HC Deb 31 March 1987 vol 113 cc989-1002

Motion made, and Question put, That, at this day's sitting, the Criminal Justice Bill may be proceeded with, though opposed, until any hour.— [Mr. Lightbown.]

The House divided: Ayes 253, Noes 161.

Division No. 130] [10 pm
Alexander, Richard Dunn, Robert
Alton, David Dykes, Hugh
Amess, David Eggar, Tim
Ancram, Michael Evennett, David
Arnold, Tom Eyre, Sir Reginald
Ashby, David Fallon, Michael
Ashdown, Paddy Farr, Sir John
Aspinwall, Jack Favell, Anthony
Atkins, Rt Hon Sir H. Fookes, Miss Janet
Atkins, Robert (South Ribble) Forman, Nigel
Atkinson, David (B'm'th E) Forsyth, Michael (Stirling)
Baker, Nicholas (Dorset N) Fox, Sir Marcus
Baldry, Tony Franks, Cecil
Batiste, Spencer Fraser, Peter (Angus East)
Beaumont-Dark, Anthony Freeman, Roger
Beith, A. J. Freud, Clement
Bendall, Vivian Fry, Peter
Benyon, William Gale, Roger
Bevan, David Gilroy Gardiner, George (Reigate)
Biffen, Rt Hon John Gardner, Sir Edward (Fylde)
Biggs-Davison, Sir John Garel-Jones, Tristan
Blackburn, John Glyn, Dr Alan
Body, Sir Richard Goodhart, Sir Philip
Bonsor, Sir Nicholas Gorst, John
Boscawen, Hon Robert Gow, Ian
Bottomley, Peter Gower, Sir Raymond
Bottomley, Mrs Virginia Grant, Sir Anthony
Bowden, A. (Brighton K'to'n) Greenway, Harry
Bowden, Gerald (Dulwich) Gregory, Conal
Boyson, Dr Rhodes Griffiths, Sir Eldon
Brandon-Bravo, Martin Griffiths, Peter (Portsm'th N)
Bright, Graham Grist, Ian
Brinton, Tim Ground, Patrick
Brooke, Hon Peter Grylls, Michael
Brown, M. (Brigg & Cl'thpes) Hamilton, Hon A. (Epsom)
Browne, John Hamilton, Neil (Tatton)
Bruce, Malcolm Hampson, Dr Keith
Bruinvels, Peter Hanley, Jeremy
Bryan, Sir Paul Hannam, John
Buchanan-Smith, Rt Hon A. Hargreaves, Kenneth
Budgen, Nick Harvey, Robert
Butcher, John Haselhurst, Alan
Butler, Rt Hon Sir Adam Hawkins, Sir Paul (N'folk SW)
Butterfill, John Hawksley, Warren
Carlile, Alexander (Montg'y) Hayes, J.
Carlisle, John (Luton N) Hayhoe, Rt Hon Sir Barney
Carlisle, Kenneth (Lincoln) Hayward, Robert
Carlisle, Rt Hon M. (W'ton S) Heathcoat-Amory, David
Carttiss, Michael Heddle, John
Cash, William Henderson, Barry
Chalker, Mrs Lynda Hicks, Robert
Channon, Rt Hon Paul Higgins, Rt Hon Terence L.
Chapman, Sydney Hind, Kenneth
Chope, Christopher Hirst, Michael
Clark, Dr Michael (Rochford) Hogg, Hon Douglas (Gr'th'm)
Clark, Sir W. (Croydon S) Holland, Sir Philip (Gedling)
Clarke, Rt Hon K. (Rushclifle) Holt, Richard
Cockeram, Eric Hordern, Sir Peter
Colvin, Michael Howarth, Alan (Stratf'd-on-A)
Coombs, Simon Howarth, Gerald (Cannock)
Cope, John Howell, Ralph (Norfolk, N)
Cormack, Patrick Hubbard-Miles, Peter
Couchman, James Hunter, Andrew
Cranborne, Viscount Hurd, Rt Hon Douglas
Crouch, David Irving, Charles
Currie, Mrs Edwina Jackson, Robert
Dickens, Geoffrey Jessel, Toby
Dorrell, Stephen Jones, Gwilym (Cardiff N)
Douglas-Hamilton, Lord J. Jones, Robert (Herts W)
Dover, Den Kellett-Bowman, Mrs Elaine
Kennedy, Charles Nicholls, Patrick
Kershaw, Sir Anthony Norris, Steven
Key, Robert Onslow, Cranley
King, Roger (B'ham N'field) Oppenheim, Phillip
Kirkwood, Archy Oppenheim, Rt Hon Mrs S.
Knight, Greg (Derby N) Osborn, Sir John
Knox, David Ottaway, Richard
Lamont, Rt Hon Norman Page, Richard (Herts SW)
Lang, Ian Patten, J. (Oxf W & Abgdn)
Latham, Michael Pawsey, James
Lawler, Geoffrey Peacock, Mrs Elizabeth
Lawrence, Ivan Percival, Rt Hon Sir Ian
Lee, John (Pendle) Pollock, Alexander
Leigh, Edward (Gainsbor'gh) Porter, Barry
Lennox-Boyd, Hon Mark Portillo, Michael
Lester, Jim Powell, William (Corby)
Lightbown, David Prentice, Rt Hon Reg
Lilley, Peter Price, Sir David
Livsey, Richard Proctor, K. Harvey
Lloyd, Sir Ian (Havant) Raffan, Keith
Lloyd, Peter (Fareham) Raison, Rt Hon Timothy
Lord, Michael Rathbone, Tim
Luce, Rt Hon Richard Rhodes James, Robert
Lyell, Nicholas Rhys Williams, Sir Brandon
McCrindle, Robert Ryder, Richard
McCurley, Mrs Anna Sainsbury, Hon Timothy
Macfarlane, Neil Shepherd, Colin (Hereford)
MacGregor, Rt Hon John Shields, Mrs Elizabeth
MacKay, Andrew (Berkshire) Sims, Roger
MacKay, John (Argyll & Bute) Skeet, Sir Trevor
Maclean, David John Soames, Hon Nicholas
McLoughlin, Patrick Speed, Keith
McNair-Wilson, M. (N'bury) Stevens, Lewis (Nuneaton)
McQuarrie, Albert Stewart, Allan (Eastwood)
Madel, David Stewart, Andrew (Sherwood)
Major, John Stokes, John
Malins, Humfrey Taylor, Matthew
Marland, Paul Thomas, Rt Hon Peter
Marshall, Michael (Arundel) Thorne, Neil (Word S)
Mates, Michael Thurnham, Peter
Mather, Sir Carol Townend, John (Bridlington)
Maxwell-Hyslop, Robin Trotter, Neville
Meadowcroft, Michael Viggers, Peter
Mellor, David Wakeham, Rt Hon John
Merchant, Piers Walker, Bill (T'side N)
Meyer, Sir Anthony Wallace, James
Miller, Hal (B'grove) Warren, Kenneth
Mills, Iain (Meriden) Wells, Sir John (Maidstone)
Mills, Sir Peter (West Devon) Wheeler, John
Miscampbell, Norman Whitney, Raymond
Moate, Roger Winterton, Mrs Ann
Monro, Sir Hector Winterton, Nicholas
Montgomery, Sir Fergus Wood, Timothy
Morrison, Hon C. (Devizes) Yeo, Tim
Moynihan, Hon C.
Mudd, David Tellers for the Ayes:
Neale, Gerrard Mr. Tony Durant and
Nelson, Anthony Mr. Francis Maude.
Neubert, Michael
Adams, Allen (Paisley N) Brown, Hugh D. (Provan)
Anderson, Donald Brown, N. (N'c'tle-u-Tyne E)
Archer, Rt Hon Peter Brown, Ron (E'burgh, Leith)
Ashley, Rt Hon Jack Buchan, Norman
Ashton, Joe Caborn, Richard
Atkinson, N. (Tottenham) Callaghan, Jim (Heyw'd & M)
Bagier, Gordon A. T. Campbell, Ian
Banks, Tony (Newham NW) Campbell-Savours, Dale
Barron, Kevin Canavan, Dennis
Beckett, Mrs Margaret Carter-Jones, Lewis
Bell, Stuart Clark, Dr David (S Shields)
Benn, Rt Hon Tony Clarke, Thomas
Bennett, A. (Dent'n & Red'sh) Clay, Robert
Bermingham, Gerald Clelland, David Gordon
Bidwell, Sydney Clwyd, Mrs Ann
Blair, Anthony Cocks, Rt Hon M. (Bristol S)
Boothroyd, Miss Betty Conlan, Bernard
Boyes, Roland Cook, Frank (Stockton North)
Brown, Gordon (D'f'mline E) Cook, Robin F. (Livingston)
Corbett, Robin Madden, Max
Corbyn, Jeremy Marek, Dr John
Craigen, J. M. Marshall, David (Shettleston)
Cunliffe, Lawrence Martin, Michael
Cunningham, Dr John Mason, Rt Hon Roy
Davies, Ronald (Caerphilly) Maxton, John
Davis, Terry (B'ham, H'ge H'l) Maynard, Miss Joan
Deakins, Eric Meacher, Michael
Dewar, Donald Michie, William
Dixon, Donald Mikardo, Ian
Dobson, Frank Millan, Rt Hon Bruce
Dormand, Jack Mitchell, Austin (G't Grimsby)
Douglas, Dick Morris, Rt Hon J. (Aberavon)
Dubs, Alfred Nellist. David
Duffy, A. E. P. Oakes, Rt Hon Gordon
Dunwoody, Hon Mrs G. O'Brien, William
Eadie, Alex Orme, Rt Hon Stanley
Eastham, Ken Park, George
Fatchett, Derek Pendry, Tom
Field, Frank (Birkenhead) Pike, Peter
Fields, T. (L'pool Broad Gn) Radice, Giles
Fisher, Mark Raynsford, Nick
Flannery, Martin Redmond, Martin
Foot, Rt Hon Michael Rees, Rt Hon Peter (Dover)
Forrester, John Richardson, Ms Jo
Foster, Derek Roberts, Ernest (Hackney N)
Foulkes, George Robertson, George
Fraser, J. (Norwood) Robinson, G. (Coventry NW)
Garrett, W. E. Rogers, Allan
George, Bruce Rooker, J. W.
Godman, Dr Norman Rowlands, Ted
Golding, Mrs Llin Sedgemore, Brian
Gould, Bryan Sheerman, Barry
Gourlay, Harry Sheldon, Rt Hon R.
Hamilton, James (M'well N) Shore, Rt Hon Peter
Hamilton, W. W. (Fife Central) Short, Ms Clare (Ladywood)
Harrison, Rt Hon Walter Silkin, Rt Hon J.
Hart, Rt Hon Dame Judith Skinner, Dennis
Healey, Rt Hon Denis Smith, C.(lsl'ton S & F'bury)
Heffer, Eric S. Smith, Rt Hon J. (M'ds E)
Hogg, N. (C'nauld & Kilsyth) Snape, Peter
Holland, Stuart (Vauxhall) Soley, Clive
Home Robertson, John Spearing, Nigel
Howarth, George (Knowsley, N) Stott, Roger
Hoyle, Douglas Straw, Jack
Hughes, Robert (Aberdeen N) Thomas, Dafydd (Merioneth)
Hughes, Roy (Newport East) Thomas, Dr R. (Carmarthen)
Hughes, Sean (Knowsley S) Thompson, J. (Wansbeck)
Janner, Hon Greville Thorne, Stan (Preston)
Jones, Barry (Alyn & Deeside) Tinn, James
Kaufman, Rt Hon Gerald Torney, Tom
Lambie, David Wardell, Gareth (Gower)
Lamond, James Wareing, Robert
Leadbitter, Ted Weetch, Ken
Leighton, Ronald White, James
Lewis, Terence (Worsley) Williams, Rt Hon A.
Litherland, Robert Winnick, David
Lofthouse, Geoffrey Woodall, Alec
Loyden, Edward Young, David (Bolton SE)
McCartney, Hugh
McDonald, Dr Oonagh Tellers for the Noes:
MacKenzie, Rt Hon Gregor Mr. Frank Haynes and
McTaggart, Robert Mr. Allen McKay.
McWilliam, John

Question accordingly agreed to.

Question again proposed, That the clause be read a Second time.

Mr. Lawrence

I shall vote against the Government. Clause 86 is nonsense, because it abolishes for no justifiable reason a procedure which achieves faster, fairer justice and which costs practically nothing. My right hon. Friend is making a stick with which to beat himself and the criminal justice system. He may well come to regret it.

What is a peremptory challenge? I am astonished to find, when I talk to some of my hon. Friends and colleagues who are most vociferous against the peremptory challenge, that they have not the faintest idea what it is. I shall explain. At the beginning of a trial a jury is brought in. The jurors take the oath and stand in the witness box. If nobody challenges them, the 12 become the jury, but if counsel for the defence gets up and says, "Challenge" that juryman stands down and somebody else comes forward, takes the oath and, if unchallenged, stays.

Under our existing law that procedure can take place only three times. Each defendant—most trials are single defendant trials— has only three challenges. The defendant who challenges a juryman has no idea of the juryman's name, his occupation, where he comes from or his beliefs. All that he has succeeded in doing is removing somebody who, until the moment of challenge, was to be a juror.

10.15 pm

One must consider how little pain and suffering are involved in the procedure by which, in a few minutes, we secure a jury to try a case. In most of the cases in which I have been involved, no juror has been challenged. Most of the time, in most courts there is no peremptorry challenge. One does not challenge a juror if a jury has been together and, by breaking them up, one will irritate them or set them going in any way against oneself or one's client. There are strong reasons for not making peremptory challenges.

How does it help to secure justice by having a peremptory challenge? The point is that an accused who has been in custody for 12 months may well go into the dock to be tried, believing that everything is fixed against him. The one safety valve that he has is, through his counsel, to relieve himself of two or three jurors who he may believe have been put there by the prosecution to secure his conviction. When that matter is dealt with, he is happy and content that he has exercised his right to break up a jury which might have been rigged against him.

I assume that the House has read all the evidence that has been adduced on the matter. I remind the House of what the Criminal Bar Association has had to say about the peremptory challenge. It said: We remain implacably opposed to the abolition.

Lawyers do not have anything to gain by the peremptory challenge. With the right to a peremptory challenge, choosing a jury takes minutes, not hours. If it took hours to choose a jury, thereof would be more work for lawyers. In a sense, it is contrary to their financial interests.

I should prefer to accept the advice of the experts than that of some of my hon. Friends and colleagues in this place who have never been inside a court of law and would not know how to get into or out of one if they were shown the front door of the Old Bailey. The Criminal Bar Association said: During the last 25 years we know of stories that may be apocryphal but nevertheless disturbing of judges and court clerks keeping convicting juries together for another case. It is precisely because of such stories that accused people sometimes think that the system is rigged against them.

This is a cheap and relatively painless way—it may irritate one or two jurors who are challenged, but they go next door and are called for the next jury—of ensuring that someone who is accused of a crime can feel that the system is not weighted against him and that he will have a fair trial. He will then co-operate. He will sit in the dock throughout the trial. He could make a noise, cause a disturbance and be taken down to the cells. He can disrupt the progress of the trial, but he does not do so if he is content that he is getting a fair trial. In a small way, the right, which he seldom exercises, to challenge three jurors is his safety valve. It guarantees for him that he will have a fair trial. If he uses his right to challenge three jurors, whose names, addresses, occupations and propensities he does not know, so what?

If I were a black man and I were being tried for a serious crime and the jury was all white, I might very well want a black man on the jury, and why should I not have? If I were a man and I were being tried by a jury of 12 women, I might very well want a man on the jury, and why should I not have? If I were a young person and everybody on the jury was 50 or 60, I might very well want a young person on the jury, and why should I not have? If by getting those people on the jury I feel that the trial will be fair and that I have a chance, the system of justice works. It does not work as long as there is bitterness in any accused person who thinks that the system is rigged against him. That is why it is patently clear to anybody who practises in the courts that this is a faster and fairer means of selecting a jury.

The reason why the stick will be made for my right hon. Friend's back is that nobody is postulating that the man must have the 12 jurors who go into the jury box at the start. Everybody is agreeing that he shall have the right to challenge a juryman for cause. I have heard the most appalling nonsense this evening about how a peremptory challenge can tailor a jury. All that that does is to get somebody who looks a bit better than the man who has just been challenged. That is not tailoring the jury.

Let me tell the House what tailoring the jury is. Tailoring a jury is what happens if someone is challenged for cause. Tailoring a jury is what they do in the United States. Tailoring a jury is when a juryman is asked to stand up and say where he lives, how old he is, where he worships, what he thinks about blacks and young people. That is what goes on in American courts, and as a result it takes a day or two to choose a jury. It takes five minutes in an English court. More time can be spent tailoring a jury when jurors can be challenged for cause than trying a case.

If our trials, instead of lasting one, two or three days, start lasting one, two or three weeks because we have challenges for cause instead of the three peremptory challenges, where have we gained? Where will our system of justice be if cases come on more slowly because the queue is even longer? The very problems that my right hon. Friend and the Government are facing is delays in our courts, yet here we are coolly, calmly and deliberately introducing a measure that will increase the delays in our courts, increase the queues of people waiting for justice, make sure that witnesses have more time to forget their evidence and that more of the guilty are acquitted—the very reverse of all that we are trying to do.

I am not saying that that will happen in every case, of course it will not, but it will happen more often than it happens now if we get rid of this simple means of challenging jurors by three peremptory challenges.

There is another reason why an unfairness might exist in the new clause. The right to challenge jurors without cause is being abolished, but nothing is said of the Crown's right to stand by. Presumably, the Crown will have the right to challenge jurors, but the defendant will not. The Crown will have the right to say, "Stand by. I do not want him. I do not like the look of him." What is the defendant to feel about justice when the prosecution has a right of which the defence is deprived? That is another reason why the accused person will be worried and why he may be unsatisfied with the system of justice that is trying him.

Mr. Budgen

I hope that my hon. and learned Friend will deal with a point which I am sure my right hon. Friend the Home Secretary has very much in mind. If large sections of the community do not have a sense of the justice of the jury system, that, unfortunately—we all of us want to do our best to oppose this—leads to riots, various forms of marches and all the rest because people do not trust our existing institutions, which, for a variety of reasons, most of which are entirely illogical, have the majesty of mystery attached to them. Is that not a good reason to try to stick to what is already working, rather than to interfere for spurious and logical reasons?

Mr. Lawrence

My hon. Friend made his point in his speech, and now he has made it again in another speech. It is a perfectly valid point, and I have nothing to add to it. I do not wish to exaggerate my point. Whether it leads to race riots is beyond the reasonable ken of my objection to the measure.

I have said all that I have to say. The Government have introduced a nonsensical measure. They are trying to give the impression— there is no need, because they are doing enough for law and order in all other directions—that they are taking dynamic action against an evil in our system, namely, the practice of tampering with juries. The measure is ill-conceived and misunderstood. It has the support of no one apart from one or two of my colleagues who are more loyal to the Government that I can be. It does not have the support of many practitioners at the criminal Bar. It is dangerous.

My advice to the Government is, "For goodness sake, leave the present position well alone. Drop it, and accept the new clause that has been sensibly tabled by the Opposition." It breaks my heart to have to say that, but the Opposition seem to understand the workings of the criminal legal system better than does my right hon. Friend. The Government's over-enthusiasm for the cause will be utterly counter-productive, and they will end up doing far more harm than good.

Mr. Gerald Bermingham (St. Helens, South)

I shall be extremely brief. I have sat and listened for some time to various hon. and learned Gentlemen on the Conservative Benches. The hon. and learned Member for Burton (Mr. Lawrence) speaks with both practical and other experience. What he says is perfectly correct, and I endorse every word. I contrast it with the garbage—I put it as simply as that— uttered by the hon. Member for Leicester, East (Mr. Bruinvels), who has absolutely no knowledge of these matters. His trite, inane and vote-grabbing comments are a disgrace to the House. In the interests of justice, I hope that Conservative Members will listen to the sane, experienced voice of the hon. and learned Member for Burton, and will vote accordingly.

The Secretary of State for the Home Department (Mr. Douglas Hurd)

As our discussions on the Bill have progressed— from long before Second Reading to the Standing Committee, and thence to this evening's debate— I have come to understand the deep affection in which peremptory challenge is held. Let me say rather emphatically that I do not mean that it is held in affection by the public; I refer to the practitioners in the courts who have advanced the case again this evening. No one who supports the Government's position— certainly no Minister—has any criticism of the way in which the practitioners have exercised a right that is now theirs.

Mr. Frank Dobson (Holborn and St. Pancras)

Why change it?

Mr. Hurd

Perhaps the hon. Gentleman would allow me to continue for a second.

I do not think that the Cyprus trial—or any other trial—or anecdotes of what happened on a particular occasion, or did not, are relevant. However, I feel that my hon. Friend the Member for Twickenham (Mr. Jessel) deserved a rather fairer hearing, considering his persistence in the matter over many months. The points that he made this evening probably more accurately reflected the opinion of most of our constituents than the points made in challenge to him.

I believe that the real distinction is between those who wish for mechanisms that construct or engineer particular kinds of jury and those who, like myself, feel that the simplest and fairest way is to take a jury as it comes. Some hon. Members who have opposed the Government tonight have said that the peremptory challenge is effective, producing a fairer jury. Others— notably my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen)— have said that that is an illusion. We must take both limbs of that contradictory argument in favour of the new clause.

In Committee the hon. Member for St. Helens, South (Mr. Bermingham) said: I congratulate the Home Secretary on the use of the word 'engineering'; it is better than 'construction', which I used earlier. The jury should reflect the defendant's world."— [Official Report, Standing Committee F, 3 March 1987; c. 841.] To some extent we are retracing our footsteps in Standing Committee, but if we are to try to reflect the defendant's world, peremptory challenge is a very blunt engineering tool with which to do it. If the objective is to secure a delicate balance on the jury, or to make sure that the jury is fully representative, the whole system is faulty and peremptory challenge will not put it right. However, the supporters of the new clause are aiming in that direction.

10.30 pm

The hon. Member for Islington, South and Finsbury (Mr. Smith) referred to peremptory challenge achieving a completely fair and balanced jury. My hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) said that we must aim at achieving a representative jury. However, the serious as opposed to the cynical advocates of peremptory challenge have never been able to show how peremptory challenge achieves that objective. Clearly it does not.

Peremptory challenge may secure that a person who represents a defendant's interests sits on the jury in place of the challenged juror, but it does so in a purely haphazard way. That is not the objective of peremptory challenge. It is designed to take off the jury a person to whom the defendant objects without a reason having to be given. If we want completely fair and balanced juries, representative juries and juries that reflect the defendant's world, peremptory challenge does not achieve that purpose.

Mr. Ashby

How would my right hon. Friend achieve a balanced jury? The random selection process does not achieve a balanced jury; it results, as I said earlier, in a row of people from Acacia avenue. How would my right hon. Friend achieve the balanced and representative jury that is so desirable?

Mr. Hurd

I should not attempt to do so, because I believe, as does my hon. Friend the Member for Wolverhampton, South-West. in the random principle. I would not, however, base my case on the Tory appeal to mystery. Nevertheless, juries are selected on a random basis. My hon. Friend the Member for Leicestershire, North-West is trying to tinker with the system, but his attempt is rather ineffective. He has not been able to show that peremptory challenge produces a representative jury.

Mr. Jerry Hayes (Harlow)

My right hon. Friend has referred to the random system of jury selection and to the defendant having to take the jury as he finds it. But it does not work like that. In some cases there is jury vetting, and the defendant feels that the whole system is stacked against him.

Mr. Hurd

I shall be turning to that question later.

As for the speech of the hon. and learned Member for Montgomery (Mr. Carlile), may I say at the outset that the smile on my face was simply in admiration of his skills in turning an intervention against him to his advantage. Lei me be patronising to him in response to his rather patronising approach; he was prompted to say that the law should be made by lawyers. There was a trace of that, too, in the speech of my hon. and learned Friend the member for Burton (Mr. Lawrence). If we were to rely solely on the advice and opinions of lawyers in forming the statute book of this country, it would be very different from what it is today, and I do not believe that it would be better.

The hon. and learned Member for Montgomery deployed skilfully his basic point. He is one of the serious defenders of the right to peremptory challenge, but he left the Chamber too early to hear the speech of my hon. Friend the Member for Wolverhampton, South-West, who purported to speak on the same side but who torpedoed that argument.

The hon. Member for Islington, South and Finsbury attempted to deal with the statistics. I am not a statistician and I do not think that he is. I do not think that any statistician would have dealt with the statistics in the same way as the hon. Gentleman. The statistics do not and cannot tell us anything about the effects of peremptory challenge because they do not tell us anything about the nature of the cases where peremptory challenge was used.

Mr. Kaufman

Will the Home Secretary give way?

Mr. Hurd

The right hon. Gentleman had better let me finish my argument before he tries to destroy it.

If peremptory challenge was more often used in cases where the defendant's case was fairly hopeless, obviously that would produce the figures quoted by the hon. Member for Islington, South and Finsbury. That is why I said perfectly fairly upstairs in Committee—and repeat again today—that no argument can be based either way on that set of statistics. Before the right hon. Member for Manchester, Gorton (Mr. Kaufman) leaps to his feet, he will concede that I have never based the case on statistics or on anecdote. I have based the case on what I believe to be principles of logic and common sense. I agree with my hon. and learned Friend the Member for Burton that common sense is the most important basis.

Mr. Kaufman

If the Home Secretary is stating that the statistics are not relevant to the debate and do not assist us, why did he have the survey undertaken and why did he tell us that it was essential that we have the statistics available for when we debated this clause?

Mr. Hurd

I undertook to have the survey carried out very early on in response to the original initiative proposed by my hon. Friend the Member for Twickenham. The survey was carried out and the statistics were available. The right hon. Gentleman will acknowledge that I have never based the argument on the statistics for the reasons that I have just given. The statistics show that this practice is quite widespread and that it is more widespread in London than elsewhere. However, they do not and cannot show the effects.

My hon. and learned Friend the Member for Burton and the hon. and learned Member for Montgomery dealt with their fears about challenge for cause. It is argued that as night follows day we would see an expansion of the use of the challenge for cause. There is the terrifying scenario of lengthy interrogation of potential jurors about their personal circumstances and beliefs. I cannot see the basis for that fear. Current case law and practice militates against that and there can be no serious doubt about that. The extent to which our judiciary would be likely to change current practice is a matter upon which I cannot speculate. However, we have kept senior members of the judiciary fully aware of our present proposals. I see no grounds, from what the judiciary have already said, to suppose that it would open the gates to the kind of challenges for cause that the hon. and learned Member for Montgomery and my hon. and learned Friend the Member for Burton are so concerned about.

Mr. Alex Carlile

How is the Home Secretary going to stop the challenges for cause? Defence counsel has an absolute right to stand up in front of the judge and make whatever submissions he wishes. How will the Home Secretary stop those submissions?

Mr. Hurd

If the practice of the judiciary continues as it is at present, those submissions will be fruitless.

Mr. Lawrence

Will my right hon. Friend give way?

Mr. Hurd

Yes, I will give way in a second.

If they are fruitless, and are seen continually to be fruitless, they will not be repeated.

Mr. Lawrence

Is my right hon. Friend aware that the reason why the practice hitherto has been not to challenge for cause is that there has been the right to peremptory challenge and that has satisfied everyone?

Mr. Hurd

Indeed, I understand that. However, I do not understand the logic of saying that if we do away with peremptory challenge, the judges and the courts will change the current practice and allow a continuous series of challenges for cause on grounds that they would not admit today.

Mr. Budgen

It is true that, as my right hon. Friend said, constant challenges for cause would be fruitless. No doubt the judge would turn them down. But the fact is that they undermine the random nature of the jury. I am sure that my right hon. Friend agrees that the general confidence of the public in the jury system is vital. A system that allows anti-establishment lawyers constantly to bring forward complaints for cause and to have them turned down by the judge, so that they can then complain to the media that they were involved in an unfair trial, has the effect of undermining the validity of the trial.

Mr. Hurd

My hon. Friend is always ingenious, but I do not think that that is probable. I do not think that lawyers, of whatever persuasion, will go on bouncing up and down, making challenges for cause of a kind that it is the court's practice continually to reject.

My hon. and learned Friend the Member for Burton was not on the Standing Committee, and there is no reason why he should have followed our discussions about standby. I entirely accept, as I did on Second Reading, that the Government's proposal has implications for the use of the prosecution right of stand-by. In Committee, I circulated draft guidance to prosecuting authorities restricting the use of stand-by to cases of terrorism or national security in which jury checks are authorised by my right hon. and learned Friend the Attorney-General or, exceptionally, where a manifestly unfit person should be excused with the minimum of embarrassment.

If my hon. and learned Friend the Member for Burton and my hon. Friend the Member for Wolverhampton South-West study the restrictive nature that we now propose for the use of stand-by, which is of a quite different character and, in any case, is must less often used than the right of peremptory challenge, they will see that we have dealt with that as fairly as we can.

The Government's case is that peremptory challenge is not effective in creating a jury which reflects the defendant's world. The question is whether the tilt to the system away from random selection continues to be justified. Of course, I believe that the tilt was justified in the days when the system in other respects could be said to be unfair to the defendant, but I do not believe that that is so today.

We are left with the main plea of my hon. Friend the Member for Leicestershire, North-West, which was backed by other hon. Members, that, whatever the merits of peremptory challenge, it has the merit that it leaves the defendant with the idea that he has had a fair trial. But there is another side to the argument. The wider public interest and wider public confidence in the system must be considered as well. There are many grounds on which defendants who are found guilty object to trial. I know that because I receive many letters from people who are in prison having been found guilty when they think that they should not have been. But I do not think that it is very probable that this argument would rate highly among them.

Of course, the attempted tilt is to the defendant. I do not understand the argument which denies that. Here we have a change which the Government propose which is not revolutionary or radical. I entirely accept the point made by my hon. Friend the Member for Wolverhampton, South-West. One of the purposes of being a Tory is that one believes that change should be "gradual", to use his word, slow and organic and should come down through the ages. That is exactly what has happened here. We used to have 35 peremptory challenges. Then it was reduced to seven. No doubt, the profession was keen that nothing should be done and thought that there was magic in the word "seven", yet it was reduced to three. Obviously, through the years Parliament has felt that, as the system as a whole becomes fairer to the defendant, this tilt in favour of the defendant is no longer necessary. We propose a strengthening of the jury system. This is a strengthing of the random principle which lies at the heart of the jury system. It is the slow, organic conclusion of a process which has been going on for a long time. That is why I recommend that the House should not accept the new clause.

Mr. Chris Smith

We have had a long and, at times, serious debate on a serious matter that lies at the heart of the Bill. There have been some interesting speeches, particularly from the hon. and learned Member for Burton (Mr. Lawrence) and the hon. Member for Leicestershire, North-West (Mr. Ashby), who set out some of the kernel of the argument on this issue.

Other comments filled me with considerable anxiety, for example those of the hon. Member for Leicester, East (Mr. Bruinvels), who said that because some members of juries did not respect law and order there were too many acquittals. I urge the hon. Gentleman to think carefully about what he said, because it did not do justice to members of juries or to the criminal justice system. We in the Labour party certainly wish to do that.

10.45 pm

Hon. Members have referred to the fact that in the 1970s the Labour Government limited the right of peremptory challenge from seven to three. In the disingenuous words of the Home Secretary, all that the Government are doing is furthering the process of organic change, adjusting to further realities and tilting the system a little more. There is a world of qualitative between reducing the number of challenges available from seven to three and abolishing the right altogether. When the reduction took place, Labour Members made it clear that they were not supporting abolition.

The Home Secretary also said that peremptory challenge does not achieve a balanced or representative jury, and he is right. The use of peremptory challenge does not necessarily achieve that, but nor does the present supposedly random system. Sometimes that system has thrown up a perceptibly imbalanced, unrepresentative jury. In those cases, there must be some recourse to the defendant without having to go through an enormous, elaborate procedure of challenging for cause, which, as the hon. and learned Member for Burton warned us, may lead to days of wrangles in the courtrooms. There must be some provision for the defendant to ensure that at least there is one woman, man or black person on the jury so that he feels he is being tried fairly.

The Home Secretary said that the statistics did not tell us much, but they drive a coach and horses through the argument of the hon. Member for Twickenham (Mr. Jessel) that juries subject to peremptory challenge let off defendants. The evidence on that is clear. The Home Secretary is right in saying that the statistical difference between 60 and 53 per cent. of convictions does not tell us much about the success or failure of peremptory challenge to select a jury which is more or less minded to listen to the defendant.

The hon. Member for Stockport (Mr. Favell) got close to the truth in an intervention when he said that surely we should recognise that this is a hit-or-miss operation. He went on to ask, "If it is a hit-or-miss operation, why have it?" I will answer that in a moment.

The other side of the coin is that one could ask, equally validly, "Why remove it if it is a hit-or-miss operation?" If that lands us with a jury that is just as likely to acquit or to convict as the jury that existed in the first place, and if the defendant believes that it has enabled him to be subject to a fairer system, there are no valid grounds for removing that option or chance. That is the crucial point.

The Home Secretary said that peremptory challenge puts a tilt in the system away from the random. He asked whether that assists the defendant. It does not necessarily assist the defendant, but it gives him a sense of fairness of the process. We are talking about a perception of justice or injustice when we put this new clause before the House. We believe that peremptory challenge should he retained and that the defendant should be assured, and have the perception, that the system has treated him or her fairly. We believe that the Home Secretary is wrong to remove peremptory challenge. We have, therefore, tabled this new clause.

Question put, That the clause he read a Second time:

The House divided: Ayes 69, Noes 176.

Division No. 131] [10.50 pm
Adams, Allen (Paisley N) Harrison, Rt Hon Walter
Alton, David Hayes, J.
Ashby, David Hogg, N. (C'nauld & Kilsyth)
Ashdown, Paddy Howarth, George (Knowsley, N)
Bagier, Gordon A. T. Hughes, Sean (Knowsley S)
Banks, Tony (Newham NW) Kaufman, Rt Hon Gerald
Beckett, Mrs Margaret Kennedy, Charles
Beith, A. J. Kirkwood, Archy
Bennett, A. (Dent'n & Red'sh) Lawrence, Ivan
Boyes, Roland Leadbitter, Ted
Brown, Hugh D. (Provan) Lester, Jim
Bruce, Malcolm Lewis, Terence (Worsley)
Budgen, Nick Livsey, Richard
Caborn, Richard McCartney, Hugh
Campbell-Savours, Dale McDonald, Dr Oonagh
Canavan, Dennis McKay, Allen (Penistone)
Carlile, Alexander (Montg'y) McWilliam, John
Clay, Robert Madden, Max
Clelland, David Gordon Michie, William
Conlan, Bernard Nellist, David
Corbyn, Jeremy Pike, Peter
Craigen, J. M. Raynsford, Nick
Cunliffe, Lawrence Shields, Mrs Elizabeth
Davies, Ronald (Caerphilly) Skinner, Dennis
Deakins, Eric Smith, C.(Isl'ton S & F'bury)
Dixon, Donald Soley, Clive
Dobson, Frank Spearing, Nigel
Fatchett, Derek Steel, Rt Hon David
Fisher, Mark Stott, Roger
Forrester, John Taylor, Matthew
Foster, Derek Thomas, Rt Hon Peter
Franks, Cecil Wallace, James
Fraser, J. (Norwood)
Freud, Clement Tellers for the Ayes:
Godman, Dr Norman Mr. Gerald Bermingham and
Golding, Mrs Llin Mr. Michael Meadowcroft.
Ground, Patrick
Alexander, Richard Benyon, William
Amess, David Bevan, David Gilroy
Atkinson, David (B'm'th E) Biffen, Rt Hon John
Baker, Nicholas (Dorset N) Biggs-Davison, Sir John
Baldry, Tony Blackburn, John
Batiste, Spencer Boscawen, Hon Robert
Beaumont-Dark, Anthony Bottomley, Peter
Bendall, Vivian Bottomley, Mrs Virginia
Bowden, A. (Brighton K'to'n) Freeman, Roger
Bowden, Gerald (Dulwich) Gale, Roger
Brandon-Bravo, Martin Gardiner, George (Reigate)
Bright, Graham Garel-Jones, Tristan
Brinton, Tim Goodhart, Sir Philip
Brooke, Hon Peter Gorst, John
Brown, M. (Brigg & Cl'thpes) Gow, Ian
Bruinvels, Peter Gower, Sir Raymond
Bryan, Sir Paul Greenway, Harry
Butcher, John Gregory, Conal
Butler, Rt Hon Sir Adam Griffiths, Sir Eldon
Butterfill, John Griffiths, Peter (Portsm'th N)
Carlisle, John (Luton N) Grist, Ian
Carlisle, Kenneth (Lincoln) Hamilton, Hon A. (Epsom)
Carlisle, Rt Hon M. (W'ton S) Hamilton, Neil (Tatton)
Carttiss, Michael Hanley, Jeremy
Cash, William Hannam, John
Chapman, Sydney Harvey, Robert
Chope, Christopher Haselhurst, Alan
Clark, Dr Michael (Rochford) Hawkins, Sir Paul (N'folk SW)
Clark, Sir W. (Croydon S) Hawksley, Warren
Clarke, Rt Hon K. (Rushcliffe) Hayward, Robert
Cockeram, Eric Heathcoat-Amory, David
Colvin, Michael Heddle, John
Coombs, Simon Henderson, Barry
Cope, John Hickmet, Richard
Cranborne, Viscount Hicks, Robert
Crouch, David Hirst, Michael
Currie, Mrs Edwina Hogg, Hon Douglas (Gr'th'm)
Dorrell, Stephen Howarth, Alan (Stratf'd-on-A)
Douglas-Hamilton, Lord J. Howarth, Gerald (Cannock)
Dover, Den Hubbard-Miles, Peter
Dunn, Robert Hunt, David (Wirral W)
Dykes, Hugh Hurd, Rt Hon Douglas
Eggar, Tim Jackson, Robert
Eyre, Sir Reginald Jessel, Toby
Fallon, Michael Jones. Gwilym (Cardiff N)
Favell, Anthony Jones, Robert (Herts W)
Forman, Nigel Kellett-Bowman, Mrs Elaine
Forsyth, Michael (Stirling) Kershaw, Sir Anthony
Fowler, Rt Hon Norman Key, Robert
Fox, Sir Marcus King, Roger (B'ham N'field)
Fraser, Peter (Angus East) Knight, Greg (Derby N)
Knox, David Osborn, Sir John
Lamont, Rt Hon Oorman Ottaway, Richard
Latham, Michael Page, Richard (Herts SW)
Lawler, Geoffrey Parkinson, Rt Hon Cecil
Lee, John (Pendle) Patten, Christopher (Bath)
Leigh, Edward (Gainsbor'gh) Patten, J. (Oxf W & Abgdn)
Lennox-Boyd, Hon Mark Pawsey, James
Lightbown, David Peacock, Mrs Elizabeth
Lilley, Peter Percival, Rt Hon Sir Ian
Lloyd, Peter (Fareham) Porter, Barry
Lord, Michael Portillo, Michael
Luce, Rt Hon Richard Powell, William (Corby)
Lyell, Nicholas Proctor, K. Harvey
Macfarlane, Neil Raffan, Keith
MacKay, Andrew (Berkshire) Rathbone, Tim
Maclean, David John Rhodes James, Robert
McLoughlin, Patrick Rhys Williams, Sir Brandon
Madel, David Sainsbury, Hon Timothy
Major, John Shepherd, Colin (Hereford)
Malins, Humfrey Skeet, Sir Trevor
Malone, Gerald Soames, Hon Nicholas
Marland, Paul Speed, Keith
Marshall, Michael (Arundel) Stevens, Lewis (Nuneaton)
Mather, Sir Carol Stewart, Andrew (Sherwood)
Maxwell-Hyslop, Robin Thompson, Donald (Calder V)
Mayhew, Sir Patrick Thorne, Neil afford S)
Mellor, David Thurnham, Peter
Merchant, Piers Townend, John (Bridlington)
Meyer, Sir Anthony Viggers, Peter
Miller, Hal (B'grove) Wakeham, Rt Hon John
Mills, Iain (Meriden) Warren, Kenneth
Miscampbell, Norman Wells, Sir John (Maidstone)
Montgomery, Sir Fergus Wheeler, John
Moynihan, Hon C. Wood, Timothy
Mudd, David Yeo, Tim
Neubert, Michael
Nicholls. Patrick Tellers for the Noes:
Norris, Steven Mr. Tony Durant and
Oppenheim, Phillip Mr. Francis Maude.

Question accordingly negatived.

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