[Sir CYRIL COBB, in the Chair.]
(1) It shall not be lawful to print, circulate or publish, or cause or procure to be printed, circulated or published—
Provided that nothing in this part of this Sub-section shall be held to permit the publication of anything contrary to the provisions of paragraph (a) of this Sub-section.
(2) If any person acts in contravention of the provisions of this Act he shall in respect of each offence be liable, on summary conviction, to imprisonment for a term not exceeding three months, or to a fine not exceeding five hundred pounds, or to both such imprisonment and fine.
(3) No prosecution for an offence under this Act shall be commenced by any person without the sanction of the Attorney-General.376
(4) Nothing in this section shall apply to the publishing of any notice or report in pursuance of the directions of the court; or to the publishing of any matter in any separate volume or part of any bonâ fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or in any publication of a technical character bonâ fide intended for circulation among members of the legal or medical professions.
Sir EDWARD ILIFFE: I desire to refer to an Amendment which was accepted by this Committee at its last meeting. The hon. Member for Cambridge University (Mr. Withers) proposed an Amendment to the effect that newspapers should have the right to publish a concise statement of charges and countercharges in respect of which evidence was given, and that Amendment was adopted by the Committee. The intention of the Amendment was excellent in the interests of justice but it puts newspapers in a very difficult position. It means that no newspapei—
The CHAIRMAN: That point was raised and discussed at the last meeting.
Sir E. ILIFFE: I only wish to appeal to those in charge of the Bill that on the Report Stage they should bring forward another Amendment making it clear that nothing is to be published in the Press until the judgment of the Court has been pronounced. If that is made clear, the newspapers will know exactly where they stand.
The CHAIRMAN: I cannot have that point argued now.
Sir E. ILIFFE: I appeal to those in charge of the Bill to consider my suggestion.
Sir MALCOLM MACNAGHTEN: I beg to move, in Sub-section (2), to leave out the word "three" and to insert instead thereof the word "four." If this Amendment be accepted, Sub-section (2) will read "If any person acts in contravention of the provisions of this Act, he shall in respect of each offence be liable on summary conviction to imprisonment for a term not exceeding four months." The object of the Amendment does not appear on the face of it. Its object is to secure what hitherto has been the traditional right of the people of this country that they shall not be deprived 377 of life or liberty, except by the judgment of their peers. It is intended to secure to every accused person the right, if he is minded to ask for it, to be tried by a jury. I commend this Amendment to the Committee on the ground that that great principle in the administration of criminal justice in this country ought to be preserved. The reason why the substitution of "four" for "three" has that effect is because, by virtue of Section 17, of the Summary Jurisdiction Act, 1879, in every case where a person is charged before a court of summary jurisdiction, with an offence for which the punishment can exceed three months imprisonment, such person has a right to say to the magistrates, "I wish to be tried by a jury." It is then the duty of the magistrates provided they think there is a case fit to be tried at all to send the accused person for trial at quarter sessions or assizes. I need not dilate on the advantages of trial by jury. I can bring in support of my Amendment, the testimony of the promoters of the Bill. I do not know if members of the Committee have the special report of the Select Committee to which reference has been made, but, if they have, they will observe in paragraph 10, of the Report of the Committee, of which my right hon. Friend the Member for the Aston Division of Birmingham (Sir E. Cecil) was Chairman, the following passage:— "The third question raised was what legal procedure is most suitable, and it can be answered briefly. A number of legal authorities who gave evidence before us on this point advised summary procedure before the magistrates as the most effective, with the ordinary right of appeal to quarter sessions and a jury." For some reason which I do not profess to understand, the members of that Committee were under the impression that if you were convicted summarily, you could appeal to quarter sessions and could then be tried with a jury. I observe the learned Solicitor-General is present, and I think he will confirm my statement that this is an entire misconception. If there is an appeal from a summary conviction at quarter sessions, the case is not tried by the jury, but by the magistrates sitting there, and they decide the case, not unanimously, as a jury is bound to decide it, but by a bare majority. Certain cases arise from time time—a recent case was very largely in the public eye—where such 378 procedure gives rise to grave doubts as to whether the accused person has been properly convicted or not. No such doubt arises in the minds of the public when a man is tried by a jury, because the jury are directed by the judge that they have to be unanimous in their decision and they have to come to the conclusion that the prosecution have proved the case beyond all reasonable doubt before convicting. If twelve ordinary men, drawn from the jury list, come to that conclusion, then, although there may, from time to time, be miscarriages of justice, on the whole they are very rare, and public opinion is satisfied that justice has been done. Therefore, I can claim that the promotors of the Bill themselves say that a jury would be the proper tribunal to try these cases if the accused person desires to be tried by a jury. Of course, there will be a certain number of cases which can be dealt with summarily before the magistrates where there is no real doubt about the offence having been committed. But where there is a real question, where the accused person protests that he is innocent, I think he ought to be allowed to go to the constitutional tribunal to have the question of whether he is guilty or not determined by them. I urge this further argument. In this Bill it is now conceded that Clause 1, Sub-section (1, a), is merely a restatement of the existing law with regard to obscene libel.
Sir EVELYN CECIL: Not much more.
Sir FRANK MEYER: We are getting on.
Sir M. MACNAGHTEN: My right hon. Friend, at any rate, admits that it is not much more.
Sir E. CECIL: All along I have said that it was dotting the "i's" of the present law.
Sir M. MACNAGHTEN: Anyhow, it covers the Common Law misdemeanour of publishing an obscene libel. Under the law as it exists, any person charged with that offence has the right to trial by jury. If this Bill passes without the Amendment now proposed, the effect will be most serious. I urge upon the Under-Secretary of State for the Home Department that it is a most serious matter that a Bill should be allowed to pass which takes away the existing right of an accused person to trial by a jury on a criminal charge. It is a 379 serious matter to create new offences to be tried by magistrates or judges, without the intervention of a jury, but to take away an existing right to trial by jury is a very serious matter indeed, and I trust the Government will not give their sanction to such a course. I think my right hon. Friend who is promoting this Bill has, from time to time, in these proceedings, invoked the great authority of Lord Merrivale and said that we ought to do whatever Lord Merrivale recommended.
Sir E. CECIL: I did not go as far as that.
Sir M. MACNAGHTEN: At all events, the right hon. Gentleman quoted Lord Merrivale. In the evidence which he gave, Lord Merrivale said something with which I think every person must agree. He was asked by my right hon. Friend in Question 26 on page 4 of the report: "Would you allow the alternative of the trial by jury?" Lord Merrivale's answer was: "As a general rule, I think in cases affecting character, if a man claims a trial by jury, he is entitled to it." I submit that is the opinion of every sensible man—that, where character is affected, the person whose character is at issue is entitled to have a jury.
Major KINDERSLEY: May I ask my hon. and learned Friend to read the answer to Question 21 in Lord Merrivale's evidence.
Sir M. MACNAGHTEN: This is Question 21: "How would you propose to deal with that?—I regard the publication at the present time as an offence against the law; to publish matter of that kind is an act of indecency, and what I would like to do, if I were a free agent in such matters, would be to make police offences of this kind summarily punishable by the ordinary methods by which police offences are dealt with." His Lordship is assuming that the accused person is guilty, which is the very thing the accused person wants to be put in issue. "I would not dignify them. If a man is guilty of an act of indecency of the kinds which are provided against by the London Police Act or the Town Police Clauses Act, he gets very short shrift." 380 That was the actual offence to which I was referring, in which a person occupying a somewhat prominent position was accused of an act of indecency on police evidence, and convicted by the magistrate. The conviction was upheld by a majority of magistrates sitting at Quarter Sessions. He may have been guilty, but no one can doubt that it is extremely unsatisfactory that the case was not tried before a jury, who would have been bound to give a unanimous decision before they found him guilty. "You do not allow him to discuss the matter with a jury and to enter into all sorts of questions. He is charged with an act of indecency, and he is dealt with by magistrates, and, if he is not content with the result, he may appeal." His Lordship is obviously talking of the sort of offence with which the person I have mentioned was charged. This is entirely different. The offence here is of publishing indecent matter "the publication of which would be calculated to injure public morals." That is a very debatable question. Take the subject of birth control. I can conceive two absolutely impartial magistrates taking different views. One might think that what had been written was indecent and "calculated to injure public morals;" the other might think the person who published the words in question was performing a great public service. Where you get that difference of opinion a jury is the best tribunal you can possibly have for determining whether a man is guilty or not.
Sir ELLIS HUME-WILLIAMS: I should like to support the Amendment, although I confess I prefer the drafting of a later Amendment in the names of the hon. Members for Londonderry (Sir M. Macnaghten) and for Great Yarmouth (Sir F. Meyer), which without increasing the three months to four months provides that cases of this kind should be treated as indictable offences and the accused have the right to be tried by a jury. I want to be quite certain that offences under Paragraph (1, b) are to be tried by a body of laymen and not only by a magistrate, and for this reason. If you look at Paragraph (1, b) it is difficult, almost impossible, to know what is an offence and what is not. Let hon. Members put themselves in the position of a reporter under Paragraph (1, b) who is 381 sent into court to report a case. He is under the impression, if he has this Bill before him, that he is sent to report the proceedings. The Bill is "to regulate the publication of reports of judicial proceedings," and he has to observe the prohibitions stated in this Bill. He takes this Bill, and he finds that when he is dealing with divorce cases the first thing he may insert is "the names, addresses and description of the parties and witnesses." It would appear to most men that if he can report the names of the witnesses, he is also at liberty to report what they say. That would seem to follow. But if he does that he is entirely wrong, because, although he may give the names of the parties and witnesses, he may only add "a concise statement of the grounds on which the proceedings are brought and resisted." What is meant by that, as we are now told, is this, that he may merely state the grounds as they are set out in the petition and the answer.
Major KINDERSLEY: May I ask, Mr. Chairman, whether it is in order to discuss the whole Bill on this Amendment?
The CHAIRMAN: We have had a very full discussion on all the points which the hon. and learned Member is now raising.
Sir E. HUME-WILLIAMS: I am aware of that, but I must point out the difficulty the reporter is in, and consequently, the necessity that he should have the right of appeal to a jury to determine whether he has committed an offence or not. All he is allowed to do, although he may think he is entitled to report the proceedings, is to give a concise statement of the pleadings. There is not much difficulty with regard to Paragraph (1b iii)—that is a question of law—but under Paragraph (1, b, iv) the reporter is going to be put in the most awful difficulty when he comes to report the summing up of the Judge and the finding of the jury. We had a discussion as to whether the summing up of the Judge would include indecent matter. If indecent matter is given in evidence during the trial, it must. The jury are asked to infer that adultery has been committed on the ground that certain acts of familiarity have been proved. Perhaps half-a-dozen witnesses prove these acts of 382 familiarity, and half-a-dozen disprove them. In that case, the Judge must point out to the jury that they have to weigh up the evidence of the witnesses on both sides and he has, therefore, to detail the acts of familiarity. The reporter is to be allowed to report the summing up of the judge and all the details of the summing up, but he may not report a word any of the witnesses have uttered. Even then he has to wait until the case is over before he can publish his report. You are putting an impossible task on the reporter, which only a layman can judge. If he is to be charged with an offence, then I support the Amendment, because it will enable a jury to bring the same class of mind as the reporter's to bear on the question as to whether he has broken the law or not in his report. I think some protection of this kind is badly needed.
Mr. RHYS DAVIES: I am at a disadvantage in not having heard the whole of the discussion, but I understand we are dealing with the difference as between three months and four months. What on earth the last speech of the hon. and learned Member for Bassetlaw (Sir E. Hume-Williams) had to do with the Amendment I do not know. I think we should adhere to the three months. In the first place, the penalty is to be three months in respect of each offence. It is not three months covering the whole of the offences, and it is quite possible, if there are six offences, that a man would be subject to 18 months' imprisonment. This Bill was never brought forward in order to be vindictive. I do not think its promoters intended it to be.
Sir M. MACNAGHTEN: May I tell the hon. Member that the object of the Amendment is to secure to the accused person the right of trial by jury. If the punishment is limited to three months, he cannot claim the right to be tried by a jury. If it is made three months and one day, then, under Section 17 of the Summary Jurisdiction Act, he has the right to say that he wants to be tried by a jury. That is the object of this Amendment.
Mr. DAVIES: I am glad the hon. and learned Member has explained the position.
The CHAIRMAN: The hon. and learned Member made that point quite clear at the beginning.383
Mr. DAVIES: I am most anxious that the man who has committed an offence shall have an opportunity of being tried by a jury, but I do not want the penalty increased, and I should like to know whether it is not possible to secure that right without increasing the penalty.
Sir M. MACNAGHTEN: I put down an Amendment on the Paper which did, in fact, carry that out, but it was intimated to me that it was undesirable in the public interest to have some offences for which three months was the punishment, and the accused person having the right to go before a jury, and other offences in which they have not the right to go before a jury. It is more convenient, from the Home Office point of view, for the Amendment to be brought forward in this form. It was in deference to the views expressed in official circles that I am moving it in this form.
Mr. NAYLOR: In view of the difference of opinion between the legal members of the Committee, at our last meeting, may I ask whether the hon. and learned Member has the agreement of his legal colleagues on the definition he has given? We want to be sure of that before we increase the penalty.
Commander WILLIAMS: I agree that the hon. and learned Member has made his position absolutely clear, and that he is only inserting this change of numerals for the purpose of enabling a supposed offender to be tried by a jury. From a layman's point of view it is a pity, when you are making Acts of this sort, that you do not continually lay it down that trial by jury is the greatest right we possess, because the more often you assert that right the better for the ordinary citizen. I strongly object to increasing the penalty. When you consider the case as against this individual you do not want to lay down an unnecessarily long period. If you put three months or four months into an Act of Parliament it has the effect of drawing the mind of the person who is giving the sentence to the fact that it may be three months or four months, and, as a result, he is very likely to base the punishment on it. If you put in four months instead of three you are very likely to increase the punishment. For that reason, I very much regret that this particular Amendment has been 384 moved. I think it would have been better if we had put in three months and one day, simply to draw attention to the fact that they were entitled to trial by jury. During this Debate, we have had a number of various legal opinions, and a good deal of confusion as to what the law really is. I would like to say that I, as a very humble Member, who has taken up very little time in the Committee, do rejoice in the fact that we have got the Solicitor-General here to-day, because he will be able to make a clear and concise statement of what the law really is, and when he has done that, we shall then be able to get the exact position of the Home Office. From the speech we heard just now, it rather looks as if this particular thing had been balanced between the Law Office side and the Home Office side. I would like to get an explanation as to exactly where we are, and why people cannot have trial by jury.
Sir E. CECIL: At this stage, I think I had better, as on previous occasions, endeavour to make clear the reasons why the promoters of the Bill have assented to this Clause being drawn in the way it is and amended by the Select Committee in the way it was. The reason in especially clear in an answer given by the Director of Prosecutions, Sir Archibald Bodkin, in Question 180 of the Report of the Select Committee, as follows: "(Q.) … . The fact that you are obliged to get a verdict in any of these, what I will call 'objectionable' prosecutions, makes you hesitate about starting them at all? The effect of not getting your verdict would be more pernicious than not prosecuting? (A.) Yes, and there is always the risk to be faced of there being a person on the jury who may have peculiar views, and our law is that there must be 12, a unanimous verdict, and even one juryman dissenting from the other 11, more obstinate, will destroy the whole effect of the prosecution. There is that to be considered. I am very strongly in favour, if I may say so, of summary proceedings in even more matters than are at present dealt with summarily, because I have the strongest opinion that the decision of Justices and Courts all over the country are satisfactory, and their work is admirably performed. And it must not be forgotten that, since 1914, there is an appeal to Quarter Sessions against any conviction, or for any offence indictable, or summary conviction recorded by a Court of Summary Jurisdiction. So that any wrong which may have been done can be rectified. The tendency of the legislature, I think, is to give more and more juris- 385 diction to Justices' Courts under the safeguard of appeal, and I think, also, that you are likely to get more sound and wholesome views in connection with this particular subject from a Bench of Magistrates, or a stipendiary, or metropolitan magistrate, than you, perhaps, would before a jury composed of 12 persons, some one or more of whom may have extreme views on one side or the other." That is borne out, to a great extent, by Sir John Mellor, who also speaks as a legal expert in Question 507. It is given effect to in the paragraph of the Select Committee to which my hon. and learned Friend the Member for Londonderry (Sir M. Macnaghten) has referred. It runs as follows: "Procedure by indictment is cumbersome in this connection, as delays and difficulties arise in the prosecution on indictment of a limited company, into which most newspapers have formed themselves." That was one of the difficulties—I do not profess to speak as a lawyer—that in the case of the indictment of a company, there are much more cumbersome proceedings than otherwise.
Sir M. MACNAGHTEN: That difficulty, I think, the learned Solicitor-General will inform the Committee has been entirely removed by the Criminal Justice Act, which was passed last year. As far as that question of prosecuting companies is concerned, there is now no difficulty at all.
Sir E. CECIL: I am informed that the Act of 1925 removes the difficulties about companies, so that that no longer stands. I was not aware of it until a moment ago.
Sir M. MACNAGHTEN: The point is whether you trust the jury.
Sir E. CECIL: I would also like to point out that this Bill did go through the House of Lords, that a number of Law Lords spoke on it, and that all of them assented, apparently, to this Sub-section as it stands. Therefore, it does seem to me that, bearing also in mind that many of these matters will be small points—I mean to say that where this summary jurisdiction is involved, they will be matters which laymen can pretty easily decide—it does seem reasonable to leave the Clause in the form in which it stands at present. I have felt difficulty, all through the Committee stage, in quite appreciating the varying interpretations put upon some of these points by lawyers, 386 and in these matters, as in other matters, I think I must leave it, to a great extent, to lawyers to guide the Committee; but personally, I think, all things considered, I would prefer to let the Clause remain as it stands.
Sir ROBERT LYNN: I think I am the only editor of a newspaper on the Committee, and I would like to say a word or two, not because I have any objection to the Bill, because, as my right hon. Friend knows, I am in ardent sympathy with the principles of the Bill. But I do think, in this case, there ought to be a trial by jury. My right hon. Friend talked about the peculiar juries you find, but if he had had as much experience of magistrates as I had in my younger days, he would know that there are also peculiar magistrates—exceptionally peculiar. Personally, I prefer getting justice done by twelve jurors, rather than having a trial, perhaps, by one magistrate, and perhaps that magistrate a crank. I would appeal to my right hon. Friend that he ought to agree to this, because, apart altogether from the question of the newspaper editor being in gaol, which, I believe, is a pleasant enough place to be, there is the great question of the principle of trial by jury, which had to be fought for for a great many generations before, it was established, and I do think the Committee should hesitate before making the slightest move that would weaken that principle of trial by jury. Therefore, as one in sympathy with the general principles of the Bill, I do appeal to the promoters to agree to the Amendment.
The SOLICITOR - GENERAL (Sir Thomas Inskip): I have been asked by my hon. and gallant Friend the Member for Torquay (Commander Williams) whether I will make a clear statement. I do not quite know on what points he wants a clear statement, but I do not think there is any difference between the hon. and learned Member for Londonderry (Sir M. Macnaghten) and myself as to what the law is, and I think he and I could agree. I think the Amendment he has proposed is the right form of Amendment to secure the object he has at heart, and that the Amendment, of which he gave notice earlier, is not a suitable form to accomplish his purpose. The law at present, under the Summary Jurisdiction Act, is that if the penalty exceeds three months, the person 387 charged, before the trial begins before the magistrates, has a right to say he desires to be tried by a jury. That is the universal provision, and a perfectly well-known one. I think it is undesirable to introduce into a Bill of this sort a special provision as to a trial by jury such as the proviso in the name of the hon. and learned Member for Londonderry— "Provided that a person charged with an offence under this Act may, on appearing before the Court, claim to be tried by a jury, and thereupon the Court of summary jurisdiction shall deal with the case in all respects as if the accused were charged with an indictable offence and not with an offence punishable on summary conviction and the offence shall, as respects the person so charged, be deemed to be an indictable offence, and if the person so charged is committed for trial or bailed to appear for trial shall be prosecuted accordingly." It is very desirable to keep all these matters under the existing law, which is Section 17 of the Summary Jurisdiction Act. If once we begin to introduce particular ways of dealing with particular offences, the Statute Book with regard to criminal offences will get into a state of confusion. Inasmuch as the same object can be reached by the Amendment of my hon. and learned Friend by increasing three to four months, I think that is the Amendment upon which the Committee can, and should, come to a decision upon this question of trial by jury. I think the hon. and gallant Member for Torquay suggested that there would be some impropriety in putting in four months so as to give a trial by jury. It has been given over and over again in the House of Commons, in order to give a trial by jury in suitable cases. Whether in this case it is desirable to give a right to trial by jury by making the penalty exceed three months, I do not presume to attempt to guide the Committee, except to express my own opinion as a purely personal opinion. I think that one can exaggerate the importance of the sacred right of an Englishman to a trial by jury. The Summary Jurisdiction Acts, and the offences punishable by summary jurisdiction, have long ago created a large number of offences which can be tried summarily, although it is very difficult to distinguish some of them from other offences, in which there is a right, in certain circumstances, to a trial by jury. There is one class of offence, rather like 388 the offence with which we are dealing here, which is not triable by jury, and that is under the Indecent Advertisements' Act, 1889, where the publication, or, rather, the advertising of indecent and obscene matter is punishable by a penalty less than three months, and, therefore, there is no right to a person charged to elect to be tried by a jury. I do not know whether that has been found to work any hardship upon the inalienable right of an Englishman to be tried by jury, but, having regard to the fact that the House, with full knowledge of what this Bill proposes, passed this by an overwhelming majority, I think the provision of three months is, on the whole, one to which the Committee might adhere, especially when one knows that the Attorney-General's fiat, or, in Scotland, the Lord Advocate's fiat, is required before a prosecution can be initiated. There is not the least likelihood that either the Attorney-General or the Lord Advocate will give his consent to prosecutions of a harassing and vindictive character. The criticism which some people might make to this proposal is that it would be too difficult to initiate prosecution, as, for instance, under the Prevention of Corruption Act, where the fiat of the Attorney-General or the Lord Advocate is required, but, inasmuch as their consent is required before anyone can be pursued for punishment under this Bill, I venture to think, for the reasons which were given by Sir Archibald Bodkin and my right hon. Friend, the three months in the Bill when it passed the House on Second Reading, may very well be allowed to remain.
Sir F. MEYER: In spite of what the right hon. Gentleman has said, I want to make a very strong appeal to the promoters of the Bill and the Committee to accept this Amendment. We have had read to us some interesting evidence which was given by Sir Archibald Bodkin and others before the Select Committee. To me, some of the words used by Sir Archibald were very significant, when he said that because you may not be able to get a unanimous verdict from a jury, owing to one person having peculiar views, therefore you ought to go before a magistrate. That seems to me to be a condemnation of trial by jury as a whole. If you go as far as that, you might as well deprive people altogether of the right of trial by jury. I do think this is especially a case where people should have the choice 389 of being tried by jury. Assuming that the next Amendment in the name of the Home Secretary is going to be carried, people who are to be brought up as offenders under this Bill, are going to be mainly people of high-standing, such as editors and proprietors of newspapers. They are not going to offend against this Bill if they can avoid it; but there may be occasions when they have to decide whether something should be published which they conceive to be in the public interest, and which is on the border line of interpretation under this Bill. For instance, under Paragraph (i, b iv), there may be something in which they think it is very important to convey to the public. An editor may think: "This is something which should not be hidden from the public," and yet he is to decide whether that something in the summing-up of the Judge offends the next words in the Bill, namely: "Provided that nothing in this part of the Sub-section shall be held to permit the publication of anything contrary to the provisions of paragraph (1, a) of this Sub-section." It is very often a matter of opinion as to what is indecency or injury to public morals. All these questions of opinion, such as the word "concise" in paragraph (1, b ii), are matters for interpretation by men of common sense, and essentially matters for a jury to decide, and not for either a single magistrate or a bench of magistrates to deal with. If it were purely a matter of a reporter sending in something and the editor, through carelessness or haste, letting it slip through, it is obvious that the editor would apologise to the Court and not ask for a trial by jury, but would allow himself to be fined such an amount as the magistrate might consider right, but if there is a genuine matter of principle, an uncertainty as to what can be published under the Measure—and I am sure such cases will arise—it is essential that such a question ought to go before a jury. Even the protection, which, I admit, is a strong protection, that you cannot initiate a prosecution without the consent of the Attorney-General does not seem to me to be sufficient opportunity for an important point under this Measure to be thrashed out. Therefore, I most strongly plead with the promoters of the Bill to accept the Amendment. I, personally, do not like 390 the form in which it has had to be moved, and much prefer the form of the later Amendment, standing in the name of my hon. and learned Friend the Member for Londonderry (Sir M. Macnaghten) and myself, but in view of what the Solicitor-General has said, it is clear that, if we are to get the consent of the Government to this Amendment, we must move it in this form. There was one thing said by the hon. Member who was the Under-Secretary to the Home Office in the late Government on which I should like to ask a question. He pointed out that under this Bill there might be a series of sentences of three months each for different offences brought up at the same time. It might be a case of publication by a proprietor in various of his periodicals, and he might be sentenced to six times three months' imprisonment, the sentences not to run concurrently. I want to ask the Solicitor-General whether, in such a case, the man would be entitled to a trial by jury.
The SOLICITOR-GENERAL: No.
Sir F. MEYER: I think that is most convincing, that you can get 18 months' imprisonment under this Measure without the right of trial by jury. If the Bill goes down to the House in its present form, and it is strongly pointed out there what will be the effect of not allowing the option of trial by jury, it may very seriously endanger the passage of the Bill.
The SOLICITOR-GENERAL: That would suit you.
Sir F. MEYER: Yes, but I honestly believe that it might endanger the Bill in the House of Commons, which is swept Very easily by emotional gusts. It passed this Bill on Second Reading by an enormous majority, but if the danger of long terms of imprisonment without the right of trial by jury, but merely on the decision of a bench of magistrates, were pointed out, it might have a serious effect on the prospects of the Bill.
Sir HERBERT NIELD: I think it is a fair observation to make that those who admittedly want to destroy the Bill are those who are now bringing forward this Amendment.
Sir R. LYNN: No.
Sir H. NIELD: Those who spoke in opposition to the Bill on the Second Reading are the warmest advocates of 391 this Amendment, but the arguments they use are really, I will not say insincere from the personal point of view, but without the weight which they attribute to them. Let me deal with the point raised by the hon. Member for Great Yarmouth (Sir F. Meyer). In the sentences which are passed week by week throughout the country, where separate offences, either on indictment or on summary proceedings, are proved against a prisoner, it is the rarest thing in the world to make those sentences cumulative. There are circumstances connected with cases which may cause a quarter sessions chairman or a bench of magistrates—very seldom, I think, a bench of magistrates—to pass sentences which are not concurrent in respect of several offences, but my experience is that these sentences are generally made concurrent and that convictions on several counts are only for the purposes of record. I think a man is, generally speaking, safer in the hands of a magistrate than he would be, at the present day, in the hands of a jury. You see now that juries are mixed, and I have noticed myself that in cases where proceedings have been taken at quarter sessions for indecency, especially indecency in relation to children, the new element on the jury are generally very much against the prisoner, and if you could ascertain exactly the way in which the jury was swayed you would find the fair sex far more severe than the old-fashioned juror. I think it is a very undesirable thing to prolong these proceedings. It is true that under the Criminal Justice Act, which has just been passed, Magistrates are enabled to commit for Assizes or Quarter Sessions in adjoining counties, and everything is done to expedite the hearing, but with all those safeguards it will be some time, where a person desires to be tried by jury at a Quarter Sessions, before the case comes on, and the proceedings will be kept hanging over. I cannot see, except in the concluding words of paragraph (1, a) of this Clause, that there can be any real question of fact for a jury to try. As far as regards the reporting of the proceedings in a dissolution of marriage or other matrimonial cause, there can be no issue for a jury. It is a question of whether or not a person is guilty of having done the 392 specific thing mentioned there, and I disagree entirely with regard to the summing-up of a Judge. It seems to me that there is only that one passage in paragraph (1, a), namely, the words, "the publication of which would be calculated to injure public morals," which might be a question for a jury. To my mind, a man is just as safe, or rather safer, in the hands of a Stipendiary or a bench of Magistrates, or a Petty Sessional Chairman, because these last most often rule their bench, and for the most part they are men of considerable experience. I end, as I commenced, by inviting the Committee to scrutinise very narrowly the arguments put forward in favour of the Amendment by those Members of the Committee who are out, admittedly, to destroy the Bill.
Sir R. LYNN: I object entirely to that statement.
Sir H. NIELD: I have formed that conclusion from the attitude adopted towards the Bill on Second Reading and in the earlier stages of this Committee. I am sorry to offend my good friend from Northern Ireland, who happens to be in the precarious position of a newspaper editor. I think the better plan would be for him to take care that his pencil is very actively employed on the reports that are brought in, and I cannot conceive that there would be much difficulty in his case. I believe that matrimonial causes in Northern Ireland are few and far between.
Sir R. LYNN indicated assent.
Sir H. NIELD: I am glad to see that my hon. Friend assents, and I believe that the cases which do occur there are of a prosaic character. It is only those that engage the attention of my hon. and learned Friend the Member for Bassetlaw (Sir E. Hume-Williams) that really are in question here, and I hope the Committee will insist on maintaining the usefulness of the Clause by rejecting the Amendment.
Sir R. LYNN: As a matter of personal explanation, may I say that from the very beginning, as my right hon. Friend the Member for the Aston Division (Sir E. Cecil) will agree, I have given him every support, and I have been in absolute sympathy with him and want to get this blot wiped out. It does not affect 393 me, because we never publish indecent matter, and even indecencies in speeches sometimes made outside the House of Commons are always eliminated, so far as we are concerned. It does not, therefore, affect me personally. I am in absolute sympathy with the Bill and want it to be a success, but I think it is a very serious thing to take away the right of trial by jury.
Viscount SANDON: May I ask the Solicitor-General, in view of the quoted opinion of Sir Archibald Bodkin about it being possible that justice would not come from decisions by juries, whether there is any evidence or information as to a summing up by a Judge in a certain direction being gone against by a jury; whether that is done to any considerable extent?
The SOLICITOR-GENERAL: That is a difficult question, but sometimes the stronger the summing-up by the Judge, the more the jury go in the opposite direction.
Sir E. CECIL: In further answer to that question by the Noble Lord, may I say that I remember being present at the Dorset Sessions once, when the jury brought in a verdict of guilty, but added: "We give him the benefit of the doubt,"
Mr. R. DAVIES: I have now had the advantage of listening to the several arguments in favour of and against the Amendment, and I must confess that, in spite of the fact that I sometimes doubt the motives of some of those who are opposed to this Bill, I think the argument is with them on this occasion. It seems to me that, unless the Amendment is carried, it will not be in consonance with paragraph (1 a, iv) of the Bill, where it says that "the summing-up of the Judge and the finding of the jury (if any)." I cannot see any reason for putting in those words unless you extend this penalty of three months to four. I know that I am not versed in the law, but I want to say that those who are associated with me on the Committee will vote in favour of the extension of three months to four, on the ground that we want the newspaper people to know that when this Bill becomes law it is not intended to contain anything vindictive about it. We only want to be fair.394
Mr. WITHERS: As one who is very keen indeed on the passing of this Bill, I should like to say that while I am strongly in favour of the Bill I think the matter of trial by jury ought to be carefully considered. The point which has been weighing with me against trial by jury in these cases is one which has not yet been mentioned. It is, that if we have a jury in these cases there may be a temptation to counsel defending a prisoner to open up the whole of the original case which had been reported, and publicity might thereby be given to some of the details which it is the object of this Bill to suppress. But on careful consideration, and on looking into the question of how such a case would be conducted, I cannot see that that practice would be allowable, and therefore I do not think that objection which has been in my mind is a good objection. In order to get the Bill through we have to make it clear that it is not a vindictive one and, at the same time, we must not lessen its effectiveness. I do not, personally, feel very much difficulty either way about it but it is quite clear that a large number of people are very strongly of opinion that the right to trial by jury ought not to be excluded in a case of this kind. My feeling is that simply for the purpose of getting the Bill through the House of Commons this point will have to be conceded. I have spoken to several people about this matter, and it is in order to get the Bill through that I suggest that the concession ought to be made.
Commander WILLIAMS: I think the Committee generally will vote in favour of inserting the word "four" so as to enable the party concerned to have a trial by jury if he so desires. The point has not been made, however, that in doing so we may be unduly extending the length of the possible sentence. I respectfully suggest to the hon. and learned Gentleman the Mover of the Amendment, that he should withdraw it and enable me to move an Amendment to insert after the words "three months" the words "and one day." That would still allow the possibility of trial by jury—I understand that technically it would have that effect—and, at the same time, it would show that we do not wish to make the sentences longer.395
Sir ROBERT NEWMAN: I am enthusiastically in favour of this Bill and that is one of the reasons why I support the Amendment. I am afraid, when the Bill goes back to the Floor of the House, very strong exception may be taken to it, if this right of trial by jury is not conceded, and it is better to have the Bill with this Amendment than not to have it at all. With all due deference, I do not agree with the argument of the Solicitor-General. His argument, as I understood it, was that the fact that the sanction of the Attorney-General had to be obtained for a prosecution was, in itself, a safeguard. That seems to me one of the strongest arguments in favour of the Amendment. If the offence is so serious and so important that no proceedings can be taken without the consent of the Chief Law Officer of the Crown, then the offence should be regarded as sufficiently serious to justify the accused person in demanding trial by jury. In an ordinary case where anybody can lay an information and bring a case before the Court, it would be a different matter, but here the subject is so important that the Attorney-General's sanction has to be obtained, and that strengthens the case for the Amendment. There is another point. There are many magistrates no better qualified and no less qualified than I am, and it is quite conceivable that I might be on the bench with one other magistrate, who possessed no greater knowledge of the law than I do and had no greater experience in weighing evidence. We
|Division No. 4.]||AYES.|
|Birchall, Major J. Dearman||Hacking, Captain Douglas H.||Knox, Sir Alfred|
|Cecil, Rt. Hon. Sir Evelyn (Aston)||Huntingfield, Lord||Makins, Brigadier-General E.|
|Davies, Dr. Vernon||Inskip, Sir Thomas Walker H.||Nield, Rt. Hon. Sir Herbert|
|Fairfax, Captain J. G.||Kindersley, Major Guy M.|
|Cape, Thomas||Jones, Henry Haydn (Merioneth)||Peto, Basil E. (Devon, Barnstaple)|
|Crookshank, Cpt. H. (Lindsey, Gainsbro)||Lynn, Sir R. J.||Sandon, Lord|
|Davies, Rhys John (Westhoughton)||Macnaghten, Hon. Sir Malcolm||White, Lieut.-Col. Sir G. Dalrymple|
|Henderson, Capt. R. H. (Oxf'd Henley)||Meyer, Sir Frank||Williams, Com. C. (Devon, Torquay)|
|Hume-Williams, Sir W. Ellis||Naylor, T. E.||Williams, Herbert G. (Reading)|
|Iliffe, Sir Edward M.||Newman, Sir R. H. S. D. L. (Exeter)||Williams, Dr. J. H. (Llanelly)|
|Jacob, A. E.||Paling, W.||Withers, John James|
Question, "That the word 'four' be there inserted," put, and agreed to.
Captain HACKING: I beg to move, in Sub-section (2), at the end, to insert the words396
might have a complicated case of this character before us and we would have the power to sentence a man to 12 months' imprisonment or fine him £1,000 and he would have no appeal from our decision—
Major KINDERSLEY: Yes, to quarter sessions.
Sir R. NEWMAN: I was about to say he would have no appeal except to Quarter Sessions, where, possibly, the case might again be dealt with not by a majority of legally-trained minds but by a majority of magistrates with no more knowledge or experience than I possess. The conclusion I have arrived at is that when you are dealing with great subjects like the liberty of the Press and with cases which are so serious as to require the Attorney-General's sanction for a prosecution, public opinion demands that the person accused should have an opportunity of laying his case before a jury.
Sir E. CECIL: I have been very conscious all through this discussion that this is a matter on which there is quite reasonably a difference of opinion. I appeal now to the Committee to divide on it. I thoroughly appreciate the friendliness of the discussion, and I shall be perfectly ready to accept the decision of the Committee.
Question put, "That the word 'three' stand part of the Clause."
The Committee divided: Ayes, 11; Noes, 21.
"Provided that no person shall be liable to be convicted under this Act if he shows to the satisfaction of the Court before which he is charged that the act in respect of which the offence is charged was done by him in the ordinary course of his duties 397 under a contract of service and that he was a person employed in a subordinate capacity only."
It will be remembered that earlier in our proceedings, we decided to omit the word "circulate" from the first line of Sub-section (1). That was the omission of a possible safeguard to subordinates. This Amendment, coupled with the provision of Sub-section (3)—that no prosecution shall be commenced by any person without the sanction of the Attorney-General—gives a complete protection to those who are acting only in a subordinate capacity.
Sir E. HUME-WILLIAMS: Before dealing with this Amendment may I, with the permission of the Committee, make a personal reference to accusations which have been brought by the right hon. Gentleman the Member for Ealing (Sir H. Nield) and by the former Under-Secretary of State for Home Affairs (Mr. Rhys Davies), to the effect that those opposing the Bill have some sinister motive. Personally, I find those accusations a little hard for this reason. The Committee will remember that in the House of Commons I did my utmost to preserve full reports of all trials because I thought it was to the interest of the people involved that that should be done, and I was accused at once, by several well-known and leading newspapers, of making that proposal solely in order to preserve the advertisement that I myself derived from the reporting of these cases. Now, when I come to this Committee I move to leave out all reports, instantly my right hon. Friend says I have some selfish and sinister motive. If I move to keep them in, I am self-interested; if I move to leave them out, I am self-interested, and so it is difficult for me to attain to the standard of Parliamentary purity which my right hon. Friend and his associates find so easy of attainment. On the Amendment I wish to point out that it does not seem to give effect to its intention. The words are: "Provided that no person shall be liable …" that is under the whole Bill. "… to be convicted under this Act if he shows to the satisfaction of the Court … that the act was done by him in the ordinary course of his duties and that he was a person employed in a sub-ordinate capacity only." Does not that cover a reporter? [HON. MEMBERS: "Yes!"]398
Major KINDERSLEY: That is what it is intended to do.
Sir E. HUME-WILLIAMS: Is the reporter not to be liable to conviction under the Act if he shows that he was a person acting in a subordinate capacity?
Major KINDERSLEY: No.
Sir E. HUME-WILLIAMS: Is not every reporter in a subordinate capacity; and, therefore, is any reporter liable to be convicted under this Act?
Major KINDERSLEY: No.
Sir E. HUME-WILLIAMS: Is that really the meaning of the Bill?
Major KINDERSLEY: I gather so.
Sir E. HUME-WILLIAMS: I am delighted to hear it.
The SOLICITOR-GENERAL: May I interrupt? The reporter neither prints nor publishes the paper.
Sir E. HUME-WILLIAMS: It is quite true that the opening words of the Clause are "it shall not be lawful to print, circulate, or publish"—
The SOLICITOR - GENERAL: The word "circulate" is out.
Sir E. HUME-WILLIAMS: Then the reporter is not to be liable at all, but only the proprietor of the newspaper. That removes my objection.
Mr. R. DAVIES: I should like to get more clearness on the point at issue. I understand it is intended by this Amendment to cover the reporter absolutely, because it is understood that the reporter will only report that which the newspaper owner wants him to report. Consequently, the reporter himself cannot possibly be liable for publishing any of these cases.
Sir F. MEYER: I support the Amendment, but I think before the Report stage we ought to have an understanding as to exactly what is meant by the word "subordinate." It might be read to mean that everybody, except the proprietor and the chief editor, is in a sub-ordinate capacity. We ought to know whether such people as the news editor and the sub-editors are to come within the description "subordinate" or not. 399 I hope we shall get a better definition before the Report stage, because it is necessary to be quite certain on a point of this kind.
Sir E. ILIFFE: Is it clear that the editor is liable in any case, because an editor does not print or publish a paper? Would he be liable if this Amendment be accepted?
The SOLICITOR-GENERAL: I think an editor causes to be printed or published if he sends a typewritten manuscript up to the printer, and instructs him to print it.
Commander WILLIAMS: Does that mean that the editor only is liable?
Captain CROOKSHANK: Does it mean that anyone is liable at all?
Amendment agreed to.
Captain HACKING: I beg to move, in Sub-section (3), after the word "commenced," to insert the words "in England and Wales." This is purely a drafting Amendment.
Amendment agreed to.
Captain BOURNE: I beg to move, in Sub-section (3), at the end, to insert the words "and in Scotland without the sanction of the Lord Advocate." I am moving this simply to confer the same power on the Lord Advocate in regard to Scotland as the Attorney-General possesses with regard to England.
The SOLICITOR-GENERAL: In the absence of any Scottish law officer may I say a word on this Amendment. In Scotland no prosecution before the Sheriff's Court can take place without the official intervention of the Procurator-Fiscal, who is the Lord Advocate's official, and therefore without the insertion of these words the matter will come under official cognisance and no prosecution can be launched without such official sanction.
Mr. BASIL PETO: In view of the Amendment we have accepted, to insert four months instead of three, by which summary jurisdiction has gone, are the remarks of the Solicitor-General applicable?400
The SOLICITOR-GENERAL: It has to be initiated before a court of summary jurisdiction before the man can claim his right to appeal.
Amendment, by leave, withdrawn.
Captain HACKING: I beg to move, at the end of the Clause, to add a new Sub-section: "(5) In the application of this Section to Scotland for any reference to judicial proceedings for restitution of conjugal rights there shall be substituted a reference to an action of adherence or of adherence and aliment." This is consequential upon the acceptance of an earlier Amendment.
Commander WILLIAMS: Before this matter is dealt with, may I ask one question. We want to be absolutely clear, before we accept this Amendment, that the law is the same in Scotland as it is in England—namely, that you cannot have trial by jury if you have a period of less than three months as the penalty.
The SOLICITOR-GENERAL: I speak haltingly with regard to the law of Scotland, but I understand it is not the same as the law of England.
Sir E. HUME-WILLIAMS: I wonder whether it is not possible before this Bill goes before the House of Commons again to prevent what I look upon as the greatest indecency of all—namely, the publication by newspapers of statements and stories told by condemned persons. The temptation offered by newspapers to prisoners, sometimes to prisoners who are condemned to death, to write a personal account for publication is more grossly indecent than anything else. Is there no means by which such reports can be brought within the operation of this Bill, or, failing that, may we take this opportunity of asking the Home Office to strengthen their prison regulations to the utmost in order to stop communications of this kind.
Sir E. CECIL: May I join with the hon. and learned Member for Bassetlaw (Sir E. Hume-Williams) in expressing a hope that the Home Office will consider whether an Amendment can be brought in to deal with this matter.
Commander WILLIAMS: I formally support the suggestion.401
Captain HACKING: I understand that it might come under the Title of the Bill, but the Home Office will certainly give consideration to the point.
Amendment agreed to.
Clause, as amended, ordered to stand part of the Bill.402
Clause 2 [Short title and extent], ordered to stand part of the Bill.
Ordered, That the Bill, with Amendments, be reported to the House.
Committee rose Twenty - one Minutes after Twelve Noon.
THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:
Cobb, Sir Cyril (Chairman)
Cecil, Sir Evelyn
Davies, Mr. Rhys
Davies, Dr. Vernon
Henderson, Captain Robert
Hume-Williams, Sir Ellis
Iliffe, Sir Edward
Jones, Mr. Haydn
Knox, Sir Alfred
Lynn, Sir Robert
Macnaghten, Sir Malcolm
Meyer, Sir Frank
Newman, Sir Robert
Nield, Sir Herbert
Peto, Mr. Basil
White, Lieut.-Colonel Sir Dalrymple
Williams, Mr. Herbert
Williams, Mr. John