HL Deb 21 January 1985 vol 459 cc81-100

8.5 p.m.

House again in Committee.

Clause 17 [Defence costs]:

On Question, Whether Clause 17 shall stand part of the Bill?

Lord Simon of Glaisdale

I have two more points. The first is purely a personal request. My noble and learned friend the Lord Chancellor promised to write to the noble Lord, Lord Hutchinson, on what related, I think, in some respects, to private prosecutions. Unfortunately, that is a subject on which the noble Lord, Lord Hutchinson, and myself do not see eye to eye. So would my noble and learned friend be kind enough to send me a copy of his letter? I know that it will be available in the Library, but it would be a personal convenience if he could meet my request.

The other point that I wish to raise on Clause 17 concerns the meaning of subsection (3), which deals with a legally assisted person. It says that the legal aid order shall be disregarded in determining the amount of costs. That could mean, I think, that the party is legally aided. I do not think that it does mean that, because of the tense. According to the wording, the order "is made". However, if it does mean that, it could perhaps be more explicitly worded; or it can mean, can it not, the amount of the certificate, the amount demanded of the applicant in respect of which the legal aid certificate is granted? Again, if that is what it means, it could be much more understandably drafted. But it is also then, to some extent, bound up with a point that was raised by the noble Lord, Lord Mishcon, and by myself in consequence, about which my noble and learned friend the Lord Chancellor undertook to give more thought; or, of course, it may mean something quite different, which I have not grasped at all. I would be grateful if my noble and learned friend could explain the subsection.

The Lord Chancellor

In response to my noble and learned friend on the Cross-Benches, I shall, of course, arrange for a copy of any letter which I may write to the noble Lord, Lord Hutchinson of Lullington, to be sent to the noble and learned Lord as well as have it put in the Library or anywhere else that we may think it right to put it. In response to his second question, what has to be disregarded is not the fact that the legally assisted person is legally assisted. It is the order that is to be disregarded in determining the amount of the costs. I had thought that this was possibly plain. If what I am now about to say is wrong or inconclusive, I shall try to supplement it by letter; but it is, I think, clear, once one appreciates that what is to be disregarded is the amount of costs in the legally aided order and not the fact that the man is legally aided. All else, I think, follows from that.

Subsection (3) provides that the costs payable by the prosecutor to a legally-assisted defendant are not to be reduced in amount to take account of the fact that the defendant is legally aided. Thus the costs payable by the prosecutor may include expenses which will be borne out of legal aid, which can then be used to reimburse the legal aid fund for the costs expended on the defendant's behalf. A prosecutor of a legally-assisted defendant will not benefit by being ordered to pay a lower amount of costs by reason of the existence of the legal-aid order. The Lord Chancellor is given power under Clause 20, subsections (2) and (3), to make regulations providing for the recovery of sums paid out under a legal aid order from costs orders made against a legally-assisted defendant's opponent. That is the best answer that I can give for the present. If it should prove either inadequate or mistaken, I shall try to correct it or supplement it.

Lord Simon of Glaisdale

I am quite sure that it is not inadequate. What is inadequate, I am afraid, is my understanding of it. As I understand it, a legal aid order is made and a certificate is then granted, sometimes subject to a contribution. I can well understand that the contribution is to be disregarded; that was the point the noble Lord, Lord Mishcon, raised. I can understand that the fact there has been a legal aid order shall be disregarded, but if it means that the full costs of the legally-assisted person are to be paid by the prosecutor I cannot see, as at present advised, and although my noble and learned friend has explained it, why that should not be said in that form.

The Lord Chancellor

I think that is a question of draftsmanship, about which I should have to take advice. However, those who are listening or who will read elsewhere what I may have said will cause me to write to my noble and learned friend.

Lord Simon of Glaisdale

I certainly cannot ask more than that my noble and learned friend should consider the draftsmanship, before the next stage of this Bill. Otherwise, I am very content.

Lord Elystan-Morgan

There are two matters which I should be grateful if I might raise on the Question whether Clause 17 shall stand part of the Bill. The first is whether there is any power—it seems to me there is not—in a Crown Court to order costs against the prosecution. If I am right in that—I shall gladly be corrected if I am wrong—then it means that a very substantial sanction which exists at the present moment in relation to the prosecution has been removed.

The other matter is something which arises under Clause 18, but it seems there that a court would not have the right to deprive the prosecution of costs where a person in fact has been convicted. It may very well be that the prosecution have carried on with a matter where the judge has already given a clear indication that he regards it as a mean prosecution and where nowadays the thinly-veiled threat of not allowing costs—prosecutors have to apply for costs, irrespective of the issue—would be sufficient. That, again, is a substantial matter. I mention that in relation to Clause 18, although we have not reached it, in the context of my question in relation to the Question whether Clause 17 shall stand part. Is it the case, as I understand it to be, that the Crown Court does not have this authority?

8.15 p.m.

The Lord Chancellor

Again, I am not absolutely sure that I am completely in touch with the precise question which the noble Lord is asking. The situation envisaged by Clause 17 arises where an offence, a summary offence, is laid but not proceeded with, or is dismissed. Then the court may make such an order as to costs to be paid by the prosecutor to the accused as it considers just and reasonable. The amount must be specified in the order, and in arriving at the order, which includes the amount, the legal aid order shall be disregarded in determining the amount of his costs, which I suppose means that he pays what is not included in the legal aid order. I shall of course review what I have said in the light of any advice that I may receive.

The situation envisaged in Clause 18 consists of a state of affairs, in subsection (1), in regard to any one of three situations. All of them result in a payment by the accused to the prosecutor; that is the reverse situation. The amount of that order will be such as is just or reasonable. Subsection (2) gives the right which arises in the Court of Appeal where either the Court of Appeal dismisses an appeal or an application for appeal under Part I of the Criminal Appeal Act 1968, or the court or the House of Lords dismisses an application by the accused for leave to appeal. Those are costs to be paid by the accused to such person as may be named in the order. The amount will be specified in the order, but they are specified as those which it considers just and reasonable. That is the best I can do ex improviso. I shall do better if I find that I have fallen short in any way.

Clause 17 agreed to.

Clause 18 [Prosecution costs]:

Lord Elwyn-Jones moved Amendment No. 59:

Page 17, line 33, leave out ("under the age of seventeen").

The noble and learned Lord said: Clause 18(5) provides: Where any person under the age of seventeen is convicted of an offence before a magistrates' court, the amount of any costs ordered to be paid by the accused under this section shall not exceed the amount of any fine imposed on him". That seems a reasonable and sensible provision. But should not what is good for those under the age of 17 who are convicted of an offence apply also, at any rate in principle, to those of any other age above the age of 17? Why limit this protection to the young offender? Is there not a danger, which already exists, that sometimes the addition of a substantial order for costs is, so to speak, added as an additional penalty? If the purpose of the Bench is to punish by way of financial sanction, why not make that clear in the amount of fine imposed?

Is the tendency to make the award of costs a supplementary penalty for minor offences right? I quite understand that there may be cases where the offence itself may not be very grave but the expense involved in bringing the proceedings may for one reason or another be considerable. There may be such exceptional cases for which provision could perhaps be made in the Bill.

But on the face of it and in principle we submit that it is reasonable that the sensible provison of Clause 18(5) should apply generally in the case of persons convicted of offences before a magistrates' court. I beg to move.

Lord Denning

I hope that your Lordships will not accept this amendment. I remember dozens of cases where the magistrates' courts and other courts have not been able to impose as large a fine as they thought they ought because the statute did not specify enough. Therefore—quite rightly to my mind—they ordered the defendant not only to pay the penalty but to pay the costs and to pay the costs because he had wrongly disputed the case. It seems to me that there is complete justice in imposing the penalty as set down and in making the defendant pay the costs if need be, even if they come to more than the fine. I see nothing whatever wrong with the clause as it stands.

Lord Campbell of Alloway

I respectfully suggest that this is a useful sentencing option which is properly used—there is no evidence that it has been abused. It is useful in particular because it brings home to the accused who has been found guilty the fact that he has done wrong and that he has got to pay for it in the costs of the administrative proceedings. I can find no fault with the Bill in this regard.

Lord Hutchinson of Lullington

If I may say so, I take a very different view. I must say that I was astonished to hear the noble and learned Lord, Lord Denning, say that he could see nothing wrong—and I am fairly nervous about putting this forward—in there being a fairly trivial offence which did not carry a fine greater than so much, but as regards which it would be perfectly proper, having fined the defendent so much, to say, "Well, we think he really ought to be punished a bit more than that and so we shall impose a substantial sum of costs". Surely that raises the matter of principle that, if in fact the fine which it is proper to impose in relation to an offence is so much, it must be wrong (must it not?) to get round the principle which establishes that that fine is proper for that offence, by adding some unacceptable sum which is really an extra fine which the statute or the merits of the case have not justified.

I must say that I find it very surprising that the noble Lord, Lord Campbell, who sits as a Recorder, should also take the view that it is perfectly proper to impose a fine of £50 which suits the situation and then say, "But I think you had better pay £250 costs", thereby making a fine of £300, which, in fact, is not justifiable. I should have thought, with the greatest of respect, that if this is right for those under 17, then it is right for everybody, because it is a question or principle that is involved. I should have thought that this is a very healthy amendment to have in the Bill.

Over and over again one's experience is that the court may take something of a dislike to the accused or may take the view, "Well, he is very lucky in fact that he was only charged under such and such a section. If the prosecution had appreciated the full matter they would have charged him under another section, which would have justified a bigger fine. But we do not have to worry about that. We shall impose the proper fine under the lesser section and then top it up with costs". In my submission, that is not being judicial. If this amendment were put into the Bill it would remove that temptation which one often sees dangled before the tribunal.

Lord Simon of Glaisdale

I presume to agree with my noble and learned friend Lord Denning and the noble Lord, Lord Campbell. The question as regards a fine is not only, "What is the amount appropriate to the offence?", but also, "What do the means of the accused merit by way of fine?" If he has to pay a large amount by way of costs, that is quite legitimately a matter that the court may take into account in mitigating the fine in order, in the circumstances envisaged, to bring the fine below the amount of costs. I hope that my noble and learned friend will not accept the amendment.

The Lord Chancellor

The short answer to this amendment is that it is unnecessary for the reason given by my noble and learned friend Lord Simon of Glaisdale. But there is a little more to it than that, because I think that particularly the noble Lord, Lord Hutchinson, has muddled himself a bit as to what this is about. There are three types of monetary payment which can be ordered by a summary court against a defendant who is convicted. One is compensation to the victim; another is the costs which have been incurred to bring the case to trial, which may be more or less according to the course which the case has taken at the hearing; and another is the fine—if that is thought to be the appropriate penalty—to be inflicted for what the defendant has done. The court has to consider the ability of the defendant to pay, and that is the point which has been made by my noble and learned friend Lord Simon of Glaisdale.

In taking account of what the defendant can afford to pay, we have to take into account both the other factors, because they affect his means and his ability to pay. The statute law requires that if you are going to impose a fine you have to consider the question of compensation before you consider the amount of the fine. That is provided by the 1981 Act. I am very glad that that particular provision was brought on to the statute book because ever since 1948, both in Opposition and in Government, I have been fighting the battle that compensation for the victim should come first, because it has a much better reformative and moral effect than any other monetary payment you can order a convicted defendant to pay. Fortunately that is now embodied in statute and fortunately, at last, after much striving and travail, I have got the Government to give a commencement for that statute and it is now in force.

I see no reason at all why costs should not be considered first rather than second. I should have thought that the fact that the defendant has caused the public to be put to expense is secondary only to the fact that he has caused damage to a potential victim. I think that that is the next factor to be considered. Finally, if those two together are not enough, then some kind of penalty has to be inflicted by way of fine, if a fine is the appropriate type of penalty. My own view, for what it is worth, is that the fine might be reduced very well because of the fact that compensation has been ordered or that the costs have been considerable, because they must affect the ability of the defendant to pay. You must not charge the defendant more than he can pay because, in effect, you would be making him subject to penalties of a different kind from those which you intended to inflict. You get at it from the oppposite end from that which is proposed in the amendment; you get at it by looking at the total, global, sum he has to pay in a perfect world, and if you find that the total amount is too much for him, you have to alleviate it somewhere. I would alleviate it in the amount of the fine, because I think that the other two factors have a much more moral effect than the amount of the fine. However, in the end, the total effect is bound to be the same.

The idea that you would add to the fine by imposing an exorbitant amount of costs would, I think, be inviting the Divisional Court to subject the magistrates to a judicial review. Therefore, the short answer I give is the answer given by my noble and learned friend Lord Simon of Glaisdale and, I think, by my noble and learned friend Lord Denning; the longer answer I give is that upon which I have sought to expatiate.

8.30 p.m.

Lord Elwyn-Jones

I am grateful to the Committee for giving careful consideration to this matter. We are moving in rather curious waters—if "curious" is the proper word to use in relation to waters—in that Parliament determines the amount of penalty that should be imposed for a specific crime. We are told that that is mere shadow-boxing. The real financial penalty to the pocket of the offender will lie not in the fine aspect, but in the costs. So the schedule of offences and penalties is rather more misleading—we must forget about the amount of the penalty. So often it is alleged and complained that costs awarded are excessive. I suppose that the prosecution costs that are imposed are capable of being taxed.

Therefore, with great respect, I do not think that it is quite as black and white an issue as has been indicated in the discussion. I entirely agree with the noble and learned Lord the Lord Chancellor that consideration number one should be compensation, and perhaps even now, after the urgings of the noble and learned Lord and his predecessor and others, there is a tendency too often to overlook the element of compensation. But looking around me at experienced magistrates who are present, I do not suppose that they offend in that regard. I believe it is idle to think that that element covers the matters of concern.

I raise this matter because I think it is proper that these questions should be raised. I certainly do not propose to go either to the stake or to the Division Lobby over them. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elwyn-Jones moved Amendment No. 60:

Page 17, line 38, after ("the") insert ("reasonable").

The noble and learned Lord said: This is by way of a probing amendment which I move with a certain amount of hesitation. It is claimed that the cost of preparing transcripts is very high. Whether or not that is so in practice, I should have thought that perhaps there has been greater concern about the difficulty of producing transcripts in time. I know that that is a problem that has caused a great deal of worry in the Court of Appeal. In some cases the hearing of appeals has had to be considerably delayed because of the mere difficulty of getting hold of the transcripts.

However, in addition, perhaps we can be assured that the cost of transcripts is a matter which is looked at from time to time. It is very important that the putative appellant should, at the very least, have the opportunity to obtain a transcript at a price not ruinous to himself. It may be that the state of play is not too bad. I am not pressing this as a positive allegation, but if the noble and learned Lord has information on it, perhaps we could be told about it. I beg to move.

The Lord Chancellor

Probing or not, this amendment is clearly right and I am very happy to accept it. I am grateful to the noble and learned Lord for proposing it.

On Question, amendment agreed to.

On Question, Whether Clause 18, as amended, shall stand part of the Bill?

Lord Hutchinson of Lullington

I should like to ask for some guidance on this clause because here we are dealing with the Crown Court and the Court of Appeal in relation to costs and not with the magistrates' court. In subsection (2) the words: as it considers just and reasonable". are similar to those in subsection (3), where it says: The amount to be paid by the accused … shall be specified in the order". Hitherto, the order which is normally made in these circumstances has used the phrase: shall pay an amount not exceeding £X towards the costs of the prosecution". Also, in the Costs in Criminal Cases Act 1973 one has the words: the amount to be ascertained by the appropriate officer of the Court". I just seek guidance as to how it is envisaged that the amount of these costs will be assessed. We are not talking about an immediate assessment, as we are in the magistrates' courts. Clause 18(3) would seem to imply no taxation whatever.

The Lord Chancellor

The noble Lord is not quite right in saying that we are not concerned with magistrates' courts. Clause 18(1) clearly envisages a magistrates' court. Clause 18 as a whole enables a magistrates' court and a Crown Court to order a convicted defendant to pay just and reasonable costs—which the clause requires the court to specify in the order—to the prosecutor. The amount is contained in Clause 18(3) in the terms which I have just set out.

Subsection (1) sets out the circumstances in which the court may make an order for the convicted defendant to pay costs to the prosecutor on conviction in a magistrates' court or where the Crown Court dismisses an appeal against conviction or against the sentence imposed on conviction. Subsection (2) enables the Court of Appeal, in dismissing an appeal or an application for leave to appeal to the House of Lords, to order that the accused pays costs to the person named in the court's order. Again, the amount is such as it considers just and reasonable. The House of Lords will not be able to make an order against the accused where his appeal is dismissed.

In these circumstances it is accepted that the accused, by reason of the fact that he was granted leave to appeal, was justified in making the appeal, and so even though he was unsuccessful, he should not be made to pay prosecution costs. The Divisional Court of the Queen's Bench Division has separate powers under Order 62 of the Rules of the Supreme Court to order the payment of costs between parties to the proceedings, including criminal proceedings, and it has not been thought necessary to duplicate those powers in Clause 18. Subsection (3)—and I think that this answers the question put by the noble Lord, Lord Hutchinson of Lullington—requires the court, in making an order under this clause, to specify the amount. There will not, therefore, be any taxation or determination of the amount payable to the prosecutor.

Then, subsections (4), (5) and (6) repeat equivalent provisions found already in the Costs in Criminal Cases Act 1973. I think that is the best I can do at the moment. I think it answers the question that the noble Lord, Lord Hutchinson, asked me.

Clause 18, as amended, agreed to.

Clause 19 [Provision for orders as to costs in other circumstances]:

Lord Mishcon moved Amendment No. 61:

Page 18, line 7, leave out first ("to") and insert ("in the conduct of").

The noble Lord said: The Committee are invited to look with some care and, indeed, I would say, anxiety at the provisions of Clause 19 of this Bill. Because we regard it with some concern, I am going to read Clause 19(1) carefully: The Lord Chancellor may by regulations make provision empowering magistrates' courts, the Crown Court and the Court of Appeal, in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs". Subsection (2) refers to the permissive right of the Lord Chancellor to, allow the making of … an order at any time during the proceedings"; to, (b) make provision as to the account to be taken … of any other order as to costs"; and to, (c) make provision as to the account to be taken of any such order in the making of any other order as to costs", and (d) … provisions similar to those in section 18(4) and (5) of this Act".

What does that mean as at present drafted? It means, as I see it, that the clause could permit regulations to he made which penalise a defendant who, for example, refused to make a statement when the police wanted him to make a statement. It might be argued that he, the defendant, a party to the proceedings, had, in the view of the court, put the other party to unnecessary costs, or had delayed the proceedings, and that in those circumstances he ought to have a costs order made against him. Indeed, the words "on behalf of might even cover a legal adviser to a defendant who told the defendant that he had the legal right to remain silent and not to help in his own prosecution, or indeed it might be the prosecution of another defendant party to the same proceedings.

This is something which must be looked at with anxiety. Therefore, the amendment proposes first of all that the words "in the conduct of" should be inserted in page 18, line 7, leaving out the first "to". That would ensure that the regulations could not be applied to matters which pre-date the commencement of proceedings as defined by analogy with Clause 14(2), because as at present drafted they could be applied to acts or omissions carried out prior to the commencement of proceedings.

8.45 p.m.

Now the second amendment, No. 62: Amendment No. 62: Page 18, line 8, at end insert ("provided that the regulations shall not empower any court to make such an order against any person who is acquitted or whose appeal against conviction is allowed.") The second amendment provides: that the regulations shall not empower any court to make such an order against any person who is acquitted or whose appeal against conviction is allowed". That would ensure, for its part, that only those found guilty were penalised in this way. I hope your Lordships will agree with me that there can be no argument for penalising the innocent, whether the acquittal is based on merit or, indeed, on a technicality.

The other matter I should like the noble and learned Lord the Lord Chancellor to deal with in regard to this amendment is that these regulations carry with them a threat of something which could be quite inimical to the concepts that we have in regard to a defendant. Here, again, I hope that I shall not bring to his feet the noble and learned Lord, Lord Simon of Glaisdale, if I say once more that quite obviously one can have complete confidence in the noble and learned Lord the Lord Chancellor not to make regulations which we would regard as unjust, but these are powers given to the Lord Chancellor in an Act of Parliament which can obviously endure for many years.

I would hope that because of the seriousness of this power there would be the fullest possible consultation with the Law Society and the Bar before any regulations are made, be it within the scope of the present Bill if unamended—and that would be, a fortiori, my wish and submission—or even with the amendment. I would hope that the noble and learned Lord could give an assurance that there would be the closest consultation with the Bar and the Law Society, who obviously are concerned with the wording of the Bill as it at present stands. I beg to move.

The Lord Chancellor

So far as concerns consultation, which is really independent of the terms of either of the two amendments to which the noble Lord has spoken, it is certainly my policy to consult both with the Law Society and with the Senate on any matters in which they are legitimately interested. I certainly shall, subject to anything that I may be told that I have said out of place, give the assurance that the noble Lord, Lord Mishcon, requires. Of course these regulations will have to be considered in conjunction with the profession and the judiciary and the ordinary parties with whom consultation is made.

If I may speak first to Amendment No. 61, this is an unnecessary amendment and makes no difference to the meaning of the clause as drafted. The only effect of it, so I understand, is that the unnecessary or improper act of omission for which a party is being penalised occurs within the proceedings and not outside them, but that is already the case under the clause as drafted and is not added to by the addition of the words "in the conduct of".

The use of the word "costs" in the context of the clause can only be interpreted as limiting the power to award costs to cases where the improper act or omission occurred in the proceedings. Costs can only be in the proceedings. I think that the fear that the costs provision could be used in such a way as to defeat the right of silence, as it is called, or any other substantive right of the defendant, is not one which would bear examination. I shall of course take further counsel with the draftsmen to make sure that I am right in what I have said, but that is the advice which I have received and that I believe to be the case.

The position as regards the second of the two amendments, Amendment No. 62, is somewhat different. The clause in the Bill enables a court, and is intended to enable a court, to exercise greater control over the parties appearing before it and to mark its displeasure at the unreasonable behaviour of one party regardless of the result of the case. The discretion might be exercised, for example, where one party has caused unnecessary expense by requiring an adjournment when they should have been able to proceed. The civil courts already possess such powers where costs are awarded, as the noble Lord will be well aware. People work out costs as a result of unreasonable behaviour regardless of the result of the case. Amendment No. 62 would strike at the very heart of this intention. The fact that a defendant is acquitted does not in itself mean that at some stage he could not have acted in an unnecessary or improper way which has put the other party to unnecessary expense. I do not see why such conduct should not be penalised regardless of the outcome of the case and I therefore ask the noble Lord not to press Amendment No. 62.

For these reasons I am anxious to consult the profession and the judiciary over any regulations that I may make. I am sure that these are innocent of any evil intent. If they have by any chance a side effect which may be evil in effect or consequence, I will ask the draftsman to look at it in the light of what the noble Lord, Lord Mishcon has said.

Amendment No. 62 is, as it stands, objectionable because the intention of the clause is to prevent people from wasting the other side's money irrespective of the result. An innocent defendant can do that as well as a guilty defendant on occasion and very often does. I hope I have answered the two cases which were put forward by the noble Lord, Lord Mishcon.

Lord Airedale

I see that in Clause 29 it says: Any power to make regulations under this Act shall be exercisable by statutory instrument subject to annulment". I should have thought that there was a good case for saying that the regulations being envisaged here (which seem to me to be breaking new ground under the criminal law) ought to be subject to the affirmative procedure.

The Lord Chancellor

I take note of what the noble Lord, Lord Airedale, has said. I do not think so. We want to confine the affirmative procedure to matters of greater consequence than this, but I take note and will consider it.

Lord Hutchinson of Lullington

I wonder whether I may press the noble and learned Lord the Lord Chancellor further. Is he prepared to look at these words again, because the regulations will give these courts power to make this order? They read: one party … has incurred costs as a result of an unnecessary or improper … or omission by … another party". Unnecessary to what? What on earth does "unnecessary" mean in that context?

The noble and learned Lord has two or three times used the words "unreasonable behaviour" of another party. I can quite understand unreasonable behaviour being something upon which the court could quite easily adjudicate. But the court has to adjudicate on whether someone has done something unnecessarily in the proceedings, or has omitted to do something. The trouble is that, human nature being what it is, many defendants are people who are irresponsible to a degree. They may not understand exactly what they ought to do or ought not to do. It seems to me to be dangerous to give powers of such enormous breadth as this, which will allow it to be said that a person has behaved in a way in which the court may think unnecessary in all the circumstances—then there would be a long argument about what was meant by "unnecessary"—or has omitted to do something which a sensible person would have done.

The other matter is a point which has been raised already on what is the situation when the defendant or the party in question has been given legal advice which has led to some unnecessary waste of time. For instance, he may have been advised to call two or three witnesses, who, having been called, may have given evidence which had nothing to do with the point. The court will not have seen their original proofs not will it understand why they were called. The court may take the view that it has been a total waste of time and that it was unnecessary to call those three witnesses, though they would have been called on legal advice.

The Lord Chancellor

I should have thought that the word "unnecessary" was easier to construe than "unreasonable". "Unnecessary" means unnecessary to the conduct of the proceedings and to the result achieved.

As regards legal advice, if I were advised to do something which deprived me of costs, I should have something to say to my solicitor and to my counsel which I do not think they would like to hear.

Lord Elwyn-Jones

I wonder whether the Lord Chancellor would have another look at Amendment No. 62. It seems a hardship that a person who has been acquitted, or whose appeal against conviction has been allowed, should be subject to regulations which empower a court to order him nevertheless to pay costs. This could be a great hardship for a person of limited means. Will the noble and learned Lord not reconsider this to see whether in some way it cannot be limited or modified so that hardship may not be imposed on a wholly innocent person against whom ineffective and perhaps wholly wrong and unjustified proceedings have been brought?

The Lord Chancellor

I think that for once the noble and learned Lord has not appreciated the policy behind the clause. It is that, irrespective of the result of the proceedings, unreasonable behaviour should be penalised in the costs. That may not depend on the result of the pleadings at all. A person who is acquitted may be guilty of unreasonable behaviour, adding to the costs unnecessarily, just as much as a person who is convicted may have spent not a penny more than is necessary.

As I said, Amendment No. 62 strikes at the heart of the policy behind the clause. If there is any improvement in the draftmanship which can be considered, I shall gladly consider it. But if it is a question of policy then I must stand firm.

Lord Mishcon

I first thank the noble and learned Lord for the promise which I should have expected of him, that there would be the fullest consultation with the Senate and the Law Society in relation to any regulations which it may be thought should be brought forward under the provisions of the clause. I know that the Law Society was extremely anxious to have such consultations and it will be grateful to the noble and learned Lord.

I ought to emphasise that there is concern about these powers. I should like to pay tribute, as do my noble friends, to Justice, which brought this amendment forward and which expressed concern at the present wording of the clause. Indeed Justice is an organisation of which the country can be proud in the way in which it endeavours to see, with a completely objective view, that legislation of this kind does not go without the closest possible attention. This has been shown in this instance.

9 p.m.

I did not quite understand, if the noble and learned Lord will forgive me for saying so, his answer to my noble and learned friend. The policy, we were told, is that if a defendant acts in an unnecessary way—I will not quote all the words that are used in this clause—he can he mulcted in costs even though he be acquitted. I thought that the noble and learned Lord the Lord Chancellor was likening this case to the situation in civil proceedings. These are not civil proceedings. A defendant decides in civil proceedings that it is his wish to defend them. In a criminal case the defendant stands there as the defendant at the instance either of a private prosecution or, under the provisions of this Bill, at the instance of the Prosecutor's office. He has not walked into that court as a volunteer. The whole conduct of his proceedings is one forced upon him as a result of charges being brought. If he is acquitted of those charges, for him to be mulcted in some costs—being, as I repeat, not the volunteer by way of appearance in court—merely because he or somebody on his behalf has done something which the court may assume is unnecessary or unpopular or has taken some time, seems to me to be a most dangerous precedent.

I am not going to use that argument when the noble and learned Lord talks about an adjournment which is a waste of everybody's time and which presumably, in the instance which he quoted, has been caused as a result of the unreasonable behaviour of the defendant. In those circumstances, the court has power already without any regulation, as I understand it, to grant the adjournment but to say that because people have been inconvenienced as a result there should be some order in regard to costs. Indeed there are instances where professional brethren of mine have been mulcted in the costs because it is deemed to be their conduct or their omission which has led to the necessary adjournment. So we need no regulations from that point of view.

The noble and learned Lord was good enough to say that he felt the instances that had been given and the fears that had been expressed were, in his view, unnecessary only because regulations would not be made except in the most just instances but that the wording that had been used—though he proffered no opinion as to the words at the moment, except that they seemed all right to him—would be looked at in order that these dangers which I have tried to point out, as has my noble and learned friend, should be obviated. I think it is only right that an opportunity of that kind should be given to the noble and learned Lord in answer to his courteous offer; and on that understanding I crave the leave of the Committee to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 62 not moved.]

The Lord Chancellor moved Amendment No. 63:

Page 18, line 34, leave out ("20") and insert ("30").

The noble and learned Lord said: This is a purely drafting amendment to correct a mistake. I beg to move.

On Question, amendment agreed to.

Lord Campbell of Alloway moved Amendment No. 64:

Page 18, line 41, at end insert— ("( ) The Lord Chancellor shall by regulations make provision empowering magistrates' courts, the Crown Court and the Court of Appeal to make an order for payment of costs and expenses out of central funds in favour of any person who in the opinion of the court has reasonably incurred such costs and expenses by virtue of any order or direction sought or made against such person under section 4(2) or 11 of the Contempt of Court Act 1981.").

The noble Lord said: This amendment is designed to fill a gap in our procedural law. The financial consequences are minimal. The object is simple. It is to enable journalists and other representatives of the media who challenge reporting restrictions imposed by the court which has the conduct of a criminal trial, be it a magistrates' court or a Crown Court, to receive their costs and expenses out of central funds in appropriate cases.

The hope is that your Lordships' Committee will be able to support the principle of this amendment. The position at present is that reporting restrictions may be imposed by the court under the Act without having heard representations on behalf of any journalist or other representative of the media. Any challenge to the rectitude of such order or direction may only be mounted in the court which has the conduct of the trial in the form of an application to revoke the order. By judicial decision, the Divisional Court, on judicial review, has no jurisdiction to quash, reverse or vary any such order: nor indeed has the Court of Appeal, Criminal Division, which derives its powers from statute. This is of course entirely right and proper because it would be intolerable if the conduct of criminal trials were to be held up with applications for adjournments to challenge such orders and directions.

However, the situation is that in a number of cases journalists have succeeded in their applications to have the reporting restrictions revoked. One such case which comes to mind was the Nottingham Crown Court case. There, as your Lordships may remember, the judge imposed an indefinite ban on reporting the Rampton Hospital trials; but after having heard legal argument on behalf of the journalists, he revoked his order and wished to compensate the journalists for their costs out of central funds. In this case the costs were substantial. I do not have the figure: the noble Lord, Lord Ardwick, has it but he is not in the Chamber at this moment. However, the costs were substantial.

The judge wanted to do that and he thanked the journalists and their counsel for the assistance that was given. One has to bear in mind that there is a quite a lot of authority on the two sections, some of which was handed down by the noble and learned Lord, Lord Denning. I am more glad than ever to see him in his place because he has the authority to know that what I am saying in detail is true.

In those circumstances, the judge said to his clerk, "These people ought to have their costs out of central funds". The clerk looked it up and found that there is just no power under which any costs could be given. It does not arise under any of the statutes. I suggest to your Lordships' Committee that a situation such as this is really rather shocking; it certainly is not right, it certainly is not proper, it certainly is not satisfactory, and assuredly it is not fair.

Reporting restrictions are the exception rather than the rule. One must look at this in perspective. It is a little problem in one way, but a large one in another way. If restrictions are imposed, they are very seldom challenged. It is only the rare borderline case which is susceptible to reasonable challenge and indeed, I hope your Lordships will think, ought to be challenged in the interests of maintaining open justice and the freedom of the press. In this, those who raise a successful challenge not only advance a private commercial interest, but also perform a service within the general domain of the public interest and the maintenance and freedom of the press. As I have sought to suggest, it is not only unfortunate but also unjust that no provision may be made for their costs.

On drafting—as usual, I accept sole responsibility for it—I agree that, inevitably, the amendment is defective. The reference in the drafting of the amendment to the Court of Appeal is made only to seek to cover the situation where substantive proceedings reach that court either on appeal against conviction or sentence, or both, so as to enable that court in those circumstances to entertain a costs and expenses order under this amendment. It is appreciated, as I have said, that the powers of the Court of Appeal derive from statute and if this causes any difficulty, the Court of Appeal could, of course, be excised from the drafting of the amendment. I stand by the simple principle that the court which makes and revokes such order should also have the discretion to make orders for payment of costs out of central funds in appropriate cases. Save perhaps that its provisions are mandatory and not permissive, this amendment in no way conflicts with the spirit or principle of Part II of the Bill.

In conclusion, it is appreciated that Section 4(2) of the Contempt of Court Act 1981, relating to postponement of any report of proceedings or part of proceedings if prejudicial to the administration of justice, and Section 11, relating to directions prohibiting a name or any other matter in connection with the proceedings being published, apply both to civil and criminal proceedings. It is also appreciated that these provisions in the Contempt of Court Act follow in the wake of the report of the Philips Commission on contempt of court. It is also appreciated that the amendment deals only with criminal proceedings and not civil proceedings. But as the Bill is concerned only with criminal proceedings and as it is, according to my information, only in criminal proceedings that this injustice arises, it is raised in this Bill. Of course, the amendment being related wholly to criminal proceedings, it lies within the general intendment of the Bill.

When my noble and learned friend the Lord Chancellor comes to reply, if he would care to indicate the following, it would be greatly appreciated: whether it is recognised that there is this element of injustice for journalists and other representatives of the media as regards costs and expenses, and as regards orders and directions sought or made under these statutory provisions. If that is recognised, what, if anything, is proposed to be done about it? If nothing is proposed to be done about it, what is the objection in principle to this amendment? I beg to move.

Lord Denning

I remember the case to which my noble friend refers. It was a case from Horsham and some defendants in the case were said to have been guilty of smuggling, or of drug offences, or of something of that kind. They did not want their names reported in a newspaper, so they applied to the magistrates under the new Contempt of Court Act saying, "Don't let the reporters get our names. We do not want our names in the newspapers. Everyone in Sussex will know about it." The prosecution did not make any real objection and so the magistrate made the order prohibiting newspaper reporting of the case.

There was no one to appeal against the order. It was affecting only the newspaper reporters themselves. The reporter asked, "What am Ito do about it?" He got in touch with the National Union of Journalists, which managed to get some funds to take the case to the Court of Appeal. It involved a most important point on the construction of the new Act, on which I may say there was, unfortunately, a difference of opinion in the Court of Appeal. I was on the wrong side, I expect—I do not know. At all events, the long and short of it was that we quashed the order which prohibited reporting.

We did the right thing and allowed it to be reported. But the important thing is that the National Union of Journalists and the journalists themselves were put to very considerable expense in elucidating a point of law on the Contempt of Court Act. The same occurred in the Nottinghamshire case before the judge himself. In order to allow proper reporting, the newspapers or their reporters had to take it up at their own expense. If they have to take it up at their own expense, they should, in the public interest, be allowed their costs out of central funds. I would support the amendment in principle.

9.15 p.m.

Lord Elystan-Morgan

The prohibition on the reporting of matters in our courts is a truly exceptional provision. There are justifications for it in proper cases but nevertheless it is a situation which raises many difficult and complex questions. As indeed the noble Lord, Lord Campbell of Alloway, and the noble and learned Lord, Lord Denning, have pointed out, it is very much in the public interest that these matters should be fully argued in court. We on these benches feel that there should be the discretion in the court in a proper case where it sees fit to allow costs out of central funds.

The Lord Chancellor

The amendment as it is drafted—I hope that this is the last I shall say on this point—would apply both to civil and criminal proceedings. This would cause great difficulties in the civil courts since the civil courts have no facilities for making payments out of central funds, even when such payments are justified in civil cases. To that extent, the amendment must be condemned as defective.

It would, for instance, have applied recently—although, in fact, it did not apply because another set of procedures was followed—to the Baby Cotton case, under Section 11 of the Contempt of Court Act. I must say to my noble and learned friend Lord Denning that Section 4 of the Contempt of Court Act did not purport to, and I believe did not, extend the law that has existed for very many years. This of course does not affect the merits underlying the amendment but it does affect the amendment itself.

I do not like the reference—I am now getting rid of a certain amount of peripheral questions—to magistrates' courts. I am not at all convinced that there is any proven need for magistrates' courts to have the power to lift their own restrictions in committal cases, which are the common ones. I should have thought that they have already the power to prevent reporting because that is the general rule. They have to lift the reporting restrictions before there can be any reporting. Therefore I should have thought that when one is talking about crime, one should confine oneself to the Crown Court. By the time it has reached the Court of Appeal, I think the matter will have solved itself

There are cases where one is concerned that the court should have put on in the Crown Court stage of the actual trial a restriction which was unnecessary. I think that that has been largely got rid of by a decision of the Court of Appeal because, although the Court of Appeal, on the merits of the case—I cannot remember offhand the name of the case—said that the restriction should not have been imposed, it had to say, on the letter of the law, (it went up by way of judicial review) that there was no locus standi in the applicant's case and therefore it was technically dismissed. But I believe that the courts, in the Crown Court, will follow that decision as if it was an effective decision of the courts of law.

I can quite see that an individual journalist ought not to put himself to expense in this matter, but I believe that newspapers in themselves, and perhaps the National Union of Journalists in itself, should use their own discretion as to whether and when an application of this kind is justified, and should be prepared to undertake it in the public interest.

Myself, I am more curious and concerned about the case of an independent third party. I do not want to mention names, but one name immediately springs to mind; that of an individual whose name was traduced in an Old Bailey case within the past 12 months. In the events which happened, the court, in order to save the reputation of this individual, slapped on an order forbidding publication of his name. In the events, again, which happened, this name was so very well known to everybody that the person concerned had to incur very heavy expenses, both in order to watch the proceedings while those completely unfounded allegations were made, and ultimately to apply to the trial judge himself to remove the restriction which had been placed by the trial judge, with the very best of motives, on the publication of the individual's own name.

That situation poses a question. It was the subject of a leading article in The Times. It raises questions about where the costs ought to lie and how they should be apportioned. I am not happy about the suggestion that there should be a general power regulated by the Lord Chancellor to pay these costs. In a recent case called Crook—rather inappositely for a criminal case—Lord Justice Watkins laid down certain rules, which are the ordinary practice at the present time. He said: The proper procedure for laying before the court any matter going to such a question as the publication of the name of a witness or any other matter relating to the trial is for counsel for the prosecution or, in appropriate circumstances, for the defendant, to make representations on behalf of the person who wishes the court to hear them. Generally speaking, save where the matter of concern affects the defence, counsel for the prosection should give to the court his best and disinterested assistance where a matter of this kind has to be resolved. In so doing he will doubtless have uppermost in his mind the deep public concern which is undoubtedly felt for the freedom of the press which should not, save where it is imperative, be interfered with". That would, in the ordinary course, provide an avenue for the newspapers, without any cost to themselves, to ventilate the question as to the propriety of an order. No cost would be incurred by them. I need hardly say that it would be entirely improper for prosecution or defence counsel to accept a fee for arguing that case in the interests of anyone, except either the interests of justice or the interests of his client.

There is no obvious reason why central funds should pay for an application of this kind, and if there were such a power, it would have to be the case that an unsuccessful application, successfully resisted by either the prosecution or the defence, might have to be met with a penal order as to costs on the other side. I do not think that this point has been fully considered.

I think that there are aspects of this matter to be discussed, but at the moment I do not feel able to accept the amendment. The process suggested by Lord Justice Watkins will, at any rate, deal with the great run of cases before the Crown Court. As I say, I do not think the magistrates' courts or the Court of Appeal arise in relation to this matter. I would rather consider that the great corporations whose interests are involved can quite easily undertake this burden if they feel they are not adequately represented by the prosecution, or by the defence who may wish to remove the restriction themselves.

Obviously one has probably not reached the end of this road. I do not want to be too dogmatic about these matters. The amendment as drafted is not acceptable to the Government, but I should like to give the matter a little more thought and to have an opportunity for further discussion. I have very much in mind the case which I have not mentioned by name and which I think is very much present in the minds of noble Lords. I should like to consider whether something more can be done than I have said so far. In that rather irenic spirit I hope the amendment will not be pressed at this stage.

Lord Campbell of Alloway

I am very grateful to my noble and learned friend the Lord Chancellor for the great measure of thought he has given to the underlying problem of injustice which is behind this amendment and, as one would expect, to the entirely original treatment which he was able to give to the problem. In particular, his development of the problem to include the injustice to the third party is something which obviously will require further consideration.

I accept everything that has been said by way of criticism of the drafting. I expected that; I am quite incapable of drafting anything in a reasonable way. The draft was merely to produce a principle and to serve as a vehicle.

I do not fully understand why this should not be a matter for regulations, but since my noble and learned friend says that it is not a matter for regulations, I accept that and I shall have to consider how to grapple with the injustice without having regulations. At the moment I am unable to see how that is possible. However, I am most grateful to my noble and learned friend the Lord Chancellor for saying that there are many aspects to be discussed and for the fact that he has not turned down out of hand the basic underlying problem. I shall, of course, read Hansard with very great care and beg to bring this matter back on Report, if so advised. I renew my gratitude for the open way in which my noble and learned friend has dealt with the underlying problem. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19, as amended, agreed to.

Clause 20 [Regulations]:

The Lord Chancellor moved Amendment No. 65:

Page 20, line 21, leave out ("for the payment of costs").

The noble and learned Lord said: This is a drafting amendment and it makes clear that a costs order means an order made under Part II for payment to be made out of central funds or by a party to the proceedings. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 66:

Page 20, line 22, at end insert— ("for a payment to be made—

  1. (a) out of central funds, or
  2. (b) by a party to proceedings.").

The noble and learned Lord said: This amendment should have gone with Amendment No. 65. I beg to move.

On Question, amendment agreed to.

Clause 20, as amended, agreed to.

Clause 21 [Interpretation, etc.]:

9.30 p.m.

Lord Elystan-Morgan moved Amendment No. 67:

Page 20, line 38, leave out ("any person") and insert ("the defendant (whether he gives evidence or not) and any other person").

The noble Lord said: The effect of this amendment, if it were accepted by the Committee, would be to widen the definition of "witness" in the interpretation clause, Clause 21(1). It is there defined in the following terms: 'witness' means any person properly attending to give evidence, whether or not he gives evidence or is called at the instance of one of the parties or of the court, but does not include a person attending as a witness to character only unless the court has certified that the interests of justice required his attendance". The amendment would include the defendant himself within the definition, whether or not he gives evidence.

As the Committee will appreciate, the personal costs of the defendant in a protracted hearing can sometimes be enormous but are likely to be substantial even in the average run-of-the-mill case. He may well have to have somebody to look after his business; holidays may have to be cancelled. Indeed, one can imagine a dozen different headings of substantial expense for the defendant. We therefore say that in those circumstances it would be just and equitable to widen the definition of "witness". I beg to move.

The Lord Chancellor

At present regulations provide that when a central funds order is made a defendant may recover his fares and subsistence as if he were a witness; but a defendant is not for some reason entitled to recover his loss of earnings. I sympathise with the intention of this amendment. It would allow defendants awarded costs from central funds to claim loss of earnings, but I should have to look more closely than I have already done at the cost implications. Strictly speaking, the amendment is unnecessary. As it stands at the moment, the Bill enables the Lord Chancellor to make the regulations which could allow such payments. I therefore invite the Committee, on my undertaking to consider the matter further, not to press the amendment.

Lord Elystan-Morgan

In the light of that generous undertaking, there is no question of pressing the amendment. We are grateful to the noble and learned Lord the Lord Chancellor for his undertaking. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 agreed to.

Lord Denham

I think that it is the general agreement of your Lordships that this is the point at which we should adjourn the Committee stage. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.