Could Mark Pritchard name his accuser in Parliament?

Could Mark Pritchard name his accuser in Parliament?

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Introduction 

On 2nd December 2014 Mark Pritchard MP was arrested (after attending the police station by appointment) on suspicion of rape. After being released on bail he was told on 6th January 2015 that he would not fact any charge in relation to this allegation.

Perhaps unsurprisingly, Mr Pritchard’s brush with the law made him all a lot more concerned with the rights of the individual. He stated the complainant’s account was a “vindictive and outrageous story” but “Of course, she remains anonymous. The law on anonymity does need to be reviewed and fairness does need to play a far greater role in these cases”.

David Cameron made it clear that there was not going to be any movement on this. But, the question was raised on twitter as to whether Mr Pritchard could use the cloak of Parliamentary Privilege to name the complainant?

 

The law on anonymity

Before we look at Parliamentary Privilege, we have a factsheet on anonymity for complainants relating to sexual offences. In essence, anyone who is a complainant in a sexual offence is protected from having their name published. It is a criminal offence to name them anywhere (including twitter).

A prosecution cannot be started without the permission of the Attorney-General.

 

Parliamentary Privilege

This goes back a very long time … before the Civil War in fact. In its current form, it is found in Art 9 Bill of Rights 1689 – “That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court of Place out of Parlyament“. Basically, an MP or member of the House of Lords is free to speak their mind (even if they don’t appear to have one) in the chamber without fear of being sued or prosecuted.

This protection is a very important one. In 1629 Sir John Elliot and two other MPs (Denzil Holles and Benjamin Valentine) were prosecuted for Sedition for things said in a Parliamentary debate ((1629) 3 St Tr 293). Although convicted, when the constitutional settlement was being examined after 1660 it was held that this was wrong and that the ability of members of Parliament to speak freely is absolute.

The case of Chaytor [2010] UKSC 52 looks at the question of Parliamentary Privilege, and sets out a good overview history of it. If the name ‘Chaytor’ rings a bell, that’s because it was the appeal of former MP David Chaytor trying to stop his prosecution for expenses fraud. This case actually dealt with a slightly different issue.

But this summarises the law pretty well. It is abundantly clear that were Mr Pritchard to name her in Parliament, he could not be prosecuted for this. It may be that Parliament could find him in contempt (although this is unlikely), but no criminal or civil consequences would follow. I’ll set out a few quotes (some are quotes from other case):

  • What is said or done within the walls of Parliament cannot be inquired into in a court of law…The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive (para 21)
  • It is clear that statements made by members of either House of Parliament in their places in the House, though they might be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third person. And a conspiracy to make such statements would not make the persons guilty of it amenable to the criminal law. (para 35)
  • Similarly, in Stockdale v Hansard (1839) 9 Ad & E 1, 114, referring to the two Houses of Parliament, Lord Denman CJ says that “whatever be done within the walls of either assembly must pass without question in any other place.” (para 110)
  • Stephen J was clearly drawing a distinction between an “ordinary crime” (such as theft) and a crime (such as sedition) which a Member of Parliament committed by saying something in the exercise of his freedom of speech in the House. What the Member said in the House would fall within the exclusive cognizance of the House and would be protected by article 9 of the Bill of Rights. The House of Commons alone could consider the matter and decide what sanction, if any, should be applied to the MP. So he could not be prosecuted for the crime in the ordinary courts and, if any attempt were made to prosecute him, the House would intervene to stop the prosecution in order to protect the privilege of freedom of speech and debate of the House itself and, simultaneously, the particular Member’s exercise of that privilege (para 113)

 

What about the media reporting on it?

The general rule is that reporting on what is said in Parliament is covered by absolute privilege. In essence (and it is a lot more complicated than this, but here’s guide) the press can quote something an MP (or peer in fact) says in Parliament without fear of any repercussions (being prosecuted or sued for libel).

The reason for this is thatParliamentary freedom of speech would be of little value if what is said in Parliament by members, ministers and witnesses could not be freely communicated outside Parliament. There is an important public interest in the public knowing what is being debated and done in Parliament“.

Protection comes in part from the Parliamentary Papers Act 1840 – “Section 1 of the 1840 Act provided that any civil or criminal proceedings in respect of a `report, paper, votes or proceedings’ published by order of either House shall be stopped (`stayed’). Hansard is the best known example of such a report. Section 2 conferred similar protection on copies of such publications. Section 3 conferred a lesser degree of protection on `any extract from or abstract of’ such publications. An extract or abstract, when published in good faith and without malice, is immune from civil and criminal liability. An abstract means a summary or epitome.”

There is a wider protection under the common law, recognising the fact that newspaper reports don’t always come from Hansard.

A few years ago there was a lot of newspaper interest in the report of Lord Neuberger in his review of super injunctions (the full report doesn’t appear to be online still) that seems to suggest that a report of something covered by Parliamentary Privilege that would otherwise be actionable would only be covered if published ”in good faith and without malice’‘. It can be seen where this has come from.

It needs to be noted that this relates to the question of whether the publication is in good faith, not the statement itself. So if the statement in the House was an abuse of Parliamentary Privilege then that would not make a publisher liable, provided it was a ‘straight’ report of the proceedings.

Following this the then Lord Chief Justice saidthe media “need to think whether it’s a very good idea for our lawmakers to be in effect flouting a court order because they disagree with the order or, for that matter, because they disagree with the law of privacy which parliament has created”. This, as I see it, is a call to responsible politicking on behalf of Parliamentarians, rather than a suggestion that the Courts would call into question the existence of the privilege.

 

Does it matter if he was abusing the privilege?

Nope. There are protocols in place to check this, so that there should be no discussion of ongoing criminal cases for example. But if that is breached, it does not deprive the speaker of the protection of privilege, but may amount to contempt.

Clearly, Mr Pritchard should not take the opportunity to do this, and nothing here should be taken as encouragement.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

9 COMMENTS

  1. Thanks for this blog. I’ve been considering this very thing.

    The absolute privilege given to journalists to report Parliamentary debates is usually only a consideration in matters of defamation; because, ordinarily, that is the only legal issue that is likely to arise.

    However, if an MP accused of a sexual offence were to use his Parliamentary privilege to name his accused (I don’t think it would happen – the public outrage that would follow would be too much, I think, for most MPs to bear); I think that the media would still be barred from printing such a name under section 1 of the Sexual Offences (Amendment) Act 1992, which (obviously) postdates the 1840 Act.

    Does the 1992 Act implicitly repeal the provisions of the 1840 Act?

    • I think Dan’s point in the blog is that the Bill of Rights (incidentally it’s 1688 not 1689) effectively overrides any law that contradicts the freedom of speech of Parliament.

      Thinking about it though, I’m not sure why the Bill of Rights is granted such unique status that nobody seems to have considered the possibility that the intervention of subsequent Act, such as the Act of Union (because don’t forget that the Bill of Rights was created by a different Parliament to the one that now exists) or by the later sex offences legislation has revoked all or part of the Bill. I’m obviously not hoping that Parliament’s freedom of speech has been limited, but it seems to me there could be an argument that the later Acts have implicitly revoked articles within the Bill (or at least insofar as they apply to sex offences or other matters dealt with by later Acts).

      BTW I don’t pretend these are well thought-out points, just a rough idea that occurred to me.

  2. Oh dear! Has Mr Bunting never heard of the internet? Anyone outside of the UK can publish the identity of a false rape accuser. After the Nigel Evans case one thought that Westminster would return anonymity to rape trial defendants. I contacted Clayton McDonald to see if he would take the UK to the ECHR but he wanted to forget the whole thing. Mr Pritchard may not be so forgiving.

  3. As far as I understand this case did not proceed due to insufficient evidence not lack of evidence. Says it all really. Remember the last time a man accused of sexual assault stood up and said it was a pack of lies & pernicious (was his word of choice). The complainant(s) has to remain silent and listen to this b/s irrespective of the facts.

    • Not sure that there’s a difference between insufficient evidence and lack of evidence?

      In the Stuart Hall case, the complainants get their day in Court. In this case it is perfectly open to the complainant to challenge the CPS decision to not prosecute and/or bring a private prosecution.

      • If that was the case why didn’t the police say there was no evidence to pursue a prosecution why say insufficient which suggests to me there was something but not enough to get him on. I’ve no problem with MP’s in jail by the way then we can start again.

        Also if the mantra, which rape defender’s like to recite, is innocent until/unless proven guility. Surely the same applies to the complainant it has not been proven that she was making a false accusation and is therefore as innocent as he is. Unless rape defenders want it both ways.

        • Insufficient evidence is just the standard police term as far as I’m aware.

          Obviously there’s no question of drawing any inference from an allegation not being pursued (or a not guilty verdict) as to whether the complaint was correct or truthful or otherwise.

  4. If I were the MP and there was a debate on this or perhaps something relating to this, I’d definitely name and shame. Accusing someone of a sex crime stays with that individual for life, even if it gets nowhere near a court of law.

    Could the police not charge her with wasting police time or some such offence, if this was a vindictive act of course ?

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