My Lords, the issues raised by these amendments are extremely difficult. First, in view of all that has been said, it is difficult to distinguish, from this aspect, between sexual offences and other offences. There is much to be said for the view that if pre-charge publicity is to be outlawed, it should be so for all offences.
My second point relates to the safeguard, embodied in the amendment tabled by my noble friend Lord Marlesford and the noble Lord, Lord Campbell-Savours, of application to a magistrates’ court for an order. I think I am right in saying that in respect of both Lord Bramall and Sir Cliff Richard there must have been a warrant to search their homes. A warrant of that kind must have been based on some sort of evidence that was accepted by, I assume, a magistrate. There is, therefore, a question about whether it is a sufficient safeguard for a magistrate to give the order. As the noble Lord, Lord Pannick, has said, if a judge has said that there is enough to go forward, there is a slight difficulty in the clear way to a trial because a judge has already come to some point of view. However, that point of view is not that the accused is guilty; it is that there is sufficient difficulty in the evidence that in that judge’s judgment it would be right, in the interest of justice to all parties, for publicity to be allowed. There is a lot to be said for the view that publicity, up to the moment of charge, should not generally be allowed for sexual offences or others.
I have not found it easy to come to a conclusion about this and I have thought about it a fair amount. I have come to the conclusion that Amendment 182 is better but I would like to see a possible modification, in the light of what I have said, of the responsibility for allowing the matter. As I said, I think there were magistrates’ warrants for search in the two cases I mentioned: they turned out not to be particularly satisfactory.