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Lord Goodhart: My point was not that those issues should be included on the face of the Bill, but that the face of the Bill should spell them out as among the specific things that regulations should be required to provide for.

Baroness Scotland of Asthal: I understand what the noble Lord has in mind, but we still say that it would not be necessary. I am happy to say that we intend to include those issues in regulations. They will be similar to provisions in existing regulations that have been made relating to cases under Part 2 of the Prosecution of Offences Act 1985. The noble Lord will know that Regulations 3 and 3B of the Costs in Criminal Cases (General) Regulations 1986 provide that parties to proceedings who have acted improperly, and legal or other representatives who have acted negligently, may make representations to the court before any costs order is made against them. In those cases, it has been sufficient for the issue of representations to be dealt with in regulations and not in the Act. We propose the same here. I hope that the noble Lord will in due course be content with that.

Amendment No. 137 would limit the requirements to be satisfied before the court can consider a costs order by limiting the definition of serious misconduct to an "intentional or reckless act". It would limit the act to one that made a material contribution to the mischief and it would limit the mischief to delaying or causing the abandonment of a trial.

I have already said that we believe that it should be for the courts, after considering all the facts of each case, to determine which improprieties, including omissions as well as acts, constitute serious misconduct. Clause 88 allows the courts to do that.

The noble Lord, Lord Thomas of Gresford, spoke to Amendment No. 138. He rightly raised an issue that causes much frustration to the courts and contributes to the waste of court time and taxpayers' money. He

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gave us some graphic examples of the nature and extent of the problem and the level of frustration that it has caused to all those who have been subject to it.

However, we believe that the amendment, although absolutely pertinent, is unnecessary. Clause 88 already allows the court to deal with errant deliverers of prisoners. If costs are wasted because of late delivery, the court can look at the circumstances that caused the lateness. If it was the result of serious misconduct, the appropriate action can be taken—the court can make a third party costs order. Putting such detail on the face of the Bill can be unhelpful. It can encourage people to argue that the scope of the legislation has been unnecessarily limited, which will allow for other actions of serious misconduct to escape. I thank the noble Lord for raising this important issue, but we believe that the clause already enables the court to catch the situation that he described. The court will be able to assess whether there was a serious matter of misconduct with which it would be proper to deal. Now that the court has this sanction—these teeth—with which to bite such miscreants, we certainly hope that that will have a salutary effect and will cause people to behave in a more appropriate manner.

Has the noble Lord degrouped Amendment No. 143, because I believe that it was spoken to by the noble Lord, Lord Hunt of Wirral?

Lord Goodhart: It was Amendment No. 137A.

Baroness Scotland of Asthal: I am grateful to the noble Lord.

I turn finally to Amendment No. 143. The amendment proposes that any regulations made under proposed new Section 19B, which deals with the award of costs against third parties in criminal proceedings, should be made by way of the affirmative resolution procedure. When preparing the provision, we took the view that none of the usual reasons for having the affirmative resolution process applied in this case.

In its report on the Bill, the Select Committee on Delegated Powers and Regulatory Reform raised no objection. Noble Lords will know of the importance we have attached to the committee's report. I may say that that applies where the committee has made no recommendation as well as where it has.

Clause 88 inserts a new Section 19B in the Prosecution of Offences Act 1985 which is similar to other provisions on costs contained in Sections 19 and 19A. Indeed, Section 19 is cast as conferring a regulation-making power. Neither of those powers, nor the general regulation-making power in Part II of the 1985 Act, is subject to the affirmative resolution procedure. We see no reason why the regulations made under new Section 19B should require the affirmative resolution procedure when the existing provisions they will mirror have been subject to the negative resolution procedure.

We are satisfied that the regulations made under new Section 19B should be subject to the negative resolution procedure because the provisions which would be contained in those regulations are concerned

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with the detail of how the court's power to make third party costs orders will operate in practice; in other words, they will be primarily about procedural matters. For this reason, we do not believe that the affirmative resolution procedure is appropriate and I hope that the noble Lord will feel able to withdraw the amendment.


Lord Goodhart: I am entirely satisfied with the Minister's response on Amendment No. 133. As regards Amendment No. 136, while I would have preferred to see something in the Bill that specifically required regulations to be made about hearings, I accept the Government's assurance that they will be included, if only because any attempt to make a costs order without a hearing against a third party would be a breach of the Human Rights Act 1998.

Perhaps I may ask my noble friend to comment briefly on his position on Amendment No. 138.

Lord Thomas of Gresford: I am delighted with the response made by the noble Baroness to Amendment No. 138 and I am pleased that the Government intend to cover this scandalous situation as I have described it. The words of William Blake come to mind:

    "Bring me my bow of burning gold",

but I do not think that there are sufficient "arrows of desire" in the current phrasing. I should like to make the point very specific because the clause relates to making regulations. Given that, provision should be made in regulations dealing with the Prison Service and the private security firms.

I shall come back to this matter at a later stage, but for the moment I shall not pursue it.

Lord Goodhart: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 134 to 137 not moved.]

Lord Goodhart moved Amendment No. 137A:

    Page 42, line 24, at end insert—

"( ) In deciding whether there has been serious misconduct, the court must have particular regard to the importance of the Convention right (as defined in the Human Rights Act 1998 (c. 42)) of freedom of expression."

The noble Lord said: The noble Lord, Lord Hunt of Wirral, spoke on the subject of this amendment during the previous debate. The Newspaper Society, as the representative of the provincial press, has spoken to both the noble Lord and myself on this matter.

The society objects to the press being subject to third party costs orders at all on the grounds that the existing penalties for any breach of reporting restrictions under the rules covering contempt of court are entirely adequate. I have to say that I felt unable to go as far as that, but press coverage of the criminal courts, particularly in local newspapers, as the noble Baroness said, is a matter of importance. There is a real

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risk, as was pointed out by the noble Lord, Lord Hunt, that the possibility of a third party costs order may act as a deterrent to the full and proper reporting of court cases.

When the court decides whether serious misconduct has taken place, it should take into account the important role of the press. Amendment No. 137A is therefore specifically targeted on the press, unlike the earlier amendments, Amendments Nos. 134 and 135, which are of general application and would apply to everyone.

Mistakes made by the press, even if they are mistakes that have serious consequences in terms of costs, should not necessarily be regarded as matters of serious misconduct. Of course the deliberate publication of matters known to be likely to lead to a mistrial is an entirely different matter, but this amendment calls upon the court to have particular regard to the importance of the right of freedom of expression. In doing so, the amendment is based on a similar clause that was added to the Human Rights Bill during the course of its passage through Parliament in 1998.

We believe that, for the same reasons it was felt justified to include the clause in the Human Rights Bill, a clause of this kind would be justified for inclusion in the Courts Bill. I beg to move.

Lord Hunt of Wirral: I agree.

Baroness Scotland of Asthal: I wish I could respond simply by saying that I disagree.

While I understand why the noble Lord seeks to press the amendment, we say that it is inappropriate for the following reason. We object because of the use of the word "particular". The noble Lord has stressed that he wishes the court to have particular regard to the importance of the convention right to freedom of expression when deciding whether to order costs against a third party, but we say clearly that it is our belief that the court, when reaching its decision, should have regard to the totality of the Human Rights Act 1998. No one part of that legislation should have any lesser or greater importance than another. It is the balance struck in the Act that is so important.

As the noble Lord knows, the criminal courts are in any event required to act in a way that is compatible with Article 10 covering freedom of expression, and that will apply when they are considering whether to use the power conferred by this clause. However, we do not think it appropriate for the criminal courts in this context to be required to have particular regard to that article. Section 12 is concerned primarily with the balance between the freedom of expression of rights and the right to respect for private life. We are concerned here solely with apportioning the costs incurred or wasted as a result of serious misconduct by a third party. It is not appropriate to give special weight to freedom of expression in the costs context.

But we believe that the courts have demonstrated, through the way in which they have applied the law in this area, that they will be proportionate, reasonable

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and proper in the discharge of their duty. There is nothing that the courts have done to date that has caused me to fear that when looking at this legislation they will not properly take into consideration the necessary balance between these issues and discharge their duty with the usual honour and integrity which we expect of our judges.

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