PEREMPTORY CHALLENGE (Hansard, 31 March 1987)

§ Mr. Chris Smith (Islington, South and Finsbury)
I beg to move, That the clause be read a Second time.
The new clause seeks to maintain the right of peremptory challenge of up to three jurors for each defendant in a criminal trial. In the Bill the Government are seeking to remove that existing right of peremptory challenge. This is one of the most important changes in the Bill. In Committee, we made it clear that Opposition Members regard it as an unacceptable change. We wish to retain the right of peremptory challenge, so we have tabled this new clause.
It is very important to maintain peremptory challenge to ensure not only the fairness of jury trial but also the perception of that fairness by those who stand trial in front of a jury. In Committee, the Home Secretary set out in some detail his arguments for seeking to remove all right of peremptory challenge. I went back to those proceedings today in preparing these remarks and found that his arguments seemed to centre round two specific points.
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The first was that the right hon. Gentleman saw the right of peremptory challenge as giving what he called "a substantial tilt" in favour of the defendant in court proceedings. His second argument was that peremptory challenge was a derogation from the random principle which ought to exist in the selection of juries. Both arguments are faulty.
The evidence does not substantiate the case that peremptory challenge gives a substantial tilt in favour of the defendant. The Government themselves set up the Crown prosecution service survey of peremptory challenge and the published results of that survey are now available. That survey, set up and published by the Government, says: In both single-defendant and multi-defendant trials, the use of challenges does not appear associated with a lower likelihood of conviction. Over half (60 per cent.) of all trials in which one or more peremptory challenges were used ended with convictions on one or more counts. This is slightly higher than the conviction rate of 53 per cent. in trials in which no challenges were used. The evidence of the survey is absolutely crystal clear. There is no tilt in favour of the defendant where peremptory challenge is exercised.
The Home Secretary himself admitted later in Committee that, as he said, Not much can be built on the statistics in the only form in which we could provide them". He also said: they do not show anything the other way".—[Official Report, Standing Committee F, 3 March 1987; c. 840.] He is saying, in effect, that the statistical evidence shows the impact of peremptory challenge to be relatively neutral when it comes to securing a conviction. The conclusion must therefore be that there is no substantial tilt in favour of the defendant, the evidence for this coming from the Government's own figures and survey.
Let us just look at the other argument of the Home Secretary—the importance of the random principle. To say that the random principle must be maintained and can only be distorted by the use of peremptory challenge assumes that the system of jury selection is perfectly random at present. It is not. First, there is the use of limited areas for drawing jurors from the electoral lists; then there are further restrictions in drawing names from 974 simply some particular pages of the electoral lists. The composition of jurors ends up far from a random reflection of society at large.
Substantial evidence was also revealed by the research of Baldwin and McConville. The evidence was adduced at considerable length by my right hon. Friend the Member for Manchester, Gorton (Mr. Kaufman) in Committee, but it bears reiteration because it is very important. They discovered that only 28 of 3,912—that is, 0.7 per cent—of jurors in Birmingham were of West Indian or Asian origin. That is not a random reflection of the population of Birmingham. One would almost certainly have expected the figure to be 15 or 20 times as great if it were to be a random reflection. They noted a similar, although slightly less marked, disparity in the use of jurors of Irish origin. They also found that 72.5 per cent. of jurors were male, whereas the percentage of males in the 1976 household survey was 49.7.
As if to reinforce that point in the Baldwin and McConville survey, there is the example of the Bristol riot trial, in which all the defendants were black and the judge advised the defence during the initial court proceedings to use the right of peremptory challenge to obtain a more racially balanced jury. When that advice comes from a judge, it must surely lead us to question whether the system is perfectly random.
To remove the possibility of a safety valve that can correct some of the imbalances which may on occasions occur in the production of juries is, we believe, to go in the wrong direction. The use of peremptory challenge helps to adjust in favour of balance where an ultimately nonrandom and imperfect system has not operated to produce balance.
Those seem to be the two principal reasons that the Home Secretary was advocating for the Government's decision to move for the abolition of the right of peremptory challenge. However, there are several reasons, in addition to the arguments against the Home Secretary's points, which can and must be made to reject the Government's case. There are two particularly over-whelming reasons which were made by the Government themselves in the White Paper "Criminal Justice", published in March of last year, which started the process which germinated into the Bill which we are discussing today.
In paragraph 35 of the White Paper, the Government said: The problem is whether that result can be achieved without either leaving defendants with an understandable sense of grievance or opening up challenge for cause to an unseemly and disturbing degree. There are two important points there. The first is the likelihood of an increased and perverse use of challenge for cause. If the right of peremptory challenge is removed, there is likely to be a much more frequent and much more obstructive use of challenge for cause. I do not think that that would necessarily be in the interests of the proceedings of the court or of the feelings and dignity of jurors.
One point which has been made is that a juror, if peremptorily challenged, may feel aggrieved. I believe a juror is far more likely to feel aggrieved if he has been challenged for cause than if he has been challenged peremptorily. The likelihood of an increase in challenge 975 for cause is one reason which must be borne in mind and which leads us to wish to retain some degree of peremptory challenge.
The other major reason—in some ways the most important reason of all—is the crucial importance of the need for the defendant to have confidence in the fairness of the system. One of the pillars of our system of justice is that the defendant must feel that he has been given the fullest possible chance to have a fair trial. If no peremptory challenge is open to him, we have removed what is in many ways a vital safety valve to enable him at least to feel that he has had the opportunity to secure a completely fair and balanced jury. It is a very important point about the perception of the system by those who are accused, be they innocent or guilty but particularly when they are innocent. That above all leads the Opposition to say that peremptory challenge must stay. Therefore, we hope that the House will vote for the new clause.

§ Mr. David Ashby (Leicestershire, North-West)
Speaking in the debate on another new clause, my hon. Friend the Minister said that it was the duty of the Government to legislate only after proper and due consideration of a matter. Indeed, in the context in which he was speaking, he was also talking about there being a preliminary trial of the evidence obtained by the use of a video. That is a sentiment which I wholeheartedly applaud.
The proposition put forward is that the jury system should be changed radically without any evidence to support it. It is said that the jury system is not random and is not representative. Of course, statistically that could never be so when a jury was selected. That has been well set out by the hon. Member for Islington, South and Finsbury (Mr. Smith). He also stressed something with which I, as a lawyer of considerable experience in defence as well as in prosecution agree: the importance of a fair trial and the feeling of a defendant that he has had a fair trial. That is fundamental to our system of justice.
Why is that so important? If a defendant has a sense of injustice, he will never be satisfied with the result of his trial. If he is sent to prison—and we seem to be sending more people to prison than any other nation—it is important that when he is in prison he should feel that he had a fair trial with an opportunity to be fully represented and to express himself. One has only to think why that is so important. We have one prison officer to every 10 or 20 prisoners. If a prisoner is unhappy, he will not be very manageable in prison. He will have a sense of injustice and a tremendous chip on his shoulder. Undoubtedly, in terms of pure cost, it will mean a higher proportion of prison officers to prisoners. It is important that a prisoner should feel that he has had a fair crack of the whip.
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Not only is jury selection not random, but on the many juries that I have encountered, out of 15 jurors, 12, 13 or 14 are women. I have no objection to women serving on a jury. It is important that they should be on juries. One has only to walk around the streets to find that women comprise 50 per cent. of the population. One cannot say that random selection is necessarily representative. The hon. Member for Islington, South and Finsbury drew attention to the statistics in Birmingham, where only 0–7 per cent. of black people perform jury service, whereas the percentage should be higher.
976 A defendant from the middle of Brixton will not be happy if he sees 15 white people from Acacia avenue. He will not feel that e is getting a fair trial. He will think, "Those people do not understand my position, the sort of problems that I have, or the sort of pressures that I have been under." He will not feel that he will have a fair trial. Likewise, if a young male person stands trial by a jury with 12 or 15 middle-aged ladies on it, he will think that they will not understand young people, their problems and the things that they do and feel. He will not feel that such a jury is representative.
I do not believe that by having two black people, by challenge, on a jury, one is any more likely to be acquitted. I do not think for a moment that if one has a few more males, a few more females, or younger people on a jury, one will get an acquittal. Indeed, the statistics show that one will not. However, the defendant will feel that he will have a fairer trial and a more representative jury. It is far better to have a trial heard by what amounts to a representative jury.
The right to peremptory challenge is often used merely to keep a better balance on a jury. The statistics show that such challenges do not give defendants an unfair advantage. The whole argument started because the Home Secretary said they give defendants an unfair advantage. Of course, statistics now show that when there is a challenge, a defendant is slightly more likely to be convicted. It is said that it is to protect defendants that this measure is being put forward, and that it will be more helpful to defendants.
We have no statistics or evidence. The only argument that we have had has been based on a hunch. Hon. Members continue to hear phrases such as, "I feel," "I think," "people say," "some judges think," and we have even heard, "the Lord Chief Justice thinks." We are trying to change the evidential practice of centuries. In evidential terms, a thought or a hunch amounts to zero. Adding hunches to thoughts amounts to nothing. One has no evidence upon which to change the practice of centuries.
I am sure that, after proper consideration, most people would feel that the jury system should not be changed on the basis of a hunch, thought or feeling. A change should be based on evidence. The judicial system is good, and the jury system is delicate. It is not to be lightly overthrown or changed. It needs to be changed on the basis of hard facts and evidence. All the hard facts and evidence point to a need not to change the jury system.
The matter started when my hon. Friend the Member for Twickenham (Mr. Jessel) rather sensationalised the Cyprus secrets trial. I am bound to say that he was not alone. Many people at that time were looking round for a scapegoat for what was a sensational acquittal. Many of us felt that that acquittal showed the maturity of the British system of justice. I cannot think of any other country in the world where allegedly confessed traitors would have been acquitted. That spoke of the maturity and independence of our judicial system.
However, the Bill speaks of immaturity, not maturity. It speaks of rushing into something without thinking; of acting on the spur of the moment on the basis of the sensationalisation of the secrets trial when one was really looking for a scapegoat. In that case, a solicitor tried to sell confidential material to the papers, in breach of all ethics. We have in that case an anecdote of a most dishonest and disreputable member of the legal profession.

§ Mr. Toby Jessel (Twickenham)
No one has ever denied it.

§ Mr. Ashby
Apparently, part of that anecdote is that one person said that he wanted one sort of jury, a second another sort of jury, and the third, a distinguished lawyer, said, "What the devil, we cannot choose our jury anyway."
My hon. Friend the Member for Twickenham says that no one has denied it—

§ Mr. Jessel
No one has.

§ Mr. Ashby
—but he will appreciate—if he does not, I am telling him now—that any decent member of the legal profession, any barrister, could not speak even now to deny, affirm or anything else what went on in that conversation. He could not do that.

§ Mr. Nicholas Budgen (Wolverhampton, South-West)
Is not the irony of this that all of us who have earned our crust at the criminal bar have challenged jurors in the hope that we may obtain a jury that is advantageous to our point of view, but usually it does not work out that way? The extraordinary mystery of the jury system is that juries act against what we, as defenders, believe to be our interests.

§ Mr. Ashby
Yes, I could not agree more. One cannot go into how a jury reaches a decision. That, as my hon. Friend rightly says, is the marvellous mystery of a jury, and long may it last.

§ Mr. Alex Carlile
I agree with everything that the hon. Gentleman has said so far, but is he mindful of the fact that, when talking about manipulation or alleged manipulation in the Cyprus spy trial, all the jurors who tried the case, whether there were challenges or not, had been vetted by the prosecution to ensure that they were suitable for such a case?

§ Mr. Ashby
I understand that to have been the case. Certainly that was reported in the press to be the case. However, I was not at the trial. I know no more than what I have read in the press and what has been said in the House.
Some people say that the secrets trial was a multiple trial and that in multiple trials the right to challenge should be limited. However, one should recognise that multiple trials are at the behest of the prosecution which puts together a number of people. In law, each individual is being tried individually. Technically, all the defendants are put together in one trial as a convenience. To impose such a limitation would be a complete breach of that principle.
My right hon. Friend the Home Secretary said that challenges for cause were acceptable and allowable. Such challenges for cause are limited. The question is asked of the judge and many, if not most, challenges are not allowed. Much has been made in respect of peremptory challenges and much has been said of the fact that we should have challenges for cause.
One point that arises for the practising advocate is that most barristers are aware that jurors attend trials willingly. We all know that they give up their homes and their jobs to perform a public duty. A random selection process can throw up jurors who are, to say the least, illiterate. As trials become more and more complex, many documents are involved. An experienced advocate is always quick to detect a juror who cannot read, or who appears to be illiterate, and challenges. I know that my right hon. Friend the Home Secretary will say that that is simply a challenge 978 for cause, but it is important that most advocates should feel that they are not putting a juror through the degrading experience of having his shortcomings exposed to the entire court.
Such a juror always starts by saying that he has left his glasses behind, or that he cannot read from that distance, and asks for the oath to be read to him. When there is a pile of documents, if a peremptory challenge is made, the juror will not feel that he has been picked on specifically or that his shortcomings have been exposed; yet he will be out of the trial, and it can quickly be established that the next juror can read.

§ Mr. Favell
I have listened to my hon. Friend and to other learned counsel who are present this evening. As they all appear to agree that the challenge is completely hit and miss, why on earth should we keep it?

§ Mr. Ashby
I hope that I have been saying that it is not.

§ Mr. Budgen
It is hit and miss; that is the advantage of it.

§ Mr. Ashby
First, I was talking about a way of obtaining what appears to be a fair and balanced jury. My second point is not hit and miss. Peremptory challenge is often used as a polite way of challenging for cause without offending someone who, for example, cannot read. I am sure that few advocates have not done that time and again.
It is as necessary for the prosecution to stand jurors by—in other words, to challenge them—as it is for the defence. That applies to what might appear to be peremptory challenges. Justice must be seen to be done, and be seen to be even-handed. Without that, we have no justice. If the prosecution can challenge without cause, the defence must have the balancing right. Not to give that right would violate the very principles raised by my hon. Friend the Under-Secretary of State when he spoke in support of the European convention on human rights, which insists that the prosecution and the defence should have equal rights.
As I have said, my experience runs contrary to my right hon. Friend's hunches. However, it coincides entirely with his research. Challenges do not alter a jury to make it convict or acquit, but they can alter a jury to make it more representative. They make all parties in the court happy with the trial and more prepared to accept a conviction because it follows a fair trial. If a single piece of evidence can be adduced to rebut what I have said, I shall reconsider my decision to vote in favour of the new clause.

§ Mr. Alex Carlile
The Home Secretary has what appears to be a personal determination to get rid of the right of peremptory challenge. In my view, that determination is based on myth. The Home Secretary appears to regard the right of peremptory challenge as a Trojan horse invading the jury system and leading to an abuse of jury trials—through abuse of the peremptory challenge itself—and to an unfair advantage in favour of the defendant. However, as the debate on this issue has continued over the months, that Trojan horse has been shown to be no more than the Home Secretary's hobby horse. We considered this matter in detail in Committee, and I spoke at length on it. You will be comforted to know, Mr. Speaker, that I do not intend to speak tonight at great length on the matter. However, I wish to reiterate a few points which, I suggest, are important.
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It has been suggested in recent years, particularly in relation to the Cyprus spy trial, that there has been abuse of the right of peremptory challenge, but no evidence whatsoever has been produced to justify that allegation. At most, there has been a little bit of anecdote about what happened between counsel in the robing room during the Cyprus spy trial. But neither the hon. Member for Twickenham (Mr. Jessel). nor anybody else, other than those members of the bar, knows what happened.
The most one can say is that it appears that at that trial there was some discussion between counsel as to how the right of peremptory challenge should be exercised. That discussion was completely proper. It happens in many cases, and it is right that it should happen. It is a proper, and sometimes an important, part of the duty of counsel.
The allegation that in some way the use of peremptory challenge gave an unfair advantage to a defendant has been thoroughly laid to rest by the Crown prosecution service survey, to which the hon. Member for Islington, South and Finsbury (Mr. Smith) adverted a little while ago. We know that the Government enthusiastically expected that the CPS survey would show that if jurors were peremptorily challenged at a trial, the defendant was more likely to be acquitted. In fact, the CPS survey showed the opposite. Putting it at its highest, there is no evidence whatsoever that peremptory challenge gives any advantage at all to the defence.
My next point is a very serious one. If we remove the right of peremptory challenge so that all jury challenges by the defence have to be challenges for cause, we shall open up a hornet's nest of practical problems that will beset the courts for years to come. I shall give a few general examples of situations in which peremptory challenges are sometimes used. The first is the kind of case to which the hon. Member for Leicestershire, North-West (Mr. Ashby) referred— the apparently illiterate juror. I agree with him that experienced counsel can tell very quickly whether a juror appears to be illiterate.
If the right to peremptory challenge is exercised, all that the defence counsel has to say is, "Challenge." The juror leaves the jury box; there is no embarrassment, and he does not know why he has been challenged. The judge usually refers very simply to the right to challenge and to the fact that it has been exercised and says that the next person should step forward. It is all over within a matter of seconds.
If, however, defence counsel had to challenge for cause on the ground that the juror was illiterate but the prosecution did not agree that the juror was illiterate, or the juror did not agree that he or she was illiterate, the juror would know what was being alleged on behalf of the defendant and might regard that as an insulting allegation.
A test may have to be applied as to whether a person is illiterate. In a fraud case, for example, it would be absurd to have an illiterate person on the jury, because there would be many documents to examine. What tests will be applied? Will there be reading or arithmetical tests? If at the end of the day the judge decides, having considered the matter, that the juror is literate and therefore should be on the jury, how can the defendant expect a fair trial from that juror? What will be the effect on the rest of the jury if that juror turns out to be the strongest character among the 12?

§ Mr. Favell
Is the hon. and learned Gentleman in favour of the American system, in which each juror is cross-examined independently before a decision is made by the defence counsel as to whether that juror should appear on the jury? That is what the hon. and learned Gentleman appears to be advocating.

§ Mr. Carlile
Not at all. The hon. Gentleman has riot been listening. I am simply warning the House that if peremptory challenge is removed that very American system which he and I both dread so much will develop. He has hit the nail on the head. I do not know why the Home Secretary finds this such a funny subject. Right through the Committee stage he wore the same grin as he is wearing tonight. I doubt whether the Home Secretary has ever seen a jury trial through in his life. It would be interesting to hear if he had.
As those of us in practice know, it sometimes happens that among the waiting jury there is a person who appears to be asleep, labile, frivolous, apparently drunk or apparently drugged. In those circumstances, responsible defence counsel would again use that one word "challenge" and that would be the end of the matter. What happens if he has to challenge for cause? He will have to stand up and say to the judge, "Challenge for cause. That juror, in my opinion, is drunk or drugged." What will happen then? There will be a debate in front of the juror in question. The judge must decide the issue in the presence of the juror. If he finds that the defence counsel, albeit acting in good faith, was wrong and the juror was not drunk, drugged, labile, frivolous or sleeping, what effect will that challenge have on the defendant's prospects of a fair trial? In my submission, those prospects could be very severely damaged.
Another example, and one that was not raised in Committee, relates to trials in Wales, including those in my constituency. As the House will know, a substantial proportion of people in Wales speak Welsh as their first language. It is very easy to tell when a jury is being sworn in Wales whether a juror is more comfortable in Welsh or English. That is a very small practical problem that is solved by experienced counsel, because there is an alternative oath. The Welsh version is printed on the back of the English version. Therefore, as soon as the juror stands up to take the oath, as long as the counsel can see the language on the back of the jury card, he knows in which language the juror will take the oath, and so can challenge before the oath is taken.
Quite understandably, many defendants in Wales, people who are not standing trial for offences with any kind of political overtones, simply feel more comfortable in their native Welsh language and wish to be tried by people who understand that language. Although in some courts in Wales there are simultaneous translations— a system which works well—that practice is not followed in all courts. Defendants are often interviewed by the police in the Welsh language because, fortunately, many officers speak Welsh. The nuance, inflexion and emphasis of the Welsh word may be very difficult to identify for an English-speaking jury. All those of us who have practised in Wales have experienced that from time to time.
What will happen? Will counsel have to stand up and say to the judge, "Challenge, your Honour, because that juror does not speak Welsh."? Will we then have a Welsh language test to distinguish between learners like myself, who in those circumstances might or might not be allowed 981 on the jury, and fluent Welsh speakers, who would be allowed on the jury? What standards will be applied by the courts? If the judge decides that the juror should remain on the jury, that decision could have a devastating affect on the defendant on whose behalf the challenge had been mounted.
If the House goes down the road proposed by the Government— I notice with some pleasure that this is opposed by a substantial number of Conservative Members—we will introduce into our law a dangerous area of dispute, debate and complexity. I believe that about 600 Crown courts sit on any given day. Will there be 300 or 600 different practices? Even 15 different practices in this important matter of challenge for cause would do a grave disservice to the reputation of our criminal justice system.
Our present system may not be very logical, but sometimes the best things are not very logical. This system has stood the test of time. It makes defendants feel that they have had a fair trial, although, as we know from the evidence, the use of the peremptory challenge does not really affect the outcome of the trial. There is something about our system of jury challenge, which I know from talking to people from abroad who have watched our courts, that people at first find surprising, but when they have seen it operate find very acceptable and praiseworthy.

§ Mr. Mark Carlisle (Warrington, South)
I think that we all admire the ingenuity of the hon. Member for Islington, South and Finsbury (Mr. Smith) in securing this debate. I understood that, if one tabled an amendment on Report which just said, "Leave out clause 86", it would not be called. What one now does is table a new clause repeating what would have been in clause 86 and, happily, it is called. I am delighted that it has been. I say to my right hon. Friend the Home Secretary, in case he gets the wrong impression, that not all the lawyers in this House disagree with what he is doing. I support his intention to accept the Roskill committee's recommendation to get rid of the right of peremptory challenge.
I disagree totally with one point made by the hon. and learned Member for Montgomery (Mr. Carlile), which was expressed differently by my hon. Friend the Member for Twickenham (Mr. Jessel). The hon. and learned Gentleman described the spy trial as an abuse of the system of peremptory challenge. So long as the right of peremptory challenge exists, it is the responsibility and duty of defence counsel, if they consider that it is in their client's interest, to use it. I do not believe that there was any abuse in that case.

§ Mr. Budgen
One of the mysteries of this system is that all of us have used the right of peremptory challenge to try to rig juries in our favour but, more often than not, it does not work that way. Although we believe that we have done a great service for our client, more often than not we have not.

§ Mr. Carlisle
The delight of my hon. Friend is the honesty of the language that he uses. As he said, he has attempted to use the peremptory challenge to rig juries in favour of those whom he has represented.

§ Mr. Lawrence
It would not be an abuse.

§ Mr. Carlisle
It would not be an abuse. It is the duty of defence counsel, so long as that power exists, to use it in what he believes are in the interests of his client. The question is: should it exist?

§ Mr. Budgen
It does not work.

§ Mr. Carlisle
I shall come to that point.
Frankly, I do not believe that it should exist. I am a strong believer in the jury system. I believe that it means trial by 12 of one's fellow citizens, chosen at random, and that it should not be the right of the defence to "rig"—to use the word of my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen)— a jury to assist his case.
The fact is that, totally properly and rightly, especially in multi-handed cases, clear efforts are made by the use of peremptory challenge to achieve a jury that the defence rightly or wrongly believes— I concede to my hon. Friend the Member for Wolverhampton, South-West that the defence may do so wrongly—to be more likely to give a verdict in its favour. That is not what the jury system is about. If one is to defend that system and the vital importance of the right for trail by a jury of 12 of one's fellow citizens, one must accept that they should be 12 of one's fellow citizens who are chosen at random, and that there should be no power to attempt to manipulate the jury in favour of the defence.

§ Mr. Ashby
Would my right hon. and learned Friend accept a jury of 12 men, or an all-female jury? Does he think that that would be a reasonable random selection?

§ Mr. Carlisle
One must accept that the right to challenge for cause can be removed. I see no reason why one should not argue that it is wrong to have a jury of one sex trying a particular case and put to the judge the argument that there should be someone of the other sex on that case.
I have never claimed to be an amateur psychiatrist, nor do I believe that one is employed as a barrister to act as a psychiatrist. As my hon. Friend the Member for Wolverhampton, South-West has said, one is often wrong when one challenges. The existence of that right is largely archaic. Therefore, I support what the Government are trying to do. As we want to get on with all the other matters in this debate, I have made the point that I wanted to make and have tried to do so succinctly. I hope that the House will support my right hon. Friend the Home Secretary in the view that he has taken.

§ Mr. Budgen
Most of the important things in life are not capable of scientific proof. It is not possible to prove the advantages of parliamentary democracy or the advantages of the jury system. If I may embarrass my right hon. Friend the Home Secretary, I should like to say that one reason that I admire him is his diffident and kindly attitude to the most important traditions in our society. He understands the importance of slow, inconsistent, organic change and the importance of the Tory tradition, as opposed to the radical tradition, in the Conservative party.
As a Tory, but one who, on occasions, is also a radical, I am none the less a supporter of the jury system. I am a practitioner before juries. I have been an undistinguished provincial barrister since 1962. As I have muddled my way through my professional life, I have come to the conclusion that the jury system is one of the most 983 important bastions of freedom in our society. Of course, it is incapable of any logical analysis or of any understanding, by clever analysis, of one decision or another.
As one listens to the debate, one realises that most of all it is about a sense of justice, a concept which is as vague and insubstantial as it is possible to put forward. However, when my hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) put it forward, I felt that it was important.
If, for a moment, I could try to engage my right hon. Friend's interest, I might say to him that in Wolverhampton we recently had a series of severe civil disturbances. They occurred mainly because the West Indian population did not have my instinctive Tory sense of the rightness of the jury system. They said—quite wrongly, in my opinion—that they did not agree with the police complaints procedure. They do not understand the impartiality of a coroner's inquest. They do not believe that the Director of Public Prosecutions would act fairly and impartially in respect of the police. They do not understand that an English jury would act fairly in dealing with a policeman whose action had led to the death of a black man. In short, they were uncertain about English institutions.
I do not understand English institutions, just as I do not understand my diffident faith in the Church of England, but I support institutions that I do not understand. [Laughter.] One of the great dangers of the arrogant and logical person is that he believes that that which he cannot understand should be dismissed. One of the most important aspects of the jury system is its mystery, which depends most of all upon its random quality. Its random quality is to some extent achieved by the right of peremptory challenge.
I remember standing in robing rooms at a quarter to 10 and saying to my fellow barristers, "Right-ho chaps, let's get on with rigging the jury. We shall object to anybody who gets into the jury box wearing a suit or who is seen near the Financial Times or The Daily Telegraph." But it does not work. While at the age of 28 I used to think it was all a tremendously clever and logical wheeze, now as an unsuccessful middle-aged man I bow before the mystery of the jury system.
I remind my right hon. Friend the Home Secretary, who is a distinguished student of English history, that sometimes mystery is more important than logic. He should interfere with the system of peremptory challenge only with the greatest diffidence. Most of all, the system of peremptory challenge leaves the defendant and his supporters with a sense of justice and a sense of justice prevents mob rule in our society. That sense of justice is lacking most of all in the West Indian community in Wolverhampton, because they do not trust our institutions. I advise my right hon. Friend not to interfere with our institutions, because 98 per cent. of our population trust in them. The public do not understand them, just as they do not understand this institution, but the jury system, for all its inconsistencies and illogicalities, is a mystery with which we tamper at our peril.

§ Mr. Toby Jessel (Twickenham)
Will my hon. and learned Friend give way?

§ Mr. Budgen
I am not learned.

§ Mr. Jessel
My hon. Friend was talking as if he were. Does he think it was wrong in 1978 or whenever it was to reduce the number of peremptory challenges from seven to three?

§ Mr. Budgen
It is entirely a matter of balance and, as my hon. Friend the Member for Leicestershire, North-West would say, about the sense of justice of the community.
A limited right of peremptory challenge upholds the sense of justice that the community has in the random nature of the jury, which we must preserve at all costs. By obliterating the right of peremptory challenge, we will damage the random nature of the jury and undermine the sense of justice that the community has in the jury system.
We can get angry about the decision in the Ponting case, but that is an example of the residual power of the jury to say, "Never mind what the law is or what the judge says, we intend to enter a verdict of not guilty." I say, as a narrow lawyer, that that is a scandalous verdict. None the less, as a citizen who does not wish to see mob violence or the West Indian population out on the streets, I say that it is better that we have an occasional verdict such as that in the Ponting case than that we should have mobs on the streets of Wolverhampton.

§ Mr. Favell
It is all very well to talk about justice, but is it not correct that the accused is not interested in justice but in getting off, and that that is why he is in favour of peremptory challenge?

§ Mr. Budgen
It is true that both the accused and his counsel are interested in getting him off, and the barrister who works the system within the limits of the law is perfectly justified. But there is a wider consideration of the sense of justice that is felt by the public, as expressed by the black man in a pub in Wolverhampton, who says, "I am not going on the streets tomorrow or into the Mander centre to make a nuisance of myself because Mr. Bloggs, who has been accused of attacking a policeman, will he tried by a randomly selected jury, selected in part by peremptory challenge." He says— although he really does not understand what he is saying—"I trust in the jury system."
The jury system, for all its defects and inconsistencies, is as much a part of our institutions as the House of Commons. We should not tamper with the jury system any more than we would tamper with the House of Commons.

§ Mr. Jessel
"Trial by Jury", by Gilbert and Sullivan, starts with the usher enjoining the jury to be free from bias.
He sings: With stern judicial frame of mind From bias free of every kind, This trial must be tried. The verse begins: Now, Jurymen, hear my advice— All kinds of vulgar prejudice I pray you set aside. A juryman echoes: From bias free of every kind, This trial must be tried. A little later the judge speaks of his early career at the Bar and sings: All thieves who could my fees afford Relied on my orations And many a burglar I've restored To his friends and his relations. These days, a barrister who wishes to restore a burglar to his friends and relations has no need to rely solely on 985 his power of oration, his forensic skill or his legal knowledge. He has a fourth weapon—to tamper with the composition of the jury, and that is frequently done. I am glad that the Government have decided to act. Trial by jury in Crown courts has become distorted.

§ Mr. Alex Carlile
What is the hon. Gentleman's evidence that trials have become distorted as a result of the use of peremptory challenge? I defy him to produce any evidence.

§ Mr. Jessel
I produce it now. This is an account by Mr. Bray of the meeting of counsel before the Cyprus secrets trial. He says: A meeting was called for Sunday 14th for all Counsel to be present … The meeting was called for 9.35 and all Counsel save Colin Pitt attended"—[Interruption.]

§ Mr. Speaker
Order. It is quite in order for the hon. Gentleman to read this quotation, or better still, to paraphrase it.

§ Mr. Ashby
Briefly.

§ Mr. Jessel
Thank you, Mr. Speaker. My hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) said that there was no evidence, as did the hon. and learned Member for Montgomery (Mr. Carlile), so I am producing it.

§ Mr. Ashby
It is not evidence.

§ Mr. Jessel
My hon. Friend is contradicting it, so I shall read it out.

§ Mr. Ashby
Will my hon. Friend give way?

§ Mr. Jessel
No. I will not give way. I propose to read this quotation. It is an account of what occurred at a pre-meeting on the Cyprus secrets trial. Mr. Bray says: Robin Simpson's point was that we wanted a young, working-class jury. Michael Hill made the comment that he really wanted an anti-establishment jury and that we were better off to have a young middle-age middle-class jury. Robert Harman pointed out that there was a dichotomy of views that we will just take what we get. John Alliot's view was that we couldn't improve on fate. Gilbert Gray indicated that if the jury is not too well educated and is of too low an intelligence, they may take more note of the Judge and therefore we ought to go for people who were young, not unsmart but no women. Victor Durand chimed in by saying that if the jury were young they may be unpatriotic. John Alliott indicated that we ought to pool resources as far any challenges were concerned that Michael Hill pointed out that we ought to challenge one, two, three, by one counsel and so on with another Counsel until we achieved a joint policy.

§ Mr. Budgen
The irony is that while these very distinguished members of the bar all make these Machiavellian calculations, almost certainly they do not work. The extraordinary thing is that, in spite of people being knocked out by these calculations, the jury comes to a proper decision on the evidence. The difficulty in what my hon. Friend is saying is that if one prevents these peremptory challenges, one undermines general public confidence in the jury system.

§ Mr. Jessel
There is not enough confidence in the jury system with the frequent use of peremptory challenges. If these very brilliant barristers, leaders in their field, at least one of whom wants to become a High Court judge, spend a Sunday morning in the back room of the Old Bailey 986 planning what kind of jury they want, they must believe that it will have some effect for their clients. Otherwise, why would they do it?

§ Mr. Ashby
rose—

§ Mr. Budgen
rose—

§ Mr. Speaker
Order. The hon. Gentlemen, who are distinguished barristers, would not get away with this sort of behaviour in court.

§ Mr. Jessel
I will not give way to either of my hon. Friends, because I have given way once to each.
Juries are supposed to be selected at random. The right of challenge existed to try to have an unbiased jury so that, if a juryman was thought to be biased, the defendant could remove that juryman. Now, a system of peremptory challenge is being used to introduce a bias, but a bias towards acquittal. That may be fair to defendants who may be guilty but want to be acquitted, but it is not fair to the general public who want to be protected against vicious and violent crime.

§ Mr. Chris Smith
The hon. Gentleman says that this is being done to introduce a bias towards a defendant. That is patently not true. A Crown prosecution service survey shows that, where peremptory challenges were used, 60 per cent. of the cases resulted in conviction, whereas 53 per cent. of cases where peremptory challenge was not used resulted in convictions. The evidence is against the hon. Gentleman.

§ Mr. Jessel
It seems to me that 60 per cent. is a rather low rate of conviction. It is as if the police were fighting against vicious and violent crime with one hand tied behind their back.

§ Mr. Budgen
My hon. Friend seems to have a touching faith in the effectiveness of the judgment of members of the bar. I accept, of course, that members of the bar try to rig the juries, but the fact is that they do not succeed.

§ Mr. Jessel
Well, it seems to me quite wrong that, if justice is intended to be paramount, they should have the right to try to rig the juries. That seems almost self-evident, and I hope that the House will support the abolition of peremptory challenge.

§ Mr. Peter Bruinvels
I support my right hon. Friend the Home Secretary and criticise new clause 9 as being thoroughly unhelpful. It was the Labour party in 1977, I believe, that reduced the number of peremptory challenges from seven to three.
My main contention is that the peremptory challenge has been abused—[Interruption.]

§ Mr. Speaker
Order. The hon. Gentleman has only just got to his feet.

§ Mr. Bruinvels
The peremptory challenge has been substantially abused; there has been a case in which multiple defendants have appeared in the dock and the entire jury has been removed through peremptory challenge. That is perfectly proper, but I do not think that it is the best way forward to get a proper random jury. It is not random at all with this peremptory challenge.
As far back as 17 April, column 1008, I raised with the Prime Minister during Prime Minister's Question Time my concern at the very high acquittal rate in trials by jury. I expressed the fear that not all jurors today were respecting law and order, and I went on to say that I did not believe 987 that all those jurors saw anything wrong in breaking the law. I highlighted the point to the Prime Minister that I felt very much that a number of jurors were deliberately acquitting rather than convicting. I asked her to introduce random selection— [Interruption.]

§ Mr. Speaker
Order. I ask the House to give the hon. Gentleman a fair hearing. Everybody else has had a fair hearing.

§ Mr. Bruinvels
I asked the Prime Minister if she would introduce a new process whereby there would be a genuinely random selection of jurors. My right hon. Friend the Prime Minister agreed with this, referred to the White Paper on criminal justice and very much supported that line.
On 9 July 1986 my right hon. Friend the Home Secretary, in answer to a private notice question made it quite clear that the peremptory challenge was to be abolished, and that was particularly welcome. [Interruption.] My hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) is making such a noise, Mr. Speaker, that I give way to him, under pressure.

§ Mr. Ashby
Does my hon. Friend accept that some people who are tried by jury just may be innocent? Does he not consider that the fact that there is a higher conviction rate where there has been peremptory challenge destroys his argument and the basis of his question to the Prime Minister?

§ Mr. Bruinvels
My argument is certainly never destroyed and I shall seek to prove this by the high acquittal rate, which I shall reveal in a moment.
Peremptory challenge has been widely criticised as not bringing about a truly representative jury. I feel very strongly that the juries, even as selected now at random, are not ideal. I make no criticism of the role of defence counsel, who do everything in their power to get accused people acquitted. Some may be innocent, as my hon. Friend the Member for Leicestershire, North-West has said. Nevertheless, it is a horses for courses syndrome at the moment. They do not like establishment figures. Those carrying The Daily Telegraph or the Financial Times are the ones most likely to be kicked off juries, because they are more liable to convict. I feel that defence counsel have been interfering wrongly with the random nature of juries.
I am pleased that the peremptory challenge is being abolished, except for cause— the removal of certain jurors for stated reasons—which will remain. In our free and democratic system we must have a genuine right to a free trial by 12 good men and true, by 12 of one's peers, 12 fellow citizens. There is no doubt that defence counsel have been manipulating the system to secure an acquittal purely by challenging the appearance, ethnic origin or sex of a particular juror.
I feel that all people should he able to be advised in advance that they may or may not be liable for jury service. I agree with the hon. Member for Islington, South and Finsbury (Mr. Smith) on one thing only; perhaps juries at the moment are not totally random. In other words, perhaps they are not a complete cross-section of society in general. I think that fewer people should be excluded from service. For example, small business men should still be able to serve as jurors. If we gave such people plenty of notice for example, three months— that they will be 988 liable to jury service, we would get a truly representative jury. I would like to see more professional people on juries. That is not always possible.
I believe that there should be a morality and loyalty test before jurors are allowed to serve—[Interruption.]

§ Mr. Speaker
Order. It is unfair to the hon. Gentleman for private conversations to continue while he is making a point.

§ Mr. Alex Carlile
On a point of order, Mr. Speaker. Is it in order for the hon. Gentleman to start speaking on this new clause about a morality and loyalty test? I submit that it has absolutely nothing to do with the clause. It is just an absurd flight of fancy of the hon. Gentleman.

§ Mr. Speaker
Every hon. Gentleman makes his speech in his own way.

§ Mr. Bruinvels
We arc talking about challenging jurors. I would have thought that even the hon. and learned Member for Montgomery (Mr. Carlile) would have understood that a morality test is one way of challenging whether a potential juror is the right person.
People liable for jury service should be checked to find out whether they believe in punishment. That is particularly important.
On 9 July 1986, during a statement by my right hon. Friend the Home Secretary, I revealed the acquittal rate at Snaresbrook and Leicester. It was far too high in Snaresbrook where the rate was 58.2 per cent. and at Leicester it was 15.5 per cent. [Interruption.] I put it to the House then and I put it to the House now, even though the Opposition do not necessarily want to hear it, that it is a shocking indictment of our jury system that we have such a high acquittal rate. Either the prosecution were not good at presenting their case, the jurors did not believe the evidence, or rather, in my belief, they did not want to believe the evidence and deliberately let people off the hook. That is unacceptable. I have been calling since then for a total reform of the jury system and of the way in which jurors are selected. I raised that point on 24 June 1986 with my hon. Friend the Minister of State.
I am particularly pleased that the age limit for jurors is to he raised. On 24 July 1986, column 388, I asked my right hon. Friend if he would consider doing that. It was not a planted question and I was particularly pleased with the answer. If we are to have a truly representative and balanced jury we need some of our elderly citizens on it as well. By increasing the age of potential jurors to 70, 2 million extra people will be eligible for jury service. That is to be welcomed.
I ask to see a truly genuine and representative jury, hearing all people who are brought before the court on any charge. I believe that the peremptory challenge has done a lot to undermine British natural justice. It is for that reason that I support my right hon. Friend the Home Secretary and ask the House to throw out new clause 9.

§ Mr. Lawrence
I shall vote for new clause 9 and against the Government, because after 25 years in the criminal courts with juries, I believe that the Government's proposal is nonsense. The reasons are easy to understand for anybody who practises in the criminal courts, but may not immediately be obvious to anyone who does not.