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Lord Ackner: I apologise for startling some of my colleagues with the brevity of my introduction. I wanted
them to know that I read in Hansard the censorious observations the Lord Chancellor made in my absence last Thursday following an "aberrant" Division which I caused.Having listened to the Minister I should like to reflect on what he says. There appears to be considerable substance in it and at this stage I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 22 [Screening witness from accused]:
6.45 p.m.
Viscount Astor moved Amendment No. 79A:
The noble Viscount said: In moving Amendment No. 79A I should like to speak also to Amendments Nos. 79C and 80A.
These amendments derive from concerns expressed by the Guild of Editors--an institution which represents 300 editors of national and regional newspapers as well as its editorial counterparts in commercial broadcasting and the new media. Its interest in the Bill relates to new reporting restrictions and extended statutory powers of the court to exclude the press from the courtroom.
The guild feels that if the current restrictions are not amended, it could have an unintended but disproportionate and unnecessarily highly restrictive effect upon the publication of matters of public interest; for example, for police to appeal to the public in murder inquiries. They could also impede the proper application of the open justice principle and discourage reports of legal proceedings.
Some proposals, such as the extension of anonymity for under 18 year-olds beyond the restrictions of Section 49 of the Children and Young Persons Act, predate the current Government. The guild welcomes attempts to curb abuse of the new provisions which appear on the face of the Bill and within the Explanatory Notes. However, the Bill will still unduly curb previously lawful publication unless amendments are made. Even then, those will have to be backed by Statements in Parliament by the Minister and perhaps guidance to the courts.
Editors continually rely on the court's discretion to allow them to demonstrate that the parties, clerk, judiciary or Bench have misinterpreted or misapplied the law or ignored precedent, and thereupon persuade the courts that orders restricting reporting should be modified or lifted. The guild feels that the proposals in the Bill will be easily exploited to protect those who find publicity embarrassing instead of vulnerable witnesses being protected, as is intended.
It seems likely that the special measures directions will be routinely deployed in the courts, given their applications to proceedings in respect of sexual offences and those involving 17 year-olds. Editors have no doubt
We suggest that open justice safeguards should be included in the Bill to preserve public scrutiny of legal proceedings and the communication of an account of the proceedings to the wider public by the media. We suggest that the Bill ought expressly to provide that the press and the public should be able to see and, more importantly, hear the evidence given by live link. Unless the Bill is amended courts may consider that the press and public presence is optional. The Bill ought to provide that the press and public ought to be able to attend the court and hear evidence given by means of a live link if and when the court has moved to another place which has facilities for live linkage which the normal courtroom lacks. Provision should be made to ensure that the press and public can view and hear any video-recorded examination or re-examination.
The guild also fears that Clause 24 will be exploited to avoid embarrassing publicity providing an easier route to the in-camera proceedings than current measures. We find it difficult to understand why the presence of the media's representatives is likely to intimidate a witness in connection with the proceedings or would facilitate such intimidation. I understand that current powers of punishment for contempt of reporting restrictions under Sections 4(2) and 11 of the Contempt of Court Act 1981 would presumably meet many of the potential concerns. The power to exclude the press and the public should not be routinely used in all cases of sexual offences. Complainants automatically enjoy anonymity under the law and protection under media codes. The scope for contentious cross-examination and any fear of consequent salacious reporting is reduced by the Bill's provisions in Chapters II and III.
It is welcomed that the Explanatory Notes contain the statement:
The guild fears that the new power creates a precedent for a routine departure from the open justice principle. We suggest that the Bill could be amended to limit expressly the circumstances in which the press can be excluded. Currently the wording could be interpreted by the court as requiring the opposite. By singling out some media representatives for exclusion, the Bill unfairly excludes newspapers and news agencies but, interestingly enough, not television or the new media or
The media and other parties ought to be given the statutory right to challenge applications to exclude them. The restriction of the rights of parties, or the court of its own motion, is inconsistent with the provisions introduced to meet this country's obligation under Articles 6 and 13 of the ECHR by the Crown Court Rules Act, as amended.
Either party might seek to use Clause 24 to avoid embarrassing publicity, although the witnesses in question, including the complainant, might well wish to present their case in open court, and, in the case of complainants of sexual offences, might well be prepared to waive anonymity as well. It is possible that schools, public institutions, public services as well as defendants whose care and conduct may be called into question would prefer that young complainants of abuse or assault should not have an opportunity for their accusations to be stated in open court. Applications may be motivated by the desire to limit embarrassing publicity indirectly, although presented as applications in the complainants' best interests.
We believe that there is a danger of creeping secrecy. That is intensified by the possibility of rules of court enabling exclusion orders to be made without a hearing and through the non-disclosure of sensitive and confidential material. It would be helpful if the Government could clarify whether charges left on file would mean that the proceedings had been determined. Will guidance be given on the scope of the binding effect of directions? Does a direction made by one court automatically bind all others; for example, if cases pass from the magistrates' courts to the Crown Court or from any court to an appellate court.
Media publications which fairly and accurately report proceedings in open court enjoy statutory and common law defences in defamation and contempt. The Defamation Act 1996 reaffirmed Parliament's support by extending the defence of absolute privilege. The Bill deprives the press of the benefit of such statutory defence in common law counterparts. We believe that the Bill should ensure that the press and public can hear and view live-link and video-recorded evidence at the same time as the jury as part of open court proceedings. Also, the public should have access to transcripts of evidence. That ought to be introduced.
If the public and press are excluded from the court, the statutory defences of the Contempt of Court Act and Defamation Act 1996 will not apply to media reports. That may mean that the press will be wary of reporting anything said by the witness, even if no reporting restrictions are made. That could mean that only the other party's case, including all other evidence which discredits the witness, without the witness's rebuttal, is fully reported. Presumably, that could act as a disincentive to the witness. Alternatively, because in the case of a party who called the witness, the proceedings
Loss of opportunity to give evidence in public due to another's application will also prevent matters of importance reaching the public domain without threat of libel action. The effect of the restrictions might be lessened by ensuring that transcripts are available to the press, with an extension of appropriate defences to protect fair and accurate reporting of their contents.
I apologise for the rather lengthy explanation of the amendment, but the issues are extremely important. I also apologise to the Committee for the fact that I have strayed slightly beyond the rather narrow confines of the amendment. However, I gave the Minister's team notice of that. I realise that he will not necessarily be able to answer every question that I have asked this afternoon, but I hope that he will give me some reassurance on the principles and, if necessary, write to me on other points. I beg to move.
Page 17, line 37, at end insert--
("(4) The screen or other arrangement may not prevent the witness from being seen by representatives of the news media unless the court gives permission.").
"It is expected that the press would normally be allowed to remain".
It is important that the press, as the public's representative, be permitted to remain in order to retain the element of public scrutiny which is essential to open justice. Exclusion would run counter to past practice and be inconsistent. For example, the press have the statutory right to attend youth court proceedings, so it makes little sense to create an anomaly and enable their exclusion when under 17 year-olds appear before adult courts. The courts may also permit the press to stay in the absence of the jury and the rest of the public in other circumstances without prejudice to the proceedings.
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