HC Deb 21 May 1874 vol 219 cc671-80

Bill considered in Committee.

(In the Committee.)

Clause 53 (Verdicts to be unanimous).


moved to insert the word "not" after the word "shall," and said he did so in order to raise the question whether juries should be required to give unanimous verdicts in all civil cases, and in case this Amendment should be carried he would subsequently move to add a proviso that— An unanimous verdict shall be required in all criminal cases, and in all civil cases the verdict of not less than nine shall he taken as the verdict of the whole, and in trials in a county court the verdict of not less than four shall he so likewise taken, provided that such verdict of a loss number than the whole shall not be taken until the jury shall have been three hours in deliberation. In ancient times it was not required that verdicts should be unanimous. As one of the public, he took issue with many of his hon. and learned Friends on the allegation that the system of requiring the whole twelve to agree had worked well. There were a great number of cases in which, in consequence of the twelve not agreeing, the parties had to incur the expense of a trial over again—in fact, in endeavouring to compel agreement, they were trying to do that in the jury-box which they could not do anywhere else. His proposal was that if a jury in a civil cause did not agree after three hours' deliberation, the verdict of nine should be taken as the verdict of the whole; but he was not prejudiced in favour of that particular number, and if the Committee thought that the verdict of ten should be required, he would accept that number. There was nothing new to English jurisprudence in thus permitting the opinion of a part to be taken as the verdict of the whole. In a coroner's jury 23 jurymen were summoned, and if twelve agreed, their verdict was the verdict of the jury. That was more like the kind of unanimity which was striven for by our ancestors. So again in grand juries unanimity was not required. Upon this matter, therefore, the law was not in accord with itself. He did not, however, propose to interfere with the present system in relation to criminal trials; but he thought there was no use in striving after a practical impossibility in civil causes.

Amendment proposed, in page 16, line 23, after the word "shall," to insert the word "not."—(Mr. Young.)


regretted that his proposal to limit the number of jurors with the consent of the parties was rejected by the Committee the other night, although his regret was mingled with pleasure at hearing such thoroughly Conservative views expressed by some of his hon. and learned Friends opposite, who wished to retain the number of 12 because it was good and ancient. For himself, he strongly objected to the proposed alteration. It was well known that the Judge had great influence over the jurors—sometimes too much; now the introduction of the verdict by a majority would nullify the influence of any firm and independent juror, who might, if unanimity continued the rule, induce his fellow-jurymen to give a careful consideration to the case. That principle, moreover, assured that the case should be conscientiously considered by every individual juryman. It must further be remembered that jurymen were not coerced into a verdict now as they were formerly—they were allowed refreshments, and ample time for deliberation. With regard to the proposal before the Committee, he did not see why unanimity should be right in criminal cases and not right in civil cases. If they introduced that distinction, there would be serious anomalies occasioned—in cases of slander, for example, where it was permissible to bring either an action or an indictment.


reminded hon. Members that in dispensing with unanimity they would be returning to the ancient system. It was not proposed to do away with the necessity for deliberation on the part of the jury. A verdict arrived at without unanimity would not be received from them till they had been for a certain number of hours in consultation—it was for the Committee to fix the number; the lowest number suggested was three, and the highest six. All that was required was to keep the jury in deliberation long enough to secure full consideration of the question in issue by every juryman. It often happened under the present system that jurymen gave in after a certain time without being convinced: in such cases it would be far better that the real feeling and the real opinion of the jury should be known, and in the event of any application for a new trial the fact should be stated, and might fairly be taken into consideration. There was a manifest distinction between civil and criminal cases, and it might be well to require unanimity in the latter by way of an exception in favour of life and liberty.


said, he could not concur in the Amendment of the hon. and learned Member for Frome (Mr. Lopes). He must remind them that the Committee had already decided, the other evening, in favour of the ancient, traditional, and constitutional number of 12 instead of any lesser num- ber to form the jury, and his opinion was entirely in accord with that decision. The question now was, whether unanimity should be required in the verdict of those 12 or not; and he was certainly in favour of unanimity. It had been said that in requiring unanimity on the part of the jury they were requiring an impossibility; but in point of fact the number of cases in which juries had to be discharged without a verdict was extremely small, amounting, in fact, to only 1½ per cent. He had great respect for the members of the Bench, but on a question of fact he would prefer to have the opinion of the jury rather than of the Judge, who often formed a very strong opinion on the case, and very often a wrong one: yet that opinion would certainly have great weight with a portion of the jury, who probably were the men best able to form an independent opinion. He thought that if they did not hold to unanimity, they would have a great increase in the number of motions for new trials.


said, he strongly objected both to the reduction of the number of the jury below 12 and to any change in the ancient practice of requiring unanimity. An old-established principle ought not to be disturbed without some cogent reason for the change, and no such reason had been shown for the alteration proposed by the Amendment. Further, he thought that to introduce the practice of taking the verdict of the majority would greatly tend to promote the practice of compromises among themselves. Under the present system the public placed confidence in the verdicts given, but he did not think that would be the case when it was known that the verdict was the verdict of a majority only.


differed entirely from the remarks of the last two speakers. He was, however, willing to admit that the burden of proof rested with those in favour of the change. For his part, he was prepared to contend that unanimity in a jury did not always result in a satisfactory verdict. It was not right that it should be in the power of one foolish man to overpower the collective good sense of 11 right-thinking jurors, and it was absurd to think that the finding of nine men out of 12 would not give satisfaction. He wished to ask the Committee whether, if such a thing as unanimity of the verdict of juries had not been found established, any one in the 19th century would have made such a proposition—would not every one have been perfectly satisfied to accept the verdict of the majority? There was no doubt of this—that in their origin jurymen were witnesses and nothing more. What was proposed was merely that nine out of the 12 should agree, but that the verdict of the nine should not be taken as the verdict of the jury until they had been five or six hours in de-liberation without having arrived at unanimity. Surely, that would secure a proper degree of consideration.


said, that in his opinion unanimity of verdict was required in the interests of the suitors. There had occurred an instance within his own experience in which one dissentient juror, after a deliberation of three days, had brought round the other 11 to his view, and in which the verdict then delivered was right. There were cases of frequent occurrence in which not property only, but character, was at stake. Then—as he had known in the course of his professional experience—the only chance, the only hope for a suitor, was in the unbiassed judgment of one or two jurors, who had not come from the locality in which the litigation had arisen. He was, on the whole, therefore, in favour of retaining the present system.


said, the arguments in favour of the Amendment were so strong that he could not refuse to give it his support. It was his opinion that under the present system, in civil trials, a great many verdicts were returned in which there was no real unanimity, and in which was a great straining of the conscience of jurors in order to avoid the inconvenience which would result from their being locked up for a long time. He knew of an instance in which, when the usher of the Court was asked how he had got the jury to agree to a verdict so quickly, the reply was that he had a very efficacious plan in such cases, which was to take a beefsteak and onions to the keyhole of the room in which they were and let the steam go through. They were then sure to come to an agreement in a few minutes. It was said that the Judges were all in favour of unanimity. But it seemed to be forgotten that there had been Judges who were of a different opinion. There was a Commission not long ago, of which, among other distinguished men, Baron Alderson, and one whose name he could never mention without reverence, Mr. Justice Patteson, were members, and they recommended that after a certain time, if three-fourths of the jury agreed, a verdict should be recorded. That he held to be the most reasonable course.


maintained the principle of unanimity both in civil and in criminal cases, and reminded his right hon. Friend who had last spoken that one of the alternatives recommended by the Commission to which he had referred was, that if after a certain time the jury did not agree they should be discharged.


said, his experience was that the public of this country were perfectly satisfied with the law as it stood, and that any alteration in the direction proposed would create in the public mind not only dissatisfaction but even distrust in the administration of justice.


expressed his belief that if the country were polled on this question, it would be found in favour of retaining unanimity.


said, that the subject was one of so much importance that the Committee would not grudge the time necessary for its due consideration. He thought that no good reason had been adduced even by so high an authority as the right hon. and learned Recorder of London for altering the law in regard to the unanimity of juries in civil cases. The arguments he had brought forward in favour of that change were speculative rather than practical. No practical evil had been shown to arise from the present system which would justify so grave a departure from it as was now proposed. Let the Committee consider what the effect of this proposal would be. Suppose that out of 12 jurymen who went to the retiring-room to consider their verdict there were nine weak men who said "ay" and three strong men who said "no." Under the present system the three strong men would in all probability be able to prevail by argument against the nine weak ones; but under the proposed new system the nine would simply look at their watches and hold out against time instead of against argument. It would thus become a question not of reason but of time. The learned Recorder himself shrank from interfering with the rule that required juries to be unanimous in criminal cases, because he wished their verdicts to be treated with respect. But if they were to insist-that a pickpocket could not be rightly convicted without the unanimous verdict of 12 men being given against him, why should a man's character or his property be taken away from him without the unanimous finding of a jury? How would the verdicts of a majority only be treated with respect in civil cases any more than in criminal cases? The Committee should be guided in that question by the consideration of what would be most beneficial for the administration of justice.

Question put, "That the word 'not' be there inserted."

The Committee divided:—Ayes 45; Noes 144: Majority 99.

Anderson, G. Hughes, W. B.
Assheton, R. Jones, J.
Baring, T. C. Knatchbull-Hugessen, rt. hon. E.
Cameron, C.
Carter, R. M. Leith, J. F.
Cobbold, J. P. Macgregor, D.
Cole, H. T. Mackintosh, C. F.
Coope, O. E. M'Arthur, A.
Cowan, J. Morgan, G. O.
Crawford, J. S. Perkins, Sir F.
Davies, D. Ramsay, J.
Dodds, J. Rathbone, W.
Evans, T. W. Ripley, H. W.
Ferguson, R. Robertson, H.
Forsyth, W. Sanderson, T. K.
Gardner, J. T. Agg- Sandford, G. M. W.
Gore, W. R. O. Smyth, B.
Gregory, G. B. Stevenson, J. C.
Grieve, J. J. Turnor, E.
Gurney, rt. hon. R. Wait, W. K.
Hankey, T. Yeaman, J.
Hervey, Lord F.
Holms, J. TELLERS.
Holms, W. Lloyd, M.
Hopwood, C. H. Young, A. W.
Agnew, R. V. Bousfield, Major
Allsopp, S. C. Bowyer, Sir G.
Baggallay, Sir R. Bristowe, S. B.
Ball, rt. hon. J. T. Bruen, H.
Barrington, Viscount Bulwer, J. R.
Barttelot, Colonel Butt, I.
Bates, E. Cave, rt. hon. S.
Beach, rt. hn. Sir M. H. Cawley, C. E.
Birley, H. Chadwick, D.
Boord, T. W. Charley, W. T.
Bourke, hon. R. Cholmeley, Sir H.
Bourne, Colonel Clarke, J. C.
Close, M. C. Lowther, J.
Conyngham, Lord F Lush, Dr.
Crichton, Viscount Mahon, Viscount
Cross, rt. hon. R. A. Maitland, J.
Cust, H. C. Majendie, L. A.
Dalkeith, Earl of Marten, A. G.
Davies, R. Martin, P. W.
Dick, F. Meldon, C. H.
Dillwyn, L. L. Mellor, T. W.
Dodson, rt. hon. J. G. Mills, Sir C. H.
Douglas, Sir G. Montgomerie, R.
Downing, M'C. Naghten, A. R.
Dunbar, J. Nevill, C. W.
Dyke, W. H. Neville-Grenville, R.
Earp, T. Nolan, Captain
Edmonstone, Admiral Sir W. Northcote, rt. hon. Sir S. H.
Edwards, H. Onslow, D.
Egerton, hon. A. F. O'Shaughnessy, R.
Egerton, hon. W. Pell, A.
Elliot, Admiral Peploe, Major
Eslington, Lord Percy, Earl
Estcourt, G. B. Plunket, hon. D. R.
Fawcett, H. Read, C. S.
Fielden, J. Russell, Lord A.
Fellowes, E. Salt, T.
Fitzwilliam, hon. C. W. W. Scott, M. D.
Selwin-Ibbetson, Sir H. J.
Floyer, J.
Folkestone, Viscount Shute, General
Galway, Viscount Sidebottom, T. H.
Garnier, J. C. Simon, Mr. Serjeant
Goldney, G. Simonds, W. B.
Gore, J. R. O. Smith, F. C.
Grantham, W. Smith, W. H.
Hamilton, Lord G. Somerset, Lord H. R. C.
Hamilton, hon. R. B. Spinks, Mr. Serjeant
Hardcastle, E. Stanford, V. F. Benett-
Hayter, A. D. Stanley, hon. F.
Heath, R. Starkey, L. R.
Henley, rt. hon. J. W. Storer, G.
Hill, A. S. Talbot, J. G.
Hodgson, W. N. Taylor, rt. hn. Colonel
Hogg, Sir J. M. Tennant, R.
Holford, J. P. G. Tollemache, W. F.
Holker, J. Tremayne, J.
Huddleston, J. W. Trevor, Lord A. E. Hill-
Isaac, S. Turner, C.
James, W. H. Vivian, A. P.
James, Sir H. Waddy, S. D.
Jenkins, D. J. Wallace, Sir R.
Jenkinson, Sir G. S. Walsh, hon. A.
Johnstone, Sir F. Watney, J.
Jolliffe, hon. Captain Whitelaw, A.
Kavanagh, A. MacM. Whitwell, J.
Kingscote, Colonel Williams, W.
Knowles, T. Wilmot, Sir J. E.
Laverton, A. Winn, R.
Lee, Major V. Wolff, Sir H. D.
Legard, Sir C. Wynn, C. W. W.
Lindsay, Lord
Lloyd, T. E. TELLERS.
Locke, J. Lopes, H. C.
Lopes, Sir M. Pemberton, E. L.

moved an Amendment that the verdict of "Not proven" be introduced. The verdict had worked well in Scotland. All the Judges of the Court of Session were highly in favour of it, and he had letters in support of it from the Lord Justice General and the Lord Justice Clerk—the latter a gentleman whose opinion would have great weight in that House.


rose to a point of Order. He submitted that as the Preamble set forth that the Bill was one "to consolidate and amend the laws relating to jurors and juries," the Amendment of the hon. and learned Member did not come within its scope.


said, he did not think the Amendment was foreign to a Bill for the amendment of the laws relating to juries.


proceeded to say that the Scotch verdict of "not guilty" gave a more complete acquittal than the corresponding English verdict, which meant no more than "not proven." His object was to raise the status of the "not guilty" verdict, so that it might mean in England as it now meant in Scotland—a clear acquittal. He was aware that in England an erroneous impression prevailed that after the verdict of "not proven" there could be a new trial, but that was not so, the only advantage of that verdict was to give the jury an alternative in cases of great doubt, where they felt they could not conscientiously give a clear acquittal.

Amendment moved, page 16, line 23, after "required" to insert— And in all criminal cases a jury may return a verdict of 'not proven,' in which event the prisoner shall at once be discharged."—(Mr. Anderson.)


appealed to the hon. and learned Member not to press the Amendment. It did not follow because a principle was applicable to Scotland, and worked well there, that it would be applicable and work well in England. The question was not whether the Scotch Judges, but whether the English Judges approved of the verdict.


objected to the verdict of "not proven."


said, as the Committee seemed so averse to the change, he would not put it to the trouble of a division. He hoped at some future time a Committee of this House would see the advantages of the verdict of "not proven."

Amendment negatived.

Clause agreed to.


then pointed out that the three previous clauses having been withdrawn and the Committee having decided that a jury should be unanimous, the clause under discussion was unnecessary. It had better therefore, be withdrawn, allowing the question of unanimity to depend on the Common Law.


concurred in the suggestion.

Clause negatived.

Clauses 54 to 61 agreed to.

Clause 62 (All jurors to be summoned by the Sheriff only).


proposed to add to the end of the clause— Provided always, that in every trial at a county court the jurors shall be summoned from the parishes within that county court division or district, and that in every borough in and for which a separate court of quarter sessions shall be holden, the jurors shall be summoned from the parishes within the said borough; and that in cases where the court of quarter sessions for any county, riding, or division is held at more than one place in and for such county, riding, or division, the jurors shall be summoned from such parishes as may reasonably be considered within the district in which the said court of quarter sessions is for the time being held, having due regard to a fair and impartial apportionment of the service among the whole number of jurors within that district.

After a short discussion,

Amendment agreed to.

Clause, as amended, agreed to.

Clauses 63 to 70 agreed to, with Amendments.

Clause 71 (Fines when to be levied).


moved, in line 31, after "fined," to insert— But in the City of London such fines shall be paid in the same manner as other fines levied in the said City are now payable.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 72 (Notice to jurors fined) agreed to.

Committee report Progress; to sit again upon Monday 1st June.