Commons Amendment

– in the House of Lords at 5:27 pm on 13th November 2003.

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1 Clause 2, Leave out Clause 2

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1.

We recognise the difficulties associated with this area of law. Being accused of a sex offence often carries with it a great social stigma, and the adverse publicity that often results from being linked to such an allegation can have serious consequences for a person's status and reputation in the community, employment and sense of self-worth. Amendment No. 1 leaves out the clause introduced by the noble and learned Lord, Lord Ackner, at Lords Report which gave defendants in rape and other cases the same right to anonymity as that enjoyed by the defendants.

Moved, That the House do agree with the Commons in their Amendment No. 1.—(Baroness Scotland of Asthal.)

Photo of Lord Ackner Lord Ackner Crossbench

rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment 1, at end insert "but do propose the following amendment in lieu of the words so left out of the Bill—

1AClause 2, Insert the following new Clause— "Disclosure of matter likely to identify defendant

In section 1 of the Sexual Offences (Amendment) Act 1992, after subsection (3) insert— "(3A) Where a person ("the defendant") is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify the defendant as the person by whom the offence is alleged to have been committed shall during the defendant's lifetime be included in any publication unless the defendant has been convicted of the offence.""

Photo of Lord Ackner Lord Ackner Crossbench

My Lords, I express my thanks to the noble Lord, Lord Goodhart, who provided at my request this particular drafting of my amendment in lieu. My original draft had to be done in a hurry, but it served its purpose. My amendment reads as follows:

"Disclosure of matter likely to identify defendant

In section 1 of the Sexual Offences (Amendment) Act 1992, after subsection (3) insert— '(3A) Where a person ("the defendant") is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify the defendant as the person by whom the offence is alleged to have been committed shall during the defendant's lifetime be included in any publication unless the defendant has been convicted of the offence.'" Amendments Nos. 1B and 1C—tabled respectively by the noble Baroness, Lady Noakes, and by the noble Lord, Lord Thomas of Gresford—although using different language, point to the contrast with my amendment. Instead of giving anonymity to the defendant right up until conviction or acquittal, they say that he should have anonymity only so long as he has not been charged.

I shall submit to your Lordships that that is quite inadequate because the period between charging and trial is the vital period. It is in that time that newspapers get to work and a defendant's life can be rendered utterly miserable.

I should point out that when I tabled my amendment, which provided that anonymity should last until the defendant was convicted or acquitted, I had the support of both the noble Baroness, Lady Noakes, and the noble Lord, Lord Thomas of Gresford. I remind your Lordships of the substance of the debate on this matter on Report. I pointed out that the anonymity which I sought had been granted by Section 6 of the Sexual Offences (Amendment) Act 1976 and enjoyed for some 12 years until Section 158 of the Criminal Justice Act 1988 withdrew it.

The noble and learned Lord the Lord Chancellor referred to the Heilbron committee report which ante-dated the 1976 Act. It suggested that it was not right to select out sexual offences concerning anonymity for the defendant, although it recommended and achieved anonymity for the complainant. Her approach was not adopted by Parliament in the 1976 Act; and it is interesting to note that one of the strongest proponents of anonymity was the noble Lord, Lord Ashley.

On Report I said:

"The Government's cri de coeur has been that we must adjust any imbalance that exists between complainant and defendant in criminal trials".—[Official Report, 2/6/03; col. 1084.]

I hope noble Lords will have noted that I used the word "complainant". I am averse to using the word "victim" because that reverses the whole onus of proof and presupposes that the complainant has already shown the validity of her complaint, which of course she has not.

I was supported by a number of noble Baronesses. The noble Baroness, Lady Walmsley, was the first speaker in my favour. She said:

"My Lords, from these Benches"—

I underline the word "Benches"—

"we support the amendment tabled by the noble and learned Lord, Lord Ackner. We strongly believe in equality under the law".

She went on to say that she raised the subject at Second Reading because of her conviction that,

"we are to be seen to be as fair to the defendant as we are to the complainant".

She recalled the Minister's response:

"'Well, if rapists; why not murders or shoplifters?'".—[Official Report, 2/6/03; cols. 1085–86.]

The difference is quite important and has been overlooked by the Government. It is that that we live in a society that is obsessed with sex. As a result the publicity given to a person accused of a sexual offence occupies front page space whereas that dealing with murderers and shoplifters—unless of course little children are concerned with murders—receives very much back page response.

The noble Baroness, Lady Noakes, who also supported me, said in terms:

"In recent cases involving Mr John Leslie and Mr and Mrs Neil Hamilton, they were subjected to appalling adverse publicity with no charges pressed. But there are people who will always say, "There is no smoke without fire". The intention behind the amendment is wholly laudable. I hope that the Government will say that they are prepared to consider introducing a provision to deal with the issue both pre-charge and during the course of a case, once it is decided to press a charge".—[Official Report, 2/6/03; col. 1087.]

The noble Baroness, Lady Mallalieu, who has enormous experience in trials involving sexual offences, said in terms that she thought that it was clear that some protection was needed for those who are not subsequently charged, as well as defendants awaiting trial. She said at col. 1088:

"That is a real problem. As noble Lords have said, whether or not there is ultimately a charge, reputations are wrongly ruined and a great deal of suffering is caused".

The noble Baroness, Lady Blatch, whom I hope will remain faithful—in a forensic sense of the term—to me, said that she hoped that the Minister would take the amendment away and even consider anonymity beyond the point of charge. She preferred that amendment to that which provided anonymity only up to charge. She continued:

"Some men in such situations are driven not just to the point of, but to actual, suicide. I cannot think of anything more dreadful to someone who is completely innocent and vexatiously charged with such a serious offence than having to live through the kind of publicity that goes with it. We should not underestimate the effect of that".—[Official Report, 2/6/03; col. 1088.]

Not long ago, on the Isle of Wight, a suicide case received a great deal of publicity. The explanation was that the person concerned, although protesting his innocence, could not stand the stress and strain of the publicity.

I also pray in aid the support of the right reverend Prelate the Bishop of Chester, who considered the arguments for anonymity only up to charge and for anonymity right up until the court's decision. He said:

"On balance, the argument comes down in favour of granting the same rights of anonymity in principle to those who are accused".—[Official Report, 2/6/03; col. 1089.]

Later he said:

"My Lords, the noble and learned Lord referred to the guidance issued last November"— that is the guidance to the police not to provide any information until charge. He continued:

"Soon after that a well-known entertainer, Matthew Kelly, was dragged through the papers in an unfortunate way. He was dragged from his pantomime performance and it was in the press within five minutes. This was on the back of the guidance being issued. I happen to know this because my wife is involved in charitable affairs in my diocese. I know the impact on him and his family. Unless the guidance the Association of Chief Police Officers has issued is given some teeth, it is not worth the paper it is written on".—[Official Report, 2/6/03; col. 1094.]

Those are excerpts from our debate.

If your Lordships are persuaded, as you should be, that the media, with the sexual obsession that nowadays enters all aspects of society, treats publicity for sexual offences so differently from the publicity accorded to offences even more serious, there is a whole justification for singling out the defendant and allowing him to have the same anonymity as that provided, which we all agree should be provided, to the complainant. I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, at end insert Amendment No. 1A in lieu of the words so left out of the Bill.—(Lord Ackner.)

Photo of Baroness Noakes Baroness Noakes Conservative 5:45 pm, 13th November 2003

My Lords, this group includes Amendment No. 1B, which stands in my name. It proposes a different anonymity in cases involving sexual offences. As the noble and learned Lord, Lord Ackner, pointed out, my amendment proposes anonymity running only until a defendant has been charged.

We debated the issue in your Lordships' House on Report, what seems almost half a lifetime ago. The case was made forcibly then that defendant anonymity in rape cases throughout the process could prevent other victims of rape or sexual offences coming forward. That was a very powerful point, which, on reflection, has led these Benches to propose the variant of pre-charge anonymity. We do not believe that justice would be served sufficiently by total anonymity for defendants as proposed in the amendment tabled by the noble and learned Lord, Lord Ackner.

My amendment and that of the noble Lord, Lord Thomas of Gresford, allow publicity to ensue once the police have established that there is a case to answer and to charge the individual. But if there is not enough evidence to warrant a charge, publicity of any kind would be against the law. The Minister will argue that sexual offences should be treated no differently from other serious offences, such as murder, where defendant anonymity does not apply. But, as the noble and learned Lord, Lord Ackner, has already pointed out, society is obsessed with sex, and for that reason, a particular social stigma is attached to those accused of sexual crimes. The celebrity cases that we debated when we discussed the issue previously are very pertinent and reputations have been damaged unnecessarily.

The noble Lord, Lord Thomas of Gresford, whose legal abilities are infinitely superior to mine, tells me that his amendment is superior to mine. Both amendments are directed at granting anonymity pre-charge, but the precise wording of each differs. Given that I am surrounded by very eminent lawyers, as a mere accountant, I am extremely humbled and bow to all their legal expertise. I did, however, put one non-lawyer's question to the noble Lord, Lord Thomas, yesterday. I asked him why his amendment, unlike mine and that of the noble and learned Lord, Lord Ackner, had no prescribed penalty. I think that I managed the beginner's luck of scoring a bull's eye. I know that the noble Lord, Lord Thomas, will address that point when he speaks to his amendment.

The Minister may argue, as did her honourable friend Mr Goggins in another place, that serious discussions are in train between the Home Office, the police and the media to try to find a solution based on self-regulation. I am sure that if a self-regulatory solution could be found and made to stick, that would be the most satisfactory way forward. But I hope that the Minister will forgive the touch of cynicism on these Benches, as the plain fact is that sex sells and the pressures on a self-regulatory system would be very intense.

I hope that the Minister will be able to accept pre-charge anonymity for defendants in sexual offences cases. In accepting that, it need not imply early commencement. Indeed, we would be more than happy if the Government did not commence a new section to deal with the issue if that was the result of a self-regulatory system that actually worked. But we believe that the offence as set out in my amendment or that of the noble Lord, Lord Thomas of Gresford, should be available to the Government in case their discussions break down or if a future self-regulatory system breaks down.

Let me conclude by saying for the guidance of my noble friends that we do not support the amendment tabled by the noble and learned Lord, Lord Ackner. As between my amendment and that of the noble Lord, Lord Thomas, I am persuaded that his formulation of the offence is preferable, subject to the issue that I have raised concerning the penalty. Subject to that point, which I believe the noble Lord, Lord Thomas, intends to address, I shall advise my noble friends to support Amendment No. 1C.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat

My Lords, the noble Baroness, Lady Noakes, is about to leave this area of legislation. I thank her for the way in which she has conducted this brief on behalf of her party. This is her swansong, and as she flies away to a larger pond she cannot resist swiping me with her wing on the way. It is perfectly true that she discovered that I was in error in omitting the prescribed penalty from my amendment.

I had in mind to move a manuscript amendment in order to put that right, but I read a book that said that that could not be done on Third Reading—I see that the Minister is nodding her head. However, about five seconds ago I was handed a manuscript Motion in the name of the Government, so it looks as though they are about to propose one. We propose that, if this House accepts my amendment, the prescribed penalty can be put in place in another place. If that does not happen, it could be added on the Bill's return to this House.

The answers that the Government have given to the question of anonymity are that it should be open justice. However, when we talk about open justice in the field of sexual offences, we swiftly run into a brick wall, certainly with regard to rape cases. In such cases, the anonymity of the claimant is preserved. If the naming of an arrested person may bring forward more complaints from other people who may have been subject to similar conduct, the naming of the complainant may similarly bring forward other witnesses who can aver that she has made false allegations in the past. What is good for one person for open justice must be good for the other.

However, I would not for one moment suggest that a complainant should lose her anonymity in such cases. There are much larger reasons why that is so. The effect of the trial on a victim of a sexual offence is bad enough, but the effects of the publicity are far worse. Rape is indeed a terrifying crime when it is committed. It is a violation of both body and mind and is rightly visited by very harsh punishment. The guidelines for rape start at a minimum of five years' imprisonment, but sentences are usually longer than that.

The other sexual offences that are listed in Schedule 3 that are the subject of my amendment also carry heavy punishment, especially allegations of child abuse. This is a very serious crime with very serious effects, but it also has a peculiarity that other crimes do not have. Nobody complains that their house has been burgled when it has not. However, in my experience and, I am sure, in that of the Minister, in sexual cases complainants do not always tell the truth. I have experience in my capacity as an advocate of a daughter bursting into tears on returning home when asked by her parents why she has been out so late. She is swiftly taken to the police with a false complaint of rape. I also knew a woman who fell out with her partner and used the police to punish him, and another woman who was seduced into a consensual act but very much regretted it later. Those are circumstances that are peculiar to sexual offences when complainants are not always truthful.

An acquitted defendant carries a very heavy burden, as the noble and learned Lord, Lord Ackner, pointed out. There may be permanent damage to his reputation, to his family and to his state of mind. I have great sympathy with the proposal in the noble and learned Lord's amendment for anonymity to remain for all time for an acquitted defendant. However, we must take one step at a time in this area. We have focused on what I regard as the most pernicious aspect of the present time, to which the noble Baroness, Lady Noakes, referred—the pernicious practice of the leaking of names of arrested persons to the press, sometimes for cash.

The noble Baroness referred to the Hamilton case. The Hamiltons had their names leaked to the press before they ever arrived at Barkingside police station in the first place. When they emerged from that police station 90 minutes later, they stumbled into a barrage of cameras and reporters. From there they were forced to go on the offensive. We now know beyond peradventure—because the complainant has been convicted of attempting to pervert the course of justice—that the complaints made against the Hamiltons were completely untrue. In our amendment, we have attempted to deal with that situation; namely, the leaking of the names of arrested persons before charge and the publication of them in newspapers. Our amendments seek to make it an offence for the editor or publisher of a newspaper or the controller of a programme to publish the identity of an individual before a charge has been brought.

However, we recognise that there may be two exceptions to that, which are included in paragraph (3) of Amendment No. 1C. The person against whom the allegation has been made may waive his right of anonymity for the very reason that I suggested at the beginning of my remarks: he believes that other people may come forward to say, "This woman is a liar".

Alternatively, it may be that the police have reason to suppose that the person who has been caught is a serial rapist. Under paragraph (3)(b) of Amendment No. 1C, they may apply to a magistrates' court for the section to be disapplied, giving proper grounds for it and being subject to judicial control. In our view, those two exceptions to the basic anonymity of the defendant deal with the problems outlined by the Minister on the earlier occasion. In due course, I shall press this amendment.

The Government say that we have a voluntary scheme, that we have the Press Council and that the police have disciplinary powers. Those have not worked in the past. If the Government want to try a voluntary arrangement, perhaps they could defer bringing the clause into operation while they have that attempt. But the last pint would have been pulled in the last chance saloon.

Photo of Lord Corbett of Castle Vale Lord Corbett of Castle Vale Labour

My Lords, perhaps I may begin by apologising for not taking part during the Report stage on this topic. I apologise specifically to the noble and learned Lord, Lord Ackner. When his amendment on Report was put to the vote, regrettably, I went into the wrong Lobby. I am being frank about that and I regret it very much. I say that because it was a Private Member's Bill that I sponsored in 1976. It was taken through this House by the late Lord Willis, which gave matching anonymity to the defendant in a rape trial unless convicted. That became the Sexual Offences (Amendment) Act 1976 with the sponsorship and support of my noble friends Lady Hayman and Lord Ashley of Stoke, and others, when we were all in another place.

As the noble and learned Lord, Lord Ackner, said, anonymity for the complainant woman had been argued for in a report by Justice Heilbron. She said that it should apply from the time that a man was accused of the offence. That anonymity was meant to protect women from the salacious intrusion of the press—in both words and pictures—which, in my view, it was rightly felt could deter some women from reporting rape to the police. We can all recall cases of that.

Initially, in Committee, I resisted the move to give matching anonymity to the male defendant. But I was persuaded on the grounds of equality of treatment, which won all-party support in that Committee. The argument for anonymity for the defendant, unless convicted, is—in my view, it still remains—that an accusation of rape, even where there is an acquittal, is so uniquely damaging to a man's reputation among his family, friends, those with whom he works, and in his community, that this matching protection is exceptionally warranted.

Because of the interest taken by the press and media in rape trials where, say, a vicar's daughter is involved or a footballer or show business personality is accused, there might be a disproportionate degree of pre-trial publicity as compared with other serious criminal offences. I do not regard it as any part of the criminal justice system to help newspaper editors sell extra copies on the basis of prurient reporting and coverage.

There are those who say that this is an attempt to do justice in the dark. I deny that. Names are used in court, but what can be reported is restricted in the way that matters in other kinds of trials are restricted. Blackmail and espionage trials come to mind.

When the other place considered the anonymity clause added by your Lordships to the Bill, it was argued that its restoration would restrict the police in trying to trace possible witnesses or to hear from other women who might have been raped by the defendant, but had not reported it. I have to say to noble Lords that during the 12 years that anonymity for the defendant was provided under the 1976 Act, I am not aware of any complaint made either by the police or prosecution on those grounds in rape trials.

In any event, as the noble Lord, Lord Thomas of Gresford, reminded us, the 1976 Act gave the judge powers to remove anonymity if she or he felt it to be in the public interest to do so, or it could be removed at the request of the defendant. So I do not believe that the argument is at all convincing.

The present law recognises that in rape trials it is very much the complainant woman who feels on trial. A verdict turns on whether it is the woman complainant or the defendant man who is most believed. But in law, of course, it is the defendant man who is on trial and I remain of the view that justice is neither damaged nor denied if he has matching anonymity unless convicted.

The other amendments which have been tabled acknowledge the justification for matching anonymity for the defendant, but seek to provide it only up to the point of charge. I see no good reason for stopping at that stage. As the noble and learned Lord, Lord Ackner, argues in his amendment, anonymity should extend throughout the trial and be removed only upon conviction. I hope that your Lordships will agree.

Lastly, I wish to echo what was said by the noble Baroness, Lady Noakes. If there are people around who believe that there will be a voluntary agreement by the Press Complaints Commission that will be enforceable in all circumstances, then I have to say to them that they have not learnt from past experience.

Photo of The Earl of Erroll The Earl of Erroll Crossbench 6:00 pm, 13th November 2003

My Lords, I thought that I had been brought up in a civilised country in which a person was innocent until proved guilty. That is not worth much if an innocent person cannot return to a normal life. I therefore support the amendment of the noble and learned Lord, Lord Ackner.

Photo of Lord Monson Lord Monson Crossbench

My Lords, although I tend to prefer the amendment tabled by the noble and learned Lord, Lord Ackner, when considering realistically the voting strengths in this House, we probably ought to go for one of the other two.

I listened with great interest to the noble Lord, Lord Thomas of Gresford, in speaking to his amendment. I do not know whether the noble Lord is allowed to respond to me, but is he absolutely certain that, if the other place declines to add the prescribed penalties to his amendment—which it is perfectly entitled to do, assuming that his amendment is accepted this evening—it will be technically possible to add the penalties, with no slip-ups, when the Bill returns to this House? If there is any doubt whatever, it might be better to support the amendment tabled by the noble Baroness, Lady Noakes, even if it is not quite as good as that of the noble Lord, Lord Thomas.

Photo of Baroness Mallalieu Baroness Mallalieu Labour

My Lords, I rise to support every word just spoken by my noble friend Lord Corbett, and to reassure the noble and learned Lord, Lord Ackner, that I have not got cold feet since the last occasion on which we discussed this matter. I am sorry about the approach that has been taken by both the Front Benches opposite because the principle is clear and I do not think that either of the proposed amendments will cover the full position.

I can quite understand that no government would want to be seen either by the press or by the public as trying to stifle proper public knowledge and discussion, but no one in this House or anywhere else could argue that self-regulation has worked effectively. As my noble friend has just pointed out, which of us would put money on even sabre-rattling in a measure such as this producing any better effect? The reality is that sex and well-known people sell newspapers. The temptation will always be there and usually people will give in to it in order to print the story.

If we go along the line of, in a sense, taking a small bite at this, as is suggested in the amendments from both the Front Benches opposite, we shall still be left with the very considerable difficulty that now arises in almost every case involving either someone well known or something notorious. I speak of the applications that are made before the trial can even begin to try to deal with the prejudicial publicity which has taken place. As we know, the tip-off starts—perhaps sometimes it is given by the police themselves; who knows?—before anyone even arrives at the door and knocks on it to arrest or question the suspect.

It is said that we should restrict ourselves in order that there can be publicity which may bring forward other complainants. Over the past few years, in that area we have seen a number of miscarriages and potential miscarriages of justice where, by publicising, people have in a sense been trawling—the police particularly—for additional evidence to back up cases which they know to be lacking in strength. Those who are attracted to come forward may, in some cases, be genuine complainants—but there may also be those seeking attention.

I do not accept the arguments put forward by the noble Lord, Lord Thomas of Gresford. His amendment seems to me to be second best. If he moves it later, as he said he will, I shall support it, but only if the amendment of the noble and learned Lord, Lord Ackner, is either not pressed or fails. We are in danger of letting go an opportunity which will not come again in the near future, and certainly will not come again until other people's reputations have been destroyed, jobs lost and untold distress caused to people who should not have suffered.

Photo of The Bishop of Hereford The Bishop of Hereford Bishop

My Lords, I agree with the noble Baroness, Lady Mallalieu. In the absence of the right reverend Prelate the Bishop of Chester on this occasion, I also support the amendment moved by the noble and learned Lord, Lord Ackner.

I agree that there is an urgent need to protect innocent people from undesirable press publicity and intrusion. I am not persuaded that the arguments put forward by the noble Lord, Lord Thomas of Gresford, are sufficient to outweigh the potential danger of false accusation, as the noble Baroness, Lady Mallalieu, clearly explained. I should need to be persuaded that there was a sufficient reason for limiting anonymity to the point of charge rather than to the point of conviction. I should be grateful if the noble Lord, Lord Thomas, or the noble Baroness, Lady Noakes, could be rather more persuasive on that before I have to make up my mind one way or the other.

I hope very much that the Minister will understand the extreme strength of feeling that there is on this matter and that the Government will accept, at the very least, the lesser amendment, but I hope the greater one.

Photo of Lord Carlisle of Bucklow Lord Carlisle of Bucklow Conservative

My Lords, I have listened carefully to the noble Baroness, Lady Mallalieu, but there is one genuine problem: what do you do during the course of a trial if the anonymity of the defendant is to remain at that time? You will be immediately accused by the press of interfering with its right to report public trials. If there is a sensational trial taking place, say, at the Old Bailey, and you attempt to retain anonymity, everyone will know effectively who the defendant is. He will be seen walking to court and coming back from court. Or, if he is not recognised, rumours will start that it is someone else being tried.

Obviously the ideal would be to have anonymity all the way through but there is a practical argument that the time when it is really effective is up until charge, when there is no reason, if anonymity is imposed, for people to get round it. In other words, anonymity would work until charged, but I wonder whether it would work during the course of a trial.

Photo of Lord Eden of Winton Lord Eden of Winton Conservative

My Lords, I agree with the noble Baroness, Lady Mallalieu, and support the amendment moved by the noble and learned Lord, Lord Ackner.

I do so because I have met quite a number of people who have been accused falsely of sexual offences. The moment the accusation was made—or before even the accusation became public knowledge—the fact that they had been accused was in the public domain. The noble Lord, Lord Thomas of Gresford, made the point about the police giving such information to the press and to the media, sometimes before even the so-called accused has any knowledge of what is about to overtake him.

I have met men whose lives have been completely ruined as a result of what has taken place, yet when the facts have been impartially examined, or when their case has gone to trial, the accused has been shown to be innocent. We ought not to allow this sort of situation to continue.

I take the point that my noble friend made about the difficulty of retaining anonymity during the course of a trial. However, by notifying the media in this way, I believe that there will be at least some restraint imposed upon the reporting that might take place. I think it is illusory to expect any form of self-regulation in cases of this kind. That will not happen, for the reasons advanced by my noble friend Lady Noakes when she said, in effect, that sex sells copies. It does, and the media will got out of their way to find opportunities to give publicity to such cases. Therefore, I support what has been said by the noble and learned Lord, Lord Ackner, and noble Lords who spoke from the Benches opposite. Like them, if the noble and learned Lord's amendment should not pass, I shall support the amendment standing in the name of the noble Lord, Lord Thomas of Gresford.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Liberal Democrat

My Lords, I, too, am moved to support the amendment of the noble and learned Lord, Lord Ackner, if he seeks the opinion of the House, for the reasons which have already been given.

I have heard the argument from the noble Baroness, Lady Noakes, that there might be some difficulty in persuading people—or hoping that there will be volunteers—to complain of such sexual attacks, if publicity were not available. However, in the event of there being a conviction, it appears to me that publicity of a kind would certainly be released at the conclusion of the trial which would encourage others who had experienced comparable events to come forward. It does not seem necessary to have the long, protracted, prurient reportage of these cases in order to achieve the result that the noble Baroness had in mind.

My noble friend Lord Thomas of Gresford described his amendment as a step. It is indeed a step, but it does not go far enough to deal with the mischief that was eloquently described by the noble and learned Lord, Lord Ackner. Like other noble Lords, I would support my noble friend's amendment if it were to follow that of the noble and learned Lord, Lord Ackner, and an opportunity presented itself. However, I am bound to say that the noble and learned Lord, Lord Ackner, has put forward an irresistible case.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 6:15 pm, 13th November 2003

My Lords, as I said in moving the government amendment, we very much recognise the difficulties associated with this area of law. As the noble Lord, Lord Eden of Winton, the right reverend Prelate the Bishop of Hereford and my noble friend Lord Corbett have made plain, it is a matter which can carry great stigma and difficulty.

I have a word of comfort for the noble Baroness, Lady Noakes, who drew attention to the flaws identified in her amendment. Each of the amendments has fundamental flaws, but for different reasons, so she need feel no anxiety that her skill has in any way been compromised by the nature of her original profession. I shall not repeat all the details, but we prefer self-regulation and a code of practice as the better way. The noble Baroness acknowledged that. We are not without hope in that regard.

It might assist if I identified why we believe that each of the amendments moved by noble Lords opposite, and by the noble and learned Lord, Lord Ackner, is flawed. The noble and learned Lord's new amendment would extend anonymity to defendants up to the point of conviction. It is the only amendment of the group that does so. I recognise that it is supported by many in the House, the noble Lord, Lord Maclennan, being the last to speak in support of it.

The previous amendment proposed by the noble and learned Lord suggested that the defendant should have the same right to anonymity as complainants. In effect, that would have provided life-long anonymity, regardless of whether a defendant was convicted. This amendment would amend the Sexual Offences (Amendment) Act 1992, which provides anonymity for victims of some offences. Although the amendment is similar to his previous amendment, which was narrowly successful in your Lordships' House, it does not reflect the general sentiments expressed so far in both Houses.

The main concern in this matter relates to the pre-charge period. For that reason, the noble Lord, Lord Thomas of Gresford, and the noble Baroness limited their amendments. It would appear that the noble and learned Lord's amendment does not cover the pre-charge period at all. It provides for anonymity from the point where the defendant is accused of an offence. It does not define what is meant by a person being accused of an offence, but the definition in the 1992 Act of "being accused" is essentially "being charged". Thus the amendment appears to cover the post-charge period but not the pre-charge period, which is of most concern.

Amendment No. 1B would provide anonymity to persons suspected of an offence listed in Schedule 3, up to the point of charge. The schedule lists a wide range of offences that trigger registration on the sex offenders' list. That amendment would also introduce a penalty, including a maximum of two years' imprisonment. There are various deficiencies to the clause; I do not know whether they were all enumerated by the noble Lord, Lord Thomas of Gresford, but it may assist if I do so.

First, it imposes criminal liability on proprietors, editors and publishers, regardless of whether they are aware that the person's identity is being revealed. That unfairness is compounded by the risk of a fairly lengthy term of imprisonment—a deficiency also arises in Amendment No. 1C. If that provision had been in force at the time of the unexpected revelation of the identity of John Leslie by a TV presenter on a live show, the editor of the broadcast would have been liable and could have faced a prison sentence.

Secondly, the proposed penalties are inconsistent with reporting restrictions relating to persons under 18 in the Youth Justice and Criminal Evidence Act 1999 and anonymity of complainants in the Sex Offences (Amendment) Act 1992, and in the Criminal Justice Bill. A level 5 fine, which is a maximum of £5,000, is sufficient for those purposes.

Thirdly, the proposal makes no provision for lifting reporting restrictions in exceptional circumstances, such as when a dangerous suspect is at large and the public needs to be warned or if a suspect needs publicity for alibi purposes. Failure to provide the defence with the ability to waive anonymity, for, say, the purposes of obtaining alibi information may in certain circumstances impede the right to a fair trial thereby making this amendment in contravention of Article 6 of the European Convention on Human Rights. Similarly, the fact that the courts have no discretion whatever to lift reporting restrictions is likely to make the provision incompatible with Article 10 and the right to freedom of expression. Finally, this amendment and Amendment No. 1C—the noble Baroness can feel comforted that the noble Lord, Lord Thomas of Gresford, shares this position with her—refer to applying the measure to offences listed in Schedule 3 of this Bill.

If I may respectfully say so, referring to an offence listed in Schedule 3 does not make sense pre-conviction as it would bring in all the thresholds in Schedule 3 which would include those relating to imprisonment. For example, Schedule 3 applies only to a young person who commits a child sex offence if he is sentenced to a term of imprisonment of at least 12 months. It is difficult to see how that would be applied at the pre-charge stage.

I turn to Amendment No. 1C. This amendment seeks to improve Amendment No. 1B by adding exceptions to reporting restrictions. The exceptions would provide that a suspect may waive his right to anonymity and that a court may lift the restrictions on application by a police officer at least of the rank of inspector. Such a delay in making an application to a court could still leave the police with operational difficulties which could put the safety of the public at risk. Furthermore, it would still mean an application to a court in any case where a TV programme such as "Crimewatch"—I am sure that noble Lords will be familiar with that programme—or a newspaper asked to give publicity involving identifying the suspect in order to apprehend him. This amendment does not make provision as to the test that should be used by the magistrates' court for disapplying anonymity. We believe that the court should have power to disapply anonymity only if it would be in the interests of justice to do so. There is also no provision for allowing the press to apply for the lifting of reporting restrictions.

The term "publication" is left undefined in this amendment. Yet what constitutes a publication is critical to the scope of the amendment. We believe that it should be defined in the same way as it is for the purposes of the reporting restrictions in the Youth Justice and Criminal Evidence Act 1999. If I may respectfully say so, the amendment makes no sense because it refers to a "relevant programme" without defining what that is and without explaining how it relates to a "publication". Again, we would have thought that the term should be defined in the same way as it is in the 1999 Act.

Finally, this amendment does not spell out the appropriate mode of trial or penalty for this offence—a point which the noble Baroness, Lady Noakes, with her usual acuity, alighted upon. The effect of this is that the offence would be triable on indictment only with a limitless penalty meaning that a defendant in such a case could, at least in theory, face an unlimited fine and/or a term of life imprisonment!

We have listened very carefully indeed to representations from those concerned about the very real harm that can be caused through the reporting of defendants' details. We also recognise that much concern in these cases arises from the damaging publicity that is often generated pre-charge.

We believe that informed and strengthened guidance to the police and the media is preferable to any change in legislation. The police code of conduct provides that information which comes into the possession of the police should be treated as confidential. It should not be used for personal benefit and nor should it be divulged to other parties except in the proper course of police duty. The code also demands that police officers have a particular responsibility to act with fairness and impartiality in all their dealings with the public and their colleagues. Regardless of whether on or off duty they should not behave in a way which is likely to bring discredit upon the police service. Unauthorised disclosure of information on the suspect by a police officer is likely to be considered a breach of the code. Such a breach means that an officer's conduct has not met the appropriate standard for the purposes of the police conduct regulations, and disciplinary proceedings may commence.

An officer could face dismissal or even prosecution, depending on the circumstances of the case. In 2002–03, approximately 61 such cases were substantiated. An agreement has been reached with ACPO that it would amend its media and disciplinary guidelines to all forces, to give greater prominence to the rules that govern the release of information about anyone suspected but not yet charged with an offence. That stronger guidance has already been put into effect, bringing the importance of the issue to the attention of police officers.

The Government have also engaged in detailed discussions with the chairman of the Press Complaints Commission. As a result, the press is now looking at its code of conduct to see how that can be strengthened to ensure that those suspected but not yet charged with offences are not named in the media.

The Government have gone much further than the amendments would do. They are limited to certain sexual offences under the Bill. We have made it clear in our dealings with the police and the media that we expect them to apply such self-regulation in relation to all offences, including the heinous crime of murder. The Government have never been of the view that sexual offences should be singled out in the way proposed by the amendments.

Of course I have listened with great care to what has been said. The noble Lord, Lord Carlisle of Bucklow, was right in saying that the matters might be capable of being contained pre-charge, but that there would be a terrible hornets' nest if one were to extend further than that. There is a balance between the freedom of the press to report in a proper way and liberty in that sense, and the interests of the parties concerned.

Photo of Lord Carlisle of Bucklow Lord Carlisle of Bucklow Conservative

My Lords, I hope that the Minister is not suggesting that I in any way withdrew my support of the position pre-charge. I believe that there should be anonymity pre-charge.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

No, my Lords. I was merely alluding to the fact that the noble Lord was referring to the difficulty that comes after charge in managing. He was quite right to raise concern about the practicality of how one would seek to manage that. That does not mean in any way a failure to appreciate the concerns so ably outlined by my noble friend Lord Corbett, who mentioned the work that he and my noble friend Lady Hayman did when they were in the other place, in relation to the 1976 legislation.

I want to make it clear that the sentiments mentioned by the right reverend Prelate the Bishop of Hereford, the noble Earl, Lord Erroll, the noble Lord, Lord Monson, and my noble friend Lady Mallalieu have been very much at the forefront of the Government's thinking. We have come to the decision that the balance is properly struck by strengthening the code as I have just indicated. I invite noble Lords not to press their amendments.

Photo of Lord Ackner Lord Ackner Crossbench

My Lords, at the outset of the debate on Report, I drew attention to the gap between 1976 and 1988, 12 years during which the defendant enjoyed anonymity. I said in terms that there had been no evidence of that giving rise to injustice or causing any problem at all. That was referred to by the noble Lord, Lord Corbett, for whose speech I am much indebted. Where is the problem? We have had a situation where the defendant enjoyed anonymity. What is the anxiety about putting that back? I will tell noble Lords what the anxiety is. It is the fear of criticism by the press.

In a speech which I and all other High Court judges had to make once a year at the University of Birmingham, I said in terms that the greatest problem facing any democracy is how to achieve a responsible press. Your Lordships may agree that recent events concerning the Prince of Wales make that position even clearer today.

This Government, like any other, refuse to face up to the need for legislation on privacy and they have left it entirely to self-regulation. One of my critics was the noble Baroness, Lady Kennedy. She said that one would lose the willingness of people to come forward, but she also said this about the press:

"The editor of one of our tabloid newspapers recently gave evidence before the Home Office Select Committee and said that her newspaper had paid money to police officers for information. It is well known that there are leaks from the police, particularly when the people involved have a public profile or an eminent position, whatever it might be. There are frequently leaks because it makes for good tabloid coverage".—[Official Report, 2/6/03; cols. 1092-3.]

The noble Baroness, Lady Walmsley, made a strong point on the subject. She said:

"The noble Baroness, Lady Kennedy of The Shaws, said that others may come forward. If someone has a complaint, he or she should make it. It is rare for people to come forward when there is publicity. It is much more important that both the defendant and the complainant are treated equally in these exceptional circumstances".—[Official Report, 2/6/03; col. 1086.]

That is why she supported the amendment.

Returning to other matters that have been raised, perhaps I may deal first with the law on rape as it is now. An obligation on the judge to give the jury a warning about the absence of corroboration has been removed. I suppose that that was because pressure groups said that it was rude to suggest that women make up false allegations.

I have had the pleasure of listening, in Privy Council in particular, to the noble Lord, Lord Thomson, but I have never had the pleasure of leading him. I am grateful to him for being an efficient junior by pointing out the fact that there are frequently cases that are made up. Your Lordships may recall that they are made up not only maliciously, but also by an illusion. That was firmly demonstrated in that fine drama, A Passage To India. A wretched Indian was put into prison, but while he was being tried, the situation suddenly became clear to the complainant. The penalty deficiency can easily be put right as has been properly pointed out by the noble Lord, Lord Thomson, during the course of his observations.

That completes the points I want to raise because it deals with the various criticisms which have been made. I do not believe that the timid reliance on self-regulation, in order to ensure that you do not fall out with the press, is any argument at all. It is the Government's function primarily to stand up to the press. Until they do so, we shall continually have an irresponsible press.

Having listened to what has been said, I believe that this is an appropriate case in which to test the opinion of the House.

On Question, Whether the said amendment (No. 1A as an amendment to Amendment No. 1) shall be agreed to?

Their Lordships divided: Contents, 26; Not-Contents, 86.

Division number 4 Private Parking: Ports and Trading Estates — Commons Amendment

Aye: 24 Members of the House of Lords

No: 84 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

[Amendment No. 1B not moved.]

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat 6:46 pm, 13th November 2003

rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, at end insert "but do propose the following amendment in lieu of the words so left out of the Bill—

1CInsert the following new Clause— "Anonymity of suspects and defendants in certain cases (No. 2)

(1) Subject to subsection (3), where an allegation has been made that a person has committed an offence listed in Schedule 3, no matter relating to that person shall be included in any publication if it is likely to lead members of the public to identify that person as the person who is alleged to have committed the offence, until and unless that person is charged.

(2) If any matter is published or included in a relevant programme in contravention of subsection (1), the following persons, namely—

(a) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;

(b) in the case of any other publication, the person who publishes it; and

(c) in the case of a matter included in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper; shall be guilty of an offence.

(3) Subsection (1) shall not apply—

(a) if the person against whom the allegation has been made waives his right to anonymity; or

(b) if it is disapplied in relation to a specific person by a magistrates' court on application by a police officer of at least the rank of inspector.""

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat

My Lords, I spoke to this amendment in the debate on Amendment No. 1A. I have nothing to add. I ask the House to agree to it. I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, at end insert Amendment No. 1C in lieu of the words so left out of the Bill.—(Lord Thomas of Gresford.)

On Question, Whether the said amendment (No. 1C) shall be agreed to?

*Their Lordships divided: Contents, 101; Not-Contents, 79.

Division number 5 Private Parking: Ports and Trading Estates — Commons Amendment

Aye: 99 Members of the House of Lords

No: 77 Members of the House of Lords

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Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

On Question, Motion, as amended, agreed to.