Examination of Witness (Questions 60-79)
19 JANUARY 2005
RT HON
LORD GOLDSMITH
QC
Q60 Mr Luke: It is a perception held
by some colleagues that Parliament is the only place in which
a matter cannot be discussed, when it is being talked about throughout
the rest of the UK. Is that perception justified?
Lord Goldsmith: I understand the
point, and I understand also that part of it is whether some broadcast
media are going further than they would have done in the past.
If they do it at a time which is close to the trial itself, then
they are likely to be severely reprimanded, or worse, for doing
it. But I come back to this: however influential a newspaper,
it does not have the same authority, nor is likely to be as widely
reported, as what is said in Parliament. Secondly, there is a
special relationship between Parliament and the courts which the
newspapers do not have. Parliament is the most powerful and important
branch of government and it has a relationship with and respect
for the courts, as it expects the courts to have respect for it.
I think that results in a special responsibility and perhaps sometimes,
you may feel, self-denial.
Q61 Chairman: May I go back to the matter
that was raised, without specific reference, at the beginning
of our meeting? Is it your advice, Attorney General, that Members
of Parliament should refrain from making outspoken reference to
matters relating to the court martial in Osnabrück? I know
that it is borderline to this, but you talked about contempt of
court and the sub judice rule and that there was a close
connection between the two. I am just seeking to clarify this
matter.
Lord Goldsmith: May I distinguish
two things? I would not presume to take it upon myself to advise
Members of Parliament how they should act in relation to the sub
judice rule. That is a matter for the House authorities and
for Mr Speaker to police. I give my views on how it works and
the significance of it, but it is for them to determine how the
rule should operate. As to the contempt of court position, where
I do have a particular responsibility, I think it is important
for everybody—whether it is Members of Parliament, newspapers,
or commentators—to recognise that it is a fundamental part
of our principles that people should have a fair trial. That means
a trial which is determined in accordance with the evidence which
is presented before the tribunal. That does require a responsible
attitude to comment which is made—not to the reporting of
what happened, which it is right that people should know, but
comment on what is taking place—if there is a real risk
that might otherwise prejudice the proceedings. Quite how far
one can properly go in certain circumstances is a different matter,
as I understand that people will, where there are matters of great
public concern, want to say something about it.
Chairman: Attorney General, I thank you
on behalf of the Committee for that very sound advice.
Q62 Sir Robert Smith: On a related issue
to the press and what is happening in Parliament, what constraints
are there on ministers outside Parliament as to how they can comment
on court cases?
Lord Goldsmith: Ministers, outside
Parliament, are subject to the same rules as to contempt of court
as anyone else.
Q63 Sir Robert Smith: So the ministerial
code does not have any guidance, as such?
Lord Goldsmith: I do not immediately
recall anything specific, but there may be.
Q64 Sir Robert Smith: Outside Parliament,
it is a straightforward contempt of court issue?
Lord Goldsmith: Yes, that is how
I would view it. If there is anything in the code, we will let
you know.
Q65 Sir Robert Smith: Some colleagues
have raised the issue that ministers may, in a public arena, make
comment on an arrest or some other matter which then, because
of the House's sub judice rule, the minister cannot be
questioned on.
Lord Goldsmith: I am smiling slightly,
because I am not terribly happy if my ministerial colleagues comment
on those things—but for a different reason. There has certainly
been one occasion where comments which were made by a ministerial
colleague, at the time of the arrest, did give rise to my having
to consider whether those comments were themselves a contempt
of court. I concluded that they were not, particularly given the
passage of time between the comments and the likely trial; but
I had to look at it for that reason.
Q66 Chairman: Is Sir Robert correct that
if a minister says something outside the House, which Members
of the House would then wish to raise with that minister on the
floor of the House, they could be ruled out of order by the Speaker
under the sub judice rule?
Lord Goldsmith: I think that must
be right, as a matter of the application of the rule. Whether
the Speaker would take the view in a particular case that his
discretion should be exercised to allow some questioning would
be for him to consider. I was rather indicating that there might
be a case where I would be really unhappy about any further debate
about it, because it might simply—
Q67 Sir Robert Smith: The ideal would
be for the minister not to tread too far, outside Parliament,
on the courts?
Lord Goldsmith: Yes.
Chairman: I think that was very firmly
explicit in what the Attorney General said.
Q68 David Wright: I would like to touch
briefly on select committees. They were brought within the scope
of the rule in 2001, although in principle the rule had very much
applied in terms of select committee proceedings.
Lord Goldsmith: Yes.
Q69 David Wright: Are you aware of any
issues that have arisen through select committee hearings which
have created difficulties for the courts?
Lord Goldsmith: I am, but I think
the other way round: where there has been an issue about whether
or not the courts are able to refer to and rely upon things which
have been said in select committees which are relevant to court
cases taking place.
Q70 David Wright: Can you expand slightly
on that, if you are able to?
Lord Goldsmith: It is quite different
from the sub judice rule. It is to do with Parliament's
privilege and Article 9. I think that, in the course of consideration
of the Corruption Bill, which was looked at by a select committee,
this was one of the issues noted. The draft Bill included the
ability for the House to lift privilege in certain circumstances,
and one of the reasons for that was so that it might be possible
in a court of law to rely upon what had been said in a select
committee as part of the court proceedings. In fact, the instance
I have in mind was not something that was said by a Member; it
was something that was said by a witness.
Q71 David Wright: That is a really difficult
issue.
Lord Goldsmith: It is.
Q72 David Wright: Because a very determined
witness can come before a select committee and manufacture an
opportunity for themselves to say something, on the record in
a select committee, that can then influence other proceedings.
So there have been examples potentially where that has happened?
Lord Goldsmith: Yes.
Q73 David Wright: Do you think it is
an area where we need better guidance for those in the chair?
You said earlier that you would not want to dictate to the Members
of Parliament how they handle themselves, but perhaps guidance
to witnesses coming in—to caution them about the role that
they are playing as a witness, and how their evidence may be taken
on in other environments?
Lord Goldsmith: Perhaps I may
put it this way. I am sure that if you, as a result of your consideration
of this, took the view that the system was not working in select
committees as well as it should do, and that chairmen of select
committees might benefit from some guidance as to how they operated
it to prevent people exploiting it, it would be welcome. However,
I think that it is for you to say. Again, I think that I would
not want to be in a position to say that I know enough examples
of potential abuse to suggest that is something that needs to
be done.
Q74 Chairman: If such advice or guidance
were to be given to chairmen of select committees, or for that
matter members of select committees—not just the chairman,
although the chairman has the authority from the chair—who
would give that advice? The Clerk of the House? Would you, sir,
as the Attorney General in the Government? Who do you suggest
would give that advice? Perhaps I may put this direct question
to you, going a bit further than my colleague David Wright: do
you think that such advice is necessary?
Lord Goldsmith: It certainly would
not be for me, it would not be for the Government; it is a House
matter. I would think that it is a matter for the House authorities
and for the Speaker to determine. I mentioned the chairmen of
select committees because I understood that the particular concerns
were the witnesses coming, who might, as it were, be taking the
opportunity to abuse the position and the privilege that they
were provided with, and therefore it would be for the chairman
to control the proceedings, with the assistance of the clerk.
However, I do not have the evidence of abuse which would justify
my saying to you in this Committee that I think it is necessary
that such guidance should be given. That is why I left it simply
as saying that if you considered, having looked at this as you
are doing, that there was a problem in relation to it, it seems
to me it would be a proper matter for consideration as to whether
you would recommend that advice should be given so as to control
that; but that is a very mild recommendation—and intended
to be so.
Chairman: Thank you very much. Can I
now pass the questioning to Desmond Swayne?
Q75 Mr Swayne: How closely does an issue
have to relate to a case before the rule bites? Is it the case
that, taken literally, the rule only applies if you mention the
court case by name?
Lord Goldsmith: Again, I think
that is not a question for me. I think that it is a question for
the House authorities, because they are the ones who have to enforce
and police the rule. I am sure that they have such a degree of
experience in policing it that they will spot—
Q76 Mr Swayne: Let us take a for instance,
if we may. Let us say that, at a time when there was going through
the courts a case not dissimilar from the Tony Martin issue, and
at that time Parliament was discussing legislation to give householders
more scope to defend their property, changing the definition of
"reasonable force" to something perhaps stronger. My
understanding is that would not be sub judice because it
was legislation, and legislation is exempt. But let us say that
someone had wished to raise an Adjournment or a Question, or were
asking questions across the floor of the House, as indeed took
place not more than three weeks ago on this very issue, that could
potentially fall foul of the sub judice—but the actual
issue would not differ. I cannot see why the principle should
be exempt with respect to legislation but not so with respect
to Questions or Adjournments. What is the difference in principle
between these different matters of business before the House?
Lord Goldsmith: I think that there
is a difference. If legislation were being proposed—and,
if I may say, I absolutely agree with you that if it was a question
of legislation then the House would be free to debate the merits
of the legislation—even in those circumstances, I would
expect that Members and ministers would not identify a particular
case and say, " . . . and the case which is taking place
in the courts at the moment of Tony Martin is one which demonstrates
why we need to change the law". They might all know what
they are talking about, but I do not think they would say that.
The difference would be because legislation, whilst referring
to the present state of the law, is actually talking about changing
the law. It is not as directly saying what the answer ought to
be on the existing law in this case. Saying the law ought to be
changed is not saying to the jury in the Tony Martin case, as
it were, putting it quite crudely, "You ought to convict
him" or "You ought to acquit him"—because
Parliament is talking about what the law might be in the future,
not what the law is at the moment which applies to that particular
case. So I think that there is a difference in principle, and
in fact too.
Q77 Chairman: On the specific case that
Major Swayne has raised, the Tony Martin case, the debate that
was going on and the reference made by somebody, who perhaps regretted
what Mr Martin had done, about the outrageous event of shooting
a man in the back—would that be, without, as it were, making
reference to the name of the individual in court, breaching the
sub judice rule?
Lord Goldsmith: Again, I think
that is probably not a question for me to answer. I think that
would be a question for the House and the House authorities as
to whether someone had breached the rule.
Q78 Chairman: Because, as I have just
had it whispered in my ear, would such a comment prejudice the
case before the court?
Lord Goldsmith: I think that is
a different question. Whether it would do so would depend on all
the circumstances. I can see that a comment which is made where
it is clear that, even without reference to the name of the case,
it is referring to the case—where the issue in the case
is whether or not the conduct was reasonable or not reasonable—for
someone strongly to express the view that it was unreasonable
by using the word "outrageous" could prejudice the case.
What attitude the trial judge would take in relation to that is
a different matter. He might take the view that he did not think
it was going to influence; he might take the view that he wants
to know which members of the jury, if any, had heard that remark.
Sometimes, of course, we end up in the position where a case has
to be stopped because the judge is not satisfied that the trial
can continue. I do not mean as a result of a comment by an MP;
I mean as a result perhaps of comment by a newspaper from time
to time—which they will have to judge. It would depend on
the circumstances. However, I think that it is a different question
from whether or not that would be a breach of the rule and whether,
if someone had been reminded of the sub judice rule and
then made that comment in the course of debate, exception would
be taken to it. Without reference to naming the cases, I think
that the matter would not be for me to comment but for the House
to consider whether that was breaching the rule in those circumstances.
Q79 Chairman: I am tempted, and I am
going to be tempted, to go back again to the case that we have
referred to two or three times. Do you think somebody appearing
in public, condemning very openly and forcibly any actions that
might be taken against prisoners so closely associated with the
individual who is subject of a court martial, is going close to
being contempt of court?
Lord Goldsmith: It is my responsibility
to consider whether comments constitute contempt of court. If
I take the view that they do, and it is appropriate to do so,
then I may take action in relation to them. So I am always reluctant
to express views hypothetically or in advance of a formal ruling,
if I am called upon or consider it right to do so in relation
to particular comments. I would not like that to be taken as indicating
that I have taken one view or another in relation to comments
which are made. I made the general observation before—it
is important that people should have a fair trial and it is important
that it should not be prejudiced. Tempting though it may be, there
is a line beyond which people ought not to cross in commenting
on what is taking place.
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