Memorandum from the Bar Council (P 40)
INTRODUCTION
1. On 4 April 2005 the Procedure Committee
published a Report entitled The sub judice rule of the
House of Commons ("the Report").[9]
In summary, the Committee did not recommend changes to the sub
judice rule, although it expressed some concern about the
effect of the rule in the case of coroners' court proceedings,
where (as the Committee observed) delay in the proceedings may
inhibit discussion of a matter of public concern for long periods.
2. The Bar Council submitted written evidence
to the Committee in March 2005.[10]
That evidence considered the strict liability rule established
by the Contempt of Court Act 1981, and the purpose and application
of the Parliamentary sub judice rule. The view of the Bar
Council was, and remains, that the sub judice rule serves
a number of valuable purposes and should be maintained substantially
in its present form. However, some reservations were expressed
by the Bar Council about the effect of the sub judice rule
on coroners' proceedings.
3. The Procedure Committee has now decided to
hold an inquiry into the application of the sub judice
rule of the House of Commons to proceedings in coroners' courts.
A press notice dated 10 November 2005 asks that written submissions
to the inquiry should be guided by the following particular points
for consideration:
(1) Should there be a separate sub judice
rule for coroners' inquests?
(2) Should the point at which coroners'
inquests become "active" for the purpose of the rule
be redefined?
(3) Is the Chair's discretion to disapply
the sub judice rule where necessary an effective mechanism?
How does it operate in select committee meetings?
(4) How do other Parliaments or legislatures
apply the sub judice rule to similar proceedings?
THE PARLIAMENTARY
SUB JUDICE
RULE
4. It is understood that the rule in its present
form stems from a resolution of the House of Commons dated 15
November 2001,[11]
by which it was determined that (subject to the discretion of
the Chair and to the right of the House to legislate on any matter
or to discuss delegated legislation) the House should not in its
proceedings (including proceedings of committees of the House)
refer in any motion, debate or question to cases in which proceedings
are active in the United Kingdom. However, where a ministerial
decision is in question, or where in the opinion of the Chair
a case concerns issues of national importance such as the economy,
public order or the essential services, reference may be made
to the issues or the case in motions, debates or questions, even
if proceedings are active.
5. The resolution defines when proceedings are
active for its purposes. That definition embraces criminal proceedings
after charge or summons until verdict, sentence or discontinuance,
civil proceedings after arrangements for trial have been made
until judgment or discontinuance (any application in or for the
purposes of civil proceedings being treated as a distinct proceeding),
and appellate proceedings from application for leave to appeal
or notice of appeal until judgment or discontinuance. The proceedings
of coroners' courts and fatal accident inquiries are treated as
criminal proceedings. With one exception considered below (see
paragraphs 29 and 30), this definition broadly recalls Schedule
1 of the Contempt of Court Act 1981 ("the 1981 Act"),
which determines when proceedings become active for the purposes
of section 2 of that Act.
6. In 1999, the Joint Committee on Parliamentary
Privilege, recommending that the two Houses should adopt a resolution
on sub judice in terms set out in its report, suggested
that the rule served three purposes:[12]
(i) To prevent prejudice to fair trials, particularly
criminal trials;
(ii) To recognise the different roles of Parliament
and the courts, so as to ensure that Parliament did not permit
itself to become an alternative forum for canvassing the rights
and wrongs of issues being considered by the courts;
(iii) To ensure that the judiciary is seen to
be independent of political pressures.
7. As to (i), it is suggested that the primary
purpose of the rule is to prevent prejudice to the fair trial
of judicial proceedings and, more broadly, to protect their integrity.
Parliamentary debate is well reported; if that debate concerns
pending legal proceedings, it will usually be prominently reported;
and the views of members of either House of Parliament tend to
be accorded substantial weight. If views are expressed about the
issues in a case, or about the credibility of witnesses, or about
the desirability of a particular outcome, the risk of prejudice
is obvious, particularly in the case of a jury trial or a case
tried by lay magistrates. Although it is unlikely that a professional
judge would be affected by prejudicial material, it may be harder
for a judge to be immune to strong remarks in Parliament about
his or her conduct of a pending case, and that is to say nothing
of the effect on witnesses or parties to litigation, even if the
fact-finding tribunal is not in fact influenced.
8. Purpose (ii) underlines the separation of
the legislature and the judiciary. It is desirable in principle
that there should be mutual respect between the courts and Parliament,
and that Parliament should so far as possible leave the courts
to perform their function, just as the courts leave legislation
to Parliament.
9. As to (iii), the independence of the judiciary
is of huge importance and value to this country. Almost as important
as the actual independence of the judiciary is the confidence
of the public that the judiciary is indeed independent and immune
to political pressure. That confidence is an essential part of
the citizen's willing submission to the rule of law. It is therefore
important that Parliament should tread very warily before commenting
on the conduct of pending cases by the judiciary, because there
is potential for great damage to be done even though the judge
is not influenced by what is said. To take a trivial example:
a member of Parliament makes a comment on the length of a current
trial; the next day, one of the parties to the case applies for
an adjournment (if not deterred by Parliamentary criticism); and
the judge refuses the application. No doubt the application would
have been refused in any event: but there is a risk that the public
(and the media) might see the decision as evidence that the judge
had bowed to pressure. That damage might be done whatever the
intrinsic importance of the case; but it will be greater still
if the case involves sensitive political or social issues.
THE STATUTORY
STRICT LIABILITY
RULE
10. It may be helpful to note in brief outline
the effect of the strict liability rule of contempt of court as
it affects freedom of speech outside Parliament, because it both
offers some close analogies with Parliamentary practice, and in
one substantial respect adopts a different approach.
11. The 1981 Act establishes a rule of strict
liability,[13]
whereby conduct may be treated as a contempt of court as tending
to interfere with the course of justice in particular legal proceedings
regardless of intention to do so. The strict liability rule applies
to publications, which includes any speech, writing, programme
or other communication addressed to the public at large or any
section of the public. However, it applies only if the proceedings
in question are active at the time of publication, and applies
only to a publication which creates a substantial risk that the
course of justice in the proceedings in question will be seriously
impeded or prejudiced.
12. It follows that to breach the strict liability
rule, the publication must create a risk that the course of justice
in active proceedings will be impeded or prejudiced; that risk
must be substantial; the substantial risk must be that the proceedings
will be seriously impeded or prejudiced; and the court will not
convict of contempt unless it is sure that these factors are all
present.
13. This question arises most commonly in the
context of jury trials, whether in criminal or civil cases, and
in assessing it, the courts will consider in particular the likelihood
of the publication in question coming to the attention of a particular
juror, the likely impact of the publication on an ordinary reader
at the time of publication, and (most importantly) the residual
impact of the publication on a notional juror at the time of trial.
There has been particular emphasis in recent times on the "fade
factor", namely the extent to which the effect of a potentially
prejudicial publication will tend to be forgotten with the lapse
of time, and the courts have also taken into account the focusing
effect of listening to evidence in a case, and the likely effect
of the judge's directions to the jury to put out of their minds
anything which they have not learned in the course of hearing
the evidence.
14. There is an expectation that professional
judges are unaffected by prejudicial material, and for that reason
it is rare for a publication to pose a substantial risk of serious
prejudice to a trial by judge alone.
15. The main exceptions to the strict liability
rule are the entitlement to publish a fair and accurate report
of public legal proceedings,[14]
and the entitlement to publish material which is or is part of
a discussion of public affairs or other matters of general public
interest, as long as the risk of impediment or prejudice to particular
legal proceedings is merely incidental to the discussion.[15]
16. By s 19, the strict liability rule applies
to the proceedings of any tribunal or body exercising the judicial
power of the state. That has been held to include coroners' courts.[16]
17. It is important to note the provisions of
schedule 1 of the 1981 Act, which determine when proceedings become
"active" for the purposes of the strict liability rule.
Criminal proceedings are active from the relevant initial step,
which may be arrest, the issue of a warrant for arrest, oral charge
or the service of an indictment or other document specifying the
charge, until acquittal or sentence (in court-martial cases, until
review of finding or sentence) or any other verdict, finding,
order or decision which puts an end to the proceedings. Appellate
proceedings of all kinds are active from the time when they are
commenced (usually by application for permission to appeal or
by notice of appeal) until disposed of or abandoned, discontinued
or withdrawn.
18. There are different provisions for "proceedings
other than criminal proceedings and appellate proceedings".
This residual category includes civil proceedings generally, and
coroners' proceedings, which are neither criminal nor appellate.[17]
Such proceedings are active from the time when arrangements for
the hearing are made or (if no such arrangements have previously
been made) from the time the hearing begins, until the proceedings
are disposed of or discontinued or withdrawn, and any motion or
application made in or for the purposes of the proceedings is
to be treated as a distinct proceeding.
19. It will be seen at once that the regime for
non-criminal proceedings is much more liberal than it is for criminal
matters. In crime, the strict liability rule bites as soon as
a suspect is arrested; whereas (for instance) in a civil case
it applies only once arrangements for a hearing are made, which
may be many months after proceedings have begun.
CORONERS' PROCEEDINGS
20. So far as is relevant to the present inquiry,
the main duty of a coroner is to hold an inquest to inquire into
the cause of death and circumstances surrounding the death of
any person when there is reasonable cause to suspect that the
deceased has died a violent or unnatural death, or has died suddenly
from an unknown cause, or has died in prison or in a place or
circumstances such that the law requires an inquest. It is worth
noting in this connection that Article 2 of the European Convention
on Human Rights imposes an obligation on the State to protect
"the right to life" and, in circumstances where Article
2 is engaged due to the involvement of the State (for example,
following a death in custody), it also imposes a procedural obligation
on the State to provide an effective official investigation into
the death.[18]
In many cases it will be the inquest that discharges that procedural
obligation.[19]
21. Generally, the coroner sits alone, without
a jury. However, in certain circumstances a jury must be summoned,
in particular where there is reason to suspect that the death
occurred in prison or police custody, or as a result of a notifiable
accident, poisoning or disease, or in circumstances which, if
they continued or recurred, would be prejudicial to the health
and safety of the public. The jury may be summoned in the course
of the inquest, if the reason for suspicion only emerges after
the inquest has been opened.
22. The purpose of the inquest is to find facts.
The primary facts are the identity of the deceased, the time and
place of death, and how the deceased came by his or her death.
The proceedings are inquisitorial, unlike the usual English trial
process which is adversarial.
23. It is a feature of coroners' proceedings
that they are often opened and then adjourned, frequently for
long periods. The inquest is usually opened promptly, so that
the body may be released after evidence of identification has
been given, but adjournment often follows. Adjournment is often
an obligation imposed by law: for example, if the coroner is informed
that a person has been charged with killing the deceased,[20]
or with an offence committed in circumstances connected with the
death of the deceased, he or she will generally be obliged to
adjourn the inquest until the conclusion of the criminal proceedings.
Sometimes, the coroner will be requested by the Chief Constable
or Director of Public Prosecutions to adjourn an inquest on the
grounds that a person may be charged with such an offence. Such
an adjournment will be for 28 days or such longer period as the
coroner thinks fit,[21]
and a further adjournment may be granted at any time before the
date fixed for the resumed hearing.[22]
It may be that evidence is given during the inquest from which
it appears that the death may have been caused by a criminal act.
In that event also the coroner is generally obliged to adjourn
for 14 days or such longer period as he or she thinks fit and
in this case also the DPP may request a further adjournment.[23]
It sometimes happens that the conduct of some individual is criticised
on what the coroner believes to be substantial grounds. If the
person criticised is not present and has not been summoned to
appear, the inquest will be adjourned to enable him or her to
be present.[24]
An adjourned inquest may never be resumed—for example, because
the coroner takes the view that there is no longer sufficient
reason to do so in the light of the outcome of criminal proceedings;
or the adjournment may continue for a very long time.[25]
24. The inquest concludes with a verdict, which
is certified by inquisition. Possible verdicts include death from
natural causes, abuse of drugs, lack of care, suicide, misadventure,
and unlawful or lawful killing, while an open verdict is appropriate
where there is a real doubt as to the cause of death. The inquisition
records findings as to the facts found, which should include the
identity, sex, occupation and usual address of the deceased, the
disease or injury which caused death, and how, when and where
the deceased came by his or her death.[26]
However, there must be no verdict which appears to determine a
question of criminal liability on the part of a named person,
or a question of civil liability on anyone's part, whether named
or not.
SCOPE FOR
PREJUDICE TO
CORONERS' PROCEEDINGS
25. Coroners' proceedings inquire into questions
of fact which may be of great importance and, as explained above,
in many cases provide the forum in which the State's procedural
obligations under Article 2 of the European Convention on Human
Rights are met. The importance of their role is not diminished
by the fact that it is no part of their function to determine
guilt or innocence, and it is understandable that Parliament,
in passing the 1981 Act, should have given coroners' courts the
protection of the strict liability rule.
26. The scope for prejudice to coroners' proceedings
is the same as it is in the case of any other proceedings, whether
civil or criminal. When the coroner is sitting with a jury, the
risk of prejudice is greater,[27]
but even where there is no prejudice to the fact-finding process,
Parliamentary comment may put pressure, or may appear to put pressure,
on the jury or on the coroner sitting alone, and may cast doubt
on the validity of the outcome of proceedings.[28]
27. It is therefore submitted that coroners'
proceedings should in principle remain protected by the Parliamentary
sub judice rule.
PROPOSALS FOR
CHANGE
28. The main problem presented by coroners' proceedings
as far as the sub judice rule is concerned is the procedure
which requires proceedings to be opened promptly and then, in
many cases, adjourned for long periods.
29. The current House of Commons resolution departs
from the scheme of the 1981 Act by treating matters before coroners'
courts as criminal proceedings, which are active when a charge
has been made or a summons to appear has been issued.[29]
Under that regime, comment and discussion are inhibited from the
moment when an inquest is opened, until it is finally concluded,
which (with adjournments) may be substantially longer than criminal
proceedings.
30. The 1981 Act, by contrast, provides that
the test for coroners' proceedings is the same as for civil proceedings,
namely that they are active from the time when arrangements for
the hearing are made, or, if no such arrangements are made, from
the time the hearing begins, until the proceedings are disposed
of or discontinued or withdrawn.[30]
31. However, the distinction is not of great
substance, since even the civil proceedings test entails treating
coroners' proceedings as active from—at the latest—the
moment when they are opened. That is because coroners' proceedings,
uniquely, are opened not by the issue of process (such as the
claim form used in civil proceedings) but by the initial hearing
itself.
32. There is a superficial attraction in suggesting
that the answer to this problem may lie in (a) treating coroners'
proceedings as civil proceedings and (b) adapting the civil proceedings
test for the purposes of the Parliamentary sub judice rule
so as to restrict comment to the period before arrangements are
made for any particular hearing. The difficulty with that suggestion
is that when the hearing is adjourned, it is generally adjourned
to a fixed date (in which case arrangements for the hearing have
been made and comment would be inhibited), or until after the
conclusion of a criminal trial (in which case comment would be
inhibited in any event). It would only be in cases where a hearing
had been adjourned sine die without any criminal proceedings
being commenced that it could be said that no arrangements had
been made for the next hearing, so that proceedings would no longer
be active and discussion of the issues could proceed without offending
against the strict liability rule.
33. A more plausible proposal may be to distinguish
between those cases where coroners' proceedings are adjourned
for lengthy periods in order to allow criminal proceedings to
take their course, and those where proceedings have been adjourned
but no criminal proceedings have been commenced. In the former
situation, it seems most unlikely that the House would wish to
comment on the issues before the coroner's court, because of the
risk that to do so would be to comment on the issues before the
criminal court.
34. However, in cases where inquests are adjourned
for lengthy periods but no criminal proceedings have been commenced,[31]
it is suggested that it would be open to the House to take the
view that the Parliamentary rule should be amended to enable the
House to comment on the proceedings even though arrangements have
been made for the resumed hearing, subject to imposing a limit
on discussion within a reasonable period (which would need to
be at least one month and possibly longer)[32]
before the resumed hearing, and subject to no criminal proceedings
being started in the interim. However, even in such a case, it
is submitted that the House should impose restrictions on criticism
of the conduct or decisions of the coroner while the proceedings
are pending.
THE GOVERNMENT'S
PROPOSALS FOR
REFORM OF
THE LAW
RELATING TO
CORONERS
35. Following the two reports on the coroners'
service in 2003,[33]
and the Home Office Position Paper in March 2004,[34]
responsibility for the coroners' service has passed to the Department
for Constitutional Affairs. The Lord Chancellor has announced
that a White Paper and Draft Bill for reform of the coroners'
service will be introduced in spring 2006, with the intention
that a Bill be introduced in November 2006. It is not known how
far the Government's proposals may affect the operation of the
sub judice rule as regards coroners' proceedings.
CONCLUSION
36. In answer to the first and second points
raised for consideration by the Committee (see paragraph 3 above),
it is the view of the Bar Council that the protection of the Parliamentary
sub judice rule should continue to apply to coroners' proceedings,
but that there is limited scope for devising a separate Parliamentary
sub judice rule for such proceedings. If that is done it
will be necessary to redefine the point at which coroners' inquests
become "active" for the purposes of the rule.
37. The Bar Council cannot usefully comment on
the third point which the Committee has raised for consideration
(as to the effectiveness of the Chair's discretion to disapply
the rule), nor on the fourth (as to the practice of other Parliaments
and legislatures). However, as regards the fourth point it may
be appropriate to sound a note of caution to the effect that any
comparative examination of the practice of other Parliaments and
legislatures might have little value without a simultaneous examination
of the laws of contempt of court, and of the relationship between
legislature and judiciary, in the countries in question.
Richard Parkes QC
Christopher Mellor
January 2006
9 House of Commons Procedure Committee, The Sub
Judice Rule of the House of Commons, First Report of Session
2004-2005. Back
10
Ibid, Ev 51. For convenience, some of that evidence is
incorporated, where relevant, into this submission. Back
11
The House of Lords had adopted its own resolution on 11 May 2000.
Both gave effect to a recommendation of the Joint Committee on
Parliamentary Privilege (HL Paper 43; HC 214 (1998-99), paras
189-202). Back
12
HL Paper 43; HC 214 (1998-99), para 192. Back
13
It should be noted that the bulk of the law of contempt of court
lies outside the scope of the 1981 Act. For example, the Act leaves
intact the common law relating to intentional contempts. Back
14
S4(1), 1981 Act. Back
15
S5, 1981 Act. Back
16
Peacock v London Weekend Television (1985) 150 JP 71. Back
17
Paragraph 12 of Schedule 1 of the 1981 Act. See Peacock v
London Weekend Television, above. Back
18
See McCann v UK (1995) 21 EHRR 97, para 193. Back
19
As to the scope of the inquest in circumstances where Article
2 is engaged, see the House of Lords in R (on the application
of Middleton) v West Somerset Coroner [2004] 2 AC 182). Back
20
Ie a charge of murder, manslaughter, infanticide, causing death
by dangerous driving or by careless driving when under the influence
of drink or drugs, or aiding, abetting, counselling or procuring
suicide. Back
21
Coroners Rules 1984, SI 1984/552, rr26(1), 27(1). Back
22
Ibid, rr26(2), 27(2). Back
23
Ibid, r28. Back
24
Ibid., r25. Back
25
Three years, in the case of R v HM Coroner for South Glamorgan,
ex parte BP Chemicals Ltd (1987) 151 JP 799, DC. Back
26
When the inquest constitutes an inquiry for the purposes of Article
2 of the ECHR, the Coroner is required to consider "by what
means and in what circumstances" the deceased came by his
death, which may involve further findings; for example, as to
whether there were any defects in the systems operating in a prison
that caused or contributed to a death in custody. See Middleton,
n.11 above. Back
27
See House of Commons Procedure Committee, The Sub Judice Rule
of the House of Commons, First Report of Session 2004-2005,
Ev 52-53 paragraphs 7-8, 15. Back
28
See paragraphs 7 to 9 above. Back
29
See paragraph 3 of the resolution of the House of Commons dated
15 November 2001: "For the purposes of this Resolution, (a)
Matters before Coroners Courts . . . shall be treated as matters
within paragraph 1(a)". Paragraph 1(a) covers criminal proceedings. Back
30
Paragraph 12 of schedule 1 of the 1981 Act. See Peacock v
London Weekend Television, n8 above. Back
31
It appears that the case cited by Ms Sally Keeble MP, where a
decision on prosecution was still awaited from the Crown Prosecution
Service nearly a year after the death of a boy in custody, was
such a case: see House of Commons Procedure Committee, The
Sub Judice Rule of the House of Commons, First Report of Session
2004-2005, Ev 26. Back
32
A rather longer period might be desirable, to avoid so far as
possible the risk of prejudicing the findings of a jury (which
might be summoned for the first time at the resumed hearing). Back
33
Death Certification and Investigation in England, Wales and
Northern Ireland-The Report of a Fundamental Review, HMSO
June 2003, Cm 5831; Death Certification and the Investigation
of Deaths by Coroners, HMSO 14 July 2003, Cm 5854 (The Third
Report of the Shipman Inquiry). Back
34
Reforming the Coroner and Death Certification Service: A position
paper, HMSO March 2004, Cm 6159. Back
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