HC Deb 21 June 1918 vol 107 cc674-84

Order for Second Reading read.


I beg to move, "That the Bill be now read a second time."

In moving the Second Reading of this Bill, which has already been considered in another place, there is no need for many words. The scope and purpose of the Bill are accurately and completely set out in the title which states that the Bill is one to limit the right to a jury in certain civil cases, to raise the age for jury service, to amend the law with respect to the preparation and publication of jury lists, and to enable coroners' inquests in certain cases to be held without a jury. This measure is essentially a war measure. As everybody is aware the staffs of business houses have been depleted by the demands which have been made upon them, and the object of this Bill is to remove a great hardship on men of business who are called away from their duties, as many think needlessly, in order to sit or to await the opportunity of sitting as jurors. The time during which the Bill is to be in force is limited to the duration of the War, and some six months afterwards. As hon. Members are aware, there were before the War suggestions for an alteration in the jury system. These suggestions, unlike the provisions in this Bill, were for permanent alterations, and they were recommendations connected with the name of that great lawyer and experienced judge, Lord Mersey. Hon. Members who are acquainted with what was done at that time will remember that the purpose was not for a time, but permanently, to deal with the right to trial by jury in certain cases. There were three classes of cases in which, it was then suggested, trial by jury should still be the normal procedure. These were first, the eases in which both parties were agreed in asking for a jury; secondly, the case in which the judge was of opinion that the assistance of a jury was called for; and, thirdly, cases which I may shortly describe as involving issues relating to personal character.

The object of the first part of this Bill is, for the limited period I have mentioned, to go some way, at any rate I think, towards fulfilling those suggestions. The first Clause of the Bill provides that for this period the normal mode of trial shall be trial without jury. That provision is subject to four limitations. It is not, in the first place, to interfere with power to order a trial by two or more judges, or by a judge sitting with assessors, or by an official or special referee. Secondly—the House may think this is the most important limitation—it is not to take away the absolute right of a party to trial by jury in any case in which there is an allegation of fraud, or in any case in which there is a claim in respect of libel, slander, malicious prosecution, false imprisonment, or one or two other causes of action. In other words, wherever personal character is involved, it will be the absolute right of either plaintiff or defendant, as now, to ask for, and obtain, trial by jury. The third limitation is that in any case in which it appears to the Court or a judge that the action or any question in the action is more fit to be tried with a jury, an order may be made to that effect. Finally, there is an express exception in cases where, under the Matrimonial Causes Act, 1857, adultery is alleged. The person against whom it is alleged is to be entitled, as of right, to a jury; and the right of an heir-at-law, cited to appear in or made a party to a probate action, to a jury is allowed if he makes application for it. In other words, although the normal mode of trial during this limited period is, henceforth, to be trial without jury, there is discretion still in most cases to permit a jury, and in cases where personal character is at issue there is an absolute right to a jury.

The second Clause of the Bill is supplementary to that. It dispenses with juries for the purposes of assessing damages. Here, also, there is retained the right to a jury in cases where personal character is involved. Clauses 3 and 4 apply these provisions to County Courts and other inferior Courts of civil jurisdiction. Clause 5 raises the age up to which men can serve on juries from sixty to sixty-five.




For two reasons. In the first place, because the number of persons who can be called to serve on juries is limited by the circumstances which we all know; and, in the second place, experience has shown that men above the age of sixty are perfectly capable of adjudicating upon matters of fact. Clause 6 gives power by Order in Council to modify the existing law with reference to the preparation and publication of jury lists. At present the jury list has to be published once a year. It has to be printed in alphabetical order, and it has to be published by being fixed upon the door of every church and chapel. All that involves unnecessary labour and expense. It is proposed to make a new jury list by adding to or altering the existing jury lists, and in place of the mode of publication which has ruled hitherto it is proposed to give a suitable notice, by advertisement or otherwise, that the jury lists have been prepared and may be consulted at certain convenient places. The object of this Clause is to avoid unnecessary expense. Finally, Clause 7 gives power to hold coroner's inquests in certain cases without a jury. At the present time there is a statutory obligation upon a coroner to summon a jury where death has taken place within his jurisdiction if the death has been due to violence although the cause may be obvious, and there is no ground for controversy; or in a case where the cause of death is unknown and the death has taken place suddenly. Under the Act in the latter case the coroner has a discretion. What is proposed is that the coroner, subject to certain exceptions, may hold inquiries without a jury. The exceptions are twofold. The new provision does not apply in cases where death has occurred in prison or any other place in which the law requires an inquest to be held. Secondly, if it appears for any reason to the coroner that there is occasion to summon a jury he may do so, and in certain cases he must summon a jury, namely, in cases in which there is any reason to suspect that the deceased came by his death by murder or manslaughter. The rest of the Clause makes provision as to procedure. The Bill is not to extend to Scotland or to Ireland.


Why not?


Because the existing law relating to those countries is different from our own. The Bill is modest and simple in its provisions. It is obviously required, and I hope the House may give it a Second Reading without consuming much time upon it.


I have great pleasure in supporting this Bill, and I only regret that it is confined to six months after the War. I have had a long experience in these matters, and I have come to the conclusion that trial by jury is to a very large extent more or less a farce. The jury decide the issues in a great many cases on almost any grounds except the evidence to which they have listened. I take it that that experience applies all over the world where a jury system exists. I know that the jury system is considered to be one of the foundations of our freedom, but the reason for that belief is that in the old days the judges were really the representatives of the governing power and fair play could not then be had from the Courts. That state of things no longer exists, and the judges are chosen now for their experience at the bar and their ability, and I think it is admitted all over the world that the United Kingdom has a very high class of judges. That being so, there is no longer any danger of the rights of individuals being interfered with by the Government of to-day.

Cases are sometimes tried by a jury which go over many days and sometimes two or three months. If these cases were tried before a judge the evidence would foe taken in shorthand and the judge would have time to review it. At the present time the jury, after hearing this mass of testimony, are called upon to give a verdict in a few hours without a chance of refreshing their memory, and they have to depend upon the judge's charge and the addresses of counsel, and they are utterly incapable—I am making no reflection upon jurymen—they are men brought up in every walk of life. Law is a business in itself which requires long apprenticeship and great knowledge, and these jurymen go into the Court without the slightest experience. Possibly there may be exceptions among jurymen, but as a rule what I have stated applies. In appeal cases it is almost impossible for the Court above to know whether the jury have considered the evidence or not. I think myself it would be a great improvement if this Bill were made permanent, because no one could get a jury unless there were some special reason for it.

The right hon. Gentleman referred to discussions which have gone on for a long time on certain matters, and he referred to one of the cases in which it was thought by Lord Mersey that where both parties desired a jury it should be granted, and it does seem to me that that is reasonable.

It seems to me, where both parties are of the opinion that the case is of a character that a jury would be better able to deal with the issues than a judge, that it is a very proper provision to have, but I object very much to the first provision by which a jury can be obtained upon application to a judge. It need not necessarily be the judge who tries the case, because the application would be made to the judge in chambers. A judge without any particular knowledge of the case, except that which he gains from hearing counsel before him, is to be in a position to decide whether it is to be tried by a judge or a jury. If there is one thing to be aimed at with regard to law matters, it is certainty. The law ought to be in such a condition that if you go to a barrister or a solicitor to obtain advice he can say absolutely what is the law. It might not always be possible, but where it is possible that ought to be so. These matters of discretion are very dangerous. No barrister can say before hand what a judge is going to do. In the first place, he does not know who the judge will be, and, even if he did, he would not know what he was going to do. That makes for great uncertainty.

It is well known that lawyers and judges are divided in opinion upon this question. Some judges think that the jury system is a very fine system, and that it is most desirous that questions in which there is a conflict of evidence should be tried by a jury. Other judges take exactly the opposite view, that juries in the very large majority if not in all cases are quite unfit to properly decide the case, and it is to a matter of chance whether you go with this application before a judge taking the one view, or before a judge taking the other view. That is detrimental to the public interest. It is impossible to tell what will happen. The other classes of cases in which a jury still remains a matter of right are those of a personal character. I would confine even those cases to the case of libel, which is more or less of a criminal nature even where it is a civil suit. Generally speaking, a libel may be approached either from the civil or the criminal side, and I believe there is a very general consensus of opinion, so far as libel is concerned, that there should be an absolute right to trial by jury. But these other actions referred to in the Bill, fraud, breach of promise to marry, malicious prosecution, and so on, are to a large extent the very kind of cases that a jury should not try. We are afflicted in this country, as in other countries, with what is called trial by newspaper. The public discuss cases before they come on for trial, and it is almost impossible for any man who reads the newspapers to go into the jury box without having more or less of an idea, though perhaps a very false one, of what are the issues.

In the United States it sometimes takes three and four days to get a jury, because they have a very much more extended right, or at any rate they pursue the right very much further than we do in this country, of objecting to a juror. A judge is in an entirely different position, especially the class of judges that we have. They are not going to be influenced if they happen to see something about the case in a newspaper. It has no effect upon them, because they are trained, and it is their duty to give their decision on the evidence and the evidence alone. Prejudice even reaches judges sometimes unwittingly, but there is no question that with jurors prejudice must creep in very much indeed. I would, therefore, be very glad to see this Bill continue in force after the War. We have had a good deal of legislation that has been forced upon us by the War. Much of it is very good quite apart from the War, and I hope much of it, especially with regard to the taking over of public utilities and that kind of thing, will never be changed even when the War ends. This is legislation of that kind. It is no advantage to the public to be asked to sit upon a jury, perhaps for weeks. The pay is miserable and utterly out of proportion to the work that they do, and I do not believe any person would feel aggrieved in the slightest degree if he were deprived of the privilege of being put upon the jury list. With regard to these cases of fraud and that kind of thing, there is more to be said, but even there I would be glad to see the Bill go further than it does.


I want to raise the possibility of women serving upon juries, and I should like to ask your ruling upon the matter. I was rather astonished that my right hon. and learned Friend (Sir G. Hewart), in making his case that there are insufficient jurors, did not think it worth while to explain why he was not drawing upon the female sex for service upon juries, even it came first in the form of minority representation. We are admitting 6,000,000 or 7,000,000 women to the franchise—all those above thirty—and surely if we only admit certain selected women, such as local government electors, a beginning might be made. You will have to do it as soon as the next election has gone through. Candidates will never be returned again to this House without promising the great body of women electors that they shall be admitted to service upon juries, and even that they shall be admitted to this House. Why not, therefore, prepare for it and take up the question now? Take, for instance, some of these breach of promise cases. One must lament dozens of times that there are not some women on the jury. They would be able to read the character not only of the witnesses, but also of some of the applicants for damages, in a far more certain way than the male sex can. That dressing up in a certain way and that posing in the box in order to get the sympathy of men would be of very little avail with their own sex. I do not say that such a jury would be unjust to them, but it would more accurately diagnose what the whole thing was about.

I desire to ask you, Mr. Speaker, whether it would be possible in the Committee stage to introduce an Amendment whereby women would be asked to serve upon juries, or whether that would not entail such an alteration in the character and scope of the Bill as to place it, possibly, beyond its Title, or, at any rate, so transform the Bill that when it returns to you, Sir, on Report, you will have to hold that so great a change had been made that the Bill was not in the shape in which it left this House? I gather that the Bill is to be dealt with in Committee of the Whole House, and I know that you do not like to anticipate the ruling of the Chairman of Ways and Means, but I beg to ask you whether the Title is wide enough to permit of an Amendment of this kind being moved, because, if not, my appeal to the Government is that they should consider a supplementary Bill? I do not ask for a pledge or that they should promise me a Bill now, but surely the time is ripe when the Government should consider the matter, and give us their opinion of it through the Law Officers of the Crown. Before making that appeal I feel bound to ask you, Sir, what your views are upon such an Amendment being proposed in regard to this Bill?


I do not think that the proposal to include women among possible jurymen would be a Clause which could be accepted or which would be relevant to the Bill. The general object of the Bill is to limit the use of juries. There is only one Clause which extends the class from which juries may be drawn, that is Clause 5, which raises the age of liability to serve upon a jury from sixty to sixty-five years. To add to that a whole class of women from the age, I suppose, of twenty-one—




From thirty to sixty-five would be too great a change.


I rise to speak on this Bill, because, I think, that any alteration in the system of trial by jury in the courts is a serious matter, especially when the proposal is made to exclude juries from a large proportion of cases. Taking into consideration the fact that this is a time of emergency, when the efforts and labour of the whole manhood of the country are being used upon very urgent matters, I do not object in the least to the policy of introducing the Bill. Except in the matter of coroners' inquests, its operation is to be confined to the civil judicature, and powers are given to the presiding judge, where he thinks there ought to be a jury to deal with the case, to order accordingly; while certain matters that come near the verge of being crimes are excluded from the operation of the Bill. Those are great safeguards. It will be curious to see in this country the oldest Court of law—the coroner's inquest—being held without the jury. Under the old law of inquests persons were always selected to go with the sheriff, or whoever happened to be the local officer of the Crown, to do right, dispense justice or prevent crime. In Scotland, I believe, many of these things are done without a jury. The safeguards contained in the Bill are sufficient to protect that very ancient institution, and the superior authorities have power to prevent any abuse in the way of delay and want of thoroughness in the matter of inquiring into violent or sudden deaths. One can only hope that the superior authorities will exercise due vigilance. I am, therefore, quite ready to vote for this Bill.

2.0 P.M.


This is a much more drastic measure than the Debate has indicated. The normal system required that cases should be taken by a jury, but hereafter the law and system will be changed and the trial will be by a judge. My hon. and learned Friend the Member for East St. Pancras (Mr. Martin) has indicated his acceptance of this Bill, and he has readily given away this bulwark of freedom as it has existed in this country for two or three centuries. To alter that position is a very drastic change indeed. I do not know whether it is wise to so alter the condition of affairs. In any case, the Solicitor-General has been wise in limiting his measure to the period of the War. In that respect I differ from my hon. and learned Friend the Member for East St. Pancras. If the system inaugurated by this measure is worth a trial—and I agree there has been an outcry for it—that trial should be a limited one in point of time, and the duration of the War is such a limitation of time. After that period of time has elapsed it will be known whether this great change in our system is worthy of being made permanent or whether the experiment has been a failure, or whether the present system of trial by juries should be reverted to. The Solicitor-General has taken a wise course in following the via media and trying the experiment for a limited period. I asked the Solicitor-General why this agreed measure, which is so desired in England, should not be extended to Scotland, but his answer did not make me any wiser than I was before. If it is such a great advantage to have this measure passed into law, as he indicated in his speech, why is this boon not given to Ireland and Scotland? I imagine from the answer of the Solicitor-General that he is not sufficiently conversant with Scottish law to give a detailed and clear answer upon it, and in the absence of the Secretary for Scotland, or of the Law Officers for Scotland, we cannot have the matter put clearly before us. If this is an advantage to the citizens of the State in England, why should Scotland and Ireland be excluded from it? On the whole the measure is to be commended, especially because of the trial period, and I therefore support it.


I listened with great interest to the speech of the right hon. Gentleman who introduced the Bill, and there was no point to which I should take exception beyond that relating to coroners' inquests, because in the mining districts you have a district entirely of one kind of trade, or its auxiliary trades, and accidents in mines are matters that, unfortunately, continually happen. There is no reason whatever to complain of the action of the coroners, but I was just wondering whether it was altogether wise to do away with the number of men in these districts who are usually called upon to take part in these juries. The jury work, by continuity of action in these districts, falls to a number of men who become accustomed to the habits and technique of mining. There was one saving clause in what the right hon. Gentleman said which made one feel inclined to accept that without any violent opposition, namely, that the coroner himself should call a jury if he thought the circumstances of the case sufficiently serious to necessitate one. With the exception of that, I see no reason for not agreeing with many of the remarks of the hon. and learned Member for St. Pancras (Mr. Martin), except that I think he was influenced by recent trials in the Courts which I do not think he ought to take as seriously as his remarks indicated he did. I hope we shall not allow recent trials to influence our minds in matters of this kind.


I should like to ask the right hon. Gentleman if he can do something to prevent the calling up of so many jurymen at assizes. Generally there are a very large number called, and some are there a day or two without being engaged at all. It does seem, especially at this stage when there is such a scarcity of man labour and in agriculture, that so many should be called up when only a few are required. I know it is necessary to have a panel, but surely it could be done without calling up so many men as is at present the case, and I would ask the right hon. Gentleman if something could not be done to avoid the calling up of so many more jurymen than are actually required for the service of the Court.

Question put, and agreed to.

Bill accordingly read a second time, and committed to a Committee of the Whole

House for Monday next.—[Sir G. Hewart.]