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Criminal Justice Act 1967(Amendment)

Volume 960: debated on Wednesday 13 December 1978

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Before I call the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) to move his Ten-Minute Bill, I must remind the House that the motion for leave is expressed in general terms. Under the sub judice resolution of tie House, no mention may be made of any criminal proceedings currently under way. The Member who proposes the motion and any Member who may oppose it must confine their remarks to that general proposition.

3.43 p.m.

That leave be given to bring in a Bill to amend the Criminal Justice Act 1967 by restricting the reporting of criminal proceedings in magistrates' courts; and for connected purposes.

I declare an interest, as a Queen's counsel. The scope of my Bill is simple and I wish the House to understand what it is. It is not an assault upon the procedure for committal proceedings in England. What views I have on that matter I can discuss on another occasion. This is an attempt to prevent the reporting of committal proceedings in England and Wales before a person has either been committed or not committed or, if he is committed, before he is either convicted or acquitted by a court in this country.

If I may, Mr. Speaker, it will be proper for me to quote the recommendations of the Tucker committee of 1958, when this matter was reviewed in England. It was probably because of a comparison with the Scottish system that the wrong that could arise from the reporting of committal proceedings was there discussed. The Tucker committee made the following recommendation:

"We recommend that unless the accused has been discharegd or until the trial has ended, any report of committal proceedings should be restricted to particulars of the name of the accused, the charge, the decision of the court and the like."

The recommendation continued with these important words:

"No lesser reform would be both adequate and practicable, and this recommendation both removes the defects and preserves the merits of the existing system. It also removes the unfairness that is seen in only the prosecution case being before the public during the weeks before the trial and in the possibility of what tells against the accused being in sum reported twice and what is in his favour only once."

Lord Hailsham, as a former Lord Chancellor, has always held the view that that recommendation was right, and he has recently expressed that view. I think that all people in this country—the Scots for different reasons, because they have a different system—are dismayed by the wrongful effects that can arise from reporting in magistrates' hearings. I believe that a basic instinct of propriety and fairness in the breasts of hon. Members on both sides of the House leads hon. Members to consider that procedure wrong. It is the benefit of a comparative system of law that each of us may learn from the other. However, central to both systems is the presumption of innocence of any person accused, and anything that disturbs the presumption of innocence before a jury hears the evidence from the mouths of the witnesses is wrong.

We have in Scotland a much stricter standard of protection. Such photographs as appeared in the press of an incident two days ago would be a gross contempt of court in Scotland, because identification in any case may well be an issue. In Scotland, the courts have frequently fined newspapers and journalists—and recently a television company in England was fined about £61,000—for interfering with the course of justice by publishing before trial reference to or picture of the person accused.

It is essential that a jury should be impartial, on the presumption that the accused is innocent until proved guilty. If there is widespread publication of a case in which there is widespread interest, no family in the land, given a bowdlerised or cauterised edition of the evidence, or part of the evidence, on television or in a newspaper, will not come to a wrong, false, squinted or other impression. It is a fallacious fiction of the law that a judge may say "Put out of your mind anything that you may have read." It is not possible to put out of one's mind an impression that has been formed.

There arises the important issue of the freedom of the press. The freedom of the press is protected not as an absolute right but as a guarantee of the protection of other freedoms. It has no purpose as a freedom on its own, except for the benefit of those who write for it. In order to protect the public interest, obviously the press will seek, rightly, to publish what will be of interest to those who wish to read their newspapers. It is, in a sense, an amoral freedom in the absence of those it seeks to protect. The principle that it seeks to protect is the protection of the presumption of innocence of anybody who is accused of a crime by the State.

It is no good talking of an open society in vacuum terms. It is not a society open to abuse, open to prurience, or a miscarriage of justice; it is a freedom only if that freedom is to protect greater freedoms of those who are weaker before the assault or charge of the State.

There is no question of secrecy. If my Bill is passed any Member of the House, or any member of the press or of the public, could attend committal proceedings and any member of the press could report anything that was done or said at those proceedings after the verdict on the accused had been reached, at whatever stage it was reached.

It is said by some that the accused has a right to publicise what happens at the committal proceedings. Why should he not do so? If he is innocent he may wish to show that he is innocent. That is an argument for saying that in order to show that there is no fire one should broadcast the smoke.

It seems to me that an accused person who is guilty, and knows that he is guilty, may use that procedure in order to give the impression to the magistrates that he has nothing to hide. Furthermore, the present arrangements are subject to dangerous corruption.

If a number of accused persons are in the dock, pressure can be put upon one of them who has little to lose if convicted but much to lose if he has to pay the costs of defence. Pressure can be put upon him corruptly to lift reporting proceedings. The other accused can do nothing about that.

Secondly, an accused person might ask for the reporting restrictions to be lifted out of spite. He might be in the dock only to prevent the big fish from blaming him.

Thirdly—and this is most important—no man, for whatever motive, should be entitled to let the jury see in advance a bowdlerised form of the evidence because he thinks that it is in his interests to do so.

I believe that the present system is open to gross corruption. I believe that it does great wrong. We should follow the recommendation of the Tucker committee, which, for some reason, the Criminal Justice Act did not follow.

I have taken two oaths—one to justice, as a barrister, and one to this House. It is important that we should understand, from whatever part of the Kingdom we come, that we have a duty to justice and to liberty. I therefore urge all hon. Members to support the Bill.

3.53 p.m.

This is an extremely inappropriate time to legislate upon this subject. I cannot refer to the reasons why I think that, but every hon. Member will be aware of them. The matter may be newsworthy at present, but there is an old adage that hard cases make bad law, and this would be a bad time to legislate on this subject.

The primary consideration should be the interests of the defence in any criminal trial. I bow to the immense knowledge of the Scottish criminal law which is possessed by the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn), but I understand that in Scotland the accused is not given the whole of the evidence before the trial takes place. The object of committal proceedings in England is to ensure that the defence has all the prosecution evidence. That is the primary object, which I understand not to be the case in Scotland. In the past that procedure took place in public. We changed the law so that the defence alone could decide whether that proceeding was in public or in private.

When there is only one defendant there is no problem. The defence and the defence alone has the right to decide what the hon. and learned Member is trying to put into his Bill. One problem has been revealed. It is not unusual in criminal cases for the interests of the several defendants to conflict. The present law provides that one defendant may decide to open the case to the public, even if the other defendants do not wish to do so.

There is no possible way of totally reconciling defendants when they disagree about what should be done, but the present law that defendants alone may decide whether the prosecution evidence is made public is right, certainly where there is a single defendant. In a democracy,

Division No. 23]AYES[3.55 p.m.
Ashley, JackGoodlad, AlastairOgden, Eric
Atkinson, David (B'mouth, East)Gould, BryanOnslow, Cranley
Banks, RobertGourlay, HarryOppenheim, Mrs Sally
Beith, A. J.Gower, Sir Raymond (Barry)Page, John (Harrow West)
Berry, Hon AnthonyGraham, TedPage, Rt Hon R. Graham (Crosby)
Boothroyd, Miss BettyGrant, Anthony (Harrow C)Page, Richard (Workington)
Boscawen, Hon RobertGray, HamishPark, George
Bottomley, Rt Hon ArthurGrocott, BruceParkinson, Cecil
Bottomley, PeterHamilton, James (Bothwell)Penhaligon, David
Bowden, A. (Brighton, Kemptown)Hannam, JohnPerry, Ernest
Boyson, Dr Rhodes (Brent)Harrison, Rt Hon WalterPowell, Rt Hon J. Enoch
Bradley, TomHarvie Anderson, Rt Hon MissPrentice, Rt Hon Reg
Brotherton, MichaelHaselhurst, AlanPrice, C. (Lewisham W)
Brown, Sir Edward (Bath)Hawkins, PaulPrice, David (Eastleigh)
Buchanan, RichardHayhoe, BarneyRaison, Timothy
Buchanan-Smith, AlickHayman, Mrs HeleneRenton, Rt Hon Sir D. (Hunts)
Budgen, NickHealey, Rt Hon DenisRifkind, Malcolm
Burden, F. A.Heffer, Eric S.Roberts, Albert (Normanton)
Campbell, IanHolland, PhilipRoberts, Michael (Cardiff NW)
Canavan, DennisHome Robertson, JohnRoberts, Wyn (Conway)
Carmichael, NeilHooson, EmlynRobertson, George (Hamilton)
Churchill, W. S.Hordern, PeterRobinson, Geoffrey
Cocks, Rt Hon Michael (Bristol S)Howells, Geraint (Cardigan)Rodgers, Sir John (Sevenoaks)
Coleman, DonaldHunter, AdamRoper, John
Cook, Robin F. (Edin C)Hutchison, Michael ClarkRoss, Stephen (Isle of Wight)
Cope, JohnIrving, Charles (Cheltenham)St. John-Stevas, Norman
Costain, A. P.James, DavidSandelson, Neville
Cox, Thomas (Tooting)Johnson, James (Hull West)Shaw, Arnold (Ilford South)
Craig, Rt Hon W. (Belfast E)Jones, Dan (Burnley)Shaw, Giles (Pudsey)
Craigen, Jim (Maryhill)Kershaw, AnthonyShersby, Michael
Crawford, DouglasKilfedder, JamesShort, Mrs Renée (Wolv NE)
Crawshaw, RichardKnight, Mrs JillSilverman, Julius
Davies, Bryan (Enfield N)Knox, DavidSinclair, Sir Georgo
Dean, Joseph (Leeds West)Lamborn, HarrySkeet, T. H. H.
L'empsey, JamesLawson, NigelSmith, Cyril (Rochdale)
Dewar, DonaldLe Marchant, SpencerSnape, Peter
Dormand, J. D.Lewis, Ron (Carlisle)Spicer, Michael (S Worcester)
Douglas-Hamilton, Lord JamesLitterick, TomStainton, Keith
Drayson, BurnabyLloyd, IanStallard, A. W.
Durant, TonyLofthouse, GeoffreySteel, Rt Hon David
Eden, Rt Hon Sir JohnLoyden, EddieTaylor, Mrs Ann (Bolton W)
Ellis, John (Brigg & Scun)Mabon, Rt Hon Dr J. DicksonTaylor, R. (Croydon NW)
Evans Gwynfor (Carmarthen)McAdden, Sir StephenTaylor, Teddy (Cathcart)
Evans, loan (Aberdare)MacCormick, lainTierney, Sydney
Evans, John (Newton)Macfarlane, NellWainwright, Edwin (Dearne V)
Ewing, Mrs Winifred (Moray)MacFarquhar, RoderickWainwright, Richard (Colne V)
Fairgrieve, RussellMcKay, Alan (Penistone)Wakeham, John
Faulds, AndrewMacKay, Andrew (Stechford)Walker, Rt Hon P. (Worcester)
Fisher, Sir NigelMcNamara, KevinWatkins, David
Flannery, MartinMarshall, Jim (Leicester S)Watkinson, John
Fletcher, Alex (Edinburgh N)Mates, MichaelWeitzman, David
Foot, Rt Hon MichaelMaudling, Rt Hon ReginaldWhite, James (Pollok)
Ford, BenMellish, Rt Hon RobertWhitney, Raymond
Forman, NigelMeyer, Sir AnthonyWilley, Rt Hon Frederick
Forrester, JohnMitchell, David (Basingstoke)Williams, Alan Lee (Hornch'ch)
Fraser, Rt Hon H. (Stafford & St)Monro, HectorWinterton, Nicholas
Freud, ClementMorrison, Peter (Chester)Young, Sir G. (Ealing, Acton)
Garrett, John (Norwich S)Morton, GeorgeYounger, Hon George
George, BruceMudd, David
Gilmour, Sir John (East Fife)Murray, Rt Hon Ronald KingTELLERS FOR THE AYES:
Ginsburg, DavidNewens, StanleyMr. Nicholas Fairbairn and
Glyn, Dr AlanNewton, TonyMr. Patrick Cormack.
Goodhew, Victor

Ashton, JoeAtkinson, Norman (H'gey, Tott'ham)Bates, Alf
Atkins, Ronald (Preston N)Bagier, Gordon A. T.Bennett, Andrew (Stockport N)

surely we should err on the side of opening matters to the public if the defendants disagree.

Question put, pursuant to Standing Order No. 13 (Motions for leave to bring in Bills and nominations of Select Committees at commencement of public business):—

The House divided: Ayes 183, Noes 63.

Bidwell, SydneyHoyle, Doug (Nelson)Rodgers, Rt Hon William (Stockton)
Biffen, JohnJenkins, Hugh (Putney)Rooker, J. W.
Booth, Rt Hon AlbertKelley, RichardRoss, Rt Hon W. (Kilmarnock)
Callaghan, Jim (Middleton & P)Kerr, RussellSedgemore, Brian
Cant, R. B.Lamond, JamesSkinner, Dennis
Carlisle, MarkLewis, Arthur (Newham N)Spriggs, Leslie
Cartwright, JohnMadden, MaxStanbrook, Ivor
Cohen, StanleyMallalieu, J. P. W.Swain, Thomas
Corbett, RobinMarshall, Dr Edmund (Goole)Thomas, Ron (Bristol NW)
Cowans, HarryMaxwell-Hyslop, RobinThorne, Stan (Preston South)
Crowther, Stan (Rotherham)Maynard, Miss JoanTilley, John
Cryer, BobMolyneaux, JamesUrwin, T. W.
Davis, Clinton (Hackney C)Noble, MikeWhite, Frank R. (Bury)
Dunlop, JohnOakes, GordonWhitehead, Phillip
Dykes, HughOrbach, MauriceWilson, William (Coventry SE)
Edge, GeoffPalmer, ArthurWise, Mrs Audrey
Fernyhough, Rt Hon E.Parker, John
Garrett, W. E. (Wallsend)Parry, RobertTELLERS FOR THE NOES:
Grant, George (Morpeth)Pavitt, LaurieMr. Michael English and
Hamilton, Archibald (Epsom & Ewell)Rodgers, George (Chorley)Mr. George Gardiner.
Hardy, Peter

Question accordingly agreed to.

Bill ordered to be brought in by Mr. Nicholas Fairbairn, Mr. Patrick Cormack, Mr. William Craig, Mr. Tony Durant, Mr. Gwynfor Evans, Mr. Hugh Fraser, Mr. Emlyn Hooson, Mr. Graham Page, Mr. W. R. Rees-Davies, Mr. John Ryman and Mrs. Renée Short.
Mr. Nicholas Fairbairn accordingly presented a Bill to amend the Criminal Justice Act 1967 by restricting the reporting of criminal proceedings in magistrates' courts; and for connected purposes: And the same was read the First time; and ordered to be read a Second time upon Friday 19th January and to be printed [Bill 46.]