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Mr. Boateng: I am grateful to the hon. Gentleman. His colloquialisms always get through to me, but I hope that he does not expect me to put my hands up and say, ``It's a fair cop, guv, you've caught me bang to rights'', as many in the hon. Gentleman's past life must have done, and as he faithfully recorded in his policeman's notebook. Call me old fashioned, but I do not intend to go down that road, at least, not this morning.
The hon. Gentleman makes a serious point; it is right that we should consider the defences in detail. Clause 49 describes a number of defences against conviction for breach of reporting restrictions in clauses 43 to 46, and I shall take the hon. Gentleman through them. The clause provides that it shall be a defence for anyone charged under the clause
``to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication included . . .''--
the material--
That would include not knowing that the material in question related to an alleged offence or witness or--this is the point made by the hon. Member for Ryedale--that a criminal investigation had begun. The criminal investigation is referred to in clause 43(12)(b) as the investigation of an offence
``with a view to it being ascertained whether a person should be charged with the offence''.
It must be established that there has been an offence and that the police or another investigating authority are aware of it. It will be a defence to say, ``Well, I didn't know that a criminal investigation had begun''.
We want to emphasise that the Government do not intend to make it impossible to broadcast or publish live or contemporaneous reports that inadvertently identify children involved in an incident. As the hon. Members for Ryedale and for Colchester know--they referred to the role of local newspapers--such reports can be of positive public benefit, especially when more information is forthcoming as a result, and when the information is given to the public in a way that minimises the chances of unnecessary public concern or hysteria. It obviously helps when more information can be given.
When the publication identifies a young person as the victim of or witness to an offence which is not a sexual offence, it should be a defence to show that because of the public interest of the report, as defined in clause 51, the effect of the restrictions was such as to impose a substantial and unreasonable restriction on reporting. There is thus a sensitivity and an awareness about the practicalities of doing one's job in the media.
It shall also be a defence for those who publish material that identifies a young person as a victim of, or witness to, an offence which is not a sexual offence and in which a young person is aged under 16, to show that written consent to the inclusion of the material had been given. Written consent will be an effective defence against conviction only if a number of conditions, which are in the Bill, are satisfied.
Mr. Llwyd: Is the standard of proof in the defences that the Minister is helpfully elucidating the standard criminal proof of beyond reasonable doubt or on the balance of probability?
Mr. Boateng: A defence is being raised, so it is for the prosecution to prove its case in the ordinary way, so that the jury is sure.
Mr. Llwyd: I am latching on to the wording of subsection (2), which states that
``it shall be a defence to prove''.
To what standard does it have to be proved? The words in the subsection could be misleading.
Mr. Boateng: I hope that the Committee is not misled. The defence is to be established by the defendant on the balance of probabilities; the judge or jury do not have to be sure.
For those reasons, I hope that the Committee will allow the clause to stand part of the Bill. The measure contains adequate defences and protections for the freedom of the media and to avoid the traps and pitfalls that Opposition Members have outlined.
Question put and agreed to.
Clause 49, as amended, ordered to stand part of the Bill.
Clause 50 ordered to stand part of the Bill.
Clause 51
Decisions as to public interest for purposes of Chapter IV
Amendment made: No. 94, in page 40, line 43, leave out
`meaning given by section 49(9)'
and insert
`same meaning as it has for the purposes of section 49'.--[Mr. Boateng.]
Clause 51, as amended, ordered to stand part of the Bill.
Clause 52
Competence of witnesses to give evidence
Mr. Boateng: I beg to move amendment No. 95, in page 41, line 8, after `not' insert `a person who is'.
This is a minor amendment to ensure that the clause does not inadvertently allow somebody who is not competent to give evidence the opportunity to do so.
I am grateful to Professor Colin Tapper of Magdalen college, Oxford for suggesting to us that the formula could result in someone who is able to understand questions put by the court but who cannot give answers that can be understood being deemed as competent. That would be unfortunate and it is not what we intend.
We want to ensure that as many people as possible are able to give evidence at trial and we do not want to set unfair hurdles for them. The Bill, therefore, presumes that everyone is competent unless it is shown that he or she is not. I am sure that members of the Committee share that presumption about their colleagues and opponents. In our proceedings so far, we have not been disappointed.
To be competent a witness must, in the Government's view, be able to understand questions put to him and to give answers that can be understood by the court. This small amendment makes that point clear.
Amendment agreed to.
Clause 52, as amended, ordered to stand part of the Bill.
Clauses 53 to 58 ordered to stand part of the Bill.
Schedule 3
RESTRICTION ON USE OF ANSWERS ETC OBTAINED UNDER COMPULSION
The Parliamentary Under-Secretary of State for the Home Department (Mr. George Howarth): I beg to move amendment No. 86, in page 61, line 40, at end insert--
`( ) an offence which is--
(i) created by regulations made under any such rules, and
(ii) designated for the purposes of this subsection by such regulations;'.
The Chairman: With this it will be convenient to take Government amendments Nos. 87 to 93.
Mr. Howarth: Members of the Committee will recall that the schedule amends several pieces of legislation to bring them into line with the European Court of Human Rights judgment in the Saunders case.
The schedule will ensure that answers given pursuant to a power of compulsion under the amended enactments cannot be used by the prosecution in subsequent criminal proceedings except for very limited purposes--specifically for offences, such as perjury, arising out of the giving of evidence itself. They are characterised as sanction offences and use of the power of compulsion for these proceedings is permissible under the European convention on human rights because in answering truthfully the interviewee does not incriminate himself in relation to such an offence.
The Bill already contains several exceptions in relation to the Perjury Act 1911, the Insolvency Act 1986, the Company Directors Disqualification Act 1986 and their Scottish and Northern Ireland equivalents. The amendment will ensure that all potential sanction offences are covered.
The amendments are technical. They are intended to complete, in the insolvency area, the exceptions to the prohibition that the schedule imposes on the prosecution using answers given under compulsion in a criminal trial. The exceptions are necessary for the very limited purposes of proceedings, such as perjury proceedings, arising out of the giving of evidence that can be characterised as ``sanction'' offences.
Amendment Nos. 86 and 90 provide for exceptions to be made in respect of relevant offences created by regulations made by the Secretary of State under rules in the Insolvency Act 1986. Amendment Nos. 87 and 88 provide for exceptions in relation to the Perjury Act 1911 to be extended to include section 1 of that Act, which deals with perjury committed in judicial proceedings. Amendments Nos. 89 to 93 are necessary corresponding amendments for Northern Ireland.
I hope that my explanation means that the Committee will feel able, in its heart, to accept the amendments.
Mr. Greenway: The Minister asked the Committee to have the heart to support the amendments, so we must be getting into the home straight.
I warmly welcome the changes. I shall respond with as much grace as the Minister showed when he made his request, but I would like to ask him a question. Yesterday, the House gave an unopposed Second Reading to the Financial Services and Markets Bill, and such is the onerous work load of Opposition Members that I spoke in the debate and at considerable length. I also have interests in the insurance industry.
12 noon
There was a huge debate about the European convention on human rights implications of the Financial Services and Markets Bill, and I do not doubt that members of the Committee have had representations on that. Will the Under-Secretary give us an assurance that he will take an interest to ensure that the drafting of that Bill meets the convention's requirements? The legislation that the schedule amends is virtually identical to aspects of that Bill, which will create a number of draconian offences. The opportunity that individuals have to incriminate themselves because of the information that they will be required to give to comply with the provisions of that Bill will be significant, and the circumstances in which such information could be used in a criminal trial will be restricted. Therefore, will the Minister assure us that the provisions of the schedule are incorporated in the Financial Services and Markets Bill before it completes its passage through the House?
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