Can the Murdochs plead the Fifth?July 18, 2011: 12:19 PM ET
Parliament's questioning of News Corp. officers will test the limits of that body's powers.
by Roger Parloff, senior editor
FORTUNE -- Though News Corp. CEO Rupert Murdoch, deputy COO James Murdoch, and former News (NWS) executive Rebekah Brooks have all agreed to testify before a select committee of the House of Commons tomorrow about allegations of phone-hacking and police-bribery by the company's newspapers, there are some strings attached.
In a letter to the committee Thursday, the Murdochs advised the committee of their attorneys' position that answering questions would "carry the risk of prejudicing other judicial proceedings and in particular the ongoing police investigations and any subsequent prosecutions" -- a warning that the committee should avoid exploring certain areas and an implicit signal that, push come to shove, the witnesses might decline to answer certain questions. In statements, the Murdochs have condemned wrongdoing at their papers, apologized for it, and have pledged to "put things right"; they have not addressed precisely what they knew when.
Although Brooks was arrested yesterday -- and later released without formal charges being brought -- she will attend and answer questions at the committee's public hearing, according to a prepared statement issued by her lawyer, Stephen Parkinson. Nevertheless, even before her arrest she had advised the committee that her desire not to "prejudice" police investigations would "prevent [her] from discussing these matters in detail." (Parkinson's statement also asserts that Brooks "is not guilty of any criminal offence.")
Under Parliament's "sub judice rule," instituted in the 1960s, the body generally avoids questioning witnesses about matters that are the subject of active criminal cases, according to Dan Lavender, a solicitor in the litigation department at London's Macfarlanes law firm. While a mere arrest does not trigger the sub judice rule, it does make MPs wary of violating the integrity of later judicial proceedings. "I understand that Members of Parliament (MPs) are taking legal advice as to whether to continue to compel her attendance," Lavender says.
What, then, is the English law concerning a witness's right to refuse to answer questions posed by a select committee of the House of Commons? Does he have a right to remain silent, the way a witness before a U.S. Congressional committee can invoke the U.S. Constitution's Fifth Amendment privilege against coerced self-incrimination? And if a witness refuses to answer Parliament's questions for any reason, can any adverse inference be drawn against him or her in later civil proceedings -- like, say, a regulatory hearing before British licensing or competition authorities about whether that individual should control a major British satellite television company? (While the Murdochs have cancelled for now their plan to buy the 61% of British Sky Broadcasting they do not already own, they can renew their bid in six months.)
To answer these questions, Fortune contacted three experts: Lavender, of Macfarlanes; Charles Béar, a Queen's Counsel in London (a member of the senior rank of English barristers); and Josh Chafetz, an associate professor of law at Cornell Law School who is an expert on privilege issues.
Do witnesses have a right to remain silent in England?
No, not before a Select Committee of Parliament. While people being questioned by the police or in judicial proceedings in England do have some rights to remain silent (the contours of which are not always identical with those afforded by our Fifth Amendment), none of those privileges are available before Parliament. In fact, no evidentiary privileges -- not even the attorney-client privilege -- are supposed to apply there, according to Béar.
At the same time, any testimony a witness gives before Parliament is automatically protected by an absolute privilege against being introduced as evidence against the witness in any later civil or criminal proceeding.
So the Murdochs will have to answer every single question or face punishment for contempt?
In theory, yes. And in theory, Parliament can punish a witness who refuses to answer its questions with imprisonment -- possibly in a cell beneath Big Ben, according to this recent article in The Guardian.
Why only "in theory"?
Because the last time any non-Member of Parliament was actually imprisoned for contempt of Parliament was 1880.
"Basically, it never happens," says Béar. In 1999, he continues, a House of Commons committee recommended that Parliament abolish its power to imprison non-MPs and replace it with the power to fine them -- a sanction that the body might feel more comfortable exercising. But the recommendation was never acted upon, so Parliament's only power to enforce a contempt order -- other than by symbolic reprimand -- remains the one that, in modern times, it never resorts to. (The last major stand-off of this type, according to Lavender and Béar, involved, ironically, the sons of Murdoch's late rival publisher, Robert Maxwell, who ran the Mirror Group of newspapers. Ian and Kevin Maxwell refused to answer a select committee's questions in 1992 about alleged misappropriation of company pension funds, but they suffered no real punishment other than public humiliation.)
"There is a convention that Parliament respects the judiciary," says Béar. "MPs accept in theory that they shouldn't encroach unnecessarily on the workings of the judicial and criminal justice system." There is also recognition that law enforcement officials leading criminal investigations would prefer that politicians butt-out to the extent possible, so that matters can proceed logically and methodically, rather than being subject to tactically unwise decisions motivated by emotion, impulse, politics, or grandstanding.
Finally, there is some real danger that Parliament's questions could legally derail later cases that might be brought, even against defendants other than these witnesses.
"There is a risk," says Béar, "that somebody would be compelled to answer a question which they couldn't have been compelled to answer at a police inquiry or in a court of law" because of Parliament's power to override evidentiary privileges. That fact "might later be relied upon as a basis for having the criminal trial stopped," he continues, on the theory that the charges were "unfairly brought," or that they involved an "abuse of process." Even though Parliamentary testimony can't later be admitted into evidence, it can lead investigators to other evidence, which defense lawyers might later argue was tainted by the extrajudicial means used to unearth it.
A very rough analogy for U.S. readers might be what happened to the prosecution of Colonel Oliver North, who was forced, under a grant of immunity, to testify in Congressional hearings concerning the Iran/Contra affair in 1987. Later, North was convicted of criminal charges stemming from the affair, but his conviction was thrown out on appeal in 1990, in part because his trial might have been indirectly tainted by the forced testimony he gave before Congress, even though the testimony itself was never introduced against him.
What's the bottom line then? What should we expect Tuesday?
Nobody is apt to end up in shackles under Big Ben. Expect, rather, a "loose and unsatisfying discussion," Béar predicts, at which the witnesses will "take a cautious line on what information could undermine other investigations."
The committee, in turn, will probably raucously condemn the witnesses' vague and oblique responses but, in the end, acquiesce in them.