§ 5.34 p.m.
§ Lord Dixon-Smith rose to call attention to the case for statutory limitation on the use of cheque-book journalism; and to move for Papers.
§ The noble Lord said: My Lords, in moving the Motion standing in my name on the Order Paper I look forward to what I hope will be an interesting debate on this matter. In particular, I look forward to the contribution from the noble Lord, Lord Wakeham, in what will be his first speech to the House since he stood down as its Leader. I look forward to the response to the debate by the noble and learned Lord the Lord Chancellor. Both have kindly assisted me in my 1642 preparations. In addition, I particularly look forward to the contribution from the noble Viscount, Lord Exmouth, in what will be his maiden speech.
§ I was hesitant about putting this Motion down for debate, but the more I thought about the trial of Rosemary West, recently completed in Winchester, where witness after witness who appeared in the trial was under contract to sell his or her story to this or that newspaper, the more convinced I became that this is a proper subject for us to discuss.
§ I recognise that we are walking on eggs this afternoon, not because of what the press might say about the debate—the press will say what it must say and do what it must do—and so should we. Rather, we must tread with caution and consider carefully, because it is the press itself that has recorded what is going on and informed us of it. Any action which might inhibit responsible journalism must be avoided.
§ I do not wish to dwell for too long on the trial of Rosemary West, but as that trial developed it seemed that it was more and more possible for defence counsel to question the veracity of witnesses because they were under contract to the press. Indeed, one witness, Janet Leach, who at first denied that she was under contract, damaged her integrity as a witness when it was shown that she had such a contractual relationship.
It is inevitable that when one researches a subject such as this one finds oneself tilling fertile soil that has already been well cultivated. In December 1974 a committee appointed to consider contempt of court under the chairmanship of Lord Justice Phillimore reported to the House. At paragraph 55 the report states:
Press interviews caused us some anxiety … The real danger of such interviews is that witnesses whose evidence is vital to the matter under investigation are questioned without any of the safeguards which obtain in our Courts of Law or Tribunals of Enquiry … Witnesses might also be tempted to give a version of the facts which they thought most newsworthy—particularly if a fee were being paid for the interview. When such a witness came to give evidence before the Tribunal they would either 'have to stick by what they had said, however inaccurate it might be—or reveal the true facts. In the latter event the weight of their evidence might be considerably shaken by the discrepancy between what they are telling the Tribunal and what they said previously".
At paragraph 56 the report considers the specific issue of payment of witnesses. It states:
One particular situation with witnesses deserves special mention. It arose in connection with the Moors murder case in 1966 where two witnesses were offered sums of money by a newspaper for their stories (for publication after the Trial); but the amount to be paid was expressly made dependent upon whether or not a conviction was secured. A similar question arises with rewards (perhaps less common than they used to be) which are publicly offered for information leading to a conviction. If the information comes, as in many cases it will, from a potential witness in the case, he may be regarded as having an interest in the outcome and therefore might be under some pressure or temptation to shape his evidence in order to achieve the desired result".
At paragraph 79, the report returns to this issue:
Widespread and, in our view, justifiable concern was expressed at what happened in the Moors Murder case in 1966".
Further down the report states:
We have no evidence as to the extent to which this practice has continued since 1966".
We now know that the practice certainly continues and has occurred in regard to other notorious cases too. The report continues:
However, we regard the potential dangers as sufficiently grave to warrant further inquiry as to its prevalence and if found necessary legislation to restrain or wholly prohibit this practice. We recommend that such an inquiry be carried out".
§ That was the view expressed in 1974. I do not apologise for quoting the report extensively. As your Lordships would expect of a report to this House, it makes the point with greater elegance and precision of language than I might have been able to achieve.
Time passes, and the activities of the press have from time to time given rise to further concern. Today we have the Press Complaints Commission to monitor a code of practice that seeks to restrain unacceptable press behaviour. The code of practice was framed by the newspaper and periodical industry and subsequently ratified by the commission in 1993. The preamble states:
Editors are responsible for the actions of journalists employed by their publications. They should satisfy themselves as far as possible that material accepted from non-staff members was obtained in accordance with this code. While recognising that this involves a substantial element of self-restraint by editors and journalists, it is designed to be acceptable in the context of a system of self-regulation. The code applies in the spirit as well as the letter".
Paragraph 9 of the code states:
Payments or offers of payment for stories, pictures or information should not be made directly or through agents to witnesses in current or criminal proceedings or to people engaged in crime or to their associates—which includes family, friends, neighbours and colleagues, except where the material concerned ought to be published in the public interest and the payment is necessary for that to be done".
Paragraph 18 of the code gives three definitions of public interest, of which I mention only one:
Detecting or exposing a crime or serious misdemeanour".
§ I may be misinformed, but I am not aware that the original revelations that led to the exposure of the Wests' crimes was the result of press investigation; rather, it came as a result of a chance conversation by a local policeman and his persistence in following the matter up. As subsequent investigation revealed the enormity of what had been done behind the innocent façade of an ordinary house and in other places, it was both proper and necessary for the press to report the progress of the investigation as it was brought towards a successful conclusion.
§ I fully understand the necessity for detailed and complete reporting of the trial of Mrs. West, distasteful though that was. All of this is clearly in the public interest. But I am a relatively simple man and I do not understand how this proper function necessitated what I can only describe as an auction to purchase the stories of witnesses. I would prefer to see this practice banned, although I see all too well the problems of drafting such a regulation. At the very least, such arrangements with witnesses should be required to be declared to the courts before any proceedings commence.
§ That thought provokes a parallel point. Following the death of Mr. West and the conviction of Mrs. West, the Official Solicitor became burdened with administering 1644 the affairs of the family in the interests of all the family. Indeed, it is his duty to maximise any value obtainable. It transpires that the greatest asset left by the West parents turns out to be their life story, and there are reports of great sums being offered for the copyright. I have the greatest sympathy with the predicament of the Wests' children, but I must confess that it leaves a very bad taste in my mouth that the Official Solicitor should have to bear such a burden—and that such a story could apparently have a value which matches a divided main lottery prize. What has our sense of values come to?
§ To return to the main point, I do not see this as an issue that affects in any way the freedom of the press to report events properly. Nor do I wish to place any restraint on investigative journalism, which from time to time serves society as a whole very well. But there is a case to answer. Society has found it necessary to initiate statutory regulation in so many fields in recent time where it was thought impossible in earlier days. Is regulation of one of the commercial practices of the press so impossible to consider? When actions taken to further the commercial interest of a specific sector of society can put at risk an already hazardous judicial process it is time to call a halt. I beg to move for Papers.
§ 5.47 p.m.
§ Lord Dubs
My Lords, I congratulate the noble Lord on giving us the opportunity to debate a subject of significant public concern. I welcome the opportunity to contribute to that debate. I regret that the noble Lord, Lord Wakeham, will speak after me. I should have found it easier and preferable to have heard his comments first; but, alas, that is the order in which I have been asked to make a contribution.
Cheque-book journalism has been a long-standing cause of concern. Although it has had a new focus of attention through the West trial, it has been under scrutiny and criticism for many years. I could add many examples to those referred to by the noble Lord, going back to the Christine Keeler case. There are many others, all of which have given rise to anxiety lest the practice of cheque-book journalism should undermine the cause of justice in a series of cases.
Eleven years ago I had the opportunity in the other place to introduce a Private Member's Bill dealing with the subject. It was quite embarrassing to read what I said. I shall certainly not quote myself here. It was a matter of concern then. I believe that it was the Sutcliffe case which gave rise to widespread feelings on the issue.
Perhaps I may say this at the outset. I believe that a free press is absolutely vital in our society. We all have to accept many practices on the part of the press which individually we deplore because dealing with such instances might undermine a free press, and that would be the worst outcome of all. So we have to live with the press; and I am as unhappy as any other Member of this House at what the press sometimes gets up to. However, a free press is an important fundamental principle. The problem with cheque-book journalism is that it puts the press in a dilemma between commercial and journalistic interests.
1645 Newspapers quite often bid for stories from individuals in the interests of their circulation. They believe that those stories will add to their circulation rather than that they will necessarily add a great deal to their journalistic coverage. Therefore, when we look at the freedom of the press we must also consider the circulation wars going on intensely at the present time and understand—and regret—the reasons why cheque-book journalism plays such a part in the commercial motives of keeping a newspaper's circulation up.
The noble Lord referred to the problem of payments to witnesses in court actions. I wish to give a few examples of other instances where cheque-book journalism occurs, although the most serious are those to do with payments to witnesses. It has been indicated that sometimes individual witnesses are given a bonus or offered money only if the outcome of a court hearing is that a defendant is found guilty. That is highly undesirable and it seems to me to breach the principle of a fair trial. It has been suggested that one way round the problem would be to have witnesses declare in court that they have been offered sums of money for their stories after the case has been concluded. But I must say that I am not happy about that. It might have some benefits, but I am not happy that that is the way to deal with the difficulty.
Then there is the situation where payments are offered to criminals or people closely associated with criminal activity for their stories. The difficulty there is that it would seem to me to be almost a life-long imposition. It is highly undesirable that anyone should benefit in that way from the results of criminal activity. On the other hand, are we able to say, when someone has spent 10 or 15 years in gaol, that they should still be barred from giving their story to the papers? I find that difficult. I should be unhappy if at any point a criminal were to benefit, and yet I find it equally difficult to suggest that criminals should never be allowed the freedom to sell their story when they have served their sentence, however long it may be.
There are also instances where individuals are paid money because a newspaper wishes to have a monopoly in publishing a story. That seems understandable as a commercial motive but clearly against the interests of a free press, where all papers can publish stories. However, I can see why it may happen and it may be difficult to do much about it.
Sometimes individuals who are the victims of disasters or are closely associated with disasters may be offered money to tell their stories. There I believe that the agony is for the individual to balance the offer of what may be a large sum of money against the wish to retain his privacy and not reveal the agonies he has gone through. I believe that relatives of victims of the Hillsborough tragedy, for example, were offered Inducements to tell their stories after the event. That must be for the individual to decide, but it is not always a desirable activity to wave large sums of money in front of poor people to make them reveal things about their past which probably they would not wish to reveal.
1646 Then there are instances where newspapers pay individuals to reveal sexual scandals in which they themselves may have been implicated in order that a person in public life is exposed in the headlines for whatever that person has been getting up to. There have been so many instances of that recently that I shall not bore the House by giving examples.
There is one further aspect of cheque-book journalism which bothers me as regards the individuals who are offered money. It is close to the example that I gave earlier of individuals who have been the victims of a disaster but it is not identical. People may be offered money at a time when they are under emotional stress and when they have to make a quick decision, often without legal or other advice as to how they should conduct themselves. The result may be that they sell their story far too cheaply, simply because they do not realise its value and the benefit to them of retaining the copyright rather than letting the newspaper have it.
Those are all examples, some of which I fear we can do little about. However, they all affect the practice of journalism and offering money to individuals. I welcome the fact that the Government are considering taking action following the West trial. I have read articles suggesting that the noble and learned Lord the Lord Chancellor, the Attorney-General and the Home Secretary are all involved in discussions on how to proceed. I notice that the Association of Chief Police Officers also issued a statement last month. Mr. Sharpies, the Chief Constable of Merseyside and president of the association said:This type of activity has the potential at best to cast doubt on the credibility of witnesses and at worst to pervert the course of justice".That is a fairly clear statement from the police.
I have looked with interest at the various codes that exist. The National Union of Journalists has a code of conduct which covers cheque-book journalism and so has the Press Complaints Commission. One has already been read out, but both codes refer to consideration of the public interest. I very much support a public interest defence in many instances. On the other hand, it seems to me to have become a bit of an excuse for some newspapers, when there could not be a public interest in some of the witnesses' stories; for example, in the West case, where much of it came out in open court anyway. So I am not totally clear how public interest comes into it in instances where we are dealing with witnesses in current or criminal proceedings or dealing with people who have been engaged in crime or their associates. It is difficult to see a public interest defence. There may be one on occasions, but not often.
I welcome the fact that the Daily Mail came out clearly at the end of November on the subject. I quote from a leading article of 24th November 1995:But as the West trial shows, the rules can be bent. What is needed is firm, clear guidance from the Press Complaints Commission and, if all else fails, our legislators too".I have to confess that we are in difficulty. When I spoke about this in the other place 11 years ago I was fairly clear about the way ahead, but the passage of years has made me less certain that there are clear ways 1647 ahead. We could make it an offence possibly under contempt of court legislation or other legislation so that no one, no witness should be offered any payment connected with any court proceedings. That could be clear and absolute and I do not see why we should not move that way. Although it is highly desirable that criminals should not benefit from their crimes through being given money by newspapers for telling their stories, I find it difficult to see how we could give force to that, except through codes enforced by the Press Complaints Commission.
There is one other suggestion which I wish to make. To my mind it would be desirable and helpful if newspapers had to indicate that a particular story had been the subject of cheque-book journalism. They need not necessarily give the amount, although that would be interesting and illuminating. Perhaps newspapers should be compelled, through codes or through the Press Complaints Commission code, to indicate that a particular story had been the subject of cheque-book journalism—it could be described more elegantly—rather than that it was by a journalist or by a regular contributor. That would enable us to judge the strength and force of any story or contribution.
I believe that there is a way ahead, but it is limited. I am bound to say that there are many examples of cheque-book journalism where I fear we shall do very little except rely on the self-restraint of the press.
§ 5.59 p.m.
§ Lord Wakeham
My Lords, first, I wish to congratulate my noble friend Lord Dixon-Smith on bringing forward this most important Motion for us to discuss this evening. The whole House will share with the noble Viscount, Lord Exmouth, the experience of making a maiden speech. I wish him well and would like to hear him many more times in the future.
I feel slightly strange. It is the first time that I have spoken in either House, other than from the Government Front Bench, since the day when my noble friend Lady Thatcher formed her first Administration. It seems an absolute lifetime ago.
This debate raises many important and serious issues with which I, as the chairman of the Press Complaints Commission, have a significant concern. The issues are complicated, in which many bodies and institutions as well as the press, and those who seek to regulate it, have a legitimate interest.
My task is to seek to make press self-regulation more effective. However, it may not be right to expect a self-regulatory body to seek to enforce procedures designed to protect the legal system. Some may well conclude that these are matters for the courts, the Attorney-General or ultimately, if the law is failing, for Parliament.
I shall not—and I hope the House will understand—refer to any particular recent case, both because the legal process may not yet be complete and also because the Press Complaints Commission may yet receive a complaint. It would be quite wrong of me to discuss a case upon which I may be called to adjudicate.
1648 The code of practice which the PCC seeks to administer is a code that has been fully and freely endorsed by members of the press. They drew up the code, and it is in a very real sense their code, not mine. The PCC deals with some 3,000 complaints a year, overwhelmingly from ordinary members of the public. The vast majority of complaints are resolved to the satisfaction of the complainant. But in the five years of its existence, the Press Complaints Commission has not received one single complaint on the subject of payments to witnesses.
My noble friend referred to paragraph 9 of the code which states (I paraphrase) that payments should not be made to witnesses or potential witnesses except where the material ought to be published in the public interest. He quoted one of the three cases of public interest; namely, "detecting or exposing of crime or a serious misdemeanour". The second is: "protecting public health and safety"; and the third: "preventing the public from being misled by some statements or actions of an individual or organisation".
I have to say to my noble friend that I am pretty certain that a great many newspapers would seek to defend their actions, were they to be challenged, on a wider basis than just the first case, as mentioned by my noble friend.
The code itself seems on the face of it clear. But I am aware that it is considered ambiguous, because of the uncertainty of knowing what a "potential" witness is in the initial period after arrests are made. It is often inevitably impossible at that stage of judicial proceeding to foretell how the prosecution and defence cases are likely to develop. I do not think there is an easy way round that difficulty.
There is also the problem of knowing how the public interest—which certainly does not mean whatever interests the public—is applied. There have been instances where people who ultimately became witnesses have spoken to a reporter without a full appreciation of the importance of their evidence. As a result, reporters informed the prosecuting authorities, who may otherwise not have known about a witness's existence. We have examples of that.
There is also a clear flaw in the argument that we can solve the problem by having rules that forbid payments or offers of payments to witnesses or potential witnesses prior to the conclusion of the proceedings so as to ensure that their evidence is not tainted.
It is not, I think, suggested that the making of all payments after proceedings have been concluded should be outlawed, whether in respect of books, the serialisation of books in newspapers, newspaper reports or television documentaries. It must follow that if there is a risk that a witness may slant his evidence in the light of payment or offers of payment made prior to the conclusion of proceedings, that risk would still exist if the witness knew that offers of payment might be forthcoming once the proceedings had been concluded. As my noble friend reminded us, this is not a new matter. The cases of the Moors murderers, Jeremy Thorpe and Peter Sutcliffe come to mind.
1649 Other media may have to consider this issue as well as the press. But one way in which I believe it might be possible for press self-regulation to move forward is for there to be a new protocol to the code of practice for the press to ensure that where newspapers or magazines, having given proper consideration to the public interest, have financial dealings with potential witnesses, they must take every possible step, first, to demonstrate that there is a legitimate public interest at stake involving matters that the public have a right to know; secondly, to ensure that no dealings have influence on the evidence that those witnesses may give; and, thirdly, that the payment or offer of payment to any witness who is actually called in proceedings should be disclosable to the prosecution and the defence.
It is clear to me that some witnesses in criminal cases do have a story to tell, and demand money for telling it. The public may have a right to hear stories about, for example, failings in the conduct of a police force in helping bring particular criminals to account, or the failings of a social services department. Because of the legitimate commercial pressures within and between different parts of the media and the desire to ensure exclusivity, there is inevitably competition between newspapers, between newspapers and book publishers and with broadcasters. However, if there are to be payments, there must be a clear public interest in that transaction which must be transparent and open to scrutiny. The protocol that I propose will have to set out those principles.
My job is to encourage newspapers and magazines to develop their own effective rules, which must be clear, consistent and based on the increasing success of the PCC's own code of practice in other areas, and be supported by the entire press. I have therefore begun discussions with editors and proprietors of newspapers and magazines to help facilitate a solution to this serious issue based on the protocol that I have outlined today. Proprietors have an especially important role to play, as it is their money that is being spent; and it is to them that editors must account, given their contractual duty to observe the code. The intention of the new protocol must not contain any doubt. And the industry's commitment to voluntary control in this area, as in all others, must be fulfilled in deed as well as in word.
I do not guarantee that I will be able to negotiate a satisfactory protocol, but I will have a determined attempt. A free press is an integral part of a free and democratic society. I for one will do all I can to avoid any form of statutory controls. But a free press also needs to be a responsible press—and its response in this area may prove to be another touchstone of that responsibility.
§ 6.9 p.m.
§ Viscount Exmouth
My Lords, although my interests are associated principally with the tourist industry, I felt it appropriate to make my first contribution during a debate that is of considerable public concern. I am in agreement with many of the points raised by noble Lords.
1650 What has become known as cheque-book journalism, or the obtaining of information through payment, sometimes known as blood money, is largely a moral issue. There are of course legal and political questions which also arise on close examination of this practice.
The practice is an old one, and dates back to the 19th century, if not before. Examples are found wherever mass market media exist. It is generally accepted that all types of information have a monetary value, and that every man has his price. A photographer, journalist or contributor expects to be paid for material submitted for publication. Without such reward the quality and content of our leading national newspapers would seriously decline.
We must, accept the fact that leading British newspapers are arguably the best in Europe. Are we therefore to suppose that payments made to people not connected with journalism in order to guarantee exclusive rights to a particular story, should be considered improper or immoral? The moral question is quite clear: should the perpetrator of some horrendous crime benefit from the misfortunes of others?
If restrictions on cheque-book journalism are not imposed, a crime could be designed in such a way as expressly to enable individuals to benefit from the proceeds to be realised from the sale of a story. That is something akin to the physical mutilation of a child by its family in order purposely to generate sympathy for purposes of begging, a practice not uncommon in certain countries of the Indian subcontinent.
Noble Lords might wish to consider the legal implications of continuing to allow unrestricted use of the cheque book when reporting on cases already before the courts. However, questions that need to be asked in criminal cases are: is there any evidence of a wrong verdict being reached or has the course of justice been perverted as a result of payments to witnesses? Unregulated use of the cheque book could result in the danger of undermining the criminal justice system and could possibly cause the collapse of a major trial.
The political issues which arise from any restrictive practices imposed on the press and media revolve around the subject of freedom of the press. Any restriction represents lack of freedom. A democratic society such as ours expects a free press, just as freedom of speech and freedom of movement are taken for granted. I believe that the imposition of controls on editorial would amount to censorship and a negation of our basic freedom.
However, there is no doubt that lack of any effective editorial control leaves the way open for the publication of sordid material which might have a lasting and damaging effect on the mind of some readers; and in some instances it might result in mirror image crimes being carried out. It must surely be the duty of a parliamentary democracy to protect its citizens from unacceptable practices of that nature.
Although the Press Complaints Commission offers some public redress, it is only effective once the horse has bolted and the damage has already been done. More importantly, the commission does not represent an independent body, since it is entirely funded by and acts 1651 in the interests of the media and newspaper industry. Never has the refrain "power corrupts" been more appropriately applied. Therefore, the time has come to introduce and enforce certain guidelines and principles within the media in order to protect the very fabric of our society. That will avoid the possibility of witnesses being prejudiced by the sum of money on offer.
Therefore, I propose that the making of payments to witnesses or potential witnesses in criminal trials should be made illegal in the future.
§ 6.14 p.m.
§ Lord Marlesford
My Lords, it is as great a privilege for me to be able to congratulate the noble Viscount, Lord Exmouth, on his maiden speech as it has been for your Lordships to hear it. I am aware that the noble Viscount has been a Member of your Lordships' House for 25 years and it is only now that he has made his maiden speech. That makes some of us who are very recent arrivals and who leapt to our feet after a matter of only weeks appear most precipitate, almost impertinent, in doing so. But the noble Viscount comes from a most distinguished lineage. We all know that wine from distinguished vineyards keeps well in the bottle and is all the better after a time. I hope that the noble Viscount will allow us to enjoy other bottles in the future.
I should like to congratulate my noble friend and thank him for giving us the opportunity to debate this important subject. I start by declaring an interest as an independent national director of Times Newspapers Limited. I should also declare my experience of having been for 16 years until 1991 a working journalist with the Economist newspaper, working mainly in the Lobby of the other place.
Therefore, as your Lordships will not be surprised, I start from the proposition that the Fourth Estate has and has had for centuries a very crucial role in maintaining standards of behaviour in this country—standards of behaviour of the legislature, the executive, even the judiciary and indeed those who are able to influence the lives of others. Its activities have often been unwelcome, inconvenient, unattractive, intrusive and indeed on occasions unfair to those on whose activities it comments. But I believe that that is a price well worth paying for the safeguards against the abuse of power and responsibility, for which it is often the only guardian.
Therefore, I start from the position of opposition to any legislation which would affect the unfettered freedom of the press. Because I do not believe that self-regulation necessarily always works, I feel that I must go a little further. As a Tory, I strongly believe that a crucial role of the state is to regulate the behaviour of those who might otherwise exploit or ill treat people, whether they be consumers, employees, investors or just ordinary citizens.
I am afraid that I am not prepared to have quite the trust that my noble friend Lord Wakeham has in the self-regulatory route for the matter which we are discussing today. I pay enormous tribute to him as one of the greatest political persuaders that we have had in 1652 either House of Parliament, certainly in my lifetime. But I suspect that even he may find it hard to achieve in certain crucial respects the behaviour to which I believe we are entitled. It is simply against human nature. I believe that human nature will out.
There was a reference by my noble friend to proprietors spending their money. The simple fact is that it is usually money well spent. We all know that, however much we might pay obeisance to the moral imperatives, there are many forms of behaviour in which we would indulge if we were not constrained by something stronger than the moral imperative. Perhaps the most obvious that comes to mind at this time is drinking and driving. Frankly, there is a similarity. There will ,be the tendency to use cheque-book journalism if it is allowed and if it is profitable.
Having said that I am opposed in general to constraints on the press—I would strongly oppose any general legislation on it—I believe that, in the one single matter of payment to witnesses, something must be done fairly soon. Therefore, in my brief intervention in your Lordships' debate, I propose that we consider—I look forward to hearing my noble and learned friend's comments on this—an amendment to the Criminal Procedure and Investigations Bill which is at present before your Lordships' House. As an amateur, I had a shot at drafting the sort of thing which may cover the issue and may be sufficiently restrictive to be acceptable. The amendment would read,No person or organisation shall approach any person who is known to be or might reasonably be expected to be a witness in any trial which is proceeding or likely to be commenced, for the purpose of offering or making an arrangement to offer any financial or other material reward in consideration of the publication in any newspaper magazine journal book computer-network or broadcast of any matter relating to or connected with the said trial".That is a modest proposal which is not directly aimed at the press as such. It is aimed at ensuring that the sanctity of the courts as givers of good justice can prevail.
§ 6.21 p.m.
§ Lord Birdwood
My Lords, it gives me enormous pleasure to add my voice to what will be a general applauding of the maiden offering of the noble Viscount, Lord Exmouth. I am always happy and encouraged to hear somebody in this Chamber dive straight into an airing of moral values, because these are issues which are thin gruel elsewhere. I particularly enjoyed the lucidity and logic with which the noble Viscount framed his arguments, ending with his proposition.
It is not often that I have the opportunity to participate in a debate in which one can use part of one's preparatory material as a visual aid in support of a fellow speaker. I draw your Lordships' attention to the Media article:Wakeham: a watchdog ready to bite".I have read virtually every word that has been written on this subject in recent months and I have found no enormous unanimity among press correspondents in their opinions on the subject, but I propose to quote briefly from one of them.
1653 While we still have a free press in this country, it is utterly fanciful to think that we can legislate against buying the stories of people involved in court cases. There is a willing seller and a willing buyer, and it makes no sense to pretend that a newspaper should be debarred from initiating the transaction when, as my noble friend Lord Wakeham pointed out, the same would not apply to books or films.
What is troubling seems to be the sliding tariff, whereby the rate for a story is weighted by the outcome of the trial and one's suspicions that there is a financial inducement to a witness to manipulate evidence in the cause of greater reward. Does the trade at all introduce doubt about witness veracity, or at least objectivity? Yes, it does. Money does feel like an intrusion in a process which, by instinct, should be literally magisterial, if sometimes less than majestic. The law may not have the granite impermeability which once it had, but it is not yet a bendy toy in the media's playground.
I want to refer to an article in the Evening Standard last month when Peter Cole wrote:Let us start with the basic proposition that payments to witnesses tarnish their testimony, and thus make it less likely that justice will he done. It is, I think, a patronising position to presume that ordinary, innocent members of the public will perjure themselves, exaggerate, distort, or decorate their evidence because they have been paid for an interview. The solemnity of the court, the pressures towards accuracy and truthfulness, the awesome experience of having to give evidence and handle cross-examination, all militate against the witness polluting his or her testimony".I wish I could put it as well as that.
I wish to make only one observation and ask my noble and learned friend on the Woolsack two questions. The observation is that cross-examining counsel now has an early, almost automatic inquiry to make of any witness along the lines of whether any contract exists, or even has been described, with an outside party. One can picture the colouring which an affirmative answer will have on a jury; and if a false answer is given under oath, presumably there are other consequences which start to involve other parties to the agreement to an uncomfortable degree of intimacy.
My two questions, to which I have no idea of the answers, relate to the obligations of the paying party to inform either the recipient or appropriate government departments of the financial consequences of such payments. First, I should like to know whether the Inland Revenue is informed of the payment as a matter of course. Secondly, are the benefit agencies also automatically put in the picture? If the person taking the payment is not told of the potential consequences of being in receipt of the money, it seems to me that the duty of care element in the trade is a little fragile. But, equally, a wilful attempt to conceal such payments from those state bodies which have a direct interest in the material welfare of the individual also seems to be a point of some delicacy.
I am sure that the answers to those questions will clear up the matter entirely, and there may be embedded in such questions the pointers to new conventions which may calm some of the anxieties that prompted today's debate. I have felt that underlying much of the rhetoric 1654 of outrage in this matter is the immediacy of the revelations of payments, in some cases of auctions. Two or three months after a notorious trial, who would care that a participant was paid for his or her experiences? It is the impression of hectic trading before and during events which so disturbs us. But it will be a bad day for us all if any regime—I say "regime" and not "government"—is ever silly enough to try to frame laws about offences against good taste. Such sanctions always have lain and always will lie in the tolerance, good humour and ultimately the good sense of the citizen. So, please, no more law.
§ 6.29 p.m.
§ Lord Burnham
My Lords, it is with regret that I cannot declare an interest in the subject of this debate. Having served my noble friends Lord Hartwell and Lord Camrose for 32 years on the Daily Telegraph, I am now in these black days merely a pensioner of the company. My noble friend Lord Marlesford commented to me earlier this afternoon outside the Chamber that his experience of the industry was d'en bas and mine was d'en haut. That is wrong in both cases.
I should like to congratulate my noble friend Lord Dixon-Smith on bringing this Motion before your Lordships' House, although I fear that, as with the Dangerous Dogs Act and pit bulls, it is to some extent a gut reaction to the West trial, in which context I was very glad to hear the noble Lord, Lord Dubs, commenting on so many other aspects of cheque-book journalism.
If it is the case that we are following up on the West trial, the cheque-book journalism to which the Motion refers concerns the payment of witnesses before, during and after a case in the courts. The most notorious case of this was the offer of the Sunday Telegraph to a witness in the Thorpe trial to double the money if Thorpe were convicted. With this exception, I have to say that the Telegraph has never offered witnesses money in a civil or criminal case.
There can be no justification for doing so and it has only a short-term benefit for circulation, if that is the object. I was trying to remember anything which had a long-term effect on circulation. The only case I can remember was the publication by the Sunday Times of Lord Montgomery's memoires. Otherwise, the circulation benefit merely lasts for the length of time that the subject is in the paper. Perhaps this lack of a long-term benefit is why the Telegraph has not done it.
In the West case the proposed payments were well publicised and, indeed, were matters of lengthy discussion in the court; in a sense they were critical to the case itself. But the effect of payments of this kind to witnesses must be to cast doubt upon the evidence, usually for the prosecution, since the witness will not be able to write anything which is contrary to the evidence which he or she has given in court. Newspapers—the Sun and the Mirror in the West case—buy exclusivity, but they must also buy the facts.
The evidence must also at least be marginally sensational to justify the proposed payment. If it is a prosecution witness, defence counsel is bound to bring 1655 these facts out and the jury is equally likely to consider that, because the witness has an interest in the nature of his evidence, there is at least a chance that that evidence may be tainted. If the jury does so consider, it may discount it, and even if what was said was perfectly correct, justice may not be done, the fact of payment acting against the prosecution.
In the last century, to which the noble Viscount, Lord Exmouth, referred, the.Telegraph and other papers paid criminals for their stories before they were hanged. Therefore, the criminal himself had no real benefit. The practice of buying witnesses' stories as it now exists basically dates back to the Moors murders. This is frequently quite open, even if it only exists in cases of the most sensational type. In the Yorkshire Ripper case, newspapers which were paying witnesses were required to make submission to the court, including the contracts that they had made with witnesses. It is notable with regard to the ethical nature of what was going on that these contracts were considered to be ethical and no action was taken.
While such matters are extremely serious and may interfere with the administration of justice, I believe that it is true to say that little or no statutory legislation is needed to stop the practice, if that is what is desired. Noble and learned Lords will, I hope, confirm that the Contempt of Court Act 1988 does not need any major amendment, if any, to give judges the power to punish media owners for criminal and ethical breaches of legislation by payments to witnesses. Certainly the judges can drop from a great height on any attempt to interfere with or alter evidence given in court.
I have taken some legal advice on this point, but probably not enough. If I read my newspapers aright, my noble and learned friend the Lord Chancellor has discussed with the Attorney-General the possibility of creating a new offence under criminal law. When he replies later this evening I hope that he will be able to comment in some way on his discussions and say whether he considers there is any possibility of improvement or benefit from making a new and specific offence of making payments to witnesses in a trial rather than using the Contempt of Court Act.
The Motion of my noble friend Lord Dixon-Smith in fact refers to cheque-book journalism in general and not only to paying witnesses. It is therefore relevant to point out how newspapers operate. They should act in accordance with their code of practice and, if they do so, there is no cause for complaint. In this matter I must confirm what my noble friend Lord Wakeham said. It is an industry agreed code, put together by the industry, and is not the creature of the Press Complaints Commission, of which he is such a distinguished chairman. The code is well written, clear and unequivocal. I do not believe that it needs any amendment.
My noble friend Lord Dixon-Smith quoted the very relevant section 9 of the code and I am glad that my noble friend Lord Wakeham added sections 2 and 3 of clause 18. The Press Complaints Commission is very 1656 alert to possible breaches of the code. On 27th September this year it issued the following confidential note to editors regarding the West trial:The PCC has been approached on the above matter by PressWise, who have received a number of calls from relatives of victims involved in the Gloucester murder case which comes to Court on 3 October. Callers are apparently concerned about the behaviour and persistence of some journalists in seeking background information. PressWise have discussed the matter with Victim Support, the investigating police officers, representatives of both Gloucester County Council and Gloucester City Council and the Lord Chancellor's Department.Other than the above, the PCC has received no information suggesting any breach of the Code of Practice. Nevertheless, in view of the concern that has been expressed the Commission reminds editors to be especially mindful of the Code of Practice in dealing with this entire matter. It is of course particularly important to ensure that relatives of the accused and witnesses are not harassed or caused unnecessary anxiety by otherwise legitimate news-gathering activities".The code is there. The problem is to enforce it.
As one way of doing this, it has been suggested that all newspapers should pay into an industry fund from which any individual who suffers from a breach of the code can be compensated. That will not work. It was tried within the industry by the newspaper publishers' agreement in the 1970s and 1980s—a paper which was stopped by industrial action, usually initiated by the late Lord Briginshaw, should be compensated by the others. It did not work, and this one will not work, because the innocent, who are predictable, will not pay for the guilty, who are equally predictable.
A statutory requirement to obey the code is equally unenforceable. Apart from it being a lawyers' field day, one can envisage appeal after appeal, so that the origins of the complaint and the need for swift action which goes with it become totally lost. Hard-line supporters of statutory control—there are many in your Lordships' House—recommend the imprisonment of proprietors for breaches of the code. Even though the editor of the Mirror once went to prison, the appeals, if this were to be tried, would be particularly long-winded. Noble Lords may wish to inflict this punishment on certain proprietors, but that is merely wish-fulfilment.
In recent years there have been numerous campaigns to control the presentation of news by the newspaper industry in general or by individual newspapers in particular by enforcing the right of reply—giving it the same prominence as the original offence—or by stopping what are considered to be breaches of privacy. Both of those are already included in the code of practice but are not, I would consider, provable in court. Neither are they suitable vehicles for statutory legislation. It would be dangerous for this Government, or any government, to try to enforce statutory prevention of publication of news. Many of your Lordships will be aware of the sarky remark of the woman about her dressmaker—that when madam loses her temper you always find it again in the bill.
Response to what is an understandable gut reaction along the lines of, "This is wrong and something must be done", is itself wrong. A few years ago the press made an enormous fuss about the Official Secrets Act 1911 which it considered ridiculous and constricting.
1657 The Act was revised, but nobody was any the better. The old Act was so vague and imprecise that it could not be enforced—surely a case of be sure to,keep a-hold on NurseFor fear of finding something worse".In any case, newspapers and the other media have a most important role to fulfil as the watchdogs of the nation. It may not be the intention of any legislation so to do, but anything that restricts the publication of that which ought to be exposed is to be avoided at all costs. Turning the argument around, it was the ability of Maxwell to prevent other newspapers from exposing his iniquities which led to such ill-doing and distress.
It is not a cliché to mention, as noble Lords have done, the freedom of the press. The press must be free even if we have to accept something which most of us believe to be unacceptable. Cheque-book journalism involving witnesses in criminal cases or leaks of government memoranda is of course undesirable, but the former can at least be dealt with by contempt of court legislation. Payment for information or for stories—say, the climbing of Everest—which is also cheque-book journalism, lies at the foundation of a newspaper's business. Where would one draw the dividing line? Legislation is not the answer.
§ 6.41 p.m.
§ Lord Moyne
My Lords, we must all be very grateful to my noble friend Lord Dixon-Smith for introducing this debate. I believe that the importance of it is proved by the fact that my noble and learned friend the Lord Chancellor is replying. We shall all await with very great anticipation what he has to say.
As regards the noble Viscount, Lord Exmouth, and his maiden speech, that he should have been silent for 25 years proves that he must have been very much less silent elsewhere because he spoke in the most practised and competent manner. We were all fascinated by what he had to say.
Some noble Lords will remember a little poem,You cannot hope to bribe or twist, Thank God, the British journalist. But seeing what the man will do, Unbribed there's no occasion to".On this occasion we are thinking not of the journalist as a potential "bribee", but as giving money to people. It is easy to poke fun and criticise journalists, but they are no better than the public. They would not be able to print what has been described as "distasteful" without the demand for it. My noble friend Lord Dixon-Smith said—and how right he was! —that it is extremely unpleasant that the West family should actually benefit financially from their story. But why should they benefit financially except because people are going to buy the books and articles on which that story is based.
I heard a very interesting anecdote the other day about the ambivalence of public attitudes to this matter. The man I was talking to had been for a weekend in Scotland. Everybody was excoriating the Sunday Times for proposing to serialise the Andrew Morton book about the Princess of Wales. They all took a very high and mighty line. Then, apparently, they were all at 1658 Glasgow Airport where they made a beeline for the news stand to buy the Sunday Times only to find that it had sold out.
That seems to me to epitomise the ambivalence. It is a cliché to say that we are all guilty, but we are. We have this rather unpleasant curiosity and journalists have to satisfy it: that is what they are for. There is far more demand for entertainment than for information. I remember when I was very young the late Lord Boothby came to tea with my family. At the time he was political columnist for the News of the World In those days that paper was more wordy than at present, but it had rather similar content. He said, "It is wonderful to think that one is read every Sunday by 8 million people". One of us at the tea table said, "Are you sure that all of those people actually read your article?" He said, "Every reader of the News of the World reads every word". I do not believe that he was right, but that he was very likely to have been deluded. The primary desire of press readers at every level is far more for entertainment than for information.
However, entertainment and the desire for entertainment, must be controlled. Above all, it should not distort the process of law. People's lives and their fortunes are at stake in the courts. If it is to a witness's financial advantage to make his testimony more lurid—and that is what we are talking about—then that testimony is tainted. However true it may be, it might have been given in that form because of the hope of financial advantage.
It is perfectly clear that the laws of evidence should exclude such testimony. It is for wiser heads than mine to say whether that requires legislation or whether it should be rather an action for the courts and a change in their rules and practices. It could well be that legislation is too difficult to draft, but somehow such evidence ought to be excluded from cases.
§ 6.47 p.m.
§ Lord Lester of Herne Hill
My Lords, perhaps I may join in the congratulations to the noble Viscount on his very thoughtful and perceptive maiden speech. This debate has been enriched by contributions based on experience; the experience of journalists, the Press Complaints Commission and the experience of newspaper readers.
The House will be indebted to the noble Lord, Lord Dixon-Smith for having initiated a very topical and complex debate and for the conspicuously moderate way in which he introduced the subject. I am sure that the noble Lord is right to have focused attention on the particular vice of cheque-book journalism in relation to witnesses in criminal trials.
All noble Lords who have spoken this afternoon agree—and I am sure the whole House agrees—that freedom of speech and freedom of the press are essential in a democratic society. Everyone agrees that those freedoms should be limited only to the extent really needed to protect the rights of others or to safeguard some clearly defined competing and compelling public interest, and in the present case, the extremely compelling public interest in ensuring a fair trial by jury.
s 1659 It would be a wholly unacceptable interference with the right to free expression to seek to prevent or to penalise the press for cheque-book journalism in any generalised sense; that is, for paying informants and others for information and opinions. Such a restriction would greatly hamper investigative journalism and the task of the press in acting, in the words of the noble Lord, Lord Burnham, as public watchdog, and would be an unnecessary restriction on free speech. At its most extreme, such a ban would apply even to the memoirs of noble Lords! It would also be an unacceptable restriction to penalise cheque-book journalism because of strong popular aversion to the author's views or even his conduct.
As the noble Lord, Lord Birdwood, put it, we cannot legislate against bad taste. There was a dramatic example of that, which came to my mind when listening to the noble Lord, Lord Dubs, as regards the American "Son of Sam" case. In that case a psychopathic killer, who killed five people in New York, caused such public outrage that New York State hastily passed a well-intentioned law to cream off the profits of any criminal's books to the victims of his or her crime. The American Supreme Court had no difficulty in striking down that law as being content-based censorship that was discriminatory and over-broad, however well motivated the law might be. That shows that even in a hard case of that kind if a criminal, or former criminal, is seeking to profit from his memoirs, those who are concerned with protecting free speech must tread carefully lest they go too far.
But what the noble Lord, Lord Dixon-Smith, raises, in drawing attention to the case for statutory limitation of the use of cheque-book journalism in connection with criminal trials, is not the spectre of state censorship of the contents of newspapers or books, but the important and difficult question whether new measures are needed to combat the unethical practice of offering to pay witnesses or potential witnesses in criminal trials for their stories an amount of money which may or may not depend upon the jury's verdict. Is there a sufficient mischief to require legislation? Is the existing law, notably on contempt of court, sufficient to deal with the mischief? Would any new legislation be workable? Would it be sufficiently carefully tailored to the need to protect the course of justice without unduly hampering free speech? Would more vigorous use of contempt proceedings, coupled with voluntary regulation via the Press Complaints Commission, be sufficient?
The problem, as several noble Lords have said, is not new. It arose notoriously in connection with the Moors murder trial 30 years ago, to which the noble Lord, Lord Dixon-Smith, referred. Widespread and justifiable concern was expressed at what had happened in that case. The trial judge, Mr. Justice Fenton Atkinson, asked the Attorney-General of the day, Sir Elwyn Jones, to investigate what seemed to the judge to be:a gross interference with the course of justice";in other words, a serious contempt of court.
The Attorney-General informed the other place in May 1966 that there was no evidence that the testimony of any witness had been affected by the payments in 1660 question. The Attorney-General therefore decided not to take contempt proceedings against the newspaper concerned because there was no sufficient evidence. But Sir Elwyn Jones made it clear that the practice of paying witnesses for information about the subject matter of a trial, and interviewing them about the information before they give evidence, could give rise to a criminal contempt of court. That is important, because it supports the view of the noble Lord, Lord Burnham, which I share, that existing criminal contempt sanctions are readily available to deal with the worst instances of that kind of cheque-book journalism, if only the Attorney-General will make use of them.
Lord Justice Phillimore's Royal Commission on contempt of. court next discussed the problem in its report in 1974. What has not been mentioned is that the Phillimore Report recognised that there would be difficulties in framing legislation to prohibit the practice. "Clearly", it wrote:it would be going too far to prohibit all offers to witnesses, especially those which were not contingent upon the outcome of the case. Much would depend on the size and circumstances of the offer, and there would be obvious difficulties of proof if prohibition were confined to contingency payments, since the contingency aspect could easily be concealed".The Royal Commission on the Press, chaired by Professor MacGregor, as he then was (my noble friend), then undertook the inquiry into cheque-book journalism that had been recommended by Phillimore. In its report in 1977, the Royal Commission expressed its belief that:those who write, or lend their names to, these stories are under considerable pressure to exaggerate their most sensational features. This tendency is likely to be increased when different papers compete for the same story".The Royal Commission did not recommend legislative measures to deal with cheque-book journalism, but it urged the Press Council to keep a special watch to ensure that its declaration on the subject was obeyed, and to give an opinion when breaches occurred.
The problem was considered yet again, and in enormous detail in a report as long as a novel by the Press Council in the early 1980s, as a result of the Sutcliffe case. It was a comprehensive, masterly, hard-hitting report, probably the best authority on the subject. The council made it crystal clear that contingency payments are unacceptable by the established standards of conduct in the British press, and are liable to censure. The Press Council went on to censure an offending newspaper in relation to the Sutcliffe trial.
The Home Secretary, Mr. Whitelaw as he then was, meanwhile made it clear to Members of the other place that legislation would create considerable difficulties of definition and enforcement. In this House, the noble Lord, Lord Belstead, then Under-Secretary of State for Home Affairs, said on 14th May 1981 that:cheque-book journalism takes many forms, some of which are inherently distasteful. The Government believe that it is preferable for the practice to be controlled by voluntary restriction in the case of the press, through the influence of the Press Council".At that time, Parliament was in process of enacting the Contempt of Court Act 1981 to give effect to Phillimore. No doubt because of the formidable problems of definition and enforcement, no separate 1661 offence was created to deal with that mischief. The Contempt of Court Act 1981 specifically preserved criminal liability for common law contempt; that is, conduct intended to impede or prejudice the administration of justice. The limits of common law contempt are set by the courts, flexibly and firmly, on a case-by-case basis, in deciding where the public interest lies. In the "Spycatcher" contempt proceedings, in which I should declare an interest, as unsuccessful counsel for The Sunday Times, the Court of Appeal made it clear that the necessary criminal intent would be inferred by the courts where interference with the administration of justice, as a result of the defendant's conduct, is a virtual certainty. As the "Spycatcher" case shows, it is therefore readily easy for the courts to infer that the editor or publisher of a newspaper has the necessary specific intent in such circumstances, because he will be taken to intend to bring about the virtually certain consequences of his actions.
It seems to me that there are powerful arguments for concluding that newspaper editors and publishers will be guilty of contempt of court where they indulge in the unethical practice of offering to pay witnesses or potential witnesses in criminal trials for their stories an amount of money which depends upon the jury's verdict. Conduct of this kind would seem to be virtually certain (as the Royal Commission found) to influence witnesses in some way in the kind of evidence they are likely to give. Where it is a virtual certainty that such conduct is likely to colour the witness's evidence in court, or that the jury's knowledge of the existence of such an arrangement is likely to affect its evaluation of the witness's evidence, the courts will surely infer the necessary specific intent to impede or prejudice the administration of justice.
We all await with great interest the opinion of the noble and learned Lord the Lord Chancellor on this matter, as the Minister responsible for the law of contempt. If he will permit me to say so, the noble and learned Lord, the Lord Chancellor, has demonstrated, again and again, his deep respect for free speech and a free press: in abolishing the restraints on the judges' freedom to write and to speak out of court; in refusing to allow draconian foreign libel laws to be invoked in our courts; in seeking to ease the unacceptable burdens and to reform the antique procedures of English libel law; and in refraining from introducing a new-fangled statutory privacy tort, leaving it instead to the courts to develop the common law, and the Press Complaints Commission to deal with complaints. The Lord Chancellor is also of course concerned to maintain the independence and the authority of the courts in administering justice in this matter and elsewhere.
In considering whether further legislation is needed, it is also important to have full regard to the very valuable work being undertaken in this field by the greatly strengthened Press Complaints Commission, about whose role its distinguished independent chairman, the noble Lord, Lord Wakeham, has spoken with such clarity and candour and whose other members include three distinguished, and equally independent, Members of this House—the noble Lord, Lord Tordoff and the noble Baronesses, Lady Dean of 1662 Thornton-le-Fylde, and Lady Smith of Gilmorehill—together with another strongly independent and legally qualified member, Lady Browne-Wilkinson.
The noble Lord, Lord Wakeham, informed us of the tough stance taken by the current code of practice and the difficult problems which arise in framing clearly prescribed workable standards. He made an important suggestion for a new protocol to ensure that the commitment to voluntary control in this area is fulfilled in deed as well as word. Speaking for myself—and this is not a party-political matter—I strongly agree with the approach indicated by the noble Lord, Lord Wakeham. I would add the pressing need for recourse to contempt proceedings by the Attorney-General it appropriate cases. The noble Lord, Lord Marlesford, said that something should be done. I agree with him. What should be done is the bringing about of the new protocol, and the law of contempt of court should be invoked where cheque-book journalism is virtually certain to impede or prejudice the administration of justice. However, like the noble Lord, Lord Wakeham, I doubt whether a blanket prohibition would be practicable. It would in any event have to be accompanied by a broad public interest offence which would create much uncertainty.
§ 7 p.m.
§ Lord Donoughue
My Lords, I should declare a historic interest as a former journalist on four newspapers. I wish to thank the noble Lord, Lord Dixon-Smith, for giving us this opportunity to debate the matter. I wish also to congratulate the noble Viscount, Lord Exmouth, on his excellent if belated entry into the proceedings of our Chamber. I hope that on hearing that other hereditary noble Lords who have delayed for the odd decade, or quarter or half century, before visiting us with their wisdom will come before us perhaps before the door is finally closed.
The subject before us tonight is not a new issue. Since the 1920s our newspapers have paid defendants, even providing fashionable QCs to defend them, and have paid witnesses, boyfriends, girlfriends and families. I noted that recently even the BBC paid a witness. Perhaps we should think of that matter when debating the BBC Charter after the Christmas Recess.
Recently there have been many cases in which newspapers have appeared to be in contempt of court—I am not a legal expert—but nothing has been done. The Law Officers have appeared to many observers to be "not over-active". I did not know which word to use in the presence of the noble and learned Lord the Lord Chancellor so I used that expression. Governments have ignored Royal Commission reports for the past 20 years. As was pointed out by the noble Lord, Lord Lester, that commission did not recommend action in this respect.
I am concerned tonight about the payment of witnesses, although the cheque-book journalism issue goes much wider. I agree with the Chief Constable involved in the Rosemary West trial who afterwards said that the basic question was:Are we running criminal justice as an entertainment business, or as something that the public has confidence in and that will deliver justice?".1663 That is the heart of the constitutional problem before us.
In that context, we must recognise that we should not express indignant surprise that cheque-book journalism is so virulent. Our newspapers are not particularly concerned with principles of the law and its fair conduct or the principles of a good society. Proprietors, at least those whom I have met—I must declare that two of them terminated my contract—are concerned with money and political influence; editors with circulation and opinions and journalists with stories, whether fact or fantasy. After all, cheque-books buy journalists and it is not surprising if they assume that others, including witnesses, should in turn be bought by cheque-books. It is too much to expect natural good behaviour in journalism. It is not a profession, although that word is often used. The noble Lord, Lord Deedes, who is not in his place, in his brilliant column often refers to journalism as a profession. I am always tempted to write to him. I admit that it has behavioural aspects in common with the oldest street profession and in my view shares with lawyers a major concern with money. However, it has no proper professional qualifications, standards or discipline and certainly little regard for what one ancient proprietor called the two F's of fairness and factuality, although it is of course concerned, almost obsessed, with the third F.
I make those observations after a 36-year on and off connection with journalism. It is important that noble Lords, and in particular noble and learned Lords, realise that if they require much better behaviour from journalism in this area for the better conduct of the law they will have to seek judicial means of imposing it. I believe that the noble Lord, Lord Wakeham, in his excellent and interesting speech, actually said that. It will not come naturally from journalism as a contribution to a better society, which is not one of its objectives. If a tabloid newspaper believes that paying a witness even to bend evidence, provided that that does not appear, will produce a sensational story and a higher circulation, that will often happen.
That is the reality of what we are dealing with. When talking of free speech, it is no good having a great Jeffersonian fantasy. That is the reality of a modern commercial business. In that context, I wish to consider the role of the Press Complaints Commission, the industry's self-regulator. The noble Lord, Lord Wakeham, is working very hard for better self-regulation, and I wish to congratulate him on and encourage him in doing that. The noble Lord is doing a splendid job and he made a very good speech tonight. I look forward on another occasion to hear him announce further tougher rules on, for instance, rights of reply, privacy, doorstepping and various other aspects of what has been called media hooliganism.
However, I believe that as regards the paying of witnesses, one is being unfair and is expecting too much in expecting him to deliver voluntarily everything which the judiciary may require. We have yet to hear what it requires. The noble Lord has already achieved miracles, but that is beyond him. He can only secure voluntarily what the newspapers volunteer. Today's question is 1664 whether they will volunteer to stop writing cheques to gain circulation. I personally doubt that unless the law intervenes.
The Press Complaints Commission has its Clause 9 on the voluntary code which, on first reading, appears to ban such outrageous activity. It must in fact be ambiguous because it is so often breached. It was widely reported that the noble Lord's predecessor at the PCC allegedly—I do not know whether it is true—gave the green light to the Star to pay Rosemary West's stepdaughter, actually stating that the code was ambiguous. If it is ambiguous it must be made watertight.
Tonight the noble Lord, Lord Wakeham, proposed a new protocol and I should like to welcome that—
§ Lord Lester of Herne Hill
My Lords, I am sorry to interrupt the noble Lord and wonder whether he will give way. Has he given notice of what he has just said to my noble friend Lord McGregor of Durris? It seems to me a rather surprising statement to make.
§ Lord Donoughue
My Lords, no, I have not. I did see him here earlier. If he reads my words, he will know that I said that it has been reported. I shall happily give him the newspaper extracts that say that. I did say that I did not know whether that was true.
§ Lord Lester of Herne Hill
My Lords, the noble Lord has been critical of the press and I am sure that he will agree that one should make such a statement only after one has checked that it was said rather than merely reported that it has been reported.
§ Lord Birdwood
My Lords, perhaps I may clarify that. The very words which the noble Lord has just used were quoted specifically in the Economist on 25th November.
§ Lord Donoughue
My Lords, I thank the noble Lord for that helpful intervention. I saw it there and elsewhere. I insist that I bear no towards the noble Lord, Lord McGregor, who is an old friend and an old colleague. I merely quoted what appeared in a very reputable journal. I see that the noble Lord, Lord Marlesford, nods his head because he worked for it for many years. I merely said that those words had been quoted and I did not know whether they were true. I would welcome clarification on that. The importance is that, if it is true that it is ambiguous—and I suspect from what was said earlier that it is true—it is quite right that it needs clarification.
Perhaps I may return to what I was saying about the new protocol. It states that it will be necessary to prove legitimate public interest. That does not mean just that it would interest the public. That is very helpful. I believe that the noble Lord said also that the amount of the payments should be published.
§ Lord Wakeham
My Lords, I said that the information about the cheque-book journalism should be made available to both the prosecution and the defence.
§ Lord Donoughue
My Lords, I would go beyond that. Any article published by means of cheque-book journalism—whether the old lag has published his recollections or the young bimbo has published her 1665 recollections—should at the end state that, "£50,000 was paid by the News of the World for this article". That would be extremely helpful in assessing the value of such articles.
But, on the whole, that protocol seems to me to demonstrate great and helpful progress. The noble Lord, Lord Wakeham, has used this occasion very valuably. He has made significant progress in this difficult area. I wish him well in persuading the media industry to accept it, as I hope and as I am sure it will.
But I do not believe that that is enough. The noble Lord talked about not having received complaints on the issue. Many people are concerned that perhaps the Press Complaints Commission does not initiate investigations but awaits complaints. It would be a welcome move were it more often to initiate investigations, whether or not there are complaints from outside.
In that context I ask: who will complain? The newspaper will not complain; the recipient of the money will not complain; and nobody will know until it is too late. Therefore, I believe that that is an area where further progress can be made.
Some arguments are made in defence of newspaper freedom. I saw in The Times on 29th November an article by a journalist which said that any restrictions in this area would infringe free speech. It admitted that witnesses in court cases might lie "to make the story more saleable". But the article went on to say that infringing free speech is worse than that. I was quite shocked by that. The journalist was saying that infringing free speech is worse than perverting the course of justice. What nonsense that is. I felt that in that there was an arrogance of modern journalism—saying that its licence and unaccountability are more important than the process of justice.
It has been said also that such cheque-book journalism is defensible because it sometimes exposes crime. I do not accept that as a defence—that because it helps to expose people to the system of justice, it is excusable then to distort that system of justice. That is not acceptable. In any event, we pay the police to catch criminals. Down that slippery slope somewhere lies paying jurors. I wonder whether freedom of speech comes before that.
Another argument put in defence of cheque-book journalism was quoted by the noble Lord, Lord Birdwood, and the noble Lord, Lord Moyne, mentioned it; namely, that there is a willing seller and a willing buyer and the public buys what the press produces. In my experience, I did not feel that the newspapers were necessarily producing what the public wanted. On the whole, they were printing what the journalists wished to write.
I do not accept that a willing buyer and a willing seller is sufficient to justify it. I am not impressed by that—it is also true of the trade in hard drugs or in hard pornography. There are many willing sellers and willing buyers. Society can decide that some kinds of anti-social behaviour are unacceptable. Parliament and the public believe that that kind of cheque-book journalism is unacceptable. As I said, ultimately the only sure remedy is through the law. I was extremely interested in and 1666 sympathetic to the proposed amendment of the noble Lord, Lord Marlesford, and I hope that it is examined seriously.
I was also very impressed by the excellent speech of the noble Lord, Lord Lester. He pointed to the direction of legal action under current law. I join him in asking why those questions are not covered satisfactorily by the contempt of court legislation. I have read that the Scots regulate those matters, as many others, better, and I look forward to the comments of the noble and learned Lord the Lord Chancellor.
But if the present law is inadequate—and recent experience suggests that it is—or is being applied inadequately, we must proceed to new law. I accept that it is not easy to draft new legislation. Several noble Lords have indicated the problems involved. It rarely is easy to legislate perfectly, but we should try. The present situation is intolerable in, a society based on the rule of law. I would support any reasonable amendments to prevent this misbehaviour.
We need stricter new laws or more strictly enforced existing laws. They must be enforced by diligent law officers to ensure fairness in the justice system. We also need more clarity and certainty as regards the rules of the PCC, and we must ensure that that aspect of press regulation is less ambiguous. But we have been greatly reassured about that this evening. Above all, the media needs that so that those who behave well—and there are newspapers that behave well—will not lose out because of competition from miscreants. Therefore, it is extremely important to support what is best in journalism. We have an opportunity to do that. I look forward with great interest to what the noble and learned Lord has to say this evening.
§ 7.18 p.m.
§ The Lord Chancellor
My Lords, I begin by thanking my noble friend Lord Dixon-Smith for introducing this extremely important and difficult subject to your Lordships for debate. I thank also all your Lordships who have taken part. In particular, I thank the noble Viscount, Lord Exmouth, for an extremely thoughtful and instructive maiden speech. I join with the noble Lord, Lord Donoughue, who indicated that he would not wish—perhaps he did not go quite that far—to close the door to future opportunities and that it would be a pity to deprive our successors of opportunities to hear the speeches of such distinguished Members of this House on the basis of the title from which they speak.
These issues are extremely difficult and they have been brought to public attention in connection with the West trial. An appeal has been lodged in that case and your Lordships will therefore expect me to be extremely circumspect in what I say about it.
A great deal has been said about the background behind this sort of matter and the moral values which are at stake. We all appreciate those. The reason that particular things have value, or are judged to have value, is usually because people are willing to read them or at least to buy them. No doubt they read some of what they pay to buy although, possibly, not all of it.
1667 That brings me to the comment on Scotland made by noble friend Lord Moyne regarding the people who were interested in the serialisation of a certain book in a particular newspaper. I was glad to think that there are other than Scotsmen in Scotland and that, therefore, it was not necessarily an attack on the high standards of my countrymen.
I should like, first, to say a few words about the existing law. So far as concerns contempt of court, the existing law has been expressed. But it is only right that I should mention it again. The Contempt of Court Act 1981 provides that conduct tending.to interfere with the course of justice in a particular case amounts to contempt—that is to say, one has to show that the conduct tended to interfere with the course of justice. It applies to publications which are issued while proceedings are active.
The noble Lord, Lord Lester of Herne Hill, also mentioned the common law under which an act which is calculated to interfere with the administration of justice or prejudice the course of justice is a contempt of court. The application of that principle to payments to witnesses by the media has not been tested by the courts, but it appears reasonably clear that, in order to base proceedings under that head, it would be necessary to show an intention to prejudice the proceedings.
The enforcement of contempt of court has also been mentioned. I strongly believe that the present law officers do take action when it is justified under those headings. The only case that I know of in which their decision was challenged resulted in their being vindicated on a judicial review of not taking action in a particular case. Therefore, I do not accept for a minute any suggestion that they are inactive or neglecting their responsibilities in the matter. Indeed, I believe that they carry them out. Of course, one needs to know a great deal about the facts of a particular instance before one can reach a judgment about whether any of those provisions to which I referred apply.
The other aspect of legislation that I ought to mention is that which concerns payment to criminals to which reference has been made. So far as concerns payments to criminals, the courts have already held in the case of Randle and Pottle that payments for writing a book can be regarded as property obtained in connection with crime and so are liable to be confiscated on conviction. The Proceeds of Crime Act 1995 which came into effect on 1st November 1995 also provides power to seek confiscation of such payments received up to six years after conviction. Those provisions could not, of course, be used in the West case for obvious reasons. Therefore, there is a degree of statutory effect in that area, although it is not directly related in this particular connection to the publication; it is directed to the proceeds received by the criminal regarding the selling of the story or the writing of a book.
I certainly strongly support, as indeed do most speakers in tonight's debate, the desirability of a free press. But that freedom requires proper exercise of responsibility. That is particularly so when it comes into a relationship with the administration of justice and the 1668 holding of a fair trial of accused persons. The Contempt of Court Act to which I referred recognises that balance and has it strongly in favour of the administration of justice. Therefore, the freedom of the press is not allowed under the contempt of court rubric to prejudice the administration of justice in the way that I described.
The next question is: what should be done? I refer now to payments to witnesses. The generality that has been mentioned is, to some extent, dealt with in the provisions to which I just referred for confiscation. It is a matter which the Home Secretary, the Attorney-General and myself are considering in the light of recent experiences. I believe that I can say that generally; but, of course, that is not confined to a particular case. We are examining the case for further legislation.
I am grateful for the suggestions about what form further legislation should take which were made during the course of the debate. Your Lordships may be assured that we shall pay close attention to them. One of the difficulties is highlighted by the amendment proposed by my noble friend Lord Marlesford in the sense that, by the time a person has actually become a witness, it is probably too late to apply the prohibition. Therefore, one has to look at a starting point. One needs, at least in some cases, to be something of a prophet to know whether or not a person will be required as a witness in a particular case. Therefore, there is a question about precisely what one can do, or lay down, as a starting point for that offence.
Further, one needs to be quite clear about the nature of the mischief. If, as a result of a payment, a witness says something prejudicial either to the prosecution or to the defence which is not true, it is perfectly plain that that is something extremely serious which one would wish to stop. However, the difficulty arises in the intermediate type of case. For example, what is the newspaper or the other payer paying for? What exactly is it that they are obtaining?
The suggestion often made is that the witness exaggerates or colours the evidence to make it somewhat more expensive than it would be if it was given in the ordinary way. That kind of situation is difficult to establish. Indeed, to prove that that has happened would be quite difficult. Therefore, one has to think quite carefully about precisely what would be the conditions of the offence. In his proposal, my noble friend is really outlawing all payments up to a certain point. But the question is whether witnesses who might receive money should be deprived of it if no harm is done by their receiving such money. Therefore, one has to be reasonably clear about precisely what it is that one wishes to legislate against.
I have already mentioned the timing so far as concerns the start of the period covered by the offence. There is also the question of when it should stop. For example, some people believe that it should be outlawed to make any agreement until the trial has concluded. But then there is always the question of an appeal, and when does one stop? Of course, in a way, there could be greater danger in having the prospect of an agreement arising later. If one is looking at the evidence that the 1669 witness will give and there is the prospect of some money in the future (if the story is good enough), that will, perhaps, also tend to have the effect of damaging the witness's evidence.
Those issues are quite difficult in relation to the formation of a particular offence. However, I am comforted in that thought by the fact that the Phillimore Report made it clear that that matter was looked at quite closely and that difficulties in the framing of an offence were envisaged. It is also a comfort for me, in relation to what I said earlier about the Law Officers, that it is plain that Phillimore thought that if this matter were to be dealt with it would have to be dealt with as something rather distinct from die ordinary law of contempt of court.
This brings me to say how much I welcome what my noble friend Lord Wakeham had to say. If I may presume to do so, I welcome him back. We have missed him for a time and it is good that he is back, particularly when he has such an important message to bring to us. I personally warmly support his efforts in relation to a protocol. The noble Lord, Lord Donoughue, has rather suggested that it might not be quite as successful as the noble Lord, Lord Wakeham, would like, but it appears to me to be a considerable effort in the right direction. It is extremely important that, where a payment has been made, the court should know about it. One of the dangers is that someone is involved in contact of this kind but it does not emerge in court. The cross-examination may bring that out but not all answers to cross-examination are truthful. This fact may not emerge until after the trial. One can imagine what effect that would have on a concluded jury trial if the matter had not been investigated. Therefore the requirement that it should be intimated to the parties to the trial is an important matter. Whatever may be the rights or wrongs of going further, that seems to me to be an important step in the right direction.
My noble friend Lord Birdwood asked about the intimation of these matters to other authorities. It may be that in some circumstances if someone was in receipt of benefit, the Benefits Agency would be entitled to be told about it at some stage if it was relevant to the benefit. I doubt whether the payer would have any such obligation. As regards the Inland Revenue, I suspect—I may be wrong about this—that these matters would form part of the expenditure accounts of the newspaper in question but they would be unlikely to be broken down in sufficient detail to make a real intimation to anyone of a particular payment.
I conclude by saying that we are examining carefully what should be done in this area. We are extremely grateful for what the noble Lord, Lord Wakeham, had to say. If this matter can be solved by going down the route he suggests, that would be extremely desirable because the legislation would be difficult. It is not wise to rush into legislation in a difficult area like this but the suggestions which your Lordships have made as regards the terms in which that legislation might be couched are extremely valuable and a great help to us in our further consideration of these matters.
§ Lord Lester of Herne Hill
My Lords, before the noble and learned Lord the Lord Chancellor sits down, I 1670 hope I may ask a question about the state of the law as it now is. I suggested in my speech that, although a specific intent is needed for the common law of contempt, that intent would be inferred by the courts where there was a virtual certainty that as a result of, for example, a large payment being made to a witness, an interference with the course of justice was inevitable. If I am right about that—I would be grateful to know whether that is also the view of the noble and learned Lord the Lord Chancellor—that certainly would be a severe warning to the press that common law contempt is a real weapon. If on the other hand I am wrong about that, it seems to me it is important that the House knows that because it would be a situation that perhaps cried out for legislation.
§ The Lord Chancellor
My Lords, the press should certainly have in mind that the criminal law of contempt is alive and is capable of dealing with cases in this area. However, there is a difficulty as regards proving intent. The noble Lord cites an example of what he calls a large payment. The very fact that he puts it that way suggests that he does not have a precise test because it is a matter of how large the payment has to be. Different people have different views on that matter. What is large to me might not be large to the noble Lord as I stopped practising a long time ago.
These are relative matters. When it comes to the question of intent in this matter, what one is having to show is that the intention of making the payment was to interfere with the course of justice. I cannot imagine that most people who make these payments—however, I cannot generalise and I have no personal experience of making any such payment, as your Lordships will understand—would be willing to accept that that was the reason they made the payment. They would make the payment in order to inform the wider public of the interesting material that the witness had disclosed to them. I believe that the dangers in this area are perhaps more subtle than describing an intent of that kind. When a witness has gone over a statement with someone in detail and has perhaps repeated that, it has an effect on the witness's memory and on what the witness recollects. One has certainly seen this in particular cases. I wish to make it clear that I believe that the law of criminal contempt is a lively law not to be left aside. However, I do not believe that it will necessarily provide an answer to all the situations which are the subject of concern in the debate this evening in respect of payment to witnesses.
§ 7.35 p.m.
§ Lord Dixon-Smith
My Lords, I am glad that I overcame my reluctance and put this Motion down on the Order Paper. I am most grateful to all noble and learned Lords and to noble Lords who have taken part in the debate. I beg leave to withdraw the Motion.
§ Motion for Papers, by leave, withdrawn.