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Lord Lester of Herne Hill: My Lords, I am sorry to interrupt the noble Lord and wonder whether he will give way. Has he given notice of what he has just said to my noble friend Lord McGregor of Durris? It seems to me a rather surprising statement to make.
Lord Donoughue: My Lords, no, I have not. I did see him here earlier. If he reads my words, he will know that I said that it has been reported. I shall happily give him the newspaper extracts that say that. I did say that I did not know whether that was true.
Lord Lester of Herne Hill: My Lords, the noble Lord has been critical of the press and I am sure that he will agree that one should make such a statement only after one has checked that it was said rather than merely reported that it has been reported.
Lord Birdwood: My Lords, perhaps I may clarify that. The very words which the noble Lord has just used were quoted specifically in the Economist on 25th November.
Lord Donoughue: My Lords, I thank the noble Lord for that helpful intervention. I saw it there and elsewhere. I insist that I bear no ill-will towards the noble Lord, Lord McGregor, who is an old friend and an old colleague. I merely quoted what appeared in a very reputable journal. I see that the noble Lord, Lord Marlesford, nods his head because he worked for it for many years. I merely said that those words had been quoted and I did not know whether they were true. I would welcome clarification on that. The importance is that, if it is true that it is ambiguous--and I suspect from what was said earlier that it is true--it is quite right that it needs clarification.
Perhaps I may return to what I was saying about the new protocol. It states that it will be necessary to prove legitimate public interest. That does not mean just that it would interest the public. That is very helpful. I believe that the noble Lord said also that the amount of the payments should be published.
Lord Wakeham: My Lords, I said that the information about the cheque-book journalism should be made available to both the prosecution and the defence.
Lord Donoughue: My Lords, I would go beyond that. Any article published by means of cheque-book journalism--whether the old lag has published his recollections or the young bimbo has published her
recollections--should at the end state that, "£50,000 was paid by the News of the World for this article". That would be extremely helpful in assessing the value of such articles.But, on the whole, that protocol seems to me to demonstrate great and helpful progress. The noble Lord, Lord Wakeham, has used this occasion very valuably. He has made significant progress in this difficult area. I wish him well in persuading the media industry to accept it, as I hope and as I am sure it will.
But I do not believe that that is enough. The noble Lord talked about not having received complaints on the issue. Many people are concerned that perhaps the Press Complaints Commission does not initiate investigations but awaits complaints. It would be a welcome move were it more often to initiate investigations, whether or not there are complaints from outside.
In that context I ask: who will complain? The newspaper will not complain; the recipient of the money will not complain; and nobody will know until it is too late. Therefore, I believe that that is an area where further progress can be made.
Some arguments are made in defence of newspaper freedom. I saw in The Times on 29th November an article by a journalist which said that any restrictions in this area would infringe free speech. It admitted that witnesses in court cases might lie "to make the story more saleable". But the article went on to say that infringing free speech is worse than that. I was quite shocked by that. The journalist was saying that infringing free speech is worse than perverting the course of justice. What nonsense that is. I felt that in that there was an arrogance of modern journalism--saying that its licence and unaccountability are more important than the process of justice.
It has been said also that such cheque-book journalism is defensible because it sometimes exposes crime. I do not accept that as a defence--that because it helps to expose people to the system of justice, it is excusable then to distort that system of justice. That is not acceptable. In any event, we pay the police to catch criminals. Down that slippery slope somewhere lies paying jurors. I wonder whether freedom of speech comes before that.
Another argument put in defence of cheque-book journalism was quoted by the noble Lord, Lord Birdwood, and the noble Lord, Lord Moyne, mentioned it; namely, that there is a willing seller and a willing buyer and the public buys what the press produces. In my experience, I did not feel that the newspapers were necessarily producing what the public wanted. On the whole, they were printing what the journalists wished to write.
I do not accept that a willing buyer and a willing seller is sufficient to justify it. I am not impressed by that--it is also true of the trade in hard drugs or in hard pornography. There are many willing sellers and willing buyers. Society can decide that some kinds of anti-social behaviour are unacceptable. Parliament and the public believe that that kind of cheque-book journalism is unacceptable. As I said, ultimately the only sure remedy is through the law. I was extremely interested in and
sympathetic to the proposed amendment of the noble Lord, Lord Marlesford, and I hope that it is examined seriously.I was also very impressed by the excellent speech of the noble Lord, Lord Lester. He pointed to the direction of legal action under current law. I join him in asking why those questions are not covered satisfactorily by the contempt of court legislation. I have read that the Scots regulate those matters, as many others, better, and I look forward to the comments of the noble and learned Lord the Lord Chancellor.
But if the present law is inadequate--and recent experience suggests that it is--or is being applied inadequately, we must proceed to new law. I accept that it is not easy to draft new legislation. Several noble Lords have indicated the problems involved. It rarely is easy to legislate perfectly, but we should try. The present situation is intolerable in a society based on the rule of law. I would support any reasonable amendments to prevent this misbehaviour.
We need stricter new laws or more strictly enforced existing laws. They must be enforced by diligent law officers to ensure fairness in the justice system. We also need more clarity and certainty as regards the rules of the PCC, and we must ensure that that aspect of press regulation is less ambiguous. But we have been greatly reassured about that this evening. Above all, the media needs that so that those who behave well--and there are newspapers that behave well--will not lose out because of competition from miscreants. Therefore, it is extremely important to support what is best in journalism. We have an opportunity to do that. I look forward with great interest to what the noble and learned Lord has to say this evening.
7.18 p.m.
The Lord Chancellor: My Lords, I begin by thanking my noble friend Lord Dixon-Smith for introducing this extremely important and difficult subject to your Lordships for debate. I thank also all your Lordships who have taken part. In particular, I thank the noble Viscount, Lord Exmouth, for an extremely thoughtful and instructive maiden speech. I join with the noble Lord, Lord Donoughue, who indicated that he would not wish--perhaps he did not go quite that far--to close the door to future opportunities and that it would be a pity to deprive our successors of opportunities to hear the speeches of such distinguished Members of this House on the basis of the title from which they speak.
These issues are extremely difficult and they have been brought to public attention in connection with the West trial. An appeal has been lodged in that case and your Lordships will therefore expect me to be extremely circumspect in what I say about it.
A great deal has been said about the background behind this sort of matter and the moral values which are at stake. We all appreciate those. The reason that particular things have value, or are judged to have value, is usually because people are willing to read them or at least to buy them. No doubt they read some of what they pay to buy although, possibly, not all of it.
That brings me to the comment on Scotland made by noble friend Lord Moyne regarding the people who were interested in the serialisation of a certain book in a particular newspaper. I was glad to think that there are other than Scotsmen in Scotland and that, therefore, it was not necessarily an attack on the high standards of my countrymen.
I should like, first, to say a few words about the existing law. So far as concerns contempt of court, the existing law has been expressed. But it is only right that I should mention it again. The Contempt of Court Act 1981 provides that conduct tending to interfere with the course of justice in a particular case amounts to contempt--that is to say, one has to show that the conduct tended to interfere with the course of justice. It applies to publications which are issued while proceedings are active.
The noble Lord, Lord Lester of Herne Hill, also mentioned the common law under which an act which is calculated to interfere with the administration of justice or prejudice the course of justice is a contempt of court. The application of that principle to payments to witnesses by the media has not been tested by the courts, but it appears reasonably clear that, in order to base proceedings under that head, it would be necessary to show an intention to prejudice the proceedings.
The enforcement of contempt of court has also been mentioned. I strongly believe that the present law officers do take action when it is justified under those headings. The only case that I know of in which their decision was challenged resulted in their being vindicated on a judicial review of not taking action in a particular case. Therefore, I do not accept for a minute any suggestion that they are inactive or neglecting their responsibilities in the matter. Indeed, I believe that they carry them out. Of course, one needs to know a great deal about the facts of a particular instance before one can reach a judgment about whether any of those provisions to which I referred apply.
The other aspect of legislation that I ought to mention is that which concerns payment to criminals to which reference has been made. So far as concerns payments to criminals, the courts have already held in the case of Randle and Pottle that payments for writing a book can be regarded as property obtained in connection with crime and so are liable to be confiscated on conviction. The Proceeds of Crime Act 1995 which came into effect on 1st November 1995 also provides power to seek confiscation of such payments received up to six years after conviction. Those provisions could not, of course, be used in the West case for obvious reasons. Therefore, there is a degree of statutory effect in that area, although it is not directly related in this particular connection to the publication; it is directed to the proceeds received by the criminal regarding the selling of the story or the writing of a book.
I certainly strongly support, as indeed do most speakers in tonight's debate, the desirability of a free press. But that freedom requires proper exercise of responsibility. That is particularly so when it comes into a relationship with the administration of justice and the
holding of a fair trial of accused persons. The Contempt of Court Act to which I referred recognises that balance and has it strongly in favour of the administration of justice. Therefore, the freedom of the press is not allowed under the contempt of court rubric to prejudice the administration of justice in the way that I described.The next question is: what should be done? I refer now to payments to witnesses. The generality that has been mentioned is, to some extent, dealt with in the provisions to which I just referred for confiscation. It is a matter which the Home Secretary, the Attorney-General and myself are considering in the light of recent experiences. I believe that I can say that generally; but, of course, that is not confined to a particular case. We are examining the case for further legislation.
I am grateful for the suggestions about what form further legislation should take which were made during the course of the debate. Your Lordships may be assured that we shall pay close attention to them. One of the difficulties is highlighted by the amendment proposed by my noble friend Lord Marlesford in the sense that, by the time a person has actually become a witness, it is probably too late to apply the prohibition. Therefore, one has to look at a starting point. One needs, at least in some cases, to be something of a prophet to know whether or not a person will be required as a witness in a particular case. Therefore, there is a question about precisely what one can do, or lay down, as a starting point for that offence.
Further, one needs to be quite clear about the nature of the mischief. If, as a result of a payment, a witness says something prejudicial either to the prosecution or to the defence which is not true, it is perfectly plain that that is something extremely serious which one would wish to stop. However, the difficulty arises in the intermediate type of case. For example, what is the newspaper or the other payer paying for? What exactly is it that they are obtaining?
The suggestion often made is that the witness exaggerates or colours the evidence to make it somewhat more expensive than it would be if it was given in the ordinary way. That kind of situation is difficult to establish. Indeed, to prove that that has happened would be quite difficult. Therefore, one has to think quite carefully about precisely what would be the conditions of the offence. In his proposal, my noble friend is really outlawing all payments up to a certain point. But the question is whether witnesses who might receive money should be deprived of it if no harm is done by their receiving such money. Therefore, one has to be reasonably clear about precisely what it is that one wishes to legislate against.
I have already mentioned the timing so far as concerns the start of the period covered by the offence. There is also the question of when it should stop. For example, some people believe that it should be outlawed to make any agreement until the trial has concluded. But then there is always the question of an appeal, and when does one stop? Of course, in a way, there could be greater danger in having the prospect of an agreement arising later. If one is looking at the evidence that the
witness will give and there is the prospect of some money in the future (if the story is good enough), that will, perhaps, also tend to have the effect of damaging the witness's evidence.Those issues are quite difficult in relation to the formation of a particular offence. However, I am comforted in that thought by the fact that the Phillimore Report made it clear that that matter was looked at quite closely and that difficulties in the framing of an offence were envisaged. It is also a comfort for me, in relation to what I said earlier about the Law Officers, that it is plain that Phillimore thought that if this matter were to be dealt with it would have to be dealt with as something rather distinct from the ordinary law of contempt of court.
This brings me to say how much I welcome what my noble friend Lord Wakeham had to say. If I may presume to do so, I welcome him back. We have missed him for a time and it is good that he is back, particularly when he has such an important message to bring to us. I personally warmly support his efforts in relation to a protocol. The noble Lord, Lord Donoughue, has rather suggested that it might not be quite as successful as the noble Lord, Lord Wakeham, would like, but it appears to me to be a considerable effort in the right direction. It is extremely important that, where a payment has been made, the court should know about it. One of the dangers is that someone is involved in contact of this kind but it does not emerge in court. The cross-examination may bring that out but not all answers to cross-examination are truthful. This fact may not emerge until after the trial. One can imagine what effect that would have on a concluded jury trial if the matter had not been investigated. Therefore the requirement that it should be intimated to the parties to the trial is an important matter. Whatever may be the rights or wrongs of going further, that seems to me to be an important step in the right direction.
My noble friend Lord Birdwood asked about the intimation of these matters to other authorities. It may be that in some circumstances if someone was in receipt of benefit, the Benefits Agency would be entitled to be told about it at some stage if it was relevant to the benefit. I doubt whether the payer would have any such obligation. As regards the Inland Revenue, I suspect--I may be wrong about this--that these matters would form part of the expenditure accounts of the newspaper in question but they would be unlikely to be broken down in sufficient detail to make a real intimation to anyone of a particular payment.
I conclude by saying that we are examining carefully what should be done in this area. We are extremely grateful for what the noble Lord, Lord Wakeham, had to say. If this matter can be solved by going down the route he suggests, that would be extremely desirable because the legislation would be difficult. It is not wise to rush into legislation in a difficult area like this but the suggestions which your Lordships have made as regards the terms in which that legislation might be couched are extremely valuable and a great help to us in our further consideration of these matters.
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