§ Which Amendment was: In page 9, line 13, to leave out Clause 10.
§ Question again proposed, That the words proposed to be left out, to the end of line 21, stand part of the Bill.
§ 4.15 p.m.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
I think that I am right in saying that I am the first speaker on either side in this debate who has not already addressed the House on this subject on Second Reading or in Committee. I was not forunate enough to be called on Second Reading, and I was not selected to serve on the Committee, although I sought to serve on it. However, as I am, I believe, the only Member who served on both the Tucker and the Morris Committees, and spent many days in considering evidence on many aspects of jury service, I hope that the House will permit me now to express my view.
At the beginning of August of last year, the Commissioner of Police for the Metropolitan area informed the Home Secretary, I understand, that over the past three years he had known of six cases involving intimidation or corruption of a jury. In addition, according to the Home Secretary, there was some evidence —not extensive, according to him—of attempts to interfere with a jury in five cases over the rest of the country. As far as I know without any investigation otherwise, the Home Secretary accepted that information as correct, and on that evidence, and on that evidence alone, this fundamental change is being proposed.
The problem of attempts to intimidate or corrupt juries is not new. My hon. Friend the Member for Oldham, West (Mr. Hale) has already referred to attempts of this kind during the last century. There were many attempts, and many of them were serious. The Mersey Committee in 1913 exhaustively examined all aspects of jury service and had before 1848 it some evidence of so-called "nobbling". It considered the matter, and recommended no change in the unanimity rule. The Home Secretary said that the position has changed since then. I await evidence of that change. Has the suggested change occurred in the last year or two, or in more recent times?
The two Committees I have mentioned were appointed to deal with matters affecting juries—the Tucker Committee some years ago, and the Morris Committee about a couple of years ago. In neither case did the Home Secretary think that this problem, which is said to be so important, was worth referring to them for consideration and report. It was not within their terms of reference. Both Committees, of course, considered many different aspects, of jury service even though they were not specifically within their terms of reference. Indeed, the Morris Committee referred in paragraph 358 of its Report to the problem of majority verdicts as requiring consideration but stated, although it was not within its terms of reference, that it did not advance that view. That is the latest view to be put forward by a Committee.
The Lord Chancellor, in an excellent book on law reform, dealt with many pressing cases requiring law reform, but nowhere was there any suggestion that the unanimity rule should be breached. I wonder what the view of the Lord Chancellor is today. This has not been stated. All we have heard is that a letter was sent by the Lord Chancellor in which he is said to have conveyed what was then an erroneous view of the Lord Chief Justice.
The Criminal Law Review Committee in its Fifth Report, as recently as August, 1964, was asked to consider whether any revision of the criminal law was desirable to facilitate the continuance of a trial when a juror died or was discharged. So apparently as late as August, 1964, no suggestion was made to consider this problem. I hope the Home Secretary will appreciate that there have been a number of Reports by that Committee since that date. It would have been a simple matter to seek the advice of that body—a Committee which could have dealt with the matter expeditiously—or to have arranged for a Departmental Committee or to seek some form of investigation so that evidence could be taken, not only from the 1849 police, but from all sources and a recommendation made on such evidence.
Why is the information given by the police sacrosanct and to be acted upon without any other inquiry? From what the Home Secretary told us last night there are eight High Court judges opposed to the change. Why is their opinion not taken into account? The Home Secretary says that that would have taken time, that there might not be an opportunity for further criminal justice legislation, and that it is difficult to obtain information because of the secrecy to which jurors are sworn. The Press have frequently found very little difficulty in interviewing jurymen and obtaining evidence from them. Surely these are poor excuses when a fundamental change is being made in our criminal law, a change which is not advocated or pronounced upon by any other body.
The Home Secretary spoke of the number of police needed to guard the jurors against possible interference. How does it follow that that supervision will still not be required if a determined person wants to try to "nobble" more than two jurymen? Supposing someone is nobbled and a jury disagrees. Then there is a second trial. It is difficult then to "nobble" someone on a second jury. Why is it difficult for a determined person to "nobble" three or four and not limit it to two?
I hay, had 45 years' experience at the Bar. I have been engaged in many jury trials, criminal and civil, over those years. Some of them, to use the Home Secretary's phrase, have been quantitative in character and recent. I think I am entitled to have some weight attached to my opinion from that experience. Of course there are cases of attempted intimidation, and always have been. I am sure they are few and far between. Personally I have never come across a case where a juror was "nobbled" or intimidated. I have seen many disagreements, but certainly in most cases one could well understand a disagreement taking place.
Figures have been given in regard to disagreements. They were not unexpected or alarming in any way. The problem was summarised in paragraph 357 of the Morris Committee's Report, which said:The requirements in criminal cases that all 12 jurors must be in agreement on their ver- 1850 dict makes it inevitable that there will be a number of disagreements. It seems to us that this need cause no concern unless disagreements occur so frequently as to indicate that the orderly administration of justice is being prejudiced. Indeed, it can be argued that the absence of a certain number of disagreements would itself be disturbing, since in the nature of things 12 individuals chosen at random are unlikely always to take the same view about a particular matter…Surely the obvious reason for this proposed change is that the police are dissatisfied with the number of convictions and they have pressed the Home Secretary to make this change in order to obtain more convictions.
I regret that the Home Secretary who has been described as the finest Home Secretary we have had—and I agree and pay tribute to him—has yielded without any proper inquiry.
§ Mr. Edward Lyons (Bradford, East)
My hon. and learned Friend read paragraph 357 of the Morris Committee's Report. Would he care to read paragraph 358, which states:It is nevertheless true that a disagreement, especially on a long case, can be a distastrous waste of time and money, and it could be argued from this that subject to certain safeguards majority verdicts should be accepted.
§ Mr. Speaker
Order. I think Mr. Speaker might intervene for a moment. There are so far fifteen hon. Members wishing to speak in the debate on this Amendment. Interventions make for long speeches.
§ Mr. Weitzman
I specifically referred to the view expressed by the Morris Committee in the paragraph to which my hon. Friend the Member for Bradford, East (Mr. Edward Lyons) referred. The Committee said in that paragraph that there could well be consideration of the important question of majority verdicts. Although it was not in its terms of reference it did not itself advance that view. It went on to highlight certain other ways in which juries can be protected. If my hon. Friend is to intervene, he should at least be accurate in his reference.
1851 I believe that the principle that a man is innocent until he is proved guilty by evidence adduced by the prosecution and that the presumption of innocence continues until the jury finds otherwise is one of the most vital things in English justice. Nothing should be done which might—I emphasise the word "might" because of an observation made by the right hon. and learned Member for St. Marylebone (Mr. Hogg), who is not at present in his place —which might infringe that principle. I believe the quality of the verdict afforded by the unanimity rule safeguards this.
If there is one dissentient on a jury, if one disagrees, the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. It may well be that that one may be right.
§ Dr. M. P. Winstanley (Cheadle)
Would the hon. and learned Member agree with Lord Devlin that two dissentients mean that there is more than twice as much doubt as when there is only one dissentient?
§ Mr. Weitzman
The right hon. and learned Member for St. Marylebone quoted from Lord Devlin's book. I do not know what the object was. Perhaps it was to show that Lord Devlin was on his side in supporting the case for majority verdicts. The Home Secretary also quoted a paragraph from Lord Devlin's book. Let us be fair and see what Lord Devlin said on the question of majority verdicts. He said this:The sense of satisfaction obtainable from complete unanimity is itself a valuable thing and it would be sacrificed if even one dissentient were overruled. Since no one really knows how the jury works or indeed can satisfactorily explain to a theorist why it works at all, it is wise not to tamper with it until the need for alteration is shown to be overwhelming".These are wise words from a wise counsellor. Surely even the Home Secretary would not assert that the need for alteration has been shown to be overwhelming.
Despite what my hon. Friend the Member for York (Mr. Alexander W. Lyon) said, there is the point that, with majority verdicts, a man acquitted of a serious crime on a majority verdict can go through life with the finger pointed at him—"You were acquitted by a ten to 1852 two verdict. There were two people who thought you were guilty". This view was put forcibly by my hon. Friend the Member for Oldham, West. I cannot improve upon his dissertation on this question. It is a most serious consideration.
The Clause has been put forward as assisting in the war against crime. It does nothing of the sort. It may well result in the chances of an innocent person's being convicted being increased. If there is the slightest danger of this, the Clause should be rejected. The way to guard against the corrupt or intimidated juror is by the adoption of the measures put forward by the Morris Committee. Clause 11 enacts some of these in the disqualification of ex-prisoners.
The Home Secretary could have gone further and provided, as the Morris Committee recommended, that ignorant and illiterate persons likely to be got at by outside influences should not serve on a jury. He could also have increased the penalties for attempting to interfere with a jury.
My hon. Friend the Member for Bradford, East referred to a paragraph which clearly sets out the suggestion of the Morris Committee highlighting these points as being points for consideration, points to be brought in to deal with any attempts at intimidating a jury or getting at any juror.
This provision involves such a change that the burden of proof is upon the Home Secretary to justify its necessity. He has not done so. The proposed change is unnecessary, and I hope that it will be rejected.
§ Mr. N. R. Wylie (Edinburgh, Pent-lands)
It is with some diffidence that I take part in this debate. I intend to make only a very minor contribution. I am the only member of the Scottish Bar in the House. I think that it might be of interest to the House to know how the system works in Scotland, because, as the House will know, the majority verdict system has operated in Scotland for very many years. In Scotland it operates on a straight majority.
There are, however, certain fundamental differences which I think that the House should bear in mind before drawing too heavily on Scottish practice in innovating in the law of England. First, although this may be only a minor 1853 matter, a Scottish criminal jury numbers 15. I understand that a criminal jury in England numbers 12.
A much more significant difference arises between the laws of evidence which each system requires. The requirements of the law of evidence in Scotland are so radically different from the requirements, as I understand them, of the law of evidence in England, that I suggest that the House should be very careful about innovating in majority verdicts or innovating in verdicts in the English criminal system.
As I understand the position in England, to obtain a conviction it is not necessary to have any corroboration. It is sufficient for a jury to accept the word of one credible witness as against the evidence of the accused, if indeed he gives evidence. That is not the case in Scotland. In every material particular in a criminal trial, it is essential in the law of Scotland that there should be corroboration—corroboration either by the evidence of another eye witness or evidence of facts and circumstances pointing in the same direction as the evidence of an eye witness.
This means that in effect the onus of proof on the Crown in Scotland is about twice as heavy as it is in England at present. That is a very material difference between the two systems.
I agree with what the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) said about the significance of the presumption of innocence. The presumption of innocence is a princple of the criminal law which is essential in any civilised community. Any innovation which prejudices the presumption of innocence is an innovation which the House should accept only on the clearest justification.
There are certain statutory exceptions in Scottish criminal law to the necessity for corroboration. Under the Deer Poaching Act and under the Salmon Poaching Act it was necessary, and think rightly so decided by the House, that corroboration should not be required, because, for certain practical reasons, one could not have wardens and others going round isolated areas in twos simply to satisfy the requirements of the criminal law. This is a matter which will have to be given careful consideration in the Countryside 1854 Bill which is shortly to be considered by the Scottish Standing Committee.
The basic principle of the criminal law in Scotland is that the Crown cannot obtain a conviction on the evidence of one witness, however truthful, however reliable, because we have always taken the view that it is always possible to make a mistake in those circumstances, and, because of that view, it has always been regarded as essential that there should be corroboration.
§ Mr. Charles Doughty (Surrey, East)
Then how is it possible to obtain a conviction where a burglar has entered a house unseen and departed from it unseen but has committed the mistake of leaving all over the place, clearly and distinctly, his finger prints?
§ Mr. Wylie
I am not expressing any views on the merits of the one system as against the other. Whereas under our system of evidence a majority verdict is justified and works, I think that in England, where these requirements of the laws of evidence are not so strict, the House should be very careful about modifying the unanimity rule, which undoubtedly is a safeguard standing the present law of evidence.
§ Mr. Leslie Hale (Oldham, West)
I have listened to the hon. and learned Gentleman with sincere attention. I realise the importance of the point he is making and the effectiveness of his criticism of some of the observations which have come from the Front Bench. The right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) and I were members of the Royal Commission on the Police, where we learned this diligently and slowly, and almost with surprise, and learned how important a protection it was for the liberty of a Scotsman.
§ Mr. Wylie
It is an important matter. I have defended in courts martial in Scotland, where the rules of English law apply, and convictions have been obtained on evidence which would not satisfy a Scottish criminal court.
1855 The only point I want to make—I do it with some humility and with the greatest respect—is that that is the position in Scotland. It is in that context that the majority verdict system works. These rules of evidence do not apply in England. Accordingly, I suggest that the House should be very careful about abolishing or modifying the unanimity rule.
Another point which is worthy of mention is the not proven verdict in Scotland. In some ways I have always regarded the not proven verdict as a more logical verdict than a not guilty verdict. The onus of proof being on the Crown and the presumption of innocence being a cardinal principle of our criminal law, it is for the Crown to prove the case. If the Crown has failed to prove the case to the satisfaction of the jury beyond all reasonable doubt, the charge has not been proved. So in that sense the not proven verdict is logical.
In a word or two, the Scottish system works in this way. If the jury is satisfied that the Crown has proved the case beyond all reasonable doubt, it convicts. If, in the light of all the evidence, including the evidence of the accused where that is given, the jury is satisfied that the accused did not commit the crime, it returns a verdict of not guilty. When the jury takes the view that it is not satisfied that the accused has not committed the crime but it is, equally, not satisfied that the Crown has made out the case against the accused, it returns a not proven verdict. But the effect of the not proven verdict is to underline effectively in practice the onus of proof on the Crown to prove its case beyond all reasonable doubt, and, once again in our practice and procedure, the presumption of innocence is underlined and the liberty of the subject is preserved.
I respectfully suggest that, unless a very strong case for a variation of the unanimity rule has been made out, the House ought to reject any proposal which would innovate on that basic principle.
§ Mr. Douglas Houghton (Sowerby)
The House will be grateful to the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) for having given us that valuable explanation of the differences between the Scottish system and 1856 our own. Otherwise, there may be a temptation to regard the majority verdict system in Scotland as a useful guide to the change which we might make in England.
I speak as a layman, and feel rather like a juror listening to the final speeches of prosecuting and defending counsel—on this occasion, most of them prosecuting counsel. My right hon. Friend is under considerable pressure from hon. and learned Members of great skill and long experience. I have never served on a jury. I have never stood in the dock before a jury. Perhaps I am the least qualified among many hon. Members to express any opinion at all. Yet it is to persons like me that lawyers have to appeal. It is to persons like me that politicians have to appeal This is the voice of the citizen, sometimes misguided, sometimes irrational, sometimes sensible.
Last night, we listened to some moving appeals for retention of the unanimity rule. We were told that our present system had withstood the test of 600 years. I am irreverent about history when I think that it is no guide to modern thought. Whether it be 600 years of juries or 1,000 years of history, I am equally sceptical about whether it provides a basis—
§ Mr. Houghton
No, not yet—about whether it provides a reliable guide to our appoach to modern conditions.
§ Mr. Houghton
My hon. Friend has his own evaluation of 600 years of history, and, with respect, I have mine. I am a radical. I challenge all institutions with a critical eye. I want to know why they are here and what purpose they serve. The real trouble with this House and the country is that they are a good deal too conservative—and that applies to hon. Members on this side as well as on that.
What test has the unanimity rule stood? I believe that it has become part of 1857 the mythology of English justice. I submit to the House that the change to the majority verdict may be necessary to save the repute of the jury system. No real test has been applied. Verdicts are reached behind closed doors. We know more of what goes on in the Cabinet than we do of what goes on in jury rooms. No one really knows the truth about the validity of the unanimous verdict. Occasionally, an overwrought juror may make an outburst afterwards which catches the headlines and shocks the conscience of the nation. I believe that it is a comfort to the troubled conscience of England that, when there is a unanimous verdict, justice must have been done even though it is not seen to have been done.
The real question is whether the unanimity rule now stands the test of modern conditions. This point was made very forcibly by the right hon. and learned Member for St. Marylebone (Mr. Hogg) last night. In the past, juries may have been great institutions to protect accused persons from corrupt judges. Now, the need seems to be to protect society from corrupt jurors and also from biased jurors. If the abolition of the jury system were before the House, which it is not, I would say that there was a serious case for consideration.
The majority verdict, I agree, has some drawbacks. The main one, to my mind, is the slur that may be left on the name of an acquitted person when the jury was not unanimous in acquittal. But that probably touches on part of the mythology of the unanimity rule, because it is, I suppose, thought that an acquitted person is an innocent person. It does not necessarily follow. In considering some of the serious motoring offences, one may well have grave doubt not only about the reliability of the juries, but about the validity of their verdicts.
When two dissenting jurors have strong doubts in contrast to the view of the other 10, it may be desirable—I think it is—that we should know that.
§ Mr. Weitzman
Is not my right hon. Friend arguing that we ought to abolish juries? That is not the subject today.
§ Mr. Houghton
My hon. and learned Friend could not have been listening. I 1858 said a moment or two ago that, if the abolition of the jury system were before the House, I would say that there was a serious case for it. I am not at the moment arguing for abolition of the jury. I am casting doubt on the unanimity rule. I believe that there is a good deal of hypocrisy about it, and I am trying to bring it into the open.
I am sure that the processes of reaching a unanimous verdict in some cases, and in some juries, would not stand up to the light of day. Although we do not know what goes on behind the closed doors of the jury room, we do know about some of the people who serve on juries. Another provision of the Bill is designed to exclude from jury service some most undesirable people who have been eligible for it in the past, and, no doubt, have served on juries. We now propose to exclude them from service because, clearly, they are not proper persons to be there.
If justice is to be done, we ought to see far more of how it is done. This is the one black spot on the whole jury system. We do not know the processes by which juries reach their decision. A friend of mine who is a former Member of this House was a member of a jury some years ago when two men were charged at the same time. He told me that in accordance with the accepted trade union practice the jury had reached a negotiated settlement. I think that one is entitled to cast some doubt on that method of arriving at a verdict.
I am concerned with the reputation of an acquitted person, as I am sure the whole House is, but we must weigh that drawback, even though it may be the drawback of truth, against the present unanimous verdicts, which are probably not true. The greater truth about the working of our judicial system, the better it will be. Of course, the innocent may suffer, though one would hope that the truly innocent person would be acquitted by a unanimous verdict, but under the present system it is the guilty who go free.
Even under a majority verdict of acquittal the accused person would go free, but under the present system there are strong grounds for believing that a number of guilty persons go free, and that the majority verdict would enable the cause of justice to triumph over the 1859 corrupt juror. It may overcome the dissent of a biased or prejudiced juror, and it may spare some jurors all the agony of a strong pressure to fall in with the majority and present a facade of agreement.
That is why, unpopular as these opinions are—as I can see from looking around the Chamber—I believe that they lead to the conclusion that the introduction of the majority verdict is probably necessary to save the repute of the jury system.
§ Sir Douglas Glover (Ormskirk)
I am very glad to be able to speak to the Amendment, because, unlike the right hon. Member for Sowerby (Mr. Houghton) and every other hon. Member who has spoken so far, I have been a juryman, and I have also been a foreman of a jury. As everybody else in the debate seems to have been telling the jury how to reach a conclusion, and nearly every speech was made by a lawyer, it is just as well that at least one contribution should be made by somebody with practical experience now that we are dealing with the problems of the jury system.
I do not think that the Home Secretary or any of those who have spoken in favour of the majority verdict have in any way made out their case. It is all right for the radical right hon. Member for Sowerby to say that he is not concerned with tradition and history, but the fact remains that an Englishman has expected that if he was tried in a court of law in this country the decision would be the unanimous collective decision of 12 of his peers, who would decide whether or not he was guilty.
I do not think that because there have a few disturbing cases in London—I think that the figure is six, with possibly five others—there is a sufficient case at the moment for altering a system that is so well tried and has run for so long. Although I admire the Home Secretary for trying to modernise a great deal of our legal structure, majority verdicts will apply not only to cases in London, where bribery of a juryman may have occurred, but all over the country, in every court—not to just six cases in three years in the courts in London. It will apply to every case where people are tried in their local community. In dozens of cases a majority verdict will probably be recorded 1860 and it will be known in the community that at least two members of the jury thought that the defendant was guilty.
Having sat in a jury room, I should like to put a totally different line of approach to the Home Secretary. I am very much afraid that what he is trying to avoid will be brought about by the alterations. Except for Members of Parliament, the bulk of the people are fairly conformist. When a case has reached the point of decision, and the jury file out and into the jury room, there is a great deal of atmosphere, of embarrassment, with nobody wishing to express a view. The foreman is not quite certain whether he should tell them what they should do or wait until they have told him what they think. They wonder how to operate.
In many cases, because of that atmosphere, it may be that one or two people have a slight doubt in their minds, but do not want to be the first to speak, and the foreman then says, "Well, I think that we are all agreed. It looks as though, on the evidence, and if I could just sum up briefly, that this man is guilty"—or that he is not guilty, as the case may be. Those with the slight doubt do not speak, because they tell themselves that it was a very slight doubt and that they do not want to make an exhibition of themselves. Let us not forget that there are only 12 people in a room.
What will happen if majority verdicts are introduced? I shall know when I go into the jury room that it is respectable to be a non-conformist. In fact, it is almost expected. Once I have said, "Mr. Foreman, I am sorry. I do not agree with what you say", almost invariably somebody else will say, "I agree with him." Now we have two people who have stated their views. Before one knows where one is in that jury room the jury will be divided, six to six. Perhaps after a certain amount of argument it will be brought down to nine to three, but once one has expressed one's deep dissatisfaction with the collective view it will be very difficult to get it altered.
Therefore, I think that there will be many more cases where the jury say that they are unable to agree on their verdict.
§ Mr. Sydney Silverman (Nelson and Colne)
That is more especially true if, 1861 as will happen once this amendment in the law is made, the jury are told by the judge before they retire that they need not agree.
§ Sir D. Glover
Exactly. I am very grateful to the hon. Gentleman for his intervention, because that was the point I was trying to make.
When one goes into the jury room at present one knows that one must try to reach a unanimous view. As soon as that pressure is taken off the individual juryman's shoulders, there will be far more cases finishing up in retrial.
Another thing that may happen with a strong foreman is that he may sit down and say, "Well—all agreed? Or are there two of you against? Well, if it is 10 to two, get the cards out. It is no use arguing. We are all right." That is exactly what will happen, because why should the jury argue? Why should the other two, who may be right, try to convince the other 10 that they have formed their view on a wrong conclusion, because it is all settled? The foreman will say, "We need not get any different decision. You two can stick to your views. We need not bother to argue, though we might have a discourse on which horse will win the Derby, because we must spend two hours over it." That is the sort of thing that goes on in jury rooms.
§ Sir John Hobson (Warwick and Leamington)
Perhaps my hon. Friend will consider the situation of a jury which goes out at 5 o'clock in the afternoon at, say, Lincoln when the next buses all go at six and they must wait two hours if anybody is going to stand out against them.
§ Sir D. Glover
With my right hon. and learned Friend, I think that that sort of thing probably sometimes, even now, influences a jury's decision.
I have some sympathy with what my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) said last night. I am not for a moment saying that there is anything sacrosanct about 12 good men and true, but this system has stood the test of time and the right hon. Gentleman is not suggesting an improvement. There is no other system which has gained the respect of the people 1862 as that of the unanimous verdict of a jury in this country.
I suppose that throughout history a person or two has been "got at". I am sure that jurymen were "got at" before. There is the story of the man who was charged with murder and who, after the jury had been out for 10 hours and brought in a verdict of manslaughter, was visited by a juryman who told him, "I did what I could for you, Jim", to which the imprisoned man replied, "Well, you took a long time about it". The juryman replied, "I know, but the rest wanted to find you not guilty".
If the examples in which there was interference with members of the jury were widespread, and not confined to just these big cases, the House of Commons would give a great deal more sympathy to what the right hon. Gentleman is proposing than he is getting in this debate. He has not made out his case. He will cause many people to have to go through their lives with a slur on their name which they would not otherwise have had. While the theory is that every Englishman is innocent until proved guilty, under the new system everyone will be innocent, although two people will consider him guilty. That will be known and it will gradually spread over a wide section of our society.
I do not think that this provision will make society more law abiding, because it will be possible to say of people who would otherwise appear to be perfectly respectable that two people had thought them to be guilty. That will not increase respect for the law, which is the right hon. Gentleman's aim, but reduce it.
At the same time, these proposals will leave many people who would otherwise have been found not guilty with a slur on their names. The right hon. Gentleman will find that, because of what I have explained about what happens in the juryroom, courts will deal with far more cases in which a jury is unable to reach a conclusion. I hope that even at this stage he will consider withdrawing the Clause, because I am sure that it is not in the interests of the nation.
§ Mr. Victor Yates (Birmingham, Lady-wood)
I happen to be the only hon. Member on this side of the House who felt that he must vote against the Clause in Committee. My right hon. Friend the Member for Sowerby (Mr. Houghton) 1863 said that we knew more about what happened in the Cabinet than we did about what happened in a jury room. Some may, and I wish that I did. I have a feeling that the Cabinet made a decision on this matter before it ever came to the House. It is my view that my right hon. Friend the Home Secretary, much as I respect and admire him for his courageous stand, was not open to argument in Committee, was not open to be convinced that the Government's decision was wrong.
As a layman, at times I found it very difficult to understand the lawyers in Committee. I rather offended the right hon. and learned Member for St. Marylebone (Mr. Hogg) when I suggested that the lawyers ought to get together to decide where they stood before coming into Committee.
§ Mr. Quintin Hogg (St. Marylebone)
Does the hon. Gentleman suggest that laymen should also get together and decide where they stand? In that event, we should have a unanimous verdict.
§ Mr. Yates
Unfortunately, there were only a few laymen on that Committee. Most of the hon. Members there were lawyers. I felt that after all Shakespeare was right when, in one of his plays, he said that if we wanted justice the first thing we had to do was to hang all the lawyers.
As a layman, I am concerned that we do not change the system which means that persons are regarded as innocent until all 12 members of the jury think otherwise. My right hon. Friend has mentioned cases, as did the hon. and learned Member for Solihull (Mr. Grieve) in Committee. The hon. and learned Member must know from his experience of the whole of the Midlands that there is no evidence of any corruption of this nature and that all our legal friends in the Midlands agree that the present system is working satisfactorily. Where is the evidence which demands that because something has happened in London, Birmingham and the rest of the Midlands should be subjected to change?
§ Mr. Percy Grieve (Solihull)
The hon. Gentleman will recollect that in Committee I cited one specific case—and I concede at once that it was only one—in which I myself was concerned in 1864 Northampton, when, in a case in which I was the presiding judge, someone attempted to bribe a juror and, fortunately, was brought to justice.
§ Mr. Yates
It is true that the hon. and learned Gentleman mentioned one case, but one case is no reason for changing the whole basis of the law.
My hon. Friend the Member for York (Mr. Alexander W. Lyon) said yesterday that people were demanding this change. Where is the evidence for that? The people have never been consulted about whether there should be a change of this nature. As a layman, I am not convinced that the proposed change would result in greater justice. I am not opposed to experiments, but an experiment of this kind ought to be based on evidence, and I do not believe that there is sufficient evidence. I am very disturbed by the prospect of innocent persons being convicted. I would rather that a few guilty persons went free than that one innocent person should be convicted. I doubt whether the change will lead to more justice.
In Committee, my right hon. Friend said that he thought that hon. Members should speak freely and that they would. I think that they did, but there is not much point in speaking freely if one cannot vote freely. I count myself a very loyal supporter of the Government—it has been a long time since I offended—but on this issue, which is not something on which the whole basis of the Government depends, which affects the freedom of individuals, we ought to be allowed to have a free vote.
If the right hon. and learned Gentleman the Member for St. Marylebone feels that he can go into the Lobby with a clear conscience, I ought to be free to go into the opposite Lobby, also with a clear conscience. I wonder why my right hon. Friend did not feel that this was an issue on which he ought to ask, as clearly in the House as he did in Committee, that we should have a free vote. There may be something in what some of my legal friends have said, but I sat through those hours in Committee, and I did not feel convinced by the evidence, although I hope that my mind was open to receive it. For that reason, I would not change my view, even if all the judges and lawyers of England had supported this.
1865 I want more evidence. I do not find this evidence. The ordinary lay person, who will question this move, will not see justice done if, to take one example, a man is convicted, with two people for him on the jury. That person will go through life with the grievance that there was some doubt, probably a big doubt, about his case. I have not been a magistrate, and I know nothing about the workings of juries, but I thought that the right hon. and learned Gentleman the Member for St. Marylebone cast an unfavourable reflection upon juries. It sounded to me, in Committee, as it did yesterday, that he would like to see the whole system wiped out.
§ Mr. Hogg
The hon. Member will at least do me the courtesy of recalling that I said both in Committee and yesterday that the jury was one of the most venerable of our institutions and that I thought it one of the great defences of our liberty and I wished to preserve it. Whatever I may have sounded like, when the hon. Gentleman reads HANSARD he will see that I said this on both occasions.
§ Mr. Yates
I accept that the right hon. and learned Gentleman said some nice things about juries, but he did talk about picking them out of a hat by a pin, and cast some sort of reflection upon them. In one sentence he may have said some nice things, but in another sentence he cast reflections upon juries. I do not think that this is the issue. If I had to choose between having 12 judges or 12 legal persons on a jury, or 12 ordinary lay persons, I know what I would prefer. I would prefer the ordinary lay person, the man-and-woman-in-the-street, who has some kind of intuition about justice.
This is a great safeguard of our liberties. If one says to 12 people, "You must be unanimous", justice must be done. It is a pity that my right hon. Friend did not agree not to press this until there was some evidence on which 1866 to base an experiment. I hope that the Government will feel that those of us who feel deeply and strongly on this side of the House ought to be as free as Members are on the other side. This is where I am in complete agreement with the right hon. and learned Gentleman. We should have the right to vote freely on a matter which may affect the life of the citizen.
§ 5.15 p.m.
§ Mr. Charles Fletcher-Cooke (Darwen)
I had been disposed to support the Home Secretary on this matter, but I am bound to say that after what I have just heard from the hon. Gentleman the Member for Birmingham, Ladywood (Mr. Victor Yates) I am minded to abstain. It seems quite wrong that, whereas we are absolutely free to vote, hon. Members opposite, who feel very deeply in their consciences on this matter, are not free. I had understood the matter in a different light. I had understood that there was to be a free vote. If there is not that very much affects my mind.
However, I shall not go into the Lobby against the Home Secretary under any circumstances, for the reasons which I shall give. I am not convinced by anything I have heard that the reason why the Bill is necessary is because there is widespread "nobbling" of juries. That case has not been sufficiently sustained. My reasons are somewhat different, and, I think, rather deeper. They are these. The jury is a very ancient institution with a history of about 600 years, but it has depended for its operation on the fact that it has hitherto been drawn from a relatively narrow section of society.
It is, in the words of Lord Devlin, whom it is obligatory to quote in these debates:… middle class, middle brain and middle of the road.It has therefore, all the virtues and all the drawbacks, of homogenity. It has its prejudices and its quirks. It has, in the view of some people, too keen a sense of preservation of property, and in the view of others it is too prejudiced in favour of motor car drivers. Whatever its drawbacks may be, it has worked because it thinks in broadly the same way.
Now all that is to be changed. When I first received the attack of the National 1867 Council of Women, four or five years ago, objecting very strongly to the paucity of women on juries I said that if this went on the unanimity rule would be dead. I did not think that my prophetic words would prove to be true quite so quickly. But I was convinced that logically, that would inevitably occur. If one once starts examining the qualifications for jury service it is absolutely indefensible in logic, although it works very well in practice.
There is no logical defence for the qualifications of the jury as it stands. It produces a class jury of a fairly narrow kind, but it is one with a collective thought and attitude. Now that will go, as a result of this attack upon the qualifications, done with the best of motives. I am sure that we will very shortly have universal sufferage in the jury system. This is a difficult argument to deploy, but once one has that, I am convinced that one will not have that unanimity or outlook or mind which makes the unanimity rule work. One is enormously widening the approach of new jury men; one is enormously widening not only in matters of class, but also in matters of race.
In the past, in one respect at least, the need to be tried by one's peers was always recognised in our jury system. One had to be tried by people who thought alike, and when there was a rare bird, like a nobleman, he would not be tried by common clay. He was to be tried by his fellow noblemen, who understood the way that his mind worked, and what his ideals were. This was a primitive recognition of the philosophy that I am trying to put forward, that once one gets away from this middle class, middle brain jury, one will not get, in practice, the degree of unanimity, common thought, common philosophy and common direction with all its faults, and there were many, but with its enormous virtues, which were perhaps greater.
Because we must recognise the march of time and realise that if this enormous extension of the jury qualification is imposed the jury will no longer be anything like what it has been in its 600 years' history, sadly and regrettably we have to desert the unanimity principle.
§ Mr. Ian Gilmour (Norfolk, Central)
Would my hon. and learned Friend relate what he says about the middle-road, 1868 middle-brain jury system to America? The Americans do not select their juries in the way that we do, yet they have not had any undue difficulty in achieving unanimity.
§ Mr. Fletcher-Cooke
They have enormous jury difficulties. I never care to compare the laws In these ways because there are so many other imponderables and things which are incomparable. We cannot transplant a small section of the criminal law of another country into our own. We can transplant all or nothing. That was the burden of the excellent speech of my hon. and learned Friend the Member for Edinburgh, Pentlands (Mr. Wylie).
I would merely refer my hon. Friend to the tremendous number of challenges and the difficulties which the Americans have in empanelling juries. This makes me think that we should not readily adopt their experience. As for the qualifications, I imagine that, like everything else in the criminal system of the United States, they vary very considerably from State to State. Therefore, I could not give my hon. Friend a direct answer, anyhow.
However, I am convinced that the situation is radically changed by the proposals made for widening jury qualification. For that reason alone, I am disposed to support the Home Secretary. My only misgiving is whether it would not have been better to wait and see whether what I fear will happen does happen; whether it would not have been better to have postponed implementing this proposal for some time; whether it would not have been better to see perhaps a great number of people acquitted who should be convicted, which I am sure is what would happen if we preserved the unanimity rule plus the immense broadening of the qualification. Perhaps we should suffer a bit before we change it. On the whole, I think not.
I am disposed to believe that, with the modern jury as we are to see it in future we can no longer afford—I will not say the luxury—the privilege of unanimity.
§ Mr Arthur Davidson (Accrington)
I wish to make only a short speech in support of the new Clause because I had the privilege of speaking in Committee.
Yesterday and today we have heard some sincere and passionate and, indeed, emotional speeches in favour of the jury system. None was more passionate than 1869 that of my hon. Friend the Member for Birmingham, Ladywood (Mr. Victor Yates). We have been told that our jury system is the envy of the world. That may well be. But it is the system which is the envy of the world and not necessarily the unanimity of the system. By adopting the proposals made in the Clause we shall not be altering the essential elements of the system.
We have also been told that the jury system is part of our heritage and of what we are proud to call "the British way of life". This is true. But it is equally true that part of contemporary British life is the emergence of the highly organised criminal syndicate. Hon. Members on both sides of the House say that "nobbling" of juries has taken place. The opportunities and facilities for "nobbling" have never been so great because the resources of the modern criminal syndicate have never been so great. That is why the problem is particularly relevant at this moment.
§ Mr. Sydney Silverman
How does my hon. Friend reconcile that view with the Home Secretary's statement that there have been six doubtful cases in London in three years and none at all in the rest of the country?
§ Mr. Davidson
I think that the Home Secretary answered that himself. It is impossible to say how prevalent "nobbling" is. But it is well known that these criminals, because they have the resources, men and facilities, methodically and calculatingly attempt, almost as a business operation, to approach juries. They are not deterred by any undue reverence for the jury system.
The Home Secretary has frequently been criticised in the House, as other Home Secretarys have been, for not acting quickly enough. Whenever a prisoner climbs over the wall at Wormwood Scrubs and escapes and the Home Secretary announces that an inquiry is to be held, hon. Members say, "But why have you acted so late?". I am happy that for once we have a Home Secretary who has decided to act sooner rather than later. If jury nobbling became extremely prevalent, which it could well become, there would be many cries of outrage by hon. Members urging the Home Secretary to act in the way in which he has acted.
1870 I think that it was the right hon. and learned Member for Huntingdon (Sir D. Renton) who, in an intervention yesterday, said that if we adopted the majority verdict system it would make it easier for newspapermen to interview jurymen. I do not know what his reasoning was, but I think that it is fair to say to the Home Secretary—and I say it as a newspaper lawyer—that the urge to interview jurymen after the case will be irresistible. I am not saying that he should legislate for it, but he should bear it in mind as a possibility.
The Home Secretary should be commended for taking a bold but not popular decision and a further step in the direction of halting crime before it becomes a menace not only in London, but in the provinces.
§ Mr. Norman Miscampbell (Blackpool, North)
I should not like this afternoon to pass without making my protest against the proposal which has been made without, in my view, any evidence or information to support it. What is the evidence or information upon which we are being asked to take this decision? There has been a relatively small number of disagreements. There has been some very thin evidence of nobbling of and getting at jurors. The judges have been asked for their views, and they have given them, although they are rather more qualified than we heard at the beginning.
I should have thought that it would have been very much better if that inquiry had been directed to the recorders and chairmen of sessions, who deal with 90 per cent. of criminal cases. It is often not remembered that judges, especially in areas where there are Crown Courts, who deal with the serious crime go to an assize town and try the murder which has occurred, two or three buggeries, perhaps a sexual crime, and a death by dangerous driving; and that is the end of the criminal calendar for them. Those are not the types of cases in which we are likely to have any trouble with majority verdicts or unanimous verdicts—
§ Mr. Charles Doughty (Surrey, East)
My hon. Friend has omitted the most typical and difficult one of all, which is robbery with violence.
§ Mr. Miscampbell
Certainly, but, by and large, High Court judges are dealing with a very small section of crime.
1871 The one possible reason for a change to majority verdicts was referred to by my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) in that, in two or three years' time, we may change the qualifications for jury service so that they correspond exactly with the electoral roll.
§ Mr. R. J. Maxwell-Hyslop (Tiverton)
When my hon. Friend refers to changing to majority verdicts, does he mean changing to majority verdicts or changing to what are quite inaccurately described in the Bill as majority verdicts, a majority being half plus one?
§ Mr. Miscampbell
As I should object to proportions of even ten to two, I should not want to encourage anyone to think that I should like to see a proper majority verdict as in Scottish cases.
The one possible reason why we should at least keep an open mind is that we all know that, within the next two or three years, we may turn to a situation where everyone on the electoral rôle, good, bad or indifferent, is a possible juror. It is possible that that situation will cause difficulty in two or three years' time, but that is not now.
A number of hon. Members have talked about our varying sessions and have asked if anyone has an idea how many disagreements there are at, say, Blackpool Sessions or at Liverpool Crown Court. If anyone had the number, he would still be unable to say why the juries had disagreed. Where juries disagree, there is no evidence to suggest that it is because of one or two perverse jurors, and no one has any idea whether they disagree in proportions of ten to two, eleven to one, or come out disagreeing half a dozen one way and half a dozen the other. We have not got that information.
I do not think that we should go too far in exploring American experience. However, that experience gives us a clue as to how we can find out the information which we want.
Clause 10 should be rejected now. We should reject it with an open mind because it may be that we shall have to reconsider it later. If we come to reconsider it, let us do it on the basis of evidence, because that evidence is easily 1872 available. However, that evidence should not be obtained by "bugging" jury rooms. There was trouble in the United States when that was tried. I suggest that every disagreement should be recorded and reported to the Lord Chancellor, and that the clerk of assize or quarter sessions should ask the foreman of the jury to write on a piece of paper the proportions in which the jury disagreed.
That piece of paper could be put into a sealed envelope and not shown to the presiding judge. Then the judge himself should be asked for his independent view of whether it had been a proper disagreement on which he could say that the jury could reasonably have come to that conclusion and that he did not think it perverse. If those three pieces of information were brought together over a period of two or three years, I believe that the House could come to a rational decision on the many questions which inevitably arise.
We do not know any basic reason for changing. We cannot give rational bases for any of our changes. For that reason I hope that, with open minds, we might postpone the matter now for two or three years while information is gathered together and brought before the House so that we can then take a reasonable and sensible decision.
I am sure that that would be the right way to go about it, though I have little hope that, at the end of the day, we shall follow that course. The hon. Member for Birmingham, Ladywood (Mr. Victor Yates) wondered why there was not to be a free vote tonight. The reason is simple. If the House had a free vote, this Clause would be thrown out neck and crop, and quite rightly, too.
§ Mr. John Lee (Reading)
Like the hon. Member for Blackpool, North (Mr. Miscampbell), to whom I listened with great interest, I am a lawyer. I suppose, inevitably, this must tend to be a lawyer's debate. I have an additional qualification in that I once served as a stipendiary magistrate and, in my first week of office, had to take a summary of evidence in a capital charge. I suppose that that could be described as being thrown in at the deep end.
In the first trial of Alger Hiss, Judge Kaufman used the phrase when endeavouring to get the jury to agree after 1873 several hours of deliberation that the jury was "a composite body". In the second trial, when it looked as if a similar situation would arise, Judge Goddard used another phrase which is worth quoting to the House. Having spoken about the size of the jury, he said:The object of the jury system is to secure a unanimous verdict through the exchange of views, reasons and arguments among the several jurors.The crux of the argument against this Clause is nothing to do with the number of jurors, whether it be 12 or, as a result of discharges, 11 or 10, or even the seven permitted during the last war. What is important is that the Clause challenges for the first time the corporate nature of the jury. When a jury is sent out to consider a verdict, the members of the jury are not sent out to twelve different jury rooms to consider by themselves and come back, as it were, to ballot on the decision. They are sent out to exchange views and, possibly, to change sides in the course of arguing among themselves, and they must be prepared to justify their decisions one to another.
That is why I felt that the right hon. and learned Member for St. Marylebone (Mr. Hogg) was so wrong when he seemed inclined to disregard or minimise the importance, as an indication of reasonableness of doubt, of the fact that one juror might hang out.
The hon. Member for Ormskirk (Sir D. Glover), whom we had the pleasure of hearing as an ex-juror, made the point very well earlier on. Unless the one juror is corrupt, and I recognise that there is that risk, but it is not a new one, and decides to dig in his toes and not go along with the verdict of the rest must be subjected to a great deal of pressure in an effort to reach agreement. One can imagine the rest of the jury, after two or three hours, saying, "Mr. Snooks, here we are. The rest of us have agreed. You are wasting our time in this fashion. You are just being obstinate and pigheaded."
I submit that it represents a considerable degree of hardihood to stand out against that number of persons, and is stretching the law of coincidence too much to suggest that two people are necessarily just perverse or obstinate and pigheaded when they are not prepared to follow the opinions of other people.
1874 It may well be that there is a danger of corruption, but I do not think that this Clause will make very much difference. Hon. Members on both sides of the House have been at pains to point out that what we are dealing with now—and it is a disturbing phenomenon which concerns us all—is the organised criminal master mind with considerable resources at his disposal. But it really suggested that although he is able to bribe two members of the jury his resources will fall short of enabling him to bribe yet another member? Is it really suggested that the criminal mind will not be aware of the way in which he can get round this situation if only he applies himself to it?
One other serious objection to this proposal seems to me that for the first time we will need some authentication of the proceedings in the jury room. It may be said that this ought not to be difficult, but one has only to think of some of the extraordinary things that have happened in recent years when a jury has returned with a seemingly unanimous verdict. The other day, for example, the foreman of the jury gave a verdict of not guilty and a lady sitting on the back row of the jury called out, "Hey, that is not our verdict".
If that can happen when the situation is supposed to be simple and all that is required is complete agreement amongst the jury, it is easy to see the kind of difficulty which might arise in a long and complicated case when one has to find out whether the jury really were nine to three or 10 to two in favour or against, whichever is the case.
The Clause makes no provision for this, and as far as I can see there are no rules of procedure to be followed in the jury room, even supposing it were possible to enforce them. I think that it will be extremely difficult to be satisfied that the jury really were divided by no more than is permitted to return a vaid verdict.
I turn now to another objection of a different kind. This concerns the application of the death penalty. At the moment, the death penalty is suspended for murder, but there is no certainty that it will not be revived. The death penalty can still be imposed for treason, and with the situation in Rhodesia as it is, the question of the death penalty for high 1875 treason is not even now entirely academic. Could anybody, even the most robust retentionist feel satisfied about imposing the death penalty with the knowledge that perhaps two members of the jury feel that the charge has not been made out?
The duty placed on the Home Secretary is difficult enough in this sort of case. As an abolitionist, I fervently hope that my right hon. Friend will never again be confronted with the possibility of having to consider whether the death penalty should be carried out. I do not think that this is the kind of burden that we ought to impose on the Home Secretary, but there is a risk of it being imposed if another House of Commons, with a different viewpoint, decides that the imposition of the death penalty ought to be revived.
I come now to the crux of my objection. The only rational justification for the Clause is that it is designed to minimise, though even its protagonists do not claim that it will eliminate the possibility of expense and inconvenience resulting from retrials. Reference has already been made to the small percentage of cases which go for retrial. One hon. Member yesterday referred to the fact that it is the practice, after there have been two "hung juries" for the case to be dropped. Why is this principle regarded as sacrosanct? I think that I am right in saying that until comparatively recently this was not so. Indeed, I checked this point with one of the Treasury counsel at the Old Bailey and I was told that in a fairly recent case where there was strong evidence of subornation in one of the two successive juries the case was prosecuted for a third time and resulted in a conviction.
Surely that is the much simpler method to adopt. One would not, of course, normally wish to proceed with a case for a third time, quite apart from the question of expense, since even if only one juryman hangs out in two trials there is sufficient evidence of doubt, but if it is really suggested that corruption is the cause of a disagreement we still have a simple solution available to us. There is no need to change the law. All that is necessary is to go forward for a third trial. I think that this is a far more reasonable thing to do. I know that it has its disadvantages. We know that the criminal 1876 courts are congested with the amount of work outstanding, but I submit that this is a more reasonable and sensible thing to do than to change the very basis of our civil liberties.
I am extremely unhappy about the way in which the Government have chosen to introduce this Clause. If my right hon. Friend cannot agre to withdraw it, I hope that he will at least consider introducing it on an experimental basis, and in the meantime will give some thought to the very interesting and constructive suggestions made by the hon. Member for Blackpool, North (Mr. Miscampbell). We would like to know more about the basis on which juries disagree. We certainly want a good deal more justification before embarking on what I regard as an extremely perilous course.
§ Mr. Doughty
Time is getting short, and I propose to be brief. In the few words that I have to say I shall explain why it is my intention to go into the Division Lobby with my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) ahead of the Secretary of State to support what I consider to be a Clause which is required under present-day circumstances.
I agree with what my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) said earlier about what is to happen when the jury system is changed. I agree with my hon. and learned Friend, and I adopt his argument. Because time is short I shall not repeat what he said, but that concerns the future of the jury system.
We have had a lot of emotion and odd cases dragged in about the past history of juries. This is entirely irrelevant to the position which we have to consider today. Perhaps I might remind those who go back over the centuries that they need not go back as far as that. Until the last war there were four courts at the Old Bailey, and in the near future there will be 18. It is true that under the new Act London is slightly enlarged, and that this may have some bearing on that point, but it shows one of the problems with which the country is faced. We represent the country in this House, and the Home Secretary is responsible for maintaining law and order, and this includes the proper conviction of criminals when there is proper evidence on which they can be convicted.
1877 The police, whose job it is to carry out that duty, already have sufficient handicaps, leaving aside the question of the shortage of numbers. They are not allowed to question a suspect unless he knows that he need not answer. Many refuse to do so until they have seen a solicitor, which they do not have, anyway. The jury is told that it must be unanimous and sure of its verdict and, finally, when the conviction is secured, probably the Court of Criminal Appeal quashes the conviction. It is worse than the maze at Hampton Court to get inside a prison unless one pleads guilty, and even then the sentence will probably be reduced afterwards.
One reason for my support of the Clause is the "four Cs"—criminals, corruption, cranks and clots. Criminals are referred to in the next Clause, which I think is the least important. If a man previously convicted of a serious offence is on a jury he will be very shocked by another type of crime. They run in grooves and outside that groove they shout for a conviction. Clause 11 is difficult to enforce, because, perhaps rightly, when a person leaves prison he may change his name and his character.
There is a different type of criminal in serious cases nowadays. We now have organised crime for the first time. The reasons may be our betting and gaming laws or the increased amount of public money—there are differences of view about it. However, there are people who organise crime and know their followers and are prepared to go to any lengths to protect them from conviction and get them out of prison if they are convicted. These are the people to whom the Home Secretary must face up in legislation.
They are prepared, by bribery or threats, to intimidate juries. It is useless to say that there have been only six cases in three years. We cannot know exactly, because once a jury has finished it is considered improper to ask its members their reasons for the verdict. Recently, when one emotional woman wanted to change her verdict after it had been given, the Court of Criminal Appeal rightly held that it could not inquire into what had happened in the jury room—
§ Mr. John Lee
I am listening with respect to the hon. and learned Gentleman's view, but does he not think that the mere fact that that could happen shows that, with majority verdicts, the Court of Criminal Appeal will be drawn into arguments on what happened in the jury room?
§ Mr. Doughty
Not for a moment. This is a numerical matter and nothing else. The reasons why one or two people may have disagreed on a conviction or acquittal cannot be discussed in the court below or anywhere else.
Unanimity is not sacrosanct. If a person is tried before magistrates—not stipendiary magistrates or recorders—the verdict is by a majority. If they are convicted, and their appeal goes to quarter sessions—there may be a chairman there, but the rest are magistrates—that verdict is a majority one. If a case goes to another place in its judicial capacity, that verdict would be by a majority. It is the same in civil matters. In one of the longest and most tedious cases in which I was concerned, we lost before the puisne judge. All three judges of the Court of Appeal were in favour, and another place reversed that verdict by three to two. We had the majority, but we lost the case. Those who say that unanimity is part of the English law are entirely wrong.
On juries, who are not selected for judicial knowledge or experience of life, there is the occasional crank. Referring to individual cases does not teach a principle, but I know of a case in which somebody inadvertently left his fingerprints on the house which he had recently burgled. It was clear and unambiguous and was compared with that of the accused, and there was no doubt, but one heard through the grapevine that one juror said, "All this stuff about fingerprints is hocus pocus. All our fingerprints are the same. Look at mine. Look at yours. If you can tell me the difference, I would be obliged. I will not convict him on that evidence"—
§ Mr. Doughty
The retrial took about seven minutes, of which it took him two minutes to walk to the dock and two minutes to walk down. There was a conviction. The man has now been released—
§ Mr. Peter Tapsell (Horncastle)
Is my hon. and learned Friend arguing that the proportion of cranks has increased in the last 600 years?
§ Mr. Doughty
I did not use either of those phrases—"increased" or "600 years". I carefully said that I am not dealing with the future or the past—whether it be 600 years or one year ago. I am dealing with the present. We must consider the present. That is the type of person whom I call the crank. There are a number of other examples.
Then there is the person who is stupid, as a number of the population are. They see a person whom they do not know with a list of convictions as long as his arm, who has been caught red-handed, and they say, "Poor man. Look how decent he looks and he has a wife and two children. How could I deprive his wife and two wee bairns of him by taking away his liberty. No, I am not that hard-hearted." That is the type of juror that I call the clot, and those are my four C's.
I do not criticise the jury system. I believe in it, except for two faults—that, in long fraud cases, it is difficult for a jury to understand complicated documents and accounts and then decide the question, and, in motoring cases, particularly those involving drink, they are unreliable, which is why we have had to pass the legislation which is now going through the House. Otherwise, the system is good.
I am not in favour of majority verdicts as such. If the Clause said that where there was a majority there should be a verdict accordingly, I would oppose it. It is only in a small proportion of two in 12 or one or 11 or 10 that there arise the people to whom I have referred. These things exist. They are bad for the administration of justice and for the morale of those who have to catch and convict the criminals. It will put the Home Secretary—whoever he may be at the time—in great difficulty when hon. Members ask why there have been only 30 per cent. of convictions in trials for indictable offences—
§ Dr. Winstanley
The hon. and learned Gentleman seems to be basing his argument on the fact that too many guilty people are acquitted. He may be right, 1880 but how can majority verdicts help in the case of people who are acquitted unanimously?
§ Mr. Doughty
If a man is acquitted unanimously, he can walk out of a court a free man and that is the end of the matter.
§ Mr. Raphael Tuck (Watford)
The hon. and learned Gentleman mentioned clots and cranks and said that, if the question was one of a simple majority, he would oppose it, but that as it is 10 to two, he supports it. Can he guarantee that there will not be more than two clots and/or cranks on a jury?
§ Mr. Doughty
The hon. Member knows the answer as well as I do. This reduces the chances, by a percentage which he as a betting man will no doubt be able to work out, to a reasonable proportion.
Then there is the position known to everyone who practices in the courts. Unless and until we have a system of qualified jurors passing examinations—which would be utter nonsense—people will be selected in this way to go into the jury box and the results are sometimes those which I have described.
It has been said the jury would say, "We know that two of us can disagree." That does not follow. Probably the practice will be for the judge to say to the jury, "I should like to know what your verdict will be and I hope that it is ananimous. If it is not, I should like to be told and will then consider the matter afresh." It is only in dealing with the further trial that this further safeguard should be applied. For that reason, I propose to accompany the Secretary of State into the Division Lobby.
§ 6.0 p.m.
§ Mr. Peter M. Jackson
I congratulate the hon. Member for Blackpool, North (Mr. Miscampbell) on an excellent speech. He made many of my points, which I hope my right hon. Friend will bear in mind, but I should like to reiterate some.
I, too, am appalled that the Home Secretary should bring forward this proposal with absolutely no evidence. I cannot regard the so-called evidence—the six cases in London and six or seven in the provinces—of "nobbled" juries as sufficient evidence upon which to base this reform. Others have suggested that this indicates only the tip of the iceberg, 1881 but that is simply an assertion, with no evidence. It is regrettable that it cannot be demonstrated one way or the other. I am not a lawyer, but I gather that the incidence of "hung juries" is not recorded in criminal statistics.
We should have a complete record in future, therefore, of the number of "hung juries"—
§ The Secretary of State for the Home Department (Mr. Roy Jenkins)
§ Mr. Jackson
I am glad to see my right hon. Friend agreeing—so we will be able to pass any future changes on hard evidence of jury practice.
Our only evidence is that in the Morris Report, which gave the figures in the Central Criminal Court for 1963 and said that there was no indication that they varied significantly from those of previous years. This also is an unsupported assertion, but, in view of the skill, experience and practice of the criminal law of the members of the Committee, one must assume that statement to be fairly accurate.
I am glad to know from my right hon. Friend that we are to collect some data. We hale some data already. Perhaps it was not available when the Secretary of State made his decision, but we can base judgments on it in respect of majority verdicts. It is the study of jury experience in the United States by Kalven and Zeisel. It shows that about 5 per cent. of American juries fail to agree. These two criminologists took a sample of these disagreements and I am told by statistician friends that their sample is of statistical significance. They took 155 examples and systematically studied the nature of the disagreement in each case. They found that a jury rarely disagreed unless there was a considerable degree of dissent. In the summary published in the English periodical Round Table, they stated:… for most men, as other experiments in group psychology corroborate, companionship in dissent, at least at the outset, is required if they are to withstand the pressure of confronting a large majority. Hence the lone juror who finally hangs the jury will not emerge, according to this data, unless at the start his view had some support.Hon. Members may have read an article in The Times by these two scholars. In it, they presented some interesting statistical tables. These showed that when there 1882 was an initial disagreement on the first ballot of 11 to one, the jury eventually reached an agreement in every case; that when, on the first ballot, the disagreement was 10 to two, agreement was eventually reached; that when the breakdown was nine in favour of a verdict of guilty and three in favour of a verdict of not guilty, eventually agreement was reached and a verdict of guilty was brought in; and that only when the ratios were eight to four, seven to six, six to six and five to seven was there a real area of disagreement. At the other end of the scale, when 11 jurors considered a person to be not guilty while one held out for a verdict of guilty, eventually in all cases agreement was reached.
I suggest that the Home Secretary has given insufficient weight to what I would call the sociology of this problem—of the pressures that people are under in this situation. It is only rare that an individual will not conform. We had a recent example of this when Miss Lawford was subject to the kind of social pressures that are found in small groups of this kind. She did not stand out against the foreman of the jury at the time and it was not until later, perhaps out of remorse, that she expressed her dissent. I draw the conclusion from these facts that most examples of "hung juries" represent cases of substantial disagreement. We should not record only the details of the number of juries which are "hung", but the balance of voting within those juries. For example, I would like to know more about the five to seven and four to eight ratios.
Attention has been drawn to the situation in Oregon. My hon. Friend the Member for York (Mr. Alexander W. Lyon) pointed out yesterday that this is one of the few American States to have majority verdicts. He suggested that the evidence there could not be considered relevant to Britain. I disagree with him, because the evidence seems highly relevant. When the majority rule was introduced in Oregon, the number of "hung juries" increased to 25 per cent.
Kalven and Zeisel suggest that there is considerable likelihood that that situation would develop in Britain. They point out that when only two people disagree the other 10 mentally switch off and… the jury just stops deliberating when it reaches the requisite majority".1883 When two people out of 12 disagree, that represents a considerable degree of doubt and means that there is not sufficient certainty on which to convict. I also believe that the administration of justice will be brought into disrepute if many people are convicted, as they will be, with the existence of such a degree of doubt.
Why should the ratio be 10 to two? Does not this represent a slur on the community? We are suggesting that two out of every 12 people, a considerable percentage, who act as jurors are prepared to be corrupted. There may be one perverse person on a jury, but the statistical likelihood of there being two such people is extremely small. Lord Devlin has wondered why, if two, not three or four? Why not simply have a straight majority? I hope that, as there has been so much opposition to my right hon. Friend's proposal, he will accept the compromise presented by my hon. Friend the Member for Oldham, West (Mr. Hale) and reduce the ratio to 11 to one.
It has been argued that the Bill is designed to prevent the corruption of jurors and to ensure that the ends of justice are not defeated. I understand that this argument is buttressed by evidence which suggests that a surprising number of criminals serve on juries. This may be so, but my right hon. Friend has already covered this point in the Bill. I am glad that persons with criminal records will be excluded from jury service. After all, these people have had experience of the police and imprisonment and are probably reluctant to convict. They are obviously the sort of people who may be nobbled.
Lord Devlin stated:Is a rather obscure prospect of convicting a few more guilty men enough to justify so ill-prepared a change in one of the oldest and greatest of our institutions.He thought not. I, too, think not. We have endowed the world with two great institutions, Parliament and the jury system. It is because I believe in the purity of both that I shall vote for the Amendment.
§ 6.15 p.m.
§ Sir Lionel Heald (Chertsey)
I intervene briefly to support hon. Members who have pleaded with the Home Secretary to allow this matter to be dealt with on 1884 the basis of a free vote. This has been an extremely interesting and lively debate, one of those debates which the pundits who write about Parliament—and who often do not know much about the House—say is the sort of debate that is no longer possible here. Hon. Members on both sides of the House who have great knowledge of this matter have spoken with conviction and sincerity and have expressed varying points of view. This is surely just the sort of case where the Government should act in accordance with the view of the House of Commons, if that view is clearly expressed. In this case it certainly has been.
I have read the report of yesterday's debate and the "Stop Press" report of last night's discussion. From it I deduce that there is a great preponderance of argument against the Home Secretary's proposal. I do not know whether my views will be a great help to hon. Members in making up their minds on this issue but, as a lawyer, I did have some experience of criminal cases in my younger days at the Bar, when I was rather unsuccessful and thought that other branches of the law were more hopeful from my point of view.
I had the experience of conducting several prosecutions in important cases when I was a Law Officer and I recall that on one occasion, when a woman was charged with murder—she was found guilty and executed; the last woman to be executed—the judge told the jury, in effect, "The whole essence of the matter is that you must all be satisfied, every single one of you, that this woman committed this terrible crime before you find a verdict that will have such a terrible consequence." We do not have the death penalty any longer but I cannot help wondering what, if we had not abolished it, people would say to this proposal to have a 10 to 2 majority.
I came to the House yesterday with an open mind on this issue, though rather disposed to accept the view of the Home Secretary. My view has been changed by what I have heard during the debate. I do not believe that we should be swayed or that the right hon. Gentleman should be swayed by what has been said about the judges. After all, to consider the matter in a light-hearted vein, the judges were in favour by a majority of 28 to 8, which is 9 to 3 and not 10 to 2. 1885 If we are to change the law in such a fundamental matter, the onus is on those who want to change it to prove that the change is required; but the right hon. Gentleman has not been able to obtain the sort of majority in favour of the proposal that he wishes to introduce for juries. This may be a rather rough way of deciding such a matter, but perhaps there is something in it.
Is there not a great deal in what has been said about this change having only a slight effect on the activities of those engaged in organised crime? After all, it will merely put up their expenses because they will have to provide sufficient money for three, rather than two, jurors. If those en Caged in organised crime are so powerful they will be prepared to go to the additional expense of "fixing" the extra juror.
It is a serious matter when a proposal of this kind is presented as a fait accompli to the House of Commons. Three or four Measures have been introduced by the Labour Government and instead of Ministers being prepared to listen to our arguments they have started off with closed minds. We have managed on one or two occasions to get some amendment, but time and time again we have heard a Minister say, "I am very sorry, the arguments are most interesting and excellent, but it is quite useless to put them forward because we have decided what we intend to do."
In a matter like this it should be remembered that Members of Parliament are the people entitled to speak for their constituents. Of course, one takes notice of the judges' views, or the views of those experienced in such matters, but when it is sought to change the laws of England and it is found that a great preponderance of hon. Members are against the change, surely it should not be made.
§ Mr. Raphael Tuck
I am a barrister, so I suppose I must declare an interest but my real interest is to see that justice is done, or that we create the best possible conditions for it to be done. It seems to me that the reason for bringing in this provision is rather like the reason which the Mikado gave, which was that there had not been enough executions in Titipu. The Home Secretary must think, "There have not been enough convictions in England lately, so 1886 let us have a few more". That is not a valid reason for bringing in such a provision as this. I respect my right hon. Friend in every way, but I think that on this occasion he should thing again.
The hon. and learned Member for Surrey, East (Mr. Doughty) said that juries worked quite well. I do not think they do work very well. I have served as counsel in many cases where there have been juries on which I am more than sure there were more than two clots and cranks. In one case, as my client, the defendant, got into the witness box, I heard a woman juror say, "'E's guilty." That is not a satisfactory situation. But the jury is still the best thing we have been able to evolve.
The difference between a civil and a criminal case is that in a civil case the judge or jury decides on the balance of probabilities, but in a criminal case the jury—and this has gone on for generations—must be certain beyond reasonable doubt that the accused person is guilty. If one or two members of the jury have a reasonable doubt of the person's guilt and say so, but the accused is to be found guilty all the same, it means that we are changing our legal principles, and saying that the jury shall not convict only if they are certain of guilt beyond reasonable doubt, because then there will be a reasonable doubt and yet the accused will be convicted. In such a case we will be departing from the well-known principles of our law and our system of justice.
It has been argued that juries may be nobbled. We know all about that, and have had experience of it. But I know that if I were a "nobbler" or a member of a gang of "nobblers," I would know that money was not short. We would be receiving as much as was needed to do the "nobbling." We know the kind of case in which it is done. If I were a "nobbler" or a member of a gang of "nobblers" and knew that if two members of the jury stuck out it would make no difference, I would see to it that three members of the jury were "nobbled," or four, if necessary—
§ Mr. Tuck
I am very grateful to the right hon. and learned Gentleman. If the jury consists of people who cannot be "nobbled" at all, the more reason why when one or more is in doubt the verdict should be not guilty. But why take a ten to two ratio? Why not nine to three or eight to four? The principle is entirely wrong.
My right hon. Friend the Home Secretary feels that security is in danger, but if he feels like that why does he not go about it in the right way and, for example, have the name of every juror carefully scrutinised by the Director of Public Prosecutions. Let the Director go through the list with a fine-tooth comb and weed out any undesirable character. As far as I am aware, this is not done at present.
If that it not enough, why not go back to our former system—not in every case, but in cases where "nobbling" is getting dangerous, such as the long firm frauds—of keeping the jury together for the whole of the case? That would ensure that there was no nobbling. Keep them together—lock them up, if necessary—and make sure, in that way, that there is no "nobbling". But the proposed way ensures nothing of the kind.
I am afraid that the Home Secretary has gone about things rather in the same way as did the man who found another man making love to his wife on the sofa. He was distraught for about a week. Later he seemed to perk up, and when his friends asked, "Have you resolved your problem?" he replied "Yes—I have sold the sofa."
I earnestly ask my right hon. Friend to look at this matter again. If he wants to ensure security, let him introduce measures that really bite. I ask him to reconsider the Clause—perhaps withdraw it for the present—or at least induce the Chief Whip to allow the Question to be put to a free vote so as not to embarrass very many of us on this side who have very strong feelings against this Clause.
§ Mr. Maxwell-Hyslop
On this issue and at this stage I am a genuine floating voter, and there are certain questions that I want to ask the Home Secretary. First, why has he nobbled his own jury? Why does he not allow them to give a true verdict in the face of the evidence given to the House of Commons and the argu- 1888 ments adduced, instead of putting on the Whips. If he says that there should not be a free vote on criminal matters why was the Whip not put on for the Murder (Abolition of Death Penalty) Bill? The argument for having a free vote must be the same in both cases.
As I say, the Home Secretary has nobbled his own jury. Already, one hon. Member has told us that he is apprehensive about whether or not he should act as his conscience directs—
§ Mr. Sydney Silverman
My right hon. Friend is not merely "nobbling" his own jury, but insisting that the jury at this stage shall be unanimous. He is not satisfied with a majority verdict.
§ Mr. Maxwell-Hyslop
I am most grateful to the hon. Gentleman for his extremely relevant intervention. But, to be fair to the Home Secretary, he is not asking his hon. Friends to do any more than he himself is doing, and that is closing his mind entirely to the arguments advanced in this debate. We must therefore be fair to the right hon. Gentleman on this point.
As a non-lawyer, I like to think that in drafting new criminal legislation we aim at least for accuracy. Do we find it here? The purpose of this Amendment is to leave out Clause 10. The title of the Clause isMajority verdicts of juries in criminal proceedings.To the best of my knowledge, a majority means half the number plus one. If we do that with 12 we get seven—six plus one. That means that if the word "majority" is to be used accurately as in line 20… and a verdict authorised by this subsection is hereafter in this section referred to as a 'majority verdict'any reasonable person would say that the Home Secretary is mis-describing as a majority verdict what is, in fact, a 10 to 2 or 11 to 1 verdict. Will he tell us why he has used the phrase "majority verdict"? Many members of the public would regard a man of whom they read in the Press that he was acquitted by a majority verdict as very possibly having been acquitted by a vote of 7 to 5, not a vote of 10 to 2. I cannot see how the right hon. Gentleman can use this lamentably inaccurate phrase.
1889 In the debate we have heard a lot about the difficulty of getting a conviction because of a stubborn, a frightened, a corrupt or a foolish person. We should also be concerned about people being unable to get an acquittal because of a stubborn, a frightened, a corrupt or foolish person on a jury. As a floating voter my inclination is to support the Clause as it stands, despite its defects, because I believe that justice and mercy are not the same things. Justice means getting an accurate verdict and an accurate verdict is more important than a unanimous verdict. That is what justice is about.
It sometimes happens that people on juries are unable to escape their own prejudices. To take an example, if someone had broken the Sabbath a juryman may be predisposed to find that person guilty of an offence alleged to have been committed on the Sabbath. To some jurymen and magistrates merely to possess a red sports car is evidence of exceeding the speed limit. This has nothing to do with corruption. Bearing in mind the nervous strain and financial hardship which standing trial involves, to stand trial again b[...]se the jury is not unanimous in acquitting a man might be a far greater hardship than being acquitted with one or possibly two dissentient voices. It can impose a terrible burden on an accused person who in fact is not guilty.
§ Mr. Raphael Tuck
Suppose that it was the other way round, that 10 of the jury were for conviction and two for acquittal. I cannot remember in what year it was, but recently over 30 per cent. of cases in which there had been a disagreement resulted in acquittals on the second trial.
§ Mr. Maxwell-Hyslop
That is certainly so, but it is not the same as saying that in those 30 per cent. of cases the persons acquitted had not in fact committed the offences concerned. I prefaced my remarks by saying that I was interested in an accurate verdict. Just as it does not necessarily follow in every case where someone is convicted that he is in fact guilty, nor does it necessarily follow that in every case where someone is convicted that he is in fact guilty, nor does it necessarily follow that in every 1890 case where someone is acquitted he is not guilty.
The whole trend of legislation passed by this House over the last 10 years rightly or wrongly has been of one distinct kind. The trend has been to say that it is the probability of detection and conviction which is the great deterrent, not the Draconian nature of the penalty imposed after conviction. The House, irrespective of political complexion, has accepted this doctrine as the years have gone by and the paradigm case for this was on the question of capital punishment. This was one of the major arguments in favour of abolishing capital punishment. We must be consistent. If at one time we stress the importance of securing a conviction of guilty persons, we must be consistent today in applying that same test.
That is why, having listened to some and having read the rest of yesterday's debate, so far as it was published in HANSARD, and having been present in the debate most of today, although I resent bitterly the way in which the Home Secretary has treated hon. Members opposite and frankly I do not respect his own confidence in his case in applying the Whips to a non[...] issue—I do not respect him in the least for that—nevertheless, I think the balance of advantage in the administration of accurate justice—
§ Mr. Sydney Silverman
Does not the hon. Member perceive that there is no way of assuring an accurate judgment this side of the final Day of Judgment and that in the opinion of most people throughout most of the history of this country the nearest approach we can get to guaranteeing that the verdict is right rather than wrong is to insist that it shall be unanimous?
§ Mr. Maxwell-Hyslop
I think that argument has been mis-stated. The argument has been put that the nearest we can get to never convicting an innocent man under any circumstances must be a unanimous verdict. I do not agree with the implied proposition that it is equally true that the nearest we can get to never acquitting a guilty man is by a unanimous verdict. Here there is a slight confusion. Somewhere, somehow by some criteria and standards we in this House have got to draw a line between the importance of 1891 never convicting an innocent man and the importance of securing sufficient convictions of guilty people to deter the offence which we are endeavouring to deter.
Wherever we draw that line it will be a defective line, but I am not satisfied that the requirement for a unanimous verdict has been shown over the years to result in a sufficient certainty of conviction to say that the balance of advantage remains in favour of continuing the existing system.
§ Mr. Emlyn Hooson (Montgomery)
I disagree with the hon. Member for Tiverton (Mr. Maxwell-Hyslop), I believe it is of paramount importance that no man in this country should be convicted unless his guilt is absolutely proved. If we want to secure more convictions, the way to do that is to investigate the system of evidence and the laws of evidence, not to tinker about with juries.
I had an opportunity on Second Reading to speak on the intention of the Government to institute a majority verdict provision. I have nothing to add to that and I agree with my hon. Friend the Member for Che[...] (Dr. Winstanley), but I wish to mak[...] points. The first is that the opinion of the judges has been canvassed on behalf of the Government in this case but from my personal knowledge some of the most eminent and most experienced judges in the country are completely opposed to majority verdicts. There is no doubt at all about that.
On the second point I do not approach this matter on a statistical basis at all. It seems that the two great safeguards of our liberty have been Parliament on the one hand and the jury system on the other. The onus of proof rests firmly on the shoulders of the Home Secretary when trying to change the jury system.
It is an absolute, disgrace that the Government Whips are being imposed this evening. Whatever the view of any hon. Member—and I appreciate the power and strength of some views expressed which are opposite to mine—there is no justification whatever for the Government Whips to be imposed in a vote on a matter of this kind. This is essentially a basic constitutional issue. If the Home Secretary has no faith in his advocacy of his own case and does not believe that he can carry the House with him on this 1892 vital matter, which cannot be of the greatest importance to general Government policy, he has no business to put on the Government Whips.
The right hon. Gentleman has always had a reputation for being a liberal Home Secretary. His action in seeing that the Whips are to be imposed this evening has greatly impaired that reputation.
§ Sir J. Hobson
I have the perhaps unusual privilege of speaking from this Box to express a view which is in direct conflict with that expressed last evening from the same Box. The last occasion that I know of in the history of the House when this occurred was when the father of my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg), admittedly then sitting on the Government side of the House, disagreed with the then Solicitor-General and others over the Prayer Book, all of them sitting on the same Front Bench.
I hope that those who witness this scene yesterday and today will think that, on the whole, it is a rather good thing; and that on matters that touch deeply the liberty of the, subject, the administration of justice[...] our constitution, it is no bad thing [...] hon. and hon. Members on both sides of the House, as they have in this debate, express exactly what they think and feel about an admittedly difficult but very important topic.
When I first saw this proposal, I confess that I accepted the Home Secretary's views and thought that it was probably satisfactory to have majority verdicts. One of the reasons why I so thought was that I was aware of what happened in Scotland. Despite my knowledge of the trial of James Stewart of the Glen, which I do not need to go into, I still thought that the fact that there is a system of majority verdicts in Scotland was a good indication that it would be proper to have such a system in England.
I then discovered the state of the law in Scotland as it was explained to us by my hon. and learned Friend the Member for Edinburgh, Pentlands (Mr. Wylie), who gave great assistance to the House in indicating what the difference is. I remembered, for instance, that in the case of the Thurso boy it was impossible to put a policeman on trial on the word of one boy. An English jury might well have had to try the truthfulness of one 1893 policeman and one boy who said that he had been assaulted by that policeman in Scotland. That can never happen. It is only where there is corroboration as explained by my hon. and learned Friend that majority verdicts can be given in Scotland.
Having listened to all of the debate, except for about three minutes, I think that the vast weight of opinion which has been expressed by all those who have spoken is against the Home Secretary's proposal. Counting heads and listening to the speeches, I believe that there is an overwhelming view on the part of those who have spoken, and who have taken the trouble to speak, against the Home Secretary; but whether that is right or not in the Lobbies, we shall find out in a few minutes.
We must start from the point—what is the case that the Home Secretary makes'? I have a great deal of sympathy for him, because he embarked upon this course last year when he had behind him a letter from the Lord Chief Justice saying that all the judges would agree with it. That was quite a good foundation, apart from the fact that the Home Secretary had not taken the trouble to find out whether the judges really were behind the proposal.
§ Mr. Sydney Silverman
What the Lord Chief Justice did was to deliver judgment first, collect the evidence afterwards, and then find that the evidence did not support his judgment.
§ Sir J. Hobson
I would not like to say that that is quite right. I think that it was plain on the face of the Lord Chief Justice's letter that he was saying only, "I think that the judges would probably think like this". That must have been dear to the Home Secretary. It does not appear that the Home Secretary said to the Lord Chief Justice, "Will you kindly find out what the judges think?". The right hon. Gentleman went ahead on an expression of opinion by the Lord Chief Justice as to what the other judges would think and not on what they did think.
Not only that, but ever since there has been no attempt to discover until last night what the Queen's Bench judges think. Even at this stage we do not know the opinion of the majority of the other judges who preside over criminal jury trials, and they are 90 per cent. of 1894 the criminal jury trials; because it is the Crown Courts, and the recorders and chairmen of quarter sessions who conduct the vast majority of such cases.
I will try to summarise the arguments shortly, first as to why I think that the Home Secretary's reasons are totally inadequate for this change, and, secondly, as to why I also think that there are positive reasons why it should not be made.
First the Home Secretary relies, and has always relied—he has been very forthright; he has relied solely and entirely—on the risks of corruption in a few cases which he has said are of a high quality and of great importance. We know of six cases in London in three years and of six cases in the provinces in a couple of years. This total seems to be absolutely minimal and does not even impress many of the supporters the Home Secretary has for his proposal. The hon. Member for York (Mr. Alexander W. Lyon) said that he was not in the least impressed by it. It is totally wrong that a change of this fundamental nature should be made on such a tiny sample.
I agree that it is very impressive for the Home Secretary to say, as he did last night, that he has to employ 86 policemen at present to guard a jury. This will happen twice a year at the present rate in London and probably not at all in the provinces. Although everybody would wish to diminish burdens of this type which may be imposed on the police, is it not a price that we ought to pay and bear in order to preserve the unanimity rule by a jury if we think that it is right?
§ Mr. Antony Buck (Colchester)
Would not my right hon. and learned Friend agree that, even if there were majority verdicts, there would still have to be that number of policemen doing precisely that job in the cases which have been cited?
§ Sir J. Hobson
I am grateful to my hon. Friend. It is very likely that in a number of such cases protection would still have to be provided.
Looking outside London, I agree with the hon. Member for Birmingham, Lady-wood (Mr. Victor Yates) about the position in the Midlands. I have made inquiries, not only from those who are concerned in the administration of justice, but from the chief constable in my county 1895 and from other sources. They think that there is no evidence that in that area there is any attempt to nobble juries, except the very rare case. The information I have from those with experience in the North of England and many other places is exactly and precisely the same.
Faced with these facts, many of those who are promising to support the Home Secretary in the Lobby are changing their ground and are now saying, "We do not think anything of those cases, but we must look out for the cranks and the oddities. These are the people who we cannot allow to continue on juries". It is odd that in 600 years we have not heard much about all the cranks. I do not believe that human nature has changed that much. Although I do not in the least desire to retain a system merely because it has existed for 600 years, and I would not wish to judge it except upon the basis of the system as it is at present, I regard it as a little odd that no one thought of this argument before. It is suddenly produced to bolster up a case which is seen to be failing in the hands of the Home Secretary.
The quality in part of the Home Secretary's argument is a rather dangerous one. He says that the trouble is that the cases in which there is corruption are those few very important cases where very important criminals are involved. Be that so, but the Home Secretary proposes to change the rules not only for every other man who is tried throughout the country, but for all the other important cases that are tried in this country—for cases of treason, for cases brought under the Official Secrets Act, for cases of riot, for cases of great political import, and for cases involving very important issues. So the right hon. Gentleman will change the rule qualitatively as well as quantitatively for every other case so as to deal with a very few cases which he regards as exceptional.
I will summarise the reasons why in my view it is wrong to change the unanimity rule. First, there is the effect on an accused man. If he is guilty, is it satisfactory to send a man to prison for a very long time with the idea in his head that two at least of the jurors did not believe in his guilt? Equally, on acquittal, is it right that a man should for the rest of his life, though acquitted, 1896 know—and that other people should know—that two jurors thought that he was guilty? In addition to that, it seems to me that the verdict of a jury has public acceptability by its unanimity. The public are inclined to think that, if the jury were able to agree upon their verdict, it is more than likely that it was correct, and, to that extent, they ought to accept it.
The other result of this change will be to remove the power of a minority to argue. The Home Secretary recognises this. This is why he has put in the two-hour rule. He recognises that, in the ordinary circumstances, if there are two men who are both intelligent and determined and they want to argue, unless he gives them the two hours in which to argue, he will take away all capacity for them to continue the argument. He is, therefore, fundamentally altering the balance of power within the jury. I am sure that this will have a considerable effect upon the way in which juries operate in the future.
My right hon. and learned Friend the Member for St. Marylebone disagreed with the unanimity rule. I always greatly regret when I disagree with my right hon. and learned Friend, but he seemed to attach his argument very much to whether the number should be 12 or 10—thinking of the 12 Apostles, whether the strength of the Liberal Party was 12, and so on—but the argument has nothing whatever to do with whether the number should be 12 or 10. It has nothing to do with the point made by my hon. and learned Friend the Member for Solihull (Mr. Grieve) when he spoke of our having had seven on a jury in war time. They still have to be unanimous. All we are discussing is the unanimity rule, not the total number on the jury.
I have no doubt that abolition of the unanimity rule will lower the burden of proof on the prosecution. My right hon. and learned Friend denies that and says that the burden of proof remains the same, proof beyond all reasonable doubt. In logic, of course, he is right. That would be so if all the jury were doing was objectively solving an intellectual problem which was capable of rational exercise alone, like a puzzle to be solved. In fact, it is doing nothing of the sort. It is finding its way, first, through the 1897 evidence. It must apply its reason to the evidence. But it has a much more important function, that of applying its subjective judgment to the witnesses who appear before it. It has to look at the fellow citizens who come into the witness box or who are sitting in the dock, and each one of the 12 jurors must consider how far one or other of all those witnesses are or are not to be believed.
Thus, the jury has a double function, an objective function and a subjective function. In practice, it must be more difficult to convince all of 12 jurors that, both subjectively and objectively, the Crown has proved its case than it is to convince only 10 of their number. Therefore, while I think that my right hon. and learned Friend is quite right in saying that, logically, the burden of proof is unchanged, in practice the prosecution will have an advantage in being able more easily to obtain a verdict.
I come now to my principal objection, the risk of a wrong verdict. I agree with those hon. Members—I think that it was the hon. Members for The High Peak (Mr. Peter M. Jackson) and for Reading (Mr. John Lee) who said this—who do not believe that this alteration would have been introduced while hanging remained a penalty imposed by the law. I have always been a retentionist, but I should never stand for a man being hanged on a majority verdict of 10 to 2, and I do not believe that anybody else would have permitted it. I am sure that it would always be intolerable.
If it is intolerable when the penalty is death, why is it acceptable to convict a man when the penalty is not death? What we want to guard against is not the imposition of the penalty but the wrong conviction. Nothing could be worse for our administration of justice than that men should be unfairly and wrongly convicted. This is where I disagree with my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop). We cannot attempt to achieve the most accurate system of arriving at verdicts if it carries with it a greater risk of wrong conviction. This is why, for my part, I cannot support an alteration which I originally thought acceptable but which, the longer I consider the argument, the more convinced I am that it would be wrong to accept.
§ Mr. Crowder
I do not want to interrupt, Mr. Speaker, but I wish to ask the Home Secretary a question.
§ Mr. Speaker
The hon. and learned Gentleman cannot intervene to ask a question until after the Home Secretary has started.
§ Mr. Jenkins
I trust that the House will acquit me of discourtesy if at this stage I do not weary it with a substantive reply. I spoke at some length last night. We have all had our say. I have spoken three times on this question, and I doubt that anything more said at this stage will change people's minds.
The only point I make in reply to the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) is not a substantive one. He said that the great weight of views had been against the proposal. This is not true. The weight has been fairly evenly balanced [HON. MEMBERS: "No."] Yes; there have been no fewer than 10 speeches in favour and there have been 13 against, and it is natural in circumstances of this kind that those whose opinion is against should speak most strongly. I take no objection to that.
§ Mr. Crowder
Will the right hon. Gentleman allow me to ask him this question? In Committee on 8th February—this is cc. 330–1 of the OFFICIAL REPORT—I drew attention to and challenged the letter from the Lord Chief Justice. As I understand it, the right hon. Gentleman told the House last night that the Lord Chief Justice had written round or written to him on 7th March, and it was not until last night that we were, for the first time, informed of the results of that letter.
It seems to me that someone has not done his homework—it may be the Lord Chief Justice, it may be the Home Secretary—but, there having been this discrepancy, why was not the second letter disclosed to the Committee or the House very much earlier?
§ Mr. Jenkins
There is no doubt that, had I wished to conceal the letter from the Lord Chief Justice—which never crossed my mind—I could have let it out very much more easily than by announcing it to a full House last night and showing that, while the Lord Chief Justice was not right in saying that there was unani-
§ mity, there was nevertheless a very substantial majority of Queen's Bench judges.
§ Question put, That the words proposed to be left out, to the end of line 21, stand part of the Bill:—
§ The House divided: Ayes 180 Noes 102.1901
|Division No. 324.]||AYES||[6.58 p.m.|
|Albu, Austen||Cordon Walker, Rt. Hn. P. C.||Morris, John (Aberavon)|
|Aliason, James (Hemel Hempstead)||Gray, Dr. Hugh (Yarmouth)||Moyle, Roland|
|Anderson, Donald||Grey, Charles (Durham)||Murray, Albert|
|Archer, Peter||Grieve, Percy||Noel-Baker, Rt. Hn. Philip(Derby, S.)|
|Armstrong, Ernest||Griffiths, Rt. Hn. James (Llanelly)||Norwood, Christopher|
|Ashley, Jack||Griffiths, Will (Exchange)||Nott, John|
|Atkinson, Norman (Tottenham)||Hamilton, William (Fife, W.)||Ogden, Eric|
|Awdry, Daniel||Hamling, William||O'Malley, Brian|
|Bacon, Rt. Hn. Alice||Harrison, Walter (Wakefield)||Orbach, Maurice|
|Barnett, Joel||Haseldine, Norman||Orme, Stanley|
|Bell, Ronald||Hattersley, Roy||Palmer, Arthur|
|Benn, Rt. Hn. Anthony Wedgwood||Hazell, Bert||Pannell, Rt. Hn. Charles|
|Bennett, James (G'gow, Bridgeton)||Henig, Stanley||Parker, John (Dagenham)|
|Berry, Hn. Anthony||Hiley, Joseph||Parkyn, Brian (Bedford)|
|Bidwell, Sydney||Hilton, W. S.||Pavitt, Laurence|
|Binns, John||Hogg, Rt. Hn. Quintin||Peart, Rt. Hn. Fred|
|Bowden, Rt. Hn. Herbert||Hooley, Frank||Perry, Ernest G. (Battersea, S.)|
|Brinton, Sir Tatton||Horner, John||Perry, George H. (Nottingham, S.)|
|Brooks, Edwin||Houghton, Rt. Hn. Douglas||Prentice, Rt. Hn. R. E.|
|Broughton, Dr. A. D. D.||Howarth, Robert (Bolton, E.)||Price, Christopher (Perry Barr)|
|Butler, Mrs. Joyce (Wood Green)||Hughes, Roy (Newport)||Quennell, Miss J. M.|
|Callaghan, Rt. Hn. James||Hynd, John||Rankin, John|
|Cant, R. B.||Irvine, A. J. (Edge Hill)||Rees, Merlyn|
|Carmichael, Neil||Jackson, Colin (B'h'se & Spenb'gh)||Roberts, Gwilym (Bedfordshire, S.)|
|Castle, Rt. Hn. Barbara||Janner, Sir Barnett||Robinson, W. O. J. (Walth'stow, E.)|
|Coe, Denis||Jenkins, Rt. Hn. Roy (Stechford)||Robson Brown, Sir William|
|Coleman, Donald||Johnson, Carol (Lewisham, S.)||Rogers, George (Kensington, N.)|
|Concannon, J. D.||Jones, Dan (Burnley)||Rossi, Hugh (Hornsey)|
|Corbet, Mrs. Freda||Jones, T. Alec (Rhondda, W.)||Rowlands, E. (Cardiff, N.)|
|Crawshaw, Richard||Kelley, Richard||Russell, Sir Ronald|
|Crosland, Rt. Hn. Anthony||Kenyon, Clifford||Scott, Nicholas|
|Crossman, Rt. Hn. Richard||Kerr, Dr. David (W'worth, Central)||Shaw, Arnold (Ilford, S.)|
|Dalyell, Tam||King, Evelyn (Dorset, S.)||Sheldon, Robert|
|Darling, Rt. Hn. George||Lawson, George||Shinwell, Rt. Hn. E.|
|Davidson, Arthur (Accrington)||Leadbitter, Ted||Shore, Peter (Stepney)|
|Davies, Dr. Ernest (Stretford)||Lever, L. M. (Ardwick)||Silkin, Rt. Hn. John (Deptford)|
|Davies, Ednyfed Hudson (Conway)||Lewis, Kenneth (Rutland)||Silverman, Julius (Aston)|
|Davies, Harold (Leek)||Loughlin, Charles||Slater, Joseph|
|Davies, Robert (Cambridge)||Luard, Evan||Smith, John|
|Dell, Edmund||Lyon, Alexander W. (York)||Steel, David (Roxburgh)|
|Dewar, Donald||Lyons, Edward (Bradford, E.)||Strauss, Rt. Hn. G. R.|
|Diamond, Rt. Hn. John||MacDermot, Niall||Swain, Thomas|
|Dickens, James||Macdonald, A. H.||Swingler, Stephen|
|Dobson, Ray||McKay, Mrs. Margaret||Taverne, Dick|
|Doig, Peter||Mackenzie, Gregor (Rutherglen)||Taylor, Edward M.(G'gow, Cathcart)|
|Doughty, Charles||Mackie, John||Taylor, Frank (Moss Side)|
|Driberg, Tom||Mackintosh, John P.||Thomas, George (Cardiff, W.)|
|Dunnett, Jack||McNamara, J. Kevin||Turton, Rt. Hn. R. H.|
|Dunwoody, Mrs. Gwyneth (Exeter)||MacPherson, Malcolm||van Straubenzee, W. R.|
|Eadie, Alex||Mallalieu, J.P.W.(Huddersfleld, E.)||Vaughan-Morgan, Rt. Hn. Sir John|
|Ellis, John||Marquand, David||Wainwright, Edwin (Dearne Valley)|
|Ennals, David||Maxwell, Robert||Walker, Harold (Doncaster)|
|Evans, Albert (Islington, S.W.)||Maydon, Lt.-Cmdr. S. L. C.||Wallace, George|
|Fernyhough, E.||Mayhew, Christopher||Watkins, David (Consett)|
|Fletcher, Raymond (Ilkeston)||Mendelson, J. J.||Wellbeloved, James|
|Fletcher, Ted (Darlington)||Mikardo, Ian||Wells, William (Walsall, N.)|
|Fletcher-Cooke, Charles||Millan, Bruce||Williams, Alan Lee (Hornchurch)|
|Floud, Bernard||Milne, Edward (Blyth)||Wright, Esmond|
|Foot, Michael (Ebbw Vale)||Molloy, William|
|Forster, Sir John||Moonman, Eric||TELLERS FOR THE AYES:|
|Goodhart, Philip||Morgan, Geraint (Denbigh)||Mr. Gourlay and Mr. Harper.|
|Barber, Rt. Hn. Anthony||Biggs-Davison, John||Body, Richard|
|Bennett, Sir Frederic (Torquay)||Birch, Rt. Hn. Nigel||Boyd-Carpenter, Rt. Hn. John|
|Bennett, Dr. Reginald (Gos. & Fhm)||Black, Sir Cyril||Braine, Bernard|
|Biffen, John||Blaker, Peter||Brown, Sir Edward (Bath)|
|Buck, Antony (Colchester)||Holland, Philip||Osborne, Sir Cyril (Louth)|
|Bullus, Sir Eric||Hooson, Emlyn||Page, Graham (Crosby)|
|Carlisle, Murk||Hughes, Emrys (Ayrshire, S.)||Pardoe, John|
|Clegg, Waller||Hughes, Hector (Aberdeen, N.)||Percival, Ian|
|Cooper-Key, Sir Neill||Hunt, John||Pink, R, Bonner|
|Crawley, Aidan||Hutchison, Michael Clark||Price, David (Eastleigh)|
|Crowder, F. P.||Iremonger, T. L.||Pym, Francis|
|Dalkeith, Earl of||Irvine, Bryant Godman (Rye)||Rawlinson, Rt. Hn. Sir Peter|
|Dance, James||Jackson, Peter M. (High Peak)||Renton, Rt. Hn. Sir David|
|Dean, Paul (Somerset, N.)||Kerr, Mrs. Anne (R'ter & Chatham)||Roebuck, Roy|
|Drayson, G. B.||Kerr, Russell (Feltham)||Royle, Anthony|
|Eden, Sir John||Kitson, Timothy||Shaw, Michael (Sc'b'gh & Whitby)|
|Elliott, P. W.(N'c'tle-upon-Tyne, N.)||Knight, Mrs. Jill||Silverman, Sydney (Nelson)|
|Errington, Sir Eric||Lancaster, Col. C. G.||Summers, Sir Spencer|
|Eyre, Reginald||Legge-Bourke, Sir Harry||Tapsell, Peter|
|Fortescue, Tim||Lewis, Arthur (W. Ham, N.)||Taylor, Sir Charles (Eastbourne)|
|Gilmour, Ian (Norfolk, C.)||Loveys, W. H.||Thatcher, Mrs. Margaret|
|Clover, Sir Douglas||Lubbock, Eric||Wainwright, Richard (Colne Valley)|
|Glyn, Sir Richard||Mackenzie, Alasdair(Ross & Crom'ty)||Walters, Dermis|
|Grant, Anthony||McMaster, Stanley||Ward, Dame Irene|
|Grant-Ferris, R.||Maddan, Martin||Webster, David|
|Gregory, Arnold||Maxwell-Hyslop, R. J.||Weitzman, David|
|Hale, Leslie (Oldham, W.)||Mills, stratton (Belfast, N.)||Whitelaw, Rt. Hn. William|
|Harris, Frederic (Croydon, N.W.)||Miscampbell, Norman||Wills, Sir Gerald (Bridgwater)|
|Harris, Reader (Heston)||Mitchell, David (Basingstoke)||Wilson, Geoffrey (Truro)|
|Harrison, Brian (Maldon)||Monro, Hector||Winstanley, Dr. M. P.|
|Harvey, Sir Arthur Vere||More, Jasper||Wylie, N. R.|
|Hawkins, Paul||Morrison, Charles (Devizes)||Yates, Victor|
|Heald, Rt. Hn. Sir Lionel||Neave, Airey|
|Heseltine, Michael||Onslow, Cranley||TELLERS FOR THE NOES:|
|Hobson, Rt. Hn. Sir John||Orr-Ewing, Sir Ian||Mr. Deedes and Mr. Sharples.|
§ Mr. Speaker
We come now to Amendment No. 79, with which we shall discuss Amendment No. 80, in page 9, line 29, at the end to insert:(4) Where a Court is willing to accept a majority verdict, the Court shall so inform the jury and thereafter the Court shall ask the jury if they are agreed upon their verdict either unanimously or by a majority verdict and the foreman of the jury shall not state in open Court the number of jurors who respectively agreed to or dissented from the verdict.
§ Mr. Hale
The hon. Gentleman said, "The House having come to a conclusion …", but as there were 320 Members abstaining on that Division it seems impossible, in those circumstances, for the House to come to a conclusion. Therefore, may I bid the hon. Gentleman "Goodnight" and thank him for allowing this intervention? I feel that if these decisions are to be taken on a majority of a minority there really is not very much point in discussing—
§ Mr. Buck
I am none the less grateful for the intervention, and if the Home Secretary sees fit to interrupt me in order to answer it I shall be only too delighted. In the absence of any intervention from the Front Bench opposite, I am afraid that it is not within my power to meet the hon. Gentleman's point. I think that it is a good point, but I see no stirring on the Front Bench opposite and therefore I think that it will remain unanswered.
The House have apparently come to something of a determination in favour of majority verdicts, it is now vitally important that that decision should be implemented in as satisfactory a way as possible. Clause 10(2) at present provides that:A court shall not accept a majority verdict unless the foreman of the jury has stated in open court the number of jurors who respectively agreed to and dissented from the verdict.We are creating first- and second-class verdicts, and the most important aspect of this is that we are also creating first-and second-class acquittals. In my view and that of many of my hon. Friends—I am glad to have the approval of my hon. and learned Friend the Member for Solihull (Mr. Grieve), who did not agree with me on the main issue—it is a bad thing to create first- and second-class verdicts which are to be made public in the way subsection (2) provides at the moment.
1903 Let us consider the position of a prisoner who is found not guilty by a majority. [Interruption.]
§ Mr. Speaker
Order. It is very difficult for an hon. Member to address the House if a series of conversations is going on.
§ Mr. Buck
I am much obliged, Mr. Speaker.
Let us consider the position in which a person will find himself if he is acquitted of a charge by a majority. What will happen in court will go something like this: the clerk of the court will ask, "Are you agreed upon your verdict?" and the foreman will rise and say "Yes", and this formula will then be put: "Do you find the prisoner guilty or not guilty of" whatever the charge had been, and the answer will be, "We find him not guilty"; the foreman will then be asked, "Was that the verdict of you all?" and in majority cases the foreman will have to say, "No, it was not the verdict of us all; two of us thought that he was guilty."
§ Mr. Sydney Silverman
Is the hon. Gentleman sure that it will work like that? I am not certain myself. I would have thought that if the law were amended in the sense of Clause 10, which the House has just accepted, it would not be possible for a jury to give a verdict and then be asked about the numbers. The jury will be asked not whether it finds the prisoner guilty or not guilty, but "Which way did you vote and how many were there on each side?" That is a totally different thing.
§ Mr. Buck
The formula may be somewhat different from what I have suggested, but subsection (2) provides that the court shall not accept a majority verdict unless the foreman of the jury has stated in open open court the number of jurors who respectively agree to and dissent from the verdict. Although it might differ a little from the version which I have adumbrated, in effect it will come to the same thing, although there may be some adjustments. Clearly, at some stage in majority cases the foreman will have to say that not all the jury found the prisoner not guilty and that two members thought that he was guilty.
In those circumstances, this person will be saddled with a second-class verdict. His counsel will ask for the man to be 1904 discharged, and he will be discharged and, according to our system, he will go out as an innocent man. But will he, in fact, be regarded as such when two good men and true will have found beyond a reasonable doubt that he was guilty?
Let us consider the effect on a person acquitted, although convicted by two of his fellow men, who is in a position of some trust. What will be his employer's position? If he is in a position of trust, his employers may have a duty, for example, to depositors if he is employed by a bank. Is a bank clerk who has been found not guilty of a charge involving dishonesty to be allowed to continue in his job? It is pretty certain that he is unlikely to get to bank manager status with something like that behind him. What would be the effect on civil servants? Employers will have an unfair burden with this sort of consideration.
It is a highly invidious position all round. The worst which can happen when a man is acquitted by a majority is that he will be ruined and the best that can happen to him is that his enemies will say that he was jolly lucky to get off and it was only by a majority, and that two people thought beyond reasonable doubt that he had been guilty of the offence. All the old adages will come up about there being no smoke without fire, and so on, and people will say, "Buggins got away with it; two people saw through him". That is the least that can happen to him, and it is highly invidious.
What are the objections to such an Amendment? The first Amendment would provide that a jury should be asked only whether it is agreed upon its verdict and comprehensively agreed, either by a majority or unanimously. It would only answer that it was agreed upon its verdict and would then give it.
I suppose that the first objection to my proposition is that which was mentioned earlier in the interesting debate on the substantial issue. It is said that it is important that there should be no confusion if there are to be majority verdicts. The possibility of confusion can be overstated. Obviously, it will be necessary for the judge to explain very fully to the jury just before it retires what the position is and possibly to reiterate it when the jury comes back to 1905 give its verdict. There is no formula in the Bill and a formula will have to be worked out, and it will have to be explained to the jury with meticulous care by the judge. The chances of confusion are fairly remote. However, if there is substance in that argument, it is perfectly possible to get over it, as I shall indicate later.
At the moment, we still have subsection (3) which says that a court shall not accept a majority verdict unless it appears to the court that the jury has had not less than two hours for deliberation, or such longer period as the court regards as reasonable, having regard to the nature and complication of the case. That has to be got over if subsection (3) is retained, and I have some doubt as to whether subsection (3)—
§ Mr. Speaker
Order. The hon. Gentleman cannot now discuss whether subsection (3) should be kept in or taken out.
§ Mr. Buck
I am assuming that it will be left in and not extracted by another place, but the position can be met. The foreman of the jury would write on a piece of paper what the voting was, whether it was 10 to two, or unanimous. That paper would then be shown to the judge and to those representing the accused and the prosecution. It must go to all three, because it is rightly a principle of our law that there should be no private communication between jury and judge. If it is thought, as at the moment, that subsection (3) should be retained, the position could be met perfectly satisfactorily in that way.
The only other objection to an Amendment like this of which I can think is that we would not have as much statistical knowledge about the matter as we might otherwise. That can be met, because the judge in some anonymous way, without indicating the case, could make a return, so that we would have the numbers of majority verdicts and of unanimous verdicts. I am sure that the Government would not wish any statistical compilation to be regarded as of major significance in considering what is just and what is not.
I say with some vehemence that it would be a fundamental mistake to introduce first-class and second-class verdicts, to have a man branded for the rest of 1906 his life as having been acquitted only by a majority, so that it could be said that two good men and true were convinced of his guilt.
The Scottish system may be called in aid, but there are fundamental differences, as we have heard from a most able speech by my hon. and learned Friend the Member for Edinburgh, Pentlands (Mr. Wylie), between the two systems. In Scotland a verdict of not proven can be returned. That means that the whole body of 12 jurors have concluded that the prosecution case has not been made out. That is very different from people having positively concluded that a man is not guilty.
In view of what we have been told by my hon. and learned Friend the Member for Pentlands, the Scottish parallel does not have much validity, but in any event there is the fundamental difference that in one case one would be able to say that the jury had not had sufficient evidence to reach a verdict while, in the other situation, there would have been a majority verdict, with two people not having been convinced beyond reasonable doubt that the accused was not guilty. Those are my reasons for putting forward the Amendment.
§ Mr. Grieve
I should like to briefly support my hon. Friend the Member for Colchester (Mr. Buck) in his Amendment. To retain subsection (2) would have the result which he has postulated, that we would have first and second-class verdicts, and that would be a very bad thing indeed for the administration of justice. It would result in persons who were known to have been acquitted by a majority having some slight shadow over them for the rest of their lives.
It might be thought that there is an administrative difficulty here, but I do not believe that there is. In Committee, I drew attention to a formula which I thought would meet the necessities of the case, and would result in there being no public statement whether it was a majority verdict or a unanimous one. All that would be necessary would for the clerk of the peace, in asking the jury for their verdict to say something like this:Members of the jury, have you reached a verdict in this case? Are you either unanimously, or by a majority of not less than 10 to two, come to a conclusion?1907 The foreman of the jury would say, "Yes" and the verdict would then be given. The public would not know whether it was unanimous or a majority verdict. For the administration of justice, that would be a very great convenience.
I am convinced that the result would be that a man would leave the court and no one would be able to point a finger at him and say:Ah, but two people on that jury would have convicted him.That, I believe, would be very bad, and that is why I support my hon. Friend.
§ Mr. Mark Carlisle (Runcorn)
I shall be very brief, not because I do not think that this is not an important matter, but because it is only a short point. In Committee, when I moved a similar Amendment, the Home Secretary was kind enough to say that he would give serious consideration to this point. He was pressed very strongly about it by other hon. Members. I suppose that we can take it from what he said last night that he will say that, having given further consideration to the matter, he is not prepared to accept this proposal, and is standing by the proposals in the Bill.
I want to try to answer the two arguments which he put up in his speech yesterday to justify subsection (2). The first dealt with confusion. As my hon. Friend the Member for Colchester (Mr. Buck) said, this is not a serious argument. Under the Clause as it stands, a jury cannot return a majority verdict until the judge has indicated that he would be willing to accept it, so presumably he will have to send for the jury and tell it that he considers that it has been out long enough, and that he will now accept a majority verdict by 10 to two. That will be made very clear to the jury, and presumably he will tell it this at the beginning and, when it goes out, that if it comes back within two hours it has to be unanimous. I find it difficult to see how confusion could arise with the numbers concerned.
The second point, on which the Home Secretary laid stress last night, was that it was necessary to know, for the purpose of research into the jury system. I find that difficult to understand, because I do 1908 not see what possible advantage the knowledge of the voting will be in any research. I do not believe that it will show the Home Secretary anything at all. All that it will show is that in a certain number of juries there has been disagreement. That does not mean that, if the jury still had to be unanimous, it would not have returned a unanimous verdict. It may mean merely that it decided very early on that one or two did not agree with the rest and the remainder of the jury decided, rather than argue it out, that they would wait for at least two hours and then return a verdict.
Equally, if the jury returns a unanimous verdict it may be that early on, the two are standing out and they say to themselves,What is the point of waiting two hours? Let us give in now and say that we are unanimous, because it will be the same in the end.I cannot see that there will be an advantage to the Home Secretary in having knowledge of the voting. The arguments put up by my hon. Friend the Member for Colchester are absolutely overwhelming. The danger will be that a man acquitted by a majority verdict will always be open to someone saying that two men have found him guilty. Similarly, the danger with the convicted man would be that he would say that there were two who thought him innocent. While I hope that the Clause, which has apparently been passed by a minority, will find its way out of the Bill before it completes its passage through the whole of Parliament, I hope that if it is to remain this subsection will be looked at.
§ The Under-Secretary of State for the Home Department (Mr. Dick Taverne)
The main point made against this subsection was that in cases of acquittal by a majority verdict it would be a slur upon a man. I doubt whether an acquittal by a majority would be more of a slur than the other possibility which we have considered, the disagreeing jury, in the sense that in any event someone acquitted by a majority would be in an infinitely better position than someone not acquitted at all.
The element of a slur will not really be something which is more of a disadvantage under the present circumstances of the Clause than it is under 1909 the present law. It is doubtful whether the existence of a majority verdict as opposed to a unanimous verdict is something that can be hidden from the public and which will not come out in any event.
In the first place, the judge will ask the jury to be unanimous. In certain cases the jury may return and tell the judge that they are unable to agree. If the judge then feels, as the Clause stands, that it is reasonable, after the deliberations that the jury has had, to accept a majority verdict, he will then tell it that he can Co so. If a jury then returns with the verdict straight away, which will happen in a number of cases, it will be known that there is a majority verdict.
§ Mr. Carlisle
With respect to the hon. and learned Gentleman, he has not been so long away from practice at the Bar to be allowed to get away with that argument. He knows that often judges send for juries or juries come back and say that they cannot agree. The judge asks them to retire again and the jury then returns. It may come back to the court quite shortly afterwards but no one suggests that there is any doubt in the unanimity of its verdict.
§ Mr. Taverne
No, that does not suggest a doubt of unanimity in present circumstances, but in the majority of cases, where the judge finds that a jury is unable to agree, and then says that he will accept a majority verdict, there will be a suspicion on the part of the public twat a majority verdict has been arrived at. Where there has been that suspicion, and where it is unjustified, it would be much better that it should be known to be unjustified than that it should he suspected that a majority had been reached.
In Scotland, there is the announcement of the tact that a majority verdict has been arrived at. With respect to the hon. Member for Colchester (Mr. Buck), the differences in the Scottish law of evidence are really totally irrelevant to this problem. The different kinds of verdict in Scotland are totally irrelevant. One can have a "guilty" verdict by majority, a "not proven" verdict by majority, and a "not guilty" verdict by majority. In each case it is known to everyone concerned whether the verdict is unanimous or by a majority. The Scottish example is a very 1910 good one to take. The absence of disquiet in Scotland about majority verdicts being known is something which should support confidence in the law, as it will be changed.
The hon. Member for Colchester, and the hon. Member for Runcorn (Mr. Carlisle) said that the argument about the need to avoid confusion was not very substantial. The fact remains that even at present, when clear directions are given to the jury that it must be unanimous, there are cases in which confusion arises. It may be that the verdict is not unanimous. One of the jury may have protested and said, "It is not the verdict of us all". With a majority verdict, it is desirable to ensure that the majority is arrived at by the correct proportion and that it is not by nine to three. I should have thought that the need to avoid confusion was a consideration which the House should bear in mind.
The hon. Member for Runcorn threw doubt on the value of having statistics available. During the debate on the principle of majority verdicts a number of hon. Members called for more research into juries. That cannot be easily undertaken, because there would be widespread objection to the "bugging" of a jury room or to taking a tape recording of what went on in the jury room. There are widespread objections, which I do not share, to the interviewing of jurors about what went on in the jury room. It is impossible to do proper research into juries.
I have some doubt how valuable simulated juries are in providing proper evidence. But one thing which we can learn under the majority system is whether there has been a verdict of 10 to two, 11 to one, or a unanimous verdict. How are we to know in how many cases these decisions are arrived at unless the results are published in court? The call for more knowledge about the working of juries would go unanswered if the results were not made known in the court.
§ Mr. Taverne
I was about to come to that.
1911 The hon. Member for Colchester suggested that the judge should make private inquiries and provide statistics afterwards showing in which cases there had been a majority verdict and in which cases there had not. It is undesirable that judges should make private inquiries about what goes on—I see the hon. Member for Runcorn nodding—but the public should know about it. If we want statistics about how the jury system is working, we want them to be announced in open court.
Since the argument about a slur does not apply, since it is likely that the existence of a majority verdict will be known or suspected even in cases in which it has been unanimous, and since there is no disquiet about this matter in Scotland, I cannot accept the Amendment.
§ Mr. Walter Clegg (North Fylde)
The Under-Secretary of State is being extremely obtuse about the effect which the Amendment would have on people acquitted on a majority verdict. It is all very well for him to say that there is no general disquiet about this matter in Scotland. But I dare say that no research has been carried out into how people feel when they are on the receiving end of a majority verdict and what effect it has on their lives. This has been going on in Scotland for some time. People there may have been conditioned to it. We have not been conditioned to it in this country.
I feel very strongly about a man who has been tried by a jury on which a perverse juror for some crankish reason registers a vote for conviction when 11 others register a vote for acquittal having this thrown at him for the rest of his life. On the whole, people are uncharitable in these matters. It is all very well for the hon. and learned Gentleman to say, as has been said by other Members on both sides, including my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg), that there is the same casting of a slur if there is a disagreement among the jury. But if one believes, as many of us believe, that there will be an increase in majority verdicts being registered against a very small number of disagreements, this becomes very much more of a problem. 1912 The Amendment is a way in which it can be met.
I agree that statistics should be kept. I see nothing wrong with the clerk of assize or clerk of the court, who asks the jury for its verdict, being informed by the foreman of the jury what the vote was so that statistics could be kept. I hope that one of the reasons why the Home Secretary is anxious to keep statistics is that if there is a large increase in majority verdicts he will reconsider the whole matter.
§ Mr. Crowder
I do not think that the Government realise the extent to which they are playing with fire in this Clause. A number of eventualities can, in my view, flow from it. One, which is extremely dangerous, is this. Every juror will know that the jury is entitled to return a verdict of 10 to two. One does not know what goes on in the jury room. It may be that as soon as the jurors get there the foreman will ask for a vote or a show of hands. If it is 10 to 2 or 11 to 1, he will say, "We need not discuss the matter further. Has anybody got a pack of cards, because we have to wait here for two hours?" If the jury is operating at somewhere like London Sessions, that could easily happen.
Suppose that, after the judge has told the jury that it can return a verdict of 10 to 2 after two hours, two of the jurors are in disagreement. It may be said to them, "Although this man is to be acquitted, is it fair that he should be sent out of this court with a slur upon him?" If that were said to a dissenting juror, as it is bound to be said, he would be a most unusual person if he did not say, "There is absolutely nothing in it in the final result. The man has to be acquitted on this basis, although I would not acquit him. In the circumstances, I will waive my objection so that he does not leave the court with a nasty stain on his character."
There is another eventuality to which reference has been made. Suppose that there is a nasty-minded, peverse juror who does not like the defendant, perhaps for social reasons or it may even be for political reasons. He will stand out, come what may. The accused person may be a civil servant, a policeman, somebody in an official position or someone in the City of London who has hitherto borne a very 1913 high character. That man cannot say to the judge, "This will not do. I want a complete acquittal, not a majority acquittal. I therefore demand that I should be tried again so that my good name can be cleared". That course is not open to him.
Because I know that this matter will give rise to enormous complications for judges, whether they be recorders or High Court judges, I ask the Home Secretary to think again.
§ Mr. Taverne
It is true that my right hon. Friend said that he would consider the matter, but he made it clear that on balance he was in favour of retaining the subsection.
§ Mr. Buck
I am not suggesting that there has been a breach of an undertaking or anything of that character, but there was very little in the hon. and learned Gentleman's speech which suggested any concession to the arguments put forward from this side of the House and the argument which, no doubt, would have been made from the Government benches if there were not burning issues being considered elsewhere. One is tempted to ask what the position about majority verdicts is in some of the Common Market countries, but, unfortunately, the experts are not here to answer such questions.
The arguments which the Parliamentary Secretary has deployed are not convincing, and it seems that what my hon. and learned Friend the Member for Ruislip—Northwood (Mr. Crowder) has just said goes a long way to demolishing them utterly.
The one additional point which emerges from what my hon. and learned Friend said is that it must be clear to the hon. and learned Gentleman that there will be far more majority verdicts than there are disagreements at the moment, so to correlate the position of a person who is subjected to a second- 1914 class verdict with someone who is subjected to a disagreement will not take the matter much further. I agree that someone who is subjected to a disagreement has some sort of stigma. The question does not arise often, but, if there is one disagreement, there is a retrial and, in a high proportion of cases, there is then a conviction. In a case where there is a second disagreement, the accused person is discharged, but he has some sort of stigma attached to him in that two juries have failed to agree. But no system can be perfect, and I cannot think of a better way of dealing with that sort of situation.
I must express myself as extremely disappointed. It is an excessively retrograde step that we should unnecessarily introduce first- and second-class verdicts in this way.
The hon. and learned Gentleman referred to my suggestion as if the judge would be making private inquiries, but that is not the way it would work. It would be automatic, and the foreman of the jury would be instructed by the judge that he should jot on a piece of paper, which he should initial, whether the verdict was unanimous or, if it was not, what the voting was. That is hardly fairly summarised by referring to the judge making private inquiries. It would be an automatic part of the proceedings. There could even be forms drawn up by the clerk of the court so as to make the position clear on each count. The forms would be filled in by the foreman and handed to the judge.
That would meet the point which was troubling my hon. Friend the Member for Runcorn (Mr. Carlisle), because that could be seen by counsel for the defence and for the prosecution, so that there could be no suggestion of communication between judge and jury. That would meet the statistical point entirely. The judge could make the forms available to the Home Office in an anonymous way after he had finished his assize. That would meet the point utterly and, as that main point can be met in an almost entirely satisfactory manner, the Government ought to accept the principle of the Amendment and agree that, in another place, they will deal with the point in a way which is satisfactory to them.
§ Amendment negatived.