§ Order for Second Reading read.
§ 3.50 p.m.
§ The Attorney-General (Sir Hartley Shawcross)
I beg to move, "That the Bill be now read a Second time."
The other day, in moving the Second Reading of the Bill of which we have just disposed, I ventured to say that I wished sometimes that somebody would entrust to the Law Officers a more controversial and exciting Measure on which we might really let ourselves go. I fear that this is not such a Measure. This Bill is designed to effect modest, and I should imagine quite non-controversial, changes which will bring about an amelioration of our law in regard to juries. It provides, in the first place, that juries should receive some limited compensation for the loss of earnings and expenses in which their service may involve them; and, in the second place, that that singular anomaly, the special jury, should be abolished.
I am sorry that two such simple and indeed overdue reforms should require 1520 legislation so tediously technical as many of the 31 Clauses of this Bill of necessity have to be. In an ideal world a Bill of two Clauses would be sufficient, but, in some respects, this is still not yet an ideal world. Moreover, the jury system is something which has had its roots in the long distant past, when it existed, indeed, not as the palladium of our liberties which it is now said to be, but as something of probably continental origin which the would-be absolutist monarchs of those days sought to use and develop in their struggle to secure a monopoly in the administration of justice.
In consequence of that history and in the course of time, the ramifications of the jury system became so widespread that any legislation which one introduces now and which affects its operation at all necessarily has to bear a somewhat complicated and technical appearance. I said "any legislation which affects its operation," but perhaps that was rather an ill-chosen phrase, because I should not like it to be thought for a moment that any one of the 31 Clauses of this Bill in any way affects the fundamental right to trial by jury. That right, both in civil and in criminal cases, will remain entirely unimpaired. On the contrary, we hope that the provisions of this Bill will strengthen the jury system, which, despite its probably alien origin, is now typically English in its very successful combination of the lay and the expert element.
Just now, in some of those countries which, by a bitter irony, describe themselves as popular democracies, there is a great move towards the establishment of what are called people's courts. Very often, these seem to be composed of a special selection of the people, and they take the law, as well as the facts, into their own hands and adapt both of them to fit the prejudices and passions of the moment. I venture to think that that method is just as inimical to justice and the rule of law as would be the opposite extreme of concentrating all judicial power in the hands of a single professional judge sitting alone, and not having, even in difficult questions of fact, the assistance of a jury.
I do not say for a moment that our English system—and it has been followed, I think, in Scotland—which is essentially a compromise, is one in which one never gets a miscarriage of justice, but on the 1521 whole I think that everyone who has studied the working of our own system and has some knowledge of the working of the different systems in vogue on the Continent, would agree that judge and jury sitting together do form a most efficient instrument for the administration of law and justice in those cases where questions of fact are involved. I venture to stress that, both because I want, at the outset, to make it clear that this Bill does not touch at all the right or method of trial by jury, and, secondly, to emphasise that service on a jury ought not to be regarded as, and ought not to be allowed to become, a burden on the ordinary citizen. At present, unfortunately, it is too often a burden, and it is with the remedying of that situation that the first part of this Bill is concerned.
I expect all of us who practise in the law have known of cases where persons who depend upon their earnings for their livelihood have been required to sit on juries, perhaps after waiting many days, sometimes kept for a day or two, and sometimes indeed for many weeks, without obtaining any compensation whatever. It is to meet that state of affairs that the first part of this Bill has been introduced. The citizen who serves on a jury is, of course, exercising a very important privilege by taking his share in the administration of the country's justice, and it may rightly be said also that he is, at the same time, helping to support and maintain something which is one of the great safeguards of his own freedom and liberty. The common jury is the protection of the common man. That being so, we might have a great deal of interesting philosophical discussion whether or not a person should be paid for exercising that privilege and discharging that right and duty. For my part, I should certainly not disagree that there are some services which the State may require from its citizens, and which its citizens ought to be prepared to give without any compensation or reward.
However attractive that may be as a philosophical principle, it would be utterly unrealistic to apply it to jury service, the burden of which falls unevenly and unequally on the rich and poor. I daresay that to a rich man a period of a few days spent in the jury box might sometimes form an amusing, and sometimes a not altogether uninstructive, interlude; on the other hand, for the 1522 working man, living from week to week without any great margin, it might deplete the family purse in a way which would be ill-calculated to increase the enthusiasm of that family for the British legal system. The fact is, of course, that it is not in the interest of the State so to arrange and organise the duties which it requires from its citizens that they form a far heavier burden on one section of the community than they do upon another. It is for that reason that, implementing the undertaking which I gave, I think, last year or the year before, we have introduced this Bill providing for the payment of juries.
The principle that jurors should be paid is not an entirely new one. It is true that no payment is provided in criminal cases, but in civil cases, by custom, jurors have been entitled to be paid, not by the State but by the parties to the litigation before them, sums of money which although quite derisory now, were probably not wholly insignificant at the time when the right to them was first established. Traditionally, it appears to be the position that jurors were entitled to be paid what was called the juror's groat for each case in which they assisted, and a groat equalled the sum of 4d. The amount actually varied in different courts. In some, the parsimony was so great that they got only half a groat, and in other courts the extravagance and profligacy went so far that they got three groats at the end of each case. These amounts may have been worth having in mediaeval times, but I should not like to describe to the House the language which a juror in these days, who, at the end of a protracted and tedious case was handed half a groat, might think it appropriate to use. Special juries, as one might expect, managed to look after themselves rather better, and it has been for a long time the custom that, although their need was not so great as that of the common juror, they should be rewarded at the rate of one guinea a day.
The present Bill, while doing away with the distinction between the common jury and the special jury, will provide that jurors who give their time and care to the duties which the State requires them to perform should receive appropriate allowances on scales generally applicable to all courts throughout the country in respect of any 1523 loss of earnings which they may suffer and any expenses to which they may be put, within certain defined limits which are set out in the Bill.
That aspect of the matter is dealt with in Clause 1 of the Bill so far as it affects England and Wales, and in Clause 22 so far as it concerns Scotland. These Clauses provide that the allowances to be paid shall cover travelling expenses and subsistence and shall also provide compensation for loss of earnings. The actual amounts which may be payable under these various heads are to be settled by regulations to be made by the Secretary of State in the form of statutory instruments and, therefore, subject to Parliamentary control; subject to this, that the amount to be paid in respect of loss of earnings is not to exceed 20s. in respect of a full day and 10s. in respect of a half day. That limitation, as hon. Members will perhaps recall, is in line with that which was provided under the Local Government Act last year in connection with the payment of allowances to members of local authorities. The travelling allowance will be the actual cost of travelling from home to court at the third class fare, and the subsistence allowance will not exceed 5s. a day.
Those amounts are, of course, not intended to be extravagant. They will not, I venture to think, make jury service financially attractive. They will not compensate for the inconvenience nor, in all cases, compensate for the actual loss a juror may sustain, but they will at least avoid the really grave hardship which every barrister, solicitor and many other hon. Members of the House will appreciate often does arise from our existing arrangements in these respects. They will provide that although some loss may be sustained and although there may be considerable inconvenience, no really grave hardship such as has been suffered before will in future be sustained by those who are called upon to discharge this important duty. I am sure that principle will be acceptable to the House and that it will not be necessary for me to say much more about the remaining 15 Clauses of the Bill which merely implement that general principle and provide for the machinery under which it is to be carried out.
§ Mr. Charles Williams (Torquay)
In the matter of earnings, will this principle apply to, say, the shopkeeper or farmer or artisan who is not receiving direct daily earnings? Will he be eligible as well, if he chooses to apply?
§ The Attorney-General
Yes, that provision will be made and will be covered by the regulations. They will cover the case which the hon. Gentleman has in mind of the self-employed person.
I said that I should not need to say much about the next 15 Clauses of the Bill which are mainly machinery, but I should perhaps touch on one or two of the more important matters which we are asking the House to do in this Measure. Perhaps I should first deal with the question of who will pay. The answer to that, no doubt, is, Mr. Deputy-Speaker, that you and I and the great masses of potential jurymen and jury-women will pay; but the question is whether we should pay by rates or by taxes. That question is a little complicated. In England and Wales the administration of criminal justice falls upon the local funds. The administration of justice in the civil courts, on the other hand, with one or two exceptions which I need not enumerate here—one of them is the Liverpool Court of Passage—is a charge upon the national funds. The reason for that difference in treatment is largely historical, and I do not think the House would wish me to go into the history of the matter now.
There may be strong reasons and arguments for throwing the general cost of the administration of the criminal law on to the national Exchequer, but that is a matter which would involve complicated questions of law and policy, and this is not the occasion on which to do it. What we have sought to do in this modest little Measure is to follow the existing principles in regard to the distribution of these charges between the local authorities and the national Exchequer, and, in the result, the cost of payments to jurors in civil courts will be borne on national funds while the cost of payments to jurors in the criminal courts will fall as a charge upon the local rates. It is very difficult to estimate what the total expenditure involved in these proposals will eventually be.
1525 The figure of £2 per juror which is mentioned in the Financial Memorandum to the Bill is of necessity largely conjectural, and from the facts of the situation it is impossible to give any firm estimate, but, making the best estimate we can, we anticipate that the charge on local funds will amount to about £132,000 a year and the charge on the national Exchequer will be about £22,000 a year. There is perhaps this further thing to be said, that in the case of the charge on the national funds there may be some contribution from the actual parties to the litigation. As I explained just now, under the present system such payments as are made to juries in civil cases fall upon the litigants themselves, and provision will be made under the regulations that some payment which will not cover the whole cost should be made by the litigants by way of court fees to the charges for the payment of the jurors.
Most of the first 16 Clauses of the Bill deal with the implementation of these principles and the methods by which payments shall be paid and allocated. They are, I think, all Committee matters with which I need not further bother the House at this stage, except perhaps to say a word about Clause 14. Clause 14 excludes from the operation of the Bill juries which have been summoned for the particular purposes set out in the body of that Clause. There is, for instance, the jury summons at which is known as a trial of the pyx. That has, I should perhaps say for the information of the hon. Member for Torquay (Mr. C. Williams), nothing to do with the delightful fairies called pixies which, I believe, inhabit his constituency, but it is an annual testing of the coins from the Mint, and it is attended by a jury of I think not fewer than six competent persons who are members of the Mystery Goldsmiths of the City of London—far from a fairy-like body but one the members of which are not thought to require any remuneration under the provisions of this Bill.
§ Mr. C. Williams
The right hon. and learned Gentleman was kind enough to refer to me. May I have the great privilege of saying how pleased I am to be able to congratulate him on having made an accurate statement which I happened to know before.
§ The Attorney-General
Clause 14 refers to other ancient courts mentioned 1526 in paragraph (c) and (d). There are, for instance, the Barmote Courts which have a legal jurisdiction relating in the main to mining matters and also to some civil pleas in The High Peak of Derbyshire. The Great Barmote Court meets once a year and is attended by a grand jury who, although not paid, by all accounts seem to have a grand time. I am not sure what, if any, litigious business is transacted on these occasions, but they are of some festivity and one of the main features of them is that the grand jurors are entertained to lunch by the Bar Master.
We think that these ancient and traditional ceremonies are to be encouraged, and we hope that, despite the absence of any subsistence allowance, these functions will go on and a good time will continue to be had by all. So I leave that part of the Bill. I do not think that I had better take up time in describing the other somewhat archaic courts referred to in that paragraph. None of them exercise any important function in regard to litigation, but some of them still retain some traditional functions which it would be a pity to do away with, but for which it is unnecessary to provide any payment for those who take part. We therefore exempt them from the provisions of the Bill, hoping that they will continue their traditional ceremonies.
Then I come to the second object of this Bill, the abolition of the special jury in all criminal and civil cases except those which are tried by a special jury of the City of London in commercial causes. The special jury has now become a complete anachronism, and its continued existence is inimical to that appearance of equal and impartial justice which ought to be fundamental to our system. If any hon. Member still has a sneaking regard for the distinction between the common and the special jury—and I remember that my hon. Friend the Member for Oxford (Mr. Hogg) did feel some such regard when the matter was raised in the House some little time ago—I would ask him to explain on what principle he would justify the fact that, for instance, a newspaper proprietor who is sued or himself sues for libel can demand a special jury, but who, if he is prosecuted in the criminal courts for perhaps exactly the same libel, has no right to a special jury. Or who can justify the 1527 fact that a man on trial for his life on a charge of murder has no right to demand the services of a special jury, while if he is merely being sued for some small amount in damages he can secure for his purse such protection as a special jury may be able to give him?
It is, in the view of His Majesty's present advisers, a distinction which it is now wholly unjustifiable to maintain. I say "now." It may be that the origin of the special jury is an understandable one, but what I submit now is that the retention of the distinction has become wholly unjustifiable. In very early days, in the 15th century, when most of the populalation was largely illiterate, a property qualification no doubt provided some sort of assurance that jurors would possess some degree of education. It was at that time that the right to a special jury was first established, and the distinction between the common and the special jury was maintained on its present basis by the Juries Act of 1870.
I will not take up time by going through all the distinctions between the qualifications of the common juror and the special juror. But to take one matter, there is the property qualification: a person is liable to serve as a common juror if he is a householder rated in London at £30 a year, or in the country at £20; to reach the social and judicial distinction of a special juror he must have a house rated in London, or in the larger towns, at £100 a year, or in the country at £50. Even if a man is not a ratepayer at all he may be entitled to be a special juror if he is entitled to be called an "esquire" or a "banker." Who nowadays is so entitled I have not the remotest idea. Who is a banker? Is it the man who cashes, or refuses to cash, one's cheque at the counter, the manager of the local branch, a member of the board of directors, or only the chairman of the company? I have not the faintest idea.
Who is an esquire? The Encyclopædia Britannica sets out a list of ten classes of persons who, it says, are entitled so to describe themselves, but excellent and authoritative as that publication no doubt is, I believe the matter is still one of considerable dispute. Then merchants are entitled to qualify as special jurors, but merchants, as Baron 1528 Bramwell pointed out, are to be distinguished from manufacturers. Thus the manufacturer of motor cars, for example, is not entitled to be a special juror merely by virtue of being a manufacturer, though he may have other qualifications, but the man who sells his motor cars may come in under the qualification of merchant. In what was no doubt a momentous decision in the year 1611, in the case of Hammond v. Jethro, it was pointed out that an ordinary shopkeeper may be a merchant and so qualify. But even worse was to come, because in 1819 the court held that the fact that a person was a retail shopkeeper did not negative the possibility that he might also be an esquire, and in that capacity be entitled to sit as a special juror.
We propose to do away—I was going to say with all this nonsense—with all these curious anachronisms. The general standard of education in the country is now so much higher that the distinction in the property qualification is one which no longer affords any test of a person's capacity to sit on a jury. There may be some who would go further and say that mere education is not in itself the best criterion by which capacity to serve on a jury is to be judged. All of us have met highly educated people who are utterly lacking in that shrewd common sense which one often finds in ordinary working people who have had no education at all; although they have not had the advantage of the playing fields of Eton, they have been brought up in the hard school of experience. At this time an educational test for a juryman would be an unwise one to impose, and would certainly not be one adequately provided for by the property distinction between common and special jurors.
Juries ought—and this is our view about the matter—on the whole to represent as far as may be a chance cross-section of the community—the 12 men on the Clapham omnibus. Nowadays even an esquire sometimes travels on an omnibus, and for the rest, the butcher, baker and candlestick maker are just as well able to administer justice shrewdly and fairly, and with a real regard to our freedoms and liberties, as their more propertied fellows may be. So we propose with one exception to abolish this property distinction.
1529 The one exception which we propose to make is that which relates to the special jury for the City of London. We think it may be useful to retain that special jury in the trial of cases in the commercial court of the King's Bench Division. As hon. Members may know, it is the practice of the King's Bench Division to maintain a special cause list for commercial cases arising out of the transactions of merchants and traders, and these cases are heard by a judge who has special commercial experience; and when a jury is required—which in practice is very infrequently now—that jury may be summoned from persons in the City of London who have experience and knowledge of commercial matters. These are technical matters and we have felt, and the House will probably agree, that it may be convenient that they should be dealt with by jurors who have special technical experience. For the rest of the cases, civil or criminal, between all parties, rich or poor, they will be tried by exactly the same kind of jury, where juries are appropriate, juries drawn from the same class, remunerated in the same way, who represent a kind of cross-section of the community.
There may be something to be said for abolishing the property qualification altogether, and for saying that anyone who is qualified to vote at an election for instance is equally fitted to serve on a jury, and in principle I must admit that I should not like to have to disagree with that proposition. I think our experience at the last General Election, and at the by-elections that have occurred since, and no doubt at the General Election which will occur in 1949—[Interruption]—I should have said 1950—undoubtedly gives great confidence in the electors of this country. It may well be that there is much to be said in favour of allowing all those whose names are on the voters' register to serve, when called upon, as members of juries.
I see that that proposition is the subject of an Amendment which has been put down, and which is certainly not unattractive, but the House will appreciate that the question of the removal of all property qualifications would inevitably involve some review of the various disqualifications and exemptions which exist in the present law. That is a matter of great difficulty and complica- 1530 tion, and it would hardly have been possible for us to deal with it, however attractive it may be, within the scope of the Bill which is intended to come into operation as soon as next October.
The object of this Bill is not to alter tile general law in regard to the qualification or disqualification for jury service. That is a much more far-reaching matter. The object of this Measure is merely to abolish the distinction between different classes of jury. I would not exclude the possibility that hereafter we may be able to do something on the lines of the Amendment, and I shall listen to the arguments in this Debate and in Committee about that matter. But the purpose of the present Bill is of necessity a much more limited one.
I have said all I desire to say about this Bill at this stage, save to add that the Bill applies, with necessary changes mutatis mutandis to Scotland, and that Clause 31 enables the Parliament of Northern Ireland to introduce, if so advised, similar legislation for that country. I hope that the two purposes for which the Bill has been introduced will command the general support of the House and that they will facilitate the working in modern circumstances and present day conditions of one of the most valued and characteristic of our British institutions.
§ 4.31 p.m.
§ Mr. Manningham-Buller (Daventry)
The Attorney-General deplored the fact that a Law Officer seldom had an opportunity of introducing a really controversial Measure on which he could let himself go. The memory of the right hon. and learned Gentleman is a little short. He seems to have forgotten the part he played on the Trade Disputes Act. At any rate, he has the consolation that on this occasion, if he could not let himself go with the vigour and violence that he desires, he has let himself go for a very considerable time, almost an hour, introducing this non-controversial Measure.
In the course of that hour he said singularly little about the provisions of the Bill as they affect Scotland. I appreciate the reasons why he did not do so. I do not feel that I am competent in the least degree to comment on the Scottish aspect of the Bill. Should not that part of the Bill be considered by the 1531 Scottish Standing Committee? I hope that we shall have an assurance that steps will be taken for that part of the Bill to go to the Scottish Standing Committee. It would be very awkward if we become involved today in the Scottish law relating to juries.
We welcome the first part of the Bill. I have always regarded as an anomaly the fact that juries in criminal cases who are performing a public duty—this appears to be the principle behind it—merely because they are performing a public duty, receive nothing to compensate them for the expense incurred in attending and performing that duty, and nothing to compensate them for their loss of earnings. Indeed, attendance in many parts of the country involves journeys of considerable difficulty. In many counties it is not at all easy to get from outlying parts to the county towns, and a journey may take a considerable time.
The right hon. and learned Gentleman said that the travelling allowance would be the equivalent of third-class fare, but there must be many instances where it is not possible for the juror to go by rail, or even by bus, from an outlying part of the county to the county town. Even in my own county, if one wants to travel from Brackley to Northampton which is only 22 miles distant, Northampton being the assize town, there is no public service on most days of the week. One would have to go right round by Bletchley. The statement by the right hon. and learned Gentleman about third-class fare does not appear in the Bill. I hope that we shall be told that he does not exclude payment of proper expense incurred in getting to the court where other means are not available, even if it means hiring a car for the purpose. Not only is it in many cases difficult to get to the county town but the journey has to be made several days running. Loss of earnings and the expense of travel may be considerably more than the jurors can easily afford.
I was sorry that the right hon. and learned Gentleman gave way to his political prejudices by seeking, in that part of his speech, to draw some distinction between rich jurors and working jurors. The duty falls upon both of them, and it is largely by reason of the actions of the Government of which the right hon. 1532 and learned Gentleman is a member, that the rich juror is a rare bird in these days.
It was for those reasons that in Committee on the Criminal Justice Bill, I moved a new Clause seeking to secure payment to jurors in criminal cases at assizes and at quarter sessions of remuneration on the same basis as ordinary witnesses would be paid. That new Clause met with a favourable response from all sides of the Committee, and a not wholly unfavourable response from the Home Secretary. That right hon. Gentleman objected to it on the grounds that it was wrong to throw the cost on to the local rates and that it was wrong to deal with the matter piecemeal, because no provision could be made in a Criminal Justice Bill for jurors in civil cases. There was much more force in his second ground than in his first. I am glad to find that the Government agree with me, because now the burden of juries in criminal cases will be borne by the rates.
The Bill will apply to juries in all courts except those specified in Clause 14. The right hon. and learned Gentleman said that the allowances were largely in line with those given to members of local authorities. It is perhaps desirable also to have a look at the allowances given to ordinary witnesses and to see whether they are in line too. I made some researches into that subject last night, when it did occur to me—I may be wrong—that there are discrepancies in treatment between ordinary witnesses and jurors. So far as I can ascertain, and I made what researches I could, the maximum allowance to an ordinary witness, for instance, for a day's attendance is 14s. whereas for a juror it is now to be 20s. In that connection the right hon. Gentleman did not say anything about what would happen if a juror had to spend a night in the assize town. I hope that scales and conditions will be prescribed to try to create some measure of uniformity.
I agree that in the past, in the case of civil juries, jurors received a remuneration which was totally inadequate. The Bill does a great deal to remove that evil, but I am puzzled by one thing in the Explanatory Memorandum, about which the right hon. and learned Gentleman did not say much, and that is the burden which will fall on the Exchequer 1533 in respect of juries in civil cases. Primarily, the cost will fall on the Exchequer, but it will to some extent be borne by the litigants. The Explanatory Memorandum says that the cost is estimated to be £22,000 a year. Then it goes on to say:The latter sum would be reduced to a limited extent by the receipts from the fees which may be prescribed and charged to litigants who apply for a jury.I am little puzzled by the word "limited." I could understand if it were provided that litigants in civil cases who wanted a jury would be required to pay the full cost of the jury. That would form part of the cost to be taxed like the cost of witnesses. Perhaps there is something to be said for a party applying for a jury having to pay the costs of the jury in any event. I could also understand, on the argument that it is desirable to make litigation less expensive, the Exchequer paying the whole cost. I must admit that I am at a loss to understand upon what principle it has been decided that the Exchequer should pay some part and that contributions to a limited extent should be made by the litigants. I should be glad if the right hon. and learned Gentleman could indicate the proportion that litigants are expected to pay and what proportion is to fall upon the Exchequer.
I have really said all that I need to say about the first part of the Bill, which we welcome. I am sorry that the Government have made the decision to abolish special juries. Listening to the right hon. and learned Gentleman most carefully, I thought that his reasons for taking that step were inadequate and unworthy. Is it suggested that special juries have not in the past stood by their oaths? Is it suggested that they function unfairly? If it is not so suggested, it is difficult for me to discern an adequate reason for their abolition. I do not think that a mere discrepancy between the property qualification of a special juror and of a common juror suffices to justify the inclusion of this Clause in the Bill.
It may be that the qualifications, both for common juror and special juror, need looking at again and revising, but the difference between being the occupier of premises rated at £50 in the country, which constitutes a special juror, and £20 in the country for a householder, which 1534 constitutes a common juror, is not a very significant distinction.
§ Mr. Manningham-Buller
The distinction between qualifications is not very significant. The difference does not in any way justify the abolition of special juries. The reason I feel sure, goes far beyond that. Indeed, it is not without significance that the right hon. and learned Gentleman has retained, in my opinion quite rightly, the City of London special juries. He recognises that for commercial actions the difference between the common jury and the special jury for the trial of those actions is desirable and necessary in the interests of justice. It would appear to follow from his retention only of the special jury in commercial actions in the City of London that he foresees, and thinks it is desirable, that commercial actions should not be tried at Liverpool, Manchester, on the Northern Circuit, or at Birmingham, and that litigants up there who wish their case to be tried before a special jury should bring it down for trial in London.
§ The Attorney-General
That is, of course, the position today. That will remain the position under this Bill. Those who have commercial causes on assize, and who wish to have the advantage of a City of London jury, have to have their cases transferred for trial in the commercial court. The present position on assize, as I understand it, is that it may be possible—this would be extremely unusual in commercial cases—to have a special jury to try that case, but not a City of London special jury. The point of having that City of London special jury is to get the expert knowledge of commercial matters, which is lacking in any special jury one may get on assize.
§ Mr. Manningham-Buller
This seems to me to cast a grave reflection on Liverpool and Manchester, which I was not seeking to cast. I was not suggesting that a City of London special jury should be taken up to Liverpool to adjudicate on a case heard in Liverpool. I should have thought it possible for the parties—I am sure it was the position, and is the position now, until this Bill becomes an Act—in Liverpool in a commercial action to ask for a special jury and to get one.
§ The Attorney-General
I think that is very unlikely as a matter of fact. Cases on which a special jury may sit, in the ordinary case in the High Court or on circuit, are very limited, and commercial cases are not amongst them. A City of London special jury is quite a special institution consisting of persons who have not merely property qualifications, but are expert in commercial transactions. There is no machinery under the existing law for empannlling a jury of that kind elsewhere than in the King's Bench Division and the commercial court.
§ Mr. Manningham-Buller
I was aware of that, but I am sure the right hon. and learned Gentleman will agree with me that—until the Bill becomes an Act—it is possible to obtain special juries—not City of London special juries, but special juries—at Liverpool, Birmingham, Manchester and the other big assize towns. That right will go. As one who does not practise on the Northern Circuit, of course I must not be thought to oppose the prospect of cases of that character being brought down to London; but I think it a retrograde step, if both parties to the litigation want a special jury, that they should not be able to have one. This Bill will prevent them from having one.
I must say that it does look as if the decision to abolish special juries is not dissociated from the results of certain cases which have taken place since the last General Election. I well remember the Question put by the hon. Member for Maldon (Mr. Driberg) to the right hon. and learned Gentleman on this matter shortly after the conclusion of a special jury case, and, indeed, the answers given by the right hon. and learned Gentleman considerably later, saying that this decision had been arrived at. I think it is a retrograde step. I think the right hon. and learned Gentleman has really not justified it. I agree that there may be a case for examining the qualifications, but I say that the abolition of special juries, except for the City of London special jury, will not improve the administration of justice.
However, in my opinion the good contained in this Bill, in providing for the remuneration of jurors to a limited extent and for the payment of their travelling 1536 expenses, outweighs the badness contained in this Clause. I hope that on reconsideration, the Government may perhaps be induced to change their attitude on that matter, and we on this side, in those circumstances, shall not vote against the Second Reading of the Bill.
§ 4.49 p.m.
§ Mr. Bing (Hornchurch)
I am sure that this Measure, like many others which we have heard moved from our Front Bench, will be welcomed by everybody on this side of the House as a most excellent Measure; but we may make the criticism, that we have sometimes made of other Measures, that in one or two respects, perhaps, it does not go quite far enough. I was very glad indeed to hear the Attorney-General say that he would listen carefully to any arguments which were put up for the proposition that jury service should be like the vote—a right and duty imposed on anyone quite irrespective of what property he might or might not own. The arguments are very strong for that point of view. I do not doubt whatsoever that my right hon. and learned Friend will be convinced if only he does one thing—if only he goes to his own constituency and studies there his register.
Let me give one or two figures from my constituency. Let me take a Labour ward, the ward of Rainham. I take a Labour ward because that happens to be a poor one. Most of the people who live in it are working-class people. There are on the register 5,812 people. Of those 45 are jurors, of whom 44 are men and one is a woman. In these circumstances it is a little hard, since the Attorney-General said that, after all, what we want is a chance cross-section of the people, to see how one woman out of 5,812 electors is a chance cross-section. It is, but not quite in the sense in which, I think, the Attorney-General made the point. I am very glad to see the Home Secretary here, because I read with great interest and great approval the argument about numbers which, I think I am right in saying, he made when dealing with the Licensing Bill. He said, "Why, this Bill will affect in the end only one out of 110 people—a purely negligible number." But if one looks at the figures at Rainham, this Bill affects one out of 146. How can one be purely negligible in consideration of the 1537 Licensing Bill and yet, for the purposes of this Bill, a fair cross-section of the people? The hon. and learned Gentleman the Member for Daventry (Mr. Manningham-Buller), I thought rather unfairly, made some attack on the Attorney-General, because he said the present selection of juries was political. Well, it is in this sense.
§ Mr. Manningham-Buller
Really the hon. Gentleman must not misquote me. I did not say anything of the sort.
§ Mr. Bing
I am very sorry. Again, as before, I with other hon. Members in the House failed to follow the hon. and learned Gentleman. However, while I do not say one should disqualify a juror because he is a Conservative, I do not see any particular reason why juries should be composed exclusively of Conservatives. Let me take one other ward from my area, Upminster, which has voted so solidly Conservative that they feel now they can solve problems in the Conservative Party by putting up rival anti-Labour candidates to fight one another. There they have some 10,000 electors, which is twice the number in the working-class ward, but their number of jurors is 2,129, of whom 1,809 are men and 320 are women.
There are just two other points I would make. The first is that the property qualification as it exists at the moment has really got much worse owing to changes during the war. Removals, and so on, have taken place, and people who would normally be on the jury list are now excluded, and are likely to continue to be excluded because of the low rateable value of the houses built by the local authorities, and so on. The second is that this qualification dates from 1825, from a Parliament whose other activities, so far as I can see from looking through the reports, were revising the Combination Acts against trade unions and limiting the franchise in Ireland. Those two matters have now been put right, and it seems to me that the time has come to see what can be done with the last surviving legislation of the Parliament of 1825.
Finally, lists as they exist at the moment very largely disqualify women from jury service. Obviously, one of the reforms which is desirable is to see that there is 1538 some rough equality between the sexes in the liability for being called upon a jury. There is no doubt at all that present practice does depart from what was, after all, the principle of Magna Charta, that everybody was entitled to be tried by his peers, and by his "peers" was meant by his equals. We all, on both sides of the House, I think, hear from time to time of distressing cases amongst our constituents. One hears, for instance, from a constituent, who says, "My son was wrongly convicted and the jury were unfair." When, out of 5,000 people in an area, only 45 are chosen by a haphazard method as being capable of sitting on a jury to try someone's son, how can one argue that he who is being tried is being tried by his peers?
I do ask the Attorney-General to reconsider this question of machinery. There are Members on both sides of the House who have some ingenuity, and I feel that if we could discuss the matter with my right hon. and learned Friend before the Committee stage, we could evolve a scheme to establish a really democratic jury system. We do not want to allow this legislative occasion to pass without obtaining, if not immediately, in the near future—say in a year or two—an Act on the Statute Book which will ensure that there will be a democratic jury system.
§ 4.56 p.m.
§ Mr. Quintin Hogg (Oxford)
I must apologise to the Attorney-General for having arrived late, but as the principal point on which I wish to criticise him is on the proposed abolition of special juries. and as I did have the advantage of hearing everything he had to say about that, I hope that my late arrival will not be thought to disqualify me entirely. I ask myself a question to which I try to give an absolutely objective answer. I speak as one to whom the law is bread and butter. I think the Attorney-General could say as much, except that he has, perhaps, some jam on it as well—and so, perhaps, has the hon. and learned Member for North Hammersmith (Mr. Pritt). To me, the law is my bread and butter. I ask myself this simple question, trying to set aside any kind of prejudice at all: Do I believe that people will get as good justice under the proposed system as they get under the present system? Will causes be tried as well when we have 1539 abolished special juries as they are tried now? Will the results be as satisfactory from the point of view of justice to the parties? It is to that question and to no other that, I suggest, the House should address itself.
The hon. Member for Hornchurch (Mr. Bing) addressed himself to a very different set of questions. He addressed himself to a number of theoretical considerations which, I think, have absolutely no relevance to this issue. The right to vote is, as he correctly said, a right; and it is a right which is correctly sought after by, at any rate, the great majority of our people. Nobody, as far as I know, seeks after jury service in the same way. It is not a right in that sense, and if there be anybody who lusts to appear on juries, I can only say that he is probably most unsuitable to be a juror. The analogy between the right to vote and the so-called right to appear on a jury breaks down in toto. Jury service is a burden imposed on people for the purpose of giving right to other people, namely, the litigants—a civil jury in a civil case, and a criminal jury who do right as between the Crown and the accused person.
To my mind, at any rate, the only sanction is the pragmatic sanction: is more justice or better justice to be done under the new system than under the old? Of course, opinion on that point may differ, but I am giving my opinion that I do not believe justice will be done as well when the special jury is abolished as when it was in full operation. Of course, it is not in full operation now.
Having tried to assert my own objectivity I find it distasteful, and perhaps embarrassing, in view of the fact that I appear as a member of a minority party, to assert the want of objectivity in the Attorney-General; but I none the less do make that assertion. My hon. and learned Friend the Member for Daventry (Mr. Manningham-Buller) reminded the House that the verdict in the Laski case was given on one day and that within a fortnight the hon. Member for Maldon (Mr. Driberg) was suggesting that the special jury system should be abolished; the Attorney-General obligingly replied that the matter was then under consideration and review, and shortly afterwards he said that it had been decided to abolish it.
§ The Attorney-General
I hope the hon. Member will accept from me that that had no bearing whatever upon my own view. My own view, which I formed in the days when I had to practise before common juries and special juries, was that there was no advantage to justice in maintaining the distinction. I formed that view well before the war.
§ Mr. Hogg
I am, of course, making an attack upon the Government. I accept the Attorney-General's personal word, as I should accept anything which he told me coming from himself, but I cannot wholly free my mind from the belief, both that the question of the hon. Member for Maldon was influenced by recent events and that the decision of the Government as a whole was not entirely uninfluenced by those events. I am bound to say that, although I accept the Attorney-General's personal assurance that he is as unaware of personal bias in the matter as I on my side am unaware of personal bias, I could not but listen to the arguments which he adduced for the abolition of the special jury and reflect that however much he might believe that he was being unbiased, he was, in fact, adducing arguments which showed that his mind was influenced by bias of a kind which rendered his judgment less valuable on this than it is on other legal topics.
To my mind, the first question one has to ask oneself in this matter is whether it is desirable, and if so to what extent, to restore the jury at all in civil cases. Obviously, if a jury is an unsatisfactory way, as many people think, of trying civil issues, then one ought not merely to abolish the special jury, but one ought at any rate to limit severely the burden which is placed upon ordinary people by making them try common jury cases. It is as well to reflect for a moment how far we have gone in a single generation from the traditional English system of trying issues of fact. When my father was first called to the Bar an ordinary county court case was, as often as not, tried with a jury; nearly all contested divorce cases were. Many a story my father has told me of his triumphs or failures in front of county court juries. The ordinary divorce cases, in which there were issues of fact, were frequently, if not normally, tried with a jury; the ordinary motor accident case was seldom 1541 tried with a judge alone; an ordinary contract case was tried with a jury; and, as a learned judge said in my hearing in court yesterday, the jury was in fact the only normal method known to English law of trying issues of fact.
That situation was fundamentally altered during the course of the 1914–18 war, and the result of the practical abolition of the civil jury in that war was that in the inter-war period juries became more and more limited to cases where parties had a right to demand them—as in libel, slander and some other cases; and they are now limited even within that sphere to a relatively small number of cases. Now, is it desirable to go back upon that development? My own view is that on the whole it is. There is much to be said against juries. They are frequently perverse. A jury case nearly always takes longer to try, and they are for that reason more expensive to the parties. On certain aspects of the matter they are probably less experienced, and less quick to see the truth, than a judge.
None the less, I believe that the profession as a whole would welcome a return to an extended use of the civil jury. Their individual wisdom may be small, but the collective wisdom of 12 men is sometimes rather greater than that of one, however experienced. They are anonymous — a great advantage, because although a judge must in the course of a long career inevitably acquire a good deal of unpopularity, adding at least one to his list of enemies as a result of every decided case, once a jury has concluded its deliberations it disperses and as a body is heard of no more. It commands a good deal of public confidence. It ensures independence to the Bar and prevents the Bar from being servile to the Bench. It can be counted upon to give a broad approach to legal problems and not to fog itself with purely technical considerations. For all these reasons, I am certainly of the opinion, and I should expect that the profession as a whole would be of the opinion, that the civil jury is an advantage which should be retained.
If we come to that conclusion, we are bound to ask ourselves how far the civil jury are competent to deal with the ordinary issues of fact as presented to them time after time in the courts. Can they follow a long and intricate bundle 1542 of commercial correspondence? Can they listen to expert evidence on matters where experts can speak with authority? Can they carry in their minds evidence passing for 13 or 14 days, sometimes when, as we all know, either their ability or their willingness to take connecting notes is severely limited? I can only express the view, as my own, contrary to that of the Attorney-General—and divorced from any theoretical or political consideration—that on the whole, for these cases the special jury gives a better consideration to the case than a common jury, and that a common jury is not a satisfactory tribunal for many cases which would otherwise go to juries. I am bound to say, speaking again as one who earns his bread and butter by the law, that if and when the special jury is abolished, I shall have to advise clients in cases where I would otherwise have asked for a special jury to ask for a judge alone, on the ground that I could not be sure that their case would have proper consideration by a common jury.
The Attorney-General counters that argument with the specious but, as I shall hope to show, wholly unfounded analogy of the criminal jury. He says—and says rightly—that for practical purposes, leaving out of account the theoretical conception, in criminal cases there is no special jury; the criminal case, he alleges with a good deal of force, is sometimes—although I think he might have added seldom—as difficult as the commercial case of the kind of which I have been talking. Why then, he asks, draw a distinction between the civil and the criminal case?
My answer to that is again a pragmatical one, but I find it impossible to be convincing. In a criminal case the dice are deliberately loaded in favour of the accused. That is the system we adopt in this country. We adopt that system in order to prevent the conviction of innocent men, and although the blunders and follies of criminal juries are legion, as everybody knows, they are in the main the folly of acquitting the guilty rather than of convicting the innocent—and nobody minds very much about that in practice. We have all known criminal juries over and over again come to verdicts which we could only describe as perverse; but they were perverse verdicts of acquittal, and so, quite rightly, nobody 1543 minded. But that has not always been the case.
All of us in this House have recollections of at least two cases, and I think three, in the last three years in which criminal juries have tried matters which I believe would, had they been civil causes, have been tried by special juries—had they been tried by juries at all—where the juries have come to perverse verdicts of conviction when there was, in fact, no evidence to justify convictions, and where I assert and believe there would have been acquittals had the tribunals been special juries. One, as the House will recollect, was the Tarran case; and the House will also recollect the Weitzman case, where again the Court of Criminal Appeal held that there was absolutely no evidence against the accused.
§ Mr. Hogg
I do not want to be diverted from the point I am making. In the Tarran case the Court of Criminal Appeal spoke in the strongest possible terms. Both the Weitzman case and the Tarran case were cases where ordinary criminal juries brought in verdicts of guilty where it was subsequently held they had no business whatever to do so. I am not satisfied, therefore, that the Attorney-General's analogy with the criminal jury would yield the satisfactory result which he desires, first because the dice are loaded in favour of the accused, and secondly, because, as experience has shown, in prolonged and difficult cases of a kind suitable for special juries to try the criminal jury is not altogether the satisfactory tribunal which he pretends.
Therefore, I do not think that he has advanced any reason why this House should abolish the special jury in civil cases simply because it does not exist in criminal cases. Nor shall I be in the least tempted to draw an absurd conclusion in the opposite direction by being led into advocating the introduction of special juries in criminal cases, which I believe, for quite different reasons, would lead to undesirable complications of its own.
§ Mr. Paget (Northampton)
Surely in the cases to which the hon. Member referred the blame was with the judge. 1544 Where there is no evidence, it is the duty of the judge not to leave the question to the jury.
§ Mr. Hogg
The hon. and learned Member has, I think, completely missed the point. Obviously the learned judges were criticised by implication by the court for not withdrawing the matter from the juries altogether; but in neither case did the learned judge direct the jury to find a verdict of guilty; and in neither case could it be suggested that the judge had shown bias against the accused in any shape or form. I have cited the verdict of the jury as a sign that criminal juries are not altogether responsible bodies to deal with even complicated criminal cases. It cannot be denied that those cases are examples—both in their own way examples of great importance—where a criminal jury left to themselves—which is the only mistake the learned judges made in those cases—and after a careful exposition of the evidence, did what they had absolutely no business to do.
I cannot help thinking that many hon. Members opposite have been impressed in their own minds—indeed, how could they fail to have been impressed?—with the suggestion that there is in a special jury some element of political bias. If that were so, which I do not believe to be the case, it could easily be dealt with either under the existing rules or by some small modification of them. If it were to be suggested by either party that in a particular case, considerations of a political character were going to affect the issue, it might well be within the discretion of the Master, or whatever official directed how the case should be tried, to refuse whichever kind of jury it was which was suspected of bias; but in the great majority of cases, when one is dealing with the question whether there shall be a special jury or a common jury, one has no thought of political considerations entering into it.
Sometimes one is appearing for a plaintiff who has been badly injured. On the whole, I am more likely to be appearing for the poor man than for the rich man. I leave the rich man to the hon. and learned Member for North Hammersmith. There are cases when one thinks that a poor man may get better compensation from a special jury who think more largely in terms of money than a common jury would. In my opinion, at any rate, 1545 where injuries are really serious and earning capacity over a long period, as, for instance, for the rest of a working life, is under consideration, the special jury with its wider and more knowledgeable experience of money is the better tribunal.
§ Mr. Leslie Hale (Oldham)
Surely that is one of the main objections against the special jury—that one has two systems of justice available in the same court giving two rates of damages or two types of decision, and the decision whether one has one or the other depends on whether one can pay for it or not?
§ Mr. Hogg
The hon. Member is wrong. We have not two systems but 17 or 18, because it is equally well known that different judges adopt different methods of generosity in giving damages. If the hon. Member cares to see me afterwards, I will give him some examples of that. What I was seeking to say was that if it is a matter for judicial determination, as I suggest it should be, what the appropriate tribunal is for a particular case, that sort of difficulty ought to be got over, and I believe that in cases where injuries are really serious, a special jury is a better tribunal and more likely to arrive at the truth and at justice than a common jury. We are doing a bad service to those who are seriously injured in accidents by taking away from them what I regard as the advantage of having a special jury in cases appropriate to it.
Hon. Members are forgetting another class of case. Certainly in my experience—not as wide as that of some hon. Members opposite but going over some years now—there are very many cases in which both parties want a special jury because, although they are at difference with one another about everything else, they are at least agreed that having a special and not a common jury is the best way to try the case. They are to be deprived by the Bill of what would be their right. I cannot see why, if both parties want a special jury, they should be denied it. Although I accept what the Attorney-General said to me at the beginning of my remarks, I am convinced that hon. Members opposite have been biased by the result of two or three well-known special jury cases in the past two or three years and that on the whole they have failed to draw the correct moral from 1546 those cases, which is that some people ought to be rather slow in bringing actions about their reputation—in which I include as a class all those who come to the bar of politics on one side or the other—and they have failed to take into account that a special jury is a tribunal which has stood the test of time and experience with remarkably little criticism until these two or three cases came along; and then the criticisms came from those who are manifestly interested on the side of the losing party.
I submit to the House that this part of the Measure is analogous to what has been done by the Socialist majority in the last two years. Whenever anybody does what they do not like, whether it is the publicans or the Press or the Opposition or the House of Lords or even a special jury, then hon. Members clamour for its abolition because they have no love for freedom in this country and because they despise its institutions and hate its privileges.
§ 5.20 p.m.
§ Mr. Bowen (Cardigan)
I want to express my general approval and appreciation of the action of the Government in introducing this Measure. Before I make a few comments on matters which have been dealt with by the hon. Member for Hornchurch (Mr. Bing) and the hon. Member for Oxford (Mr. Hogg), I want to take the House back to the perhaps more mundane provisions of the Bill, which I believe to be of rather greater importance than the speeches of the last two hon. Members suggested. After all, special juries have played a very small part in the administration of both our criminal and civil justice for very many years, but the provisions in the Bill relating to payment for jury service will have a marked effect on the jury system. As one of those who sometimes, in common with many other hon. Members, aggravate the inconvenience caused to jurymen by being called for jury service, I should be churlish if I did not welcome the provisions in Part I relating to payment.
However, I feel that those provisions, and particularly those in Clause 1, might be improved in some small way. I am not at all happy about the provisions relating to compensation for loss of earnings. On the whole, it would be more satisfactory if the Bill provided for 1547 the payment to jurors, in all cases, of 10s. for not under four hours, and £1 for any period over, irrespective of the particular circumstances in which a juryman found himself. By introducing a provision of that kind we should certainly simplify matters from an administrative point of view. It would do away with the task, which in many cases will not be an easy one, of deciding whether a juryman qualifies for the allowance or not, and it would avoid any sense of grievance and friction with regard to particular jurymen some of whom might be given an allowance and some of whom might not. The additional cost would not be considerable, and it would result in a far smoother running of this part of the Bill.
Take the housewife. Normally when a housewife is called upon for jury service she will not be entitled to the 10s. or the £1. On the other hand, the fact that a housewife is called upon for jury service may well entail additional expenditure for her household. It might well be that the other members of the household have to take their meals out because of her absence, thus incurring additional expenditure. These cases would be covered if it were the general rule that jurymen should be paid for their services, irrespective of their profession.
I welcome the assurances of the Attorney-General about the self-employed person. When any question of allowances arises, there is always a danger of dealing only with the wage-earner and of forgetting the position, which may be equally serious, of the self-employed man. I share the anxiety of the hon. and learned Member for Daventry (Mr. Manningham-Buller) about the provisions concerning travelling and subsistence. In my constituency many jurymen cannot possibly travel to the assize town by public transport if they are to travel there on the same day as that on which the assize is held, so that the payment of the third-class railway fare certainly will not cover their actual travelling expenses.
I do not know exactly what the phrase "subsistence allowance" means. It has been suggested that the allowance will not exceed 5s. a day. In many assize towns in Wales it would certainly be a saving of public money if the regulations 1548 covered an allowance for expenses for staying the night at the assize town. Sometimes jurymen will be called for two or three days and if they have to travel backwards and forwards to their residence it will increase the amount of public money involved. I hope that when this matter is looked into again, provision will be made to cover all those circumstances. I have looked at a Bill containing provisions similar to these, which was before the House in 1921. A phrase used in that Bill was more likely to meet the circumstances arising in rural areas. It spoke oftravelling and other expenses reasonably and properly incurred by the carrying out of jury service.It might be of assistance if a change of that kind could be made.
While the introduction of payment for jurors is clearly an abundantly desirable step, there are one or two dangers about it and something should be done to safeguard ourselves. Is there not a danger of the sheriff or the clerk of the peace being tempted, when selecting jurors, to choose those who are not likely to impose substantial expenses on the county or the Treasury? I feel that there is some danger in that respect. We may get certain areas near assize towns selected for the drawing of jurymen. Are we to have the Treasury or the county council asserting themselves and asking that fewer jurymen should be called for service in order to keep down expenses? If we do, the administration of the business of the court may be hampered by the absence of an adequate number of jurymen to carry on the work.
§ Mr. Bowen
It is a question of balance. One can imagine many assize courts and quarter sessions where there may be only one criminal case for trial and if enough jurymen are not there, probably the case has to go over to the next day, and the judge may have to be at another assize the next day. I agree that on occasions far too many jurymen are called, but the proper judge of the number of jurymen to be called is certainly not the Treasury.
§ Mr. Bowen
Say, for the sake of argument, that in order to save costs 12 jurymen are called and it is then found that some of them are disqualified. For instance, where a jury is present and a man is put up about whose character they have heard something, there has to be a new set of jurymen to deal with the matter. The hon. Member knows well that complications arise in this way. All I feel is that nothing should be done to hamper the ordinary machinery.
There is a danger, too, in regard to civil cases. The learned Attorney talked about the fundamental right of trial by jury. Of course there is a fundamental right in criminal cases but, as I understand it, there is a complete discretion in civil actions, a discretion which unfortunately today is exercised rather against the granting of juries. I hope the fact that some expense will be incurred now for common jurymen in civil cases, will not in any way influence the exercise of that discretion. Certainly, costs of litigation could be reduced in many ways, but this is not a way which would be for the ultimate public good. Equally, of course, in criminal cases, it would be undesirable if the question of the expenditure of public money is to influence magistrates as to whether they commit or not.
I am not altogether happy about the provisions relating to payment, though it is a small point. As I understand it, the method to be employed is that the clerk of assize will certify the payment which will be made at the assize by the treasurer, or someone acting on his behalf, for the authority liable to pay. In many cases, that will mean that an official of the council has to spend all the time the assize is sitting in carrying out this work, which probably will not take more than 15 or 20 minutes. Some people do not realise that, in many instances, the offices of the authority which is paying may be in quite a different place from that in which the assize is held. For example, in my own county the County Treasurer's offices are 30 miles away from where the assize is held, and it seems a waste of the time of another official to be present during the whole of the assize to carry out what is a small administra- 1550 tive matter. I notice again that in the 1921 Act provision was made for payment by the officers of the court. While that puts additional duties on them, it would eliminate a considerable wastage of the time of a local government official.
I share the view expressed by the learned Attorney in regard to special juries, although I find it difficult to reconcile his statement that in doing away with the special juries we are doing away with an anachronism, with the fact that at the same time we are not proposing to do anything at all about the abolition of the property qualification for a common jury. If a special jury is an anachronism, surely the continuance of a property qualification for a common jury is an equal anachronism? I accepted the premise of the hon. Member for Oxford (Mr. Hogg), but I thought he went from a right premise to a wrong conclusion; that is to say, I agreed with him when he extolled the virtues of the jury as judges of fact, and I share with him the view that a far greater use should be made of juries in determining fact in civil cases, but to suggest that the present differentiation between common and special juries will give a better fact-finding tribunal in civil cases, is one with which I certainly do not agree.
If the hon. Member had put his case on the ground that there might be an argument in certain types of civil cases for having people with more specialised experience of the world than the ordinary rank and file, there might be something in that, but the suggestion that that is achieved today by the difference in qualifications in those required for a common jury and a special jury does not bear examination. I hope the learned Attorney-General will think again about the property qualification for it would be in accordance with the spirit of this Bill if that substantial change were made. In my constituency, for example, which is of quite a different type from that of the hon. Member for Hornchurch (Mr. Bing), the same result is produced. The number of people qualified for common jury service is very limited and the result is that the burden is inflicted on a far more limited class of people than it should be.
My observation of common juries is that one rarely today gets young people on juries, that is, people under 35. That is most unfortunate. Service on a jury 1551 by young people might well have a salutary effect upon them. The fact that they have to play a part in the administration of justice would bring to them a consciousness of their public duty. When young people are being dealt with, as they mostly are in our quarter sessions today, it is unsatisfactory that the jury are all drawn from a certain age group in the community. The learned Attorney talked about people's courts and the special selection of people. In fact that is what we are doing today; it is a special selection of people, based on a property qualification.
To sum up, I think there might be some improvement with regard to the payment of jury service. I hope that the Government will look again at the property qualification of common juries. Whether or not a case could be made out for a different jury in civil cases, drawn with some other qualification, I do not know, but certainly the differentiation should not be on the basis on which special and common juries are differentiated today.
§ 5.39 p.m.
§ Mr. Pritt (Hammersmith, North)
I wish to reply a little to the hon. and not yet learned Member for Oxford (Mr. Hogg) who claimed to be unaware of his own personal bias and acclaimed the virtue of objectivity. I think objectivity is not a virtue. I have never known anybody devoid of personal bias and, quite frankly, I hope I never shall, because I am sure such persons would be extremely dull. Certainly I make no such claim myself; I am biased in favour of the things in which I believe.
The hon. Member talked about a special jury giving better justice and better consideration. That is a typical example of perfectly natural upper-middle class bias, leading him to believe that people like himself are more intelligent than the working class. There never was a greater fallacy in the history of man. Of course it is not only a question of qualities, of actual quickness of thought or repartee. I remember one example from what was one of the best juries before whom I ever appeared. On the 17th day of the case I heard two of the jurymen exchanging notes outside the court. One said, "I have not the remotest idea of what this case is about, have you?" and the other said, "No."
§ Mr. Pritt
It may be, but it proves my point because they had eminent middle-class counsel on both sides. There is something much more serious than just a question of the quality or the quickness of mind, namely, the political bias. The hon. Member said that there are purely theoretical political questions and that political bias has nothing to do with it. I suppose I can claim in this country alone, to have appeared in more political cases than almost any other member of the Bar. I remember the hon. Member for Hornchurch (Mr. Bing) and myself going to one of the Crown Colonies in which, before I got there, he had succeeded in persuading the court that it was so biased that it could not sit—certainly one of the most remarkable triumphs of his courage and sincerity—and he was absolutely right.
We never see a working-class jury. It just does not happen. Every case in which the working-classes are involved—which means some of the civil cases and nine-tenths of the criminal cases, because your criminal law is a middle-class law and a criminal case is a case in which one side is trying the other. I remember a case in Bristol some years ago where an ordinary working-class person was charged with sedition. I shall not give the name of the learned judge, but he was quite confident that he would get a conviction. I will not say what he felt, although I could see what he felt, when there was an acquittal. The explanation was that by some strange mischance of the rise in the value of property, there was a working-class jury which, naturally and properly, acquitted the man.
There has been reference to one well known litigant who is also well known as a political philosopher. He has often spoken and written of the unconscious major premise. The ordinary middle-class juryman, like the extraordinary hon. Member for Oxford, quite unconsciously is biased. He suffers from an unconscious major premise. The same philosopher wrote that if you live in a bourgeois country you get bourgeois justice, while if you live in a Socialist country you get Socialist justice. We want real justice. We cannot get it by getting middle-class juries to try nine-tenths of the population who are not middle-class. That is 1553 why I hope that the strongly held but moderately expressed views which have come and will come from a good many other hon. Members will have their effect on the Attorney-General and on the Government, and that we shall not merely abolish special juries, but also the property qualification.
The hon. Member for Oxford gave us a longish and quite interesting lecture on the merits of the jury system. I shall not discuss that because it is only barely relevant to the question of whether, since we have juries, we should have them without a property qualification and, in particular, should abolish special juries. I was a little puzzled by his explanation that it did not really matter that juries in criminal cases behaved, as he thought, rather stupidly, because they generally acquitted the guilty, and that did not matter—I think it does. He then went on to illustrate the proposition that they wrongly acquit by mentioning two notorious cases in which they convicted when there was no evidence. I am not quite sure how far that argument goes.
The hon. Member for Cardigan (Mr. Bowen) wants to make quite sure that the payment to jurors is reasonably generous. There is nothing with which I could possibly agree more. I have wanted to move actively to get real general working-class qualifications for jurors for years but I have always been held back by the practical consideration—certainly in a constituency of the size of his, and even in a small constituency—that to take a working-class man away and let him lose two or three days' pay, and let him pay for his own journeys and food and give him, I think, a shilling is impossible; to put it at its lowest, I should not be very popular with the working-class if I did that. Therefore, I have been waiting patiently for the arrival of some form of payment so that I can do this. I agree that it ought to be generous.
The hon. Member for Cardigan expressed a little anxiety whether county councils and similar bodies would be inclined to see if they could get their juries "on the cheap" by selecting them from the nearest areas. I doubt whether they are as mean as all that. But to select a jury on the principle that they are nearest the court is at any rate a great deal better than what has often happened, that is, to select them on the principle 1554 that they are nearest to the Government's desire for convictions.
I venture to question the anxiety of the hon. Gentleman about keeping a local government servant hanging about all the week in order to make payments to the jury. Is it not a fact that somebody has to be there all the week to make payments to witnesses and the small payments made in some cases to the prosecutors? If so, could not the same person also pay the jury? This is a small point but one worthy of consideration. On the main point, of course, I support the Bill. I am anxious to see the special jury go, and to have the property qualification abolished. As to the City of London special jury, we have almost got rid of the City of London and I dare say we shall get rid of its jury soon.
§ 5.48 p.m.
§ Mr. Marlowe (Brighton)
The hon. and learned Member for North Hammersmith (Mr. Pritt) was good enough to admit to some bias in this matter. I suppose none of us would be in any doubt about that. He frankly admitted that in many matters he had a political bias. His bias in favour of things which emanate from the Soviet Union is well known. I have little doubt that if it rested with the hon. and learned Gentleman he would prefer to substitute in this country a system of justice which more approached the Soviet system than that which now exists here. I do not know what juries they have in the Soviet Union—
§ Mr. Marlowe
I was merely informing the House, as I felt bound to do, that I would bow to the hon. and learned Member in his knowledge of what system of justice operates under the Soviet regime. I confess I do not know. But the hon. and learned Member does and might prefer to institute that system here. The hon. and learned Gentleman, together with the hon. Member for Hornchurch (Mr. Bing), made it quite clear that they approached this matter from the political end. That is a grave mistake. This is not a political question at all.
§ Mr. Marlowe
I am reinforced in my view by the hon. Gentleman opposite who 1555 gives a hollow laugh, thereby making it quite clear that he endorses the view that this is a political question.
§ Mr. Marlowe
The hon. Gentleman knows perfectly well that I was stating my view that this is not a political question. We are dealing with the question of what is the appropriate type of jury to try certain cases in the courts. That appears to have no relation whatever to politics. How can the hon. Member for Oldham (Mr. Hale) suggest, for instance, that a Factory Act case, a running-down case or, indeed, many libel and slander cases which are not political, necessarily have, in fact, a political implication of their own? There are an enormous number of cases in which politics do not enter into one side or the other.
§ Mr. Marlowe
Of course they do not. If the hon. and learned Member for Northampton (Mr. Paget) has that feeling himself when he enters a court, it may have a considerable bearing on the result.
§ Mr. Marlowe
Obviously there are cases where politics enter, such as, for instance, those in which sometimes hon. Gentlemen or an hon. Lady opposite are plaintiffs. Of course politics enter into such cases but the great majority of cases are not in the least concerned with politics. It is for the great majority of both cases that we must legislate.
§ Mr. Marlowe
The hon. Member for Hornchurch, if I understood him aright, sought to deride the case for the jury altogether on any property qualification by certain figures which he gave from his own constituency. It is not the fault of this House if a Socialist majority in his division has not provided sufficient 1556 housing accommodation to give the proper property qualification.
The case with which we are concerned relates really to two matters: one, whether jurors should receive payment, and the other, whether we should continue the distinction between a common and a special jury. I want to say at once that I am not myself so enthusiastic as many hon. Members in all parts of the House appear to be on the question of payment. I suppose we have arrived at the time when, obviously, expenses must be covered. I do not think anybody would dispute that. But I am not at all sure that it is necessary to go to the extent of paying people for doing a public function which for generations has been part of the voluntary system of this country. I abhor the general disappearance of the voluntary system in all public work. This trend, unfortunately, is spreading. I have noticed that it comes increasingly with the age of Socialism and the materialism which follows with Socialism.
§ Mr. Marlowe
Perhaps the hon. Gentleman did not hear what I said about covering people's expenses. Nobody would suggest that anything which was paid to a jury before, has done more than cover their expenses. We are now coming to the point where, probably, we shall more than cover their expenses by meting out a reward in addition.
§ Mr. Silverman
I was about to query the use of the word "voluntary." Jury service in this country may have been done for nothing, but, surely, it was never voluntary?
§ Mr. Marlowe
I meant "voluntary" not in the sense that they attended of their own free will, because they were, of course, called to attend on juries, but that they did not receive payment other than a nominal sum towards their expenses.
I want to devote my next remarks to the question of the abolition of special juries. I cannot accept the challenge of the right hon. and learned Gentleman who adopted the technique of saying that we on this side must make out the case. It is he who is proposing abolition. It is hon. Gentlemen opposite who are putting 1557 up the case; it is for them to establish their case, not for us to establish the contrary. I accept the proposition of the Lord President of the Council who has taken that view more than once on nationalisation, when he has said that those who are proposing it have the onus of making out the case. Similarly, those who are making out the case for the abolition of the special jury have upon them the onus of establishing that it is the right thing to do.
It is certainly a remarkable coincidence that there has been no pressure for the abolition of special juries until certain hon. Gentlemen opposite, or those associated with them, had unfortunate incidents in the courts. The right hon. and learned Gentleman nods his head and I accept, of course, what he said before, that it had been his personal view for many years—
§ Mr. Marlowe
May I finish this first? He said it had been his personal view for many years; what I said was that there had been no pressure until, over the last two or three years, these particular cases took place.
§ The Attorney-General
I rose only in case the OFFICIAL REPORT should convey some misapprehension. I did not nod my head. I shook my head and I did so because this matter was actively canvassed over 20 years ago when a departmental committee considered it.
§ Mr. Marlowe
So that there should be no misunderstanding I will, if the right hon. and learned Gentleman wishes it, mention that he was indicating a negative by some movement of his head.
The position as I understand it, and as I assert again, is that there has been no real pressure for this change in the law until these cases took place in which the party opposite have been concerned.
§ Mr. Marlowe
I do not propose to give way. I am not unreasonable in declining to do so, for I do not want to detain the House longer than is necessary.
I come now to such case as the right hon. and learned Gentleman tried to 1558 make. He was somewhat misleading in the way in which he put it. More than once he referred to this matter as affecting rich and poor. Anyone who did not know how these things work might well be left with the impression that whether or not one gets a special jury is a question of whether one is rich or poor. Of course, that is not so. Whether or not a special jury is granted in a case is a question which is decided by the appropriate authority, the Master. If necessary, an appeal may be made to a judge, so that the question—
§ Mr. Marlowe
—is decided not by the poverty or wealth of the litigant, but by the litigants themselves. If there is a dispute between them the matter is decided by the competent authority. The hon. Gentleman knows that perfectly well.
§ Mr. Marlowe
The hon. Gentleman knows perfectly well that either party may apply for a special jury and that both sides may be in agreement. In that case there will be no difficulty. But if one side wants a special jury and the other side does not, they are free to go before the Master for a decision.
§ Mr. Marlowe
I am not going to argue here what takes place on a summons of that kind. I have merely stated the general proposition that the parties have the right to go before the Master. It was somewhat misleading to convey the impression that it is a matter of wealth. It is clear that what the right hon. and learned Gentleman is trying to do by this Bill is to reduce all to a common standard, the standard of the common jury. That is regrettable. So far as it is necessary for us to make out a case for the retention of the special jury, I should put it in these terms. It is a question of obtaining trial by peers—which means, of course, trial by those of equal status.
It is obviously impossible to categorise every possible status in which different people live, but it is possible to make a broad distinction between those cases which are more suitable to a common jury and those which are more suitable to a special jury. I am not going to 1559 elaborate that, because my hon. Friend the Member for Oxford City (Mr. Hogg) dealt with it adequately. But there are certain cases in which, by reason of the difference of standard of living, a special jury are likely to give greater compensation than a common jury is likely to give. Many hon. Members opposite must in the past have been interested in cases in which they were only too glad that special juries gave larger compensation than otherwise would have been the case.
I am sorry that the hon. and learned Member for North Hammersmith has gone out of the Chamber, because I should have liked to ask him in how many cases he has advised a special jury—
§ Mr. Marlowe
I am sorry I cannot give way again. I am willing to wager that the hon. and learned Member for North Hammersmith has often advised a special jury for the very reason which I am putting forward. If the right and learned Gentleman really believes there is a case for this, he should establish it, rather than throw upon us the onus of establishing the opposite. This system has worked with complete satisfaction for generations and there has never been any real complaint. I hold the jury in high regard and, broadly speaking, I have never known a jury make a mistake. They always arrive at a true, commonsense, answer in the end. There may be technical reasons for disagreeing with them on appeal sometimes and, of course, there are the prejudices which all people have in thinking that the jury have not arrived at correct views. But, if it is possible to take an unbiased view, broadly speaking, the jury always arrive at the right commonsense answer. Therefore, I should like to see them retained, and retained on the same basis as they have worked in the past. This Bill is a piece of class prejudice, introduced because hon. Members opposite have suffered because they went to law when they should not have gone to law.
§ 6.2 p.m.
§ Mrs. Braddock (Liverpool, Exchange)
The remarks which I wish to make are, perhaps, not the remarks I might have made in different circumstances. Had it not been that I have been in difficulties 1560 about the decision of a special jury and that a case is in the hands of the Court of Appeal, I might have had something to say very different from what I say now, or, at any rate, something very much stronger.
I appreciate the Bill and I think it will have the support of the majority of right-thinking people throughout the country. I believe the special jury, in the sense in which the Attorney-General spoke of it, is an anachronism which was introduced by the ruling class of this country to protect their property. As far as my personal position is concerned, the fact that they are to be abolished gives me a great amount of satisfaction. I wish to support the comments of my hon. Friend the Member for Hornchurch (Mr. Bing) on the question of the abolition of the property qualification for jurors. The hon. and learned Member for Brighton (Mr. Marlowe) said he never knew a jury to make a mistake. I have been personally interested where juries have made mistakes and not special juries—
§ Mr. Marlowe
Would the hon. Lady agree that whether or not they have made a mistake is always a matter of opinion?
§ Mrs. Braddock
If it were not a matter of opinion there would not be quite so many decisions going to courts of appeal and courts of appeal would not arrive at different decisions in many instances. I remember a case in 1932 in which my husband was concerned, where a jury found, on evidence on which sensible working-class people would never have found, that he was actually in a place where he never was. Arising out of that, a sentence of six months imprisonment was enforced. On appeal, the Lord Chief Justice completely changed the decision which was given. That case cost a lot of money and a lot of personal difficulty.
Juries are not always drawn from the areas in which the cases arise and they have not the atmosphere of those areas, nor do they know the circumstances in which the case arose. I do not know how the list from which common juries are selected is prepared. The responsibility for picking out the people who will serve on the juries is left completely to the clerk of the court. There is something wrong with that method. There should be some method whereby they are selected in some other way than by 1561 leaving the selection to the responsibility of the clerk of the court. Those are matters which I believe should be dealt with in a Bill of this sort.
If we are to change the method of dealing with trial by jury, we should not play about with it in a small way. These Measures do not come to the House very often. It is usually discovered that another generation entirely alters fundamental principles in relation to law, and this Bill alters the position which has existed over the period since 1825. When making serious alterations we ought to deal with the position entirely and alter the whole position where difficulties have been found. In working-class areas under the present law not one person can be starred on the register to be a juror because of the property qualification. That means that juries come from residential areas, in some instances a few miles, and in some instances 10 or 15 miles distant from where an action takes place. When a person comes before a jury for some misdemeanour it is necessary to have the atmosphere of the area in which it happened. That is particularly important in political cases. It is very well known, and ought to be stated, that there is no justice of any sort in this country in certain types of political cases which come before juries. That is a definite statement to make and I think it can be proved by looking at the cases which have been dealt with in relation to political matters.
§ Mr. Deputy-Speaker (Major Milner)
I do not think the hon. Lady is making an attack on a particular judge, nor do I think there is any objection to what she is saying from a procedural point of view.
§ Mrs. Braddock
I am expressing an opinion. I thought that is what we were expected to do, in order that the feelings of people who have been concerned with this sort of thing and have watched the situation should be represented. I make it my business whenever there is an assize in my city, to find some time to go into the courts to listen and to watch the way in which things are being done. It would 1562 be useful if lots of other people did so. It is important, if people are taking responsibility for expressing opinions and suggesting that there should be alterations, that they should make it their business to listen and watch and find out the methods used in dealing with questions of this sort.
For instance, an hon. and learned Member opposite may say, "You always have the opportunity of objecting to a person on a jury. You can always say, "I object to such and such a person.'" But in what circumstances can one object? In certain circumstances, for instance, where there have been struggles to obtain better conditions, or there have been unemployed demonstrations where the police have used batons and people have been arrested, would it be in order in such political cases for the accused to say, "I object to the whole of the members of the jury because I believe they are politically biased in relation to what they have to try"? One may pick out individuals and say one objects, but it is almost impossible in a political case, whether there is a special or a common jury, to be able to get a case dealt with properly and rightly. I am making these statements deliberately because I have had something to do with them and I know what I am talking about. It is almost impossible to get a correct verdict from a jury selected in the circumstances in which either special or common juries are selected today.
I hope to have the opportunity of supporting my hon. Friend the Member for Hornchurch in the Amendment he has suggested. I think it would be very much easier and less complicated if every able bodied person between 21 and 65 who has not the disqualification of having been convicted, or is not ineligible for some other reason could be selected for jury service. Then and then only would we get a cross-section of opinion throughout the country. In listening to cases I have been amazed that there have been so few juries which have disagreed. If there had been a different way of selecting them and providing a cross-section of opinion, there would have been many more disagreements in juries and fewer juries which were unanimous in certain decisions. It is quite obvious, in many instances, that people who have taken an entirely different view, on a jury very often take the majority view, and do 1563 not express their own opinion or say that they disagree with the opinion expressed.
Many alterations should be made and the two most important are a complete abandonment of the property qualifications for serving on a jury and a completely new and more democratic method of selecting from the lists as jurors, people who will sit on particular cases. Every hon. Member would say that anything that is secret is always open to some sort of suspicion. I have never been able to find out how names are selected. Perhaps whoever replies to the Debate will tell us how they are selected for a common or special jury. Is it a fact, as has been suggested to me, that in a certain locality there is a list from which the clerk of the court picks out particular names of persons who, in his opinion, ought to sit on the jury? If that is the position it is time it was changed; indeed, the time for its change is overdue. I hope that when we are considering the administration of this Bill the question of the method of selection and the types of juries which up to now have been selected to deal with particular cases will be looked into and that the whole administrative system will be altered.
§ 6.16 p.m.
§ Mr. Leslie Hale (Oldham)
I am sorry the Attorney-General has had the somewhat unusual experience of having nothing but encomiums lavished upon him in connection with this Bill. Although he cannot think that he has had a great deal of assistance from the benches opposite, there has not been a great deal of criticism. In my view the Bill is like the curate's egg, in that it has its satisfactory parts, though I regret that this important subject has been brought before the House in a Bill which merely deals with one aspect of it and that we are not having at this stage a full inquiry into aspects of the jury system which are of great importance. There is the right of challenge, which is something, the right of remuneration, and many controversial aspects.
The hon. Member for Oxford (Mr. Hogg) made a speech which began with the right premises and finished, as the hon. Member for Cardigan (Mr. Bowen) has said, with the wrong conclusions. It finished with something which is becoming endemic with the hon. Member—this 1564 device of the portable soapbox or peripatetic peroration. He finishes each speech with two or three minutes of venom which rather regrettably dissipates the value of his previous remarks. The hon. and learned Member for Brighton (Mr. Marlowe) divided his speech into two parts. He spoke first about what he called politics, which he regarded as something partisan and controversial and something to be deprecated. When we on this side of the House use the term, we mean matters of sociology, ethics, idealism and justice. It is natural that when he got to this rather ominous word he should have used it as would a schoolboy of about fourteen years of age who has not been fully trained in these matters. I shall not deal with his speech in that connection. I did quarrel with his free legal advice to the House, which was of such inaccuracy that I beg him not to give any more until he has referred to one of the elementary text books on the matter such as Jones's Solicitor's Clerk, which deals with this matter very thoroughly and which is exceedingly cheap.
The position so far as the special jury is concerned is that the Master has no discretion. Once an application is made and it is decided that a case can be decided by a special jury either party can, by paying 13 guineas, demand a special jury. There has been argument as to whether a special jury is good for you or not. It depends on the circumstances. The hon. Member for Oxford offered to give me the benefit of his long experience with regard to judges, and quoted examples of their idiosyncracies. As the cases in which I have been engaged in assizes run into thousands I am not without some appreciation of the fact that His Majesty's justices do not run at 100 per cent. level. There are differences of temperament, object and outlook which might qualify their views on particular matters, and one expects little more.
Roughly speaking, if one is acting for a plaintiff at the assizes in a case in which one is certain of a verdict but there is a question of damages, one asks for a special jury. If one is appearing for an insurance company in which the plaintiff is a pedestrian and the defendant a motorist the insurance company asks for a special jury. It is quite a standard line for them to take, that for thirteen guineas 1565 they can get a jury of motorists who will strongly disapprove of a pedestrian walking across a pedestrian crossing at night without wearing a rear light. I have acted on both sides in this sort of case and that is the way it generally works. It is not a desirable or a proper system.
I believe in the jury much more strongly than the hon. Member for Oxford expressed himself, although he came to a hesitant affirmative in the sense that we ought to have the jury. I believe it to be a fundamental bulwark of our constitution. My hon. Friend the Member for the Exchange Division of Liverpool (Mrs. Braddock) has given the result of her own personal observations, experiences and reminiscences so far as political cases are concerned. I can remember 1926. I can remember the time when there was not much justice in Parliament, when special regulations were being rushed out to deal with the special situation, and if there was any impartial justice being administered in the country at that time, I was unfortunate in that I was not able to see it. I have great respect for our courts and I would not say one word to weaken them but it is inevitable that, as has been said, we as individuals are biased by our approach to the matter. I was appearing today in a case between employer and workman. The employer happened to be the National Coal Board. I do not gather that either side receded from the opinions they went to the court to express. The fact that a court gives a decision never convinces a man he was necessarily wrong.
There must be a new approach to this matter. We must have one system and only one of dealing with these matters. We are not now in the Dark Ages, when there was an educated class and a class which was incapable of appreciating matters of fact. We have an educated proletariat and a healthy one, which is absolutely competent to take on this duty. The fundamental of the jury is that we get 12 ordinary people, and if they all come to the same conclusion it is a pretty sane conclusion. It is the unanimity of the jury rather than its individual excellence, that constitutes its importance.
I repeat that the jury is a fundamental bulwark of our constitution. The whole story of our political progress is 1566 made up of a few individual juries who stood in their box and said, "We will stand for the right, even if you wrongly imprison us"—the people who tried Nicholas Throgmorton and William Penn down to the political trials of the 1790's and the 1820's. It was the jury which time after time stood as the one bulwark. If one reads the reminiscences afterwards written by famous judges, one will see that in those days the establishment of a complete political dictatorship in this country was thwarted only by the independence and courage of juries.
§ Mr. Hogg
I think the hon. Member did me an injustice. I was not being in the least hesitant about a jury for civil or criminal procedings. I added some qualifications to my enthusiasm for the civil jury, qualifications which I think upon reflection the hon. Member would recognise are fairly widely shared.
§ Mr. Hale
I am obliged to the hon. Member, and I quite agree that his intervention is perfectly justified and correct. He was speaking about the civil jury.
As the hon. Member for Cardigan has said, it is very regrettable that although there has been a restoration of the privileges of summoning a jury, which were abolished in the war period, the exercise of discretion is now much more limited. It is much more difficult to get a jury in a civil case than it was a few years ago. It is exceedingly important that one should be able to have a jury in a civil case. As I have said, I believe it is exceedingly important that if there is to be a jury, it must be a jury of the community.
This matter is important from another and completely different point of view. I believe that the right, obligation and duty to partake in our administration of justice is fundamental. Everyone ought to partake in it and everyone should have some limited training to do it. In every school there should be a few lectures and talks given by competent people on the fundamental principles of justice and on the fundamental principles upon which justice should be provided. I say that, because the belief in the independence, in the integrity, in the essential 1567 rightness of our courts of law is a fundamental principle which I find is shared by all Englishmen except those who have been there. Everyone talks about our wonderful system of justice until they find themselves in the dock, in the witness box or as a litigant. I get complaints from people who should be taking part in shaping these matters saying, "Is that how it goes?" when they go to court themselves. Later they think that they were the victim of a special injustice or an arbitrary procedure, and within a few months they are back to their old theory that the administration of justice has nothing but commendable features.
Therefore, I think it right that everybody should have the opportunity of partaking in the administration of justice, and particularly the opportunity of serving on a jury—everyone apart from the special exceptions which exist. I am not sure, without looking at those exceptions, whether I would agree to an exception being made in their case. There may be reasons why, for example, a professional lawyer may not serve on a jury because he may have a connection with cases.
§ Mr. Hale
I have never found it difficult to get agreement in my own section of the profession. The unanimity of the Law Society in these days commands the respect and envy of everybody.
I wish to emphasise what the hon. Member for Cardigan said to the effect that if we are to have a system of justice in which the property qualification is abolished, and we say that every adult should be liable to serve on a jury and have a duty to serve on a jury, we have to see that persons called upon are adequately remunerated for it. We cannot worry about this principle for the sake of a few shillings. I remember going home with the foreman of the jury who had acquitted my client after my client had, in my absence, pleaded guilty. The plea was altered, on advice, to one of not guilty. When I expressed to the foreman of the jury my surprise at the acquittal in view of the circumstances he said "My boy, we were sitting until the last 1568 thing at night, and the last train for Coalville left at 9.5."
If the jury are to be summoned they should be summoned without any financial worries being caused to them. As a famous judge said, it is not really right that a man should be tried for his life by a chemist whose thoughts are concerned as to whether his errand boy is dispensing poisons in his absence.
§ Mr. Hale
No, but by giving him a sufficient allowance for him to pay someone to take his place while he is away. The principle is the same for the housewife as for the chemist. Further, jurors who are summoned to a distant town should have adequate lodging provided as a matter of course.
There is only one other point I wish to raise. I am sorry to say to the Attorney-General as a Lancashire Member that I line up very strongly with the hon. and learned Member for Daventry (Mr. Manningham-Buller) in saying that there is no ground for the proposition that the City of London knows much about commerce. It knows a lot about finance, something about insurance and a little about shipping. But the centre of commerce in the country is Manchester, and has been for a long time.
§ Mr. Hale
I am anxious not to direct the whole searchlight of public inquiry upon my right hon. and learned Friend's own failure in respect of Liverpool. I did not mention Liverpool, which has certain knowledge also. There is no warrant for this proposition that there shall be a special jury in the City of London which should not operate anywhere else. Nevertheless this is a point of real difficulty. Everybody knows that there are cases of such complexity that, generally speaking, as the hon. and learned Gentleman for Hammersmith said, nobody understands them from start to finish. Very often the solicitor's clerk starts off with a fair comprehension of the general principles involved, but after that it gets out of hand, and goes haywire, and one is left in a difficulty. It may be that there is something in the theory that a jury of a specially skilled 1569 type may be likely to give a more profound or a more detailed decision than a common jury. I do not know, but I doubt it. But there cannot be any argument along those lines for abolishing a special jury itself on the ground that it gives a special privilege in civil cases which is not available in criminal cases. There cannot be an argument even in the City of London, for having a special jury to try the question of whether insurance should be paid on a sunken ship and an ordinary jury to try the man who sunk it, for the offence of sinking it.
In my view the whole force of the argument and the whole weight of the argument is against retaining any special jury at all, but if we are to retain a sort of special jury for commercial cases, and I am against it, clearly Manchester has just as good a claim as the City of London, and could produce a much better jury. On the whole I think the balance of the argument is against retaining this special jury in the City of London at all. I think that it ought to go. Subject to that, and to the comments I have made, I am prepared to give a hesitant blessing to this Bill on its Second Reading.
§ 6.32 p.m.
§ Mr. Paget (Northampton)
The first point I would like to make is that it is quite unreal and quite hypocritical to think or imagine that politics do not enter into the administration of justice. One of the greatest political instruments of history has been the jury. It has been the mainstay of our Constitution. It has maintained the civil liberty of our people and has proved the most effective instrument yet discovered by political man for that purpose. That is one aspect of the matter.
The other aspect is this. When we, or any of us, take our minds to judgment we take a mind that has been conditioned by our environment, by our experiences, by, in a word, our prejudices. We take those prejudices with us to judgment and the more we are unconscious of those prejudices, the more dangerous are we as judges. That is why I feel that the hon. Member for Oxford (Mr. Hogg) would be such a terrifying judge—because he seems to imagine that he is unprejudiced.
I have defended in a very large number of political cases all over the country 1570 and the advice which I used to give to my clients, generally political agitators, was this: "Try to elect, if you can get it, for a trial by a rural bench, because there you will have people who are conscious of their political prejudice and who will therefore try and eliminate it. You will get a far better trial from a Tory rural bench than you will get from any jury, because, in a sense, they will try to lean over backwards." That is my experience, and that is the advice which I have very often given.
I am quite convinced that in the class of jury, that is the common jury, which is drawn from a very small section of the community in the lower middle classes, it is not possible in England today to get a fair and unprejudiced trial. I will return to that point in a moment, but I wish to say a word or two with regard to the arguments advanced by the hon. Member for Oxford. He said that, from the pragmatic point of view, one would not get such a good jury if one abolished this system of special juries; that there were cases where there was bulky correspondence which it required a skilled and trained man to understand; that evidence went on for long days; that it was difficult to remember. Does the hon. Member really imagine that a man understands bulky correspondence better because he has 15 windows in his house instead of 14? Because that is the distinction between the two.
§ Mr. Paget
What I am saying is this, that the distinction between the special jury and the common jury is not the distinction of education; it is not the distinction of knowledge; it is not a distinction of experience; it is simply a distinction as to the size of the house they happen to live in. The difference between the two in their intelligence or capacity to understand I should have thought was none at all.
Here I personally disagree with the hon. Member for Oldham (Mr. Hale). The City of London special jury sitting 1571 in the commercial court is a very different pair of shoes. The City of London jury may, technically, have a property qualification—I am not quite certain whether it does—but it is in fact a panel of experts. The people who are put on that City of London list—I do not know by whom—are selected experts, all understanding the particular commercial issues which they will be called upon to try. They have no relation or similarity at all to the ordinary special jury and, again, on the pragmatic test, I think that they have done admirable service, and I am very glad to see them retained. I am not against the principle of a special jury. I think special juries for certain types of cases would be very valuable. What I am against, and what I say is utterly indefensible, is that the distinction between a special jury and a common jury—between the sheep and the goats—should be the house they live in. That is quite fantastic.
With regard to the advantages and disadvantages of trial by jury, I believe that in civil actions they are fairly equally balanced. I would say that the main advantage of trial by jury is that a jury has to keep its mouth shut until it has heard all the evidence. A judge, on the other hand, has to control the trial as well as decide it at the end. It is extremely difficult for a judge who has this dual function not to commit himself, and in his own mind commit himself, at a stage before he has heard all the evidence. A jury which has to keep its mouth shut until it has heard the lot is therefore, I think, generally in a rather better position to judge.
As against that, it means that in a lot of cases the time of a number of people is wasted on a comparatively trivial issue and a case is made to last very much longer. Therefore I think that the division as to the type of case in which we get a jury and the type of case in which we do not is not a bad one—again applying this purely pragmatic test which the hon. Member for Oxford asks us to apply. Today, largely speaking, civil juries are libel juries, and I would make the point that it is very important not only that justice should be done, but that justice should seem to be done. With a special jury, to a very large number of people, 1572 generally litigants themselves, it does not seem that justice is done in libel actions which involve a political issue.
Where there is a newspaper involved in a libel action which has a political aspect, and the defendant belongs to my party or parties to the left of my party, it is quite certain that that newspaper will ask for a special jury. It is equally quite certain that that plaintiff will not ask for a special jury. Why is this? Because the newspaper believes that it will get a political advantage from that special jury and the plaintiff thinks that he will get a political disadvantage. I am not saying for a moment that they are right or wrong, but that is what they believe. Personally, I think they are wrong. I believe that the real hard core of reaction lies in the sort of property class from which the common jury is called. But most people think that a special jury provides a political advantage and justice does not appear to be done.
Having said that with regard to the special jury, I would turn to the common jury which also has a property qualification which puts outside about 95 per cent. of the community. Only about 5 per cent. of the community qualify for the jury panel. As I understand it, the whole principle of trial by jury is that a man should be tried by his peers, by people brought haphazard from the community as a whole of which he is a member; people who should be a fair cross-section of that community. People who are drawn from a mere 5 per cent. of the community, a 5 per cent. set aside because of a property qualification, are not the ordinary man's peers. They are not representative of the general run of the community.
I would quote some figures from the Borough of Paddington. If we take a working-class ward, where people are comparatively poor, there are in the Queen's Park Ward 7,784 electors, and there are 41 jurors. That is .03 of the population—one in 300 are rich enough in their houses to qualify. In a better class ward of richer people, the Hyde Park Ward, for instance, there are 6,500 electors and 551 jurors. Therefore, all through this country the jurors are, in fact, selected upon a class basis which excludes the vast majority of any man's fellow citizens.
That is the important issue. There is an Amendment on the Order Paper, in the 1573 names of myself and my hon. Friends, which I think indicates sufficiently what we wish to do, and that is to see that the people who shall come upon the jury lists shall be the same people as those who have the civic responsibility of casting their votes. True, it is not their privilege, but perhaps their burden—it is one of the burdens of citizenship—but it is the privilege of the ordinary man to be tried by his fellows, and he is not tried by his fellows unless all his fellows are upon that jury list and the selection is made by chance and hazard, so as to be a real cross-section of the people who are his fellow-citizens. Until that is done, we shall not get the justice to which the ordinary man is entitled as anciently as by Magna Charta. I hope, and indeed feel sure, that the principle of this Amendment will be adopted by this Labour Government, because it is a just and equitable one, and is an establishment of those fundamental principles of liberty upon which the community of this nation has been built.
§ 6.47 p.m.
§ Commander Galbraith (Glasgow, Pollok)
I intervene very briefly because most of the arguments put forward have been entirely on the English side, and this Bill does, of course, apply equally to Scotland. I had thought that the Attorney-General, in the course of his interesting dissertation on the Bill, might have explained to us more particularly the views of Scotland. I should like some explanation to be given to us why Scotland should not be the subject of a separate Bill. After all, the first part of the Bill, consisting of 20 Clauses, deals entirely with England, and the second part, which is quite separate, deals entirely with Scotland and runs to eight Clauses. If the Lord Advocate would give us some explanation, we should be grateful to him. While we welcome the provisions of Part II, it would have been much more convenient if they had been set forth in a separate Scottish Measure, which we could have discussed, in accordance with the new scheme of things, in the Scottish Grand Committee upstairs on Second Reading.
I hope also that the Lord Advocate might see fit to deal with the matter raised by the Attorney-General. Personally, I doubt the historical accuracy of the statement he made, but I may be 1574 mistaken, and, if so, I should like to be corrected. What he said was that, in the matter of juries, Scotland had followed England, whereas I think the opposite to be indeed the truth. However, the Lord Advocate may perhaps deal with that point, if he sees fit, when he replies.
There is one particular aspect of the matter which I believe is causing some real concern in legal circles in Scotland, and I should like the Lord Advocate at least to consider it before the Committee stage of the Bill. In Clause 22 we are told that the prescribed scales of fees and prescribed conditions will be laid down by reference to Clause 29, and I find that this means that they will be prescribed by regulations made by the Secretary of State for Scotland, with the consent of the Treasury. So far as I understand them, these matters in regard to fees have hitherto been dealt with exclusively by the Court of Session and by Act of Sederunt from that Court. I should have thought that probably it would have been wise to continue that system. I am told, though I do not vouch for it myself, that the Secretary of State himself knows very little indeed about the jury system, whereas the Court of Session knows a great deal about it. In any case, the Court of Session fixes the fees payable to witnesses, experts, assessors and others, and I find in Clause 24 of the Bill that they are to retain the right to fix the fee to be payable to a party applying for a jury trial.
It seems to me that we are going to get two different sets of persons deciding in regard to fees—the Court of Session by Act of Sederunt in regard to the matters concerned in Clause 24, and the Secretary of State in regard to other matters. I said earlier that that is causing some concern in Scottish legal circles, who would much prefer that the whole of that matter was left to the Court and that the Secretary of State should take no part in it. That is the only reference I want to make. I hope the Lord Advocate may see fit to reply to these points. Otherwise, we on this side of the House welcome this Measure, which does indeed remove a certain injustice from jurors in Scotland.
§ 6.51 p.m.
§ Mr. Emrys Hughes (South Ayrshire)
I should like to endorse all that the hon. 1575 and gallant Member for Pollok (Commander Galbraith) has said about the necessity of the Scottish part of this Bill being referred to the Scottish Grand Committee, because the law of Scotland is different and because in the Scottish Grand Committee we have no lawyer on the Opposition side, which would greatly facilitate the progress of the Measure. I am not sure that I endorse the latter plea of the hon. and gallant Gentleman that the Secretary of State for Scotland should not take part in the administration of this Bill. I deprecate very much the point of view expressed by the hon. and gallant Gentleman that all these matters should be left to the lawyers. I have the greatest distrust of lawyers, and I never listen to a Debate in which legal gentleman throw their weight about with such delight, without thinking that a prima facie case could be made out for hanging the whole lot of them.
My criticism of this Bill is not that it abolishes special juries, but that it does not abolish special judges as well. I have had an unfortunate experience of both, and of a combination of both. I remember being brought to London quite unjustly in 1935, charged with a libel alleged to have been contained in the paper which I edited. I had the unfortunate experience of being tried by a special judge and a special jury, who took up a very special point of view and returned a very special kind of verdict. I do not cast any aspersions upon that judge, because he has now gone to another place. He died shortly after, and went to Heaven, although that is a charitable view to take, and, indeed, a prima facie case could be made out to show that he went somewhere else.
We have heard a great deal from the Opposition Benches about there being no evidence of political bias. In this particular libel case, there was political bias from the beginning to the end, from the first charge against the defendant to the sentence at the finish. This particular judge had been raised to the Bench because he was a well-known and very strong Conservative M.P. The jury was selected, I understand, from people who, in their normal everyday life, were stockbrokers and insurance clerks—people who, through their political training, were hopelessly antagonistic to the Socialist 1576 Party even before the case was heard. I remember this judge reading, not the alleged libel, but starting with a column—
§ Mr. Speaker
The hon. Gentleman is now going beyond what he ought to say in this House, and is commenting on the actions of the judge, and that can only be done by a proper Motion, not in Debate.
§ Mr. Speaker
I do not think that that makes any difference. It is an attack on the law, whether the judge is living or dead, and I do not think that makes any difference at all.
§ Mr. Hughes
I bow to your Ruling, Mr. Speaker, but I believe in attacks on the law. I will leave the judge, and will go on to deal with the special jury. The special jury heard from this objective and unbiased judge, not only the alleged libel in this particular case; this impartial judge not only read the libel, but nearly all the paper besides, before he came to this particular passage containing the alleged libel. Of course, I felt that the dice were very heavily loaded against me, and, after a most impartial summing-up by this objective judge, with which I rather disagreed, the jury did not even bother to leave the court. They just turned round and faced one another, held a sort of prayer meeting in a corner, and it was "thumbs down." If this case had been heard in Scotland, not before a special jury, but before a jury of 12 honest and unbiased people in Edinburgh, their verdict might have been damages of £25 or £30, but, as a result of the special jury, taking this special point of view, the paper with which I was connected had to pay damages amounting to about £600. That was the verdict, although the plaintiff never got the damages.
I suggest that the time has come when this special jury business ought to be abolished, and this provision is a welcome feature in this Bill. I hope the Attorney-General will also say that we are going to have the Scottish part of this Bill sent to the Scottish Grand Committee, where there are decent, intelligent men and a minimum number of lawyers.
§ 6.58 p.m.
§ The Lord Advocate (Mr. Wheatley)
I would like to intervene to deal with the peculiarly Scottish issues raised by the hon. and gallant Gentleman the Member for Pollok (Commander Galbraith). With regard to the general principles which are being debated on both sides, I do not intend to deal with them now; they will be dealt with in turn by my right hon. and learned Friend the Solicitor-General. The general principles regarding the payment of jurors are being followed so far as Scotland is concerned, but the application of those general principles is much simpler in Scotland, because we are a simpler and less archaic race, and we have not got the ramifications of courts that appear in England.
Without going into any controversy or taking sides on the question whether the jury system in England preceded that of Scotland, I think I would be tempted to take sides with the hon. and gallant Gentleman opposite and say that, whichever did follow the other, at least if we followed England, we certainly improved on the jury system so far as Scotland is concerned, though I know that that remark will not receive the approval of my right hon. and learned Friends the English Law Officers.
This Bill will affect three sets of courts in Scotland the Criminal Courts, consisting of the High Court of Justiciary and the Sheriff Court in indictable cases, the Court of Session and also the Sheriff Court in civil cases where it is competent to have a jury, although I think it is rarely resorted to, and fatal accidents inquiries. At the present time, jurors are paid in respect of their services only in civil cases, and they are paid at the rate of 10s. per day both in the Court of Session and the Sheriff Court. That sum is paid by the litigants and not, as under the Bill, by the Exchequer. In fatal accident inquiries, jurors are paid at the rate of 5s. per day, and, in criminal cases, they are paid nothing. In our Criminal Courts, the cost of administration in Scotland is borne by the Exchequer, due to the fact that prosecutions in those courts involving jury trials are all public prosecutions and, therefore, the expenditure is borne by the Exchequer.
Following upon that principle, we intend that the payment of jurors in 1578 criminal causes should be borne by the Exchequer. In civil causes, as I have already indicated, the litigants pay the fees paid to the jurors. As hon. Members will appreciate, that is limited at the present time to the 12 jurors empanelled to try the case. There is nothing paid in civil causes to jurors cited to attend the court but not empanelled as jurors.
§ Lieut.-Commander Clark Hutchison (Edinburgh, West)
Will it be competent in the future to pay jurors from the Legal Aid Fund under the other Bill now going through the House?
§ The Lord Advocate
No. That Bill deals with something entirely different. The Legal Aid Fund will have nothing whatever to do with payment to jurors. It is merely concerned with financing the litigation from the litigants' angle. Under the Bill, all persons cited to attend, whether empanelled or not, will be entitled to recover expenses and to payment; and so, too, in fatal accident inquiries. As in England, we intend to make the cost of payment of jurors in civil cases a burden on the Exchequer, and we intend to follow the same principle in relation to fatal accident inquiries. We are abolishing special juries in Scotland and special jurors. I do not think that we need have any debate over the justification of the abolition of special juries because, so far as my research has gone, I cannot find a case of any special jury having sat in Scotland in the last 35 years. On the other hand, at the present time, both in civil and criminal causes, our juries are mixed, one-third being special jurors and two-thirds common jurors. That differentiation will now vanish by the passing of this Bill. One more archaic provision abolished by this Part of the Bill is the right of landed persons to be tried by landed persons. That is in conformity with modern development and views. These, I think, are the peculiarly Scottish points. They are very brief, and I do not think that they require any further elaboration.
One or two points were raised by the hon. and gallant Member for Pollok with regard to the fixing of the fees. In criminal courts, the rate of fees payable to witnesses, which may be the basis on which the fees to jurors will proceed, is determined administratively by the Exchequer, who are responsible for the con- 1579 vening of witnesses to court. By the same token, the fees payable to jurors should, in our opinion, also be determined by the Exchequer. On the other hand, as the hon. and gallant Gentleman rightly pointed out, the fees of witnesses in civil causes are determined by Act of Sederunt. There is a fundamental difference in that case.
The person paying the witnesses' fees in a civil cause is the party litigant and therefore it is desirable that the court shall determine the scale of fees payable by the party litigant. On the other hand, the jurors under this Bill will be paid out of Exchequer funds. The court is the right body to protect the position of party litigants before it, but the court is not the proper protector of Exchequer funds. The proper protector is the Minister responsible to Parliament for the administration of justice in Scotland. For that reason, I cannot accept the proposition that the court would be the appropriate body to lay down by regulation a scale of fees for jurors. I think that must be done in view of it involving expenditure of public money by the Minister responsible to this House.
§ Commander Galbraith
Do I understand correctly that the fees of witnesses and experts are now fixed by the Exchequer and not by the court itself?
§ The Lord Advocate
In criminal causes, I said that the rate of fees payable to witnesses is determined administratively because no party is entitled to expenses from the other in our criminal courts, apart from stated cases, etc., by way of appeal which do not apply in this case. Therefore these rates of witnesses' fees are not matters at present for Acts of Sederunt but are administrative matters. There is the fundamental difference between criminal and civil causes because the civil cause is in the hands of the court, since it involves the payment of fees by a party litigant.
§ Commander Galbraith
The right hon. and learned Gentleman says that the fees are fixed administratively. By whom?
§ The Lord Advocate
By the Exchequer through the Scottish Home Department, the Procurators Fiscal and the Crown Office in criminal causes. Therefore, there is no connection between the 1580 court's power to regulate by Act of Sederunt the scale of witnesses' fees in civil causes and the payment of fees in criminal causes. Whereas that is a complete answer so far as criminal causes are concerned, I trust that the hon. and gallant Gentleman appreciates the reason why we cannot apply the rule of witnesses' fees in civil causes because it is two entirely different persons responsible for the payment of fees for witnesses and the fees for jurors. In these circumstances, I trust that the Bill, so far as it applies to Scotland, is acceptable to Scottish Members, and with regard to the suggestion that the Committee stage of this Part of the Bill should be taken in Scottish Grand Committee, that is a proposal which will receive our most careful consideration.
§ Lieut.-Commander Hutchison
Would it be possible for an assisted person under the Legal Aid Bill to get the fee payable for a civil jury trial as part of his assistance?
§ 7.8 p.m.
§ Mr. Turner-Samuels (Gloucester)
This may be a very modest Bill, as the Attorney-General calls it, but it is equally a very important one. There are one or two matters to which anyone who is associated with the law and with the administration of justice, of which the jury system is an integral and important part, would as regards this Bill wish to refer. I was rather struck, first of all, by the observations of the hon. Member for South Ayrshire (Mr. Emrys Hughes), who was apparently very anxious that the jury system as constituted should be unbiassed; but a greater demonstration of bias than his speech could hardly be witnessed. He condemned all lawyers out of hand, without exception, and he reminded me of the incident where a person was being tried before a court of quarter sessions and took exception to some of the evidence. The chairman of the court said to the accused, "Don't worry; you will get British justice." The accused replied, "I do not want British justice; I want to get off." It seemed to me, while listening to a good deal of the reminiscences which we have heard today about political and personal cases, that there was a good deal of that element about the views which were expressed.
1581 There has been a large amount of oratory contributed to this Debate, which is not perhaps surprising because, after all, it deals with what has been described as the palladium of our liberty. There are, however, one or two other practical points which, with all respect, do not appear to have received the attention they ought to have while these other more oratorical matters have been having the attention of the House. In the first place, one is naturally pleased to see that at last the right of a juror to be paid is being recognised. The idea that a public obligation should be discharged at the expense of the citizen performing it is quite wrong and unsustainable, and at last it has been recognised that in all jury cases there should be payment to those serving on the jury. But it is very important, once a principle is accepted, to see that it is being reasonably implemented, and I am not at all certain that the provisions of this Bill are going to secure the fair result that I think everyone really does desire to see.
It is suggested that in future all jurors should get one guinea a day, and as far as I can see they are to get that whether they are sworn or not. Previously a juryman was not paid unless he was sworn as a member of a jury which actually tried a case. As I understand it a juror is now to receive payment whether he is sworn or not. What I should like the learned Solicitor-General to tell the House is whether waiting jurors who attend the High Court and particularly quarter sessions or assizes are to be paid for the whole of the time they have to be there. Sometimes they have got to wait about for one or two weeks. In my experience, where a case being tried and it has proceeded an hour or so, waiting jurors are released and told to come back the following afternoon or day. That goes on sometimes for several days. Is it intended that from the first moment that the waiting juror arrives at the court that right of payment as a juror is to operate from that time?
Then, of course, the question has been raised about jurors' expenses. As far as the one guinea is concerned, there is no doubt in many cases that it will hardly cover the loss of earnings, but the question of expenses is rather a serious one. As I understand the Attorney-General the sum that is going to be paid is something 1582 like 5s. a day. But when one comes to consider that it may be essential for a juryman to stay at a hotel overnight where he may incur relatively substantial expenses, 5s. could not possibly cover that amount. I cannot see why, where one has got a public service being performed, there should be these discriminations and differences. If one takes the work done on the local councils or local authorities there is a proper scale of pay and expenses and that is far more just than is contemplated under this Bill. I cannot see why there should be this discrepancy. That is a matter which I should like the Solicitor-General to bear in mind to put right in Committee.
There is that very important matter about the qualification of jurors. It is important because of this. This Bill is going to abolish special juries, and the objection to special juries that has been put forward is that it is based on class. But the common jury qualification in itself creates a class distinction and therefore the same objection against the special jury can be made against the common jury. The qualification for a common juryman is that he should possess at least £10 in real estate or £20 in leaseholds. Indeed in the City of London it is required that he should occupy premises and also have an estate to the value of £100.
The result of that is that it does narrow down the margin from which a jury can be drawn to a very limited circle indeed, and that undoubtedly creates the same objection of class as is being raised in the case of the special jury. I cannot understand therefore why this qualification is left. Another thing that is difficult to understand in this respect is that under the Representation of the People Act, 1948, the qualification is made purely residential and nothing else. What I should like the Solicitor-General to explain is this. If that qualification is good enough for people to make the law, why should it not be good enough for people to administer the law. I ask the Solicitor-General to deal with this question of the qualification, and to say whether or not it is a matter which ought properly to be considered on Committee stage, so that this qualification may be completely abolished.
Then there is the question of where the cost of juries is to fall. In the Bill, the cost in criminal cases is to fall on 1583 the local authority, and in civil cases it is to fall on the Exchequer. I cannot understand why, in a criminal case heard at assizes, the expense should fall on the local authority and not on the Exchequer. There is a contradiction here between this Bill and the Legal Aid Bill because, although the practice up to now has been for that expense in criminal cases to fall on the local authority, it has actually been changed by the Legal Aid Bill, and the liability is now being put on the Exchequer. Why should the costs of legal aid at quarter sessions or assizes in a criminal case fall upon the Exchequer, and the costs for a jury in a similar case at assizes fall on the local authority? The whole thing is contradictory and cannot be reconciled, and I do ask the Solicitor-General to consider here also whether in Committee the Government will not seek to make these two matters coincide.
There has been quite a lot said about what a wonderful institution the special jury is. Those of us who have had experience do not entirely agree. The great objection to a special jury is first of all that its origin is completely doubtful. It was brought in in 1825 in a most obscure and sudden way by the Juries Act, 1825. The Courts decided suddenly to recognise the special jury. Why that should have been is very difficult to say because there has been nothing to justify such an illogical and class distinction. I agree with the hon. and learned Gentleman the Member for Daventry (Mr. Manningham-Buller) on the question of commercial cases. I cannot see why you should have a commercial case in London, where one is entitled to have a City of London special jury, and that commercial cases in the country should on the other hand be deprived of the same sort of tribunal. I am not at all sure I would retain the special jury, even for London cases, but if we are going to do it we should be consistent about it. If that is to be included in the Bill for cases tried in London there is no good reason why it should not be extended to all commercial cases.
There are other important points on which I should have liked to speak on the Bill, but having regard to the stage the Debate has reached I will content myself by leaving the matter there. I hope these 1584 points will be carefully discussed and considered on Committee and that the Bill will be improved in the several respects which I feel are needed. Subject to that the Bill is one which should have the support of the whole House.
§ 7.20 p.m.
§ The Solicitor-General (Sir Frank Soskice)
I believe that all hon. Members will agree that this has been an interesting and useful Debate. We have debated a Bill with a modest and useful object, which is divided into two main provinces, one dealing with the payment of jurors and the other dealing with the abolition of special juries. Some matters of detail arise with which I would like to deal. Other matters will perhaps be more usefully dealt with during the Committee stage. It might be of assistance if I spent a short time in dealing with some of the details.
My hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels) asked if waiting jurors would be paid, even though they had not taken their places in the jury box. He will find the answer in Clause 1 (2), where it is specifically and in terms provided that they will. He was concerned also about the allowance of 5s., which he said would be inadequate in the case of a juryman who has to spend the night away from his home. That is again, I think, a point which is covered. We propose to follow fairly closely the provisions relating to the payment of witnesses which were made under the order put into operation in August of last year, under the powers given by the Costs in Criminal Cases Act, 1908. There were witness allowance regulations made under the terms of that Act which set out certain scales of allowances which were to be paid to witnesses in criminal cases. We propose, in framing the regulations to be made under Clause 1, to follow fairly closely the scales of allowances set out in those witness allowance regulations. My hon. and learned Friend will see, if he looks at those regulations, that there is an allowance of £1 for witnesses who are obliged to spend the night away from their homes for the purpose of giving evidence. We propose to incorporate that in regulations which we will make for the purpose of the Bill.
I should like to digress for a moment and to make an observation which the 1585 Attorney-General desired me to make on his behalf. He fears that he may have unwittingly used language which conveyed a false impression when he was referring to the statutory instruments to be made under Subsection (4) of Clause 1. The language might be construed as implying that that statutory instrument would have to be laid before the House. There is, in point of fact, no such provision in the Bill. My right hon. and learned Friend has asked me, and I now comply with his request, to make it clear, lest there should be any misconception as a result of the language he used.
The hon. and learned Member for Daventry (Mr. Manningham-Buller) also was concerned about two aspects of the scales of allowance that were to be adopted for the purpose of payment of jurors. I think I can assure him on both the points that he raised. He was concerned, first, with the allowances that were to be made in the case of jurors who have to travel from some distance in order to get to an assize town where they are to serve as jurors. The hon. and learned Member pointed to the position in which they would find themselves if they could not travel by train. They might have to come by car or find some other method of public conveyance.
As I said a moment ago, we propose to follow the witness allowance regulations, and if the hon. and learned Member will be so good as to look at those regulations, he will see that they contain a provision for train fares, generally speaking third-class. They contain also provision for the expense of travelling by other public conveyance. Furthermore, if there is no available public conveyance, they provide for the expense of hiring a car and, in the last resort, for an actual mileage travelling allowance. I feel that that will reassure the hon. and learned Gentleman on the point about which he felt anxious. He was concerned as to whether there was not some disparity in the maximum levels of allowance in the case of members of local authorities under the Act of 1948, and under the scale which is applicable in the case of jurors. He mentioned an allowance of 14s., which he thought applied—
§ Mr. Manningham-Buller
So far as I could see, that maximum was applicable to ordinary witnesses and not under the Local Government Act. It may be that 1586 the scale I looked at is out of date. Perhaps it is. I looked at the scale in the last edition of Archbold.
§ The Solicitor-General
I thought the hon. and learned Member was referring to members of local authorities. If he was referring to witnesses, I can also reassure him by telling him that the Witness Regulations, 1948, provide a maximum of £1. It is these regulations which we propose to adopt as a method to follow.
The hon. and learned Gentleman called attention to some of the wording of the Financial Memorandum and he asked a question about the words which provide that the expenditure of the Treasury would bereduced to a limited extent by the receipts from the fees which may be prescribed and charged to litigants who apply for a jury.The situation with regard to this matter is that we used, in framing the Financial Memorandum, the words "to a limited extent," because it is proposed to charge a flat fee to persons who desire to have a jury to try their case. The exact amount of the fee has not yet been decided upon. Two conflicting considerations have to be borne in mind in fixing upon the fee which will finally be exacted. One is that it is obviously undesirable substantially to increase the cost of litigation to litigants. Another consideration is that, inasmuch as it cannot be said a priori exactly what allowances will be payable to individual jurors, because one does not know what they will actually lose by way of earnings and what expenses they will actually incur, one does not know what the proper charge is that could be expected to be paid by the litigant. We have therefore decided that people will have to pay a flat fee, but that will not necessarily be the same as the amount which, when it is subsequently worked out, is found to be payable to the various jurors who have served in the cases in which the litigants were concerned. That is the reason why we used the expression "to a limited extent."
The hon. Member for Cardigan (Mr. Bowen) raised various points of detail, with one or two of which I will deal shortly. If he will look at Clause 7, he will see that the councils of administrative counties and of boroughs are placed under the obligation of causing their treasurer, or some representative on his behalf, to attend at every court 1587 of assize for the purpose of paying jurors. He was apprehensive that there would be a waste of useful time if it were found to be necessary for an official to be in constant attendance at assize courts for the purpose of the payment of jurors. There will be that obligation as set out in Clause 7. But I would point out that, in any event, as matters stand at the moment, some representative has to attend for the purpose of seeing that witnesses receive their proper allowances under the present witness allowance regulations; so that he has to be there in any case. In point of fact, as, indeed, now does happen in practice, it is not infrequently the position that counsel goes away if it is perfectly apparent that that particular case is to last longer than a day, so that his services cannot, in any event, be called upon. So it is hoped for that reason that there will not be any undue waste of time. Those are matters of detail which I thought it might be of assistance to the House if I dealt with shortly.
With regard to the matters of principle, I am not sure that I can usefully add much to what has been said on both sides of the House. The question of juries is a question on which all hon. Members, quite naturally, feel very strongly—some particularly strongly. My hon. Friend the Member for South Ayrshire (Mr. Emrys Hughes) was concerned with what he regarded as, perhaps, unfair treatment which he had received at the hands of a jury, and I am still shuddering at the expression of desire to which he gave vent that all lawyers should be hanged. I am very glad that I am not under the obligation of appearing before him in any judicial capacity. He was amongst others who expressed their own personal reactions to these matters of jury questions, and who gave their own reminiscences from many different angles. I do not propose to contribute much to what has already been said, because I think the question has already been exhaustively examined by hon. Members on both sides of the House.
I would simply say this. I would say that three questions of principle actually emerged in the Debate. It was first said by my hon. Friends that it was entirely immoral not to abolish the property qualification so far as juries were concerned. As the Attorney-General said, we can 1588 see the force of that argument, but this is a Bill with a limited object. It is not easy to divorce the question of property qualification from other questions affecting juries—for example, the question of the jury exemptions. However, we have in mind what has been said. As I have already stated, and as he said before me, we do see the compelling force of the arguments that have been advanced upon that score. I shall not add anything further with regard to that particular question.
Only one voice was raised against the general principle that juries should be paid, and that was the voice of the hon. And learned Gentleman the Member for Brighton (Mr. Marlowe). He, as I understood him, regarded jury service as something which should be done, so far as the jurymen are concerned, entirely gratuitously: it was service to the State for which they should receive no payment.
§ Mr. Marlowe
I am sure the right hon. and learned Gentleman does not wish to misrepresent me. I agreed that the expenses should be covered. but drew the line there.
§ The Solicitor-General
I could not help recalling what Becky Sharp in "Vanity Fair" said, that it would be so easy to pay her bills if she had £5,000 a year. Certainly it is a duty which every citizen has, and should be glad to discharge to the State, but we think that that is no reason why the burden should not fall equally, or why it should bear more heavily upon the person without means than it does upon a person who has ample means; and the principle that juries should receive payment commensurate with the loss of earnings, and the expenses which they incur, I should have thought followed from the principle that they should bear in equal measure an obligation which should not weigh more heavily upon one section of the community than upon another.
Finally, a matter of principle on which the House was divided was the question of the abolition of special juries. I would say just one thing with regard to the City of London special juries. It is not as if we were retaining City of London special juries for the trial of commercial actions and abolishing anything equivalent in the case of, for example, Liverpool 1589 or Manchester. The commercial list of City of London special juries is a London institution. We are not abolishing anything. We are simply retaining it in the case of London, and we are not removing it from any other centre of commerce in this country, in which did not exist in that form at all.
§ Mr. Hale
Surely my right hon. and learned Friend will agree that the whole tendency of every recommendation of recent law reform and the whole tendency of the consideration of the practice of the courts is towards the advantage of decentralisation, on the basis of increasing the facilities for trials in the provinces, and lessening the necessity of forcing litigants to go to London. That is the reason why, I suggest, that to retain these only in London is reactionary.
§ The Solicitor-General
I do not accept my hon. Friend's suggestion that that has been the whole emphasis of recent legislation in consideration of law reform. Even if it had been, it is clear that we are not doing anything reactionary. We are retaining something which exists in London and leaving the position in the case of the other commercial centres as it was before.
With regard to the general principle of the abolition of special juries, I would respectfully submit to the House that there can really be only one view which can carry conviction. Let it be accepted—I do not accept it, but let it be accepted for the purpose of argument—that some sort of differentiation should be drawn in the matter of juries, and that we regard some as more fitted for particular classes of cases than others. I do not accept it as a matter of principle. I do not think it carries any conviction. Even if it were so, however, there can be no possible argument for retaining the worst possible measure of differentiation, namely, the purely property qualification. If there were any justification for the property qualification upon the basis that persons who were better off 100 years ago received a better education and, therefore were intellectually more qualified to tackle cases of difficulty, that certainly, I should have thought, was not the case today; and that being so, whatever justification there may have been 100 years ago for that particular type 1590 of property differentiation surely has long since gone, and is a pure anachronism, which there can be no possible justification for retaining.
I would not seek to delay the House further upon that matter. I have endeavoured to resume the argument, which on this side of the House, I believe, my hon. Friends did find compelling, in those few words. We think there can be no possible ground for attempting to differentiate between jurors simply because one juryman lives, or is in a position to live, in a rather bigger house than another. We think that utterly unreasonable, and we regard it as a wholly indefensible anachronism. It is for that general reason which I do not analyse further in detail, because it has been exhaustively discussed in the course of debate, that we think there is an unanswerable case for abolishing special juries except in the limited case of the London special jury, where particular circumstances can be said to obtain. For these general reasons I commend this Bill to the House on Second Reading.
§ Mr. Douglas Marshall (Bodmin)
Before the Solicitor-General sits down, I wonder if he would state the meaning of the words "view of frankpledge" which appear in Clause 14, page 8, of the Bill?
§ The Solicitor-General
The hon. Gentleman must not think I cannot do so, but it would mean delving into a particular place in my very lengthy brief. The particular juries which are excluded in Clause 14 of the Bill, if the hon. Member wants to know, have an ancient, historical origin. They have particular functions. They do not serve any practical purpose in the present administration of justice, generally speaking. If he would like later on, I would show him my whole brief, and he could go through these very odd names, one after another and see what their origin and history is. However, I am sure the House would not wish me to launch upon an historical disquisition of matters about which I feel most extremely uncertain.
§ Question put, and agreed to.
§ Bill read a Second time.
§ Committed to a Committee of the whole House for Monday next.—[Mr. Collindridge.]