the things that the noble Lord, Lord Ritchie-Calder, said, but the difficulty is when the man is identified personally." A man is helping the police with their inquiries"—what does it matter if that is said? "X is helping the police with their inquiries "—the whole scene changes. I believe that the press is responsible. I also believe that, in the case which I felt it necessary to describe, they were in many ways provoked, and I have not uttered a word which I have not quoted from newspapers, particularly for that reason. I think what happened was most unfortunate and I hope that, in one way or another, it will never happen again.
§ Lord Wedderburn of Charlton
Nevertheless, before we leave this matter—I was listening very carefully and am partially convinced by the noble and learned Lord the Lord Chancellor—and I hope that we shall come back to it on Report, one of the points that has struck me about a debate in which I have not pretended to be as expert as noble Lords who have spoken is the place of the police. I believe that the record will show that the description of recent events by the noble and learned Lord the Lord Chancellor brings that out.
There is a sense in which they are central and yet they are not in the Bill at all. The moment of charge—that is for the police. The moment of arrest—that is for the police. The moment of identification, and who is helping them with their inquiries—those are for the police, unless someone finds out in another way. They may even hold a press conference, which may or may not be improper. If one can put it in this way to the Government, whether or not the amendment is right, the Bill as it stands does not seem to be right when the police occupy that crucial, central position in the whole procedure and the only answer is, "If you have fallen unfairly beneath the spell of the liability, go back to Clause 3." As my noble friends Lord Ritchie-Calder and Lord Harris of Greenwich pointed out, that is inadequate. One can envisage many cases where as a result of action by the police, not necessarily intentionally directed towards the liability of a journalist or any other person but because of the way that the police have acted, it would be very easy, as the Bill stands, to fall within the strict liability rule and not to have a defence.
My suggestion to the Government is that they should look at it again. If the moment in Schedule 1 to their Bill that would be replaced by the amendment is wrong, they must then somehow reconsider Clause 3. If they keep their moment of initiation of liability, then they must have another look at the terms of 404 Clause 3. I hope that the Government will do so before the Report stage.
§ The Lord Chancellor
I take the point which the noble Lord, Lord Wedderburn of Charlton, has made and I will certainly ask that it should be looked at again. However, the noble Lord is taking a more generous or a more liberal view than I am of the responsibility of the police who hold press conferences. This law applies to publications. If you allow yourself to be photographed and give a press conference and statements to the police for the purposes of publication, I should have thought that it comes within the law as drafted. However, I will certainly consider that point and ask that the draftsman shall.
§ Amendment, by leave, withdrawn.
§ 7.22 p.m.
Lord Mackay of Clashfern moved Amendment No. 26:
Page 11, line 15, leave out ("in England and Wales or Northern Ireland").
§ The noble and learned Lord said: Perhaps I may take together the explanations for Amendments Nos. 26, 27 and 28. The effect of these amendments is to apply paragraph 10 of Schedule 1 to Scotland. It was originally thought unnecessary to apply paragraph 10 to Scotland because of differences in Scottish legislation and procedure. However, on further consideration of the matter it seems to us that it would be wise to make these special provisions to deal with the case of a person who is suffering from mental illness. Perhaps that is a sufficient explanation of the three amendments. I beg to move.
§ On Question, amendment agreed to.
Lord Mackay of Clashfern moved Amendment No. 27:
Page 11, line 18, after ("plead") insert ("or, in Scotland, is found to be insane in bar of trial").
§ On Question, amendment agreed to.
Lord Mackay of Clashfern moved Amendment No. 28:
Page 11, line 22, at end insert ("or, in Scotland, where a transfer order ceases to have effect by virtue of section 68(1) of the Mental Health (Scotland) Act 1960").
§ On Question, amendment agreed to.
§ Lord Morris had given notice of his intention to move Amendment No. 29:
§ The noble Lord said: In the debate on whether Clause 19 should stand part the noble and learned Lord the Lord Chancellor explained in great detail and most helpfully the application of subsection (2). In so doing he spoke of this amendment and quite rightly pointed out—this is a very good example of an amateur dealing with a subject which he should not be dealing with—that the drafting of this amendment is flawed. I agree entirely with that point. In my defence I can only say that I took the drafting from the exact wording of the recommendation in the Salmon Committee's 405 report. When my noble and learned relative returns to this country I shall enjoy "wigging" him on this point, albeit gently.
§ I shall not move the amendment, but may I say that I agree entirely with my noble friend Lord Renton that it jars that a substantive point in a Bill should lie within an interpretation clause. In view of the fact that the noble and learned Lord the Lord Chancellor was kind enough to suggest that he was going to have another look at the point, for which I am most grateful, I shall not move the amendment.
§ [Amendment No. 29 not moved.]
§ 7.25 p.m.
Lord Wigoder moved Amendment No. 30:
Page 12, line 4, leave out paragraph 14.
§ The noble Lord said: This is another of those occasions where there is a choice between a narrow restriction on press freedom and a broad restriction. It is one of the many occasions in the Bill when the Government have chosen the broad restriction as the desirable alternative. I have to suggest that on this occasion they have come to the wrong decision. This arises out of the fact that in paragraph 14 of Schedule 1 the Bill proposes that proceedings should become active for the purpose of strict liability in relation to appeal cases from the moment that notice of appeal or an application for leave to appeal is made and should then remain active until the appeal is determined.
§ Here I am primarily concerned with criminal appeals. I think that this paragraph is far more likely to affect criminal rather than civil appeals. This means in effect that press comment is to be barred in relation to appeals to the Criminal Division of the Court of Appeal where cases are heard without juries, where almost invariably there is no question of any witness being heard and where, therefore, the proposition that the Government seek to put forward is that press comment, after notice of appeal has been given, can unfairly and improperly prejudice one of the judges, or the three judges who are sitting in the Criminal Division of the Court of Appeal.
§ I find that proposition very, very difficult to accept. I know that varying views have been expressed by judges about the possibility of their being influenced. I know that the late Lord Dilhorne is cited frequently because of some observations he once made, though anybody less likely to become panicky at the thought of a press article than that distinguished Law Lord I find difficult to imagine.
§ Of course press comment can influence a judge and it may be quite right that it should. I can see no reason why there should not be press comment on sentences that are passed in criminal cases so that the Criminal Division of the Court of Appeal may appreciate that there is real public anxiety about the case, so that they can understand what is being said, so that they can perhaps investigate the background of the case with even more meticulous care than they usually exercise in order to ensure that public disquiet is allayed. All that seems to me to be a perfectly proper function of the press and I can see no reason why judges should seek to be protected against that sort of comment. I do not believe that in this country judges of that 406 status are going to be improperly influenced by press comment.
§ May I ask the noble and learned Lord the Lord Chancellor if he would care to say—he may regard it as confidential information and I would respect that— whether the Lord Chief Justice who presides over the Criminal Division of the Court of Appeal has been consulted about this proposal. I do not know the answer. However, I would hazard a guess that if he were consulted his answer would be typically terse.
§ The Lord Chancellor
First, I must make a very boring, pedantic point to the noble Lord, Lord Wigoder. It is that if his purpose is to disapply the strict liability rule to appellate proceedings, either in criminal or civil proceedings, the omission of paragraph 14 would not have that effect. It would be totally ineffective. The first schedule, of which paragraph 14 is a part, is concerned solely with the period of time in which proceedings are active. Therefore no omission of any paragraph in it would do anything other than make doubtful the period during which proceedings were active. It would not disapply any rules.
I now come to the substance of what I understand to be the purpose of the amendment. The amendment is based upon a discussion we had at an earlier stage of a slightly academic kind as to the applicability of the strict liability rule to cases where there are not juries. I do not want to dogmatise particularly about the extent to which judges can be influenced in the absence of juries. I think I hold the unfortunate view that judges are human and are probably not quite so immune as the noble and learned Lord, Lord Salmon, suggests, or possibly quite so vulnerable as some people would also suggest. I think they are human and I will proceed to develop on those lines.
The first thing I want to say is that I reject the theory which the noble Lord, Lord Wigoder, put forward in his first sentences, that this is a broad restriction upon the liberty of the press. The whole, or nearly the whole of this Bill—the whole of it which is important for this purpose—is covered by Clause 2, and we have to start from the proposition that what is done or what is complained of, before the strict liability rule applies, is something which creates a risk that the course of justice in question will be seriously impeded or seriously prejudiced. In other words, obviously quite a different range of considerations will apply to a trial at first instance before a judge alone, where primarily very often what you have to consider is the parties and the witnesses rather than the judge, or a trial by magistrates or a trial on appeal when the witnesses have normally given their evidence and are no longer on the scene.
I think the courts must be trusted to apply the provisions of Clause 2 and I think they will apply them in accordance with their words. That is to say, when they are dealing with appeals they will say that quite a different range of considerations applies as to whether the course of justice is seriously prejudiced by what is complained of. That is the real safeguard which is provided by this Bill, and if I did not think it was a real safeguard and a real liberalisation of the law I do not think I should have gone to the trouble of producing this Bill at all. The same is true of Phillimore, with whose recommendations (with a few 407 relatively unimportant exceptions) I am not only in agreement, but whose recommendations I am trying to bring on to the statute book.
I point out again, possibly pedantically, that appellate proceedings are not confined to the Court of Appeal, Criminal Division. They cover—and cover for this purpose rather more importantly—appellate proceedings from magistrates to the Crown Court, where the witnesses are all heard again; and if the object is to exclude appellate proceedings I certainly would not agree for a moment that different considerations apply to an appeal by way of complete re-hearing from those which applied in the original hearing before magistrates.
The next point I wish to deal with is the extent to which the appellate proceedings ought to be within the ambit of the law of contempt at all. This was discussed at very great length in a case which took place quite a long time ago before the Court of Criminal Appeal—it was a division of the court—and it was about an unpleasant abortion case concerning a doctor whose name I will not mention because he may still be alive although the case was in 1945. After the verdict and before appeal the News of the World, I think it was but at any rate a newspaper, published an article which said:Doctor unmasked, Scotland Yard had been after him for 20 years. The first complaint was 20 years ago. Without evidence they were patient and the principal question that Scotland Yard is puzzled about is the whereabouts of the fortune he is supposed to have amassed".That case came, I think, on the motion of the convicted man himself, before the divisional court, and on that court there were two very experienced criminal judges, Humphreys and Oliver, who will be remembered, I think, by all the professionals present. They said a number of things which I think need to be borne in mind when one is approaching this problem. They took the view which I take, namely, that judges are human. I may say that on the facts of the case the judges held that no contempt had been committed and the editor was acquitted with flying colours; but the principles were discussed at considerable length.
The first point made by Mr. Justice Humphreys was that among the powers of the Court of Criminal Appeal, as it then existed, was to order in certain very rare cases a new trial; and in 1966 the Government, of which the noble Lord opposite was a member, widely extended the circumstances in which a new trial could be ordered from the completely aborted trial in cases in which fresh evidence had been discovered between the verdict and appeal and to other cases, too. Mr. Justice Humphreys said that the effect of that is that in any case coming before the Court of Criminal Appeal it may direct that a jury be sworn to try the issue on the indictment which has never properly been tried. It is therefore quite a fallacy to treat this case as if all that the Court of Criminal Appeal could do with regard to it would be to decide the question of law. Since 1966 that is a very much more live issue than it was then.
He then went on to discuss the question which the noble and learned Lord, Lord Salmon, discussed, about which Lord Dilhorne expressed an opinion and others expressed similar opinions. Mr. Justice Humphreys was one of the most experienced criminal judges of his day, and he said: 408I think it is a fallacy to say or to assume that the presiding judge is a person who cannot be affected by outside information. He is a human being and while I do not suggest that it is likely that any judge as the result of information which had been improperly conveyed to him would give a decision which otherwise he would not have given, it is embarrassing to a judge that he should be informed of matters which otherwise he would much rather not hear and which make it much more difficult for him to do his duty".He went on to say, quoting from an earlier judgment of Mr. Justice Wills:The tendency and perhaps the object of such publications is to deprive the court of the power of doing that which is the end for which it exists, namely to administer justice duly impartially and with reference solely to the facts judicially brought before it".Then Mr. Justice Humphreys said again:I venture to think that no judge with long criminal experience will fail to be able to recall instances in which the publication of matters such as that to which I have referred has had the effect of making the task of a judge extremely difficult and no-one has the right to publish matter which will have that effect".Mr. Justice Oliver, who was, if anything, as experienced as Mr. Justice Humphreys, said much the same thing. He said:One of the evils of inadmissible matter being disseminated is that no one can tell what effect a particular piece of information may have on his mind. Why, as my Lord has asked, and I can think of no better word, should a judge be embarrassed? As an illustration of the proposition, the Court of Criminal Appeal has expressed not once but many times its thorough disapproval of evidence which is sometimes given by police officers at the end of a case when a man has been convicted. On such occasions all sorts of allegations are frequently made against the man's character, sometimes in the nature of hearsay, sometimes not supported by evidence at all. What is the ground for the disapproval of the Court of Criminal Appeal regarding such statements. It can only be that the judge, who after hearing the statement has to pronounce sentence, may quite unconsciously have his judgment influenced by matters which he has no right to consider".I take exactly the same view as those two judges; although the range of facts and considerations which apply to appellate proceedings are totally different from those which apply to proceedings at first instance, the protection of the law of contempt ought still to be available.
I make the further point that we are not only concerned with judges, we are concerned with parties. Supposing you get a case where there has been a violent attack by the populist press against a convicted man, which has been the case from time to time throughout my life. There was a publication called John Bull, edited by Bottomley at one time, which had a column devoted solely to matters of that kind. How can a party who has been the subject of a violent attack and who has appealed think he has had a fair deal from the Court of Appeal if he has been made the subject of such an attack. He will say—I think he will certainly say—either that the court was intimidated into dismissing his appeal, or, if he succeeds, the public, which is very often on the side of severity, will take another view.
Do not let us think the public is the mild-mannered beast that we see portrayed on the Liberal Benches in both Houses of Parliament and in the National Council of Civil Liberties. The public is quite a different animal altogether. I have had many more complaints from the public in the past three months through Members of Parliament about undue leniency than about undue severity. So if the public see that the 409 appeal succeeds they will say the Court of Appeal fell over backwards, they thought they must support the judge in the face of this violent press attack, and that is what they would do. The truth is that all judicial proceedings whether held in the rather rarified atmosphere upstairs or in the magistrates' court have to be conducted with some sense of decorum and with a sense of comparative calm and decency.
Since we are having this discussion and I am being unduly frank about some things, I think it right to tell the Committee certain things which have happened to me since we had the Second Reading debate. In the first place I went down to a bird sanctuary with a solicitor, and the solicitor told me that he had been approached by a judge as a client. The reason he had been approached by the judge as a client was that a press campaign against the judge had caused his boy to be bullied intolerably at school, and what remedy had he got. Is one really going to say that judges are incapable of being influenced by that sort of thing.
I was approached by a judge who had been trying an appeal on divorce; I was myself approached, and this is all since the Second Reading of this Bill. In that case the circuit judge—this was an appellate proceeding, but not a criminal one—had found that the wife, who had apparently rationed the amount of sexual intercourse that the husband should be permitted to have on the rather strict basis of enjoyment, had committed conduct such, to paraphrase the words of the 1969 and now the 1973 Act, that the husband could not reasonably be expected to live with her, with the result that the marriage had irretrievably broken down. In fact the Court of Appeal said "Really, this is not quite good enough. Marriages do not necessarily irretrievably break down because wives do not want to have very frequent intercourse with their husbands". The headline in the press was "Once a week is enough". I do not know whether once a week is enough; I am too old to care. What I do know is that no fewer than three newspapers tried to interview the wives of the judges concerned. I am not saying whether they were right or wrong. All I am saying is that judges whose wives are approached in this way are entitled to some kind of protection. Perhaps I ought not to go on with these indiscretions. The fact is that all these things have happened to me since Lord Salmon made his speech in the House of Lords on Second Reading.
All I am really saying is that, although I absolutely agree that a totally different range of considerations apply to actions which can seriously prejudice the course of justice, the ambit of the law of contempt is not cast sufficiently wide if it does not cover cases in appellate courts as well as cases in courts of first instance. And I am not going to answer the question which was put to me by the Lord Chief Justice.
§ Lord Wigoder
I am still not entirely clear why the noble and learned Lord the Lord Chancellor was in a bird sanctuary with three judges wives! I must admit I was beginning to lose the tenor of the argument. I only want to make one or two short comments, if I may. First, on the technical matter of the amendment, I do not propose to go into it; it is clear that the purpose of the amendment was apparent because the noble and learned Lord has spent some time dealing 410 with it. Secondly, when the noble and learned Lord says that if there is press comment on proceedings pending appeal, there is nevertheless a substantial limitation provided by Clause 2(2) of this Bill, I wonder whether he is right and I wonder that because that subsection simply reads at the moment, "The strict liability rule applies only to a publication which creates a risk". We come back, as on many other arguments in the course of the Bill subsequently, to the question of whether it is not absolutely necessary, if it is to operate fairly, that some word such as "substantial" should be put in front of the word "risk", if it is to provide the sort of protection the noble and learned Lord has repeatedly said in the course of these discussions it will provide.
I accept, of course, that different considerations may apply to proceedings before the Court of Appeal Criminal Division and the Crown Court on appeal from a magistrates' court, except, if I may, to say that it is unlikely that there would be much in the way of substantial press comment on an appeal pending to a Crown Court from a magistrates' decision, because it follows that that must have been there for summary trial and is unlikely to be the sort of matter that would arouse substantial comment in the press. I do not know whether the noble and learned Lord would perhaps consider at a later stage whether there might be separate consideration given to the position of the Court of Appeal. I really think that it is going a little far to suggest that they are going to be as easily influenced as the noble and learned Lord has said. I accept that judges are human beings, or at least some of them are; I would not dispute that for a moment. It may well be that press comment does make their task more difficult. But judges are there very often to face difficult tasks and they are not unused to it.
The only other observation that I would make at this stage is that the noble and learned Lord referred to the possibility that the Court of Appeal might order a new trial and, of course, press comment would be undesirable there. That I suggest is still safeguarded by paragraph 15 of the schedule which makes proceedings active where a new trial is ordered and would, therefore, not be affected by the amendment that I am putting forward this evening. Having said that I should like, if I may, to read through at my leisure the observations of the noble and learned Lord and to reconsider the matter later. For the moment, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 31 not moved.]
§ On Question, Whether Schedule 1, as amended, shall be the first schedule to the Bill?
§ Lord Wigoder
I am so sorry to detain your Lordships at this hour of the evening, but there are two matters which I wish to raise on this schedule, and I raise them very briefly—one is substantial and the other is just plain tedious. The substantial one is as follows: under paragraph 11 of Schedule 1 proceedings are to be active in civil proceedings once arrangements for the hearing are made. That does, of course, mean that in both jury and non-jury civil trials the press are to be under the strict liability obligation, it may be for a period of years, before the proceedings are, 411 in fact, heard. An alternative proposal was put forward in Phillimore by Sir Robin Day (as he now is), and I wonder whether the Government would care to indicate whether they have considered the possibility of introducing into the Bill a limited strict liability in relation to civil proceedings on the lines of that minority report in the Phillimore Committee's Report.
I turn to the other matter. It is tedious, but I have tried to make the point and I feel that I clearly failed to be understood. It is the question which arises where the strict liability rule remains as it is under paragraph 4 and, therefore, begins to run from the issue of a warrant for arrest and where, in fact, that warrant is not executed for weeks or months on end.
The noble and learned Lord on Second Reading referred to the Lucan case as being a gigantic red herring. I am not sure that it is not, in fact, the beginning of a whale of a problem. I say that because it is by no means an exceptional case. There are a very large number of cases where warrants for arrest are issued and never executed. Under the Bill the proceedings would remain active indefinitely and strict liability would run indefinitely. The noble and learned Lord on the Woolsack said then that he thought that the point was a red herring; first, because of Clause 3 of the Bill, which provides that a person is not guilty of contempt of court if he does not know that the proceedings are active. That would be no defence in this class of case because, of course, the press would know that the warrant had been issued. Secondly, the noble and learned Lord said, "Well, in any event, there is Clause 2(2):The strict liability rule applies only to a publication which creates a risk that the course of justice… will be seriously impeded …".If the press were to write an article today on Lord Lucan—and I take him merely as an example because his is a conspicuous and notorious case—and Lord Lucan happened to be arrested tomorrow, the warrant for arrest having been issued years ago and the press knowing that it had been issued years ago, is it really possible to say within the terms of Clause 2(2) as it stands that the publication did not create a risk—again not a substantial risk, but a risk—that the course of justice might be, or would be, seriously impeded or prejudiced? I would suggest that there is, in fact, no defence provided by that subsection in that situation. The matter is made worse at the moment by the Government's refusal to subject the whole matter to the Attorney-General's consent before proceedings are brought. The noble and learned Lord will perhaps not deal at this stage in this debate with those matters, but I hope that he will consider them before we reach the next stage.
§ The Lord Chancellor
In view of the invitation which the noble Lord, Lord Wigoder, has just issued I shall not deal with these points in any detail. I have said really all that there is to be said about the question of a serious risk of serious prejudice. I still think that it is a drafting point of no substance. But I shall, as I said at the time, re-investigate the point in the light of what I said and what he said on Clause 2.
As regards Sir Robin Day's interesting suggestion, yes, we did consider it seriously. We decided that the 412 definite point of time caused by setting down was the better point of time, although I would be the first to admit that, owing to the delays which litigants themselves impose on proceedings—and the noble Lord knows that after setting down they are probably more guilty than the courts—it can be quite a long period of time. I recognise that.
As regards the Lucan case, of course the situation would be transformed if he were arrested tomorrow. But I fancy that editors, who have their legal advisers, and sometimes a little intelligence, would realise that, after arrest, publications which might prejudice the trial seriously would be made at their peril. I described it as a red herring because I do not think that very much which might happen in the immediate future is likely to happen at all, but that is a personal opinion.
I would not encourage the BBC to produce a piece of fiction on the subject to indicate whether or not they thought he was innocent or guilty even now, but I do not think that that is likely to happen somehow. I regarded it as a red herring simply because I could not think of anything which could reasonably be said about Lord Lucan which would be held to be likely to prejudice proceedings which have not taken place, which nobody expects to take place and when nobody knows whether he is alive or dead or where he is. But I may be wrong about that. Everybody is entitled to their opinion. I can imagine things that people would be foolish to do, but I think that they are very unlikely to happen.
§ Schedule 1, as amended, agreed to.
§ Remaining schedules agreed to.
§ House resumed: Bill reported with the amendments.