Clause
36
Reports on the outcome of a death
investigation
Mr.
Garnier:
I beg to move amendment No. 154, in
clause 36, page 26, line 2, at
end
add—
‘(8)
A report published by the Commissioner, whether or not published with
the consent of a complainant or his personal representatives, and a
fair and accurate report published by another person of any such report
if published contemporaneously, are for the purposes of the law of
defamation published on an occasion of absolute
privilege.’.
In clause 36,
the commissioner is given permission, or required, to make reports to
various people, including the Secretary of State and
“the controlling authority
appearing to the Commissioner to have the most direct responsibility
over the matters covered by the
investigation”,
which
might be, returning to our previous discussion, the police authority,
the relevant prison
governor—
Ms
Keeble:
The
ombudsman.
Mr.
Garnier:
Yes, even the ombudsman—or a coroner.
Subsection (3) gives the commissioner permission also to
“make a report to any other person
the Commissioner considers should receive a
report.”
He will exercise
that power
“to ensure
that a report is made to at least one person
who—
(a) is a personal
representative of the
deceased,
(b) was the partner,
or other relative, of the deceased at the time of the death,
or
(c) appears to the
Commissioner to have been a friend of the deceased at the time of the
death.”
That
is all perfectly sensible and should be welcomed.
Subsection (5) clearly makes
sense. It says that the commissioner need not report to such
people
“if, after taking
all reasonable steps to ascertain the identity of, and a means of
contacting, a person falling within that subsection, the Commissioner
is unable to comply with
it.”
Sadly, there may be
lots of prisoners who may have lost contact with their families, who
cannot be
discovered.
The clause
deals with reports in writing. Subsection (7) gives the commissioner
permission to
“(a) make different
reports under this section to different
persons;
(b) show any person a
draft of the whole or any part of a report to be made under this
section;
(c) publish the whole
or any part of a report made under this
section”.
I
assume that when exercising his permission to show any person a draft
of the whole or any part of the report, unless it is by publishing
it—I use the word “publish” in the sense of making
public, as opposed to making known to a third person—the
commissioner will use his common sense and discretion and not give
unduly wide publication to sensitive material. However, the Bill
apparently gives him permission to publish it to whomever he
wishes.
Mr.
David Heath (Somerton and Frome) (LD): Will the hon. and
learned Gentleman advise me, as he is a great expert in these matters?
The commissioner will have the power to publish to any person. The
power is qualified by a requirement
that
“the name of the
deceased person must not be published under paragraph (c) without the
consent of a personal representative of that
person.”
What
will the circumstances be when a report is published and is also
available to a court? Will it become privileged information that can be
freely published and disseminated on the basis that it is before a
coroner’s court?
Mr.
Garnier:
I do not want to have too long
a discussion about it, but there are various sorts of privilege, with
which we must be careful not to confuse ourselves. I shall come to the
law of privilege within the common law on defamation, or statutory law
as it will be if I succeed in my amendment. For the moment, I do not
want to guess whether a report published by the commissioner in breach
of a consent or without the consent of a personal representative of the
deceased would take the commissioner outside any protections that he
might have, either expressly or by implication. The Minister may well
have something to say about that.
My amendment
would expressly protect from defamation law both the commissioner and
anybody who might wish to carry a fair and accurate report of what the
commissioner reported. We all understand that deaths in custody, or
deaths that come within the death remit, are hugely emotionally
sensitive. Sometimes the commissioner will have to make some pretty
hard criticisms of managers or individuals who work within—I
shall use the expression, even though I have made fun of it—the
custody setting. It is not in the public interest for the commissioner
to feel inhibited, merely through fear of an action in defamation, from
saying precisely what he thinks based on the evidence he has
discovered. I need not give examples; I am sure that Committee members
can easily understand the sort of inhibiting factor that might
influence the commissioner. That is why I am suggesting a new
subsection (8) in the terms of the
amendment.
Absolute privilege is the
privilege that protects us as Members of Parliament when we speak
either in Committee or on the Floor of the House. Anything that we say
is absolved from the law of defamation; it might breach the rules and
regulations of the House, but we cannot be sued by a third party for
saying it. Equally, a newspaper has absolute protection in reporting
what we have said, so long as what it publishes is fair and accurate
and is published contemporaneously. Protection from libel suit becomes
qualified if the report is non-contemporaneous, and in that case issues
of malice apply. The Minister suggests that a fair and accurate
contemporaneous report is covered only by qualified
privilege.
Maria
Eagle:
That is the point of
contention.
Mr.
Garnier:
I am reasonably sure that I am right, although I
must admit that I have not practised at the defamation Bar for the past
two years, so I might be getting rusty. If I am wrong, my colleagues in
chambers can laugh themselves into distraction, but my memory is that
fair and accurate contemporaneous reports are covered by absolute
privilege whereas non-contemporaneous reports are covered only by
qualified privilege.
Maria
Eagle:
The hon. and learned Gentleman is probably not as
rusty as I, because I have never practised in defamation and it is 10
years since I practised at all. My memory is that qualified privilege
applies, but I shall have it checked.
Mr.
Garnier:
I suspect that the Minister is too young for her
brain to have had the chance to rust at all. I am reasonably confident
of my position, although confidence is a dangerous thing. I am
reasonably sure
that contemporaneous reports of parliamentary and court proceedings are
absolutely privileged, but I am happy to be corrected by anybody. What
I want to emphasise is that the commissioner needs express protection.
If the Minister tells me that he is already protected by other
measures, I shall be
content.
It is an
important matter of public interest both that the commissioner be
protected and that we as the public should have access to his report
and be able to read, if not the whole report, newspaper or media
reports of what he has to say. During the past two years, I have been
increasingly concerned about the secret world of prisons. I have often
used that metaphor, which is getting a bit worn, but there is very
little public knowledge of what happens inside prisons. I often say
that of course prisons should have walls, but they should also have
windows, so that the public can see inside and know what is being done
in their name, and so that prisoners can see out into a world that will
receive them back if they reform, rehabilitate themselves and show
every sign of being prepared to live responsible lives. Having used
that same analogy not so long ago, I was rung by a local journalist who
asked me where I was going to get all the necessary public money to put
windows in prison walls. As I said before, it is possible to lose the
will to live on
occasion!
9.45
am
It is through
media reporting of what goes on inside prisons that the public gain
access to the prison world. If deaths take place in custody or in
secret places, the full glare of public reporting should be focused on
them, not only as a discipline, to ensure that bad things do not go
unnoticed and undealt with in prisons, but so that the public can know
what is being done in their name. All of us—policy makers and
practitioners in the criminal justice system and particularly in the
world of custody—should learn from previous mistakes. That is
the short point that I wanted to make.
I am sorry that I
have not brought my “Gatley on Libel”, which is my bible,
or even the shorter version, Duncan and Neil. They are both good books,
which I recommend to you, Sir Nicholas, and colleagues in my chambers
have made very positive contributions to them—I shall not
advertise my chambers much beyond that. However, I ask the Minister at
least to acknowledge the principle behind my remarks, even though she
and I may disagree over whether contemporaneous parliamentary court
reports are covered by absolute privilege.
Mr.
Heath:
It now seems rather late to welcome you to the
Chair, Sir Nicholas, and I could not possibly do so in the same
enthusiastic terms as the Minister, but I of course welcome you in what
little way I can.
In
another context, the speech that we have just heard from the hon. and
learned Member for Harborough would have been extraordinarily
expensive, but he is on to a good point, which needs elucidation from
the Minister. I claim no expertise in this subject—I intervened
on the hon. and learned Gentleman to try to expand my knowledge of
it—but it seems to me that it is important that the privilege
that may or may not apply to a report by the commissioner apply from
the point of publication, not from or at the
point at which the report is presented to a coroner’s court,
which may be much later if there are adjournments or delays in the
court’s
proceedings. That
enables me usefully to ask the Minister whether she can help me in
respect of the relationship between the coroner and the commissioner.
We were rather hoping for a coroners Bill in this Session, but we are
left hanging on the expectation that one may arrive if parliamentary
time allows. I think that parliamentary time should allow for a Bill on
the important issue of reforming the coroners’ courts system. My
question, however, is whether, having received the report, it is in
order for the coroner to request further investigation from the
commissioner, because there is no express requirement for the
commissioner to undertake further investigation. The coroner’s
powers may in any case enable him to request further investigation. As
further facts about a death in custody unfold during the
coroner’s court hearing, it might be extremely helpful if the
commissioner could be asked to carry out further investigations into a
specific matter and to report back to the court. I would be happier if
such provision, if it were necessary, was built into the Bill, but it
may be unnecessary, and perhaps the Minister can reassure me on
that.
Ms
Keeble:
Will my hon. Friend the Minister tell us about the
sequencing of priorities in the reports and investigations? I am
thinking of the Gareth Myatt case and others. The police had the first
crack at it, followed by the Crown Prosecution Service. The decision
not to prosecute took two or three years, after which there was a
further delay, and the coroner’s investigation did not start
until four years after Gareth’s death. Will the commissioner
investigate immediately after a death, or will they have to wait for a
decision whether to prosecute, which can take some time? If so, will he
investigate before the coroner’s court, or regardless of what
happens there?
Maria
Eagle:
A short, sharp legal debate at this time of the
morning is quite difficult to cope with. The hon. and learned Member
for Harborough might like to hear that I agree with him, in a qualified
way, about the importance of protection for the commissioner’s
reports from issues of defamation. If he turns to clause 44(12) on page
32 of the Bill, he will see that it uses terms pretty similar to those
of his amendment.
I
hope that he is satisfied with that, subject to our disagreement about
how far absolute privilege extends beyond—to use the example
that we heard—the Floor of the House and Committee, or in this
case the commissioner’s report. My recollection is that
qualified privilege would cover media reports; his is that absolute
privilege will cover contemporaneous media reports. We are each
half-right, to be kind about it. My understanding is that a full report
of a parliamentary debate would be covered by absolute privilege, but
extracts from the debate would be covered by qualified privilege. If we
are to be kind and co-operative, we might say honours are even. I hope
that he does not get too much ribbing from members of his chambers when
he gets back. His amendment is not necessary, because the matter is
covered by clause 44(12). I hope that that is sufficient for him to
feel able to withdraw it.
The hon. Member for Somerton and
Frome asked about the coroner’s role. The commissioner will have
quite a lot of flexibility. He will certainly be able to reopen an
investigation at any time to deal with new points that emerge from an
inquest hearing or elsewhere. It is perfectly open to him, if he feels
the need, to accept the suggestion from a coroner or anyone else that
he ought to reopen an investigation to look a bit
further.
My
hon. Friend the Member for Northampton, North, on the basis of her
experience with her constituent, made a point about the length of time
that such investigations can take. It is an important point. As we
discussed during debate on clause 35, the commissioner will be able to
defer his own investigation if a criminal investigation is proceeding.
That is the way that it will normally be done, but there is nothing to
stop the commissioner from continuing an investigation if the criminal
investigation becomes lengthy and he considers that deferring his own
investigation further is not appropriate. He will be perfectly free to
get on with his own investigation. The time periods in the case that my
hon. Friend mentioned as an example were very long. It will be
perfectly open for the commissioner to take a view on that and to
continue his own investigation before the criminal investigation has
come to a close.
We
are seeking to give the commissioner the maximum flexibility to deal
appropriately with the matters that we are putting in his remit in
respect of deaths and of complaints. I hope that that has answered the
points raised in the
debate.
Ms
Keeble:
If part of the point of what is happening is to
get the information out into the public domain—which was the
reason for asking about the defamation laws—the Minister, and
you, Sir Nicholas, will recall that there is also a sub judice rule,
which prevented us from debating some of the relevant circumstances for
four years. That needs to be thought about. We cannot allow a situation
in which a possibly destructive commissioner’s report, which may
perhaps even be covered in the press, cannot be debated in the House
because we have gagged
ourselves.
Maria
Eagle:
I am having to resort to my increasingly rusty
legal memory, although the hon. and learned Member for Harborough may
be able to help me, and should feel free to do so if he thinks it
appropriate. My memory suggests that the sub judice rule would apply
where criminal proceedings, rather than a criminal investigation, were
under way. It would thus certainly be possible in the circumstances set
out by my hon. Friend for the commissioner—we want to give him
the necessary discretion and flexibility—to deal with cases,
which are all highly individual, on a case-by-case basis, as he sees
fit. The commissioner might take the view during an investigation of
such a length as my hon. Friend mentioned, that it was taking too long
and he intended to get on with his
investigation.
The
Chairman:
May I intervene to help the
Committee? The clause does not deal with the sub judice rule, so, to an
extent, although I have allowed a modest reference, I do not think that
we should labour the point.
Maria
Eagle:
I am always trying to be too helpful and not being
mindful enough of the limits of the debate, Sir Nicholas. I have
probably said enough. The point that the hon. and learned Member for
Harborough rightly made is covered later in the Bill, and I hope that
he will feel able to withdraw the
amendment.
Mr.
Garnier:
I thank the Minister for reminding us of clause
44(12). It partly covers the matter, but partly does not, because, as
the hon. Members for Somerton and Frome and for Northampton, North have
also suggested, it is all to do with public information, and unless
there is public information about the secret world in question, we
cannot fulfil our function as legislators in making sure that the
public know what is going
on.
The distinction
between my amendment and clause 44(12) is that subsection (12) deals
only with what the commissioner does. It may well be that implied
within that is a protection for those who report what he has to say.
The more I think about it the more convinced I am that I was right and
that the Under-Secretary of State for Justice is not quite correct in
her understanding of the law of defamation, but I shall check that
during the short Adjournment and discuss it with her outside the
Committee. However, I can see that it would be a somewhat fruitless and
self-regarding exercise to pursue the amendment further than
necessary.
The
Under-Secretary gave me qualified support. The purpose of introducing
the concept of absolute privilege as opposed to qualified privilege is
that the latter requires the complainant to demonstrate that the
publisher was actuated by malice—that he was using the occasion
of privilege to some wrong or improper purpose. The most obvious
example of that would be to get some sort of revenge. I do not need to
go into that. It is important that the media should be free to report
the commissioner’s reports and that the public should have
access to what he has to say, either in summary or verbatim form. I am
happy as long as the commissioner does not feel inhibited in telling us
what he has found and from drawing conclusions from his findings,
either in the form of further allegations of fact or comments on the
facts that he has found, and the media are not be inhibited in
reporting what he has to
say.
10
am
This is not a
debate on the sub judice rule. In my view, the sub judice rule is much
misunderstood. That is probably why it is not necessarily a good idea
to discuss it this morning. Under the Contempt of Court Act 1981, the
law of contempt bites when proceedings are active. Within the criminal
sphere, proceedings are active in a number of ways, but essentially
proceedings are active once a charge has been
laid.
Mr.
Garnier:
I see that the hon. Lady wants to
intervene.
The
Chairman:
Is this on sub
judice?
Ms
Keeble:
I was only going to say that I was not
talking about the legislation, but about the rules in this
place.
The
Chairman:
We cannot talk about that on this
amendment.
Mr.
Garnier:
This discussion is entirely sub judice.
We discipline ourselves within
this House, so that although we are not controlled by the courts, we
respect them and therefore do not breach the law that would apply were
we not in Parliament—at least, we do our best not to do so. We
are not as a matter of law obliged to follow the courts, but we do
because we respect the courts’ power and functions. We will have
a talk about that later when I can charge the hon. Lady for the
advice.
The
Chairman:
Do you want to withdraw the
amendment?
Mr.
Garnier:
I do not want to, but I am jolly well
going to. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
36 ordered to stand part of the
Bill.
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