HL Deb 07 June 1984 vol 452 cc830-40

7.29 p.m.

Lord Renton

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee,—(Lord Renton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AYLESTONE in the Chair.]

Clause 1 [Disqualification for jury service of persons who have served or had imposed on them certain sentences]:

Lard Mishcon moved Amendment No. 1: Page 1, line 15, leave out from ("detention") to end of line 17.

The noble Lord said: Your Lordships will remember that this Bill has as a background the existing position where, if someone is sentenced to a term of imprisonment—and I am talking in broad terms—for five years or more, he is disqualified from jury service for life: and if he be sentenced to a period of imprisonment of between three months and five years, he is disqualified for a period of 10 years. Very sensibly, your Lordships may feel—and that was the general view on Second Reading—that has been regarded, on the one hand, as being too severe, and therefore there are amendments down with regard to life disqualification: and, on the other hand, it has been thought that categories of those who have offended against the criminal law should be included within the disqualification not at present included in our law.

The first respectful submission that I make to the Committee is this—and I am supported by the noble Lord, Lord Wigoder, and would have been very ably supported by the noble and learned Lord, Lord Elwyn-Jones: indeed, I would be in the position of supporting him. While some of the categories can be defended, there are two categories—and this amendment deals with one of them—where it is wrong to have any period of disqualification, save in the second one which I shall be dealing with in a moment and that should be merely for a certain period.

We are dealing now with the category of those who have against them community service orders. Whereas it may be said academically—and I assure the Committee that this is academic—that community service orders are made by our courts only as an alternative to a term of imprisonment (in other words, were the community service order not available as a penalty, there would be a term of imprisonment), that is not the practical situation. The only statistics that I have been able to get hold of—and it may very well be that the noble and learned Lord can give the Committee later or amended statistics—are the Home Office probation statistics for the year 1981. Those statistics show that 10 per cent. of community service orders were made against those who had not had any previous conviction whatsoever. Your Lordships will realise from that statement and that percentage that community service is really used as an alternative to a non-custodial sentence, because one cannot envisage that in regard to 10 per cent. of first offenders there would have been a custodial sentence.

Indeed, examples of community service orders being made include possession of cannabis. There is certainly one case of a pensioner who was guilty of shoplifting goods not worth more than £20. It seems wrong in those circumstances that there should be any disqualification from jury service made against somebody who merely has a community service order from a court.

I am going to take in advance, if I may—and I know he will forgive me for it, and it will save some time—an argument a [...]ced by the noble and learned Lord the Lord Chancellor at Second Reading. His arguments are always treated with the respect that they undoubtedly deserve. With that characteristic smile, which indeed was accompanied, as it normally is, by something quite vocal in regard to his merriment, he talked in terms of the people who would be relieved if they did not have to serve on juries. Therefore, to pretend that people would mind being subjected to disqualification from jury service was somewhat risible. I venture to suggest—and as he knows, I always do this with respect—that that ought not to be a line of argument which he should pursue with the Committee on this or on the next amendment.

One finds terribly often that we have rights, and we are not terribly proud of them, and nor do we value them, until somebody tries to take a right away from us. Then we realise that we are a special sort of citizen, and either we are aggrieved because it has been taken away unjustly, or we feel that the penalty that has been imposed in withdrawing that right, however much we may not have valued it at the time we had it, puts us into a wrong category. I think that that is the position in regard to community service orders. I beg to move.

Lord Wigoder

My Lords, I take considerable umbrage at the opening remarks of the noble Lord, Lord Mishcon, in which he indicated that I might be able to offer some support to his argument, whereas the noble and learned Lord, Lord Elwyn-Jones, had he been here, would have been able to offer very able support!

I support this amendment, although I say at once that I think that this amendment, unlike the other one we are about to come to, raises an issue which is really rather marginal. I imagine that your Lordships will agree without difficulty that in general terms people who have been sent to prison ought not to serve on juries, partly because they are unlikely to approach cases with a sufficient degree of fairness and partly because they are rather more susceptible, perhaps, to jury nobbling than their colleagues who have not been in previous troubles. I can of course see the force of the argument that, as new forms of punishment have developed which are regarded as alternatives to imprisonment, so the provisions for disqualification now in force should be amended to cover those new forms of penalty. Therefore, I would agree that we are right to include in this Bill—which I very much welcome in general terms—suspended sentences.

The real issue that arises on this amendment is whether community service orders are in practice imposed as an alternative to imprisonment. If that is the fact, I think that it is logical to include them in this Bill. I accept that it ought to be the practice. I accept—and it has been made fairly clear in various ways—that community service orders should only be imposed as an alternative to imprisonment. Those of us who have experience of the courts know that this is not what happens. In fact, community service orders have developed in such a way that they are regarded by the tribunal, certainly in most cases, as being a very much less severe form of penalty than the deprivation of liberty, particularly when, as often happens, a comparatively small number of hours of community service is ordered. It is therefore not regarded by the courts as being an alternative to imprisonment. It is not regarded as being a severe sentence. It is regarded as being a sort of half-way house between a custodial sentence and a fine or conditional or absolute discharge. It is not appropriate in those circumstances to treat it as an alternative to imprisonment and therefore to bring it into the Bill.

I believe that the consideration on this amendment is marginal. The general attitude that we should take towards the Bill is that, where there are marginal areas, people should not be included, should not be disqualified and should be left free to serve on juries. I therefore support the noble Lord, Lord Mishcon.

Lord Renton

This amendment would have the result that a person subject to a community service order would be required to serve on a jury if summoned to do so. The noble Lord, Lord Mishcon, with his usual kindness, ability and, I dare even say, charm, has tried to persuade your Lordships that this amendment should be accepted. I fear that I must put forward a contrary view to the Committee.

There are, I think, two main arguments against the amendment. I shall deal with those and then come back to what has been said by the two noble Lords. First, in answer to both noble Lords, I should point out that the advice that I have received from the Home Office is that there is no demand on the part of people who have been previously sentenced to community service orders or in any other way to be given the right to be summoned to sit on juries. Indeed, the evidence, so far as it is obtainable, is to the contrary.

There are two main arguments; first, there is the argument of principle. As conceded by both noble Lords, a community service order is an alternative to prison. It is not something that is awarded merely for trivial offences, but can be awarded for fairly serious offences. That being so, it would not be right or sensible, in my view, for people who have committed those offences to sit on juries while doing the tough work involved in a community service order, or, indeed, for a good many years thereafter. I say that because—and I hope that I may be allowed to repeat the argument that I put forward on Second Reading—they would not be likely to be impartial or objective in their decisions as jurors. Indeed, having them as jurors could bring our system of justice into disrepute just at a time when we should be strengthening it.

Then there is a practical argument which I concede applies only while the community service order is running. It is this. Jury service, especially for those living in rural places, nearly always means travelling some miles each way each day. A community service order will also often involve a good deal of travelling. I invite your Lordships to consider the hypothetical case of a young man who has been out of work but who has managed to find a job, perhaps involving night shift work. He has committed an offence before or after finding the job, and he comes before the court. The court might have sent him to prison, we may assume. But they want him to keep his job, and therefore they make a community service order requiring him to attend, where directed, for work for some hours a week for some weeks. Let us assume that he can just about fit that in with his night shift work, although perhaps with difficulty. Perhaps I may have the attention of the noble Lord, Lord Mishcon, because I am anxious to convince him.

Lord Mishcon

I immediately rise only so that the noble Lord shall never think me discourteous. My noble friend was merely asking me to expatiate on something that the noble Lord had said. I therefore did so in order to help him. I hope that the noble Lord, Lord Renton, will forgive me if he thought me discourteous.

Lord Renton

Most certainly. I am grateful for that apology. We assume that this young man in that position suddenly gets summoned to serve on a jury in a different town from that where he lives and a different place from that where he is doing the community service order. The mind boggles at the chaotic position in which he would find himself. It is no answer to say that he could apply to the court to be exempt from jury service. I say that he should not be placed in that difficult position.

So much for the practical difficulty, which I concede arises only during the currency of the CSO. But then there are the several problems to which the speeches we have heard draw attention. It would be right, I think, for me to quote some more recent Home Office statistics, although with a slightly different purpose from those that I mentioned earlier. Dated 6th October 1983, a Home Office statistical bulletin was headed "Reconvictions of those given community service orders". This is particularly relevant to the position that arises when the orders have been completed. We find that of those given community service orders in January and February 1979, about half were found to have committed an indictable offence within two years of starting the community service orders. It is estimated that a further 8 per cent. were reconvicted in the third year, making an overall reconviction rate within three years of nearly 60 per cent. Surely it does not need to be argued—it must be common sense—that we would be taking a risk with the system if we said that those who have been sentenced to community service orders should be free to serve on juries as soon as the community service orders are finished or, indeed, as the amendment would mean, during their currency.

I would ask your Lordships seriously to consider that it would be an upsetting alteration of the Bill if this amendment was accepted. The only other point that I have to mention is one in answer to the noble Lord, Lord Wigoder, who suggested that this really is something in the nature of a soft option for less serious offences—a halfway house between prison and perhaps probation. To those noble Lords who may hold that view, I would just give this reminder—that the prisons have been overcrowded for years, that Parliament introduced community service orders as a way of relieving that overcrowding, that magistrates have had it brought to their notice that the prisons are overcrowded, that there are alternative ways of dealing with offenders, and that therefore for the most part community service orders are not the soft option. Generally they are awarded for pretty serious offences. In those circumstances I hope that your Lordships will not accept the amendment.

Lord Campbell of Alloway

I oppose this amendment, and by leave of the Committee I should like to make a brief intervention in the debate. Surely it is of consequence to the due administration of justice that persons who have committed crimes of sufficient gravity not to warrant a fine or a discharge should not man juries within 10 years of the commission of such offences. The quality of disposal as between youth custody, as it is now, or borstal, as it was, detention, suspended sentence and the community service order, as such affords no guide to the gravity of the offence but is a guide to the mitigating circumstances such as age, employment considerations and so forth, even medical and psychological considerations—a point made by my noble friend Lord Renton.

It is the commission of the criminal offence, not the method of disposal, other than the fine or absolute or conditional discharge disposal, which is relevant to the spirit of disqualification—a point not only well made by my noble friend Lord Renton but wholly supported by the Home Office statistics which he quoted.

Lord Mishcon

I look round this Chamber and I find that in number we are little more than one jury. In those circumstances, it seems to me wrong, if I may be allowed to say so, that a matter of this importance should be decided at this moment. It is for that reason that I propose to ask the Committee's leave to withdraw the amendment and to raise this matter again, when I hope that it will be discussed rather more fully, although I appreciate the attention which the noble Lord, Lord Renton, paid to the arguments that were advanced.

Amendment, by leave, withdrawn.

7.54 p.m.

Lord Mishcon moved Amendment No. 2: Page 1, line 18, leave out from ("who") to ("has").

The noble Lord said: I need not advance to the Committee—and the Committee will be relieved to know it—all the preliminary remarks and submissions that I made when I was addressing it on the last amendment. We are dealing now with the question of probation and those put upon probation, which under the provisions of the Bill as it stands would mean a disqualification for a period of five years from the date of the probation order.

This amendment (I hope your Lordships will think sensibly) acknowledges the fact that it would be difficult to have serving upon a jury somebody who was actually under probation. In the way in which we have presented this amendment we deal with the point which was made by the noble Lord, Lord Renton, in regard to the person serving a community service order and the difficulties that might apply in that connection during the period of service. I submit that it would be quite wrong to prevent from serving on a jury for five years somebody who was subjected to a probation order.

Again, I cannot present the Committee with very up-to-date statistics, but I have done my best. The best that I have been able to procure are the Home Office probation statistics for 1981. From these I culled the fact that 40 per cent. of probation orders are made in regard to those between the ages of 17 and 20 and 50 per cent. in respect of those under the age of 29. So we are dealing with young people who may have committed one offence, for which it was thought suitable that they should be put on probation.

Those of us who are interested in the young, especially the young delinquent, know of a great many examples of where a youngster has been pulled up on commission of the first criminal offence that he has committed and has never come before the courts again. Again, I say that it would be so wrong to put—I almost said the category of second-class citizen upon a young person of that kind by making a disqualification subsequent to the probation period.

I venture to say—I am tempted to do so because of the noble and learned Lord's reaction to my last remark—that again it is not a question—the noble Lord. Lord Renton, mentioned this point in his own remarks of listening, if one likes, to somebody who laughingly regards jury service or even would wish normally to be exempt from it. I repeat to your Lordships with great respect that there is a great deal of difference, a great weight of difference, between somebody who has a right and values it little, it may be, until that person is put in the special category of not being entitled to exercise that right at all. I beg to move.

Lord Wigoder

I doubt if it is helpful to talk about the rights of people to serve on juries, because, frankly, 90 per cent. of the community would disclaim the opportunity if they had the chance of doing so. What it is I think is a duty, and this is relevant to this amendment for this reason. It is an arduous duty. It is time-consuming. Particularly with women jurors, it may impose a considerable strain on their family life, on the way they look after their children. Very often it gives rise to real financial hardship.

Therefore, recognising that it is an arduous duty, surely it is sensible to try to arrange it that members of the community have to serve on juries as infrequently as possible. That means that the pool of potential jurors must be as large as possible. One of my concerns about this amendment is that, on what seems to me to be a wholly arbitrary basis, one is removing many thousands of people from service in that potential pool of jurors.

Probation has absolutely nothing to do with the criteria we talked about on the preceding amendment. I have no doubt we are all agreed that where people have committed serious offences or where they have long criminal records there is a strong case to be made, one way or another, for excluding them from jury service. We do not need to go into that argument. But probation is not a way of judging whether or not a person comes into that category. Sometimes he does. We are all familiar with the old lag's chance—the man with a vast array of criminal convictions for very serious offences and with whom a merciful court takes a risk and puts him on probation. I can well see it being said that perhaps it is not sensible that that sort of person should serve on a jury.

Equally, very frequently people are put on probation for the most trivial of offences which no one in their right mind would say ought automatically to exclude them from jury service. The problem with this Bill is that by going by the sentence that is passed by the court it makes it a little difficult to see whether the offender necessarily comes within the category of people who ought to be excluded from jury service.

I suppose that many of the noble Lords who are present at the moment have experience in a legal capacity of the courts and of the making of probation orders. In general terms I ask your Lordships to consider why probation orders are made. They are made (are they not?) very, very frequently—one cannot say invariably, because one must not seek to generalise—totally irrespective of the offence that has been committed and its gravity or triviality. They are made totally irrespective of whether the defendant happens to be a person with a long criminal record or a person of good character. They are made because of a recommendation in a social inquiry report that, for one reason or another, help is required by a particular defendant. It may be his domestic circumstances; it may he his housing difficulties; it may be a whole series of problems such as those which detemine a court to make a probation order rather than to grant an absolute discharge, a conditional discharge, or a £5 fine. Nobody has suggested that people who have had those type of penalities imposed upon them should be disqualified from jury service.

Because the making of a probation order does not in itself reflect in any way upon the gravity of the offence or the criminal record of the offender, because it reflects upon something quite outside what we are considering in this Bill—and that is, an offender's domestic or social circumstances—it seems to me that it is totally inappropriate to include this form of disqualification in the Bill. It is quite unnecessary to narrow the pool—if that is the right expression—of potential jurors in this way.

I anticipate that the noble Lord, Lord Mishcon, may perhaps in due course take the same view about how to proceed with this amendment as he did on the previous one. However, I hope that before the Report stage the noble Lord, Lord Renton, and the noble and learned Lord the Lord Chancellor might reflect upon the position and might consider whether including the recipients of probation orders in this Bill is not going to bring the whole concept of the Bill into disrepute.

Lord Campbell of Alloway

I oppose the amendment. Surely a crime of sufficient minimal gravity which warrants probation, in all the circumstances should exclude people from jury service for five years? I take the point of the noble Lord, Lord Mishcon, that there is a problem with the young on the commission of the trivial offence. But probation is also awarded for some very, very serious offences. I take the point of the noble Lord, Lord Wigoder, that this is no way in which to judge. That is certainly true. Disposal affords no yardstick to gravity. This however is a reasonable—and indeed requisite—safeguard. For those reasons, I support the Bill in its present form.

Lord Renton

First, let me say that it has been extremely helpful to have had this amendment moved. The effect of Amendments Nos. 2 and 3 combined is that a person placed on probation could be summoned for jury service as soon as the probation order had been served or discharged, as sometimes happens. But I must say, having listened very carefully to the arguments that are being used by the noble Lord, Lord Mishcon, and the noble Lord, Lord Wigoder, that I cannot advise your Lordships to accept this change in the Bill.

I should point out that, not only has the Bill been through another place with some discussion, but a vast amount of thought and expertise has gone into its preparation. Those of us responsible for the Bill, including Home Office Ministers, feel—as with other items in the Bill—that those people who have been on probation cannot be relied upon to make good, unbiased jurors as soon as probation ends. There needs to be an interval of some years, as the Bill envisages, in order to see whether the offender has truly reformed. Alas! too often offenders have not truly reformed after being put on probation.

I do not have precise or recent figures for "the success rate", but I have clearly in my mind and I am advised that over a number of years there has been only a 40 per cent.-plus success rate. In other words, nearly 60 per cent. of those on probation have committed other offences within a few years.

1 should point out—especially in view of what has been said by both noble Lords—that we are in some difficulty because we have to legislate in fairly general terms in a matter of this kind although we are dealing with circumstances which vary greatly, as has been pointed out so vividly by the noble Lord, Lord Wigoder. The noble Lord pointed, on the one hand, to the case where the court gives an opportunity to an old lag with a string of convictions. On the other hand, as both noble Lords have pointed out, the court may think that the right thing to do with a young first offender is to place him on probation perhaps for a serious offence or perhaps for a less serious offence. In any event, he is placed on probation.

I should also point out that a very high proportion of probation orders are made for serious offences, and in this connection I can give some fairly recent and accurate statistics. For example, in 1982 17 per cent. of probation orders were for burglaries—breaking into people's homes at night—and 58 per cent. (in addition to the burglaries) were for theft or fraudulent handling. In all those cases guilt rested upon dishonest intent, and that is a bad quality in a juror.

Surely we in Parliament have a duty to strengthen the administration of justice. In my view this amendment would weaken it. But the Bill is surely not stringent on this point. We do not say that being placed on probation should disqualify anyone from jury service for 10 years but only for five years, of which two years will have been taken up with the serving of the probation order. So in effect this could be said to be a moderate provision and I think that it would cause some dismay among the informed public if we were to alter it.

So, while having listened with great concern and sympathetically to what has been said, I hope that the noble Lords who have put forward the amendment will feel that their case has been answered.

Lord Wigoder

I should like briefly to make two observations. First, I should have indicated that the old lag case where a person is put on probation will almost certainly be caught by the other provisions in the Bill or in the present Act and will therefore be disqualified in any event. Secondly, the noble Lord, Lord Renton, attempted to raise the question of the reconviction rate for people put on probation. I wonder whether that is really any more relevant to our considerations than the reconviction rate of people who are fined, which is no doubt just as high, but nobody is suggesting that a person who has been fined should be disqualified from jury service. Therefore, the reconviction rate in itself is not an argument (is it?) unless you are dealing with a person who it can be shown has committed a serious offence.

Lord Renton

Superficially, I think that the noble Lord has put his finger on quite an interesting point. It is true that the Bill does not deal with those who have been fined, although it might well have done so; but the logic of what the noble Lord is saying is that at the Report stage I should consider moving an amendment to include those who have been fined! I am sure that that is the last thing the noble Lord would wish me to do.

Lord Mishcon

May I put something right, and thank the noble Lord, Lord Wigoder, for his very able support on this amendment, as indeed on the last one? I am sure that the noble Lord, Lord Renton, would not wish to attach too much seriousness to the last observation that he made. It is a relevant consideration not to include those who have had fines administered by the court against them. He would be in a grave difficulty to fix the amount of the fine that would be caught.

But, really, it is totally unreasonable to talk in these terms about the average youngster who is put on probation, and to find that exempted from this disqualification provision are those who might have fines of £100,000 awarded against them. I think I am right in saying—and I shall be corrected if I am wrong—that if the sentence imposed was £100,000, or in the alternative in the event of non-payment imprisonment for six months or 12 months, that would not amount to a sentence if the fine were paid. That obviously registers for everybody a very serious offence indeed. In many cases of fraud, involving the very persons that the noble Lord, Lord Renton, said he would not want to have on a jury, substantial fines are imposed and not a custodial sentence.

I am going to follow the same procedure that I thought I ought to adopt in regard to the last amendment. Having regard, obviously, to the quantity of your Lordships' attendance but not the quality, I think it proper for me to ask leave to withdraw the amendment and to bring the matter up at a later stage of this Bill.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Clause 1 agreed to.

Remaining clause agreed to.

House resumed: Bill reported without amendment.

The Lord Chancellor

My Lords, I think it would be appropriate for the noble Lord, Lord Renton, to move that the Report be now received.

Lord Renton

My Lords, I beg to move that the Report be now received.

Moved, That the Report be now received,— (Lord Renton.)

Lord Mishcon

My Lords, I wonder whether the noble and learned Lord would permit me to raise a point of order and ask for his assistance. What he has just asked the noble Lord, Lord Renton, to move would not exclude the Report stage of this Bill, would it?

The Lord Chancellor

My Lords, I think it does, actually.

Lord Wigoder

My Lords, I am sure that the noble Lord, Lord Renton, did not intend to have that effect, because one would not take that step in the case of a Bill in which there was anything controversial still to be debated.

Lord Renton

My Lords, I certainly did not intend it to have that effect. I was bowing, as I always do, to the superior wisdom of the noble and learned Lord the Lord Chancellor.

The Lord Chancellor

My Lords, I was reading my brief. My brief says that in these circumstances Lord Renton may move that the Report be received, after which I should put that Question. Perhaps the noble Lord will not move.

Lord Renton

My Lords, I withdraw my Motion.

Motion, by leave, withdrawn.