§ 4 Clause 8, page 3, line 26, at beginning insert—("Without prejudice to any rule of law which prohibits disclosures by or approaches to jurors during or after the trial, and");
§ 5 Clause 8, page 3, line 27, after ("court") insert ("by virtue of this section").
§ Lord Hutchinson of Lullington rose to move,
§ That this House do disagree with the Commons in their Amendments Numbers 4 and 5 but propose the following Amendments in lieu thereof—
§ Page 3, line 26, leave out ("subsections (2) and (3)") and insert ("subsection (3)");
§ Page 3, line 26, leave out lines 28 to 37 and insert ("to obtain, disclose, or solicit any particulars of statements made, opinions expressed, arguments advanced, or votes cast by members of a jury in the course of their deliberations in any legal proceedings");
§ Page 3, line 26, line 38, leave out subsection (2).
§ The noble Lord said: My Lords, this amendment is similar in form to that which appeared in my name and that of the noble Lord, Lord Wigoder, in Committee. 240 Its purpose is perfectly simple and that is to leave out the subsections and substitute the words of the amendment, and thereby make any disclosure or solicitation of disclosure of anything that transpires in the jury room a contempt. The arguments have already been rehearsed on two occasions in this House and in another place, and gradually it has been realised, I think, and become universally appreciated among all those who from day to day have first-hand experience of the way that juries work, that this matter raises an issue of profound importance. Apart from those who have expressed their intention to take part in this debate this evening—and I notice a number of most distinguished and learned noble Lords on the Cross-Benches—this amendment is supported by the Senate of the Inns of Court, by the Criminal Bar Association, by the overwhelming majority of those who made speeches in the other place, where Mr. Edward Gardner put forward a similar amendment, only in a slightly extended form, Mr. Gardner being a Member of the party opposite; and it is supported—I have authority to say so—by the noble and learned Lord, Lord Scarman, and above all in importance—and I have equal authority to say this—by the Lord Chief Justice of England. If he had not had to fly out to Australia yesterday he would have been here today to support this amendment.
§ Why is this such a matter of profound importance? Until last year it was generally thought that any disclosure of what went on in the privacy of the jury room was in some way a contempt, and that the notice that appears in jury rooms, that jurymen are reminded that they are under a solemn duty not to disclose anything that transpires there, had in some way the sanction of the law. But the New Statesman case last year has demonstrated—and demonstrated quite clearly—that that was a wrong view. So this clause has been put into this Bill as a one-off clause making it a statutory offence to disclose only for the purposes of publication what goes on in the jury room. However, even that is diluted, in that that prohibition is removed if the disclosure does not show the names of jurymen or the name of the specific case, for, in that case, publication. So for the first time we have a statutory definition of contempt in relation to jury deliberations.
§ In those circumstances it can immediately be seen that it becomes lawful, quite clearly lawful, to approach jurymen after a verdict in order to find out what happened in the jury room, so long as that approach is made not for publication. The result of that, if I may quote from a letter of my own that some of your Lordships may have seen in The Times newspaper, is that any investigative journalist, any disgruntled litigant, any inquisitive lawyer or well-meaning sociologist will feel free and may feel free to approach any juryman after the verdict in order to find out what in fact was the cause of their coming to the verdict to which they came. In such a situation, such persons—sociologists and inquirers—would want to know the effects of having black or white members on the jury; opinions on the question of old and young, male and female, members of the jury; did they believe the alibi witnesses; did they believe the police officers; did they think the defendant was guilty but the prosecution were not able to prove it sufficiently? All those sorts of question, I would submit, will now become perfectly 241 lawful, and there is no sanction at all, if this clause remains in the form it is, that can prevent those sorts of question being asked of jurymen after verdicts.
§ Such latitude, in my submission to your Lordships, would undermine the self-confidence of jurymen, who will feel, "Well, I am not going to stick my neck out; I am not going to say this frankly in the jury room if when I come out of the jury room back into court I myself can be on trial for the views I have expressed in the sanctity of this room". It will undermine the confidence of the public in juries. It will put at risk the finality of verdicts, because different jurymen will say different things to different people. It will produce persons who will seek to dig out irregularities which have gone on in the jury room, and indeed it will put a temptation before some jurymen to suggest that there were such irregularities if some temptations of monetary form or other is put before them. And, before you know where you are, you will find appeals being set down and launched on irregularities or alleged irregularities which have taken place during jury deliberations. It would indeed put at risk some jurymen who have stood out, say, for a conviction in a case involving violence; there would be nothing after the jury verdict had been returned to stop friends, relations, even in some cases maybe solicitors, going up to jurymen and saying, "Who was it who stood out for that disagreement? Who was it in that jury who took the view that these people ought to be convicted and so we had a disagreement?"
§ You will find, of course, that, where there is a disagreement and a retrial, people, lawyers and friends, will go out and find useful information from jurymen in order to amend and change their case in the retrial. "Did you believe the witnesses; did you believe this; did you believe that?" These are the sorts of thing, in my submission, which would be the effect of this clause being left as it is. The amendment simply and quite straightforwardly says there shall be no communication with jurymen after the verdict—no communication for research, no communication for journalism, for solicitors, lawyers, for friends, but that jurymen shall be free from harassment, that they shall not have to answer for the views they expressed, and that they shall be left in peace and allowed to go upon their ordinary way after they had done this very exhausting task coming to do their civic duty in serving on a jury.
Mr. Gardiner in another place expressed the view that, if this clause remained, the jury system as we know it might be condemned to ultimate destruction. Mr. Morris, the Opposition spokesman on legal affairs, said it could have grave and damaging consequences. The Lord Chief Justice has permitted me to cite the following words of his in relation to this clause as it stands:
I regard any loosening of the strict rules about no disclosure of a jury's deliberations as anathema. The prospect of anyone, be he solicitor, press reporter, professor of law, being able with or without the Attorney-General's permission to go to a member of a jury and ask for his recollection of the jury's deliberations and then to publish that recollection, even though there is no mention of the case or the name of the juror, seems to me an incredible idea. The dangers are obvious; the value is hard to detect".
I know that the noble and learned Lord the Lord Chancellor with his classical education will know the
meaning of "anathema" as accursed or consigned to damnation. The noble and learned Lord, Lord Scarman, has described this clause as dangerous.
In another place the Attorney-General successfully moved Amendment No. 4 in order, it appeared, to try to assuage the mounting chorus of dismay about this clause. Amendment No. 4 says:
Without prejudice to any rule of law which prohibits disclosures by or approaches to jurors during or after the trial".
Those words have been inserted at the beginning of the clause. What do they mean? I do not wish in any way to be offensive, but I would describe them as hot air and vapid verbiage. They mean nothing. I would ask the noble and learned Lord the Lord Chancellor what rule of law is there which prohibits all that I have been describing? I certainly know of no such rule of law. The only rule of law that comes to my mind concerns seeking in some way to pervert the course of justice, which, of course, is entirely another matter. Of course if you are seeking to pervert the course of justice you will commit an offence. Of course if you are going to have a revenge on a member of a jury you will commit an offence. But I must say that I know of no rule of law which would in any shape of form prevent all the approaches to juries that I have been describing.
§ In resisting this amendment in Committee, the noble and learned Lord the Lord Advocate and the noble and learned Lord the Lord Chancellor made only two points. One was that they were only legislating for the New Statesman situation and that everything else remained exactly as it was before. It was said that we do not demolish the existing structure. But there was no structure after the New Statesman case. The structure had gone. After that case the building was destroyed. The only building that we now have is this statutory provision and the offence of perverting the course of justice.
§ The other point that was made was, "Well, it would be madness to start saying that a juryman committed an offence by disclosing in a public house or at home the secrets of the jury room." That sounds attractive, but it is totally ingenuous because, of course, there are two comments to make about it. The first is that the safeguard against idiotic prosecutions in those circumstances is in Clause 4—the necessity for the Attorney-General's consent to any proceedings.
§ Secondly, of course, that comment can be made about almost all the criminal law. As I ventured to say in the letter that I referred to earlier, it is as much a criminal assault to push the person in front of you out of the way on a football terrace as it is to hit him on the head with a bottle: it is an assault in law. Your Lordships all commit a criminal offence every time you drive at 31 miles per hour in a built-up area. If you were to take a drawing-pin off your colleague's desk meaning to keep it permanently and not asking his permission, then technically you would be stealing the drawing pin. It is not an argument in a matter of this importance that, if somebody were to tell his wife what had gone on in the jury room, that might be at the very bottom of the ladder of a contempt.
§ The noble and learned Lord the Lord Chancellor treated this amendment in a characteristically lighthearted and rumbustious manner at the Committee stage and said that lots of things were immoral and 243 lots of things were breaches of confidence, and were we going to make all these things offences? The noble and learned Lord the Lord Advocate said that whenever we come off aeroplanes or trains we are all subject to market research. I venture to suggest that this matter is a matter on quite another plane, that the jury is not only, as the noble and learned Lord, Lord Devlin, has said, an instrument of justice: it is no less than our guarantee that freedom continues to live in this country.
§ So why, may I ask, this stubbornness? Who is it that wants all these disclosures? Why this resistance to the universal disquiet from all those who actually have to do with the work of juries? May I suggest without offence to the noble and learned Lord who sits on the Woolsack that possibly he may be now a little out of touch on this matter, that juries, journalists and professors now work in a somewhat different way from the way in which they used to work 30 or 40 years ago? I would ask him at this very late stage to bow to the now very general view among all those who have to do with juries, and to agree to the amendment.
§ This is in no shape or form a party matter. It is in no shape or form a political matter. If your Lordships feel at the end of this debate that this matter is of such importance then I would certainly be minded to press it to a Division. I beg to move.
§ Lord Edmund-Davies
My Lords, I rise to speak in support of the Motion of the noble Lord, Lord Hutchinson of Lullington, and the brevity of my remarks is in inverse ratio to the vigour of my feelings in this matter. I am deeply convinced that any publication or exploring of a jury's deliberations would be highly inimical to the public weal. Before we ever reach any question of publication, any questioning of jurors would constitute, in my judgment, indefensible tampering with one of the most valuable institutions of this country.
In the last century, Baron Bramwell, one of our greatest judges, said:If juries had to give reasons for their verdict, trial by a jury would not last five years".In this century Mr. Justice Humphreys, a judge with massive experience of the criminal law and criminal practice, had this to say:In this country we consider that a jury is the best possible tribunal yet devised for deciding whether or not a man is guilty. But no one has ever suggested that a jury is composed of persons who are likely, at a moment's notice, to be able to give a logical explanation of how and why they arrived at their verdict,Many worthy citizens already quail at the daunting prospect of being called upon to serve as jurors. Imagine how much more troubled they would be were they aware that they could thereafter be interrogated by outsiders as to what had happened in the jury room, who said what, how went the ebb and flow of discussion and debate, what had proved the most crucial and difficult points in their discussions, what had prevented them from reaching a unanimous verdict, if it was a majority verdict who had been in the majority and who in the minority, and why, and whether, in the light of hindsight, they considered their verdict a fair and a just one. The possible questions are endless and all 244 of them are objectionable, if not indeed positively mischievous.
I beg your Lordships not to be deluded into thinking that all evil consequences would be eliminated by the simple device of prohibiting or restricting publication of the interrogator's results, for that would in no way remove the discomfiture of juries on being subjected to such post-trial interrogation. Have no doubt that, publication or no publication, it would soon become widely known that jury service carried with it at least the risk, and certainly in the more florid cases even the certainty, that outside interrogators would be hovering and might indeed prove insatiable in their quest for more and more information.
The prospects of such an outcome could surely have a disastrous inhibitory effect on that free and fearless discussion which is essential for the proper discharge of a jury's task. Would jurors really rest assured by any kind of pressure on publication? In my book it would count for nothing. What lies behind the desire—and this is what puzzles me—to be free to subject jurors to such an indignity? Nothing that I have heard until now convinces me that any public advantage would inure. We live in an age when, under the title of research, many extremely odd things are being said and do happen. For my part, I am root and branch with the noble and learned Lord, Lord Lane, the Lord Chief Justice, whose trenchant remarks have been quoted by the noble Lord the mover of this Motion. I said that I would be short and I now conclude; these are my final words. In the firm belief that the secrecy of the jury room should be no less sacrosanct than the secrecy of the confessional and of the ballot box, I beg to support this Motion.
§ 6.25 p.m.
§ Lord Renton
My Lords, I wish briefly also to support this Motion. Since time immemorial jurors have had the duty of reaching their verdict without fear or favour. Back in 1967 we had reason to believe that pressure was being put upon jurors, and that was why majority verdicts were introduced with the support of all parties and even with the somewhat doubtful consent of the Criminal Bar Association. But unless the amendment of the noble Lord, Lord Hutchinson, is accepted, it seems to me that pressure upon jurors could—as has been pointed out—be extended, and extended in a variety of ways, some of them most insidious.
Heresy hunters, some of them not always with the best of intentions but trying to undermine our system of justice, will find their opportunities immeasurably increased. Also—and I stand open to correction—my reading of this clause as it is now proposed to be amended by the Commons' amendment comes to this: that there would be nothing to prevent inquiries from being made for the purpose of laying the foundations of an appeal. If that were so—and I do not see anything in the clause as proposed to prevent i—that would indeed be a major departure, and we should require very much more than even the discussion on this amendment before we allowed such a departure to take place.
My only other comment, because I also wish to be brief, is this. With deep respect to the learned Attorney-General and his amendment, which is Amendment No. 4, it seems to me that it causes great 245 difficulty. Its purpose is to retain the effect of the present law, but what is proposed in the clause is in conflict with the present law and, therefore, prima facie, it would seem that the learned Attorney General's amendment would merely create a contradiction. In any event, in view of what has been said by the noble and learned Lord, Lord Edmund-Davies, and by the noble Lord, Lord Hutchinson, and in view of the obvious doubts held in the profession and I am sure by many outside, with deep respect to my noble and learned friend the Lord Chancellor—for whom we have such a high regard and to whom I, personally, owe so much for his friendship and help—I would implore your Lordships to give another place the chance to think again.
§ Lord Elwyn-Jones
My Lords, I too hope that the noble and learned Lord the Lord Chancellor will heed that advice and request. I have previously addressed your Lordships on this issue in support of my noble friend Lord Hutchinson. It seems to me that interference with jurors by questioning, however well-intentioned, threatens the confidence that they should have that what goes on in the jury room is secret and that they can approach their task of deciding upon the guilt or innocence of an accused person without fear.
Although I appreciate the view that nothing ought to be sacrosanct, that no institution ought to be sacrosanct—that is, indeed, the prevailing view of almost every institution—nevertheless I think that what is proposed here will have minimal value but a great deal of potential risk and danger to the administration of justice and to the jury system, which has been the outstanding feature of our criminal proceedings over the centuries.
§ Lord Wigoder
My Lords, I also should like to make a final appeal to the noble and learned Lord on the Woolsack not to oppose the Motion moved by the noble Lord, Lord Hutchinson, this afternoon. I do so on this simple basis. The Motion that has been moved had had the explicit support not only of the Lord Chief Justice, but of those noble and learned Law Lords who have taken part in the debate, of two former Lord Chancellors, and of every member of the Bar in your Lordships' House who has spoken at any stage in these proceedings.
In another place, where it is often said that there are too many lawyers, if one looks through the record of the proceedings in another place it is noteworthy that every single member of the Bar who had daily experience of the working of the criminal courts today was opposed to the draft clause in the Government's Bill. I think it is right to say that the only vocal support for the Government in fact came from Mr. Christopher Price, and that was really on the basis of the freedom of information lobby, which perhaps was being carried in this case to something of an unnecessary extreme.
Where the whole weight of opinion is in that direction, I ask the noble and learned Lord to recognise that there may be something to be said for the arguments that are being put forward. I am not inviting him today to agree that Lord Hutchinson's amendment should be written into the Bill. What will happen today if the noble and learned Lord concedes that this Motion should be carried in your Lordships' House is no more 246 than that this Motion will then go back to another place for them to reconsider the matter. I would hope that the noble and learned Lord on the Woolsack would agree that that final opportunity should be given to another place.
I have not consulted the noble Lord, Lord Hutchinson, or the noble and learned Lord, Lord Elwyn-Jones, but I venture to suspect that they would agree with me that if another place does reconsider the matter and does decide, on careful reconsideration and bearing in mind everything that has been said today and everything that has been said since it was last considered in another place, that the Government's draft is right, then so far as I am concerned at any rate that will end the matter and I would be prepared, albeit reluctantly, to accept the decision on the reconsideration of another place. But that the other place should have the opportunity at the very last moment of reconsidering this matter seems to me to be something that is clearly desirable. I hope that the noble and learned Lord on the Woolsack will, with his customary good grace, accept that that is the position, and that it might be practical, and the best course to take, to carry Lord Hutchinson's Motion and let the other place reconsider it.
§ Lord Mishcon
My Lords, to complete the legal circle of a noble and learned law Lord, previous Lord Chancellor, members of the Bar, maybe a humble solicitor may add his voice in support of the amendment. I want to make two points very briefly. The first is this. The average man—so often quoted as the person who does not exist, but your Lordships know what I mean—does not know what his right is at the present moment in regard to the approach to a juror. He is entitled to look at this Bill, which is supposed to have in its midst the whole of the law of contempt. He will find in the clause as recommended by the Commons amendment a right, as he thinks, to approach a juror for any purpose providing he does not intend to publish the results of his interview with the juror. That cannot be right, and it cannot be right merely to rely upon the question of perversion of the course of justice.
My second point, which I make equally briefly, is this. We live unfortunately in an age of violence, and unfortunately there are many cases where jurors have to deal with violent people. The approach of a gentle agent of somebody who is in trouble in regard to matters of violence may be an approach which a juror may think that he can properly deal with by revealing the secrets of the jury room. Let there be no doubt that however gentle the approach, and whatever the purpose of it may be, the juror will know, and the person who makes the approach will know, if this amendment is carried, that there is a danger of contempt of court and that the whole of the conversation therefore ought to be ruled out from the commencement. For those two reasons I beg to support this amendment.
§ The Lord Chancellor
My Lords, if I may, I shall deal with this matter in two quite separate stages. The first is to deal with the arguments which have been presented and the misunderstandings upon which they are based, and the second is to decide what advice I shall give the House. There are times when a professional man 247 finds himself in a minority. That has happened to all of us in our time. I am in a minority today, and my professional honour demands that I should explain myself and say why I think the formidable battery of talent which has been brought to bear upon this Motion is not only mistaken but mistaken for a simple reason.
May I say by way of introduction that no one has a greater regard for the keeping of confidence than I have, and in particular no one respects the absolute security and confidence in which a jury should arrive at its deliberations more than I do. I think I can honestly say that a professional life now—I was called in 1932—in its fiftieth year has done nothing whatever to cast any doubt either on the sincerity of what I say or the reality of what I believe about it.
There is nothing in this clause—and the Attorney-General's amendments in another place numbered here 4 and 5 were designed to make it clear beyond a peradventure—which alters the law as it has been regarded for 700 years. Let me say that at first. The simple fallacy upon which all my noble and learned friends and noble and learned Lords have been proceeding is that this clause, as amended by the Attorney-General—or even without those amendments, because they were designed simply to make the purpose clearer than clear—is in conflict with the existing law, to use the mistaken phrase, if he will forgive me saying so, of the noble Lord, Lord Renton, or enlarges it in any kind of way. I shall go on to explain why that must be so.
For 700 years juries have tried persons accused of indictable crime in this country. By and large it has always been recognised that what goes on in the jury room has been confidential, to use a neutral word. It has never been necessary to bring a prosecution for breaking that confidence throughout the whole of that period until the New Statesman case. It has always been recognised, until the New Statesmen case, that the law was that the courts themselves would decide whether a disclosure would amount to a contempt of court and, if it did, whether it should be punished. That position remains utterly unaltered by this clause. It has been the law for 700 years, and the ball is still firmly in the court of the judiciary. As in all other cases of contempt the courts will decide what a contempt is, and nothing in this clause enlarges the law of contempt in any kind of way, and the Attorney-General's amendments are designed to make that plain beyond a peradventure. That is the first proposition that I make.
May I gently, and, I hope, courteously, correct the noble Lord, Lord Mishcon, in one remark he made. This Bill does not purport to be, was not intended to be, and is not a codification of the law of contempt. It is in the main a Bill which deals with the Phillimore Report, which was concerned practically solely with the strict liability rule—and the more serious contempts of court are not of course within that rule—and with a number of a rather miscellaneous matters which had arisen in the 10 years since the Phillimore Report had been composed.
I would also correct what my noble friend Lord Renton said when he referred to the possibility of people approaching juries for the purpose of putting them before the Appeal Court. He was for the moment overlooking Boston v. Bagshaw, a case in which I acted 248 professionally, when that very thing was done. A very distinguished member of the Bar, David Hirst, and his solicitor, who was one of the leading members of the profession, not only approached the jury in a civil case but got 12 affidavits out of them as to what had taken place in the jury room and what they attempted to achieve, and attempted to put them before the Court of Appeal. A miserable advocate called Hogg pointed out that it was well established that they could not do it under the existing law and therefore that point is a wholly bad one.
§ Lord Wigoder
My Lords, the noble and learned Lord would agree that it will not stop it being tried.
§ The Lord Chancellor
It will now, my Lords, because there is the decision of the Court of Appeal in Boston v. Bagshaw, so it is very well indeed established law that the Court of Appeal will not look at any disclosures as to what may or may not have taken place inside the jury room for the purpose of upsetting a verdict given in open court after a proper direction.
§ Lord Renton
My Lords, of course my noble and learned friend is perfectly right about the presentation to the Court of Appeal of any particular matter which might have arisen in the jury room, and that I am not disputing. What I am suggesting is that over-zealous solicitors perhaps, in order to try to find out any kind of reason for appealing, would start making their own inquiries among jurors to get a bit of inspiration, even though they were not entitled to lay those matters before the Court of Appeal.
§ The Lord Chancellor
It would greatly surprise me, my Lords, if under the existing law the judiciary would not punish that, if they came to know of it, as a contempt, but I would regard that as one of the more far-fetched suggestions which could be made; but I think it would be better if I proceeded with my speech, which is technical, without pursuing my noble friend further along that course.
As I say, for 700 years this worked very well. It was, as a matter of fact, very carefully looked into not so long ago by the Criminal Law Revision Committee, who reported as recently as 1968. It consisted then of as distinguished a list of names as those who were cited by the noble Lord, Lord Hutchinson, and this is what they reported:After full deliberation, we do not deem it immediately necessary or desirable to make any statutory provision to protect the secrecy of the jury room. We think it is as true today as it was when Lord Justice Banks said it in 1922, that it has been generally accepted by the public as a rule of conduct that what passes in the jury room during the discussion by the jury of what their verdict should be ought to be treated as private and confidential".That of course is exactly what I have just said to the House to be my understanding of the situation as it has existed from time immemorial. They went on:It is our view that criminal legislation in general should not be introduced unless serious mischief has been established or there are other compelling reasons";and there the matter was left for the time being. At that stage, therefore, Parliament decided that nothing should be done to alter the traditional position, which was that the courts could if they pleased—as they 249 could if this clause were passed in the form in which the House of Commons has already passed it—punish as a contempt anything which was undesirable or contemptuous.
There then followed the New Statesman case. That was a case of a particular kind, and I fully accept that I was not anxious, I confess, when this Bill was in draft to add anything to the Phillimore Report. But my right honourable and learned friend persuaded me, quite rightly in my view, that after the New Statesman case it was correct to say it was no longer true, in the words of the Criminal Law Revision Committee,that criminal legislation … should not be introduced unless serious mischief has been establishedbecause the New Statesman case in my considered judgment did in fact establish a serious mischief which ought to be stopped, and that is the genesis of the clause which we are now discussing. With great respect to the noble Lord, Lord Hutchinson, it did not destroy the whole structure of what had previously been the law, although it did alter my view of what the law was. It did not destroy or demolish any structure at all, and I quote from the judgment of the then Lord Chief Justice—it was a strong court consisting of the Lord Chief Justice and Mr. Justice Park—who said:To attack or threaten a juror after the trial in order to obtain revenge or for some other purpose connected with the discharge of his duty as a juror would almost certainly be a contempt of court".The judgment was really summed up and the nerve of the judgment was contained in this sentence:In our judgment therefore, any activity of the kind under consideration in this case which, to use the language of the Attorney-General's statement, tends or will tend to imperil the finality of jury verdicts or to affect adversely the attitude of future jurors and the quality of their deliberations, is capable of being a contempt, but that is not to say that there would of necessity be a contempt because someone had disclosed the secrets of the jury room".In other words, the view of the then Lord Chief Justice was approximately that which I have been putting forward; that all communications inside the jury room should be confidential and private, as had been said by the Criminal Law Revision Committee, but that there were circumstances in which a disclosure would not necessarily be contemptuous. And of course, as the noble Lord, Lord Hutchinson, frankly admitted, he has gone on to say that all disclosures must be contemptuous and therefore that a criminal offence would be committed.
The noble Lord, Lord Hutchinson, said to my considerable surprise that he was unaware of any rule of law which prevented disclosures. In view of what I have said, I should have thought that was at least a surprising statement and quite contrary to my belief about the law. He was good enough to refer to what he claimed to be the authorised statement of the Lord Chief Justice, but at any rate in this respect it is directly contrary to what the Lord Chief Justice has written to me because he said:Any weakening of the present rule on the matter is really the quick way to see the end of juries".In other words, he asked me not to make a dent, to quote his words:in the sanctity of deliberations of the jury in criminal cases".250 But he recognises that there is a rule, and the rule is left undented by the clause in its original form, and the fact that it remains undented is of course made abundantly plain by the Attorney-General's amendments in another place.
Of course, that means that the ball—if I may use the phrase—is still where it has been for 700 years, in the hands of the judiciary, to describe as a contempt anything that it considers to be inimical to the interests of the administration of justice. The matter is still in the control of the judiciary, which has handled it perfectly satisfactorily for very many centuries, and the present clause makes no difference at all, despite the eminent authority of my noble and learned friend on the Cross-Benches. The view of the clause, whether amended or unamended, is based on the simple fallacy that it opens a door to something. It opens a door to nothing. What it has done has been to close a door, but to close only that door in accordance with the Criminal Law Revision Committee's report where a serious mischief had occurred. It closes that door. It creates a new statutory offence of contempt, of disclosure for the purposes of publication. It is done without prejudice to the law as it has been successfully administered for very many centuries. I now give way to the noble and learned Lord.
§ Lord Edmund-Davies
My Lords, I have upstairs, but unfortunately not with me here, the 1968 report of the Criminal Law Revision Committee, of which at that time I was the third senior member. We deliberated at a time when the climate was wholly different from that which obtains today. We considered the matter because one or two people had written to us suggesting that the law in relation to the secrecy of the jury's deliberations should be fortified and clarified. We had heard no hullabaloo. Nothing such as we know happens today—in some instances the exploratory investigation is of a most deplorable kind—then existed at all. The conclusion we came to was one which at the time we thought was wise; namely, that there was not really a public mischief existing at that time, so why stir up things? Accordingly, we concluded: leave matters alone.
I cannot possibly assert that had the Criminal Law Revision Committee been sitting today and dealing with the circumstances which have become prevalent, that it would have arrived at a different decision. But I am entitled to say that for my part I would not have been in accordance with the recommendations of the committee. I beg to submit to the noble and learned Lord on the Woolsack that the circumstances in 1968 which were then being considered and which inspired that report are wholly distinctive and dissimilar from those now prevailing.
§ The Lord Chancellor
My Lords, I was of course aware that my noble and learned friend was a most distinguished member of that committee, but I thought it better not to tease him with that fact because I might have incurred the wrath of the noble Lord, Lord Hutchinson of Lullington, who thinks that my most serious remarks, if they are intended to be, and perhaps succeed in being, amusing, are also frivolous, which they are never intended to be. But I shall say to my noble 251 and learned friend, with the greatest possible deference and respect, that he has wholly failed to understand the point that I am making.
At that stage the Criminal Law Revision Committee said two things. It said that no serious mischief had yet arisen, and it said what remains true today: that one ought not to go about creating criminal offences unless serious mischief is to be apprehended or has occurred, and then one should deal with the subject as and when the serious mischief has occurred. That is the justification of Clause 8 in the present Bill. We found a serious mischief. We thought that it ought to be stopped, and we stopped it. But the point which my noble and learned friend really ought to have appreciated by now because I had, I thought, put it fairly clearly, is that in Clause 8 we did not open any doors at all. We closed a door, and that is all that we did. The rest of the law remains totally unaltered, and in order to make it plain that it is totally unaltered the Attorney-General moved the amendment which now appears as Amendments Nos. 4 and 5 on the Marshalled List.
Therefore the courts are free to punish as contempt anything that they could previously have punished as contempt with the addition that they must punish as contempt anything which contravenes Clause 8, because that has become a statutory kind of contempt and is an additional criminal offence. Now the question is whether or not one wants to make all disclosures criminal offences. My judgment throughout has been that this is far too draconian, and I think that the Bar, which has expressed an opinion which is contrary to mine, is mistaken. When I am accused of being out of touch with the Bar, it is of course true. Except as a judge in the Appellate Committee, I have not practised for 10 years, but I think that sometimes they are a little out of touch with the ordinary man in the street, even with the ordinary juror in the street.
I do not want to become anecdotal, otherwise I shall be accused of being frivolous. However, I should like to cull from my professional experience two or three actual cases. Many years ago even civil cases in the county court were tried by juries. One day my father, having won a case before such a jury in the county court in, I think, Whitechapel, was going back on the steam Metropolitan when he saw opposite him a member of the jury. My father was a member of the Bar, and as I hope those who remember him will recognise, he was one of the most honourable members of the Bar that there has ever been, and one of the most distinguished. He saw the gentleman opposite him. Being very pleased with his final speech, and thinking that he was going to receive a bouquet, he said to the member of the jury who was sitting opposite him, "Tell me, what was it which ultimately decided you in favour of my client?"—the client was the plaintiff in a running down case. The man replied without hesitation, "I was not going to see your father's son done down. I am a member of the polytechnic".
Of course that was very naughty of both my father and the juror—I do not know who was the naughtier. But here we are solemnly saying that they all ought to be punished for contempt of court. A new criminal offence is to be created by the noble Lord, Lord 252 Hutchinson, backed, so he would ask me to believe, by the Lord Chief Justice, and backed by my noble and learned friend on the Cross-Benches and other persons of almost equal eminence, if such could be found.
Many years ago—I think it was in 1934—I happened to be prosecuting in a case of murder, which was quite famous at the time, and which was known as the Brighton Trunk Murder No. 2. I was led by Mr. James Cassels and the judge was Mr. Justice Branson. The court was the Lewes Assizes, and Sir Norman Birkett (as he then was) made one of his outstanding speeches, and ultimately secured an acquittal. It was the only acquittal on a verdict of murder that I have ever heard booed from the gallery, and so it has remained starkly in my mind. Of course the proceedings of the jury room were utterly secret. Within 20 minutes I had been told by the circuit butler, who was a somewhat loquacious Irishman, exactly what had happened, because they had all repaired to the White Hart hostelry opposite the court and had there discussed exactly what had taken place.
That happened under the law before the whole structure was demolished, as the noble Lord, Lord Hutchinson, would ask us to believe; and of course if this amendment were passed in his form, all the persons in the bar of the White Hart, or at any rate a majority of them, would certainly have been guilty of a heinous contempt.
The third case I cite is that which I have already cited to the noble Lord, Lord Renton, and that is Boston v. Bagshaw, which was a civil case of libel. There, not only one of the most distinguished leaders of the present bar, an ex-chairman of the Senate, but his solicitor, who was equally distinguished, obtained 12 affidavits from members of the jury as to what had gone on in the jury room and asked the Court of Appeal to look at them for the purposes of deciding the merits of the appeal. The Court of Appeal, as I have already recounted, refused to look at them on authority, which was quite plain and unequivocal, which I ventured to put before them professionally. But if the Motion of the noble Lord, Lord Hutchinson of Lullington, had been carried, the ex-chairman of the Senate and his solicitor would have been behind prison bars, because this would have been an open acknowledgement of a contempt.
I can only say this. I have taken a good deal of stick on this Bill, which I regard as a liberalising measure; and the general picture which has been painted about me in the press is that of a harsh and unrelenting Lord Chancellor determined to restrict the liberties of the press and the liberties of the subject. But I venture to say that Lord Hutchinson's little finger is thicker than my thighs, because he is now saying that all this careless talk, which for 700 years has gone on without particular complaint, is going to undermine the whole jury system unless it is abolished overnight by his Motion, because all these disclosures would be contempt of court.
I recognise, of course, that under the Bill as drafted, and therefore under the noble Lord's amendment, the Attorney-General's consent is necessary to back prosecutions; but I am not myself going voluntarily to be a party to introducing a new criminal offence which is to my mind thoroughly bad because it is too draconian and contrary to the advice of the Criminal Law 253 Revision Committee and the whole philosophy of their report, and not just their particular recommendation on this subject. I am not going to be a party to having an anti-liberal device introduced in this way without telling noble Lords exactly what I think they are doing. As I said at the beginning of my immoderately long speech, it sometimes falls to a man who belongs to an honourable profession to differ from his fellows. This is one of those occasions. If I am beaten on a Division, I shall take it, I hope, like a gentleman. There are no politics in this at all; but the House must at least be aware of what it is doing, and I hope I have made it aware of what it is doing pace the Lord Chief Justice, pace the criminal law bar, pace my noble and learned friend on the Cross-Benches and pace Lord Mishcon and Lord Renton. I think they are going too far in an anti-liberal direction. If the House wants to do that, I shall not complain that I have been beaten, but at least my honour will remain intact.
§ 7.5 p.m.
§ Lord Hutchinson of Lullington
My Lords, perhaps I might, with all the modesty that I can command, reply quickly to one or two of the things which the noble and learned Lord the Lord Chancellor has said. He has spoken of stick, and if I add a little more stick I know I will be forgiven. I say it with no disrespect, but the noble and learned Lord the Lord Chancellor seemed to me to be somewhat like a stag at bay at this stage of the debate. Can it really be that everybody who is concerned with this question in the law is out of step? Can it he that everybody—the Lord Chief Justice of England; the noble and learned Lord, Lord Edmund-Davies; the whole of the Criminal Bar Association; the bar itself; the solicitors; and all those who took part in the debate in another place—is out of step, there being not one single speaker in this Chamber to support the noble and learned Lord? Can it be that he alone speaks on this matter with the correct truth and authority, and that everybody else is wrong?
May I just deal with three points quickly? The point is made that for 700 years matters have gone on; the law has dealt with them, and the whole view behind this amendment is based on a fallacy. This, if I may say so, is a complete misconception of the reason for this amendment. What has happened, as the noble and learned Lord the Lord Chancellor has said, is that for 700 years no case was brought in relation to this matter. But when the New Statesman case was brought it then appeared for the first time that there was no real sanction of the law which could deal with the kind of disclosures to which we have been referring.
It was not a question that the law dealt with them, and dealt with them for 700 years. The position was that everyone believed that there was a legal sanction, and it was when the New Statesman case was decided that it became clear that there was no such sanction except in the special circumstances that we have heard about. Anyone who reads the judgment in the New Statesman case will find that it is very weak indeed on suggesting that anything would be a contempt unless it clearly interfered with justice or clearly imperilled the finality of a verdict, but that otherwise these sort of questions would not be covered at all.
254 All that the Criminal Law Revision Committee did, as we have heard from the noble and learned Lord who was a member of it, was to show its wisdom in 1968 not to legislate, and not to legislate has now been done, because they knew perfectly well that if there was legislation then it would have to cover the whole area of disclosure and not simply one part of it. So they showed their wisdom, which has not been shown, if I may say so, by the legislation which is proposed in this clause. That was the position of the Criminal Law Revision Committee.
The Lord Chief Justice has apparently written a letter to say that he did not want the noble and learned Lord the Lord Chancellor to make a dent in the situation. If that is all that he asked for, then why was it that he described as an incredible idea and as anathema the situation when persons might be able to approach jurymen after a verdict and simply ask them what went on.?
It has been said that practising lawyers are out of touch with jurymen and with the courts. I can only say that possibly in the days of the steam Metropolitan, in the days of circuit butlers, in the days of Mr. Justice Cassels (to whom I was a marshal 41 years ago), things were very different. Now, there are people called investigative journalists; and juries are now no more prepared to sit back in fear of what a judge says to them and of what they are told they can do and what they cannot do. They are far more educated, they are far more independent; and I am afraid to say that possibly those of us who every day of the week spend our time either with persons who are charged with offences or in the company of juries and jurymen, are perhaps (I would suggest with the greatest possible modesty) more in touch with what in fact they do and think and say. In view of the remarkable amount of support that this Motion has received in this Chamber, and the remarkable quality of it, I feel that I am bound to press this matter to a Division.
§ 7.10 p.m.
§ On Question, Whether the said Motion shall be agreed to?
§ Their Lordships divided: Contents, 76; Not-Contents, 41.255
|Airedale, L.||Edmund-Davies, L.|
|Airey of Abingdon, B.||Elwyn-Jones, L.|
|Amherst, E.||Evans of Claughton, L.|
|Ampthill, L.||Ewart-Biggs, B.|
|Auckland, L.||Faithfull, B.|
|Avebury, L.||Gainford, L.|
|Aylestone, L.||Gibson, L.|
|Barrington, V.||Gisborough, L.|
|Bernstein, L.||Glenamara, L.|
|Bishopston, L. [Teller.]||Glenarthur, L.|
|Blease, L.||Hampton, L.|
|Bledisloe, V.||Hatch of Lusby, L.|
|Bridge of Harwich, L.||Hooson, L.|
|Brockway, L.||Hutchinson of Lullington, L.|
|Byers, L.||Jeger, B.|
|Chitnis, L.||John-Mackie, L.|
|Cledwyn of Penrhos, L.||Killearn, L.|
|Collison, L.||Kilmarnock, L.|
|Craigavon, V.||Kinloss, Ly.|
|Davidson, V.||Lawrence, L.|
|De La Warr, E.||Lee of Newton, L.|
|Llewelyn-Davies of Hastoe, B.||Roskill, L.|
|Lloyd of Kilgerran, L.||Ross of Marnock, L.|
|Loudoun, C.||Salmon, L.|
|Lovell-Davis, L.||Seear, B.|
|Mackie of Benshie, L.||Shackleton, L.|
|McNair, L.||Shannon, E.|
|Maelor, L.||Stamp, L.|
|Mersey, V.||Stodart of Leaston, L.|
|Mishcon, L.||Stone, L.|
|Morris, L.||Taylor of Mansfield, L.|
|Mountevans, L.||Tordoff, L.|
|Newall, L.||Tweeddale, M.|
|Noel-Baker, L.||Underhill, L.|
|Pitt of Hampstead, L.||Wade, L.|
|Renton, L.||White, B.|
|Robbins, L.||Wigoder, L. [Teller.]|
|Rochester, L.||Wilson of Radcliffe, L.|
|Alport, L.||McFadzean, L.|
|Avon, E.||Mackay of Clashfern, L.|
|Bellwin, L.||Mancroft, L.|
|Belstead, L.||Mansfield, E.|
|Brougham and Vaux, L.||Marley, L.|
|Chelwood, L.||Mottistone, L.|
|Cullen of Ashbourne, L.||Mowbray and Stourton, L.|
|Daventry, V.||Orkney, E.|
|Denham, L. [Teller.]||Rankeillour, L.|
|Digby, L.||Rochdale, V.|
|Drumalbyn, L.||St. Aldwyn, E.|
|Fraser of Kilmorack, L.||Saint Oswald, L.|
|Gridley, L.||Sandys, L. [Teller.]|
|Hailsham of Saint Marylebone, L.||Skelmersdale, L.|
|Harmar-Nicholls, L.||Swinfen, L.|
|Kilmany, L.||Trenchard, V.|
|Kimberley, E.||Trumpington, B.|
|Kinnoull, E.||Vickers, B.|
|Long, V.||Vivian, L.|
|Lyell, L.||Wilberforce, L.|
§ Resolved in the affirmative and Motion agreed to accordingly.
§ The Lord Chancellor
My Lords, having regard to the result of the Division, I am advised (I think I am right in saying) that I do not move the Motions on Commons Amendments Nos. 4 and 5.