Select Committee on Procedure Written Evidence


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


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2006
Prepared 22 August 2006