JURY CHECKS (Hansard, 1 August 1980)

§ The Attorney-General (Sir Michael Havers)
With permission, Mr. Speaker, I should like to make a statement about jury checks.
I have now completed the review, which I have been carrying out over recent months in consultation with the Home Secretary, the Lord Chancellor and the Director of Public Prosecutions, of the arrangements whereby jury checks are carried out in a limited number of cases under the guidelines laid down by my predecessor. In reaching my conclusions, I have taken account of the recent judgments of the Court of Appeal, particularly that in the case of R v Mason. A copy of the revised guidelines that I propose to issue has been placed in the House of Commons Library.
The existing law provides, as it has for over 600 years, and rightly in my view, that the parties to any jury trial may inspect a copy of the panel from which the jury in their trial will be chosen, and there is no legal restriction on the use which may be made of this information. It has been accepted by the courts that the objects of this provision were to enable the parties to inquire about the members of the panel and to decide whether any should be challenged. I have also taken into account that, although the selection of those who are summoned for jury service from among those qualified and the final selection of those who are called to serve on a particular jury must be random, both parties to criminal proceedings have the right to object to a juror being called to serve, the exercise of which inevitably limits the truly random nature of the jury which eventually tries the case.
A distinction must be drawn between checks to which my guidelines refer—namely, on the records of police special branches—and checks of criminal records which may be made for the primary purpose of preventing persons who are disqualified by reason of their previous convictions from sitting on a jury. It is a criminal offence for a disqualified person knowingly to serve on a jury, and a check of criminal records of the members of a panel is a matter for the police. That was recognised by the Court of Appeal in R v Mason as a proper thing to be done.
1930 The Association of Chief Police Officers, after discussions with the Home Office, is making recommendations to its members as to the circumstances and procedures relating to checks on criminal records, and these will be annexed to my guidelines.
The checks, which for convenience I shall refer to as "authorised checks", and to which my guidelines refer, are checks which go beyond criminal records and for purposes wider than the mere discovery of previous convictions. I consider that it is in the public interest that the prosecution should continue to make use of its right to make inquiries about a jury panel with a view to exercising its right to stand by a potential juror. The practice, however, should not be unlimited, and I therefore endorse the general principles of the previous guidelines which were self-imposed restraints on the part of the Director of Public Prosecutions as a prosecutor.
Experience, recent observations of the Court of Appeal and a keen public interest in the subject have nevertheless caused me to make some revisions to those guidelines. The most significant are as follows. First, no check on the records of police special branches will be made except on my authority, following a recommendation from the Director of Public Prosecutions. Secondly, except in terrorist cases, such checks will not be authorised in cases involving so-called strong political motives. Thirdly, in cases involving security, such as under the Official Secrets Act, such checks will be authorised only when national security is involved and it is expected that the court will be asked to sit in camera. Fourthly, in no other type of case will such checks be authorised.
Except where and in so far as it may be necessary to confirm the identity of a member of the panel against whom the initial checks had raised doubts, checks will not be made which go beyond checks on criminal records or those of police special branches.
All parties to proceedings have a statutory right to inspect the jury panel under section 5 (2) of the Juries Act 1974. Therefore, the judge's authority for access is not required and will not be sought. However, the judge and defence counsel will be informed when a check has been authorised.
1931 The result of an authorised check will be sent to the Director of Public Prosecutions. The director will then decide, having regard to the provisions of the guidelines, what information ought to be brought to the attention of prosecuting counsel. Records will be kept by the Director of Public Prosecutions, which I will see and thus be able to monitor the operation of the guidelines.
I have recognised that the defence may have a particular reason to wish to have the panel checked for disqualified persons or to seek assistance in obtaining information relative to its right of peremptory challenge but has no access to the information available to the Crown. It is also my view that the courts have no jurisdiction to order the police to reveal information on their records relating to jurors. Accordingly, in cases which would fall within my guidelines, I shall be prepared to consider a request made by defence counsel through the Director of Public Prosecutions for assistance in obtaining information. I understand that chief constables, on the general recommendation of their association, will be prepared to consider a request relating to checks on criminal records, if approved by the director. In both cases, the results of any check undertaken will be sent to the Director of Public Prosecutions, who will treat them in accordance with my guidelines. The intention of this proposal is merely to assist the defence and not in any way to restrict the right of the defendant to inspect the panel and to take such action as is lawful.

§ Mr. Jeffrey Thomas
We welcome the fact that at last the Attorney-General has seen fit to make a statement on jury checking or vetting—better late than never. However, we take issue with him on a number of matters.
The statement gives cause for concern. An opportunity has been lost properly to look again at the guidelines introduced by my right hon. and learned Friend the former Attorney-General. In a sentence, the proposals are cumbersome, unwieldy and in many respects unnecessary.
It is unfortunate, to say the least, that a matter of such grave constitutional importance should be dealt with today, on a Friday.
Every year some 200,000 jurors are sworn. They see at first hand and take 1932 part in the criminal justice process, which gives people an identification with the enforcement of the criminal law. It is important therefore that the system should work properly and in the interests of justice. Unhappily, in recent times it has become fashionable in certain quarters to be critical of jurors and the jury system. Not least among the critics is a small minority of judges, aggrieved in some instances when juries bring in verdicts with which they do not agree. They seem to forget that that is one of the great strengths and glories of our jury system. Our system is such that jurors speak with a free voice, independent, untrammelled and not intimidated by judicial or other authority.
May I ask the right hon. and learned Gentleman a number of questions arising from his statement? Is he aware that the case of R. v. Mason has been heavily criticised in many quarters, not least by The Times in a striking leader? Does he agree that the question of providing information to prosecution and defence counsel was put into a different category when his noble Friend the Lord Chancellor decided, at almost dead of night, without consultation and debate in this House, that the occupation of jurors should no longer be given in the list?
On the question of challenges, the constitutional right of the defence—although not the Crown, of course—to challenge jurors, having been reduced from seven to three, has been greatly restricted.
Does the right hon. and learned Gentleman think that the Home Office should deal with the whole question of checks and not the chief officers of police?
Finally, when will the right hon. and learned Gentleman hold further consultations, and with whom—in the near future?

§ The Attorney-General
It is true that this statement is rather late—mostly because of the decision in the Mason case. The statement had been prepared and agreed before then. As I am sure the hon. and learned Member will be the first to recognise, that decision was a considerable spanner in the works.
As regards the statement being made on a Friday, I have been available all week for this. There has been a great deal of pressure on the House and a large number of statements. There have been two 1933 Supply days, which I think the business managers were determined not to cut into any more than was necessary. This Friday is, of course, a very convenient day in view of the nature of the debate in which the House is engaged. Many people will share an interest in the debate and in this matter.
I think that to suggest that there has been a lost opportunity to look at my predecessor's guidelines is an unfair criticism, because I have made considerable changes to those guidelines and I have looked carefully at them.
Perhaps I may deal with the "better late than never" points which eventually arose in the form of questions from the hon. and learned Gentleman. It is true that Mason has been criticised, but it is now the law, and the law has to be enforced. It is one of the purposes of the statement that information to prosecution and defence should be even-handed. I think that the reason that occupations have been taken out is the number of occasions on which people were challenged simply because their occupation was one which the defence decided was not an appropriate occupation for a juror to hold in the nature of the case being tried.
As regards the rights of the defence to challenge being reduced from seven to three, that was the decision of the House, with, I think, very little opposition, during the course of the Criminal Law Bill.
I simply do not understand why the hon. and learned Member asks why the Home Office does not deal with these checks rather than the Association of Chief Police Officers. The Home Office does not have control over provincial police forces. It cannot tell them exactly what to do. It can merely issue guidance. ACPO has, very sensibly I think, drawn up some guidelines which will impose restrictions upon powers which Mason has underlined that they have.
As regards future consultations, the principal matter that we shall have to discuss is whether the group of disqualifications should be widened, and whether there should be further legislation which would impose a duty upon a juror attending at the court of trial to sign a form, for example, to the effect that he is not disqualified, and if he signs it falsely he would, perhaps, commit an offence.

Several Hon. Members
rose—

§ Mr. Speaker
Order. Perhaps I may appeal to hon. Members to make sure that questions are succinct, because we are taking time out of the debate on the prison system.

§ Mr. Grieve
As one who has repeatedly urged my right hon. and learned Friend to have regard, above all, to the protection of society and the administration of justice in regard to any danger of the infiltration of juries by evilly disposed persons, perhaps I may take this opportunity of congratulating him on new guidelines which hold the balance very evenly between the defence of society and the State and the needs of the defence.

§ The Attorney-General
I am grateful to my hon. and learned Friend.

§ Mr. Freud
I think that the right hon. and learned Gentleman's statement—if not the timing or the notice given—will be very largely welcomed. Does he agree that, in the case of the Official Secrets Act, it is only section 1 on which exemption should be made? Secondly, does he agree that, if a defence counsel has access only if the police and the Director of Public Prosecutions are willing for it to be given, it would be preferable to allow an independent judge to be involved in this process?

§ The Attorney-General
On the first point, there are cases under section 2 of the Official Secrets Act which would involve national security and in which the evidence may be given in camera, so it would, of course, cover those.
Concerning the defence, it is well known that Directors of Public Prosecutions all through the years have always been most anxious to ensure that the defence has been given every assistance. I am sure that they will make certain in this case, when they act as a sieve, that that will be so, and in any question of doubt they will consult me.

§ Mr. Fletcher-Cooke
I accept that my right hon. and learned Friend's statement represents a perfectly fair and reasonable compromise between the difficult conflicting interests involved in this matter. However, has he considered one or two of the consequences? For example, has he considered the potential damage to the 1935 reputation of a juror who is asked to stand by for the Crown? Does he recollect the situation in the anarchists' trial in which an eminent chartered accountant had to stand by and receive a great deal of uninformed criticism? How does he propose to overcome that difficulty?

§ The Attorney-General
I am very grateful to my hon. and learned Friend for reminding the House of this matter, because the fact that the juror is challenged does not and must never be seen to mean that he either has a serious criminal record or is in any way unsound. I am delighted to have this opportunity to make that clear.
The case of the eminent chartered accountant is a very good case in point. This person was named upon a document found in the possession of the defendant. That document had a number of other names on it, including that of the late Lord Mountbatten. One view of it, which could be fairly taken, was that it was a "hit" list for a terrorist organisation. It would obviously be quite wrong to allow that individual to serve on the jury because, say, when exhibit 92 was shown to the jury, he might say "That is me," because the document contains his name, his Christian names, his address and his telephone number, and they are all right. Therefore, he had to be taken off the jury and no reason could be given, when he appeared on television and was interviewed by the press, because it might have prejudiced the trial. Therefore, he suffered, unfortunately, but it was nothing to do with a security check; it was simply because a police officer had the good sense to recognise the name as being on one of the documents. It was obviously in the interests of justice—I think that the trial would have had to be stopped and started again—not to allow that person to serve.
I am pleased to have this opportunity to say publicly that there is nothing of any kind known against that man which tarnishes his character in any way.

Mr. J. Enoch Powell
Will the Attorney-General enlarge briefly upon the reasons for the second of his revisions to the guidelines? Does "terrorist" in that connection have the meaning that it has in the prevention of terrorism Act or some other meaning? What, in any 1936 case, is the ground for distinguishing between violent offences and other crimes for the purpose of this change?

§ The Attorney-General
What happens is that in terrorist cases particularly—and we have tried to limit it as far as possible—where very strong political views may be held, there is always a risk that there will be someone whose views are so extreme, particularly on one side or another, in a charge of terrorism that he will not approach the trial of the defendant fairly, from one side or the other. Such persons may be so violently opposed to any form of terrorism, or so violently pro that form of attack on society, that we have to know in order to remove them.
I give the House an example. In one terrorist case it was found that one of the jurors on the panel was the mistress of Michael X. One can see that she would not have been a suitable person to try the case, because he was hanged the week before in the West Indies.

§ Mr. Mellor
May I press my right hon. and learned Friend a little further about the case of Mason? I understand that that case gave approval to the practice whereby prosecution counsel may be supplied with notes of previous convictions and other matters that are not, by the will of Parliament, to exclude someone from serving on a jury, and that such information may be used as the basis for a successful challenge by the prosecution to that person serving on a jury. Is it not right to say, as The Times said, that that flouted the will of Parliament, and is it not unacceptable that nothing is to be done about it?

§ The Attorney-General
It is important to make clear that the will of Parliament is that under no circumstances may certain disqualified people serve on juries. Lord Justice Lawton, supported by his fellow judges, said in the case of Mason "You may not check a jury just to find out what criminal record a man has, but if you are checking a jury in order to find out whether it includes disqualified people and other information is thrown up in the course of that check, counsel may make use of it in the appropriate case".

§ Mr. Christopher Price
Is the right hon. and learned Gentleman aware that 1937 each further revision of the guidelines is in danger of eroding the English tradition of a random jury and, in that sense, eroding the whole jury system itself? Is he further aware that some of us have doubts about the DPP and himself being in charge of the operation of the guidelines, because the Lord Chancellor made a sudden change in the rules, in relation to the Shrewsbury trade union trial in the early 1970s, without informing Parliament? Will the right hon. and learned Gentleman report to Parliament annually in such a way that we can monitor the operation of the guidelines and ensure that we know the extent to which they are being used and exactly what is happening?

§ The Attorney-General
Any right of challenge, whether given to the prosecution or the defence, limits random selection to some extent, but the right to inspect the panel has existed for many centuries. I have never previously heard any suggestion that the decision of my noble Friend the Lord Chancellor to remove the occupations—if that is what the hon. Gentleman is speaking of—had any connection with the Shrewsbury trial. I doubt it very much.
As for consultation and reporting to the House, I shall certainly consider those matters.

§ Mr. Lawrence
Is my right hon. and learned Friend aware that the public will be reassured by his statement, which lays at rest some of the recent challenges to even a limited form of jury vetting? Is he also aware that the Bar will be reassured by his upholding of the fundamental principle that in this country we take the jury as we find it?

§ The Attorney-General
I am much obliged to my hon. Friend. I hope that that will be the view taken by the British public.

§ Mr. Alexander W. Lyon
Is not the legal effect of the statement that it binds no one except the DPP and that any chief prosecuting solicitor can take the view of the one in Northampton—namely, that he can act in any way that seems reasonable to him in order to check the jury list?

§ The Attorney-General
There is no sanction that can be enforced on anyone 1938 in relation to examining criminal records. A complete sanction is provided on any checks beyond that.

§ Mr. Greenway
As a layman in these matters, I have always regarded the essential principle as being the right of an individual to a trial before 12 jurors, each of whom must be true and good. Does my right hon. and learned Friend agree that that is the first principle which he must operate, notwithstanding the important points that have been made by other hon. Members?

§ The Attorney-General
It is important to remember that it is unusual for checks to be authorised. I have restricted still further the guidelines that are themselves a restriction. Before they were imposed, the situation was almost a free-for-all. I hope that the occasions on which I shall be asked to authorise a check will be few and far between.

§ Mr. Whitehead
May I ask, for the record, for a definition of a terrorist case? The statutory provision has been mentioned. In the event of someone being held under the prevention of terrorism Act and subsequently charged with an offence that does not involve terrorism, will recourse be had to special branch files?

§ The Attorney-General
Will the hon. Gentleman put his second point again? I am afraid that I did not understand it.

§ Mr. Whitehead
In the event of someone being held under the prevention of terrorism Act and subsequently charged with a non-terrorist offence, would there be a vetting of his files by the special branch?

§ The Attorney-General
The only occasion on which there can be an authorised check, with my consent, is when a charge involves acts of terrorism. The definition of that is acts in which violence has been used or there has been kidnapping or anything of that sort in the furtherance of political purposes and involving terrorism.

§ Mr. Dubs
Is the right hon. and learned Gentleman aware that there will be disappointment that he has sanctioned the continuation of jury vetting, albeit with further restrictions? Can he explain a rather puzzling point? How can he ensure, without legislative backing, that his 1939 new guidelines will be enforced? After all, he gave his word to the House on the previous guidelines that no jury vetting would take place without his sanction. Now he says that he can enforce the new guidelines without legislation.
Will the matter not be even more difficult if there is no clear distinction between the checks carried out to see whether potential jurors are disqualified from serving on a jury on statutory grounds and the check that will be part of the jury-vetting process? Is it not likely that, by having those two muddled up, the clear distinction between them will be eroded and practices against the guidelines will be able to occur?

§ The Attorney-General
The authority to go to police files beyond the CRO will be given only by me. I cannot control what individual police forces do in relation to access to criminal records. It is entirely a matter for them. In discussions with the Home Office, they have imposed certain restrictions, in agreement with ACPO, which will be put in the Library attached to my guidelines. That is as far as I can go. I can ask them not to carry out checks and they will have to decide whether to follow their own association's recommendations. I am confident that they will do so.

§ Mr. Jeffrey Thomas
May I finally put four brief questions to the Attorney-General? Does he agree that the fact that we have majority verdicts in this country provides an effective check and balance to cope with any maverick or unsuitable juror? The Juries Act 1974 sets out those who are disqualified to serve on juries. Secondly if that list is not wide enough, should it not be put to the House to decide what, if any, additions should be made?
Thirdly—and this is a serious matter in relation to jury vetting—does the right 1940 hon. and learned Gentleman accept that it would be a constitutional outrage if potential jurors were to feel that they were being selected or vetted to be the placemen or parrot voices of some legal establishment? Finally, does the right hon. and learned Gentleman agree that it would be equally horrifying if potential jurors were to be deterred from jury service by the thought that their privacy was being invaded by State or other snoopers checking on their suitability for jury service?

§ The Attorney-General
Those are all matters which I considered before making my statement.