Clause 36

Criminal Justice and Immigration Bill – in a Public Bill Committee am 9:30 am ar 22 Tachwedd 2007.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Reports on the outcome of a death investigation

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I beg to move amendment No. 154, in clause 36, page 26, line 2, at end add—

‘(8) A report published by the Commissioner, whether or not published with the consent of a complainant or his personal representatives, and a fair and accurate report published by another person of any such report if published contemporaneously, are for the purposes of the law of defamation published on an occasion of absolute privilege.’.

In clause 36, the commissioner is given permission, or required, to make reports to various people, including the Secretary of State and

“the controlling authority appearing to the Commissioner to have the most direct responsibility over the matters covered by the investigation”,

which might be, returning to our previous discussion, the police authority, the relevant prison governor—

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Yes, even the ombudsman—or a coroner. Subsection (3) gives the commissioner permission also to

“make a report to any other person the Commissioner considers should receive a report.”

He will exercise that power

“to ensure that a report is made to at least one person who—

(a) is a personal representative of the deceased,

(b) was the partner, or other relative, of the deceased at the time of the death, or

(c) appears to the Commissioner to have been a friend of the deceased at the time of the death.”

That is all perfectly sensible and should be welcomed.

Subsection (5) clearly makes sense. It says that the commissioner need not report to such people

“if, after taking all reasonable steps to ascertain the identity of, and a means of contacting, a person falling within that subsection, the Commissioner is unable to comply with it.”

Sadly, there may be lots of prisoners who may have lost contact with their families, who cannot be discovered.

The clause deals with reports in writing. Subsection (7) gives the commissioner permission to

“(a) make different reports under this section to different persons;

(b) show any person a draft of the whole or any part of a report to be made under this section;

(c) publish the whole or any part of a report made under this section”.

I assume that when exercising his permission to show any person a draft of the whole or any part of the report, unless it is by publishing it—I use the word “publish” in the sense of making public, as opposed to making known to a third person—the commissioner will use his common sense and discretion and not give unduly wide publication to sensitive material. However, the Bill apparently gives him permission to publish it to whomever he wishes.

Photo of David Heath David Heath Shadow Leader of the House of Commons

Will the hon. and learned Gentleman advise me, as he is a great expert in these matters? The commissioner will have the power to publish to any person. The power is qualified by a requirement that

“the name of the deceased person must not be published under paragraph (c) without the consent of a personal representative of that person.”

What will the circumstances be when a report is published and is also available to a court? Will it become privileged information that can be freely published and disseminated on the basis that it is before a coroner’s court?

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I do not want to have too long a discussion about it, but there are various sorts of privilege, with which we must be careful not to confuse ourselves. I shall come to the law of privilege within the common law on defamation, or statutory law as it will be if I succeed in my amendment. For the moment, I do not want to guess whether a report published by the commissioner in breach of a consent or without the consent of a personal representative of the deceased would take the commissioner outside any protections that he might have, either expressly or by implication. The Minister may well have something to say about that.

My amendment would expressly protect from defamation law both the commissioner and anybody who might wish to carry a fair and accurate report of what the commissioner reported. We all understand that deaths in custody, or deaths that come within the death remit, are hugely emotionally sensitive. Sometimes the commissioner will have to make some pretty hard criticisms of managers or individuals who work within—I shall use the expression, even though I have made fun of it—the custody setting. It is not in the public interest for the commissioner to feel inhibited, merely through fear of an action in defamation, from saying precisely what he thinks based on the evidence he has discovered. I need not give examples; I am sure that Committee members can easily understand the sort of inhibiting factor that might influence the commissioner. That is why I am suggesting a new subsection (8) in the terms of the amendment.

Absolute privilege is the privilege that protects us as Members of Parliament when we speak either in Committee or on the Floor of the House. Anything that we say is absolved from the law of defamation; it might breach the rules and regulations of the House, but we cannot be sued by a third party for saying it. Equally, a newspaper has absolute protection in reporting what we have said, so long as what it publishes is fair and accurate and is published contemporaneously. Protection from libel suit becomes qualified if the report is non-contemporaneous, and in that case issues of malice apply. The Minister suggests that a fair and accurate contemporaneous report is covered only by qualified privilege.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I am reasonably sure that I am right, although I must admit that I have not practised at the defamation Bar for the past two years, so I might be getting rusty. If I am wrong, my colleagues in chambers can laugh themselves into distraction, but my memory is that fair and accurate contemporaneous reports are covered by absolute privilege whereas non-contemporaneous reports are covered only by qualified privilege.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

The hon. and learned Gentleman is probably not as rusty as I, because I have never practised in defamation and it is 10 years since I practised at all. My memory is that qualified privilege applies, but I shall have it checked.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I suspect that the Minister is too young for her brain to have had the chance to rust at all. I am reasonably confident of my position, although confidence is a dangerous thing. I am reasonably sure  that contemporaneous reports of parliamentary and court proceedings are absolutely privileged, but I am happy to be corrected by anybody. What I want to emphasise is that the commissioner needs express protection. If the Minister tells me that he is already protected by other measures, I shall be content.

It is an important matter of public interest both that the commissioner be protected and that we as the public should have access to his report and be able to read, if not the whole report, newspaper or media reports of what he has to say. During the past two years, I have been increasingly concerned about the secret world of prisons. I have often used that metaphor, which is getting a bit worn, but there is very little public knowledge of what happens inside prisons. I often say that of course prisons should have walls, but they should also have windows, so that the public can see inside and know what is being done in their name, and so that prisoners can see out into a world that will receive them back if they reform, rehabilitate themselves and show every sign of being prepared to live responsible lives. Having used that same analogy not so long ago, I was rung by a local journalist who asked me where I was going to get all the necessary public money to put windows in prison walls. As I said before, it is possible to lose the will to live on occasion!

It is through media reporting of what goes on inside prisons that the public gain access to the prison world. If deaths take place in custody or in secret places, the full glare of public reporting should be focused on them, not only as a discipline, to ensure that bad things do not go unnoticed and undealt with in prisons, but so that the public can know what is being done in their name. All of us—policy makers and practitioners in the criminal justice system and particularly in the world of custody—should learn from previous mistakes. That is the short point that I wanted to make.

I am sorry that I have not brought my “Gatley on Libel”, which is my bible, or even the shorter version, Duncan and Neil. They are both good books, which I recommend to you, Sir Nicholas, and colleagues in my chambers have made very positive contributions to them—I shall not advertise my chambers much beyond that. However, I ask the Minister at least to acknowledge the principle behind my remarks, even though she and I may disagree over whether contemporaneous parliamentary court reports are covered by absolute privilege.

Photo of David Heath David Heath Shadow Leader of the House of Commons 9:45, 22 Tachwedd 2007

It now seems rather late to welcome you to the Chair, Sir Nicholas, and I could not possibly do so in the same enthusiastic terms as the Minister, but I of course welcome you in what little way I can.

In another context, the speech that we have just heard from the hon. and learned Member for Harborough would have been extraordinarily expensive, but he is on to a good point, which needs elucidation from the Minister. I claim no expertise in this subject—I intervened on the hon. and learned Gentleman to try to expand my knowledge of it—but it seems to me that it is important that the privilege that may or may not apply to a report by the commissioner apply from the point of publication, not from or at the  point at which the report is presented to a coroner’s court, which may be much later if there are adjournments or delays in the court’s proceedings.

That enables me usefully to ask the Minister whether she can help me in respect of the relationship between the coroner and the commissioner. We were rather hoping for a coroners Bill in this Session, but we are left hanging on the expectation that one may arrive if parliamentary time allows. I think that parliamentary time should allow for a Bill on the important issue of reforming the coroners’ courts system. My question, however, is whether, having received the report, it is in order for the coroner to request further investigation from the commissioner, because there is no express requirement for the commissioner to undertake further investigation. The coroner’s powers may in any case enable him to request further investigation. As further facts about a death in custody unfold during the coroner’s court hearing, it might be extremely helpful if the commissioner could be asked to carry out further investigations into a specific matter and to report back to the court. I would be happier if such provision, if it were necessary, was built into the Bill, but it may be unnecessary, and perhaps the Minister can reassure me on that.

Photo of Sally Keeble Sally Keeble Llafur, Northampton North

Will my hon. Friend the Minister tell us about the sequencing of priorities in the reports and investigations? I am thinking of the Gareth Myatt case and others. The police had the first crack at it, followed by the Crown Prosecution Service. The decision not to prosecute took two or three years, after which there was a further delay, and the coroner’s investigation did not start until four years after Gareth’s death. Will the commissioner investigate immediately after a death, or will they have to wait for a decision whether to prosecute, which can take some time? If so, will he investigate before the coroner’s court, or regardless of what happens there?

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

A short, sharp legal debate at this time of the morning is quite difficult to cope with. The hon. and learned Member for Harborough might like to hear that I agree with him, in a qualified way, about the importance of protection for the commissioner’s reports from issues of defamation. If he turns to clause 44(12) on page 32 of the Bill, he will see that it uses terms pretty similar to those of his amendment.

I hope that he is satisfied with that, subject to our disagreement about how far absolute privilege extends beyond—to use the example that we heard—the Floor of the House and Committee, or in this case the commissioner’s report. My recollection is that qualified privilege would cover media reports; his is that absolute privilege will cover contemporaneous media reports. We are each half-right, to be kind about it. My understanding is that a full report of a parliamentary debate would be covered by absolute privilege, but extracts from the debate would be covered by qualified privilege. If we are to be kind and co-operative, we might say honours are even. I hope that he does not get too much ribbing from members of his chambers when he gets back. His amendment is not necessary, because the matter is covered by clause 44(12). I hope that that is sufficient for him to feel able to withdraw it.

The hon. Member for Somerton and Frome asked about the coroner’s role. The commissioner will have quite a lot of flexibility. He will certainly be able to reopen an investigation at any time to deal with new points that emerge from an inquest hearing or elsewhere. It is perfectly open to him, if he feels the need, to accept the suggestion from a coroner or anyone else that he ought to reopen an investigation to look a bit further.

My hon. Friend the Member for Northampton, North, on the basis of her experience with her constituent, made a point about the length of time that such investigations can take. It is an important point. As we discussed during debate on clause 35, the commissioner will be able to defer his own investigation if a criminal investigation is proceeding. That is the way that it will normally be done, but there is nothing to stop the commissioner from continuing an investigation if the criminal investigation becomes lengthy and he considers that deferring his own investigation further is not appropriate. He will be perfectly free to get on with his own investigation. The time periods in the case that my hon. Friend mentioned as an example were very long. It will be perfectly open for the commissioner to take a view on that and to continue his own investigation before the criminal investigation has come to a close.

We are seeking to give the commissioner the maximum flexibility to deal appropriately with the matters that we are putting in his remit in respect of deaths and of complaints. I hope that that has answered the points raised in the debate.

Photo of Sally Keeble Sally Keeble Llafur, Northampton North

If part of the point of what is happening is to get the information out into the public domain—which was the reason for asking about the defamation laws—the Minister, and you, Sir Nicholas, will recall that there is also a sub judice rule, which prevented us from debating some of the relevant circumstances for four years. That needs to be thought about. We cannot allow a situation in which a possibly destructive commissioner’s report, which may perhaps even be covered in the press, cannot be debated in the House because we have gagged ourselves.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

I am having to resort to my increasingly rusty legal memory, although the hon. and learned Member for Harborough may be able to help me, and should feel free to do so if he thinks it appropriate. My memory suggests that the sub judice rule would apply where criminal proceedings, rather than a criminal investigation, were under way. It would thus certainly be possible in the circumstances set out by my hon. Friend for the commissioner—we want to give him the necessary discretion and flexibility—to deal with cases, which are all highly individual, on a case-by-case basis, as he sees fit. The commissioner might take the view during an investigation of such a length as my hon. Friend mentioned, that it was taking too long and he intended to get on with his investigation.

Photo of Nicholas Winterton Nicholas Winterton Ceidwadwyr, Macclesfield

May I intervene to help the Committee? The clause does not deal with the sub judice rule, so, to an extent, although I have allowed a modest reference, I do not think that we should labour the point.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

I am always trying to be too helpful and not being mindful enough of the limits of the debate, Sir Nicholas. I have probably said enough. The point that the hon. and learned Member for Harborough rightly made is covered later in the Bill, and I hope that he will feel able to withdraw the amendment.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I thank the Minister for reminding us of clause 44(12). It partly covers the matter, but partly does not, because, as the hon. Members for Somerton and Frome and for Northampton, North have also suggested, it is all to do with public information, and unless there is public information about the secret world in question, we cannot fulfil our function as legislators in making sure that the public know what is going on.

The distinction between my amendment and clause 44(12) is that subsection (12) deals only with what the commissioner does. It may well be that implied within that is a protection for those who report what he has to say. The more I think about it the more convinced I am that I was right and that the Under-Secretary of State for Justice is not quite correct in her understanding of the law of defamation, but I shall check that during the short Adjournment and discuss it with her outside the Committee. However, I can see that it would be a somewhat fruitless and self-regarding exercise to pursue the amendment further than necessary.

The Under-Secretary gave me qualified support. The purpose of introducing the concept of absolute privilege as opposed to qualified privilege is that the latter requires the complainant to demonstrate that the publisher was actuated by malice—that he was using the occasion of privilege to some wrong or improper purpose. The most obvious example of that would be to get some sort of revenge. I do not need to go into that. It is important that the media should be free to report the commissioner’s reports and that the public should have access to what he has to say, either in summary or verbatim form. I am happy as long as the commissioner does not feel inhibited in telling us what he has found and from drawing conclusions from his findings, either in the form of further allegations of fact or comments on the facts that he has found, and the media are not be inhibited in reporting what he has to say.

This is not a debate on the sub judice rule. In my view, the sub judice rule is much misunderstood. That is probably why it is not necessarily a good idea to discuss it this morning. Under the Contempt of Court Act 1981, the law of contempt bites when proceedings are active. Within the criminal sphere, proceedings are active in a number of ways, but essentially proceedings are active once a charge has been laid.

Ms Keeble rose—

Photo of Sally Keeble Sally Keeble Llafur, Northampton North

I was only going to say that I was not talking about the legislation, but about the rules in this place.

Photo of Nicholas Winterton Nicholas Winterton Ceidwadwyr, Macclesfield

We cannot talk about that on this amendment.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

This discussion is entirely sub judice.

We discipline ourselves within this House, so that although we are not controlled by the courts, we respect them and therefore do not breach the law that would apply were we not in Parliament—at least, we do our best not to do so. We are not as a matter of law obliged to follow the courts, but we do because we respect the courts’ power and functions. We will have a talk about that later when I can charge the hon. Lady for the advice.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I do not want to, but I am jolly well going to. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 ordered to stand part of the Bill.