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Lord Ackner: My Lords, before my noble friend sits down, can he tell me whether it would have been permissible for a defendant in the light of the provisions of this Bill to ask the complainant the question: "Until six months ago we were living as man and wife and had been so living for three years"? With regard to the prostitute example which I gave, how is that permissible under the clause? How can a defendant ask the complainant: "Is it not a fact--a fact which I have only recently learnt--that you have been carrying on the profession of a prostitute for the past two years?"?
8.15 p.m.
Lord Williams of Mostyn: My Lords, that was not the example that the noble and learned Lord put earlier. The example he put earlier was of the prostitute having sex with the defendant and then saying, "My fee is £100. If you do not pay I will accuse you of rape". I believe that is admissible under Clause 41(1)(c). As to the other point of whether the question could be put that "We have been living together for years or months and we have had a sexual relationship", that depends on the issue to which the evidence is intended to go. Is it a question of consent or is it a question of belief in consent? I believe that the statutory framework in Clause 40 enables the court to distinguish between the two. Too often the issue of consent or belief in consent are hopelessly intermingled. We have tried to point out that these are different aspects of relevance; belief in consent is one; consent is another. They are not the same and they should be approached as conceptually different.
Lord Ackner: My Lords, before my noble friend finally sits down, can he tell us what he considers is the right approach of the judge who says, "The material you want to put in, although relevant, does not qualify under subsections (3) or (5), but I accept that my refusal to allow this material may have the result of rendering unsafe a conclusion of the jury"? Is he to continue with the trial, or what is his function? Does my noble friend
accept that a provision on the face of the Bill in these terms cannot justify a certificate that the human rights legislation has been complied with?
Lord Williams of Mostyn: My Lords, I believe that the Bill in its present form complies with our obligations under the European Convention on Human Rights. Secondly, the judge's duty--I am putting it as bluntly as this because I have been asked to--at the end of the day is to apply the law that Parliament passes. He therefore needs to put his judicial eye and mind to the final form of legislation; he then has loyally to put that law into effect. I believe that judges recognise their duties because they take an oath to do that.
Lord Ackner: My Lords, I shall be very brief. Dealing with the last point, the noble Lord seems to have overlooked the inherent obligation of a judge to see that justice is done within his court. If he concludes that a situation has arisen which might well result in an unsafe verdict, he is entitled--and some would say obliged--to stop the trial. That is only one indication of an unfortunate piece of drafting in Clause 40. It also provides a situation which is quite unreal in insisting on contemporaneity as regards the sexual activities of the complainant.
The simplicity of the position at the moment was summed in a case of Brown in 1982:
- "The question was whether, on the facts of a particular case, the complainant's attitude to sexual relations could be material upon which a jury could reasonably rely to conclude that the complainant might indeed have consented to sexual intercourse on the material occasion, despite her evidence to the contrary. It was a question of degree in every case".
Your Lordships are invited to exchange that simplicity for the unintelligible (in some respects) complexity of Clause 40. I accordingly invite your Lordships to pass the amendment that I have proposed.
The Deputy Speaker (Baroness Turner of Camden): My Lords, the Question is that this amendment be agreed to. As many as are of that opinion will say "Content"; to the contrary, "Not-Content". I think the Not-Contents have it.
Lord Desai had given notice of his intention to move Amendment No. 17:
The noble Lord said: My Lords, I merely wish to thank my noble friend for the long and detailed answer that he gave. I shall not move the amendment.
[Amendments Nos. 18 and 19 not moved.]
Clause 41 [Interpretation and application of section 40]:
Clause 42 [Procedure on applications under section 40]:
Lord Williams of Mostyn moved Amendment No. 21:
On Question, amendment agreed to.
Clause 43 [Restrictions on reporting alleged offences involving persons under 18]:
Lord Williams of Mostyn moved Amendment No. 22:
The noble Lord said: My Lords, this is a substantial group of amendments. It contains Amendments Nos. 22 and 23, 28 to 36, 39 and 44.
Amendments Nos. 22 and 23 are designed to ensure that children who are complainants of sexual offences do not qualify for protection under this clause and so do not lose the stronger anonymity protections under the Sexual Offences (Amendment) Act 1992. That means that there is no public interest defence available to editors who publish information leading to the identification of alleged victims of sexual offences at any age.
The new subsection 48 (7A)(b)(ii) provided in Amendment No. 32, and Amendment No. 44 to the Sexual Offences (Amendment) Act 1992, ensure that there is no waiver defence either for children under 16 who are allegedly victims or for witnesses of sexual offences.
This provision is to close a loophole in the current version of the Sexual Offences (Amendment) Act 1992 which allows a waiver to be granted by a child victim of a sexual offence, even without provision for parental or local authority involvement in the decision. In our discussions, which I have mentioned on a number of occasions, media representatives were confused as to whether a waiver from a child would be valid. We have no record of publishers ever trying to rely on them.
Amendments Nos. 22 and 23, therefore, ensure that the defence of publication being in the public interest is also not available for the identification of children who are witnesses to the commission of a sexual offence. That brings the protections of the pre-charge stage for child witnesses to these offences into line with child victims since the Sexual Offences (Amendment) Act 1992 does not provide a public interest defence for the latter.
The BBC and ITC regulatory codes and the PCC code all expressly provide that information leading to identification should never be published about children who are allegedly victims of, or witnesses to, sexual offences. Therefore, our amendments bring the law into line with the codes.
The next sub-series of amendments begins with Amendment No. 28. Perhaps I may deal with Amendments Nos. 28 and 29 and 32 to 35. Broadly, Amendments Nos. 32 and 33 split existing Clause 48 into two clauses, one dealing with offences and one with defences. The amendments add legislative provision for new defences based on the granting of consent to the
The split that Amendment No. 33 makes to Clause 48 places subsections (1) to (4) and subsections (8) and (9) in the clause under the rubric, "Offences under this chapter", and places subsections (5) to (7H) in one with the rubric "Defences". Amendments Nos. 28, 29, 34 and 35 are purely consequential.
I now turn to Amendment No. 36. This is one of a series of government amendments designed to address some further concerns about the way in which the new provisions restricting reporting apply. The amendment gives a list, neither exclusive nor exhaustive, of matters to which the court must have regard when deciding when something is, or is not, in the public interest. That responds in part to a desire expressed by some sections of the media, and certainly reflected in amendments tabled by the noble Lord, Lord Cope, on Report, to have a list of public interest indicators to guide their decision-making.
We thought that the Opposition amendments were too heavily slanted, as a list, in favour of the right of the press as opposed to the rights of individuals. So the new clause makes it clear that there is an interest in the open reporting of crime and of matters relating to human health and safety. It also emphasises, rightly and deliberately, the importance of the welfare of the individual. The clause also contains mention of the importance of exposing and preventing miscarriages of justice and the consideration of the views of the appropriate and protected persons. We believe, therefore, that the list is more balanced than that previously suggested, trying as it does to indicate the range of issues which publishers and the court should consider in deciding whether publication of the restricted information is justified. I repeat, it is not intended to be an exclusive list.
I shall now deal with Amendment No. 39. This amendment reflects the view of the print media that there is no case for imposing reporting restrictions on the identification of children who are alleged to have been the victims of, or witnesses to, any criminal offence other than sexual offences unless they have been identified as victims or witnesses involved in criminal proceedings. The print media argued that there was no case for pushing back the ban on identification of juvenile offenders beyond the point of arrest.
The print media argued that the imposition of such restrictions is in contravention of Article 10 of the European convention. They cited as part of their argument the case of Gleaves v. Deakin (1979). In Gleaves, the House of Lords came to the view that Article 10 was not contravened where, by reason of its nature or the circumstances in which it was published, suppression of a publication by penal sanctions was necessary in the public interest. That is our justification for introducing the measures in Clause 43.
The policy underlying the clauses is that the public interest is best served by making the interests of the child paramount over the interest in freedom of expression, and that the interests of the child are best served by mandatory privacy from public identification where it is alleged the child has committed an offence, and by a presumption towards that privacy where the child is alleged to have been the victim of, or witness to, an offence, unless those with responsibility for the child are content that the child's welfare will not be harmed by such publicity (Amendment No. 32 and related amendments) and that the only interests paramount over the interests of the child are the interests of justice, or, in the case of victims and witnesses, the wider public interest, having taken all such factors and factors, such as the need to protect public health and safety, into account (Amendment No. 36).
I believe that I have dealt with all the amendments which are extensive in this group. Essentially, we have come to these conclusions following the interventions of the noble Lord, Lord Cope, and the noble Viscount, Lord Astor. I am happy to repeat my gratitude for the tone and approach that the noble Lord adopted. These provisions also follow lengthy discussions which I promised to have with representatives of the various media.
It is worth repeating that I listened carefully to the Article 10 questions that have been raised. It is important that we put frankly our reasons for the provisions in the clause. I repeat that those measures have been put in place for the reasons which I specified: public interest in the interests of the child; the interests of the child best served by privacy from public identification; the interests of the child best served by presumption towards privacy; and the only interests paramount over the interests of the child are the interests of justice. I have read out those features and factors in full detail and I simply headline them again as the basis for our policy approach.
I have listened to the press. I do not believe that they have persuaded me away from the conclusion that selective decisions about when to publish information are needed from the start of reporting such information; that the need to make such selective decisions should be imposed by statute; or that where such decisions are to be made at all, they should be made by parents or guardians of the child or be subject, if it is thought necessary, to confirmation by the courts. That is what the new Clause 43, as amended, will do.
It is important to bear in mind that the presumption created in Clause 43 does not automatically criminalise all publishers who deliberately or inadvertently make such identifications. Where a publisher has or is recognised by a court as having one or more of the defences, no criminal offence is committed.
The noble Lord, Lord Cope, asked about missing persons investigations and how they might be affected by the new provisions. As I said on that occasion in response to him, a police investigation of a missing person is not usually a criminal investigation in the early stages when appeals for information are made. I believe--and I am confirmed in it by experience--
I hope that I have been able to cover those disparate matters to your Lordships' satisfaction. I beg to move.
Lord Cope of Berkeley: My Lords, I am grateful to the Minister for most of the bloc of amendments which he moved, covering a number of different aspects of the restrictions on press freedom which are being imposed under the Bill.
On the question of missing persons, on occasions I have accompanied the police when missing persons have been reported and the hunt for them has started. Although obviously the first effort is directed at finding the missing person, whether a child or an adult, at the back of the minds of the police on the spot is the possibility, particularly in the case of a child, that an offence may have been committed. They would be failing in their duty if they were not alert to possible indicators that an offence may have been committed and that potentially there may even be evidence for future use. The possibility of a crime having been committed is present from more or less the first moment of the incident arising.
Of course, one of the changes to the Bill has been modification of the moment at which the restrictions start. I shall come back to that. My main interest in speaking on this group of amendments is Amendment No. 39 in my name and that of my noble friend Lord Astor. The amendment suggests that Clause 43 should not come into force until the Secretary of State provides, along with the order appointing a day for it to commence, a statement setting out, on the one hand,
I start from the proposition, which I do not think is contentious, that we should not put legal limits on the freedom of the press, except for good, proven reasons. The Minister has not tonight, or very much on previous occasions, attempted to set out the necessity for the commencement of the restrictions on Clause 43. The Government have not produced many examples to your Lordships' House about cases where the restrictions would have prevented mischief of one form or another. As I understand it, they have not produced an explanation or relevant examples to the representatives of the press when they have met them.
It is therefore at best unproven that this restriction is necessary. It is the reason for paragraph (a) in Amendment No. 39: the requirement that the Secretary of State should set out
I draw attention to the lack of certainty as to the commencement of an investigation. It will sometimes be difficult for representatives of the press and television to know when an investigation has commenced and hence when the restrictions will apply. That is one difficulty which remains in the drafting.
Amendment No. 32 helps, as the Minister set out, by providing for a waiver--I think that is the term--to be given in writing by the victims if they are aged 16 or 17 or by a parent or other responsible adult if the child is under that age. Obviously it may assist in some cases and it is a helpful amendment. However, it will not help in all that many cases because often it will be impossible, from a practical point of view, to obtain written permission in the form suggested.
We should bear in mind that we are dealing at least some of the time with circumstances where there has been a criminal event affecting a young person. That is not an easy moment at which to approach the parents for such a waiver or to expect them to make a considered judgment in a calm way about whether to sign a waiver of that type.
However, sometimes it will also affect even fairly routine coverage. There are often stories about young people who might be the victims or witnesses of offences under investigation often with photographs and so on willingly supplied, describing theft or vandalism or whatever it might be, and media coverage could be to the benefit of those who are affected. It will be difficult sometimes, with these stories, to get the necessary waiver, with the parents in a position of being faced with a lot of representatives of the media--regional and national in some cases--all wanting waivers signed so that they have a defence if the case should later come to court.
The second half of our amendment, that is subsection (b) of our Amendment No. 39, refers to the question of Article 10 of the European Convention on Human Rights. I heard what the noble Lord the Minister said. Of course I would expect him and his legal advisers to believe that this is within the convention, and he would sign a certificate to that effect, I am sure, after careful consideration of the different elements which might apply. Unfortunately at this moment we do not have the benefit of what I think the noble Lord described as our venerable in-house experts on the convention, but I understand that some lawyers advise that Clause 43 fails to comply with the convention.
I shall not enter into the legal arguments--I am not qualified to do so--and this is a case where legal opinion evidently can come down on either side. That should not surprise us because in every court in the land every day half the lawyers are proved wrong when they lose their cases. So it should not surprise us that there is more than one view as far as concerns the European convention. That is why Amendment No. 39 suggests that this clause should not come into force until the Secretary of State has formally set out how the section complies with Article 10 in a statement which should accompany the order allowing it to start.
I would say again that Amendment No. 39 does not attempt to prevent Clause 43 ever coming into force, but it does attempt to make sure that it really is required. Also, I hope it will encourage the noble Lord the Minister and his colleagues in the Home Office to continue their discussions with representatives of the media to make sure that the freedom of the press is safeguarded, as well as the interests of the young persons concerned, which is what we all want to do. I attach considerable importance to Amendment No. 39, although obviously we shall not reach it until later. However, it is down to be discussed with this group.
Page 29, line 8, after ("consent") insert ("nor of the accused's alleged belief that there was consent").
Page 31, line 6, after second ("to") insert (", or withheld from,").
Page 31, line 10, after ("applies") insert ("(subject to subsection (3))").
8.30 p.m.
"the necessity for the commencement of that section; and"
on the other hand,
"how that section complies with Article 10 of the European Convention on Human Rights"
to which the Minister referred.
"the necessity for the commencement of that section".
We are not denying it to the Secretary of State entirely; we are just saying that in order to restrict the press the Secretary of State must set out the necessity. That is made more important by the fact that there are still some difficulties in the drafting of the clause. I believe that the Minister and his colleagues in the Home Office are still in the course of having discussions with representatives of the press. Perhaps the Bill will be further modified or improved in the course of its passage through another place.
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