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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.