Letter to the Chairman from The Rt Hon
The Lord Cullen of Whitekirk, President of the Court of Session
Thank you for your letter of 4 November 2004
inviting views on the current sub judice rule.
I would like to offer the following observations
on the rule.
The need for a sub judice rule seems
to me to rest on two important considerations. First, the need
to minimise the risk of the views of jurors being influenced by
the discussion of the case in the legislature, and by the ensuing
publicity which that discussion might attract. Account should
also be taken of the effect on potential witnesses, whether they
are to give evidence before a jury or before a judge. In these
respects the point of the rule would have much in common with
the object of the law relating to the contempt of court. Secondly,
and more fundamentally, there is a need to avoid trenching on
the independence of the judiciary. I am not so much concerned
with a risk of the views of judges being influenced by what is
said in the legislature. I am confident that judges can be expected
to be robustly independent in arriving at their decisions. I am
more concerned with the point that it is fundamentally inappropriate
that the legislature should be treated as the alternative forum
for the discussion of the issues in a pending court case. That
would tend to blur the separation of functions, and to undermine
public confidence in the judiciary.
As regards the formulation of a sub judice
rule, I agree with the view that it should be expressed in such
a way as to be certain in its application. The main provisions
should be subject to a power to override in exceptional circumstances.
It may be of interest if I draw to your attention
that, for the Scottish Parliament, the position is regulated by
section 22 of, and paragraph 1(1) of Schedule 3 to, the Scotland
Act 1998. Rule 7.5 of the current standing orders of the Scottish
Parliament provides:
"1. A member may not in the proceedings
of the Parliament refer to any matter in relation to which legal
proceedings are active except to the extent permitted by the Presiding
Officer.
2. For the purposes of paragraph 1,
legal proceedings are active in relation to a matter if they are
active for the purposes of section 2 of the Contempt of Court
Act 1981 (c 49).
3. Where any member refers to a matter
in relation to which legal proceedings are active the Presiding
Officer may order that member not to do so.
4. Nothing in this rule shall prevent
the Parliament from considering legislation."
I hope that this information is useful.
January 2005
| 
