§ 6.26 p.m.
§ Lord WIGODER
My Lords, I beg to move that this Bill be read a second time. Four weeks ago today, Mr. Justice Cantley began his summing-up at the Central Criminal Court. There followed, as your Lordships will remember, a lengthy retirement by the jury and, as the minutes passed into hours and the hours passed into days, so I am sure all your Lordships will have shared with me a feeling of deep sympathy with those who were undergoing the agony of that very great ordeal, because their whole future was in jeaopardy and depended upon the verdicts of the jury. I have in mind particularly the journalists and the witnesses who stood to make so much money if only there were a conviction, and whose fondest hopes were so bitterly dashed by 1207 the unkind acquittals which the jury in due course returned.
One had hoped since 1966 that this situation would never occur. I say "since 1966" because, as your Lordships will remember, there then occurred the Moors Murder trial, in the course of which it transpired that the chief witness for the prosecution had been paid by a newspaper under a contract that involved his providing information to them. The noble and learned Lord, Lord Elwyn-Jones, will remember this well because he was Attorney General at the time. It is right to say on that occasion there was no evidence that a bigger sum was offered to the witness in the event of a conviction; hut misgivings were felt as long ago as that time that those payments might lead to the colouring of evidence and might prejudice the proper conduct of a trial.
In the result, the Press Council made a declaration of principle about this matter. What they said was this:No payment or offer of payment should be made by a newspaper to any person known or reasonably expected to be a witness in criminal proceedings already begun in exchange for any story or information in connection with the proceedings, until they have been concluded".Unhappily, the Press Council then left a "get-out" clause at the end, which said this:The Council does not intend that the principles enunciated shall preclude reasonable contemporaneous inquiries in relation to the commission of crime when these are carried out with due regard to the administration of justice. There may be occasions on which the activities of newspapers are affected by over-riding questions of public interest, such as the exposure of wrongdoing".In other words, the Press Council left it to each newspaper to be the judge in its own cause as to whether the situation was such that the principles might be flouted.
However, little happened in the succeeding years as to this form of journalism. It was considered by the Phillimore Committee on Contempt of Court in 1974. Perhaps I might define "contempt of court"—because it may become relevant in the course of this short debate—as conduct which tends to obstruct, prejudice or abuse the administration of justice. What the Phillimore Committee reported in 1974, with some prescience, was this:One particular activity referred to is the offer by the Press, or indeed anyone else, to 1208 purchase a story from a witness in legal proceedings, usually for publication after the trial, the purchase being made contingent upon the outcome of the case. The object of the Press in making the offer contingent would be to ensure that it did not buy a worthless asset. If in a criminal case, for example, the trial ended in an acquittal the story could well be unpublishable for fear of defamation proceedings. The purchaser would probably not intend to pervert the course of justice nor even necessarily foresee this as a likely consequence unless the offer was very large, in which case intention or foresight might legitimately be inferred. But the offer could clearly have serious effects upon the way the witness gave his evidence, and if the position was revealed at the trial upon the witness's credibility and the outcome of the trial.That was in paragraph 78.
The Committee went on to say in the following paragraph:We regard the potential dangers as sufficiently grave to warrant further inquiry as to its prevalence and if found necessary legislation to restrain or wholly prohibit this practice. We recommend that such inquiry should be carried out.Such inquiry was not carried out, and the matter was next considered by the Royal Commission on the Press, presided over by Lord McGregor, which reported, as your Lordships will remember, in 1977. It was then able to report that, as a result of what it had been told by the Press Council—this is in paragraph 10.150—There has been a decline in certain kinds of complaint and in degrees of gravity within complaints relating, for example, to cheque book journalism.It was able to report in the same chapter at paragraph 10.147:We inquired of the newspapers and the Press Council about cheque book journalism. As was to be expected, we found no evidence of payments to witnesses or potential witnesses of the kind which were criticised so widely in 1966.It concluded that section by saying:We do not recommend legislative measures to deal with cheque book journalism. We do, however, urge the Press Council to keep a special watch to ensure that its declaration is obeyed.It is clear, therefore, from what has happened in the course of the Phillimore Committee and the Press Council's declaration, that cheque book journalism of a kind which involves payments to witnesses may well be a breach of the Press Council's declaration, and may well amount to a contempt of court. Despite that, there have been in the recent trial a series of instances that must cause grave anxiety. I do not propose to refer to them all; four, I think, will suffice.
1209 There was at some stage—and I do not know the date nor the precise terms—a contract between the London Evening News and one of the prosecution witnesses, a Mr. Newton. Mr. Newton was asked as to what that contract was about, in the course of an American television programme on 10th September 1978. What Mr. Newton then said—and I quote from the transcript—was this:The deal that the London Evening News wanted was that if I could reveal conspirators in this, the conspiracy to murder, they would offer various sums of money. They had a price on the heads of various people—£150,000, which is 300,000 dollars, for Harold Wilson, the Prime Minister, 200,000 dollars for Jeremy Thorpe and 120,000 or 130,000 for David Holmes, if I could prove to them that they were involved in the conspiracy to murder".That is such a fanciful, preposterous suggestion, that any newspaper could seriously have indulged in any discussion of that sort, that one would have expected the London Evening News at once to issue the most indignant denial. But, in fact, the editor of the London Evening News took part in the programme and his immediate comment, following upon Mr. Newton's statement, was this:There were discussions with him about the people who would be implicated if he were to tell his full and true story, and in the course of this discussion he and his solicitors who were representing him were seeking to place different values upon different people".So far as I know, to this day the London Evening News has never denied Mr. Newton's extraordinary account of those negotiations.
The second instance was this. On 10th November 1977, after the police inquiry had started, the Sunday People entered into a contract with another prosecution witness, Mr. Miller. They were to pay him £8,000 for various writings, and also very substantial subsidiary rights under the contract, such as a 50 per cent. share of the worldwide syndication rights in due course. It is right to say that that is not a contingent payment. On the other hand, it is equally right to say that the offer of substantial subsidiary rights of that nature clearly must have indicated to the witness how very much more likely he was to obtain a substantial sum of money if there were a conviction, than if his story had to be based on the comparatively uninteresting and unsensational fact of an acquittal.
1210 The third instance was 13th October 1978, when the Daily Telegraph Ltd., and a company called Milbest Publications Incorporated, acting for another witness called Mr. Bessell, entered into a contract, the effect of which was—and I stress "the effect of which was"—that Mr. Bessell would be paid £50,000 if there were a conviction for certain writings, and £25,000 if there were an acquittal. Let me say at once that, of course, the lawyers who drew up that contract did not indulge in any crude language of that kind. It was disguised very simply in this way. In Clause 1 of the contract it was stated that, in consideration of the sum of £50,000 sterling, the licensor granted to the publisher exclusive world rights to publish extracts from his book. Then in clause 4 it was stated:If, on the advice of his legal advisers, the publisher is not able to publish the extracts then instead the publisher will pay £25,000 for up to six articles".What that meant was what Mr. Bessell understood it to mean, that in the event of an acquittal the book he was writing could not be published because of the laws of libel, and, therefore, in effect, the substance of the contract was that Mr. Bessell stood to gain very handsomely if there were a conviction. I should add in relation to that contract that it was entered into after Mr. Bessell had made his statement to the police. That was a matter which Mr. Justice Cantley referred to specifically in taking the view that it might not amount, therefore, to a contempt of court. In view of the evil that was created by this form of activity by various newspapers, which I shall come to in a moment, I am bound to say that it seems to me to be wholly irrelevant whether a contract of that nature is entered into before or after a witness makes his statement to the police.
The fourth instance refers to a Mr. Scott who entered into a contract with the Daily Mirror group—Mirror Books to be precise—on 30th November 1978, on a day when Mr. Scott was actually giving evidence at Minehead and being cross-examined. The contract provided that Mr. Scott should receive the sum of £3,000, plus very substantial royalties and other rights, and the amount quite clearly would depend—although it was not expressed as depending—upon the sensational value of his story, which in 1211 due course would depend upon whether or not there was a conviction.
The effect of those various contracts—there were others but these were the principal ones—was that there were twin evils. There was a twin interference with the administration of justice. I say at once that I do not for one moment suggest that any of the newspapers involved intended that there should be this effect, or contemplated that this effect would necessarily follow.
First, witnesses in that situation are bound to have a financial incentive to secure a conviction. This means that they are bound to have a financial incentive to adhere to their statements, if they have already made one, to the police, which is why the fact is irrelevant in relation to the Daily Telegraph's contract. They are bound to seek to adhere to their statement, to embroider their statement, and to press as hard as they can to ensure that a conviction should result. The second evil was that once this web of contracts came to light, as it did during the trial, doubt was cast upon the whole of the evidence of those witnesses as to whether it was truthful. It was in both of those ways that danger existed over the proper and fair administration of justice.
Clearly, those contracts, or some of them, were in breach of the Press Council's rulings. I note that the Press Council is to reconsider the matter and I am glad that it should do so, although I have no great confidence that much can result because of its inevitably limited powers. The Press Council has the power of public rebuke, and that is all. It is an effective power in 99 per cent. of the cases which it investigates but, as we have seen in recent months, it is not effective when newspapers decide that a case is so sensational that they are prepared to break the Press Council's rulings. Not only were some of those instances—clearly, I would suggest—breaches of the Press Council's rulings but some of them certainly provided substantial evidence that they were contempts of court.
I mention this in particular, because I know that in the course of the gracious Speech the Government indicated that they were going to bring forward this session 1212 legislation to deal with problems of contempt of court. I wait with interest to hear if the noble Lord, Lord Belstead, is able to assist as to whether there is a reasonable possibility that this problem which I am putting before your Lordships today will be dealt with in that Bill. Unless it can be dealt with in that Bill in that way, then I see no alternative but to proceed with the Bill whose Second Reading I am moving today.
This Bill provides, quite simply, that any person who makes any contingent payment to any witness—that is, a payment which is dependent in any way, whether in whole or in part, upon the outcome of the proceedings—shall be guilty of a criminal offence. Although it is a simple Bill, I accept that certain problems arise from it. Those problems are two-fold. First, as was made clear by some of the instances to which I referred your Lordships, payments which are not expressed as being dependent upon the result of the proceedings may, in certain circumstances, be just as harmful to the administration of justice as payments that are dependent upon the outcome of the proceedings, yet it would be difficult to frame legislation that would cover all such payments.
Secondly, I have certainly found the greatest difficulty in drafting this Bill so as to lead it to cover the sort of conflict that went on in the course of the recent case while at the same time not covering innocent conduct, such as offers of payment to informers which were made dependent upon a conviction being obtained—the ordinary kind of offer that is sometimes made by insurance companies. As I say, I appreciate that there are those difficulties. Nevertheless, this seems to me to be an urgent and pressing problem about which steps must be taken in one way or another in the near future.
May I end by saying, perhaps somewhat unusually, that I bring forward this Bill with real regret. It is with regret because I have always been one of those who have sought to uphold the freedom of the Press and to maintain that freedom against unnecessary legal restraints. I believe, and always have believed, that with that freedom there must go some sense of responsibility. Unhappily, the recent occasions which I have indicated have shown 1213 that some parts of the Press have fallen somewhat short of the high standards that we, perhaps rightly, expect in this country. I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Wigoder.)
§ Lord DAVIES of LEEK
My Lords, may I, as a layman, ask a question. The noble Lord has kept on using the word "Press". But what about the media and other methods of communication which might find it a viable proposition to pay somebody for information?
§ Lord WIGODER
My Lords, I am grateful for that observation. I kept using the word "Press" because I think that most recent instances have directly concerned the newspaper industry. However, my observations certainly should be taken to cover the media in general terms, and the Bill, whose Second Reading I am moving, is certainly not limited to the Press.
§ 6.47 p.m.
§ Lord HARTWELL
My Lords, everybody will agree with the object of the Bill which has been moved by the noble Lord, Lord Wigoder. Speaking as a layman, the Bill seems to me to impose severe penalties on anyone who tampers with witnesses in criminal cases. The preliminary question, therefore, as to whether we should proceed with the Bill is whether the existing law is important and, if it is, whether a Private Members' Bill—introduced without consultation and, I was going to say, without knowing all the facts but having garbled some of the facts—is the right way to put it right. It is not for me to cross legal swords with the noble Lord, even though I am his target. All I can do is to seek independent legal advice for myself, and I have it here. There is a great deal of citation of cases and judgments, and I shall detain the House only with its final paragraph:With regard to Lord Wigoder's Bill, it will be seen that the existing criminal sanctions of contempt of court and of perverting the course of justice are quite adequate. They have in fact been frequently used in recent years. They have the advantage that they are common law offences, which means that they can be adapted by the 1214 judges to meet the needs of the times. It also means that the penalties are at large and entirely in the discretion of the judges".Meanwhile, both the Attorney General in another place and the Lord Chancellor have been asked a question, and both have replied that they are inclined to wait for a considered recommendation from the Press Council before deciding whether action is required. However, the noble Lord has persisted with his Bill. Is it possible that its purpose is not to stop a legal loophole which has suddenly and indubitably been revealed, but to take the earliest opportunity to counter-attack those newspapers which are alleged to have hounded the fallen idol of the Liberal Party? Indeed, the noble Lord has indicated as much to me. With his customary courtesy he wrote to me the day following the First Reading of his Bill, giving me the longest possible notice of this debate.
In his letter he said that, while he would speak mostly about the future, others would speak a great deal about the past. It seems to me that he has himself talked a great deal about the past. So I am speaking early in the debate in order that before noble Lords deliver judgment upon what has passed they shall know exactly what did happen in the sphere of my responsibility—and it is not what has been said inside and outside the court room.
I am the editor-in-chief of the Sunday Telegraph and I take personal responsibility for what the Sunday Telegraph has done. It was mentioned in the contract that it was the Daily Telegraph Limited, which was quite true, but the Sunday Telegraph is a wholly-owned subsidiary of the Daily Telegraph and it is the Sunday Telegraph which is concerned. I take the personal responsibility, not in the heroic sense but because I personally knew and approved beforehand all the major steps which were taken by the newspaper. Before I come to that, the House may want to know why notorious trials cannot merely be reported—in extenso, if you like—and then finish with the observation of the judge, such as, "You leave this court without a stain on your character" or alternatively, "It was proper that this case should he brought and I do not award costs". 1215 If the Press were to confine itself to what is put in front of its nose there would be no need for its multiplicity. A single paper would be enough to duplicate the news agencies, but apart from every other aspect of news, when a case has attracted enormous and prolonged public interest—and I do not mean prurient interest—and which concerns people who have an important influence on public affairs, all the public, and I venture to include your Lordships, want to know what it is all about. So every newspaper, every television company and many radio stations regard it as routine to prepare for publication, as soon as a big case is over, what is described in the more sedate media as "background news" and in the more exciting media "early investigative journalism". In the event of an acquittal with honour the baffled investigative journalist may have to fall back on abusing the police for bringing the case in the first place.
The point I am making is that these investigations—call them what you will—have to be done in advance. Queueing up outside the court after the verdict would be a sterile option and of course they take time and money. In this particular case, I calculate that a total in excess of £300,000 was committed by the media in advance, mostly by TV and radio. There were agreed plans to transport and interview some of the witnesses. Very little of that has been used. Nor are media inquiries confined to something that they can publish after a court may have given them protection. The case we are talking about would never have taken place had it not been for some newspapers. It had been investigated by two police forces and finally dropped by the office of the DPP. Yet investigations by the London Evening News, the Daily Mirror and some other newspapers finally led to the case being reopened. At the Old Bailey it was admitted by counsel for one of the principal defendants and accepted by the judge that there had, after all, been a conspiracy to threaten murder.
The Sunday Telegraph did not play any such leading role. What it did was to buy Mr. Bessell's partly written memoires; what might have been called "My life and times in the parliamentary Liberal Party". That is the bald fact of the 1216 matter. The setting and sequence of events was (excluding names) as follows: A senior member of our staff happened to be introduced to Bessell in California. Bessell mentioned to him that he had begun work on a book which was to be his life story; it would embrace his early years, his years as a Liberal MP, his rise and fall as a businessman and, of course, his close association as a friend and colleague of Jeremy Thorpe—an association which, according to Bessell's account, had dominated his public life. A double check by a most experienced and trustworthy journalist showed that Bessell appeared to have a remarkable story to tell and had already done a good deal of work on the manuscript. Indeed, as the judge was to say later, he is a very articulate man.
Bessell's standing at this time, the autumn of last year, needs to be considered. He was known as a man who had served as a Liberal MP under Mr. Grimond and then under Mr. Thorpe, having won the Bodmin seat in 1964. He had incurred no public odium at Westminster and had left the House voluntarily in 1970. He did not contest Bodmin at that election because his business affairs were in disorder and he needed to spend most of his time in the United States attempting to save himself from financial disaster. In this he failed, but at the time we were in touch with him he had made a settlement with his creditors, was free to visit this country as he wished, without fear of action by his creditors and had never been accused (still less convicted) of any crime.
Here I should interpolate that political memoires, particularly those involving colleagues, are a normal art form, indulged in by many distinguished members of both Houses over the years. Their market price is influenced by their topicality. The negotiations with Bessell continued. The price which Bessell put on his book was £50,000. It was a high price, but not outstandingly high as topical newspaper serials go, given the expectation that much of the price would be recovered by reselling the material to newspapers and magazines in other countries.
Bessell conceded that there could very well be legal problems affecting the publication of his book. He said that it would 1217 be very frank and would put a number of political figures in a light that was embarrassing or even defamatory, according to the very stringent libel laws which we enjoy. Chief among these, naturally, was Thorpe, and if Thorpe would have been acquitted at the Old Bailey then a substantial section of the book would be unpublishable, he supposed, in Britain. After we had agreed in principle to buy his book, therefore, he proposed that if publication were to be frustrated on legal grounds then he would undertake to write some articles of an acceptable kind drawing upon his former close friendship and political collaboration with Thorpe and incorporating some material from his book, and for these he suggested that the fee should be reduced to £25,000.
The proposed deal raised two questions. One was the propriety of the financial terms. The other was the propriety of agreeing to any such deal with a prospective witness. As to the first, we consulted our own legal adviser, who said that in the circumstances he thought the terms were unexceptionable. Bessell consulted his own London solicitor, who gave him similar advice, but went significantly further. He spoke to a senior official of the Director of Public Prosecutions and explained to him the nature of the proposed agreement. "Would the DPPs department", he asked, "see anything objectionable in the precise financial terms outlined?" The answer was that the department would raise no objection and did not think it would prejudice the case.
§ Lord WIGODER
My Lords, if the noble Lord will forgive me, is that contained in a written communication from the Director of Public Prosecutions, or is that what Mr. Bessell has said?
§ Lord HARTWELL
No, my Lords, it is not what Mr. Bessell has said; it was his London solicitor, a man of standing, who, if necessary, is prepared to swear an affidavit to that effect. I know the name of the official, but I do not want to name him in this place.
After that, thus fortified, we had to consider the propriety of doing any deal with a prospective witness. The chief point of relevance here was that Bessell had already made full statements of his evidence to the police. The police officer in charge had visited Bessell in California for 1218 several days many months earlier, to take his statement in detail. Overall there were, finally, six Bessell statements on various points. On the basis of all this evidence, and that of the other prosecution witnesses who had also completed their statements to the police, Thorpe and the other three men had already been charged with conspiracy to murder, and in Thorpe's case with incitement to murder. The prosecution case rested upon that evidence, already set out in their depositions, which had been made available to the defence. They could not be altered in evidence without the defence swooping on it. Thus Mr. Justice Cantley said in his summing-up at the trial that Bessell's evidence had already crystallised before the contract was signed on October 13th 1978, and that because of that fact the contract could cease to have the significance it would otherwise have had.
That was a point very much in our minds, but we were not in any case buying Bessell's evidence. That would have been told twice already. We were buying the right to serialise his autobiography upon which he had already begun work and provided a part synopsis. In the nature of things, Thorpe and his troubles would loom large within it, but there was much more to it than that. It was to be a wide-ranging book of memoirs by one of a tiny band of Liberal MPs who had had unique opportunities to observe a section of political life over a number of years at close quarters.
The question then must be: Why, after this contract had been given this weight of legal sanction, did it attract hostile comment when the trial took place? The answer must lie in the manner in which the defence chose to conduct its case. Thorpe and two other of the accused declined to go into the witness box to deny the charges on oath; they preferred to remain silent throughout. In place of evidence for the defence their counsel relied upon a protracted process of destruction of the characters and credibility of the prosecution witnesses, including Bessell. The contract which he had signed for the publication of his book was employed as ammunition for this purpose.
The extraordinary or bizarre aspect of the trial was the relish with which the judge made himself the ally of the defence 1219 in this connection. Between them the judge and the defence counsel savaged the prosecution witnesses, including Bessell. His book contract was savaged in the process, the judge even giving it the unfair description of a "double-your-money arrangement", the point upon which this Bill has fastened. In view of this turn of events the contract has been made the subject of controversy and misrepresentation. Yet on any fairminded assessment of the circumstances in which it was entered into, and the exceptional precautions taken to obtain legal guidance in the matter, it was a proper arrangement for a responsible newspaper to enter into. In view of the unusual way in which the defence at the trial was conducted it was unfortunate that the contract was made, but at the time it was a reasonable step.
It was not for this reason that in the end we cancelled the contract. We did this at the Old Bailey, at the conclusion of Bessell's cross-examination in which he was broken down by defence counsel. Though he had maintained that everything he said relevant to the trial was true, he admitted that some of his past statements had been untrue. As what we would have published concerned that past, and was not a rehash of his trial evidence, we concluded that his historical narration and personal allusions could not be relied upon, irrespective of the verdict. We, therefore, before the final speeches and before the summing-up, decided to cancel the contract and advised Bessell's solicitor accordingly.
Finally, I must say that there is one aspect which eluded everyone until a fortnight ago, when the Lord Chancellor published his answer to an inquirer We thought we had been fair to the defence, but have we been fair to the prosecution? Even the office of the DPP had not thought of that one.
§ 7.9 p.m.
§ Lord ELWYN-JONES
My Lords, the House will have listened with great attention to the speech of the noble Lord, Lord Hartwell. While noble Lords will appreciate the fact that he has come to make his statement, I doubt whether they will have appreciated his attack, first of all, upon the motivation of the noble and learned Lord, Lord Wigoder, suggesting 1220 that he has been motivated by a purely party political attempt to vindicate the reputation of Mr. Thorpe; and, secondly, the House may well wonder whether it was appropriate for him to make such a direct attack upon the learned judge who conducted this most difficult case, when he spoke of him as making himself "the ally of the defence" in the course of a long and careful summing up.
The debate tonight about this Bill is not confined to the discussion of the Sunday Telegraph contract with Mr. Bessell, but is concerned with a very serious question affecting the administration of justice in the criminal courts. I venture to think that the noble Lord, Lord Wigoder, for the second time within two weeks, has rendered a service in having a crucially important issue affecting the integrity, fairness, and effectiveness of the administration of justice—upon which so much of the rule of law depends—examined by the House.
I gathered from the beginning of the remarks of the noble Lord, Lord Hartwell, that he was against tampering with the administration of justice. One form of tampering is, of course, to influence witnesses in criminal proceedings. It is not the first time that this problem has arisen and I faced it in a very direct degree when I was Attorney-General and, indeed when I conducted the prosecution in the Moors Murders case. There the complaint was that the News of the World had carried out a series of interviews with a key witness for the prosecution, David Smith, who was present when the last of the murders was committed. In that case the News of the World entered into a contract with him to pay him £500—and an additional sum for resale of the material throughout the world—for his story of the events leading to the charge of murder against Brady and Hindley. He further agreed that he would sell the information to nobody else.
One of the advantages of a wealthy paper, of course, "buying-up" a witness is to withold any information he may have from any other rival in the publishing field. That is one of the elements and features of "cheque book journalism" as it used to be called. After that case the matter was naturally referred to me as Attorney-General, and the course that the Lord Chancellor of the day and I decided 1221 upon was to raise the matter with the Press Council. That we did and the noble Lord, Lord Wigoder, has read out what happened.
I make no apology for talking about the past—a matter which the noble Lord, Lord Hartwell, thought was an undesirable state of affairs. This threat to the administration of justice is not something new; it has happened before. The noble Lord, Lord Wigoder, read out the Declaration of Principle of the Press Council. I think it bears repetition. It said:No payment or offer of payment should be made by a newspaper to any person known or reasonably expected to be a witness in criminal proceedings already begun in exchange for any story or information in connection with the proceedings, until they have been concluded".It could not be much clearer, could it?No payment or offer of payment should be made by a newspaper to any person known or reasonably expected to be a witness in criminal proceedings already begun in exchange for any … information".It is very clear and specific. It goes on:No witness in committal proceedings should be questioned on behalf of any newspaper about the subject matter of his evidence until the trial has been concluded".It is true, as the noble Lord, Lord Wigoder, has said, that there were some general words in the culmination of the statement, but I doubt whether Lord Hartwell would seek protection from those governing words.
The outcome of that Declaratoin of Principle was—so far as I know, at any rate—that there was no complaint in the intervening years about the activities of the media and I agree that this potential danger applies to television as well as journalism. But then the matter suddenly flared up in view of the sensational character of what the newspapers called "The trial of the century"—especially some of the newspapers that had entered into agreements of this sort.
The matter was considered, as the noble Lord, Lord Wigoder, has said, by the Phillimorc Committee. If I may say so, I think that he read rather hurriedly over the relevant passage, and I venture to think that we did not get the full sense of what the Phillimore Committee concluded. Paragraph 78 deals in particular with the offer of a contingent payment, to which I shall come in a moment. 1222 Indeed, the object of the Press in making the offer contingent would be to ensure that it did not buy a worthless asset. The Committee said:If in a criminal case, for example, the trial ended in an acquittal, the story could well be unpublishable for fear of defamation proceedings".That is clearly so. It goes on:The purchaser would probably not intend to pervert the court of justice"—and I do not think that the noble Lord, Lord Wigoder, has alleged that against the noble Lord, Lord Hartwell—nor even necessarily foresee this as a likely consequence (unless the offer was very large, in which case intention or foresight might legitimately be inferred)".I think that one of the things that the learned judge at the trial also pointed out was that Bessell's income at the material time was £2,500 and an offer of £50,000 is not an inconsiderable inducement—that at any rate is what the judge seems to have thought. It goes on to say:but the offer could clearly have serious effects upon the way the witness gave his evidence and, if the position was revealed at the trial, upon the witness's credibility and the outcome of the trial".The learned judge at the trial in dealing with the matter—and, of course, he had to depend upon the information that was available to him as given in evidence at the trial—described the contract that the Sunday Telegraph entered into as "a deplorable contract". The noble Lord is completely opposed to that assessment of it and is apparently totally unrepentant.
What I think would have been of interest to noble Lords would be to learn whether those who made this offer of £50,000 or £25,000 really regarded that as a contingent payment. This is how the learned judge dealt with the contract in his summing up. He said:It provides for the payment of £50,000 to Milbest Publications Incorporated"—that was simply something set up by Bessell—for the exclusive world rights to publish up to six extracts not exceeding 30,000 words from a book … for immediate publication by weekly instalments as soon as the present criminal proceedings against Mr. Jeremy Thorpe and his co-defendants are completed".The House will note that he had the courtesy to refer to "Mr." Jeremy Thorpe. However, paragraph 4 of the contract, which is then referred to, read as follows: 1223If on the advice of its legal advisers the Publisher"—that is to say the Sunday Telegraph—is not able to publish the extracts then instead the Publisher will pay £25,000 for up to six special articles…".Then the comment of the learned judge was:So, as Mr. Bessell said, he, or, if you like, Milbest Publications Incorporated get double for a conviction what they would get for an acquittal. It is not put that way, of course, but their legal adviser would have some strong advice to give about the publication of, no doubt, the original manuscript in the event of an acquittal. I cannot myself see, but you can consider if you like what other point there is in this double your money except to provide for the eventuality that the Publishers may not dare to publish the original manuscript".That was his judgment. One would have liked a little more explanation from the noble Lord and a little less counter-attack in regard to that factor in the contract.
§ Lord HARTWELL
My Lords, the noble and learned Lord wants a further explanation. I have already explained that the reason we entered into the contract and thought that it was all right to do so was because our own legal advisers said that it was all right, as did the office of the Director of Public Prosecutions.
§ Lord ELWYN-JONES
My Lords, I do not want to cross-examine the noble Lord in the House. It is always a painful thing to have to undertake, but I still have not learned whether or not he thought that it was a contingent payment. However, the House will have heard what the noble Lord said, and no doubt in due course we shall hear some comment from the Director of Public Prosecutions about this statement that apparently he, or someone in his department, gave a fair wind to what was afoot. That is, indeed, a very remarkable state of affairs, about which it may well be that we shall hear more in due course. I make no further comment about it than that. But, at the end of the day, I think that the public of our country have a deep sense of unease about what has been done, not only in this matter but in the other instances to which the noble Lord, Lord Wigoder, referred. I think that this is a very serious matter which needs our careful concern.
1224 As I see it, the real difficulty is whether tampering with witnesses in a way which would lead them to say that which they might not otherwise have said but for the inducement, in a way which, when the contract is exposed, clearly causes grave damage to the prosecution case because it exposes what kind of people the witnesses were who were prepared to enter into such contracts, should be dealt with within the ambit of the law of contempt, or whether it should be dealt with separately as a criminal offence. So far as that issue is concerned, I confess that I do not find it an easy matter upon which to adjudicate.
The law of contempt is, of course, under constant attack, and it is right that we should again be re-examining it. I agree with what the noble Lord, Lord Wigoder, has said; we await with very great interest the outcome of the present Government's deliberations upon it. The outcome of the previous Government's deliberations are set out in the Green Paper. It will be interesting to see what emerges. I confess that I have a certain reluctance about creating new criminal offences if we can possibly deal with a public mischief in matters other than by criminal proceedings. But I have no doubt that this is a serious matter.
The Press Council itself has not yet adjudicated upon the whole of this affair, and the outcome of this debate may not take the matter very much further. As I have said, I do not see why the noble Lord, Lord Hartwell, should submit himself to cross-examination by me here or, indeed, whether that would be a desirable exercise for us to embark upon in the House. However, we await patiently the outcome of what the Press Council has to say. But that some statement by the Council needs to be issued is certain.
The fact is that the Declaration of Principle that was pronounced in 1966 is—in my view at any rate—something which became, alas! a dead letter during the currency of the recent Old Bailey trial. It is a deeply worrying matter. Once the fountain of justice is polluted by pressures upon witnesses from outside, first, the successful prosecution of criminal cases may founder; secondly, innocent men may gravely suffer, innocent men may he convicted by the tendency to embellish a little or, indeed, to maintain an original lie. Those are the perils.
1225 I confess that I am not totally convinced that because Mr. Bessell had already given a statement to the police, that concluded the matter from the point of view of the law of contempt. If that original statement was a lie, then the persistence in the lie, encouraged by the inducement of the contract, could effect a grave injustice to the accused. On the other hand, at the very least there would be a temptation to desperate men in financial difficulties to embellish their evidence to get the result that would give them £50,000. The dangers are so apparent. I confess that I am a little surprised that that did not become a little more apparent, and that the noble Lord did not show some concern in his speech about what has occurred.
But, as I say, this debate is on the serious question that we need to protect the integrity of what goes on in the criminal courts. If we fail to do so, the administration of justice in this country will embark upon very dangerous days. On the whole, my view at present is that perhaps the better course is to await what the Government propose in the area of contempt of court, and if the matter can be made as tight and as effective as it is hoped for dealing with this mischief, on the whole that may be the best way in which to proceed. In the meantime, I think that the House should be grateful to the noble Lord, Lord Wigoder, for introducing this Bill.
§ 7.28 p.m.
§ The PARLIAMENTARY UNDER- SECRETARY of STATE, HOME OFFICE (Lord Belstead)
My Lords, the Government share the concern of the noble Lord, Lord Wigoder, about the issue with which the noble Lord's Bill attempts to deal. It would seem that there are three main grounds on which we may all properly be anxious about payments which are made to witnesses. The first is the possibility that the payment of any money to a witness, or a potential witness, whatever the circumstances, would influence the evidence which that person gives. By the payment he might be persuaded to say something that was untrue, or to embroider or exaggerate his evidence; or he might be persuaded to maintain an earlier statement which was untrue which, but for the payment, he would have had the good sense to withdraw when under 1226 oath. It goes without saying that for a witness to lie in order to receive a payment—whether or not this is known to the jury—is a practice which might be wholly contrary to the interests of justice.
There is, I think, a second ground for disquiet. If a payment to a witness becomes known it will affect the credibility of the witness and the standing of the case he represents. If somebody is known to have received a sum of money associated with his appearance in the witness box, then people generally and the jury in particular will be influenced by that knowledge in a way which may have nothing to do with the intrinsic quality of the evidence which will be given. Either the prosecution or the defence may be discredited in this way and the evidence concerned will lose, or will be thought to lose, credibility. The noble Lord, Lord Wigoder, and the noble and learned Lord Lord Elwyn-Jones, have explained both those grounds for disquiet.
My third reason for expressing disquiet about payments to witnesses is that they may bring the administration of justice into disrepute. It is that general objective with which this Bill is designed to deal. May I make it clear to your Lordships that the Government are determined to do whatever is necessary for their part to safeguard the good name of the administration of justice in our courts.
The Bill focuses, understandably, on contingent payments, but it is worth recalling that when the Press Council issued a declaration of principle on the matter in 1966 it did not draw such a distinction. In plain terms the Press Council said that payment, or offer of payment, to witnesses should be condemned.
§ Lord ELWYN-JONES
My Lords, may I intervene in order to explain one matter in this connection which I should have made clear; namely, there was no evidence in the News of the World incident of any contingent payment being involved in the approaches to David Smith. The criticism there was on the lines that the noble Lord is now speaking about. But I thought it right, and I owe it to the News of the World, to make that quite clear from my knowledge of what was contained in the contract and the interviews which the police had with the journalist concerned.
§ Lord BELSTEAD
My Lords, I am grateful to the noble and learned Lord for making that clear both to me and to your Lordships' House. So far as the Press Council declaration in 1966 was concerned, the noble and learned Lord read out the exact words of that declaration which amounted, as I have said, in plain terms to a condemnation of payments, or offer of payments, to witnesses, including witnesses in committal proceedings until the trial itself is over.
I am expressing sympathy for the objects of the Bill and also concern about events which have given rise to it. None the less, the Government have reservations about the wisdom of proceeding to legislate now on the basis of this Bill. Our concern springs from the answers to three questions which can be asked. Those questions are: How widespread is the abuse? Is it such as to require legislation, or is some other remedial action appropriate?
Thirdly, even if legislation is needed, is it needed now and will this Bill meet the case?
Would your Lordships bear with me for a moment while I try to answer those three questions in turn. While payments of this kind are deplorable when they occur, there is, I think, no evidence that they are widespread. Indeed, before this year the last occasion when the matter achieved notoriety was in the case of the Moors Murders when the noble and learned Lord was Attorney General. This led the Press Council to issue, after consulting newspaper editors, the declaration of principle to which the noble Lord, Lord Wigoder, and indeed the noble and learned Lord have referred. The Royal Commission on the Press examined the matter, and in its report in 1977 recorded that it found no evidence of the payments to witnesses, or potential witnesses, which had earlier caused such concern.
In case that sounds rather complacent, it may be that payments have been made in other cases. Indeed, I think it would be naive to claim that they have not. But there is no evidence of what, if your Lordships will forgive me saying so, I would call a major problem. Indeed, the immediate consequence of the recent case was to provoke a further Press Council inquiry; widespread expressions of concern in both Houses of Parliament and in the 1228 Press; and last, but not least, the noble Lord's Bill. That shows that this single instance is taken as being a very great problem in itself. I am sure, and very much trust, that Fleet Street will catch what I believe is the public mood and will not ignore these clear signs of disquiet.
In any event, is the abuse such that legislation is needed to stamp it out? The Government have noted that the Press Council has initiated an urgent examination of the ethical issues involved, and will, I hope, pay due regard to the views expressed by your Lordships in this debate today. The Press Council has also appealed publicly for help from prosecuting and defending lawyers in providing information and supporting evidence. The Government believe that in the first instance we should look to the Press to take the necessary action, and it is to be hoped that the Press Council will be able to give a clear lead on this matter.
We should not forget that, in certain circumstances, the criminal law may already be relevant, and both the noble Lord, Lord Wigoder, and the noble and learned Lord have referred to this. Payments which are intended to prejudice proceedings, whether by inducing the witnesses to lie, or by some other means, would almost certainly constitute an offence under the general law. Moreover, the courts' inherent powers of contempt may also be relevant. In certain circumstances payments to witnesses, particularly if substantial, might well amount to contempt, and even if a person did not intend to prejudice proceedings in the sense of setting out with that objective in mind, the payments might be so large as to make it obvious to any reasonable man that this was likely to be the consequence.
The Government are committed to bringing forward legislation on contempt of court, which I am afraid I cannot anticipate this evening. In its Report on Contempt, the Phillimore Committee specifically considered payments to witnesses, and concluded that they should not fall within the ambit of the law of contempt being proposed. Nonetheless, before considering legislation in this field we need to bear in mind that there are, and will continue to be, provisions 1229 which will bear at least on some of the activities that this Bill is concerned with. The noble Lord, Lord Wigoder, has asked me specifically whether forthcoming legislation or contempt will deal with this problem. We have also had a few words from the noble and learned Lord on the subject of contempt. If your Lordships will allow me, I should like to return again to the subject in a few moments before I finish speaking.
The third question which I asked, and which I think needs an answer, is: Does the noble Lord's Bill meet the case? It would be tedious in a debate of this kind to dwell at any length on drafting difficulties. However, I think that there is a problem about tackling the abuse at which this Bill is aimed if the legislation is to achieve the requisite precision. It is not unlikely that difficult cases could arise from payments, or offers made conditional on something such as the publication of a book which was, or which purported to be different from the outcome of the proceedings. The Bill does not provide very much guidance about how to handle such situations.
Because the offence is one of strict liability, as it has to be to deal with the abuse in question, and because the Bill is silent, again as it probably has to be, about what the payments are for, there is a risk that it would catch a number of innocent payments. Because it covers any witness, or potential witness, it would apply to payment to a defendant in a criminal case or to a party in civil proceedings. Thus, I think the Bill would probably have the effect of prohibiting the offering of a reward for the recovery of stolen property which is dependent on the conviction of the thief. It might make it an offence to offer to pay someone else's fine—which I am sure your Lordships would tell me is not a desirable thing, but it is not clear that it ought to constitute a criminal offence. Similarly, an agreement to settle out of court in civil proceedings might technically also be caught by this Bill.
There is also a real problem in being unsure which way to turn in drafting legislation on this subject. The noble Lord's Bill is limited to contingency payments, but the Phillimore Committee warned that this would create obvious difficulties of proof because the contin- 1230 gency aspect can be concealed. On the other hand, there is a case, apparently accepted by the Press Council in issuing its declaration of principle, for prohibiting all payments to witnesses, whether contingent or not. But if the Bill were to be amended in that way the likelihood of catching innocent payments becomes even greater. For example, a payment to a bona fide expert witness might be caught. I do not mention these—and I think there are some other difficulties—with any sense of satisfaction. We are all grateful to the noble Lord for bringing forward this Bill. Rather, my purpose is to demonstrate the truth of the proposition that, before we consider legislation on this difficult issue involving Press freedom, we need to take a longer look at the issues involved.
The issues which the noble Lord's Bill raises are therefore, in the Government's view, both urgent and important and are engaging urgently the attention of the Government. Both my learned friend the Attorney General and my noble and learned friend the Lord Chancellor have been in correspondence with the Press Council and each has expressed the view that though the matter clearly cannot be left as it is, it would be better to await the result of the Press Council's deliberations before taking any steps to deal with the matter by changes in the law or otherwise.
Nevertheless, if for any reason these approaches are found in the event not to be sufficient in themselves, we shall clearly have to think again. Fortunately, the Bill dealing with contempt of court which Her Majesty's Government are committed to introducing during the present Session, will form a convenient opportunity for the discussion of the matter again, either at the Second Reading or, with greater precision, at the Committee stage. I am authorised to say that the Government will carefully consider anything the noble Lord or other of your Lordships may wish to say on the Second Reading of that Bill or, in the event of their putting down any specific amendment or any amendment which the noble Lord or any of your Lordships may choose to move in Committee. I give the noble Lord and the House that undertaking. In the light of it, I would ask the noble Lord to consider whether he wishes to proceed to the Committee stage of his Bill.
§ 7.42 p.m.
§ Lord WIGODER
My Lords, I am grateful to the noble and learned Lord, Lord Elwyn-Jones, for the powerful support he gave to my argument. I am grateful also to the noble Lord, Lord Hartwell, for having the courage to come forward today and participate in this debate. It would have been easy to stay away. It must have been much more difficult to come and put forward as he did, the spirited defence of the particular matter into which his newspaper entered. I know enough from life at the Bar to recognise skill and ability in putting forward a somewhat tenuous case when I see it, and I indeed respect the way in which that has been done.
I would only add that I am sure the noble Lord, Lord Hartwell, would want on reflection perhaps not to persist in his observations about the learned trial judge, particularly when he himself criticised the judge because of his observations about one of the witnesses called Mr. Bessell, and then the noble Lord himself said a little later that the Sunday Telegraph had decided to avoid the contract into which they had entered with Mr. Bessell because Mr Bessell had been so broken down in the course of his evidence by defence counsel. It is a little hard in the circumstances to blame the trial judge if he made a comment about that in due course.
I would add only two other observations in relation to what the noble Lord, Lord Hartwell, said. The first is to make it clear, as I do, that it has never been suggested that either his or any other paper that was involved in these matters intended to have the harmful effect on the administration of justice which cumulatively I believe all the papers did have. Secondly, the noble Lord put himself in the firing line this evening when there are in fact other papers, as I tried to indicate, involved very substantially; and I would not want it to be thought for one moment that if one was obliged to criticise what had happened in recent months, it was all to be directed towards the paper on which the noble Lord plays such an extremely distinguished part.
I am grateful for what the noble Lord, Lord Belstead, said on behalf of the Government. What it comes to, as I understand it, is really that the Govern- 1232 ment recognise that this is an urgent problem, that it is an important one and that they are prepared to look again at the problem after the Press Council has considered it in the context of a contempt Bill which the Government are already committed to introduce during this Session. In those circumstances, I agree particularly with what Lord Elwyn-Jones said, that it is undesirable to seek to create specific criminal offences if matters can be dealt with on another basis. It is undesirable to try to proceed in a piecemeal fashion if there is an opportunity for proceeding, in a more comprehensive way. In view of the very clear indication which the noble Lord, Lord Belstead, has given that the Government are prepared to look again most seriously at this problem in the very near future, I accept what the noble Lord said, that that is perhaps the most helpful and sensible way to proceed in dealing with this important matter. In those circumstances, I ask leave to withdraw the Bill.
§ Motion for Second Reading, by leave, withdrawn.
§ Bill, by leave, withdrawn.