Crime and Courts Bill [HL]

Lord Borrie Excerpts

Monday 2nd July 2012 Lords Chamber

[Lord Pannick]

I am grateful to the noble Baroness. I would hope that the Government would allow, at the discretion of the judge, the broadcasting of the arguments in the divisional court and in the Court of Appeal—cases, of course, where there are no witnesses. There is no evidence; these are matters of law. Some of them—one could easily give examples—are matters of fundamental public importance. If, as is the case, the whole of the proceedings in our Supreme Court can be broadcast, including the arguments that are being addressed, it would seem highly desirable that the broadcasters should be allowed, at the discretion of the judge, to broadcast the arguments in the lower courts.

The noble Baroness, Lady Hamwee, expressed a number of concerns about broadcasting. I am sure the noble Baroness is right that the danger is that broadcasters may be looking at the most sensational cases, and will broadcast snippets of the proceedings and may sensationalise matters. However, that is already the case in relation to print journalism and I see no reason at all why Parliament should be more concerned to regulate the content of what is communicated to the public through broadcasting than through print journalism.

I also have to say, as someone who has appeared in a number of cases in the European Court of Human Rights and the Supreme Court that have been broadcast, that her fears that counsel will play to the gallery are unfounded. I am not aware of any evidence that, once the case gets started and the submissions are being made, those who are presenting the arguments do other than focus on persuading the court. Indeed, were they to do otherwise and present themselves as actors with a view to impressing a wider audience, they would undoubtedly soon suffer the unemployment that is endemic in the acting profession. They are also regulated by the Bar Council.

The noble Lord, Lord Thomas of Gresford, expressed understandable concern that there should be no risk in this country of any broadcast of the equivalent of the recent conduct of the Norwegian defendant. I suggest to noble Lords that a discretion for the trial judge would prevent that. In any event, witnesses, victims and defendants could not be broadcast.

We should welcome Clause 22. Many of the concerns that have been expressed, I submit, are unfounded, and I hope the Government will allow broadcasting at the discretion of the trial judge—certainly of sentencing remarks and judgments in the Court of Appeal but also, I would hope, of judgments in the lower courts such as the Divisional Court and the High Court generally, and arguments in the courts below the Supreme Court.

[Lord Borrie]

My Lords, after hearing my noble friend Lord Beecham on my own Front Bench and the spokesman from the Liberal Democrat Benches, I was a little anxious that we were going to be extremely restrictive on this opening-up of the courts to television, radio, et cetera. The noble Lord, Lord Pannick, has redressed the balance by putting an emphasis on what I might call “open justice”. The phrase, “Justice must be seen to be done” is not just one we trot out when dealing with matters of significance, in terms of enabling the public to know the arguments for this or that, it is a meaningful phrase that has its origins in the reality that people used to attend courts, especially the local magistrates’ courts, in great numbers. I remind your Lordships that in the 19th century, and to some extent the 20th century, newspapers, especially local newspapers, used to have journalists on tap who would report at great length—pages and pages—on the evidence, arguments and judgments given in the magistrates’ courts. That was the way in which the public could assess what was going on in their name in the courts of justice in this country.

As a matter of fact, sadly or otherwise, nowadays journalists on local newspapers very rarely go to magistrates’ courts and do that job that used to be done by their predecessors. It follows that people today know less about what goes on in their local courts than was the case, and the Government’s proposal in Clause 22 redresses the matter. I agree entirely with the noble Lord, Lord Thomas of Gresford, and found myself nodding as he said that we do not want such television performances as that of the Norwegian defendant in the case to which the noble Lord referred. The defendant was skilfully using the fact of being in court to retail political and other propaganda, for the benefit not of the justice system being better understood but of the kind of extreme views that he held.

As the noble Lord, Lord Pannick, indicated, it should be possible to broadcast lawyers and judges arguing legal matters or otherwise, or judges sentencing when a trial comes to an end. As the Government are making a relatively new and welcome advance in these matters, we should not be too restrictive. That does not mean I necessarily disagree with my noble friend Lord Beecham on the matter of detail to which he referred, but I had the feeling he might be a little too restrictive—or cautious, it might be sufficient to say—and preferred the open approach of the noble Lord, Lord Pannick.

[Baroness Northover]

My Lords, as we have heard, the amendments tabled by the noble Lord, Lord Beecham, the noble Baroness, Lady Kennedy, and my noble friends Lady Hamwee and Lord Thomas of Gresford seek to clarify, in their different ways, the circumstances in which court broadcasting is to be permitted. There are also a number of government amendments in this group, which I will explain.

The noble Lord, Lord Beecham, is right that this is about promoting understanding of our judicial system, as happens in various other countries, and I welcome what he and the noble Lords, Lord Pannick and Lord Borrie, said about the Government being on the right lines. We recognise the risks outlined by my noble friends Lady Hamwee and Lord Thomas of Gresford. We have considered this very carefully and I am sure the implementation of these changes will be carefully monitored by all. We have heard from both sides in this argument—from what the noble Lord, Lord Borrie, described as “open justice” to concerns that coverage should not have negative consequences.

Clause 22 will allow the Lord Chancellor, with the agreement of the Lord Chief Justice, to lift the ban on filming in courts in certain circumstances and set out the limitations surrounding those. The provisions build on the successful broadcasting of the proceedings of the Supreme Court. The Government initially plan to use the order-making power in this clause to allow the broadcasting of judgments and advocates’ arguments in cases before the Criminal and Civil Divisions of the Court of Appeal. Cases in the Court of Appeal normally deal with complex issues of law or evidence, and victims and witnesses rarely appear in order to provide new evidence. Given the complexity of legal issues in Court of Appeal cases, we believe that allowing advocates’ arguments to be filmed in addition to judgments would be more likely to improve public understanding than filming judgments alone. Over a longer period, we expect to allow broadcasting from the Crown Court, but to limit it to the judge’s sentencing remarks after the conclusion of the trial. We believe that this will help to increase the public’s understanding of sentencing, with low risk to the proper administration of justice.

--- Later in debate ---

[Lord Bew]

My Lords, I rise briefly to speak on Amendment 148 and to express my support for the sentiments expressed so eloquently by my noble friend Lord Pannick. There is no doubt, as he made clear, that the case for this amendment has been dramatised by the events of April and May of this year, when the Attorney-General for Northern Ireland raised his intention to bring contempt of court proceedings against Mr Peter Hain, former Secretary of State for Northern Ireland, on the publication of his memoirs and observations that he made therein on a member of the Northern Ireland judiciary and a case of particular importance when he was Secretary of State. The reaction of Parliament was quite dramatic, with 120 MPs rallying to Mr Hain’s defence. In Question Time on 18 April, the right honourable Mr David Blunkett in the other place asked the Prime Minister:

“Should not respect for the independence of the judiciary be balanced with the rights of individuals to fair comment on that judiciary?”.

The Prime Minister replied, expressing sympathy for that sentiment, and said that,

“there are occasions … when judges make critical remarks about politicians; and there are occasions when politicians make critical remarks about judges. To me, that is part of life in a modern democracy, and we ought to keep these things, as far as possible, out of the courtroom”.—[Official Report, Commons, 18/4/12; col. 317.]

In mid-May, following a less than enthusiastic response in the political world to his original move, the Attorney-General for Northern Ireland effectively set aside the proceedings. There has been a tendency to regard the whole business as an explosion of provincial self-regard now thankfully passed, but that is a short-sighted way in which to look at what has happened. The Attorney-General made it clear that he would not have set aside the proceedings until the receipt of the letter from the former Secretary of State for Northern Ireland, Mr Hain. In that letter, Mr Hain effectively argued that it had not been his intention in any way to challenge the independence and fairness of the judiciary in Northern Ireland. This is an important point, because I think it quite likely that the Attorney-General for Northern Ireland had in mind the dictum of Lord Russell of Killowen, perhaps the greatest of all the Northern Irish judges of the last century. In 1900, as Chief Justice of England, he offered a dictum in this sort of case that intention was crucial and that there had to be a calculated and clearly deliberate attempt to challenge the independence of the judiciary. By his letter, the former Secretary of State for Northern Ireland, Mr Hain, put himself on the right side of that dictum by saying that he had no intention in any way to challenge the independence of the judiciary in Northern Ireland.

What this reveals is that the Attorney-General and Sir Declan Morgan, the Lord Chief Justice, as far as I can understand from the remarks that he made at the time that this was a public matter, believe that there was in principle a case in law here, and a legal case that could be taken. That is why we have proposed this amendment. If there is any possibility that there could be such a case brought, which I think would widely be regarded as absurd, we must do what we can to eliminate that possibility.

In this country, we have a long tradition of freedom of speech, from which the judiciary is not immune. John Bunyan’s The Pilgrim’s Progress is a classic example in the 17th century of how that tradition has operated. In the view of those of us who support the amendment, the common-law offence of scandalising the judiciary is obsolete and has an unnecessary chilling effect on free speech.

[Lord Borrie]

My Lords, some 40 years ago I co-authored a text book entitled The Law of Contempt. Some 50 pages were devoted to the subject now before us in this Committee of scandalising the court. I should add that the current edition of that book is written by a group of somewhat younger lawyers, and since my name appears only on the spine of the book I no longer receive any royalties and therefore have no interest to declare. However, I admit to a certain nostalgic interest for this curiously and rather charmingly worded crime of scandalising the court, which is the subject of Amendment 148. It is the opinion of a number of eminent lawyers; in addition to those who have spoken, we also have the noble Lord, Lord Lester of Herne Hill, and the noble and learned Lord, Lord Mackay, whose 85th birthday it is today. That has been recorded already by the Minister.

I accept from the noble Lord, Lord Pannick, that the offence of scandalising the court has somewhat dubious and ancient beginnings and that it has largely fallen into desuetude, at any rate in this country, although it is quite often used in ex-colonies of Britain that have adopted our law. The reason for its doubtful origins is that a Chief Justice in the 18th century gave a judgment that there was such an offence as scandalising the court but never actually gave that judgment in court. It was recorded and given as his view, but that to lawyers is a very dubious precedent.

As for the purpose of the offence, it is said to help to ensure that the authority of the courts is not undermined. Furthermore, potentially at least, as both proponents of the amendment, who have spoken already, have said, the offence or its existence has a chilling effect on freedom of speech and the freedom to criticise judicial decisions. However, I have to admit—this was not mentioned by the two previous speakers—that the 1974 Phillimore committee said that there was not much evidence that the press was unduly inhibited by this aspect of the law. In 1987, the Daily Mirror referred to the judges in the Spycatcher case as “fools”, alongside an upside-down picture of the Members of this House who were sitting in their judicial capacity. No prosecution followed.

It is over a century ago that in the case of Gray, to which the noble Lords, Lord Pannick and Lord Bew, referred, Lord Russell of Killowen said that,

“any act done or writing published calculated to bring a court or a judge into contempt, or to lower his authority, is a contempt of Court”.

I need not give the facts about the references to Mr Justice Darling, as they have been given by the noble Lord, Lord Pannick. In addition to the points that were made, one phrase used by the journalist there was that Mr Justice Darling was,

“a microcosm of conceit and empty-headedness”.

Lord Justice Sedley, a current judge of the Court of Appeal, to whom the noble Lord, Lord Pannick, referred, wrote recently that the reference to Mr Justice Darling was among the,

“finest passages of invective in the annals of British journalism”—

not a bad record, I suppose. I think I am right in saying that there has been no successful prosecution for this offence since 1931. That surely gives a great deal of emphasis to the point made by the noble Lords, Lord Pannick and Lord Bew, that this offence is out of date. There would be hardly any loss, and not much gain either in practical terms, if the crime were abolished.