§ `(1) A person aggrieved may appeal to the Court of Appeal, if that court grants leave, against—
- (a) an order under section 4 or 11 of the Contempt of Court Act 1981 made in relation to a trial on indictment;
- (b) any order restricting the access of the public to the whole or any part of a trial on indictment or to any proceedings ancillary to such a trial; and
- (c) any order restricting the publication of any report of the whole or any part of a trial on indictment or any such ancillary proceedings, and the decision of the Court of Appeal shall be final.
§ (2) Subject to Rules of Court, the jurisdiction of the Court of Appeal under this section shall be exercised by the criminal division of the Court, and references to the Court of Appeal in this section shall be construed as references to that division.
§ (3) On an application for leave to appeal under this section a judge shall have power to give such directions as appear to him to be appropriate and, without prejudice to the generality of this subsection, power—
- (a) to order the production in court of any transcript or note of proceedings or other document;
- (b) to give directions as to persons who are to be parties to the appeal or who may be parties to it if they wish and as to service of documents on any person; and the Court of Appeal shall have the same powers as the single judge.
§ ( ) Subject to Rules of Court made by virtue of subsection (6) below, any party to an appeal under this section may give evidence before the Court of Appeal orally or in writing.
§ (5) On the hearing of an appeal under this section the Court of Appeal shall have power—
- (a) to stay any proceedings in any other court until after the appeal is disposed of;
- (b) to confirm, reverse or vary the order complained of; and
- (c) to make such order as to costs as it thinks fit.
§ (6) Without prejudice to the generality of section 84 of the Supreme Court Act 1981, Rules of Court may make in relation to trials satisfying specified conditions special provision as to the practice and procedure to be followed in relation to hearings in camera and appeals from orders for such hearings and may in particular, but without prejudice to the generality of this subsection, provide that subsection (4) above shall not have effect.
§ (7) In the application of this section to Northern Ireland—
- (a) subsection (2) shall be omitted; and
- (b) the reference in subsection (6) to section 84 of the Supreme Court Act 1981 shall be construed as a reference to sections 52 and 55 of the Judicature (Northern Ireland) Act 1978.'. —[The Solicitor-General.]
§ Brought up, and read the First time.5.39 pm
With this it will be convenient to take Government amendments Nos. 9, 10, 274, 243 and 11.
§ The Solicitor-General
This new clause and these amendments deal with the need identified in Committee here and in another place to provide a review of an appeals mechanism in relation to orders by the court which either restrict or prevent reports of Crown court proceedings under section 4 and 11 of the Contempt of Court Act 1981 or orders which restrict public access to the courts. As the House knows, there have been complaints that these powers have on occasions been misused and that currently no remedy exists, contrary, among other things, to our obligations under the European convention on human rights.
In Committee, the proposal provided merely for an opportunity for judicial review by means of an application for an order of certiorari in relation to orders under the Contempt of Court Act 1981, not for orders for hearings in camera. We promised to look again at this matter and to seek to provide a comprehensive and effective appeals mechanism which would meet our obligations under the European convention to provide a remedy on both these classes of orders. Several points of difficulty arise in relation to this matter, which explains why we have not come forward earlier with these proposals, but I am satisfied that the close attention that we have now given to the matter means that we have the right answer.
The major differences between the form of remedy now proposed and the one already in the Bill lie in its scope and form. The new clause will allow challenges to any order which restricts reporting of Crown court proceedings as well as any order which restricts access to those proceedings. Therefore, any aggrieved person—notably the press—can challenge the Contempt of Court Act orders, orders under section 39 of the Children and Young Persons Act 1933, which prohibit the identification of children involved in trials concerning decency or morality, and orders for hearings in camera. The remedy will be available only against an order, not against a general statutory prohibition or a procedure which is not activated by a specific order of the court. In particular—this is obviously right —he procedure will not be available to challenge the anonymity of rape victims under section 4 of the Sexual Offences (Amendment) Act 1976.
The other major change is that, instead of providing for a judicial review, the new clause will establish a statutory right to appeal to the Court of Appeal criminal division in place of judicial review. That is wholly appropriate. First, the problems that we are meeting have arisen in the Crown court in the course of criminal trials and it is appropriate that appeals should be heard by judges who are familiar with the context in which the grounds for appeal arise. Secondly, the use of an appeal rather than a judicial review removes the possibility of future arguments on points of jurisdictional theory. There may be arguments now about how far a court of law can make an error of law within jurisdiction without being subject to judicial review. Such difficulties do not arise on an appeal.
The House will see from subsection (1) of the new clause that the appeal will be subject to a requirement of leave. That is standard in the criminal division and may work to an appellant's advantage. Leave must be sought from the Court of Appeal rather than from the Crown court judge. The Court of Appeal's decision will be final. That is to ensure that any possible disruption to the Crown court is minimised. The Court of Appeal criminal division can deal with these appeals promptly. The same cannot be said of appeals to the House of Lords, and we have looked 609 into that extremely carefully. In fairness to the accused and generally to the advantage of the administration of justice, we cannot risk delaying a criminal trial for long periods pending a second appeal.
Subsections (2) and (3) deal with the allocation of this business to the criminal division and provide that a criminal judge will decide questions of leave, as is usually the case, with the application for leave being renewable before a full Court of Appeal, should leave be refused.
Subsections (4), (5) and (6) give the criminal division new powers, which are important. These appeals will be structured like civil applications, as they are concerned with the assertion of rights rather than the punishment of offences. For this reason the criminal division must have a small civil code, giving it appropriate power to deal with these appeals. The single judge must have power to order that documents, particularly any transcripts of an application for a hearing in camera, should be produced to the media so that they can pursue their remedy. Further —this is an important point—he must have power to guide or determine who should be a party to the appeal and how they should be served with process.
To illustrate the importance of that, the single judge may consider it impossible for an appeal to be determined unless a witness who has benefited from the order complained of this before the court. If that witness has given or is to give evidence in camera, the press may not even know his name, let alone his address for service. Directions from the single judge, given at the leave stage, can solve these procedural problems. Subsection (4) allows for these directions to be given.
The full Court of Appeal will also need new powers as the criminal division will be asked to deal with business other than appeals against conviction or sentence. Subsection (6) gives it powers to confirm, reverse or vary decisions, or to make orders as to costs. Subsection (6) also empowers the Court of Appeal to stay other proceedings —in effect, the Crown court trial—pending an appeal. That step should be avoided wherever possible in the interests of justice. However, there may well be cases where it would be manifestly unjust to allow the Crown court trial to continue before the appeal is resolved. Therefore, it is proper to allow judges of the Court of Appeal power to do what is best in each individual case.
Subsection (5) gives the appellants the right to adduce evidence before the Court of Appeal. That is important, as the likely appellants, who are the press, will not have had any prior opportunity to put their case.
That summarises the parts of the new clause which will shape the general nature of this procedure. Rules of court will spell out specific steps. Basically, the press will launch an appeal within a short time limit of about seven days and seek leave from a single judge. The judge may grant leave immediately on seeing the papers or the press may seek an appointment to ask for the production of transcripts or, for example, directions for substituted service. If leave is granted, the appeal will be argued before a full court in the usual way. Appointments will be given as promptly as possible, and it is intended that rules of court will give appellants an express right to apply for the procedure to be expedited.
The House will see that subsection (7) makes provision for a special procedure. I should perhaps say an 610 "exceptional" procedure, because the vast majority and possibly all the appeals brought under this new provision will follow the procedure just outlined. However, a small sub-class of cases heard in camera will involve information of high sensitivity. For example, matters of national security may arise or information may be brought out which will identify and hence put at risk a member of the security forces. The Government must protect information such as this, and any prosecutor whose evidence includes such information must be able to establish conclusively before leading any evidence that his case will be heard in camera. Orders for hearings in camera will be open to challenge in such cases, but the form of appeal will be private.
The prosecution will give public notice of an intention to apply for the hearing to be held in camera. That will be given before the start of the trial so that the time gap between public notice and the trial corresponds to the time limit for appeal. That will allow the press to consider whether it wishes to challenge the order, if it is made. The prosecution will apply for the hearing to be in camera at the very start of the criminal trial and will seek an adjournment until the next day. The press will thus have the rest of that first day in which to file and serve notice of appeal. If the press appeals, the whole process will be conducted by the Court of Appeal in private. Under that procedure an appellant will not have to specify ground for appeal, which is, of course, an advantage to the appellant, but he will not be entitled to any information to assist in the conduct of his appeal, for reasons which are self-evident, nor will he appear before the court.
The Court of Appeal, both at the leave stage and when considering the substantive appeal, will review the papers that were before the Crown court judge and any available transcripts and will inform the appellant of its decision. In that way, highly sensitive information will be protected, the press will have a remedy and we will avoid putting the prosecutor in an impossible position, as he will not have to lead any evidence until he has established that there will be no appeal or knows its result.
As I have said, no one should think that this exceptional procedure will form a large part of the appeal procedure. It is designed primarily to protect information concerning national security. It may be that the press will recognise the existence of national security issues and decline to appeal in those cases, in which case the special procedure will never be used. In any case, it will be rare for the prosecution to resort to that system.
Almost all appeals brought under this clause will concern ordinary criminal trials, the sort of trials in which it has been suggested that the court's powers have been misused in the past, and so will be determined after a full hearing in the usual way. It is, however, necessary and responsible to make provision for those new exceptional cases where our national security may be at risk.
The remainder of the new clause makes some necessary adaptations to the clause and consequential amendments to facilitate its application to Northern Ireland, together with consequential amendments to the long title.
§ Mr. Peter Archer (Warley, West)
We begin this debate on a less controversial note than in some of the exchanges that have occurred in the House over the past few days.
§ Mr. Archer
I am sincere about that, even if I do not carry all my hon. Friends with me.
We are grateful to the Solicitor-General for having responded to our representations, for the thought that he and the Lord Chancellor have obviously given to the problem and for the clear way in which he has expounded the proposals. I appreciate the difficulties when notes are passed to him, but perhaps I could have his full attention. I am sure that he will appreciate that a great deal of what he said is new to us and that we will need a little time to consider some of these matters because they are difficult matters and, as he said, they seek to strike a balance. In some circumstances, I might have been content to leave the matter there, but as today the House is not under the same time constraints as on some other occasions, he will forgive me if I press him a little and perhaps add a few of my own reflections.
I recollect that when I, the Solicitor-General and my right hon. and learned Friend for Aberavon (Mr. Morris) served on the Standing Committee on the Contempt of Court Act 1981, one matter, on which I am sure we were all agreed, was that normally the course of justice should be open. Unless there are good reasons to the contrary, the public have a right to know what is going on. That is healthy for the courts, for the judicial service, for the legal profession and certainly for those who have occasion to litigate there.
That is a principle which Opposition Members have invoked from time to time and will no doubt continue to do so, but it has emerged, particularly over the past few years, that some matters may be mentioned in court which cannot be made public because it would not be in the public interest to disclose them. Certainly, it would be oppressive to some individuals if there were no power to inhibit them, so I accept that judges must have that power.
We are indebted to the Guild of British Newspaper Editors and to the National Council for Civil Liberties for a recent survey in which they inquired of 200 newspaper editors in England and Wales about secrecy orders of various kinds that were made in their local courts. The questionnaire related to about 70 Crown courts. They discovered, for example, that in 15 courts editors had experienced use of the common law power, which we discussed in Committee and which had been rather overlooked by the Government in the early stages of the Bill.
The survey's conclusions were quite interesting. Its first conclusion commented on the extent to which Crown courts depart from the open justice principle. Its second conclusion referred to the wide use made of postponement orders. I agree with the comment muttered by my hon. and learned Friend the Member for Leicester, West (Mr. Janner) that a postponement order can mean death for a newspaper story. It is no use reporting on Wednesday something that happened on Monday morning. There was a particular problem about that and about the use of section 39 orders under the Children and Young Persons Act 1969.
The survey came to what I thought was a surprising conclusion: that, given the number of restriction orders, it is inevitable that some appear to be inappropriate and even unlawful. I am sure that the survey was trying to be fair, but I do not accept that it is inevitable that judges will sometimes make such orders without considering whether they are lawful.
612 The survey also concluded that the absence of an official record of restriction orders makes it difficult to keep the orders under review. Perhaps the Solicitor-General will tell us what consideration has been given to some form of official record of restriction orders so that we know how many have been made, where they have been made and the general pattern of when and how they have been made.
The survey further concluded that there is a noticeable lack of consistency between regions in the use of restriction orders. Judges are human and justice is not administered by computer, so it is inevitable that there will not be total consistency, but there should be some attempt to achieve consistency in that matter.
The Solicitor-General mentioned that such matters will now be heard by the criminal division of the Court of Appeal, where we hope to obtain some guidance on those matters. But it may not be too much to ask also for occasional judicial conferences about the use of such orders of the kind which now exist to introduce consistency into sentencing. The survey concluded finally that there is a lack of uniformity in the manner by which courts make known the existence of restriction orders.
We should devote attention to all those matters, as they are not all met by the new clause. Mr. Keith Parker, the current president of the Guild of Newspaper Editors and editor of the Wolverhampton Express and Star, which you, Madam Deputy Speaker, the Minister of State and I hold close to our hearts, made a number of cogent comments. He said that it simply was not good enough for the Government to maintain that Crown court judges never made unlawful orders. Clearly, the Government no longer maintain that, and, to that extent, we have all relaxed.
I want to add this point as a measure of balance, and I can do this in the case of Mr. Parker simply because he and I know each other so well. It is not only judges who occasionally get these things wrong. Sometimes newspapers are not beyond criticism in the way in which they report current legal proceedings. I remember a distinguished predecessor of Mr. Parker in both the offices that Mr. Parker now holds. Mr. Clem Jones, whom we all held in great affection, in trying to establish the responsibility shown by local newspapers in reporting legal proceedings, once induced his wife, Dr. Marjorie Jones, to conduct a survey on how that had been done. If I remember correctly, that survey assisted her to gain her doctorate. She was kind enough to send me a copy of her book. Her report was a devastating indictment of the way in which many local newspapers reported legal proceedings.
The survey showed that the prospect of proceedings being reported has very little to do with factors such as the public interest in their being known or the public thirst for serious information about what happened in those proceedings. Rather, they are reported because people were interested in the identity of people involved, whether they related to royalty, whether they were physically attractive, information about their ages and matters of that kind. I am sure that Mr. Parker will forgive me if I emphasise what the Solicitor-General properly said —that there is a genuine balance to be maintained.
As I have said, my right hon. and learned Friend the Member for Aberavon and I served together in Committee on the Contempt of Court Act 1981. At that time we had not considered carefully some of the problems because 613 none of us believed that they existed. If I recall correctly, it emerged while the Committee was sitting that such problems did exist. There was a notorious blackmail case in which an attempt by the judge to restrict publication of the names of the complainants was disregarded, with devastating consequences for the complainants. That was a serious matter, in which the press behaved irresponsibly. Unhappily, that case emerged rather too late to be considered by the Phillimore committee which led to the Contempt of Court Act 1981. The case arose just in time for sections 4 and 11 to be added to the 1981 Act, but not early enough for us to reflect on the implications as carefully as we would have done had we had a little more time.
We hoped that the problem would be dealt with, as the Solicitor-General said, by the procedure of judicial review. However, the House will recall that in the Ponting trial it was proposed that there should be a daily television programme keeping the public abreast of the course of the trial, which would take the somewhat dramatic form of a representation of the trial with actors, whom I am certain would have been paid-up members of Equity, taking the parts of the various characters in the trial.
An order was made by the judge under section 4 of the Contempt of Court Act 1981 prohibiting the showing of that programme until after the trial had finished. It is not for me to embark on a discussion of whether that was a proper order to make, but I am bound to say that I was not surprised that the order was made. An attempt was made to have the matter reviewed by judicial review. Whatever the merits of the order, it was clearly right that someone should be able to review the decision of a judge of first instance.
It was pointed out that section 29 (3) of the Supreme Court Act 1981 prohibits a review ofmatters relating to trial on indictment".The Court of Appeal held that the matter related to trial on indictment, and it would have been surprising if it had reached any other decision.
An earlier case involved an order being made under section 11 of the Contempt of Court Act 1981 prohibiting the naming of certain witnesses in which Lord Justice Stephen Brown, before his happy translation to further office, holding again that there was no power of judicial review, expressed sincere regret that that was the case.
Those problems confronted the Government when this Criminal Justice Bill was introduced. They responded by introducing clause 151. I suspect, as the Solicitor-General has half hinted, that they introduced that partly to keep us straight with the European convention on human rights, because they did not want to accumulate too many difficulties in Europe, but I have no doubt that they introduced it also because they genuinely believed that something of this kind should be done. I would not dispute that. Having embraced the principle, there were shortcomings, which have already been honestly and openly elaborated by the Solicitor-General.
Another problem was that the proposal did not relate to orders made under the common law power, but only to orders made under sections 4 and 11 of the Contempt of Court Act 1981. That is now rectified. But the new clause itself raises questions. I understand why what I would perhaps regard as an omission from the new clause was made. There is no appeal to the House of Lords. As I 614 understand it, that is because the House of Lords cannot necessarily guarantee a quick appeal. I cannot believe that such an appeal would arise in many cases. Perhaps we would not be inundated with applications for leave to appeal to another place, with all the resultant problems. However, I understand the reasoning behind this.
I thought to some extent that the Solicitor-General gave part of the answer. He said that where there was a proposal for an application to be made to hear something in camera, it was hoped that that would be decided by the prosecution early, and well before the date for the trial to begin. One would hope that the same thing might be said about applications for the orders that we are discussing.
One would hope that the prosecution would consider whether it was going to apply for an order. Normally an application would come from the prosecution. If an application is to come from the defence, it is not unreasonable to hope that defence lawyers would direct their minds to that question well before the trial opens. If that happens, an application could be dealt with on directions, and whatever appeals were required could take place and the whole matter could be settled before the trial opened. I am not sure whether I understood what the Solicitor-General said would happen if for some reason that could not be done, or someone had not considered an application. One consequence of this proposal is that the Crown prosecution service would need the manpower and resources to carry out this function.
§ Mr. Gerald Bermingham (St. Helens, South)
Does my right hon. and learned Friend agree that until the Crown prosecution service achieves the right degree of professional standards, by employing legally qualified people in Crown courts, there is no hope that people who do not have the degree of knowledge required in these matters will ever get round to doing what he has suggested?
§ Mr. Archer
I must not embark on too long a disquisition on the Crown prosecution service. But I agree entirely with what my hon. Friend has said. Some day we may have the opportunity of a somewhat more extended debate on the CPS.
I hope that the Solicitor-General will elaborate on one point which he made, as I did not completely grasp what he said. I am sure that that is my fault, not his. I am not sure whether he said that it would not follow automatically that, because one of the orders was made, there would be an adjournment of the main proceedings until the appeal had been resolved. That is a little surprising.
I confess that when I first read new clause 71 I had not grasped the need to write something like that into it. But if there is a question whether an order has been lawfully and properly made, to proceed with the trial before that question has been resolved would destroy the whole point of raising it. There is no point in the media reporting proceedings five or six days after they have taken place. I understood the Solicitor-General to say that there will be discretion as to whether or not to proceed. I hope that it will usually be exercised in favour of open proceedings; otherwise, reporting opportunities could be totally destroyed.
I understand all the disadvantages of adjourning criminal proceedings. Any hon. Member who has been involved in them will know of the problems that arise when a date has been fixed and reserved by counsel, solicitors 615 and experts, and for which witnesses have been subpoenaed—and others may have postponed holidays —and someone then applies for an adjournment. But it could be equally serious if the trial proceeded before matters were resolved; and I hope that appeals will be resolved early by the Court of Appeal. A problem could arise in relation to the House of Lords, and I understand the Solicitor-General's difficulties in that respect, all though I am not sure they would be as great in practice as he foresees.
The Government have responded to our representations and have obviously given them considerable thought. It would he churlish of me if I were to do other than to thank the Solicitor-General for his comments and actions. Over a period we shall see how this provision works, and, having done so, it may be that we will reassess them later.
§ Mr. Greville Janner (Leicester, West)
I associate myself with the remarks of my right hon. and learned Friend the Member for Warley, West (Mr. Archer) and will add only two points. First, I am concerned about the time element. I understood the Solicitor-General to say that seven days would be allowed in which to lodge an appeal. What will happen to the trial meanwhile, after the appeal is lodged and before it is heard? Will there be a break in the trial, and will the jury be left to go home? Will the accused be left with misery hanging over his or her head in the knowledge that, as an accused person, he or she is presumed to be innocent?
One of the greatest of trials in all trials is waiting for a verdict and for the end of the suspense. I cannot understand why a seven-day period should be allowed. The appeal should be heard within 24 hours at the very most, if not immediately. There should preferably be no suspension of the trial and immediate access to the Court of Appeal—if necessary before that court's normal proceedings begin or immediately afterwards, or a special court should be convened for the purpose. The delay allowed cannot work in practice.
Secondly, I have for many years been concerned with the agonies of innocent people who are tried and eventually found to be innocent but who meanwhile suffer hell on earth and find, especially if they are otherwise respectable people, that their lives have collapsed into ruins around them. I have dealt in particular with hundreds of cases involving alleged shoplifters, some 50 per cent. of whom, having been charged with that offence and pleaded not guilty, have been acquitted.
For many of them, the greatest misery lies in the reporting of the proceedings. It is essential that our courts should be open to the press, but it is essential also that the press should exercise their reporting rights with discretion and occasionally with compassion. There is no way in which discretion and compassion can be imposed upon the media, nor am I seeking to find such an impossible route. Nevertheless, I impress upon the House, and through it the press, the need to act with kindness, care and sensitivity and not, as happens, alas, on many occasions, deliberately keep open or reopen wounds in cases where people have slipped from the path we would have chosen for them.
New clause I is necessary for the freedom of the press, but it contains inherent difficulties. I hope that the Solicitor-General will assure the House that the question of the time limit will be dealt with in another place, where 616 it may be reconsidered, or in this House, if necessary by taking action to ensure that the workings of the clause are efficient and fair.
§ Mr. Bermingham
I regret missing the first few minutes of the Solicitor-General's remarks. The two points I wish to raise stem from the remarks of my hon. and learned Friend the Member for Leicester, West (Mr. Janner), with whom I take issue.
§ Mr. Bermingham
If there is to be a delay before the appeal can be heard, the trial must obviously be stayed for practical purposes. If an order has been refused, the damage can be done in the period before the hearing of the appeal against that refusal, and it is that damage that we seek to limit. The Solicitor-General well knows that a considerable number of cases occur annually—although that number may vary from year to year—where publicity can have the most damning effect on the parties involved. Such publicity may even relate to trials which have yet to begin and to related matters of that kind. Therefore, it is clear that the trial itself needs to be stayed until such time as the appeal against either the refusal or the granting of an order has been heard.
An appeal could be heard in less than seven days, but practical experience from both sides of the fence suggests that to proceed within 24 hours is likely to be impracticable, bearing in mind that it is usually solicitors who will have to draw up most of the paperwork. Solicitors are often misunderstood by the Bar with regard to the amount of work that is necessary in such cases. Solicitors must be given proper time in which to draft the grounds of an appeal and complete all the necessary paperwork.
A court of appeal will take both oral and written evidence. I shall return to the words "in writing" later, because they concern me. Evidence will have to be gathered by both parties to the appeal, but much as the will is often there to proceed expeditiously, sheer practical common sense tells me that one day is not enough time in which to marshal the arguments and witnesses required, though perhaps it could be done in four or five working days. It may be that the party who seeks to appeal against an order made on a Friday will have a racing advantage in having the Saturday and Sunday to get on with matters, because the proceedings will naturally be stayed over the weekend.
I ask the Solicitor-General carefully to reconsider those aspects and the practicalities involved. If he is minded to alter the time limit, I hope he will bear in mind that those who have to prepare the paperwork need to be given reasonable time in which to do so. They need also an opportunity to locate and procure their witnesses.
I turn to the question of the witnesses themselves. In a contested matter, written evidence is extremely difficult 10 cross-examine, and it may often lead the court into a misunderstanding about the nature of certain matters. I am very much against appeals being heard by way of affidavits. If the written evidence of affidavit is withdrawn, the other side is given the opportunity to file a counter-affidavit. How on earth is one to know what questions to pose to a witness whose evidence is only in writing?
617 Perhaps the Solicitor-General will be kind enough carefully to reconsider his thoughts on "in writing"—at least, they were in the draftsman's mind—for one would hate to see develop a practice whereby the arguments made by one side or the other in such appeals degenerated into a circus-like operation of standard written letters. That is something that we have seen in the past. One tends to have the same sort of evidence time after time and, if there is no right to challenge, that can create a dangerous precedent.
I end, as I began, with a plea that any time given should be reasonable so that those who prepare the work have time in which to do it efficiently and expeditiously.
§ The Solicitor-General
I am grateful to the right hon. and learned Member for Warley, West (Mr. Archer) for his welcome for the new clause and the amendments. He rightly mentioned the Guild of British Newspaper Editors, and we are grateful to it for its constructive criticism and ideas. It has had to live with the problem as it has developed over the years and it is common ground that it has developed rather more than we anticipated when the right hon. and learned Gentleman and I served on the Committee which considered the Contempt of Court Act 1981. May I also mention the constructive attitude of Mr. Tim Crook, who has been closely involved in the matter?
The right hon. and learned Gentleman asked whether the terms of the order were recorded and whether any central record was kept of the number of occasions on which orders of this nature were made. The terms of the orders are recorded but, as I said in Committee, there is not a central record, and until we become more computerised it will be understood that it would not only be costly but administratively burdensome, if not prohibitive, to try to keep a central record.
The right hon. and learned Gentleman urged that, through judicial conferences or other methods, steps should be taken to encourage consistency in the way that the powers under the Act and the common law powers should be used. That is a matter for the judge, but the right hon. and learned Gentleman will know that it will be open to the Court of Appeal under its new powers to give guidance through guideline cases, if it thinks it appropriate, as it does in other criminal matters. It will also be open to the Judicial Studies Board, through the conferences at Roehampton and elsewhere, to give guidance and to encourage consistency. That is a matter for the judges——
§ Mrs. Ann Taylor (Dewsbury)
As a non-lawyer, I am somewhat hesitant to intervene, but, as I understand it, if there are restriction orders on reporting cases in the magistrates court, the appeal there goes to the divisional court. Here we are dealing with the Crown court and the appeal goes to the Court of Appeal. How does the Solicitor-General intend to ensure consistency there? A case could start in the magistrates court and one decision could be made there, and a later, different decision could be made when the case reached the Crown court.
§ The Solicitor-General
I think that the answer is that the president of the divisional court is the Lord Chief Justice and he has a close control over the Court of Appeal, criminal division. We are dealing with High Court judges who frequently move from one division to the other and they will all come together in their interests through the 618 Judicial Studies Board. Therefore, the opportunities for consistency at a high level present no difficulties. I hope that that is of comfort.
We fully understand the importance to the press of the ability to report contemporaneously, but equally, when one comes to deal with the matter of principle, a balance needs to be struck. That balance was rightly referred to by the hon. and learned Member for Leicester, West (Mr. Janner) who pointed out the hardship that is caused to a defendant in a criminal case by delay. There is also the public interest in the administration of criminal justice which does not brook delay without an overwhelming reason. Consequently, it would be wrong to think that there should be an adjournment in every case.
Although the ability to report contemporaneously is understood, the fundamental right that we wish to protect is the ability to report at all when an order has been given in a case where the Court of Appeal subsequently decides that it should not have been given and where currently many would argue that an order was misplaced. Consequently, it must be a matter for the courts, in weighing the circumstances of the individual cases, to decide whether there should be an adjournment.
Before I forget, I want to make a point in relation to my opening speech. When we were drawing up the new clause we made a drafting amendment which caused us to drop a technical point that was mentioned in a previous subsection (3). For the benefit of those who may read my speech in Hansard,it should be known that I referred to some subsections incorrectly. I draw attention to that to avoid confusion.
§ Mr. Archer
Before the Solicitor-General leaves the problem of the dilemma of whether to adjourn, does he agree that that dilemma could frequently be avoided with adequate foresight on the part of those who want to make the application? Will he emphasise that?
§ The Solicitor-General
Yes, I agree with that.
I thought that I detected the thrust of spurs into hobby horses when the hon. Member for St. Helens, South (Mr. Bermingham) referred to the Crown prosecution service. The service has had its problems, and still does, but they are being overcome in a way that I think is widely recognised in the courts. It will well understand the importance of seeking to make applications early, and will have that very much in mind.
We discussed the matter of time limits. I know that the hon. and learned Member for Leicester, East must leave shortly. I can see the good sense in seeking to appeal within 24 hours, but the hon. Member for St. Helens, South rightly pointed out the practical difficulties of making it a requirement. There is no problem from the point of view of the legislation, because the time limit will be dealt with by rules of court, so there is an opportunity to listen to and consider the points made in the debate. However, seven days is more realistic than 24 hours as a matter of rule, although 24 hours would be desirable as a matter of practice wherever it is possible.
§ Mr. Bermingham
Will the Solicitor-General undertake to bear in mind the point that I made about the dangers of written evidence?
§ The Solicitor-General
If I understood the hon. Gentleman's point aright, he was anxious about written evidence being forced upon people or used generally. The 619 opportunity to introduce written evidence must be an advantage. The requirement to do so is limited. The only case where there is no option but to make a written submission is in the special category of case, perhaps one involving high security, where obviously the appellant cannot be apprised of the reason or the purpose of holding it in camera would be overborne. But that is not so much a matter of evidence as of submission. However, I shall certainly draw his point to the attention of those involved. I commend the new clause to the House.
§ Question put and agreed to.
§ Clause read a Second time, and added to the Bill.