Youth Justice and Criminal Evidence Bill [H.L.] (Hansard, 8 March 1999)

HL Deb 08 March 1999 vol 598 cc53-75 53

§ 6.9 p.m.

§ Consideration of amendments on Report resumed.

§ Clause 41 [Interpretation and application of section 40]:

§ [Amendment No. 60 not moved.]

§ Clause 42 [Procedure on applications under section 40]:

§ [Amendment No. 61 not moved.]

§ Clause 43 [Restrictions on reporting alleged offences involving persons under 18]:

§ Lord Williams of Mostyn moved Amendment No. 62:

§ Page 30, line 28, leave out from ("where") to ("against") in line 29 and insert ("a criminal investigation has begun in respect of— (a) an alleged offence").

§ The noble Lord said: My Lords, in moving Amendment No. 62, I wish to speak also to Amendments Nos. 63 to 65, 67, 67A, 69, 70 and 120. This is a quite large group of amendments. They are both Government and Opposition inspired and have generally the same purpose. Perhaps I may set out briefly why we think mat some changes are necessary and the best way that we may attain our common purpose.

§ We want to protect the most vulnerable members of our society from unwarranted publicity and irresponsible reporting, in particular when those in question are children and young people who may be involved in a criminal trial in the near future. As the law now stands, once proceedings have begun in a youth court restrictions on reporting automatically apply. We think that in the pre-proceedings stage it cannot be right that there are no such safeguards. Therefore we want to put the appropriate mechanism in place to prevent the 54 authority of the court being bypassed and the lives of innocent youngsters ruined. We also appreciate that there have been quite deep concerns about how the new measures will apply to situations in which it is not clear whether an offence has been committed or who has been involved.

§ I have been happy to listen to representations about how the policy objective could be best achieved. We are continuing to listen to representatives, in particular from the press and broadcast media, and we have made a number of changes to reflect concerns about which we have been told.

§ Perhaps I may deal first with the changes suggested by the noble Lord, Lord Cope, and the noble Viscount, Lord Astor. They propose amendments to die way in which the restrictions on reporting will apply. In Amendments Nos. 69 and 70 they suggest the introduction of two new clauses which would apply a differential approach to suspected offenders on the one hand and alleged victims and witnesses on the other. The new clauses introduce a number of interesting ideas. However, we do not think that in their present form they meet the bill. First, the new restrictions would apply only from the point of arrest, thus leaving a loophole of time. Secondly, the mandatory ban on restrictions would apply only to those suspected of committing an offence; those who may have been victims or witnesses would have to apply to the court or have someone apply on their behalf to have restrictions put in place. That could mean a race between the news organisation and the child concerned to see if the former could print a story before the latter had obtained a court order.

§ The new clauses contain lists of the factors that a court or the Home Secretary might consider before lifting or varying the restrictions. The list is neither exclusive nor exhaustive and at times appears unduly skewed in favour of lifting the ban. There is no requirement in the list to consider the welfare of the child. There is, however, the seed of an interesting idea in producing statutory criteria as a starting-point for the courts.

§ The final amendment in this group, Amendment No. 120, would remove from Schedule 5 all the transitional provisions which apply to the reporting restrictions under Amendments Nos. 43, 44 and 45. That would not help the successful introduction of these new provisions and therefore, on that basis alone, the amendment is not welcome. It would have the effect of applying the new provisions to proceedings instituted before their commencement date. I am not sure that that was the intention. Having reflected gratefully on the indications from the noble Lord, Lord Cope, and the noble Viscount, Lord Astor, and on comments from representatives of the press, I believe that in our amendments we have gone a long way towards dealing with some of the concerns expressed.

§ In government Amendments Nos. 62, 63, 64 and 67 we hope to provide greater clarity as to when the restriction will apply. That is now identified as the beginning of a criminal investigation, whether by the police or another investigative authority. That is more easily ascertained than the "point of allegation" yet still 55 effectively closes a large proportion of the legal loophole to which I referred. I do not believe that Amendment No. 67A, which adjusts our definition of criminal investigation, is necessary.

§ We have also included, I hope to your Lordships' satisfaction, a specific consideration of the welfare of the child when a court is considering whether to lift or vary the restrictions. That should be a key element of any decision when one is thinking about the potentially harmful effects of negative publicity. That is achieved by way of a new subsection introduced by Amendment No. 65.

§ I repeat: it is difficult to get these matters absolutely right. I am perfectly happy to listen with an open mind to reasoned, considered arguments. For the moment, I invite the House to accept government Amendments Nos. 62 to 65 and 67, and invite noble Lords to withdraw their amendments on the basis that we have a common purpose and it may be that our amendments fit the bill better. I beg to move.

§ 6.15 p.m.

§ Lord Cope of Berkeley
My Lords, I am grateful to the noble Lord for responding to the calls we made earlier, which came from the press and electronic media, for improvements in the clauses that are now the subject of debate.
The amendments before us deal in part with the definition of the time from when the new reporting restrictions will start. Amendment No. 62 and Amendment No. 67 in particular mean that the reporting restrictions start when an investigation begins into whether a person should be charged with an offence. I am sure it is not necessary for a particular person to be identified before these provisions will be triggered. Often, in the early stages, it will be a person unknown who has apparently, or may have, committed an offence.
My contacts with the news media suggest that there may still be some difficulty with the definition as to when the investigation begins. Perhaps I may give an example. I ask your Lordships to consider what happens when a child is missing. The main effort in the early stages of police involvement in such a case is to find the child. It may be, as everyone in these cases hopes, that the child will be found unharmed and will merely have strayed. But from the first moment that the police are involved they will be looking for any hint or possible evidence that a crime has been committed. I am not sure whether that counts as "investigating" within the terms being inserted by the amendments. At that stage the nature of the crime that may have been committed will be completely unknown. It could be murder, abduction, sexual offences or all sorts of other crimes. The police are likely to say that they hope that no crime has been committed; but at the same time it will be in the forefront of their minds, and they will be actively looking for any indication of that as part of their investigation. Does that mean that, from the moment a child goes missing, the police should be considered to be investigating an alleged offence to see whether a person unknown should be charged with it, or is there a window 56 for reporting between the disappearance of the child and the criminal investigation being thought to have commenced?
Amendment No. 67 introduces the question of the police investigation. It refers to, persons charged with the duty of investigating". I realise that that is intended to include in the definition Customs and Excise and various authorities mentioned in Committee which might also be investigating in a particular case. However, the phrase might also be held to cover private detectives. It would not be very satisfactory if only private detectives were involved. How would any authority know, and hence how on earth could the press be expected to know, that a private investigator was investigating what might turn out to be a crime? I have therefore suggested in Amendment No. 67A that the words "by law" should be inserted, so that the provision would read, "other persons charged by law with the duty of investigating offences." That might confine the provision to the official investigating authorities, the police, Customs and others.
The later amendments in this group, Amendments Nos. 69 to 70 and Amendment No. 120 were suggested to my noble friend Lord Astor and myself by representatives of the news media. They are worth consideration. The concern remains that the same event triggers a ban on the alleged offender, the victim and any witnesses being identified. The provision is broad. I am glad to hear from the Minister that he is continuing to discuss it with the news media.
There remains some awkwardness in the wording. We are agreed in all parts of the House that an extension of the reporting restrictions is desirable but, as the Minister acknowledged, definition is difficult. We are all struggling to find the right words in which to phrase the matter in law so that there are no unreasonable difficulties placed in the way of the news media. The news media are one of the bulwarks of the freedom of our society. They should not be unreasonably restrained by the law from reporting things which are of public interest. That is public interest in the sense of the interests of the public and also in the sense that the public are interested in such matters. One has more sympathy with the former than the latter; nevertheless they both have their importance.

§ Lord Windlesham
My Lords, I also took part in the debate in Committee on reporting restrictions. I am pleased to see the changes that the Government have tabled as a result of the discussion we had on a whole series of amendments at that stage.
My noble friends Lord Cope and Lord Astor have received representations from the news media. However, the standpoint from which I spoke, as the Minister will recall, was that of the organisations, Justice and the NSPCC. Of course, the news media have a very important role in reporting what will now be criminal incidents, although not according to the first amendment tabled at Report stage. The news media also have an important role in the paramount interests of the child. From that viewpoint, Amendment No. 65 put forward by the noble Lord, Lord Williams of Mostyn, 57 inserts a specific obligation on the court when considering whether to lift reporting restrictions. It states that: when deciding whether to make such an order dispensing (to any extent) with the restrictions imposed by subsection (2) in relation to a person, the court shall have regard to the welfare of that person". It seems to me that the addition of that wording to the Bill more accurately reflects the international obligations to which I referred in Committee than the Bill as originally drafted. It should be welcomed accordingly.

§ Viscount Brentford
My Lords, can the Minister clarify a question which was partly raised by my noble friend Lord Cope? The situation of a child going missing would not initially come under Clause 43 because there would not necessarily be any offence committed and no criminal investigation. There would be a search for the missing child. However, at a later stage it could become a criminal investigation if the search were abortive and it became the view, presumably of the police, that a criminal offence had occurred. In the first part, presumably, there would be no restriction on the media reporting the missing child. They could publish photographs of the child which would undoubtedly be helpful so that the public could look for him or her. However, presumably at some stage it would become a criminal investigation, there would be an offence, and restrictions would be imposed. Can the Minister clarify how it would work out in practice on the present basis?

§ Lord Williams of Mostyn
My Lords, I am grateful for the response, not least that of the noble Lord, Lord Windlesham. His earlier intervention was a useful trigger to see whether we had got the balance right. It is a balance. I agree with the noble Lord, Lord Cope of Berkeley, that the press is a bulwark of freedom and one cannot simply pay lip service to it and say, "Oh, by the way, but. "I hope we are demonstrating that we want everyone's interests borne in mind.
The question of the noble Viscount, Lord Brentford, overlaps with that raised by the noble Lord, Lord Cope. It concerns the situation of a missing child. At that stage the child could have run off, fallen asleep in a garden shed or whatever. Both noble Lords are right. At that stage it is a search for a missing child. There is no indication or presupposition that an offence has occurred. It is not until it is clear that an offence has taken place that the new provision starts to bite. Obviously, if the help of the press is required in the early stages, then the powers within the clause to lift reporting restrictions can be employed. There will be a point at which perhaps there is a degree of uncertainty, where the press are regularly genuinely helpful in assisting in the context of young children who have gone missing.
The noble Lord, Lord Cope, asked about the definition of, persons charged with the duty of investigating offences". That does not include private detectives. They have no duty to investigate offences. It comes from precedent and is intended to include law enforcement agencies, as 58 the noble Lord rightly surmised, other than the police. It is taken from Section 51 of the Criminal Justice and Public Order Act 1994. What we have tried to do is tighten up the circumstances to refer to a criminal investigation so that those in the press have, a greater opportunity of certainty as to what they can print and what they are in danger of printing unlawfully. I am obliged for the contributions that have been made and commend the amendment.

§ On Question, amendment agreed to.

§ Lord Williams of Mostyn moved Amendments Nos. 63 to 65:

§ Page 30, line 32, leave out ("that a") and insert ("an alleged').

§ Page 30, line 33, leave out ("has been").

§ Page 31, line 21, at end insert — ("( ) However, when deciding whether to make such an order dispensing (to any extent) with the restrictions imposed by subsection (2) in relation to a person, the court shall have regard to the welfare of that person. ").

§ On Question, amendments agreed to.

§ Lord Williams of Mostyn moved Amendment No. 66:

§ Page 31, line 31, at end insert — ("( ) In the case of a decision of a magistrates' court in England and Wales, or a court of summary jurisdiction in Northern Ireland, to make or refuse to make an order under subsection (6), the following persons, namely—

(a) any person who was a party to the proceedings on the application for the order, and
(b) with the leave of the Crown Court, any other person,

may, in accordance with rules of court, appeal to the Crown Court against that decision or appear or be represented at the hearing of such an appeal. ( ) On such an appeal the Crown Court —

(a) may make such order as is necessary to give effect to its determination of the appeal; and
(b) may also make such incidental or consequential orders as appear to it to be just. ").

§ The noble Lord said: My Lords, the amendment is to deal with the concerns of the media who have represented to me their anxiety that the clause as drafted would prevent them properly reporting events of potentially national significance. They have given examples which they recognise as high profile cases such as the Dunblane tragedy or the events and the heroic conduct of the nursery nurse, Lisa Potts.

§ Amendment No. 66 has therefore been introduced to give an appeal procedure under Clause 43 which would allow any interested party, with the leave of the court, to appeal against the making or the failure to make an order lifting mandatory reporting bans. This would allow a further stage of discussion about whether or not it would be in the interests of justice to lift the reporting restrictions. It applies equally to all involved in the case—any person who is a party to the proceedings on the original application to have the restrictions lifted, although he may appeal. And the Crown Court has the option of allowing any other persons to appeal if they 59 have the leave of the court. I hope that your Lordships will agree that the amendment is an important safeguard for the interests of all those involved. I beg to move.

§ Lord Cope of Berkeley
My Lords, I support the amendment but for the avoidance of doubt I believe that "any other person" could include the news media. I am glad to see that the Minister confirms that from his sedentary position.

§ Lord Williams of Mostyn
My Lords, yes. Perhaps I ought to have said that the appeal to the Crown Court offers the opportunity of a speedy appeal, bearing in mind that the media often say, rightly, that news is a fragile and perishable commodity.

§ On Question, amendment agreed to.

§ Lord Williams of Mostyn moved Amendment No. 67:

§ Page 31, line 35, at end insert— ("( ) any reference to a criminal investigation, in relation to an alleged offence, is to an investigation conducted by police officers, or other persons charged with the duty of investigating offences, with a view to it being ascertained whether a person should be charged with the offence;").

§ [Amendment No. 67A, as an amendment to Amendment No. 67, not moved.]

§ On Question, Amendment No. 67 agreed to.

§ 6.30 p.m.

§ Lord Cope of Berkeley moved Amendment No. 68:

§ Page 31, line 42, at end insert— ("( ) Nothing in this section shall impose any restriction on the police or any prosecuting authority from publishing information in the course of their duties, nor on the reporting of any such publication. ").

§ The noble Lord said: My Lords, Amendment No. 68 returns us to the position of the police that we discussed briefly at Committee stage. The amendment seeks to give the police permission to release information on their own behalf. The intention of Clause 43 and the clauses that follow is to restrict the publishing activities of the news media, but I believe that they have the additional effect of restricting the activities of the police in their investigations. I am concerned as to what the police are to do when a crime involving a child as either a victim or suspect is under investigation and they need help from the public. One example is the case of a missing child. The Minister has just said that the clauses that restrict the giving of information bite only when a crime is believed to have been committed. However, as I said a few moments ago, I believe that the police will at least be looking out for evidence from the first moment that they come on the scene. There may be some evidence of a possible crime at an early stage which may merely be the circumstances in which the child has disappeared.

§ As the Bill stands at present, the police would have to go to court to get permission to appeal for public assistance in looking for the child or perhaps to identify the red car which was outside the school at the time of the disappearance, or shortly before it, etc. This can 60 occur in all kinds of ways. As it happened, I was with my local police a couple of years ago and found myself involved with them in the search for a missing person in the middle of the night. That case involved an elderly person, not a child, who had suffered memory loss. However, it could presumably have been either. The police encountered a great deal of difficulty in collecting sufficient policemen in a short time to search parkland and woodland to look for the missing person. I am glad to say that the individual turned up on his or her own account satisfactorily before too long. If the police had wanted to make an announcement I do not believe that it would have been desirable if they had had to be distracted by the need to find a court to get permission to seek public assistance.

§ We all realise—if we do not we were reminded of it the other day—that duty judges and magistrates are available at short notice for these purposes. The Home Secretary made use of that facility the other weekend when seeking an injunction following the leak of the Lawrence report. The delay involved in getting that injunction illustrates very well the problems that may be encountered. The delay was only a few hours but, given the way that it worked, it was important for the newspapers. It had the rather nice effect that we provincials were able to read something of importance in the papers that those in London could not. Looked at solely from that point of view, it was a rather pleasurable experience. If only it had made much better reading on that particular occasion. That turned out to be a somewhat pointless injunction. I do not develop it except to illustrate the fact that it can take time. Perhaps it is only a matter of hours, but that can be important both for newspapers and the investigation if someone is missing or if it involves other types of crime for which the police require assistance.

§ It is important therefore that whatever restrictions we decide to place on the media, with the various safeguards that are available, we should not place on the police in the course of their duties. I have tried to phrase the amendment, no doubt imperfectly, so that there is no restriction on the police or any prosecuting authority from publishing information in the course of their duties". It is only in the course of their duties that this applies. It does not give the police carte blanche but it assists them with their duties and it is an important safeguard to place in the Bill at this point. I beg to move.

§ Viscount Brentford
My Lords, I support my noble friend's amendment. Like him, about three or four weeks ago I was at a local police station one night during which three cases involving missing persons arose. Speed was very much of the essence. There was then no question of any great publicity. I am glad to say that those missing persons, all of different ages, turned up before I left the police station in the early hours of the morning. I believe that this is a simple measure that will facilitate the work of the police so that they do not have to go to a court if they believe that publicity will help and press restrictions should be lifted. Anything 61 that facilitates the very professional job that they normally carry out is to be welcomed. I support the amendment.

§ Lord Williams of Mostyn
My Lords, I sympathise with the spirit of the amendment, but I hope to be able to reassure noble Lords that it is not necessary on two bases. The evening occurrences to which the noble Lord and the noble Viscount have referred would not be relevant in the context of Clause 43 except in certain circumstances. Clause 43(1) starts to bite only where an allegation has been made that an offence has been committed, or that a civil offence has been committed. That is the important context of this discussion. The prohibition on publication that one finds in Clause 43(2) is: No matter relating to any person involved in the offence"— therefore, it is not simply, "Please can you help us to look for someone?"— when a minor shall while that person is under the age of 18 be included in any publication". Therefore, here one is considering a subsequent stage to that identified by the noble Lord and the noble Viscount.
But I concede that there may well be some circumstances in which courts are of the view that this is a criminal investigation and they need to publish certain information. The point of the provision as presently drafted—this is why I say that I hope to provide reassurance—is that in Clause 43(6) it is provided: Any appropriate criminal court may by order dispense … with the restrictions … if it is satisfied that it is necessary in the interests of justice to do so". Very importantly—I take the point about speed and flexibility—the power of a magistrates' court in England and Wales under subsection (6) may be exercised by a single justice. Therefore, one has the opportunity of speed on the fair analogy that if the police need to swear out a warrant at very short notice they can always get hold of a magistrate within their area by administrative arrangements. The point is a fair one to raise, but I hope that I have satisfied any doubts.

§ Lord Cope of Berkeley
My Lords, unless I misheard him the Minister has just read out a bit of the clause that we amended a few minutes ago. He read out Clause 43(1): This section applies where an allegation has been made— (a) that an offence has been committed". We have knocked out those words and, by Amendment No. 62 and other amendments, replaced them with the words where a criminal investigation has begun in respect of— (a) an alleged offence".

§ Lord Williams of Mostyn
My Lords, we have moved on. Whether it is described as an allegation made or a criminal investigation begun, we have moved on— I believe that I used the words "criminal investigation"—from the factual situation which the noble Lord and the noble Viscount identified; namely, we are looking for someone who is missing. I believe that on the illustrations given a crime has not been 62 committed; there is no criminal investigation. My point is that however those circumstances are defined—I hope that we have helped the press by giving a more precise definition—there is still power to go to the court in the form of a single justice to get a relaxation of the restrictions.

§ Lord Cope of Berkeley
My Lords, I accept what the Minister says, but there will be other instances where it is apparent from the first moment that a crime has been committed. In the case of a missing child it may not be so, and in that case the noble Lord relies on going to a single justice to get permission to release information to the press.
Frankly, that shows a distrust of the police in the course of their duties, which I do not share. I think the police should have the ability, without the added complication of having to go and find a justice in order to get permission, to tell the press what is happening. I think me police should have that ability. It may be that my amendment is not perfectly drafted, but I should like to test the opinion of the House on it and press the point that the restrictions we are trying to introduce are not restrictions on the police—or they should not be— but restrictions solely on the way the news media operate.

§ Lord Williams of Mostyn
My Lords, I wonder if I might take up that last point, to be helpful and not tedious. The amendment says: Nothing in this section shall impose any restriction on the police or any prosecuting authority from publishing information in the course of their duties". Absolutely. But this is not restricted to the police. The amendment goes on to say: nor on the reporting of any such publication"— and that is the media.

§ Lord Cope of Berkeley
Yes, my Lords, but there is no point in the police publishing something if it cannot be picked up by the newspapers. All that the newspapers or, for that matter, television and so on could report would be what the police had said. It is only that information supplied by the police or the other authority which would be permitted to be published. So the police would be able to put out an appeal if, for example, they were suspicious of a red car seen outside a school. In that case the police would be able to pass on information to the press and the press would be able to report that, but nothing else.

§ Lord Williams of Mostyn
My Lords, of course they can report that. The prohibition on reporting refers to any publication if it is likely to lead members of the public to identify a man as a person involved in die offence.

§ Lord Cope of Berkeley
My Lords, exactly so; and that would be overridden if this amendment were to be inserted. That is what I am trying to achieve: to permit the police to override the restriction in the interests of their investigation.

§ 6.42 p.m.

§ On Question, Whether the said amendment (No. 68) shall be agreed to?

§ Their Lordships divided: Contents, 48; Not-Contents, 132.

Division No. 2
CONTENTS
Anelay of St. Johns, B.	Lamont of Lerwick, L.
Astor of Hever, L.	Luke, L.
Attlee, E.	Lyell, L.
Baker of Dorking, L.	Mackay of Ardbrecknish, L.
Blatch, B.	Mancroft, L.
Boardman, L.	Massereene and Ferrard, V.
Brentford, V.	Molyneaux of Killead, L.
Bridgeman, V.	Monro of Langholm, L.
Burnham, L. [Teller.]	Monson, L.
Caithness, E.	Montgomery of Alamein, V.
Carnegy of Lour, B.	Morris, L.
Chesham, L.	Mountevans, L.
Colwyn, L.	Napier and Ettrick, L.
Cope of Berkeley, L.	Northesk, E.
Crickhowell, L.	O'Cathain, B.
Dean of Harptree, L.	Park of Monmouth, B.
Denham, L.	Prior, L.
Dixon-Smith, L.	Rawlings, B.
Elton, L.	Renton, L.
Fookes, B.	Rotherwick, L.
Fraser of Carmyllie, L.	Seccombe, B.
Geddes, L.	Skelmersdale, L.
Henley, L. [Teller.]	Stewartby, L.
HolmPatrick, L.	Wilcox, B.
NOT-CONTENTS
Acton, L.	Evans of Watford, L.
Addington, L.	Falconer of Thoroton, L.
Ahmed, L.	Farrington of Ribbleton, B.
Allenby of Megiddo, V.	Fitt, L.
Alli, L.	Goodhart, L.
Amos, B.	Gordon of Strathblane, L.
Archer of Sandwell, L.	Goudie, B.
Barnett, L.	Gould of Potternewton, B.
Bassam of Brighton, L.	Grenfell, L.
Berkeley, L.	Hacking, L.
Blackstone, B.	Hamwee, B.
Blease, L.	Hanworth, V.
Bragg, L.	Hardie, L.
Brookman, L.	Hardy of Wath, L.
Brooks of Tremorfa, L.	Harris of Greenwich, L.
Burlison, L.	Harrowby, E.
Carlisle, E.	Haskel, L.
Carmichael of Kelvingrove, L.	Hayman, B.
Carter, L. [Teller.]	Hilton of Eggardon, B.
Castle of Blackburn, B.	Hogg of Cumbernauld, L.
Chandos, V.	Hollis of Heigham, B.
Christopher, L.	Hoyle, L.
Clarke of Hampstead, L.	Hughes, L.
Clinton-Davis, L.	Hughes of Woodside, L.
Cocks of Hartcliffe, L.	Hunt of Kings Heath, L.
Colville of Culross, V.	Islwyn, L.
Currie of Marylebone, L.	Jeger, B.
Darcy de Knayth, B.	Jenkins of Hillhead, L.
David, B.	Jenkins of Putney, L.
Davies of Oldham, L.	Kennet, L.
Dean of Thornton-le-Fylde, B.	Kirkhill, L.
Dholakia, L.	Lawrence, L.
Dixon, L.	Lockwood, B.
Donoughue, L.	Lofthouse of Pontefract, L.
Dormand of Easington, L.	Lovell-Davis, L.
Dubs, L.	Ludford, B.
Evans of Parkside, L.	McCarthy, L.

Macdonald of Tradeston, L,	Rodgers of Quarry Bank, L.
McIntosh of Haringey, L.	Sainsbury of Turville, L.
[Teller.]	Sawyer, L.
Mackay of Clashfern, L.	Scotland of Asthal, B.
Mackenzie of Framwellgate, L.	Sefton of Garston, L.
McNair, L.	Simon, V.
Maddock, B.	Simon of Highbury, L.
Mallalieu, B.	Smith of Gilmorehill, B.
Mar and Kellie, E.	Stoddart of Swindon, L.
Marsh, L.	Stone of Blackheath, L.
Milner of Leeds, L.	Strabolgi, L.
Molloy, L.	Symons of Vernham Dean, B.
Monkswell, L.	Taylor of Blackburn, L.
Montague of Oxford, L.	Thomas of Gresford, L.
Morris of Castle Morris, L.	Thomas of Macclesfield, L.
Murray of Epping Forest, L.	Thomas of Walliswood, B.
Nicol, B.	Thornton, B.
Orme, L.	Tordoff, L.
Patel, L	Uddin, B.
Peston, L.	Varley, L.
Pitkeathley, B.	Walker of Doncaster, L.
Plant of Highfield, L.	Warner, L.
Ponsonby of Shulbrede, L.	Weatherill, L.
Prys-Davies, L.	Wedderburn of Charlton, L.
Puttnam, L.	Wharton, B.
Ramsay of Cartvale, B.	Whitty, L.
Randall of St. Budeaux, L.	Williams of Elvel, L.
Rea, L.	Williams of Mostyn, L.
Redesdale, L.	Winston, L.
	Young of Old Scone, B.

§ Resolved in the negative, and amendment disagreed to accordingly.

§ 6.51 p.m.

§ [Amendment No. 69 not moved.]

§ [Amendment No. 70 not moved.]

§ Clause 44 [Power to restrict reporting of criminal proceedings involving persons under 18]:

§ Lord Cope of Berkeley moved Amendment No. 71:

§ Page 32, line 11, at end insert— ("( ) In determining whether to make a direction under subsection (3), the court shall consider—

(a) whether it would be in the interests of justice to do so having regard to all the circumstances of the case including, in particular the desirability of avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings;
(b) whether there is good reason to do so, and in assessing whether there is good reason neither the age nor the welfare of the child shall in itself be considered sufficient or good reason to do so, such that it overrides other relevant factors, including the public interest;
(c) whether it would be contrary to the public interest to do so, having particular regard to the special importance of the public interest in freedom of expression; and
(d) the extent to which the matter has already been made available to the public or previously published.").

§ The noble Lord said: My Lords, my noble friend Lord Astor and I have received representations from the news media and have embodied them in the amendments in the group which carry our names. The Minister indicated that since Committee he has been engaged in discussions with the news media, but I detect that they are not entirely satisfied with the reporting restrictions under Clause 44. I shall be grateful to know how matters stand in that respect.

§ Amendments Nos. 76 and 78 have a different provenance. It has been suggested to me by the Law Society of Scotland that a standard approach should be taken by the courts when dealing with a direction under Clause 44(3). A test is already established for courts to apply when they are restricting such directions. The society believes, and I think it has a good point—that it is appropriate that the courts should apply the same test when taking the final step of revoking such a direction. The same arguments apply to Amendment No. 78, which puts the same test into the Bill at a later point in the clause. I beg to move.

§ Lord Williams of Mostyn
My Lords, Amendments Nos. 71, 73 to 76 and 78 attempt to impose a more stringent test for imposing restrictions under Clause 44. Clause 44 seeks only to replicate Clause 39 of the 1933 Act for criminal cases. We believe that that worked well in its previous guise. The Government's Amendment No. 74 simply mirrors changes already made to Clause 43.
The amendment suggested by the noble Lord would completely change the emphasis of a clause which has protected juveniles since 1933. If there is reason, in the interests of justice or now in the public interest if the restrictions are substantial and unreasonable, the restrictions may be lifted or varied. I know that the amendments are well intentioned, but their consequence would be to downgrade the interests of the welfare of the child in favour of the interests of public clamour for information which we believe should be protected. That is a substantial shift in policy which runs contrary to our stated intention of protecting the most vulnerable members of society when they are involved in court proceedings.
The noble Lord asked about our discussions. They are continuing and there are difficult issues, but the thrust of the amendment would be much more than I could sensibly agree to. I therefore ask the noble Lord to withdraw it.

§ Lord Cope of Berkeley
My Lords, in the light of the Minister's reply, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Lord Cope of Berkeley moved Amendment No. 72:

§ Page 32, line 11, at end insert— ("( ) A court shall not exercise its power under subsection (3) above (or revoke or vary an excepting direction) without affording any person affected by any direction, if made, an opportunity to make representations. In this subsection a person affected by a direction includes a person whose publication might be restricted by such a direction. ").

§ The noble Lord said: My Lords, the amendment is intended to ensure that the press would be enabled to make representations to the court when considering making restrictions. However, Amendment No. 74 has the same effect. Provided that the Minister can confirm that, I shall not press it. I beg to move.

§ Lord Williams of Mostyn
My Lords, there is no reason why representations cannot be made to the court 66 within the legislation as it stands; in other words, that an interested party has the right to ensure that his point of view is adequately communicated.

§ Lord Cope of Berkeley
My Lords, in that case, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ [Amendment No. 73 not moved.]

§ Lord Williams of Mostyn moved Amendment No. 74:

§ Page 32, line 15, at end insert— ("(4A) The court or an appellate court may also by direction ("an excepting direction") dispense, to any extent specified in the excepting direction, with the restrictions imposed by a direction under subsection (3) if it is satisfied—

(a) that their effect is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and
(b) that it is in the public interest to remove or relax that restriction;

but no excepting direction shall be given under this subsection by reason only of the fact that the proceedings have been determined in any way or have been abandoned. (4B) When deciding whether to make—

(a) a direction under subsection (3) in relation to a person, or
(b) an excepting direction under subsection (4) or (4A) by virtue of which the restrictions imposed by a direction under subsection (3) would be dispensed with (to any extent) in relation to a person,

the court or (as the case may be) the appellate court shall have regard to the welfare of that person. ").

§ On Question, amendment agreed to.

§ [Amendments Nos. 75 to 79 not moved.]

§ Clause 45 [Power to restrict reports about certain adult witnesses in criminal proceedings]:

§ Lord Cope of Berkeley moved Amendment No. 80:

§ Page 33, line 12, at end insert ("and (c) that the administration of justice in the proceedings would otherwise be frustrated or rendered impracticable, ").

§ The noble Lord said: My Lords, Clause 45 takes us away from the issue of those aged under 18 and points us in the direction of vulnerable witnesses, the quality of whose evidence might be affected by the potential publicity given to their evidence. We can all think of such cases and have some sympathy with the thought behind the clause.

§ Once again, the news media were of the opinion, not entirely unfounded, that the clause went a long way in trying to achieve that objective and left few loopholes within which the public interest could be considered. Although government amendments in the group go some way to deal with the points which were raised with us, it would be useful to know how the Minister's discussions with the news media are progressing and whether we can expect further amendments to the clause. I beg to move.

§ 7 p.m.

§ Lord Williams of Mostyn
My Lords, the discussions are continuing. Much of it is fine tuning. We are mindful and I hope constantly take account of the need for open justice. That is why subsection (8) already 67 requires the court to have regard to the desirability of avoiding a substantial and unreasonable reporting restriction.
Before making a direction, the court must consider that it would be in the interests of justice to do so, given all the circumstances of the case, including the desirability of avoiding such restrictions. Subsection (9) goes on to give protection to the press because it enables the court to dispense with any restrictions to the extent it thinks it necessary if it is satisfied that it is in the interests of justice to do so.
Following my amendment, the court will be able to lift a restriction if it is unnecessary in the interests of justice; and the court is satisfied that the restrictions impose a substantial and unreasonable restriction on reporting; and that it is in the public interest to remove or relax the direction.
I believe that that gives the court a very substantial discretion indeed for the true protection of the public interest, which is not single in its facets. Although the press interest is extremely important, it is not always paramount. Other vulnerable people in our court system have an interest in the matter. I believe that we have the balance about right here. I have not closed my mind. If the media can produce an alternative form of wording which I am convinced is legitimate, my mind is open. But the press has quite substantial protection here if one looks at subsections (8), (9) and my amendment. I ask the noble Lord not to press the amendment.

§ Lord Cope of Berkeley
My Lords, I am grateful to the Minister for that response. I apologise to your Lordships that I omitted to refer specifically to Amendments Nos. 94 and 95. Those amendments result from suggestions by the Law Society of Scotland that a standard approach should be adopted by the courts in dealing with those directions.
As the Minister said, a test has been established for the courts to apply when determining whether it is appropriate to make a reporting direction. Therefore, it seemed appropriate that the court should apply the same test when taking the step of revoking or varying such a direction. Therefore, the two amendments seek to insert the "interests of justice" test into subsections (10) and (11) in the same way as it exists already in subsection (9). I wonder whether that is necessary or whether the same test would be applied automatically. However, as I said, it has been suggested to me on good legal authority that the amendments may be necessary and I thought it important to put them before your Lordships. Perhaps the Minister will respond to that.

§ Lord Williams of Mostyn
My Lords, strictly on the noble Lord's supplementary remarks on Amendments Nos. 94 and 95, we believe that the restrictions may be revoked or varied in the interests of justice implicit in subsection (10), which provides that a restriction may be revoked if the grounds for it have gone, and explicit in subsection (9), to which I referred earlier.

§ Lord Cope of Berkeley
My Lords, in that case, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ [Amendments Nos. 81 to 88 not moved.]

§ Lord Williams of Mostyn moved Amendment No. 89:

§ Page 34, line 10, leave out from ("so") to end of line 11 and insert ("and the public interest in").

§ On Question, amendment agreed to.

§ [Amendments Nos. 90 and 91 not moved.]

§ Lord Williams of Mostyn moved Amendment No. 92:

§ Page 34, line 17, at end insert ("or (b) it is satisfied—

(i) that the effect of those restrictions is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and
(ii) that it is in the public interest to remove or relax that restriction;

but no excepting direction shall be given under paragraph (b) by reason only of the fact that the proceedings have been determined in any way or have been abandoned. ").

§ On Question, amendment agreed to.

§ [Amendments Nos. 93 to 96 not moved.]

§ Clause 46 [Restrictions on reporting directions under Chapter I or II]:

§ Lord Cope of Berkeley moved Amendment No. 97:

§ Leave out Clause 46.

§ The noble Lord said: My Lords, this amendment refers to reports relating to directions under the earlier Chapters I and II. As I understand it, the clause prevents the reporting of the fact that there is a reporting restriction. It will be a little difficult to report a reporting restriction without reporting something which is restricted by the reporting restriction, if your Lordships follow me. But at the same time, it does not seem to me that it is obvious that the press should not be able to report a reporting restriction. Therefore this amendment may commend itself to your Lordships.

§ I realise that the Government believe that it is necessary to restrict reporting restrictions but I am not sure why. I beg to move.

§ Lord Williams of Mostyn
My Lords, I am grateful to the noble Lord for raising this matter. The short explanation is that the use of special measures should not be reported until after the trial is over or has been abandoned. If those matters are reported before or during the trial, there is a danger that the accused's case may be prejudiced. In many cases, that is a devastating harm to those who are already vulnerable. That is the reason for it.
However, I remind your Lordships that the court may lift or vary the extent of any restrictions imposed under this clause. Therefore, I believe it is necessary to have that prohibition until after the trial is over or has been abandoned.

§ Lord Cope of Berkeley
My Lords, the Minister did not make clear whether there is a power analogous to 69 this which covers existing restrictions on reporting. One reads frequently that there are reporting restrictions in various cases. I presume that either there is no restriction on reporting reporting restrictions or, alternatively, the courts must, fairly frequently, lift that particular ban. Perhaps the Minister will assist me by telling me whether existing reporting restrictions are covered by restriction.

§ Lord Williams of Mostyn
My Lords, the answer is that one needs to draw a distinction between reporting restrictions and a special measures direction. There is no restriction on reporting the fact that reporting restrictions have been restricted but there is a restriction on reporting the fact that a special measures order has been made. That is the difference.

§ Lord Cope of Berkeley
My Lords, I am grateful to the Minister for making that clear and I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Lord Carter
My Lords, there is general agreement that if we go straight through, we should be able to finish the Report stage no later than eight o'clock. There are a number of speakers on the Unstarred Question and it would not be fair to keep them beyond eight o'clock. If I have your Lordships' agreement that we can finish by eight o'clock or a little earlier, we should now go straight through.

§ Lord Cope of Berkeley
My Lords, we shall do our best to facilitate that.

§ Schedule 2 [Reporting restrictions: miscellaneous amendments]:

§ [Amendment No. 98 not moved.]

§ Lord Williams of Mostyn moved Amendment No. 99:

§ Page 52, leave out line 8 and insert ("For subsection (3) substitute— (3) This section—

(a) does not apply in relation to a person by virtue of subsection (1) at any time after a person has been accused of the offence, and
(b) in its application in relation to a person by virtue of subsection (2), has effect subject to any direction given under section 3. ").

§ The noble Lord said: My Lords, this amendment seeks to make it explicit that before anyone is charged with a sexual offence under the Sexual Offences (Amendment) Act 1992, no one, other than the alleged victim, can instruct that information should be published which would lead the public to identify the individual as the complainant in a sexual offence.

§ The 1992 Act contains a 'two tier' test. The first imposes reporting restrictions over the identification of a complainant of a sexual offence from the moment of allegation. The second provides for reporting restrictions over the identification of a complainant of a sexual offence after someone has been charged.

§ The Act provides that the courts are allowed a discretion to lift the restrictions which effectively anonymise the complainant only once someone has been accused of the offence. The court can lift the restrictions on the following grounds: before the trial, to encourage witnesses to come forward without whom the defence case is likely to be substantially prejudiced; and during the trial, to avoid a substantial and unreasonable restriction upon the reporting of proceedings, and to serve the public interest.

§ The Act also provides that at any time after an allegation is made the complainant himself or herself can give written permission which waives any redress against the publication of information which leads to their identification.

§ I know that the media are concerned that the amendments will have the effect that they will no longer be able to publish details of incidents in ways that actually help the police because we have widened the list of details about the complainant which should not be published if it serves to identify the complainant to the public as a complainant of a sexual offence.

§ Sometimes printing details of the victim and his or her movements at the time of the alleged offence, without disclosing that it is a sexual offence that is being investigated, can help to jog memories or encourage witnesses to come forward. When this type of coverage is organised—coverage for which the police are often most grateful—the victim may be identified, but often the exact details of the offence which occurred are not.

§ Once a suspect has been charged, and the details become known, what is known as a "jigsaw identification" occurs quite often and putting two and two together to make four is sometimes possible. In cases where there has been such collaboration between the police and the press, special care is needed in reporting the fact that a suspect has been charged. We have no intention of disturbing any arrangements between the police and press in those circumstances.

§ The amendments made to the Sexual Offences (Amendment) Act 1992, like those made to Section 49 of the Children and Young Persons Act 1933, are simply intended to bring the terminology used to describe reporting restrictions in that legislation in line with the terms used in this Bill, in other words, to bring them up to date. I believe that this is of assistance to the press in producing clarity and consistency. I beg to move.

§ On Question, amendment agreed to.

§ Lord Williams of Mostyn moved Amendment No. 100:

§ Page 52, line 27, at end insert— ("( ) In subsection (2), after paragraph (m) insert— (n) section 17 (abduction of woman by force)."").

§ The noble Lord said: Amendments Nos. 100 and 101 extend the list of offences covered by the Sexual Offences (Amendment) Act 1992 in order to protect women who are abducted against their will for the purposes of marriage or unlawful sexual intercourse from identification.

§ The amendments add Section 17 of the Sexual Offences Act 1956—of abduction of a woman by force—and Section 53 of the 1861 Offences Against the Person Act—abduction of a woman against her will— which still applies to Northern Ireland. These offences were omitted from the original Act, but they contain a sexual element which means that it is appropriate to include them. Section 17 of the Sexual Offences Act 1956 is included in the list of sexual offences for the purposes of the Bill in Clause 57(1)(b). I beg to move.

§ On Question, amendment agreed to.

§ Lord Williams of Mostyn moved Amendment No. 101:

§ Page 52, line 35, at end insert— ("( ) section 53 so far as it relates to abduction of a woman against her will;").

§ On Question, amendment agreed to.

§ 7.15 p.m.

§ Lord Williams of Mostyn moved Amendment No. 102:

§ Page 54, line 18, at end insert— ("( ) After subsection (5) insert— (5A) Where—

(a) a person is charged with an offence under this section, and
(b) the offence relates to the inclusion of any matter in a publication in contravention of section 1(1),

it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the allegation in question had been made."").

§ The noble Lord said: My Lords, this group includes Amendments Nos. 102, 104, 105, 106 and 108. Some of them are government-inspired and some opposition-inspired amendments. We want to look after and protect the most vulnerable members of society, particularly when they are children or young persons who may be involved in a criminal trial in the near future. I repeat that we remain happy to listen to representations from all those who are interested—not simply the media— about how we obtain the policy objective.

§ The Government propose to introduce two new defences for those accused of committing an offence by publishing or broadcasting in defiance of the restrictions. Amendment No. 102 in my name introduces a change to the Sexual Offences (Amendment) Act 1992 allowing a defence of not suspecting or having reason to suspect that an allegation was made.

§ To an extent that is paralleled by part of Amendment No. 106, which provides that it is a defence to show that the publisher or broadcaster did not suspect or have reason to suspect that a criminal investigation had begun. That applies in relation to Clause 43.

§ A further defence differentiates between alleged offenders and victims and witnesses. In the case of victims and witnesses, a public interest defence is included which applies when the reporting restrictions were substantial and unreasonable. That will allow greater scope for reporting news stories of national 72 importance which often, of course—I take the point made by our colleagues in the media—are fast-breaking stories.

§ The noble Lord, Lord Cope, and the noble Viscount, Lord Astor, tabled Amendment No. 105, rewording Clause 48. They might feel that the government amendments meet their points.

§ In Amendment No. 108 there is the proposal that amendments may be instituted only by consent of the Attorney-General. In all the circumstances, I do not think that the Attorney-General's personal attention in cases such as these is required. Having conversed with the Law Officers on many occasions, the burden of personal attention is already substantial.

§ I understand the concern that lies behind this amendment; in other words, that any such decision to proceed is taken only after full and serious consideration. It may be possible to ensure that the decision to prosecute is taken at a sufficiently high level in the Crown Prosecution Service to satisfy the spirit of this amendment. I am happy to tell your Lordships that I have discussed this with our colleagues in the press and I have told them that I am content to consider this in some detail.

§ The amendments that have been raised, and the thoughts behind them, have given us the opportunity to think further on the Bill. Therefore, I beg to move government Amendment No. 102 and, in due time, Amendment No. 106. On the basis of what I have said I ask the noble Lord and the noble Viscount not to move their amendments.

§ Lord Cope of Berkeley
My Lords, as the Minister says, he has taken the point to some degree. Amendments Nos. 102 and 106 in particular fulfil some of the matters that we were seeking. Sometimes it will be difficult for the news media to know that such restrictions are supposed to have started. That was one of the criticisms that we made at an earlier stage. Therefore, I am grateful to the Minister for moving Amendment No. 102 and speaking to Amendment No. 106. In those circumstances I shall not pursue the other amendments in the list.
On Amendment No. 108, if the Minister can give an assurance—not today, but in due course—that prosecutions of this nature will be taken at a higher level in the Crown Prosecution Service that will go at least some way to fulfilling the purposes of Amendment No. 108. I am not aware whether there is a precedent for that kind of arrangement, but it may be more satisfactory than drawing the Law Officers into these matters.

§ On Question, amendment agreed to.

§ Clause 48 [Offences under this Chapter]:

§ Lord Cope of Berkeley moved Amendment No. 103:

§ Page 35, line 40, leave out subsection (1) and insert— ("(1) It is an offence to include in a publication—

(a) any matter in contravention of section 43(2) or of a direction under section 44(3) or 45(2); or
(b) a report in contravention of section 46. ").

§ The noble Lord said: My Lords, the Law Society of Scotland has suggested to me that Clause 48, as it presently stands, does not actually create an offence. If there is an ambiguity in this matter it is desirable to remove it, and that is the purpose of Amendment No. 103.

§ Amendment No. 107 has the same provenance and suggests that the fines alone may not be sufficient deterrent in some cases. I am unsure about the reasoning behind this amendment, but I thought it worth placing before your Lordships for consideration. Some of the news media would be less concerned about fines than about one of their number receiving a custodial sentence. On the whole, given that the benefit to the news media of breaking such a restriction is likely to be financial, a financial penalty may be adequate. As I have said, I thought it worth putting this proposition before your Lordships, given that it has been suggested to me. I beg to move.

§ Lord Williams of Mostyn
My Lords, this group of amendments comprises Amendments Nos. 103 and 107. I cannot see the value of the proposition that Clause 48 does not provide an offence. I think that it is absolutely plain that it does create offences. If this has been suggested by the Law Society of Scotland, I think that the society has nodded on this one rare occasion because if one reads Clause 48, one sees the offences there constituted. The point is a bad one. I think that the Government's amendments make Amendment No. 103 unnecessary.
Amendment No. 107 raises the happy spectre of having editors and journalists sent to prison. I am instinctively against that— not least on the basis that one of my clients was an editor and was threatened with imprisonment and I was able to guarantee that he would not go to prison because if he had had to share a cell with someone, that would have been a cruel and unusual punishment for the person with whom he would have shared the cell! I am not sure that he was entirely convinced, but at least he was happy to receive a fine. I think that the levels of punishment are sufficient. I am happy once more to be the protagonist of the rights of the free press in indicating that I do not think that members of the press should go to prison.

§ Lord Cope of Berkeley
My Lords, in view of the Minister's forensic skill in these matters, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ [Amendments Nos. 104 and 105 not moved.]

§ Lord Williams of Mostyn moved Amendment No. 106:

§ Page 36, line 16, at end insert— ("(5A) Where—

(a) a person is charged with an offence under this section, and
(b) the offence relates to the inclusion of any matter in a publication in contravention of section 43(2),

it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the criminal investigation in question had begun. 74 (5B) Where—

(a) paragraphs (a) and (b) of subsection (5A) apply, and
(b) the contravention of section 43(2) does not involve the person by whom the offence mentioned in that provision is alleged to have been committed,

it shall be a defence to show to the satisfaction of the court that the inclusion in the publication of the matter in question was in the public interest on the ground that, to the extent that they operated to prevent that matter from being so included, the effect of the restrictions imposed by section 43(2) was to impose a substantial and unreasonable restriction on the reporting of matters connected with that offence. ").

§ On Question, amendment agreed to.

§ [Amendment No. 107 not moved.]

§ Clause 49 [Offences committed by bodies corporate]:

§ [Amendment No. 108 not moved.]

§ Lord Williams of Mostyn moved Amendment No. 108A:

§ After Clause 55, insert the following new clause— (". Schedule (Restriction on use of answers etc. obtained under compulsion), which amends enactments providing for the use of answers and statements given under compulsion so as to restrict in criminal proceedings their use in evidence against the persons giving them, shall have effect. ").

§ The noble Lord said: My Lords, the amendments in this group essentially speak for themselves. They derive from the decision of the European Court of Human Rights in the case of Saunders v. United Kingdom on 17th December 1996. Mr. Ernest Saunders had been one of the defendants in the first Guinness trial. He complained that the prosecution at his criminal trial had used statements which he had given under legal compulsion to inspectors appointed under Section 432 of the Companies Act 1985. He said that that was an infringement of his right to a fair trial under Article 6 of the convention. The court concluded that the admission of his statements in those, circumstances meant that he had been deprived of a fair trial and that there had been a violation.

§ The Government responded with the Guidance Note for Prosecutors, issued by the Attorney-General on 3rd February 1998. He said that the Government would bring forward legislation to implement the judgment when a suitable opportunity arose. A similar assurance was given to the Committee of Ministers in the Government's response. These amendments fulfil that undertaking by amending Section 434(5) of the Companies Act 1985— the point at issue in Mr. Saunders's case— and by amending a number of similar provisions. We thought that we ought to meet the principle of our undertaking by also including such amendments. I beg to move.

Viscount Colville of Culross
My Lords, I recognised this when I saw it, as being Saunders The noble Lord said that a large number of cognate matters have been taken in in the world of commerce, as may be seen. I have not had an opportunity previously to ask the Minister about this, but will he apply his mind to the situation that confronts very many motorists in this country? If they commit a moving traffic offence and the police do not stop them, the owner of the vehicle is required to say who was driving. If he says that he 75 himself was driving, he is, of course, prosecuted; if he fails to say who was driving, he is prosecuted for failing to say who was driving. I think that the relevant provision is Section 172 of the Road Traffic Act 1988. It appears to me that that is on all fours with the self-incrimination which was held by the Strasbourg court to constitute a breach of Article 6(1) both in terms of lack of a fair trial and in terms of presumption of innocence. Are there not other cases on the statute book where such provisions apply? Would it not be wise for the Government to look rather further afield now that the Human Rights Act is coming into force and given that the noble Lord used to advise his clients, in advance of it coming into force, of what would happen to them and of their possible remedies? Could the Government look a little further afield?

§ Lord Williams of Mostyn
My Lords, I can certainly do that. I am grateful to the noble Viscount for raising that question. I do not think that provisions such as that to which he refers are caught; nor, for instance, is the requirement, on pain of criminal sanction, to provide a sample of breath or blood in breathalyser cases. However, as I have said, I am grateful to the noble Viscount for asking that question, which I shall certainly have researched. The research may be extensive, but, for the moment, I commend the amendment to the House.

§ On Question, amendment agreed to.

§ Lord Cope of Berkeley moved Amendment No. 109:

§ After Clause 55, insert the following new clause—