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Report No. 200

Starting Point:

The Phillmore Committee (1974, Cmnl 5794, para 113) could see no case for retaining the concept of 'imminence' since it defies definition and could apply arbitrarily depending on the chance of outcome of events. As the Committee said, the vagueness of 112'imminence' has 'an inhibiting effect on the freedom of the press which is out of all proportion to any value there may be in preserving it.'

Moving away from the concept of 'imminence' does not resolve the difficulty of deciding when contempt ought to begin to apply. There remains the problem of selecting a starting point that is both sufficiently certain and early enough to afford real protection to any ensuing trial.

The Phillmore Committee (paras 123, 216) recommended that for criminal proceedings, the starting point should be (a) in England and Wales, when the accused person is charged or a summons served and (b) in Scotland, when the person is publicly charged on petition or otherwise or at the first calling in court of a summary complaint. Had this recommendation been implemented, it is suggested that it would have tipped the balance too far in favour of freedom of speech. Quite simply, the suggested starting point would have been late to afford real and necessary protection to the accused."

The authors say that a subsequent Government Discussion Paper (1978, (Cmnd 7145, para 14) seemed to take a similar view. As it said:

"charges often follow shortly after a serious crime becomes known; and indeed, from the point of view of an accused person, it may be as important to have protection from prejudicial comment during the period immediately before he is charged, when media and public intent in the crime is strong, as it is after a charge has been formally laid".

The Government Discussion Paper concluded that on that footing, "there is ground for the view that the Phillmore recommendation goes too far in allowing prejudicial publication before a formal charge is made, so endangering the fair trial of accused persons". The authors Borrie and Lowe say (see p 254) that the UK Law was reformed with an earlier starting point than the one recommended by Phillmore. In the Schedule I, para 4, of the UK Act of 1981 so far as criminal proceedings are concerned, it is stated that the criminal proceedings become 'active' upon

"(a) arrest without warrant;

(b) the issue of summons to appear, or in Scotland, the grant of a warrant;

(c) the service of an indictment or other document specifying the charge;

(d) except in Scotland, oral charge."

Borrie & Lowe state (p 256) that para 4 of Sch. 1 "is a virtual enactment of the starting point in Scotland as laid down by Hall v. Associated Newspapers Ltd (1978 SLT 241) and in any event, closely corresponds to what the Common Law in England and elsewhere understand as 'pending' proceedings."

However, under Section 3 of the UK Act, a publisher can defend himself stating that at the time of publication, he had taken all reasonable care but he neither knew nor suspected that the relevant proceedings were active and (probably) that he published in good faith. Borrie and Lowe state (p 258) that Section 3 might not provide a complete answer but it goes a long way to meet the fears of the Phillimore Committee.

It is significant that in A.K. Gopalan v. Noordeen (1969(1) SCC 734 at page 741 the Supreme Court indeed referred to the 24 hour rule and observed, while stating the facts, as follows:

"Arrest means that the police was prima facie on the right track. The accused must have been produced before a Magistrate within 24 hours of the arrest in accordance with Art 21 (Art 22) of the Constitution, and Magistrate must have authorized further detention of the accused."

But from Hall, it is clear that coming under care of the Magistrate is sufficient and it is not necessary that Magistrate must have authorized arrest. The following observations of Borrie & Lowe (see p 258) are quite important in the context in India of balancing Article 19(1)(a) and Article 21. The authors say:

"The timing provisions under para 4 are not as generous to the news media as the Phillimore Committee recommendations, which was that the sub-judice period should begin only when the person was charged or a summons served. However, despite the difficulties adverted to above, it is submitted that the Act gets the timing about right. Paragraph 4 strikes a reasonable compromise between the Phillimore Committee's proposals, which would not have protected a trial from the real risk of prejudice that publicity prior to the charge can cause, and the undesirable uncertainty of the Common Law position.

Indeed, it was the extraordinary publicity which followed the arrest of Peter Sutcliffe in January, 1161981, which began even before he had been charged with the 'Yorkshire Ripper' murders, which doomed any attempt in the later stages of the Bill to ease the sub-judice provision and follow the Phillimore recommendation. Paragraph 4 should have had the advantage of creating a uniform and reasonably certain starting point applicable to England and Wales, Scotland and Northern Ireland. However, as we have seen, this statutory certainty has been undermined by the continuing operation of the Common Law, with its concept of 'imminent' for intentional contempt."

Trial by Media free speech and fair trial under Criminal Procedure Code, 1973 Back

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