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Lord Clinton-Davis: My Lords, I am slightly bewildered by the wording both of the amendment and of the clause as it stands. I do not understand why the words in brackets have been included at all. Perhaps my noble friend will be able to assure me that that is all right. At the moment, I am very confused about the matter. Why cannot we leave it that there has been serious misconduct by the third party?

Baroness Scotland of Asthal: My Lords, the noble Lord, Lord Hunt of Wirral, and the noble Lord, Lord Goodhart, propose two amendments that would limit the circumstances in which a court could make a third party costs order. I note that the noble Lord, Lord Goodhart, has not spoken to either Amendment No. 21 or 22, but I will respond, if I may, to both—

Lord Hunt of Wirral: My Lords, I am so sorry, I have not yet spoken to Amendment No. 22.

Baroness Scotland of Asthal: My Lords, I shall confine my remarks first to Amendment No. 21. However, there is an inter-relationship between the two so, if I may, when I come to reply to Amendment No. 22, I shall rely on much of what I now say on Amendment No. 21.

The noble Lord proposes to limit the circumstances in which a court could make a third party costs order. The clause has been welcomed in principle on all sides of this House. I think we all agree that it fills an important lacuna in the powers of the criminal courts, and seeks to address a real mischief. But these amendments—and I speak for the moment to both of them—would render the clause virtually ineffective. The Government therefore cannot accept either Amendment No. 21 and/or Amendment No. 22.

I appreciate the concerns that noble Lords have expressed about the potential application of the clause and, in particular, concerns about a "chilling effect" on court reporting by local newspapers. I think that is how the noble Lord, Lord Hunt, referred to them on at least one occasion. I agree that open and accurate reporting of the justice system in action is an important bastion of our democracy. But I believe that these concerns about the effect of the clause are, if I may respectfully say so, overstated. Indeed, I would go so far as to say they are misplaced.

The clause empowers the criminal courts to order costs against third parties in the event of serious misconduct. I come now to the point of my noble friend Lord Clinton-Davis, and hope what I will now say will clarify matters. I stress "serious misconduct". The clause is not aimed at the minor misdemeanour, or

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the honest misjudgement or mistake. It makes clear that the power is not limited in the way my noble friend Lord Clinton-Davis fears.

Journalists engaged in court reporting have nothing to fear from the clause provided that they respect any reporting restrictions that may be in place, their own professional code of conduct and, of course, the law of contempt as it affects prejudicial publicity. Journalists are well aware of these things. To assist further, my noble and learned friend the Attorney-General will shortly be issuing for consultation guidance to editors and journalists on prejudicial publicity; and that guidance will touch on the impact of this clause.

There are two further safeguards. First, as we debated at Report, there will be a right of appeal to a higher court, and this will not require permission from the lower forum making the order. Secondly, in the unlikely event that the courts construe "serious misconduct" in a way that impacts unacceptably on, say, wider considerations of freedom of expression, there is a power in new Section 19B(4)(a) to prescribe in regulations that certain categories of "serious misconduct" shall not be subject to a third part costs order. We do not expect to have to exercise this power, but it is there should it ever be needed.

We have considered very carefully the best way to define and limit the scope of this power. We believe that the best approach is to use the term "serious misconduct" on the face of the statute and leave it to the good sense of the courts to apply that concept in the particular case before them. We believe it would be wrong to prescribe a more detailed definition or specific restrictions, in statute or in regulations, as this is likely to create as many problems as it solves and could unwittingly prevent the court from making a costs order when we would all agree it was appropriate. I heard what the noble Lord said about appeals and precedent, but we really do not see why appeals should not provide guidance and precedents in this way. It is no different from any other form of case law.

Amendment No. 21 would enable the court to order costs against a third party only if their serious misconduct also constituted contempt of court. This is over-restrictive and, we suggest, inappropriate. There are many forms of misconduct that might justify a costs order in circumstances that we cannot necessarily foresee. For example—and I wonder whether the noble Lord, Lord Hunt, could give me a little attention in this matter—the misconduct might be a crime that was not also a contempt or a tort or a breach of contract or professional code of conduct or none of these. Common law contempt requires intention to interfere with the course of justice, but misconduct that affected the costs of a case might have quite a different motive, with the perpetrator ignorant or reckless of the impact of his wrong actions on the proceedings.

In earlier debates we discussed the late delivery of prisoners, something which much exercised the noble Lord, Lord Thomas of Gresford. Say this occurred because the driver went off for an hour on a frolic of his own en route. Clearly that would be serious

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misconduct, presumably a breach of his contract of employment, but not necessarily a contempt. The Contempt of Court Act 1981 provides for strict liability contempt in certain cases—that is, an intention to interfere with justice is not necessary. But separate proceedings, brought with the permission of the Attorney-General, are required. Limiting the new power to cases of contempt could therefore mean that the trial judge would be unable, as we intend, to make a third party costs order during or at the end of the proceedings.

Contempt is a serious matter, attracting punitive sanctions, including imprisonment—hence the need for separate proceedings. But these are not necessary or appropriate here, where only an issue of costs is at stake. There is no punitive element in terms of loss of liberty. It is limited to the costs actually incurred by the parties. The court would have the discretion to order the third party to pay only some of the costs arising from the misconduct if the full amount would be disproportionate in all the circumstances, but it could order him or her to pay more. That is the importance of giving discretion to the court and allowing it to interpret "serious misconduct".

I have given various assurances, in particular to the noble Lord, Lord Thomas of Gresford, that his concerns are and would be included in the way the Bill is currently drafted. If Amendment No. 21 were to be carried, I respectfully suggest that the assurances I gave to the noble Lord, Lord Thomas of Gresford, would not be able to be carried through. I invite the noble Lord, Lord Hunt, to reconsider and withdraw the amendment.

Lord Hunt of Wirral: My Lords, being ordered to pay huge sums of money can have a penal effect. It is not just restricted to the way the Minister has described.

I would like time to reflect on the Minister's points. In fact, she has persuaded me that the better amendment would be Amendment No. 22, to which I shall return in a moment. No doubt this debate will continue in another place; it is very important to get the matter right. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral moved Amendment No. 22:

    Page 45, line 35, at end insert—

"( ) that misconduct has caused substantial prejudice to the administration of justice in those criminal proceedings, such that it has been frustrated or rendered impracticable, and
( ) the criminal proceedings have thereby been significantly delayed or abandoned, and"

The noble Lord said: My Lords, as I was explaining in the debate on the previous amendment, the Minister's words have persuaded me that one should concentrate on seeking to ensure that the serious misconduct should have actually seriously affected the administration of justice in the particular criminal proceedings. The prejudice caused by the serious misconduct should have necessitated delay or

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abandonment of the proceedings ordered by the court. Certainly, third parties ought not to be penalised because there is a disproportionate reaction by a trial judge or magistrate. In the light of those comments, I hope that the noble Baroness, Lady Scotland, accepts the amendment. I beg to move.

Lord Goodhart: My Lords, I support the amendment. I found what the Minister said on Amendment No. 21 fairly persuasive, and it would not be right to go ahead with limiting the provision to cases of contempt of court. Nevertheless, this is a new and powerful weapon that is being deployed, in criminal cases at any rate, and I am well aware of the concerns expressed by the Newspaper Society, which I believe are justified. It would be right to emphasise that there must be serious interference with the course of justice, such as that outlined in the amendment, before it would be appropriate to impose an order for third party costs.

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