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6.9 p.m.
Viscount Exmouth: My Lords, although my interests are associated principally with the tourist industry, I felt it appropriate to make my first contribution during a debate that is of considerable public concern. I am in agreement with many of the points raised by noble Lords.
What has become known as cheque-book journalism, or the obtaining of information through payment, sometimes known as blood money, is largely a moral issue. There are of course legal and political questions which also arise on close examination of this practice.
The practice is an old one, and dates back to the 19th century, if not before. Examples are found wherever mass market media exist. It is generally accepted that all types of information have a monetary value, and that every man has his price. A photographer, journalist or contributor expects to be paid for material submitted for publication. Without such reward the quality and content of our leading national newspapers would seriously decline.
We must accept the fact that leading British newspapers are arguably the best in Europe. Are we therefore to suppose that payments made to people not connected with journalism in order to guarantee exclusive rights to a particular story, should be considered improper or immoral? The moral question is quite clear: should the perpetrator of some horrendous crime benefit from the misfortunes of others?
If restrictions on cheque-book journalism are not imposed, a crime could be designed in such a way as expressly to enable individuals to benefit from the proceeds to be realised from the sale of a story. That is something akin to the physical mutilation of a child by its family in order purposely to generate sympathy for purposes of begging, a practice not uncommon in certain countries of the Indian subcontinent.
Noble Lords might wish to consider the legal implications of continuing to allow unrestricted use of the cheque book when reporting on cases already before the courts. However, questions that need to be asked in criminal cases are: is there any evidence of a wrong verdict being reached or has the course of justice been perverted as a result of payments to witnesses? Unregulated use of the cheque book could result in the danger of undermining the criminal justice system and could possibly cause the collapse of a major trial.
The political issues which arise from any restrictive practices imposed on the press and media revolve around the subject of freedom of the press. Any restriction represents lack of freedom. A democratic society such as ours expects a free press, just as freedom of speech and freedom of movement are taken for granted. I believe that the imposition of controls on editorial would amount to censorship and a negation of our basic freedom.
However, there is no doubt that lack of any effective editorial control leaves the way open for the publication of sordid material which might have a lasting and damaging effect on the mind of some readers; and in some instances it might result in mirror image crimes being carried out. It must surely be the duty of a parliamentary democracy to protect its citizens from unacceptable practices of that nature.
Although the Press Complaints Commission offers some public redress, it is only effective once the horse has bolted and the damage has already been done. More importantly, the commission does not represent an independent body, since it is entirely funded by and acts
in the interests of the media and newspaper industry. Never has the refrain "power corrupts" been more appropriately applied. Therefore, the time has come to introduce and enforce certain guidelines and principles within the media in order to protect the very fabric of our society. That will avoid the possibility of witnesses being prejudiced by the sum of money on offer.Therefore, I propose that the making of payments to witnesses or potential witnesses in criminal trials should be made illegal in the future.
6.14 p.m.
Lord Marlesford: My Lords, it is as great a privilege for me to be able to congratulate the noble Viscount, Lord Exmouth, on his maiden speech as it has been for your Lordships to hear it. I am aware that the noble Viscount has been a Member of your Lordships' House for 25 years and it is only now that he has made his maiden speech. That makes some of us who are very recent arrivals and who leapt to our feet after a matter of only weeks appear most precipitate, almost impertinent, in doing so. But the noble Viscount comes from a most distinguished lineage. We all know that wine from distinguished vineyards keeps well in the bottle and is all the better after a time. I hope that the noble Viscount will allow us to enjoy other bottles in the future.
I should like to congratulate my noble friend and thank him for giving us the opportunity to debate this important subject. I start by declaring an interest as an independent national director of Times Newspapers Limited. I should also declare my experience of having been for 16 years until 1991 a working journalist with the Economist newspaper, working mainly in the Lobby of the other place.
Therefore, as your Lordships will not be surprised, I start from the proposition that the Fourth Estate has and has had for centuries a very crucial role in maintaining standards of behaviour in this country--standards of behaviour of the legislature, the executive, even the judiciary and indeed those who are able to influence the lives of others. Its activities have often been unwelcome, inconvenient, unattractive, intrusive and indeed on occasions unfair to those on whose activities it comments. But I believe that that is a price well worth paying for the safeguards against the abuse of power and responsibility, for which it is often the only guardian.
Therefore, I start from the position of opposition to any legislation which would affect the unfettered freedom of the press. Because I do not believe that self-regulation necessarily always works, I feel that I must go a little further. As a Tory, I strongly believe that a crucial role of the state is to regulate the behaviour of those who might otherwise exploit or ill treat people, whether they be consumers, employees, investors or just ordinary citizens.
I am afraid that I am not prepared to have quite the trust that my noble friend Lord Wakeham has in the self-regulatory route for the matter which we are discussing today. I pay enormous tribute to him as one of the greatest political persuaders that we have had in
either House of Parliament, certainly in my lifetime. But I suspect that even he may find it hard to achieve in certain crucial respects the behaviour to which I believe we are entitled. It is simply against human nature. I believe that human nature will out.There was a reference by my noble friend to proprietors spending their money. The simple fact is that it is usually money well spent. We all know that, however much we might pay obeisance to the moral imperatives, there are many forms of behaviour in which we would indulge if we were not constrained by something stronger than the moral imperative. Perhaps the most obvious that comes to mind at this time is drinking and driving. Frankly, there is a similarity. There will be the tendency to use cheque-book journalism if it is allowed and if it is profitable.
Having said that I am opposed in general to constraints on the press--I would strongly oppose any general legislation on it--I believe that, in the one single matter of payment to witnesses, something must be done fairly soon. Therefore, in my brief intervention in your Lordships' debate, I propose that we consider--I look forward to hearing my noble and learned friend's comments on this--an amendment to the Criminal Procedure and Investigations Bill which is at present before your Lordships' House. As an amateur, I had a shot at drafting the sort of thing which may cover the issue and may be sufficiently restrictive to be acceptable. The amendment would read,
- "No person or organisation shall approach any person who is known to be or might reasonably be expected to be a witness in any trial which is proceeding or likely to be commenced, for the purpose of offering or making an arrangement to offer any financial or other material reward in consideration of the publication in any newspaper magazine journal book computer-network or broadcast of any matter relating to or connected with the said trial".
That is a modest proposal which is not directly aimed at the press as such. It is aimed at ensuring that the sanctity of the courts as givers of good justice can prevail.
6.21 p.m.
Lord Birdwood: My Lords, it gives me enormous pleasure to add my voice to what will be a general applauding of the maiden offering of the noble Viscount, Lord Exmouth. I am always happy and encouraged to hear somebody in this Chamber dive straight into an airing of moral values, because these are issues which are thin gruel elsewhere. I particularly enjoyed the lucidity and logic with which the noble Viscount framed his arguments, ending with his proposition.
It is not often that I have the opportunity to participate in a debate in which one can use part of one's preparatory material as a visual aid in support of a fellow speaker. I draw your Lordships' attention to the Media article:
- "Wakeham: a watchdog ready to bite".
I have read virtually every word that has been written on this subject in recent months and I have found no enormous unanimity among press correspondents in their opinions on the subject, but I propose to quote briefly from one of them.
While we still have a free press in this country, it is utterly fanciful to think that we can legislate against buying the stories of people involved in court cases. There is a willing seller and a willing buyer, and it makes no sense to pretend that a newspaper should be debarred from initiating the transaction when, as my noble friend Lord Wakeham pointed out, the same would not apply to books or films.
What is troubling seems to be the sliding tariff, whereby the rate for a story is weighted by the outcome of the trial and one's suspicions that there is a financial inducement to a witness to manipulate evidence in the cause of greater reward. Does the trade at all introduce doubt about witness veracity, or at least objectivity? Yes, it does. Money does feel like an intrusion in a process which, by instinct, should be literally magisterial, if sometimes less than majestic. The law may not have the granite impermeability which once it had, but it is not yet a bendy toy in the media's playground.
I want to refer to an article in the Evening Standard last month when Peter Cole wrote:
- "Let us start with the basic proposition that payments to witnesses tarnish their testimony, and thus make it less likely that justice will be done. It is, I think, a patronising position to presume that ordinary, innocent members of the public will perjure themselves, exaggerate, distort, or decorate their evidence because they have been paid for an interview. The solemnity of the court, the pressures towards accuracy and truthfulness, the awesome experience of having to give evidence and handle cross-examination, all militate against the witness polluting his or her testimony".
I wish I could put it as well as that.
I wish to make only one observation and ask my noble and learned friend on the Woolsack two questions. The observation is that cross-examining counsel now has an early, almost automatic inquiry to make of any witness along the lines of whether any contract exists, or even has been described, with an outside party. One can picture the colouring which an affirmative answer will have on a jury; and if a false answer is given under oath, presumably there are other consequences which start to involve other parties to the agreement to an uncomfortable degree of intimacy.
My two questions, to which I have no idea of the answers, relate to the obligations of the paying party to inform either the recipient or appropriate government departments of the financial consequences of such payments. First, I should like to know whether the Inland Revenue is informed of the payment as a matter of course. Secondly, are the benefit agencies also automatically put in the picture? If the person taking the payment is not told of the potential consequences of being in receipt of the money, it seems to me that the duty of care element in the trade is a little fragile. But, equally, a wilful attempt to conceal such payments from those state bodies which have a direct interest in the material welfare of the individual also seems to be a point of some delicacy.
I am sure that the answers to those questions will clear up the matter entirely, and there may be embedded in such questions the pointers to new conventions which may calm some of the anxieties that prompted today's debate. I have felt that underlying much of the rhetoric
of outrage in this matter is the immediacy of the revelations of payments, in some cases of auctions. Two or three months after a notorious trial, who would care that a participant was paid for his or her experiences? It is the impression of hectic trading before and during events which so disturbs us. But it will be a bad day for us all if any regime--I say "regime" and not "government"--is ever silly enough to try to frame laws about offences against good taste. Such sanctions always have lain and always will lie in the tolerance, good humour and ultimately the good sense of the citizen. So, please, no more law.6.29 p.m.
Lord Burnham: My Lords, it is with regret that I cannot declare an interest in the subject of this debate. Having served my noble friends Lord Hartwell and Lord Camrose for 32 years on the Daily Telegraph, I am now in these black days merely a pensioner of the company. My noble friend Lord Marlesford commented to me earlier this afternoon outside the Chamber that his experience of the industry was d'en bas and mine was d'en haut. That is wrong in both cases.
I should like to congratulate my noble friend Lord Dixon-Smith on bringing this Motion before your Lordships' House, although I fear that, as with the Dangerous Dogs Act and pit bulls, it is to some extent a gut reaction to the West trial, in which context I was very glad to hear the noble Lord, Lord Dubs, commenting on so many other aspects of cheque-book journalism.
If it is the case that we are following up on the West trial, the cheque-book journalism to which the Motion refers concerns the payment of witnesses before, during and after a case in the courts. The most notorious case of this was the offer of the Sunday Telegraph to a witness in the Thorpe trial to double the money if Thorpe were convicted. With this exception, I have to say that the Telegraph has never offered witnesses money in a civil or criminal case.
There can be no justification for doing so and it has only a short-term benefit for circulation, if that is the object. I was trying to remember anything which had a long-term effect on circulation. The only case I can remember was the publication by the Sunday Times of Lord Montgomery's memoires. Otherwise, the circulation benefit merely lasts for the length of time that the subject is in the paper. Perhaps this lack of a long-term benefit is why the Telegraph has not done it.
In the West case the proposed payments were well publicised and, indeed, were matters of lengthy discussion in the court; in a sense they were critical to the case itself. But the effect of payments of this kind to witnesses must be to cast doubt upon the evidence, usually for the prosecution, since the witness will not be able to write anything which is contrary to the evidence which he or she has given in court. Newspapers--the Sun and the Mirror in the West case--buy exclusivity, but they must also buy the facts.
The evidence must also at least be marginally sensational to justify the proposed payment. If it is a prosecution witness, defence counsel is bound to bring
these facts out and the jury is equally likely to consider that, because the witness has an interest in the nature of his evidence, there is at least a chance that that evidence may be tainted. If the jury does so consider, it may discount it, and even if what was said was perfectly correct, justice may not be done, the fact of payment acting against the prosecution.In the last century, to which the noble Viscount, Lord Exmouth, referred, the Telegraph and other papers paid criminals for their stories before they were hanged. Therefore, the criminal himself had no real benefit. The practice of buying witnesses' stories as it now exists basically dates back to the Moors murders. This is frequently quite open, even if it only exists in cases of the most sensational type. In the Yorkshire Ripper case, newspapers which were paying witnesses were required to make submission to the court, including the contracts that they had made with witnesses. It is notable with regard to the ethical nature of what was going on that these contracts were considered to be ethical and no action was taken.
While such matters are extremely serious and may interfere with the administration of justice, I believe that it is true to say that little or no statutory legislation is needed to stop the practice, if that is what is desired. Noble and learned Lords will, I hope, confirm that the Contempt of Court Act 1988 does not need any major amendment, if any, to give judges the power to punish media owners for criminal and ethical breaches of legislation by payments to witnesses. Certainly the judges can drop from a great height on any attempt to interfere with or alter evidence given in court.
I have taken some legal advice on this point, but probably not enough. If I read my newspapers aright, my noble and learned friend the Lord Chancellor has discussed with the Attorney-General the possibility of creating a new offence under criminal law. When he replies later this evening I hope that he will be able to comment in some way on his discussions and say whether he considers there is any possibility of improvement or benefit from making a new and specific offence of making payments to witnesses in a trial rather than using the Contempt of Court Act.
The Motion of my noble friend Lord Dixon-Smith in fact refers to cheque-book journalism in general and not only to paying witnesses. It is therefore relevant to point out how newspapers operate. They should act in accordance with their code of practice and, if they do so, there is no cause for complaint. In this matter I must confirm what my noble friend Lord Wakeham said. It is an industry agreed code, put together by the industry, and is not the creature of the Press Complaints Commission, of which he is such a distinguished chairman. The code is well written, clear and unequivocal. I do not believe that it needs any amendment.
My noble friend Lord Dixon-Smith quoted the very relevant section 9 of the code and I am glad that my noble friend Lord Wakeham added sections 2 and 3 of clause 18. The Press Complaints Commission is very
alert to possible breaches of the code. On 27th September this year it issued the following confidential note to editors regarding the West trial:
- "The PCC has been approached on the above matter by PressWise, who have received a number of calls from relatives of victims involved in the Gloucester murder case which comes to Court on 3 October. Callers are apparently concerned about the behaviour and persistence of some journalists in seeking background information. PressWise have discussed the matter with Victim Support, the investigating police officers, representatives of both Gloucester County Council and Gloucester City Council and the Lord Chancellor's Department.
- Other than the above, the PCC has received no information suggesting any breach of the Code of Practice. Nevertheless, in view of the concern that has been expressed the Commission reminds editors to be especially mindful of the Code of Practice in dealing with this entire matter. It is of course particularly important to ensure that relatives of the accused and witnesses are not harassed or caused unnecessary anxiety by otherwise legitimate news-gathering activities".
The code is there. The problem is to enforce it.
As one way of doing this, it has been suggested that all newspapers should pay into an industry fund from which any individual who suffers from a breach of the code can be compensated. That will not work. It was tried within the industry by the newspaper publishers' agreement in the 1970s and 1980s--a paper which was stopped by industrial action, usually initiated by the late Lord Briginshaw, should be compensated by the others. It did not work, and this one will not work, because the innocent, who are predictable, will not pay for the guilty, who are equally predictable.
A statutory requirement to obey the code is equally unenforceable. Apart from it being a lawyers' field day, one can envisage appeal after appeal, so that the origins of the complaint and the need for swift action which goes with it become totally lost. Hard-line supporters of statutory control--there are many in your Lordships' House--recommend the imprisonment of proprietors for breaches of the code. Even though the editor of the Mirror once went to prison, the appeals, if this were to be tried, would be particularly long-winded. Noble Lords may wish to inflict this punishment on certain proprietors, but that is merely wish-fulfilment.
In recent years there have been numerous campaigns to control the presentation of news by the newspaper industry in general or by individual newspapers in particular by enforcing the right of reply--giving it the same prominence as the original offence--or by stopping what are considered to be breaches of privacy. Both of those are already included in the code of practice but are not, I would consider, provable in court. Neither are they suitable vehicles for statutory legislation. It would be dangerous for this Government, or any government, to try to enforce statutory prevention of publication of news. Many of your Lordships will be aware of the sarky remark of the woman about her dressmaker--that when madam loses her temper you always find it again in the bill.
Response to what is an understandable gut reaction along the lines of, "This is wrong and something must be done", is itself wrong. A few years ago the press made an enormous fuss about the Official Secrets Act 1911 which it considered ridiculous and constricting.
The Act was revised, but nobody was any the better. The old Act was so vague and imprecise that it could not be enforced--surely a case of be sure to,
- "keep a-hold on Nurse
- For fear of finding something worse".
In any case, newspapers and the other media have a most important role to fulfil as the watchdogs of the nation. It may not be the intention of any legislation so to do, but anything that restricts the publication of that which ought to be exposed is to be avoided at all costs. Turning the argument around, it was the ability of Maxwell to prevent other newspapers from exposing his iniquities which led to such ill-doing and distress.
It is not a cliche to mention, as noble Lords have done, the freedom of the press. The press must be free even if we have to accept something which most of us believe to be unacceptable. Cheque-book journalism involving witnesses in criminal cases or leaks of government memoranda is of course undesirable, but the former can at least be dealt with by contempt of court legislation. Payment for information or for stories--say, the climbing of Everest--which is also cheque-book journalism, lies at the foundation of a newspaper's business. Where would one draw the dividing line? Legislation is not the answer.
6.41 p.m.
Lord Moyne: My Lords, we must all be very grateful to my noble friend Lord Dixon-Smith for introducing this debate. I believe that the importance of it is proved by the fact that my noble and learned friend the Lord Chancellor is replying. We shall all await with very great anticipation what he has to say.
As regards the noble Viscount, Lord Exmouth, and his maiden speech, that he should have been silent for 25 years proves that he must have been very much less silent elsewhere because he spoke in the most practised and competent manner. We were all fascinated by what he had to say.
Some noble Lords will remember a little poem,
- "You cannot hope to bribe or twist,
Thank God, the British journalist.
But seeing what the man will do,
Unbribed there's no occasion to".
On this occasion we are thinking not of the journalist as a potential "bribee", but as giving money to people. It is easy to poke fun and criticise journalists, but they are no better than the public. They would not be able to print what has been described as "distasteful" without the demand for it. My noble friend Lord Dixon-Smith said--and how right he was!--that it is extremely unpleasant that the West family should actually benefit financially from their story. But why should they benefit financially except because people are going to buy the books and articles on which that story is based.
I heard a very interesting anecdote the other day about the ambivalence of public attitudes to this matter. The man I was talking to had been for a weekend in Scotland. Everybody was excoriating the Sunday Times for proposing to serialise the Andrew Morton book about the Princess of Wales. They all took a very high and mighty line. Then, apparently, they were all at
Glasgow Airport where they made a beeline for the news stand to buy the Sunday Times only to find that it had sold out.That seems to me to epitomise the ambivalence. It is a cliche to say that we are all guilty, but we are. We have this rather unpleasant curiosity and journalists have to satisfy it: that is what they are for. There is far more demand for entertainment than for information. I remember when I was very young the late Lord Boothby came to tea with my family. At the time he was political columnist for the News of the World. In those days that paper was more wordy than at present, but it had rather similar content. He said, "It is wonderful to think that one is read every Sunday by 8 million people". One of us at the tea table said, "Are you sure that all of those people actually read your article?" He said, "Every reader of the News of the World reads every word". I do not believe that he was right, but that he was very likely to have been deluded. The primary desire of press readers at every level is far more for entertainment than for information.
However, entertainment and the desire for entertainment, must be controlled. Above all, it should not distort the process of law. People's lives and their fortunes are at stake in the courts. If it is to a witness's financial advantage to make his testimony more lurid--and that is what we are talking about--then that testimony is tainted. However true it may be, it might have been given in that form because of the hope of financial advantage.
It is perfectly clear that the laws of evidence should exclude such testimony. It is for wiser heads than mine to say whether that requires legislation or whether it should be rather an action for the courts and a change in their rules and practices. It could well be that legislation is too difficult to draft, but somehow such evidence ought to be excluded from cases.
6.47 p.m.
Lord Lester of Herne Hill: My Lords, perhaps I may join in the congratulations to the noble Viscount on his very thoughtful and perceptive maiden speech. This debate has been enriched by contributions based on experience; the experience of journalists, the Press Complaints Commission and the experience of newspaper readers.
The House will be indebted to the noble Lord, Lord Dixon-Smith for having initiated a very topical and complex debate and for the conspicuously moderate way in which he introduced the subject. I am sure that the noble Lord is right to have focused attention on the particular vice of cheque-book journalism in relation to witnesses in criminal trials.
All noble Lords who have spoken this afternoon agree--and I am sure the whole House agrees--that freedom of speech and freedom of the press are essential in a democratic society. Everyone agrees that those freedoms should be limited only to the extent really needed to protect the rights of others or to safeguard some clearly defined competing and compelling public interest, and in the present case, the extremely compelling public interest in ensuring a fair trial by jury.
It would be a wholly unacceptable interference with the right to free expression to seek to prevent or to penalise the press for cheque-book journalism in any generalised sense; that is, for paying informants and others for information and opinions. Such a restriction would greatly hamper investigative journalism and the task of the press in acting, in the words of the noble Lord, Lord Burnham, as public watchdog, and would be an unnecessary restriction on free speech. At its most extreme, such a ban would apply even to the memoirs of noble Lords! It would also be an unacceptable restriction to penalise cheque-book journalism because of strong popular aversion to the author's views or even his conduct.
As the noble Lord, Lord Birdwood, put it, we cannot legislate against bad taste. There was a dramatic example of that, which came to my mind when listening to the noble Lord, Lord Dubs, as regards the American "Son of Sam" case. In that case a psychopathic killer, who killed five people in New York, caused such public outrage that New York State hastily passed a well-intentioned law to cream off the profits of any criminal's books to the victims of his or her crime. The American Supreme Court had no difficulty in striking down that law as being content-based censorship that was discriminatory and over-broad, however well motivated the law might be. That shows that even in a hard case of that kind if a criminal, or former criminal, is seeking to profit from his memoirs, those who are concerned with protecting free speech must tread carefully lest they go too far.
But what the noble Lord, Lord Dixon-Smith, raises, in drawing attention to the case for statutory limitation of the use of cheque-book journalism in connection with criminal trials, is not the spectre of state censorship of the contents of newspapers or books, but the important and difficult question whether new measures are needed to combat the unethical practice of offering to pay witnesses or potential witnesses in criminal trials for their stories an amount of money which may or may not depend upon the jury's verdict. Is there a sufficient mischief to require legislation? Is the existing law, notably on contempt of court, sufficient to deal with the mischief? Would any new legislation be workable? Would it be sufficiently carefully tailored to the need to protect the course of justice without unduly hampering free speech? Would more vigorous use of contempt proceedings, coupled with voluntary regulation via the Press Complaints Commission, be sufficient?
The problem, as several noble Lords have said, is not new. It arose notoriously in connection with the Moors murder trial 30 years ago, to which the noble Lord, Lord Dixon-Smith, referred. Widespread and justifiable concern was expressed at what had happened in that case. The trial judge, Mr. Justice Fenton Atkinson, asked the Attorney-General of the day, Sir Elwyn Jones, to investigate what seemed to the judge to be:
- "a gross interference with the course of justice";
in other words, a serious contempt of court.
The Attorney-General informed the other place in May 1966 that there was no evidence that the testimony of any witness had been affected by the payments in
question. The Attorney-General therefore decided not to take contempt proceedings against the newspaper concerned because there was no sufficient evidence. But Sir Elwyn Jones made it clear that the practice of paying witnesses for information about the subject matter of a trial, and interviewing them about the information before they give evidence, could give rise to a criminal contempt of court. That is important, because it supports the view of the noble Lord, Lord Burnham, which I share, that existing criminal contempt sanctions are readily available to deal with the worst instances of that kind of cheque-book journalism, if only the Attorney-General will make use of them.Lord Justice Phillimore's Royal Commission on contempt of court next discussed the problem in its report in 1974. What has not been mentioned is that the Phillimore Report recognised that there would be difficulties in framing legislation to prohibit the practice. "Clearly", it wrote:
- "it would be going too far to prohibit all offers to witnesses, especially those which were not contingent upon the outcome of the case. Much would depend on the size and circumstances of the offer, and there would be obvious difficulties of proof if prohibition were confined to contingency payments, since the contingency aspect could easily be concealed".
The Royal Commission on the Press, chaired by Professor MacGregor, as he then was (my noble friend), then undertook the inquiry into cheque-book journalism that had been recommended by Phillimore. In its report in 1977, the Royal Commission expressed its belief that:
- "those who write, or lend their names to, these stories are under considerable pressure to exaggerate their most sensational features. This tendency is likely to be increased when different papers compete for the same story".
The Royal Commission did not recommend legislative measures to deal with cheque-book journalism, but it urged the Press Council to keep a special watch to ensure that its declaration on the subject was obeyed, and to give an opinion when breaches occurred.
The problem was considered yet again, and in enormous detail in a report as long as a novel by the Press Council in the early 1980s, as a result of the Sutcliffe case. It was a comprehensive, masterly, hard-hitting report, probably the best authority on the subject. The council made it crystal clear that contingency payments are unacceptable by the established standards of conduct in the British press, and are liable to censure. The Press Council went on to censure an offending newspaper in relation to the Sutcliffe trial.
The Home Secretary, Mr. Whitelaw as he then was, meanwhile made it clear to Members of the other place that legislation would create considerable difficulties of definition and enforcement. In this House, the noble Lord, Lord Belstead, then Under-Secretary of State for Home Affairs, said on 14th May 1981 that:
- "cheque-book journalism takes many forms, some of which are inherently distasteful. The Government believe that it is preferable for the practice to be controlled by voluntary restriction in the case of the press, through the influence of the Press Council".
At that time, Parliament was in process of enacting the Contempt of Court Act 1981 to give effect to Phillimore. No doubt because of the formidable problems of definition and enforcement, no separate
offence was created to deal with that mischief. The Contempt of Court Act 1981 specifically preserved criminal liability for common law contempt; that is, conduct intended to impede or prejudice the administration of justice. The limits of common law contempt are set by the courts, flexibly and firmly, on a case-by-case basis, in deciding where the public interest lies. In the "Spycatcher" contempt proceedings, in which I should declare an interest, as unsuccessful counsel for The Sunday Times, the Court of Appeal made it clear that the necessary criminal intent would be inferred by the courts where interference with the administration of justice, as a result of the defendant's conduct, is a virtual certainty. As the "Spycatcher" case shows, it is therefore readily easy for the courts to infer that the editor or publisher of a newspaper has the necessary specific intent in such circumstances, because he will be taken to intend to bring about the virtually certain consequences of his actions.It seems to me that there are powerful arguments for concluding that newspaper editors and publishers will be guilty of contempt of court where they indulge in the unethical practice of offering to pay witnesses or potential witnesses in criminal trials for their stories an amount of money which depends upon the jury's verdict. Conduct of this kind would seem to be virtually certain (as the Royal Commission found) to influence witnesses in some way in the kind of evidence they are likely to give. Where it is a virtual certainty that such conduct is likely to colour the witness's evidence in court, or that the jury's knowledge of the existence of such an arrangement is likely to affect its evaluation of the witness's evidence, the courts will surely infer the necessary specific intent to impede or prejudice the administration of justice.
We all await with great interest the opinion of the noble and learned Lord the Lord Chancellor on this matter, as the Minister responsible for the law of contempt. If he will permit me to say so, the noble and learned Lord, the Lord Chancellor, has demonstrated, again and again, his deep respect for free speech and a free press: in abolishing the restraints on the judges' freedom to write and to speak out of court; in refusing to allow draconian foreign libel laws to be invoked in our courts; in seeking to ease the unacceptable burdens and to reform the antique procedures of English libel law; and in refraining from introducing a new-fangled statutory privacy tort, leaving it instead to the courts to develop the common law, and the Press Complaints Commission to deal with complaints. The Lord Chancellor is also of course concerned to maintain the independence and the authority of the courts in administering justice in this matter and elsewhere.
In considering whether further legislation is needed, it is also important to have full regard to the very valuable work being undertaken in this field by the greatly strengthened Press Complaints Commission, about whose role its distinquished independent chairman, the noble Lord, Lord Wakeham, has spoken with such clarity and candour and whose other members include three distinguished, and equally independent, Members of this House--the noble Lord, Lord Tordoff and the noble Baronesses, Lady Dean of
Thornton-le-Fylde, and Lady Smith of Gilmorehill--together with another strongly independent and legally qualified member, Lady Browne-Wilkinson.The noble Lord, Lord Wakeham, informed us of the tough stance taken by the current code of practice and the difficult problems which arise in framing clearly prescribed workable standards. He made an important suggestion for a new protocol to ensure that the commitment to voluntary control in this area is fulfilled in deed as well as word. Speaking for myself--and this is not a party-political matter--I strongly agree with the approach indicated by the noble Lord, Lord Wakeham. I would add the pressing need for recourse to contempt proceedings by the Attorney-General in appropriate cases. The noble Lord, Lord Marlesford, said that something should be done. I agree with him. What should be done is the bringing about of the new protocol, and the law of contempt of court should be invoked where cheque-book journalism is virtually certain to impede or prejudice the administration of justice. However, like the noble Lord, Lord Wakeham, I doubt whether a blanket prohibition would be practicable. It would in any event have to be accompanied by a broad public interest offence which would create much uncertainty.
7 p.m.
Lord Donoughue: My Lords, I should declare a historic interest as a former journalist on four newspapers. I wish to thank the noble Lord, Lord Dixon-Smith, for giving us this opportunity to debate the matter. I wish also to congratulate the noble Viscount, Lord Exmouth, on his excellent if belated entry into the proceedings of our Chamber. I hope that on hearing that other hereditary noble Lords who have delayed for the odd decade, or quarter or half century, before visiting us with their wisdom will come before us perhaps before the door is finally closed.
The subject before us tonight is not a new issue. Since the 1920s our newspapers have paid defendants, even providing fashionable QCs to defend them, and have paid witnesses, boyfriends, girlfriends and families. I noted that recently even the BBC paid a witness. Perhaps we should think of that matter when debating the BBC Charter after the Christmas Recess.
Recently there have been many cases in which newspapers have appeared to be in contempt of court--I am not a legal expert--but nothing has been done. The Law Officers have appeared to many observers to be "not over-active". I did not know which word to use in the presence of the noble and learned Lord the Lord Chancellor so I used that expression. Governments have ignored Royal Commission reports for the past 20 years. As was pointed out by the noble Lord, Lord Lester, that commission did not recommend action in this respect.
I am concerned tonight about the payment of witnesses, although the cheque-book journalism issue goes much wider. I agree with the Chief Constable involved in the Rosemary West trial who afterwards said that the basic question was:
- "Are we running criminal justice as an entertainment business, or as something that the public has confidence in and that will deliver justice?".
That is the heart of the constitutional problem before us.
In that context, we must recognise that we should not express indignant surprise that cheque-book journalism is so virulent. Our newspapers are not particularly concerned with principles of the law and its fair conduct or the principles of a good society. Proprietors, at least those whom I have met--I must declare that two of them terminated my contract--are concerned with money and political influence; editors with circulation and opinions and journalists with stories, whether fact or fantasy. After all, cheque-books buy journalists and it is not surprising if they assume that others, including witnesses, should in turn be bought by cheque-books. It is too much to expect natural good behaviour in journalism. It is not a profession, although that word is often used. The noble Lord, Lord Deedes, who is not in his place, in his brilliant column often refers to journalism as a profession. I am always tempted to write to him. I admit that it has behavioural aspects in common with the oldest street profession and in my view shares with lawyers a major concern with money. However, it has no proper professional qualifications, standards or discipline and certainly little regard for what one ancient proprietor called the two F's of fairness and factuality, although it is of course concerned, almost obsessed, with the third F.
I make those observations after a 36-year on and off connection with journalism. It is important that noble Lords, and in particular noble and learned Lords, realise that if they require much better behaviour from journalism in this area for the better conduct of the law they will have to seek judicial means of imposing it. I believe that the noble Lord, Lord Wakeham, in his excellent and interesting speech, actually said that. It will not come naturally from journalism as a contribution to a better society, which is not one of its objectives. If a tabloid newspaper believes that paying a witness even to bend evidence, provided that that does not appear, will produce a sensational story and a higher circulation, that will often happen.
That is the reality of what we are dealing with. When talking of free speech, it is no good having a great Jeffersonian fantasy. That is the reality of a modern commercial business. In that context, I wish to consider the role of the Press Complaints Commission, the industry's self-regulator. The noble Lord, Lord Wakeham, is working very hard for better self-regulation, and I wish to congratulate him on and encourage him in doing that. The noble Lord is doing a splendid job and he made a very good speech tonight. I look forward on another occasion to hear him announce further tougher rules on, for instance, rights of reply, privacy, doorstepping and various other aspects of what has been called media hooliganism.
However, I believe that as regards the paying of witnesses, one is being unfair and is expecting too much in expecting him to deliver voluntarily everything which the judiciary may require. We have yet to hear what it requires. The noble Lord has already achieved miracles, but that is beyond him. He can only secure voluntarily what the newspapers volunteer. Today's question is
whether they will volunteer to stop writing cheques to gain circulation. I personally doubt that unless the law intervenes.The Press Complaints Commission has its Clause 9 on the voluntary code which, on first reading, appears to ban such outrageous activity. It must in fact be ambiguous because it is so often breached. It was widely reported that the noble Lord's predecessor at the PCC allegedly--I do not know whether it is true--gave the green light to the Star to pay Rosemary West's stepdaughter, actually stating that the code was ambiguous. If it is ambiguous it must be made watertight.
Tonight the noble Lord, Lord Wakeham, proposed a new protocol and I should like to welcome that--
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