Memorandum submitted by the Newspaper Society (CTB 08)
Newspaper Society's submission on press freedom and open justice issues
The Newspaper Society (NS) represents the regional newspaper industry. Its members publish around 1300 daily and weekly regional and local newspaper titles throughout the United Kingdom, complemented by over 1100 websites.
The Counter- Terrorism Bill could affect media investigation, reporting and publication. We set out the provisions which could cause concern below. The BBC and other media organisations share similar concerns.
Part 6: Inquests and Inquiries
The NS shares the concern of the Joint Committee on Human Rights on the compatibility of the inquest provisions with Article 2 of the ECHR and its requirements for independent investigation and public scrutiny in respect of investigation of deaths which may have involved state agents' use of force.
We also seek clarification and assurances on their implications for access to and reporting of inquests conducted by specially appointed coroners. In particular we seek assurances that the Bill and regulations made under it will not undermine the Prime Minister's undertaking in his speech on Liberty in October 2007 'Last year, in a draft bill, we published proposals which would limit media access to coroners' courts. Having undertaken extensive consultation we have now decided not to go ahead with these proposals.'
The media - and others - had strongly opposed the provisions in the Draft Coroners Bill which would have enabled coroners to direct that inquests should be held in secret in circumstances other than national security (which were to be specified in new regulations made by the Lord Chief Justice or his nominees, see Draft Coroners Bill Clauses 41 and 67 and explanatory notes), to exclude all but one member of the press when certain witnesses were giving evidence and to prevent the publication of anything likely to identify the deceased.
The law currently requires an inquest to be held with a jury in cases of deaths in prison, in police custody or during the execution of police duty, by poison and in circumstances which were they to continue or recur would be prejudicial to the health and safety of the public. (Coroners Act 1988 section 8.)
The law also requires that the inquest be held in public unless the coroner considers that it would be in the interest of national security to exclude the public from the whole or part of the inquest. (Coroners Rules 1984 rule 17.)
The Government's subsequent paper Coroners Bill- Changes made resulting from Consultation (27 March 2008) states that the Government has removed the power to impose reporting restrictions from the Draft Bill, but is silent upon the power to introduce new regulations to allow inquest to be held in secret .
We are therefore concerned that the Counter- Terrorism Bill now also contains powers to make regulations for modification of the law in respect of specially appointed coroners, without any explicit restriction to minor or technical modification. There is no express restriction to prevent them from being used to introduce powers for specially appointed coroners to hold secret inquests, or to restrict press and public access to inquests held by specially appointed coroners, or to restrict or prevent media reporting of inquests held by specially appointed coroners:
· Clause 64 of the Counter Terrorism Bill would permit the Secretary of State to certify that the inquest should be held, or should continue, without a jury because in his opinion the inquest will involve material that should not be made public in the interests of national security material or in the interests of the relationship between the United Kingdom and another country, or otherwise in the public interest.
· When a certificate has been issued, Clause 67 modifies RIPA to allow disclosure of intercept material to a coroner and counsel to an inquest where the coroner considers that the exceptional nature of the case deem the disclosure essential to ascertaining the matters which have to be ascertained by the inquest (rule 36).
· When a certificate has been issued under clause 64, clause 65 inserts new provisions into the Coroners Act 1988 that will permit the Secretary of State to appoint a person to hold the inquest a 'specially appointed coroner' who has the same jurisdiction and powers and law relating to coroners and coroners inquests as if they were the coroner for the original coroner's district. But the clause also stipulates that the Secretary of State may then by regulations provide that the law relating to coroners and coroners inquests should have effect to specially appointed coroners, 'with such modifications as may be specified in the regulations.'
In view of the Prime Minister's announcement last year we hope that the Committee will seek Government assurances that these provisions of the Counter-Terrorism Bill amending the Coroners Act 1988 and regulations made under them:
· will not permit secret inquests to be held by coroners or specially appointed coroners in any new and additional circumstances, other than national security, as at present,
· will not lead to any renewal of government attempts to impose new restrictions upon media coverage of inquests,
o either by giving coroners and specially appointed coroners any new powers to exclude press and public from the whole or part of inquests for reasons other than national security, or
o by giving them any new powers to impose reporting restrictions upon inquest proceedings, or access to court documentation.
· any regulations made under Clause 65 would not give specially appointed coroners any powers to impose new reporting restrictions upon the media,
· will not give specially appointed coroners any new powers to exclude press and public from the inquest proceedings on grounds other than the existing national security exception. We are strongly opposed to inquests or any part of inquest proceedings being held in secret.
Clause 69 of the Bill is intended to amend the Terrorism Act 2000 to create new s58A offences of eliciting, publishing or communicating information about a person who is or has been a member of HM forces which is of a kind likely to be useful to a person committing or preparing an act of terrorism, subject to a defence of reasonable excuse.
Obviously, journalists frequently elicit, publish and communicate information about current and past members of the armed forces in the course of normal news gathering. The offence created by the clause is sufficiently wide and uncertain to catch potentially preparatory research, investigation, questions and the onward communication of a hugh variety of unpublished or published reports and photographs etc. For example, these could include reports of service life, including media coverage of the Royal Family, dispatches by embedded or independent war correspondents, or the head cams footage and reports from local newspaper reporters invited to live alongside soldiers from their readers' local regiments, during their tour of duty in Afghanistan or elsewhere. But it could also include reporting unrelated to active service, including such staples of day to day local news covered by regional and local newspapers and their websites, such as the reports of cases in the local courts, any news articles or features which might involve past and present members of the armed forces and their families, items posted on newspapers' websites by readers, including service members and their families.
There is no need for new statutory controls on media coverage. The MoD has recently tightened restrictions on unauthorised communications and publication by service personnel, be they via internet, articles, books, interaction with the media or other means, through changes to the Queen's regulations and other relevant rules governing service personnel and warned them against disclosure of confidential information. The media and MoD are parties to the voluntary DA Notice system and to the Green Book arrangements. Editors already consider carefully whether voluntary restraints would be appropriate in the circumstances of any particular case in order to avoid any threat to the safety of individual members of the armed forces, or operational security, or national security.
However, the media is very wary of unjustified attempts to deter or control unwelcome investigation, reporting and other news coverage and to suppress unwelcome publicity. We are therefore concerned by the Bill's proposed creation of new communication and publication offences of potentially wide and uncertain ambit.
If, contrary to our submissions, the proposed offences are not dropped from the Bill, then their ambit should be narrowed and defences improved, so that journalists and media organisations will not be at risk of prosecution.
As you will be aware, under section 58 of the 2000 Act, it is already an offence to collect or make a record of information or to possess a document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism, subject to the defence of reasonable excuse for the action or possession. After publication of the Counter-Terrorism Bill, the Court of Appeal in R v K recently considered the possession offences and defence under the 2000 Act. It concluded that documents and records must contain information of such a nature as to cause reasonable suspicion that it is intended to be used to assist in the preparation or commission of an act of terrorism and that it must be information which calls for an explanation and an obligation on the person possessing it the obligation to provide a reasonable excuse. The Court also considered that the nature of the 'reasonable excuse' would simply be an explanation that the document or record was possessed for a purpose other than to assist in the commission or preparation of terrorism, even if that other purpose might infringe some other provision of the criminal or civil law.
The same qualifications are necessary to protect the media from falling foul of the proposed new section 58A offences created by clause 69 of the Bill, which would otherwise be so uncertain as to offend against the doctrine of illegality, so that prosecution would be an abuse of process.
Such protection will be even more necessary, given the wider ambit of terrorism offences, as the Counter-Terrorism Bill will widen the definition of terrorism even further to include use or threat of action for the advancement of a racial cause, in addition to a political, religious or ideological cause.
Part 1 of the Counter-Terrorism Bill creates a new power for the police conducting searches under anti-terrorism legislation to remove documents for the purpose of examination, for up to 4 days. There are no PACE safeguards and we are unaware of any proposals to protect journalistic material, even along the lines produced by our discussions with the Home Office on the search, sift and seizure provisions of the Criminal Justice and Police Act 2001. This omission should be addressed. The Bill currently affords no protection to confidential journalistic sources, nor proper protection against publication or broadcast effectively being prevented by temporary seizure of material.
Open justice and freedom of expression issues will be raised by the rules of court which are to be drawn up for proceedings and appeals relating to asset freezing, since Clause 57(2) requires their maker to have regard to the need to secure disclosures of information are not made where they would be contrary to the public interest. It is important that the rules do not create unnecessary secrecy. Yet it appears that the Lord Chancellor will only be obliged to consult the Lord Chief Justices of Northern Ireland and England and Wales, without provision for prior consultation with the media or other interested parties prior to laying the rule before Parliament. We suggest that the Bill requires wider consultation.