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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 125-ii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE PROCEDURE COMMITTEE
Sub Judice Rule of the House of Commons
Wednesday 19 January 2005 RT HON LORD GOLDSMITH QC Evidence heard in Public Questions 48 - 89
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Procedure Committee on Wednesday 19 January 2005 Members present Sir Nicholas Winterton, in the Chair Mr Iain Luke Rosemary McKenna Sir Robert Smith Mr Desmond Swayne David Wright ________________ Witnesses: Rt Hon Lord Goldsmith QC, a Member of the House of Lords, Attorney General, examined. Q48 Chairman: Attorney General, may I welcome you most warmly to the Procedure Committee? We were very grateful to you for your letter, going back to November, and also for the fact that you were very willing to come and speak to us on this important subject of the sub judice rule. It is a pleasure to have the Rt Hon the Lord Goldsmith, the Attorney General, with us this afternoon. May I put the first general question to you? In your view, as Attorney General, how well is the House's current sub judice rule working? Lord Goldsmith: May I first of all thank you for the welcome? I am pleased to be here. I am obviously here not so much on behalf of the Government as wearing my particular hat of concern for administration of justice. From that point of view, it appears to me that in general the rule is working well. That is to say, the concerns which underlie the existence of the rule are not being defeated. Q49 Chairman: Do you feel some concern about the criticism that has been levelled at the sub judice rule by experienced, leading, long-serving Members of the House of Commons? Lord Goldsmith: There is plainly a tension between the constitutional right of Parliament to debate those things that it thinks right to debate. That is a very important principle. However, there is also a principle of separation of powers, of respect for the courts, as the courts must respect Parliament, and also the issue of the prejudice to proceedings. It seems to me there are three important considerations which mitigate what otherwise might be the effect of the rule. The first is the discretion which the Speaker has in the Commons, and indeed in the House of Lords. Secondly, that it does not preclude debate on general issues which may be thrown up by cases, although I recognise that sometimes that can be a bit of a slippery slope on both sides. Thirdly, and ultimately, that the rule is temporal rather than absent. It does not prevent parliamentarians from debating particular issues, but it may delay their ability to debate those issues. Those seem to me to be three important palliatives to what otherwise the rule would appear to be. Q50 Chairman: Before I pass on to Sir Robert Smith - and I am not sure whether I am entirely in order myself in asking this question - there was a question raised on a point of order in the House today by a very senior Member, in fact the Father of the House, on the sub judice rule in respect of the court martial which is currently taking place in Osnabrück. Mr Speaker was entirely right to indicate that, as far as he was concerned, this was not a matter for him. Would you have any observation to make on that matter? Lord Goldsmith: I would respectfully agree with Mr Speaker that the question, as I understood it - and I have not seen the text, but it had been reported to me - was more a question of whether or not comments ought to have been made relating to the court martial while it was taking place. It is therefore not so much a question of the application of the sub judice rule which relates to the debate of matters in Parliament, but more an application of the rules relating to contempt of court, and contempt of court rules do apply to courts martial. It is a matter which could be of relevance to me, if I took the view that public comments made by anybody, other than in Parliament because of the immunity of Parliament, in relation to an impending court martial had the effect of risking substantial prejudice to that court martial. I could take steps in relation to it, as I can in relation to, for example, media comments on regular trials. Chairman: For clarification, just so that nobody is in any doubt, it is my understanding that the point of order was raised because of the remarks made by the Chief of the Defence Staff about the behaviour of British troops, without direct reference necessarily to the particular court martial in Osnabrück. However, I may not be entirely up to date with other matters that may have been said publicly about this particular issue. I do not want to pursue it, but I was interested because sub judice was raised in the House and this clearly is relevant to our inquiry. Q51 Sir Robert Smith: We are wanting to get some background on the current operation of the rules and how people deal with it practically. We wondered to what extent you were consulted by government departments about issues which may arise in Parliament as to whether they might or might not be sub judice. Lord Goldsmith: I think the answer to that must be very rarely, if it happens. It obviously does affect, as it were, my own activities; particularly Harriet Harman, Solicitor General and my deputy, when she is answering questions, those could quite easily relate to pending cases. I know that the Speaker and officers of the House will from time to time rule questions out, or advise Members that questions would be inappropriate to put to her because of the sub judice rule. However, I cannot particularly recall questions being put to me by other departments about whether the sub judice rule prevented a debate. I should indicate for the record that Ms Carmen Dowd is with me, and perhaps I may ask her whether she can recall any examples. No. It may happen but ---- Q52 Sir Robert Smith: So they make their own judgments and obviously the House authorities make theirs. Lord Goldsmith: Yes. Q53 Sir Robert Smith: As you mentioned earlier, this rule does not apply to debates on legislation, and can be left to the discretion of the Chair or, in the Lords, the Leader of the House. Does this cause any potential difficulties from the point of view of the courts - that obviously matters can be discussed in those exceptions? Lord Goldsmith: I am not aware that it has, and that may be because of - if I may put it this way - the very responsible way in which those discretions have been exercised. I think it is recognised that it is important to protect the court process. I suspect it is also recognised that it is often very difficult to tell, for example in the hurly-burly of debate or when something comes up very quickly, whether there may be a problem which really could affect an ongoing trial. I suspect that the House authorities would therefore probably veer on the side of caution in those circumstances and not permit that discussion to take place, at least at that stage. Q54 Sir Robert Smith: The other area we are interested in is not the actual issues in a case but maybe the conduct of a case, the cost or duration of a case that is live. Would you have any concerns if those issues were raised? Lord Goldsmith: Those can also be issues in the case. Take, for example, the time it takes. I can well understand - and I see correspondence to this effect, with which I am very sympathetic - that colleagues and Members of this House raise the question of why it is taking so long for a particular legal proceeding to be determined. As I say, I am very sympathetic to that. However, if there were a discussion about that particular issue, a debate about it, views expressed about it, that could end up potentially influencing the outcome of applications taking place in the case. There might be, for all we know, an application for an adjournment the following week. If the adjournment were refused, it might be said, "The court has only refused it because it saw that Parliament was unhappy about the time that is being taken", or somebody might try and stop the proceedings on the grounds that they have gone on too long. It also illustrates the point I was making a moment ago: it is quite difficult to know, at that moment, whether there may be an issue proceeding in court which could be affected by what is said. At a later stage, when that particular case has come to a conclusion, there is no reason at all why there should not be a debate about the length that the case took, and there may be very good reasons why that should happen. It may be very helpful that that should happen. Equally, there is no reason why there may not be a general discussion about delay, without getting into the details of the particular case. Q55 Chairman: Before I pass on to Rosemary McKenna, while I note what you have said - that you cannot recall any actual cases which have been prejudiced by anything said in the House of Commons - if your office or your assistant is able to do a little bit of research for us, if that is possible --- Lord Goldsmith: Certainly. Q56 Chairman: It would be very helpful to us to have, if you can find any, details of any cases where that case has been prejudiced by something that was said in the House of Commons. Lord Goldsmith: Certainly, I will. I was thinking of recent years, but we will have a look. I suspect that there may be cases where the courts have been concerned about comments made, but I cannot recall them at the moment. Chairman: That is most helpful. Thank you very much. Q57 Rosemary McKenna: I think that we need to look next at the justification for the rule. One of the areas we want to explore is that the reason the rule is applied is to preserve comity between the courts and Parliament. What harm do you think would be done if Parliament discussed an issue which was also before the courts? Lord Goldsmith: I think that there are two overlapping justifications for the rule. One of those is the importance of not prejudicing court proceedings. That is clear and, in this context, what is said in Parliament has potentially a particularly powerful impact: a powerful impact because it is well publicised; likely to be picked up and reported in many places; and a powerful impact because what is said in Parliament by the people's elected representatives has a particular authority. If a minister is induced to say something, I suppose it can even be said that this is the Government's view, and that may carry some authority as well. There is the other side, however, which, as you say, we put under the rubric of comity. I would describe it this way. It is important that the courts are left to get on with their work. Parliament should not be seen as an alternative forum for deciding upon rights and wrongs. It is better that they should be seen to be determined in what is the more controlled - perhaps some might say the more balanced - atmosphere of a court of law, with both sides being able to present their point of view more fully. I think that there is a real risk that, even if actually the proceedings are not prejudiced by what is said, a party who loses the debate, if there has been a debate in Parliament, may always feel aggrieved that it has happened; that he has lost the case because Parliament, in one way or another, expressed a view on what the outcome should be. That may be entirely unjustified and quite unfair on the tribunal that is deciding it, but I think that there is a real risk that that may happen. Put in constitutional terms, it is a part of the separation of powers that we leave the resolution of individual disputes to the courts, as the courts should leave to Parliament the business of legislating. Q58 Rosemary McKenna: Is there a distinction between a matter which is raised in the House and the House coming to a view on it? Lord Goldsmith: I think that it is a very difficult dividing line, because raising a matter is unlikely not to involve some judgment being expressed, or at least implicit, about the matter. Whilst if Parliament were to reach a conclusion and there were a formal vote on a particular case, that would obviously be the most serious of all, for views to be expressed, to be reported and to be supported, as they might well be, by other Members, that could still carry quite a weight with it in any event. I would therefore not regard it as a satisfactory distinction and a line that one could easily and safely draw. Q59 Mr Luke: What are the common criteria for assessing whether the coverage of active cases in newspapers constitute contempt of court? Are the courts becoming more relaxed about coverage of cases in newspapers? If that is so, should Parliament follow suit? Lord Goldsmith: Can I take it in two parts? Are the courts becoming more relaxed about what is said in newspapers about pending cases? I do not think that they are becoming more relaxed about it. I think that they remain very concerned about the potential prejudice to court proceedings by what is said in newspapers. It is also fair to say that, in some people's view, newspapers have been pushing at the boundaries of what is acceptable. However, what the courts will do, and recognise, is that if there is a substantial period of time between the report and the date of the trial, then they will operate what the courts call the fade factor, and they will say, "It is likely that the jury will have forgotten these remarks, or at least their power will have diminished". That, combined with clear directions from the judge - "You shall only take into account what has been said in court. You shall not have regard to something that has been said outside" - may mean that the courts will not actually regard a particular statement in a newspaper as being contempt of court, and may therefore not punish the newspaper with a fine or imprison the editor, which is what they can do. I would not describe it as relaxation, therefore. I would recognise that the courts are realistic about what does and does not constitute criminal conduct on the part of newspapers. As to whether that means there should be a relaxation of the approach in Parliament, I think that there are these differences. First, that what Parliament says is more powerful. Second, that there is this additional justification for the rule as far as Parliament is concerned, which we put under the comity rubric, which does not really apply to the newspapers. Third - and this is an important practical consideration - when it comes to considering whether a newspaper is guilty of contempt of court, we look at it after the event. We are able, after the event, to examine very closely what were the issues in the case. Was the very thing that was said likely to have caused a prejudice? We have long affidavits and substantial argument in relation to it. These are things which it simply is not possible to have at the time one is advising whether or not a particular question should be put or can be answered in Parliament, because there is not the time at that stage to investigate all of those circumstances. So I think that is a practical reason why, to be workable, one ends up with a different rule. 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. Q80 Chairman: I thank you for that frank and helpful response, Attorney General. Before I give you the opportunity of perhaps expressing any other views that you wish to this Committee, could I finally move to coroners' courts, which is an area in which we are interested. Inquests can last for a significant length of time. Is there an argument, in your view, for relaxing the rule in relation to coroners' courts? Lord Goldsmith: The straightforward answer to the question whether the relaxation should be to the extent of excluding coroners' courts - which I know is one suggestion which has been raised - is no, there is not a case for excluding coroners' courts. The reason for that is that the possibility of prejudice in relation to coroners' courts certainly exists. It is not merely fanciful; it can be considerable in some cases. I have had coroners bring me concerns that they have had about cases, as a result of media comment of course. The Contempt of Court Act applies to proceedings in coroners' courts for that reason. It is true to say that coroners' courts do not determine guilt or innocence, but they are determining very important questions of fact which can, in themselves, have very important consequences. They may determine whether an insurance policy pays out. They may in fact determine whether criminal proceedings take place, or whether civil proceedings take place. So they can be significant and they can be prejudiced. Sometimes they have juries: not always, but the prejudice does not simply relate to the jury or non-jury point. What I would say, however, is that I suspect there is room, on the other hand, for some clarification as to when the rule should apply in relation to coroners' courts. It is clear what the time frame is when it relates to criminal proceedings. It is from the moment of arrest. In relation to civil proceedings, it is in relation to particular proceedings. I do not think that it is so clear, however, what the point of time is in relation to inquests. It may be that it would be helpful therefore to consider what the alternatives might be. One alternative could be that the rule should apply from the moment that the inquest is opened, but not before. That could still sometimes lead to quite a protracted period of time, because inquests can start and be adjourned for a period of time. We can think of one very well known one where that has happened. So that may not be the right solution. It does occur to me, however, that there is not the same clarity of timing in relation to it and it may well be helpful therefore to indicate that there could be a time put on that, which would lessen the impact of the rule in relation to coroners' courts without excluding coroners' courts from protection of the rule. Q81 Chairman: There is nothing that you would like to say in addition to what you have said which you feel you, as Attorney General, would like to say to this Committee - either orally this afternoon or by way of a letter or written submission - before we produce our report in this matter? Lord Goldsmith: I will certainly consider, with officials, whether there is anything further that I can add. I have come here in the hope of assisting you, sir, and your colleagues in the important task which you have. It does not immediately appear to me that there is. I would just add this comment, if I may - and I refer to my own responsibilities as responsible for prosecutions and therefore regularly receiving requests from Members of both Houses, as well as members of the public, for information about cases. Both Harriet Harman and I recognise our responsibilities to Parliament and to be accountable to Parliament, and we will always do what we can to provide information. We see colleagues from both Houses, particularly Members of this House, and seek to give them as much information as we can. We also recognise that, while cases are taking place, we are constrained by what we can say. I think that the way the rule operates at the moment at least makes it easier for us to be able to respond to general concerns that there are about the operation of prosecutions in the criminal justice system, without having to refuse to answer questions on the floor of the House about pending cases - because there is a clear rule which everyone operates to. I am not by that saying it makes our job easier. I am trying to emphasise that we want to be accountable in these matters; we want to give as much information as we can. But it is quite important and helpful that there is a rule which is workable and that can be operated. Q82 Sir Robert Smith: On that issue of timing and the coroners' courts, in the contempt issue outside of Parliament is there a window in which people can say things where they would be considered contempt, and is there a point at which it is safe for someone to make comment on an apparent death? Lord Goldsmith: The Contempt of Court Act says when proceedings are active for the purposes of the Contempt of Court Act, and we can perhaps provide you with a note on that, if that would be helpful. Q83 Chairman: Yes, please. Lord Goldsmith: In practice, as I have indicated, whilst there is no science in this at all, the longer ahead of an actual proceeding a comment is made the less likely it is to be regarded as a comment which sufficiently risks prejudice to the trial as to bring criminal consequences with it. Something which is said a long time ahead of a trial, unless very memorable, probably will not result in a fine or imprisonment. Rosemary McKenna: I was reading quickly through some written evidence we have received, and it refers to the rules in the Scottish Parliament. What they have said is that we should not change our rules because the Scottish Parliament, by statute, has to have the contempt in its standing orders. What they are saying is this. "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 raise by an MSP in Scotland." Is there not already a difference between English law and Scottish law in this regard? I seem to remember that Scottish newspapers are allowed to print more than ---- Q84 Sir Robert Smith: I would say it is less. Courts are much tougher in Scotland. Lord Goldsmith: Yes, that is my understanding. Of course I have no jurisdiction whatsoever in relation to Scots law, but it is my understanding that the Scottish courts are tougher on this, and therefore they permit less to be published in the newspapers than is the practice in England and Wales. Q85 Rosemary McKenna: So to have a difference between the two Parliaments would simply be in line with the different legal system? Lord Goldsmith: I think that the question of to what extent there are differences between the two Parliaments is a matter for you, and one on which I would not comment. The question of what the impact on the Scottish courts would be is a matter for the Scottish judiciary or the Lord Advocate to comment on, if you thought that was helpful. Q86 Chairman: Can I say to the Attorney General that we have written to the Lord Advocate in Scotland, so we are well aware of the differences that exist in the legal system between these two important parts of the United Kingdom. Attorney General, are there any other issues or matters which you would like to draw to our attention while you are here giving evidence to us? Lord Goldsmith: May I take advice for a moment? Q87 Chairman: Of course. Lord Goldsmith: The suggestion that is being made to me is that we know that one of the questions you had at one stage related to where there was a difference between jury and non-jury, and I do not know whether it is an issue that it would be helpful for me to say a word about. Q88 Chairman: It would be most helpful. Lord Goldsmith: Obviously, when it comes to prejudice, there can be a difference between a jury and a non-jury trial, because we give more credence to certain tribunals as being able to resist outside influence; but I do not myself think for a moment that means the rule should be a different rule in relation to jury and non-jury - for two reasons. First, because there are these broader questions of comity, which apply at least as much to a non-jury trial as they do to a jury trial. Indeed, there may even be some who would take the view that if a litigant receives an adverse decision following strong comment in Parliament - and it is a judge who has done it rather than a jury - they may be even more inclined to suspect that it is the influence of Parliament. I do not know. The other reason is that prejudice in any event is not just about the effect on the jury. Comment can affect witnesses, for example, and witnesses may be either encouraged or discouraged from coming forward by public comment which is made in relation to the cases, or they may, consciously or subconsciously, tailor the content of their evidence as a result of what has been said publicly about the case. The parties may also be affected by what is said, in an extreme case. The parties may feel themselves under great pressure to settle the case as a result of apparent condemnation of their conduct, or the justice of the other side's case. I therefore do not think that the fact that there is a jury makes all the difference at all as to whether there is prejudice, and I do not think that the question of prejudice to court proceedings, as I understand the sub judice rule, is the entirety of the rule in any event. Q89 Chairman: Thank you. Do any of my colleagues wish to put any further questions to the Attorney General? It appears not. On behalf of the Procedure Committee, Attorney General, may I thank you very much indeed for coming to give your time and to answer so helpfully the questions that have been put to you as part of this inquiry, and also to your colleague for listening, taking notes, and perhaps silently adding one or two issues which we were very interested to hear from you about. Lord Goldsmith: Sir Nicholas, thank you very much indeed. |