Lord Apsley.

Sir Thomas Bennett.

Mr. Cassels.

Sir Evelyn Cecil.

Mr. Hardie.

2. Its broad object is to prevent indiscriminate publication in the Press of matters of an indecent and obscene character ?-I assumed that that was so upon reading the Bill.

3. Under the present law, is publication of indecent matter forbidden ?In my judgment it is both by common law and, certainly, by statute-Lord Campbell's Act.

4. Would you consider that the present law is effective?-No, I think to a great extent it is ineffective.

5. Therefore, quite broadly speaking, would you say there was some ground for the House considering a Bill of this kind?—I think there is very obvious ground. I think it is very desirable in the interests of morality that something should be done. I am not speaking particularly with regard to indecent matter published under the guise of reporting proceedings in divorce, but with regard to the wilful, unscrupulous publication of indecent matter for the purpose of gain. That occurs not only in publishing proceedings in divorce but in a variety of public proceedings where there is the necessity of investigating questions in which matters of the most delicate character arise and where the evidence that is given is of such a kind as to excite the imaginations of some people and to induce others to pander to a morbid taste.

6. So far as general considerations go, would you support the broad view of English law that the administration of justice, generally speaking, should be carried on with absolute publicity?-To my mind that is a foundation element in our administration of justice. I do not know anything else in this country in the administration of public affairs which seems to me more vital to the wellbeing of a country such as ours than that justice should be publicly administered. I may add that it is not only a principle of English law, but it is a tradition in our law. This country resents anything in the nature of adjudication in private upon the affairs of the citizen.

7. As at present advised would you support a proposal to prohibit the publication of anything concerning divorce cases, except the result?—No, I should not, by any means. I think that would be a dangerous proposal. I will tell you the kind of considerations that affect me, arising not only from general observation upon these questions, but from my own experience. Perhaps I had better deal with my experience upon the matter.

8. Perhaps I ought to mention at this point that what I have suggested to you is, I think, Lord Buckmaster's proposal in the recent House of Lords debate ?-I saw a proposal of that kind. It does not concern me as a Judge-my business is to administer justice to the best of my ability-but as a citizen it seriously concerns me. I was going to tell you of my own experience during the great pressure there was in the administration of divorce juris

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diction after the war.

That pressure, as you know, has happily almost entirely disappeared, because our people have not become demoralised as some people thought they had. During that time I came to the conclusion, by very close observation, when I was sitting sometiines for weeks together in the exercise of the divorce jurisdiction, that there was throughout the mass of people who were brought into the jurisdiction a sense of shame and of repugnance at the public consequences of the conduct into which they had been betrayed, which seemed to me a most wholesome state of things. Now if you treat the administration of the divorce law as though it were a private affair between parties, the persons who will be relieved will be the people who seem to me to deserve public condemnation. I can well conceive that people who have been guilty of the grave offence of adultery, for example, would desire nothing better than that no publicity should be given to the matter. Speaking of the effect of publicity, I have observed it times out of mind, in the communications of parties in divorce which come to the Judge and are never read in court, that the men who have gone wrong, and the women who have gone wrong, have had a very wholesome horror of the public opprobrium to which they had exposed themselves.

9. So that you think publicity is a real deterrent?-I think so, and I think, too, it is very necessary in the administration of justice.

10. Would you qualify that by saying that there can be such a thing as an excess of publicity?-I am sure there can. What purpose is there in relating to the general public and to all classes of the public the indecent details which sometimes come under consideration in a Court? They do not have any bearing with regard to the exemplary and deterrent considerations I was mentioning, but they are necessary of consideration for the purpose of arriving at conclusions of fact.

11. In foreign countries this portion of the law is administered in camera to a great extent ?-I am aware of that.

12. Do you think we can get any experience from that example?-If you were to convert England into a foreign country and have foreign standards of conduct and foreign modes of proceeding, they might suit

[Continued.

our people, but they are not the kind of thing we have grown up to; the experience of the past has not recommended them to our people.

13. To turn to another main consideration, there is no privilege in law for publishing indecent reports?—I am not aware that there is. Perhaps I ought to say in regard to that that indecency is a relative term. I sit sometimes to conduct most painful enquiries which, on the part of persons who were conducting them voluntarily and mischievously, would be most indecent enquiries, but I am not conscious of the existence of indecency when facts have to be stated in order to arrive at a conclusion for the purpose of administering justice. Indecency arises where there is wanton exposure of facts without any proper justification.

14. The legal prohibition against publication of indecent matter is not fully operative under present circumstances, I understand?-I would not only say it is not fully operative, but I would almost go so far as to say it is to a great extent inoperative. It is not apt for the purpose. It treats the publication of indecent matter as though it might be a branch of the liberty of the Press, instead of treating it as a police offence.

15. Under the present law the Director of Public Prosecutions has to take action, has he not ? I am not sure if my law is right, but is that done with the fiat of the AttorneyGeneral-I think not. The ordinary procedure in criminal cases is this: It is open to any subject of the Crown to invoke the criminal law. The Crown proceeds upon the information of the informant and, speaking generally, he brings the matter in question before a Court of Criminal Jurisdiction. There are some cases in which the Public Prosecutor must determine whether there shall be proceedings or not. In the majority of cases such as you have to consider here there is no private person who either has the incentive or would feel warranted in subjecting himself to the annoyance and expense of undertaking a prosecution, and the result is that prosecution is for the consideration of the Public Prosecutor. Now what happens with regard to the Public Prosecutor, in my experience, is that where there is grave cause for his

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interference some official or other person submits the fact to him and then he determines, usually subject to the direction of the Attorney-General, whether a prosecution shall or shall not take place. The Public Prosecutor usually acts as a citizen in the right which every citizen has. Sometimes he acts under an Act of Parliament.

16. The Public Prosecutor is coming here as a witness, so I do not want to pursue this very far, but I presume he would act largely on the chances of his getting a verdict from a jury?I expect he would. I practised, for I will not say how many years, at the Bar and had some knowledge of these matters.

17. The chances are very uncertain in a matter of this kind?-They are. If a prosecutor takes the view that a jury may regard the matter as slight, or that the jury for some reason or other may not see its way to convict, he will not proceed. But there is more than that. As the law stands at present, one result of prosecuting a man for publishing indecent matter is that he, and anybody who is like-minded, concentrates attention upon the same indecent matters as the subject of the prosecution. Then you see what was a casual occurrence, an isolated occurrence, or what may have been a matter which escaped the attention either of the person offending or of the public. at large, is brought into a blaze of publicity because you call attention to it. So you see a Public Prosecutor has to determine whether it is in the public interest that he shall take action which might have results of that kind.

18. I think that is an omission in the Bill as it at present stands, is it not? -I think possibly it may be, if you decide to proceed by specifying a particular matter and saying, "You shall not do this," whereas the law of

England says, "You shall not do anything of the kind."

19. Has the extent of the evil aimed at by the Bill come under your personal observation at all?—I have considered it. I have not the advantages now of coming into communication with persons who suffer the annoyance of these publications. A man in a judicial position is greatly occupied, and he is detached from that communication with the great mass of citizens which a Member of Parliament has. I do not know, but my impression is,

[Continued.

that it is possible to over-estimate the extent of the evil, that is, as a real evil affecting public morals.

20. One gentleman writes to me here suggesting that there has been some moderation perhaps about the publication of divorce cases, but that in nullity cases much harm is done to public morals. Would you say that was so?—I do not know, because I do not see the classes of people, but I will tell you how it might arise. In

a case of nullity the question of impotence arises, and very often a judge has to ascertain from a man or a woman particulars with regard to the failure of the effort to have sexual intercourse, which are entirely relevant to the question of impotence, but which would be, of course, disgusting and possibly very mischievous if they were circulated promiscuously

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. 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. 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.

22. But then that might produce differences of opinion on different benches of magistrates?-It is not the inevitable conviction that is the gain from having a means of summarily punishing offences of this kind. It is the fact that the engine of punishment is there, and that there is the risk of punishment; and it is something more than that it is the declaration of the public that it will not tolerate conduct of that kind.

23. So that your main remedy really would be to make all such offences punishable summarily, that is to say, by a bench of magistrates?-My own inclination tends that way. I do not see any substantial difficulty, if you

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prescribe what is the class of indecent publication which you are dealing with, in providing that an offence of indecency in such publication shall be dealt with summarily.

24. Would you give an appeal from it? Yes, I would give an appeal.

Mr. Cassels.

25. They have that already?—Yes, under the Summary Jurisdiction Acts, as Mr. Cassels says, there is the right of appeal, unless you exclude it. You see you are legislating specially, and it might be necessary you should consider that; I do not know.

Chairman.

26. Would you allow the alternative of trial by jury?-As a general rule, I think in cases affecting character, if a man claims a trial by jury he is entitled to it. If I may say SO you might bear in mind, if

you

were minded, to provide for trial by jury where it was demanded, that it is open to you, if you are going to alter the law in this respect, to deprive trial by jury in these cases of the element of mischief which arises from a widespread publication of the indecent matter sought to be punished.

27. You would safeguard any legitimate points of law, or any matters concerned expressly with the medical profession from being punishable, provided they are confined in some way to those professions?-At the present time anybody who has experience of medical publications or legal publications will know that topics of the kind which raise the questions raised here are treated with absolute frankness and, to my mind, with absolute decency in the proper place in medical and legal publications.

28. As long as they were not broadcasted simply to make nauseous reading which sells, it is right that they should be published for scientific purposes or for professional purposes?— It is necessary Some of the topics which, as I understand, have been made the occasion for widespread publication of indecent matter topics of remarkable physiological importance on which experts in physiology are widely disagreed. You cannot withdraw from the consideration of men of science and students matters of this kind. It does not seem to me that legislation which would do

are

[Continued.

that would be at all beneficial to the public. I do not see any difficulty in maintaining for the use of professional persons the right to make that kind of publication which now exists.

29. You have very wide experience, if I may respectfully say so, not only in the Courts, but, I think, to some extent in the newspaper world also ?— Yes, forty years ago I knew a great deal about the conduct of a newspaper.

My

30. I would rather like to know whether you think the method of this Bill, which you say you have considered, is the best, bearing in mind that it is drawn so far as possible to give specific instructions to news editors precisely what they are to blue-pencil out. Do you think that is the proper method to obtain our object-When I looked at the Bill it struck me that with regard to clause 1, sub-clause 1 (a), you were telling people what they might publish. view of a penal law is to tell people what they may not do. It seems to me that if you tell people what they may not do, then at their peril they do that; but if you tell them what they may do, then comes the question whether they have exceeded the liberty you give them, and you get a possible means of doubt as to whether the offence has been committed, if you are going to try to define it on both sides. I was struck with the terms of clause 1, sub-clause 1 (b).

31. That is the definition of indecency-That is a prohibition. It seems to me if you enacted with regard not only to indecent particulars which come to light in Divorce Courts, but indecent particulars which come to light in any public proceedings, a prohibition such as you have in clause 1, sub-clause 1 (b) and made the breach of the prohibition an offence summarily punishable, you would have got a Bill which would meet what I think is the public demand and need, but which would be very simple in enforcement.

32. That brings me rather to the question of the extension of the Bill. I think we are in order in making enquiries about that. The title of the Bill is "A Bill to regulate the publication of reports of certain judicial proceedings in such manner as to prevent injury to public morals." So that, as far as the title goes, its scope is somewhat beyond the actual suggestions at the bottom of