Memorandum from the Faculty of Advocates
INTRODUCTION
On 4 November 2004 the Clerk to the House of
Commons' Procedure Committee wrote to the Dean of the Faculty
of Advocates indicating that the Procedure Committee had decided
to hold an inquiry into the sub judice rule in the House
of Commons. It was indicated that the decision arose following
two instances where the rule had prevented comments and questions
into ongoing court proceedings. It was also indicated that the
Committee's intention was to consider general principles of the
sub judice rule. The Committee invited views on the subject.
MATTERS RAISED
A list of possible topics to be considered by
the Committee were listed in the Committee's letter. These were:
(i) What is the purpose of the rule: preventing
prejudicing of court proceedings or comity between courts and
Parliament?
(ii) If the rule is to prevent prejudice,
is there a distinction between jury and non-jury proceedings?
(iii) Should the rule be stricter than that
applying elsewhere, eg to newspapers?
(iv) How closely does the matter have to
relate to a case to fall within the rule?
(v) Is the "cases . . . shall not be
referred to" provision too restrictive? Would it be justifiable
to refer to a case in terms of how long it is taking, rather than
on its merits?
(vi) Should coroners' courts be excluded,
on the basis of nobody being on trial, and proceedings being protracted?
RESPONSE
Before commenting on these individual points,
we note that the Resolution of the House of Commons which relates
to matters sub judice was passed by the House on 15 November
2001. We also note that this Resolution followed upon an extensive
inquiry by the Joint Committee on Parliamentary Privilege whose
report was ordered to be printed on 30 March 1999 (HC 214 of 1998-99).
We are not aware of any developments since their report and recommendations
which would require the general approach to the matter of sub
judice to be reconsidered.
(i) The purpose of the rule
The Joint Committee identified three different
aspects of the rule. Firstly, the rule was required in order to
prevent the right to a fair trial being prejudiced. Secondly,
the rule was necessary in order to recognise the different roles
of Parliament and the courts. Thirdly, it was "important
constitutionally, and essential for public confidence, that the
judiciary should be seen to be independent of political pressures"
(paragraph 192). We agree that the sub judice rule is necessary
and serves each of these purposes.
(ii) If the rule is to prevent prejudice,
is there a distinction between jury and non-jury proceedings?
As already noted, we do not consider that the
purpose of the rule is purely to prevent prejudice. If
the other purposes of the rule are to be met, there is no reason
to draw a distinction between jury and non-jury proceedings. We
note that the Joint Committee rejected such an argument (see paragraph
192). We agree with that approach. In any event, the introduction
of a distinction between jury and non-jury proceedings risks confusion.
(iii) Should the rule be stricter than
that applying elsewhere, eg to newspapers?
It may not be helpful to make comparisons between
the rules applying to the media and those applying to Parliament.
Where the media transgress the rules applicable to them, the courts
can deal with the matter by a finding of contempt of court. Further,
the weight that is accorded to a statement or comment made in
Parliament may be greater than that accorded to that in the media.
There may be constitutional reasons why Parliament should operate
a stricter sub judice rule than that applying to the media,
for the reasons mentioned in (i) above.
(iv) How closely does the matter have
to relate to a case to fall within the rule?
This is a matter which we consider must be left
by necessity to the discretion of the Speaker. It is not possible
to formulate hard and fast rules as each case will depend on its
own facts and circumstances. If the matter is one which the Speaker
considers may pose a risk of prejudice to the proceedings or would
appear to an independent observer to be an attempt to impede or
interfere in the course of justice, then the matter is, we would
suggest, sufficiently close to fall within the rule.
(v) Is the "cases . . . shall
not be referred to" provision too restrictive? Would it be
justifiable to refer to a case in terms of how long it is taking,
rather than on its merits?
We consider that some care should be taken in
reviewing this aspect. The reference to a case taking too long
may also be seen as an interference in the course of justice.
It may be seen as a criticism, express or implied, of the parties
involved, their legal team, or indeed the judge. In slightly different
circumstances, recently in Scotland a judge convened a special
hearing where an MSP had written to him asking on behalf of his
constituent (the pursuer in the litigation) when his decision
was to be issued. That led to reporting in the press of the judge's
comments about what he perceived to be an attempt to subject him
to political pressure (reported in The Herald 1/12/04).
Delay may be a legitimate cause for concern
in some cases but the length of time a case takes is often bound
up with the nature and complexity of the subject matter. Meaningful
comment on delay will almost always depend on a full understanding
of the background circumstances, the facts, the legal position
and administrative practicalities. It is not reasonable to make
simple criticisms of delay when a full explanation of the length
of time taken necessitates consideration of the merits of the
case.
(vi) Should coroners' courts be excluded,
on the basis of nobody being on trial, and proceedings being protracted?
We can make no comment on this matter as coroners'
courts do not sit in Scotland. We do note, however, that the Resolution
refers at 3(a) to both Coroners' Courts and Fatal Accident Inquiries.
We see no reason to exclude Fatal Accident Inquiries from the
rule. Although nobody is on trial, there are still interests which
may be prejudiced and witnesses to Inquiries who may be influenced.
We do not consider protracted proceedings to be a particular problem
in relation to Fatal Accident Inquiries.
We would wish to make a further point concerning
compatibility with the sub judice rule of the Scottish
Parliament. The Procedure Committee will be aware that the Scottish
Parliament is bound by statute to have a sub judice rule
(paragraph 1(1)(a) of Schedule 3 to the Scotland Act 1998) and
that its Standing Orders contain the appropriate provision. Although,
of course, it is a different body, it would be highly desirable
for the rules in the Scottish Parliament and in the Westminster
Parliament to be consistent. It would be most unsatisfactory for
an MP to be able to raise questions in Parliament in relation
to a matter before a Scottish court when such questions could
not be raised by an MSP in Scotland.
January 2005
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