Crime and Courts Bill [HL]

Lord Lester of Herne Hill Excerpts

Monday 10th December 2012 Lords Chamber

It is quite wrong that the television filming of court should be further expanded without it coming back before this House for proper consideration. I know that judges might argue that they can carefully fashion what they say and explain the reason for giving a particular sentence in a criminal case, but I am afraid that very often they will be made to sound ridiculous by the way their comments will be edited. Judges have also not realised that they will become much more visible. Currently, our judges can go about their business without fear for their safety; it is one of the great things about our system. They can shop in Waitrose, go to the garden centre at weekends or play golf and no one knows them from Adam or Eve. Their lives will become very different and much less secure once their faces can be played and replayed over and over again on new technology. I would like research to be done on the potential impact of these changes before we go down this road. For this reason, we should not today allow further use of cameras in courts beyond our appellate jurisdiction. I beg to move.

[Lord Lester of Herne Hill]

My Lords, I am not a criminal lawyer and have none of the experience that the noble Baroness, Lady Kennedy of The Shaws, has, but I sat as a criminal judge—grotesque though that may seem—in the days when I was a recorder. I cannot claim much greater experience than that, but I support the amendment as a member of the Joint Committee on Human Rights.

As the noble Baroness, Lady Kennedy, has said, this amendment was drafted by the committee so it is a JCHR amendment, and our report deals with our reasons in detail. In paragraph 60, our conclusion says:

“We do not see the justification for the width of the order-making power in clause 23(1) of the Bill, which, as it stands, authorises the filming and broadcasting of witnesses, parties, crime victims, jurors and defendants in court proceedings. We urge a much more cautious approach. Before any extension of this power we recommend that the Government conduct a much more comprehensive public consultation, carry out a more detailed impact assessment in the light of that consultation and conduct a review of the operation of the power after an elapse of years. In the meantime, we recommend that the Bill be amended to confine the scope of the power to the filming and broadcasting of judges and advocates in appellate proceedings, as the Government currently intends”.

I am also cautiously conservative on this issue because I do not believe that criminal trials are best conducted in televised goldfish bowl.

[Lord Pannick]

My Lords, I do not share the concerns expressed by the two previous speakers. The broadcasting of court proceedings will enhance public understanding of our justice system, which in general works efficiently and fairly. There is also the possibility that allowing in the cameras may illuminate those areas of the law that are much in need of reform, a result that I would have thought law reformers as distinguished as the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Lester of Herne Hill, would welcome.

So what if broadcasters focus on sensational cases? That is what print journalists do and we do not exclude them from the courtroom. Amendment 113 would confine broadcasting to appellate proceedings but, if the Lord Chief Justice thinks it appropriate, why not allow the broadcasting of a judicial review application that raises issues of importance? Such applications normally involve no witness evidence and often raise issues of law of considerable constitutional importance. Of course there should be no broadcasting of the evidence of witnesses, and jurors’ faces should not be shown, but I cannot understand why there should be no possibility of the broadcasting of the judge’s sentencing remarks at the end of a criminal trial. There are many cases where, at the end of the criminal trial, the judge is speaking not only to the defendant or other persons in court but is seeking to communicate to the public at large. The judge should be assisted to do so.

The noble Baroness, Lady Kennedy of The Shaws, made what I respectfully submit was a quite extraordinary suggestion that judges need to be protected because their words may be misrepresented. She also suggested that judges need anonymity in the community at large. I doubt very much whether there are many judges—or, indeed, many noble Lords—who think that our judges need or deserve such protection.

In any event, Amendment 113 is entirely unnecessary because your Lordships will see that Clause 23 will not come into effect without the agreement of the Lord Chief Justice, who no doubt will carefully consider the details of any scheme to allow broadcasting of court proceedings. For the same reason, Amendments 113ZA and 113ZB in this group are also unnecessary in seeking to impose conditions on the broadcasting of court proceedings. I am content to proceed on the basis set out in Clause 23, that the broadcasting provision would come into force only,

“with the concurrence of the Lord Chief Justice”.

It would be far better to let him—or possibly, after next October, her—decide on the detail of the broadcasting scheme.

For the same reason, Amendment 120B, requiring a resolution from both Houses, is unnecessary. The noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Lester of Herne Hill—for both of whom I have the highest regard—are the 21st century equivalents of the 18th century Scottish judge Lord Eskgrove. When a court reporter wrote down the terms of one of his judgments being delivered in court, Lord Eskgrove complained:

“The fellow takes down my very words”.

--- Later in debate ---

[Lord Lester of Herne Hill]

Would the noble Lord address the points raised by the Joint Committee on Human Rights, rather than referring to me as an 18th century gentleman?

[Lord Pannick]

My Lords, I have made such points as I think may assist the House in answer to the arguments brought forward in this debate and the arguments presented by the Joint Committee.

--- Later in debate ---

[Lord Pannick]

My Lords, this amendment seeks to abolish the crime of scandalising the judiciary in England and Wales. I am delighted that the Minister has added his name to this amendment. The amendment is also signed by the noble Lord, Lord Lester of Herne Hill, who has played a leading role in arguing for reform of this area of the law. The amendment is also in the names of the noble and learned Lord, Lord Carswell—a former Lord Chief Justice of Northern Ireland—and the noble Lord, Lord Bew.

I can explain the reasons for this amendment very briefly. It is no longer necessary to maintain as part of our law of contempt of court a criminal offence of insulting judges by statements or publications out of court. The judiciary has no need for such protection. As the noble and learned Lord, Lord Carswell, explained in Committee, the wise judge—and he, if I may say so, was a very wise judge—normally ignores insults out of court. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, made a similar point in a case he decided, as he may recollect. Judges, of course, are as entitled as anyone else to bring proceedings for libel, and some have done so.

The law of scandalising the judiciary could have been left in the moribund state in which it has rested for many years. However, the Attorney-General for Northern Ireland unwisely chose earlier this year to seek to breathe life into it by bringing a prosecution, later dropped, against Peter Hain MP for some critical comments he had made in his autobiography concerning a Northern Ireland judge. That prosecution had two main consequences. First, it substantially increased the sales of Mr Hain’s book and, secondly, it led to this amendment.

When we debated this subject in Committee on 2 July, the Minister gave a cautious welcome to the amendment but said, very properly, that the Government wished to consult on the matter. As a result of the debate in this House, the Law Commission expedited the publication of a consultation paper on 10 August in which it proposed that the offence of scandalising the judiciary should indeed be abolished.

I emphasise that the amendment will not affect other aspects of the law of contempt of court and in particular the powers of the judge to deal with any disruptions during court proceedings. I also emphasise that the amendment is not designed to encourage criticism of the judiciary. Much of the criticism to which judges are subjected is ill informed and unsubstantiated. However, even where criticism is unjustified, it should not be a criminal offence.

The amendment will not affect the law in Northern Ireland or Scotland, in the latter of which the offence is known as “murmuring judges”. I understand that in Northern Ireland more consultation is required. It is ironic that the impetus for this amendment came from the Peter Hain case in Northern Ireland, and now the anachronistic law that led to that case is to be abolished in England and Wales but not in Northern Ireland. I hope that the Minister can give us an indication of when consultations with Northern Ireland will be completed and a decision reached.

Meanwhile, I am delighted by the historic decision which I hope that this House will take tonight to approve an amendment abolishing the offence of scandalising the judiciary in England and Wales. As Justice Albie Sachs said on this subject in a judgment in the Constitutional Court of South Africa in 2001, respect for the courts will be all the stronger,

“to the degree that it is earned, rather than to the extent that it is commanded”.

I beg to move.

[Lord Lester of Herne Hill]

My Lords—

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, I wonder if my noble friend will give way. I want to intervene now because what I am going to say will help the shape of the debate. I realise that my noble friend and a number of noble and learned Lords may wish to contribute. I in no way want to cut short or pre-empt that debate, but I hope that my comments will establish the context for them to comment on what the Government intend to do.

As the noble Lord, Lord Pannick, told us, we considered a similar amendment to this in Committee in July. I said that the Government were sympathetic to the concerns raised about the offence of scandalising the judiciary but we wished to consider the issue further and to consult others. In particular, before moving to reform or abolish this offence, we wished to consider whether such a step could result in a gap in the law or have an unwanted side-effect.

As the noble Lord, Lord Pannick, told us, in this we had the benefit of the work of the Law Commission, which was and is currently reviewing the law on contempt of court. As the noble Lord said, it kindly brought forward the element of its review considering scandalising the court and published a paper for public consultation in August. The commission considered three options in its consultation paper—to retain, abolish or replace the offence—and it has concluded that the offence should be abolished without replacement. Its analysis was in-depth, examining the human rights aspects and considering the arguments for and against the various options.

The consultation closed in October, and the commission published a summary of responses last month and a summary of its conclusions yesterday. I was pleased to see that several noble Lords responded with their views, and that members of the judiciary and other legal professions were also well represented. Of 46 responses, some from organisations, 32 were in favour of abolition. The remainder expressed a variety of views, most favouring a replacement offence, but I note that only two favoured retaining the offence in England and Wales, at least for now.

We have also noted other views, such as those expressed by noble Lords in Committee, and have concluded that it is right that this offence should be abolished. We therefore support the amendment. However, we also noted the Law Commission’s observation in its paper that:

“It may be necessary to clarify that the abolition of this offence does not affect liability for behaviour in court or conduct that may prejudice or impede particular proceedings”.

We support that view that abuse of a judge in the face of the court, or behaviour that otherwise interferes with particular proceedings, should remain a contempt. The new clause includes a provision that will ensure such behaviour will remain subject to proceedings for contempt of court.

In contrast to the amendment we debated in Committee, which extended to Northern Ireland, this amendment applies to England and Wales only, as the noble Lord, Lord Pannick, explained. In July, I said that we would be consulting the devolved Administrations; noble Lords must remember the criminal law is a devolved matter in both Northern Ireland and Scotland. Scandalising the judiciary is also a common law offence in Northern Ireland. As I have said, we consulted with the Minister of Justice, David Ford, who has confirmed that he does not wish the Westminster Parliament to legislate on behalf of the Northern Ireland Assembly on this offence. Similarly, the Scottish Government have also confirmed that they do not wish us to legislate on their similar common law offence of murmuring judges. Given that this is a devolved matter in both jurisdictions and under the terms of the Sewel Convention, we wish to respect the wishes of the Scottish Government and Northern Ireland Assembly in this matter.

I am grateful to my noble friend Lord Lester and the noble Lord, Lord Pannick, for bringing this matter before the House. The Government are happy to support this amendment, and through it the abolition in England and Wales of the offence of scandalising the judiciary. I hope that my intervention at the start of the debate does not prevent other noble Lords and noble and learned Lords from making observations on where we are and where we are going.

[Lord Lester of Herne Hill]

My Lords, I declare a former professional interest in that I acted for the Northern Ireland Human Rights Commission in the aborted contempt proceedings in relation to Peter Hain and his publisher. I am extremely grateful to the Attorney General for Northern Ireland for his entirely misguided decision to move for committal because, but for that, I would not be standing here in support of the amendment. We owe everything to the Attorney General because it was that which caused me to contact the Law Commission and the Government, and to discuss the matter with my friend, the noble Lord, Lord Pannick, in the first place.

It is important that the Government have decided to do what we have just heard from the Minister, and that is most welcome. However, I pay tribute to the previous Government, and I see the noble Lord, Lord Bach, in his place when I say this. He will remember that the other antique and archaic speech crimes of sedition, seditious libel, defamatory libel, obscene libel and blasphemous libel were all abolished by the previous Government and Parliament for similar reasons connected with free speech.

So far as blasphemy was concerned, for the reasons given by the Minister, it was decided that, although we could abolish that offence in Britain, we could not do so in Northern Ireland. We left it to Northern Ireland to do so itself, and we thought that it would be easy to do there because Northern Ireland already had a law on incitement to religious hatred that was rather stricter than what we have in this part of the kingdom. However, nothing has happened on that issue in Northern Ireland because there is institutional paralysis about doing anything of the kind. I know that this matter has concerned the Northern Ireland Human Rights Commission, and exactly the same problem arises now. Even though the amendment springs from a problem that arose in Northern Ireland, I am doubtful as to whether the Northern Ireland Government will agree to bring their common law into line with what we are doing in England and Wales. However, given that two other supporters of the amendment know far more about Northern Ireland than I would ever know, I shall not say more about that matter.

I should like to make one other point. Although abolishing this crime in this country will make very little difference because the law is entirely obsolete, it will make a difference in the rest of the common law world. All the textbooks, including that of the noble Lord, Lord Borrie, say the same thing, which is that, although this is an outmoded and archaic offence, there remain many parts of the common law world where it is enforced. The most notorious example occurred in Singapore last year, where Mr Alan Shadrake, who wrote a book criticising the Singapore judiciary’s attitude towards the death penalty, was committed for contempt, sentenced to prison, fined and told to pay legal costs. This gentleman, who is about my age and a distinguished senior writer, was condemned in that way, with the Singapore Court of Appeal applying its view on our case law and this offence. By abolishing the offence today we do not really change much in this part of the world because, apart from what happened in Northern Ireland, it is simply never invoked anymore. However, it will send an important message across the common law world. That is another reason why I am so delighted that the Government have decided to take this course.

[Lord Carswell]

My Lords, I support this amendment. I spoke briefly in Committee and I intend to be brief again today, particularly in view of the way in which the House has so far received the amendment and what the Minister has said.

Since that debate in Committee, the Law Commission has published this admirable consultation paper, which contains a full and helpful discussion of the issues, the principles and the possible solutions. My view, which was very direct and brief in Committee, remains unchanged. The special sanction for judges remains unnecessary. My reasons remain the same. Judges have to be hardy enough to shrug off criticism, even if it is intemperate or abusive, which has happened; even if it is unfair and ill-informed, which has certainly happened; and even if it is downright deliberately misleading, the same applies.

I speak from some knowledge. I have been scandalised on several occasions in the course of criminal trials at which I was the presiding judge without a jury. It was intemperate, certainly ill-informed and extremely offensive. I was deeply offended and hurt, but I certainly did not consider attempting to ask anyone to invoke the special procedure of scandalising the court. If anyone had suggested it, I would have firmly discouraged him at that time, which is a good many years ago now.

After I read the Law Commission consultation paper, I considered quite seriously whether there was room for the possibility of a new and more specific offence, penalising possibly deliberate and malicious targeting of a judge by making untrue and scandalous allegations into something of a campaign. I am persuaded, however, that it is better not to introduce any such offence into the law but simply to leave it at abolishing the offence of scandalising.

My reasons are three. First, special protection of judges immediately invites criticism from those who are all too ready to give vent to it. Secondly, if a judge had to give evidence in such proceedings, it would create a further and better opportunity for intrusive cross-examination and create a field day for publicity for critics of the judiciary. Thirdly, as I have said before, judges have to put up with these things; they have to be robust, firm and, on occasions, hard-skinned enough.

The Law Commission, in my view, was right in its provisional conclusions and I hope that when the report has been considered, the responses will confirm that. I would certainly support the amendment that the offence should simply be abolished.

Finally, as noble Lords have said, this of course does not apply in Northern Ireland. The authorities there will form their own view and take their own course. I cannot and do not in any way speak for them, nor have they consulted me about such provisions. I have to say, and I hope that they will take this into account, that I cannot see any reason why judges in Northern Ireland should have any different protection from judges in England and Wales against scandalising. I think the same considerations apply, and having been a judge there for 20 years, I would certainly not wish to see any differentiation.