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Lord Hunt of Wirral: My Lords, I pay tribute to my noble friend Lord Renton and thank him for his strong support. He made some telling points about the need for effective scrutiny. I apologise to the noble Lord, Lord Goodhart. I was checking a point with him and I believe that he was about to intervene. I regard him

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as a great authority on these matters. The noble Lord correctly forecast exactly what the Minister was about to say and outlined it to me just as the Minister rose thus depriving himself of the opportunity of explaining the position. I apologise to him for that.

I should like to reflect on the points made by the Minister. I am reassured by her reference to a later amendment which I hope we shall reach shortly. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 88 [Award of costs against third parties]:

Lord Hunt of Wirral moved Amendment No. 145A:

    Page 42, line 22, at end insert—

"( ) Any regulations made under subsection (1) must make provision for independent scrutiny of any decision by a court that there has been serious misconduct."

The noble Lord said: My Lords, we now come to Clause 88. I have consulted with a number of organisations and understand that there are still considerable concerns about the clause. As noble Lords will recall, the clause entitled "Award of costs against third parties" is viewed with particular concern by the national newspaper industry and a range of broadcasters and especially by regional newspapers which perform a very important local community service in reporting the proceedings of local magistrates' courts and other courts.

I understand that the various bodies to which I have referred fear that the potential use of this new power by magistrates and trial judges to penalise media organisations could well trespass upon their ability lawfully to report local proceedings or even merely to make representations against court reporting restrictions.

As the Minister must concede, "serious misconduct" is a rather uncertain legal concept. Hence, no one can simply rely on reassurances about courts' past practice, for instance, in contempt cases, as the Minister suggested in a previous debate. Nor are there the safeguards of requiring the consent of the Law Officers, or, indeed, independent scrutiny and full hearing by another court of the alleged wrongdoing, as there are in the cases of proceedings for contempt against the media and prosecution for breach of reporting restrictions. I press the Minister to give reassurance on the following. There ought at least to be equivalent safeguards before third party costs orders can be made.

It would be very interesting to know whether media organisations will be consulted on Clause 88 and, if they have already been consulted, the extent of those consultations given the concern that I express on behalf of a number of them. Will they also be consulted on the regulations to be made under Clause 88 with a view to ensuring that there will be proper statutory safeguards against what could be its chilling effect on lawful court reporting?

Is it proposed that there will be guidance and training of magistrates, their clerks, the Crown Prosecution Service and Crown Court judges to stress that the enactment of these provisions should not in any way be used to curb lawful reporting of cases and the public scrutiny of the criminal courts?

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5.15 p.m.

Lord Clinton-Davis: My Lords, the noble Lord moved a specific amendment. Is there a precedent for that kind of amendment anywhere in the law?

Lord Hunt of Wirral: My Lords, I indicated that there was independent scrutiny but by another court, for instance where cases of contempt are brought against a newspaper or a media organisation. I am not aware that the amendment is to be found anywhere else in the statute book. Any similarity will be only an accident of drafting. I hope that noble Lords will recognise that the amendment is a genuine attempt to introduce independent scrutiny of a court's decision that there has been serious misconduct. That is strictly necessary as we move down the new road proposed in Clause 88. I beg to move.

Lord Goodhart: My Lords, I support the principle behind what the noble Lord, Lord Hunt of Wirral, said in moving his amendment. It is important that there should be adequate provision to appeal from an order of this kind against a third party for payment of costs. I assume that the Minister will say that there is such a right of appeal. However, it is absolutely essential to spell that out. I am aware that there are somewhat more rigid restrictions on the right to appeal against orders relating to costs than to appeal against the subject matter of the decision itself. I certainly hope that the Government will assure us that there will be proper and full rights of appeal against a third party costs order. In that case the third party costs order, so far as the third party is concerned, is the substance of the decision against it.

Lord Fraser of Carmyllie: My Lords, I rise to support my noble friend Lord Hunt. I say to the noble Lord, Lord Clinton-Davis, that it seems to me that his parallel with the law of contempt is apt. It will be our common experience that from time to time judges, be they magistrates or others, will suffer the problem of the red mist coming over their thinking when confronted by activity that they regard as contemptuous of their court. In those circumstances the law has developed to allow for an independent scrutiny of that conduct by someone who does not share the same anger or irritation about what they have been subjected to in court. It seems to me that the form of independent scrutiny that my noble friend seeks is desirable as the parallel is very precise. The Minister may be able to reassure us that such independent scrutiny will be allowed for. Whether it needs to be in the legislation or not I know not, but the desirability of independent, separate scrutiny would appear to be there.

Baroness Scotland of Asthal: My Lords, the noble Lord, Lord Hunt of Wirral, made it clear that the amendment seeks to set out in any regulations made under subsection (1) of the new section inserted by Clause 88 that where a court makes a finding of "serious misconduct", that finding must be subject to independent scrutiny. "Serious misconduct" may not

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be 100 per cent precise but "serious" is enough and should not interfere with lawful reporting, which could not amount to serious misconduct. The provision is not meant in any way to limit the proper reporting and conduct of the media in relation to our criminal courts.

The noble Lord is right to seek to ensure that the findings of the courts are open to independent scrutiny. I hope therefore that he and other noble Lords, including the noble and learned Lord, Lord Fraser of Carmyllie, and the noble Lord, Lord Goodhart, will be assured by the knowledge that new Section 19B(5) and (6), which will be inserted by Clause 88, already allows for third party costs orders made in the magistrates' courts to be appealed in the Crown Court and for those made in the Crown Court to be appealed to the Court of Appeal. The provisions in new Section 19B follow the provisions already existing in Section 19A of the Prosecution of Offences Act 1985, which deals with wasted costs orders made against legal representatives. That section requires regulations to provide for appeals to be made from the magistrates' court to the Crown Court and from the Crown Court to the Court of Appeal. Appeal courts provide the independent scrutiny necessary to ensure that costs orders are properly and fairly made, and if they are not, the appeal court can remedy them. The noble and learned Lord, Lord Fraser of Carmyllie, need not worry too much about the red mist. That can be dispelled elsewhere. In the light of that assurance I hope that the noble Lord will feel content.

I turn to the precise questions raised by the noble Lord, Lord Hunt. The media were informed about proposals in the spring 2002. There have not been any formal consultations because the provision does no more than extend to criminal courts the powers that civil courts already have. It is an obvious lacuna in their powers. We intend the right of appeal to be absolute with no permission requirement. With those safeguards, I hope that all noble Lords will agree that we have the right level of protection to enable proper challenge to be made where the orders are made against third parties. I invite the noble Lord to withdraw the amendment.

Lord Hunt of Wirral: My Lords, I am grateful to the Minister, my noble and learned friend Lord Fraser of Carmyllie and the noble Lord, Lord Goodhart. We were still concerned until, at the last moment, the Minister made it clear that it would not be necessary to appeal in the red mist atmosphere to the court that had just made the order for a right to appeal. The fact that that is not required would enable the sort of independent scrutiny to take place on another day. I was seeking such an assurance.

I thank the Minister for having made it clear that there will be careful consultation on the regulations. I hope that that will include the organisations to which I referred. It is important that the necessary training takes place to ensure that the red mist—or however one describes it—does not descend on the court. Feelings can run very high over reporting but it is generally in the public interest that there should be an unfettered right to report.

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I am a little concerned about the definition of "serious". I know that the noble Baroness said that the matter is either serious or it is not. She acknowledged that that is not being 100 per cent precise. I am rather troubled by that, would like to think further about it and may wish to return to it at Third Reading. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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