§ 2.43 p.m.
§ Order of the Day for the Second Reading read.
§ LORD CHORLEY
My Lords, in asking your Lordships for the Second Reading of this Bill, I do not think I need take up a great deal of time, as the Bill, if not entirely uncontroversial, is at any rate like the curate's egg, uncontroversial in parts. There is no need for me to discuss the manifold merits of the jury system as developed in this country in connection with both criminal and civil trials. It has been called the palladium of British liberty. Although it may not be a perfect method of resolving disputes on questions of fact, it is in the opinion of many people as good a method as exists, and in addition it has psychological and political advantages which have long been realised by the great mass of the people. In these circumstances, I am sure your Lordships will agree that anything which can be done to improve and strengthen the system will be of advantage to the administration of justice.
The Bill which is before your Lordships' House this afternoon is intended to have that effect. It has two main objectives; first, to enable payment to be made to jurors, and secondly, to abolish the system of special juries. I think it is only in respect of the latter part that there is any controversy about the merits of the Bill. The greater part of the Bill is taken up with the first of these two objectives, which I think will appeal to 179 noble Lords on both sides of the House. The position in respect of payment of jurors is broadly the same, whether the jurors are called to take part in a criminal case or in a civil case. In the case of jurors at criminal trials, whether at assizes or quarter sessions, no payment is made to jurors for travelling expenses, loss of earnings, subsistence or anything of the kind. A juror may be brought from a far part of the county and be kept at the court for several days entirely at his own expense. I am sure your Lordships will agree that this is a hardship, particularly at the present time when costs are so much higher than they were before the war.
In the case of jurors at civil trials, the situation is much the same, although there is a small payment which is sanctioned by custom. In the Middle Ages it was called the "juryman's groat." In London, where expenses were higher, the custom grew up to pay the jurors as much as three groats, or one shilling, and this was the "juryman's shilling." At assizes they were paid two groats, and at some courts they were paid as low as half a groat—not a very munificent remuneration for a hard day's work in the administration of justice. It might well have been that in the Middle Ages that was better than nothing, but at the present time it amounts to very little indeed—hardly the price of a glass of beer. These hardships have been often pointed out in the past, but nothing has been done about them until the present Bill was introduced. The Government to which I have the honour to belong have decided that there are a number of anomalies which ought to be put right, and this is one of them. Your Lordships will agree that it is unfortunate that my noble and learned friend the Lord Chancellor, who is particularly interested in this Bill, is unable to be here this afternoon to ask your Lordships to give it a Second Reading. It is one of a number of measures which he has sponsored and supported for redressing anomalies in the administration of the law of this country.
The greater part of the Bill turns on Clause 1, which provides for payment to jurors in accordance with a prescribed scale that will be introduced by the Secretary of State, in consultation with the Treasury, in respect of travelling and subsistence 180 allowances and compensation for loss of earnings. In respect of compensation for loss of earnings a ceiling is imposed in the proviso to the clause. Where the time lost is of not more than four hours' duration, the sum shall be no more than ten shillings, and where it is of more than four hours' duration the amount payable shall have a ceiling of twenty shillings. This scale is in accordance with the general practice which has been coming into existence.
Under the Local Government Act, 1948, Section 112, similar allowances are payable to members of local authorities and the same scale of costs is payable to witnesses under the Witnesses' Allowances Order made under the Costs in Criminal Cases Act, 1908. As recently as August of last year, a new order was brought into force under which the scales have been revised and improved, and I understand that the regulations which my right honourable friend the Home Secretary will introduce will be largely framed on the same basis as the order applying to witnesses. There will be a subsistence maximum of 5s. per day; the travelling, allowance will be the actual cost to which the juryman is put; and where the juryman is detained owing to the length of the case, and has to spend a night at the assize town, or wherever it may be, he will be given a night allowance, with a maximum of 20s.
I feel that I should also draw your Lordships' attention to Clause 1 (2), which is of some importance, because those of your Lordships—and I know there are many—who take part in the administration of justice, particularly at quarter sessions, will know that frequently juries are summoned without having, to take part in a case. Subsection (2) provides that in a case of that sort, where a juror is called to the court but is not required to serve, he will be deemed to have served and will be entitled to the payment just as much as if he had taken part in a case and had been a party to a verdict.
The following sixteen clauses all establish machinery for putting Clause 1 into effect. I do not think I need ask your Lordships to look at them in detail. The general principle is that in criminal cases, where the county pays at present for the administration of the criminal law, the county shall pay for the jurors. 181 In using the expression "county" I include, of course, all relevant local authorities who are concerned. In cases of civil litigation, where the financial burden is shouldered by the Exchequer, the Exchequer will shoulder the burden of making these payments to jurors, except that the parties to the litigation will have to pay something towards it. I understand that arrangements already exist under which the Lord Chancellor, in the case of the High Court in consultation with the Judges, and in the county courts in consultation with the Treasury, may establish the fees which litigants themselves must pay. That will to some extent lighten the burden upon the Exchequer.
There are a certain number of local courts of civil jurisdiction of high antiquity and very considerable authority—such as the Court of Passage at Liverpool, the Salford Hundred Court, and others—where the local authority will accept the responsibility of the financial burden imposed by the payment to the jurors. Some of your Lordships who are interested in the antiquarian side of this matter will perhaps be interested to look at Clause 14, which excludes certain types of jurors from the benefits conferred by this Bill. For example, antiquarian institutions such as the Great or Small Barmote Court, which sits in the Hundred of High Peak and is concerned with disputes about mineral rights, are excluded. There are other juries of the same kind which I believe occasionally sit, and the sitting is made an occasion for a certain amount of jollification, at which a good time is had by as many people as are able to gather together. We do not desire that those interesting survivals should be brought to an end but, also, we do not wish that they should come within the financial provisions made by this Bill.
We then come to Clause 18, which with the following clauses is concerned with the abolition of the special jury. There is an important exception to this, in the case of special juries which are summoned in the City of London. They may continue to be used for the purpose of dealing with commercial problems. These special juries in the City of London have a very honourable history; indeed, as is known to some of your Lordships who have been much interested in our commercial law, they may claim to have taken a large part in the building up of the commercial law of this country in 182 the eighteenth century, under the presiding genius of Lord Mansfield, perhaps the greatest commercial lawyer this country has known. Since that time City of London special juries have not been used quite so much, and they are not commonly met with nowadays. There may from time to time, however, be a case in which the expert knowledge of such a jury would be of great assistance to the Judge who has charge of the commercial list in the High Court, and it is therefore proposed to maintain the existence of this special jury from the City of London. It has always been possible to transfer a case from one of the provincial centres of commerce to London, in order that advantage of this special jury may be taken by the litigants and the Judge, and this will continue to be the case.
The history of the special jury is not very clear. One of the biggest lacunæ in the late Sir William Holdsworth's monumental History of English Law is in relation to the history of the special jury; so far as I have been able to discover, there is nothing in that great work about the special jury. It seems to have grown up in about the fifteenth century, just as a matter of practice, and from that time it has undoubtedly taken a great part in the administration of law, being used in a difficult type of case in which a man of substance and education could take a valuable part in the administration of justice.
The qualifications to be a special juror at the present time are governed by the Jurors Act, 1870, and the main difference between the special jury and a common jury under that Act is merely a matter of wealth; indeed, it is little more than a question of whether a person lives in a larger house, because it is mainly a question of the rateable value of the house. A householder rated at £100 in a large town, or £50 in a small town, is qualified to be a special juror, while a householder rated at £30 in London and Middlesex, and £20 elsewhere, is qualified to be a common juror. There are various other qualifications for a special juror, such as if a man is entitled to be called "Esquire," or if he is a merchant or a banker, but I understand that in practice the special jury list is largely made up on the basis of rateable qualification. In the view of His Majesty's Government, this distinction is no longer justified. It 183 may have been justified in the past, before education became widespread, but at the present time, when practically every citizen is reasonably well educated and at least sufficiently well to take part in the decision of an ordinary type of case which comes before a jury, it is felt that there is no longer any reason why the distinction should be maintained.
Although it is possible to have a special jury in a criminal case, I understand that it is now over thirty years since a special jury has in fact been empanelled to decide a criminal case. Although in Scotland it is possible to have a special jury in a civil case, I understand that, for a very long time past, at any rate, no such special jury has in fact been empanelled. I rather expect that your Lordships will agree that, in these circumstances, the special jury has ceased to fulfil any useful purpose, but it is a fact that when this matter was discussed in another place a number of the Members there took a different view. At any rate, the view of His Majesty's Government is that there is no longer any valid case for continuing the existence of the special jury, and that is provided for in these clauses in the Bill.
Part II of the Bill deals with Scotland, and the clauses there are drafted in order to bring about the same situation in Scotland as Part I of the Bill will bring about in this country. The Scottish system of law, as your Lordships know, is so different from that in this country that a special series of clauses are necessary. The main difference is that in Scotland the expense of the administration of criminal justice falls upon the Exchequer, and not upon the local authority as is the case here. I do not think I need draw your Lordships' attention to any of the details of the clauses in Part II. Part III is an enabling clause, which enables the Government of Northern Ireland to introduce legislation for the purpose of producing the result which Part I will produce in this country—in other words, to enable them to pay their jurors and to abolish the special jury. I think your Lordships will agree that, although the objects aimed at by this Bill are not of a very radical or fundamental character, nevertheless they will in fact lead to a substantial improvement in the jury system as used in this country and will, therefore, be to the advantage of the 184 administration of justice here. I beg to move.
Moved, That the Bill be now read 2a.—(Lord Chorley.)
§ 3.3 p.m.
§ VISCOUNT SIMON
My Lords, I think we are all grateful to the noble Lord who has just spoken for giving us so clear an account of the contents of this Bill. While we join with him in deploring that the Lord Chancellor cannot be here, in which case he might, I suppose, have introduced the measure, I do not feel that the House has in the least suffered because on this occasion the noble Lord opposite has undertaken that duty. I think he is right in saying that in its main features the Bill will be generally approved but it is also right to say that it deals with a very important and, I may add, a very interesting subject. It is an attempt to improve our system of justice, and that is a matter which all serious citizens—and certainly all members of this House—will desire to consider carefully and fully.
I agree with the noble Lord that there are really only two points of principle involved in the Bill, and, speaking for myself—and perhaps for many other noble Lords also—I am in agreement with the Government on both points. The first is whether we should revise and increase payment for jury service. I think we should. The second important question is whether special juries, as a separate class of jury tribunal, should be abolished with the exception of the special juries in the City of London. There again, my own judgment, based on what is a fairly long experience of jury cases, is that it is quite right now to abolish that distinction.
May I just say a few words to the House on these two matters of principle?—because, of course, we shall discuss the details later in Committee. First, as to providing some sort of payment from public funds for jury service, I think that at present nothing is paid to a juryman who serves in a criminal court, with the great responsibility of deciding, according to the evidence and under the directions of the Judge, whether a man has or has not been proved guilty of a crime. Nothing at all is paid to such a juryman. This Bill, if I follow it correctly, will apply to the juryman in a criminal case what I think are, on the whole, very 185 necessary provisions. In proper instances, of course, there is a good deal to be said for the view that the duties and the responsibilities which citizens are called upon to discharge in a country like ours should be undertaken without payment. I certainly do not want to see everything which the good citizen does made the subject of remuneration. It should be part of our pride, as well as our tradition, that as citizens of this country we do our duty as well as we can, without thinking what we are to get for it. For example, the State does not remunerate electors for going to the polls, and it is to be hoped that other people do not remunerate them either. To take a still more obvious example, the State does not remunerate taxpayers because they pay their taxes; it would be a curious and circuitous process if it did.
Those are duties and responsibilities which fall upon all of us, whereas this jury service—although it is a compulsory service—is an exceptional incident in the life of a citizen. It has to be discharged by a very small proportion of citizens who are qualified to render it, and I think that makes a great difference. The lot falls upon a selected few out of the Jury List, and these few are required to do a piece of work for the community as a whole, and in many cases this exceptional burden, this compulsory duty, does involve them in personal loss. That being so, I think it was quite right for our law to recognise (as it did in the old days, at any rate as regards cases in the civil courts as the Government have just reminded us) that a man who serves as a juror should be paid something. Without inquiring how it comes about that the value of money has so depreciated, I agree that in these days to pay one shilling to a common juryman (a shilling a day, I think it is) is really derisory. In the case of the special juryman, as many noble Lords will know, though I do not think the fact was mentioned in the speech to which we have just listened, he is entitled to be paid a guinea a day.
§ VISCOUNT SIMON
I did not mean a day. He is paid a guinea; but, oddly enough, however long the case goes on, the initial guinea is supposed to be enough. Some of us who practised at the Common Law Bar are not, unfamiliar with the long-drawn-out special jury case 186 in which, on the third or fourth day, before the proceedings are resumed the foreman of the jury delicately hints to the Judge that he and his comrades are feeling that the case is going on for a long time and are wondering whether it is not possible for some recognition to be made of that fact by some further payment. Then follows a process in which members of the Bar are careful not to take advantage of one another, because it may be that the litigant on one side has plenty of money, while the litigant on the other side has not; but at any rate, as a matter of arrangement between the parties, the special jurymen in a long case may in fact receive a guinea for each day. As I say, that is purely a matter of arrangement between the parties.
It has always been recognised in civil cases, therefore, that the jury should be paid, but I do not think the existing arrangement is one which ought to stand. I am sure that the payment should be strictly limited, but there should be some better system of relieving the juryman from the special loss which he incurs. After all, the juryman is a citizen who has been chosen by lot to exercise a particular function on behalf of the public as a whole. Therefore, I am entirely in favour of the principle of Part I of the Bill, thought it will perhaps need to be examined in Committee with some little care; even now I see one or two points about which I should like to make inquiry at the proper time. I will add only this to what the noble Lord actually said in his short description, which I thought was otherwise quite accurate—namely, that the provision in the Bill is a provision for certain payments to be made in respect of jury service for each day that the juryman attends. I think I am right in saying that at present the payment which is made to a special or a common juryman is paid only if he actually goes into the box and takes the oath to serve in a case; that is to say, nothing is paid to the large number of people who are summoned to attend because they may be needed to take their places in the jury box in the course of the day.
Now comes the other point which is more open to argument—though it is a matter on which I have a clear opinion. So far as I have any right to speak I think it is desirable (and I respectfully 187 commend this view to other noble Lords) to get rid of the distinction which now exists—the distinction between a common jury, which is composed of members who are householders resident in premises of the net annual value of £30—or £20 in the country—and a special jury, which is composed of members, broadly speaking, who are the occupiers of premises worth at least £100 a year in London or certain big towns (certainly in London and Middlesex, anyway) or at least £50 elsewhere. Whatever was the case long ago, that, in my view, is a distinction which clearly cannot be justified to-day. Perhaps I may be allowed to say, without being autobiographical, that in my experience a common jury is often quite as intelligent as a special jury. Certainly, we cannot grade intelligence at this time of day by inquiring what is the annual value of the premises occupied by the individual; that is manifestly a perfectly archaic and ridiculous method of grading intelligence. It may have been different in the old days. After all, in the old days, I suppose, the poorer class of the population in many instances could not read; newspapers were so expensive that the poorest people never bought one; and the circumstances generally were so different that possibly this kind of distinction was valid. But I am quite clear that to keep up such a distinction now is unjustified; and, what is more, it is really to misunderstand the way in which every juryman, of any class, goes about his business.
I hope I shall not be thought to be wandering from the point if I say that I altogether deny that every kind of jury is actuated by what some people call "class consciousness" or "class prejudice." I would assure your Lordships, with complete candour, that that is not the experience of those who have a great deal to do face to face with juries in the jury box. The juryman, of course, has his own mental or political attitude, as has everybody else, and no doubt his view and his judgment may be coloured by that attitude. But I do not think any advocate who has had long experience of presenting cases to a jury has any doubt that when the jury have sworn that they will listen to the evidence and, as it is said, "a true verdict make," they endeavour honestly, under the guidance and authority of a wise judge, to act with the 188 intention and desire of arriving at a just conclusion.
The notion of plaintiffs who have felt aggrieved about having lost their case before a special jury, that they would have won it before a common jury, is nonsense. The individual citizen sitting in the jury box is, I am sure, only trying to do his best. He listens attentively—though he sits on a very uncomfortable seat and is inadequately provided with the materials for noting what is going on. He attends closely to the learned judge and is, quite rightly, largely helped as to his ultimate judgment by the way in which the judge reminds him of the facts and points out their relevance and importance. Whether the jury be a common jury or a special jury. I feel certain that such bodies, as a whole, regard themselves as a tribunal which is helping to arrive at the truth and to administer justice.
It may be true that sometimes a citizen in the jury box has some prejudices, but—speaking of course with very great respect—is it quite certain that a learned judge never has prejudices? I do not think so. One of the great advantages of the jury system, as I have seen it, is that where you are relying upon a judge alone, if he has an idiosyncrasy or a "kink" in some direction, a mere human failing such as we all may develop—well, you have to rely upon one man; whereas the fact that you have a number of citizens on a jury—twelve citizens in the High Court or in a criminal trial and, what is very rare nowadays, a smaller number in a county court—has the result that it tends to cancel out or to mellow the isolated extreme view which perhaps one man would form.
Most of us who watch these things know that one of the duties of an advocate is not only to listen to the court and to make his speech but to watch the jury. There was one occasion, I remember, when a good junior said, "The red-faced man in the back row does not believe this witness." That is the sort of junior you want if you are going to carry on your work as an advocate successfully. I am quite convinced that this is the true view of our system in this country, and that is the reason why we follow a practice here which to lawyers in some other countries is most extraordinary. I have often taken a barrister 189 or a lawyer from the United States round our courts. The thing that astounds him is that one does not hear anybody challenge the jury, whereas in some parts of the United States there appears to be quite an elaborate inquiry first as to whether an individual citizen, if he is put in the box, is a person who, because of his ancestry, his opinions, his previous knowledge or his relations, is likely to do justice. We never do it in this country.
I have only once seen a juryman challenged in a court. It was in a criminal ease at Bristol. I was not conducting the case, but I was there. Evidently the accused had told his solicitor or counsel that there was a particular man sitting in the jury box about to be sworn whom he regarded as his mortal enemy. I recollect very well how, before the jury was sworn, the associate said to the prisoner, in the language of the court, "Prisoner, these are the names of the jurymen who shall try you. If you object to them, or to any of them, before they are sworn, when they take the Book and before they are sworn, you shall be heard." The Testament went round and, when a certain individual in the back row took it, counsel said, "I object." Thereupon the associate said to the man, "Get out of the box." The man took the Testament he flung it down on the ledge of the desk—and one could see that the prisoner was right! That is the only instance that I have ever known where there has been a challenge of the jury, whereas in some countries, and indeed I believe in the friendly country of Holland across the Channel, these things happen much more frequently. The explanation is that in this Island we have found that a juryman's sense of duty, and his willingness to listen to a fair argument, fairly presented, together with the help he receives from the judge to weigh up the evidence, leads, on balance, to very just results. It is quite wrong to suppose that there is any class privilege about it.
I have ventured to reinforce my observations on this point by bringing to your Lordships' House the very sprightly autobiography recently published about a friend of many of us, Sir Patrick Hastings. If I may be allowed, I should like to read one paragraph from his book. I hope I shall not be suspected thereby 190 of corruptly attempting to promote the further sale of this book! This is what he says—I agree with him:The jury-box, which is their temporary home, contains twelve members of the most rational and sober-minded nation in the world. Their one desire is to see that justice, as they understand it, shall be done between two people who have placed themselves unreservedly in their hands. They are ignorant of law, but in their united wisdom they ale fully acquainted with the dangers and tribulations of ordinary human life. They are patient and generous to the advocates who appear before them, but are properly intolerant of anything which they think is in the nature of a trick. They will listen at any length to common sense, but become restless under verbosity; they become irritated by an ill-timed jest, and above all they detest the slightest attempt to bully either a witness or themselves. But as a tribunal for dispensing justice they are absolutely without equal.This very experienced advocate goes on:During all the years that I have practised before them I hardly remember a single instance in which they were wrong in the decision which they gave. They have often been against me, and upon those occasions I have been properly annoyed, but upon thinking the case over, as I always did, in the end I have come to the conclusion that they were right. Their verdict may not have been strictly in accordance with that which we know as the law of evidence, but according to the law of justice and common sense there was no fault to be found with the decision at which they arrived. I am satisfied that in the end twelve ordinary English men and women sitting together form the best tribunal that civilisation has yet devised, and any legislator who seeks to curtail the activities of juries does a great disservice to the nation.I must say that that expresses the view which I have been led to form.
Now, lest I should irritate by my verbosity, I will sit down, observing only that as things are to-day we employ juries in only a comparatively restricted field of litigation. They were much more widely employed when I was young. The change was due to the First World War. Then, on the grounds of saving man-power, new rules were made, and to-day a jury is employed in only a limited number of classes of litigation, where there is alleged fraud, libel, slander, false imprisonment, seduction or breach of promise. But we need not go into the details—at least, I need not. As I said in my first sentence, I feel that the two main purposes of this Bill are entirely right, and I congratulate the Government on having found the occasion and the means of bringing it forward.
§ 3.29 p.m.
THE MARQUESS OF READING
My Lords, I certainly do not propose to destroy the harmony which has hitherto prevailed in relation to this Bill. It may be that those of us who have at times practised before juries have not been as fully informed as we might have been as to the exact process by which twelve good men (or women) and true were ultimately shepherded into a portion of the court which it was not at first sight easy to distinguish from the dock. Nor have we always been entirely instructed as to the system by which they were remunerated. But now, in my judgment, the moment has come when such remuneration as they have hitherto received falls to be revised, and when the provisions of this Bill in general should usefully be put into force.
I confess that I am a little startled at the number of clauses which are necessary in this Bill in order to put into operation what one would think at first hand was the not very complex operation of paying jurors for their service. In the interests of complete justice, it may be necessary to administer some sort of means test as to how much jurymen are to receive for a particular service, but from the point of view of simplification I cannot help thinking that there may be something to be said for adopting a system more in the nature of a flat rate of payment, although I agree as to the subsistence and journey money. We may perhaps have something to say on those points on the Committee stage.
In these days, opportunities for voluntary service are being considerably curtailed and one might think that a chance not only to accept responsibility but to discharge a privilege by joining in the administration of justice was one which would be beneficial to the citizen. But, at the same time, when we are talking about voluntary service upon a jury, we have to remember that it was voluntary only in the sense of being so underpaid as practically not to be paid at all; voluntary, in the sense that the man had come forward and volunteered to go and sit in the jury box, it certainly was not.
On the other aspect, I confess to no indignation or lamentation at the departure of the special jury. As the noble and learned Viscount, Lord Simon, has just said, there were times when special juries were very commonly resorted 192 to; but those times are long past—and rightly so. It seems a little ludicrous to preserve nowadays the question as to whether a person shall be a special or a common juror, in days when most of the people who used to inhabit the larger houses are living either in their own or some one else's garage or gardener's cottage. But the illogical aspect of the special jury system which impresses itself upon me is that where a man suffers injury to his body, his case can be tried by a common jury, but if he suffers injury to his reputation he can, if he wishes, import a special jury. What is the difference between the two?
Again, and more important, a man may be tried by a common jury for libel or for fraud in the criminal aspects of those matters, and the result of that trial may well be that he goes to prison for a protracted span of time. A common jury is good enough to send him to prison, but apparently not good enough to decide whether he shall pay monetary compensation for the fact that he has defamed somebody, or damages in cases of fraud. That distinction between the criminal and the civil sphere of common and special juries seems to be so illogical that, for that reason alone, I should be prepared to see the departure of the special jury.
It may be that there is a feeling abroad in some sections of the community to-day that a special jury is animated by political considerations, by some form of class prejudice. I believe that accusation to be unwarranted. At the same time, however, if it exists, and if the retention of a special jury is not essential to the maintenance of our judicial system, then I would rather eradicate even an unreal grievance than see the whole administration of justice possibly suffer from the existence of that view in a matter which was not fundamental to the system's efficiency. My Lords, for those reasons we desire to support this Bill and to say that on the two main principles which it sets out to establish, we are in agreement with the Government; and we congratulate them on the steps that they have taken to make these two changes in the administration of justice.
§ 3.35 p.m.
§ LORD GODDARD
My Lords, may I say just a few words in support of this Bill? For many years I have thought 193 that special juries might well be abolished. As your Lordships know, with one or two minor exceptions, special juries are concerned only with civil cases, and now that juries in civil cases have almost entirely disappeared it is very rare indeed to have them. And that is just the time, I suppose, for this Bill to be introduced. I doubt whether there are now one hundred cases in a year tried by jury—either special or common. Everybody seems to be content to leave the case to a judge. Only the other day, I had a special jury in my court to try a case which I should have thought was essentially one for a jury, but both parties begged me to discharge the jury and to try it myself. I have often wondered whether the lip service that we all pay to the great palladium of British justice, the jury, is well justified, because it is a fact that many criminals want to be tried by the magistrate and not by a jury if they can possibly persuade the magistrate to take that course; and the same applies nowadays very much to civil cases.
To pretend that special juries favour one section of the community more than another is, I believe, a complete libel upon them, and it would be just as sensible—or senseless—to say that common juries favour the other. As a matter of fact, when I was called to the Bar (in the same year as the noble Viscount: I regret to say fifty years ago), I was told by one of the old "warriors," who in those days knew a great deal about juries, "My boy, if you are for the plaintiff and have a rocky case, ask for a common jury. If you have a good case, and want heavier damages, ask for a special jury." But I have found that even that was not true. If one goes into the history of special juries, one finds they were set up originally for one purpose—and one purpose only.
The first special jury that was ever sworn in England was sworn in the year 1645, and it was then formed by the court on the application of both parties. It was a dispute between two merchants and they both asked that a jury of merchants should be empanelled to try the case. For many years that was the only ground upon which one would have a special jury. I am glad that that sort of right has been preserved in this Bill, because I think that where commercial cases are to be tried in the City of 194 London it is a good thing to have a jury of merchants. In 1730, an Act was passed which enabled a court to order special juries; but even then their use was infrequent—until, of course, there came Lord Mansfield, who somehow or other managed to have established a body of special jurors which was known as "Lord Mansfield's special jurors." He used to ask them to dinner and it was considered a great compliment to be one of Lord Mansfield's special jurors. In Lord Campbell's Lives of the Chief Justices he says that when he first attended at Westminster Hall he used to see sitting there a man called Edmund Vaux, who always wore a cocked hat, who had been one of Lord Mansfield's special jurors, was intensely proud of it, and was looked upon in the City as second only in authority to the Chief Justice.
Then, of course, there came the Act of George IV, in 1820, which fixed the qualification for special jurors. In those days, no doubt, the qualification to be assessed to the relief of the poor at £100 a year was a very considerable one. With the changes in values, that qualification has really disappeared; and now every small shopkeeper, every publican, every boarding-house keeper—all estimable persons no doubt, and all good jurors—is qualified to be a special juror, whereas the civil servant, the professional clerk, the accountants' clerk, and people like that, who are probably much more able, or just as able, to weigh up evidence, are rated only as common jurors. I defy anyone going into a court to-day to look at the jury and say whether it is a common jury or a special jury court. I think it is high time this difference was abolished. With the jurors one has now, with their greater degree of education, we can safely take all our juries from the same panel, except that I believe it is a good thing to keep the special jury for the City of London commercial cases.
With regard to the payment of juries, I think that is a reform which is long overdue. I do not wish to add anything to what has been said except this. I would ask His Majesty's Government to remember that these changes which look so innocuous and so easy often cause a good deal of difficulty in the machinery which has to work to them, and it is quite clear to my mind that a very con 195 siderable burden will be placed on the office of the clerk of assize. It will be essential that the number of circuit officers, which on all circuits is now three, should be increased to at least four. Indeed, in some places it may have to be increased to five. It must be remembered that by Statute no fewer than forty-eight jurors have to be summoned every day. Those forty-eight have to get their expenses passed, they have to draw their subsistence allowance, they have, if necessary, to show that they have had to stay the night, and so forth. All this means that a very considerable amount of work will have to be done. I am sorry to say that, in my humble opinion, the department from which these officers are recruited, the Crown Office and Associates Department, is very much understaffed. I therefore hope that His Majesty's Government will bear in mind the representations which are being made to the Treasury for an increase in the number in that department, and that they may be induced to make the regulations for the recruitment of persons to that department a little more elastic. The new staff have got to be trained, and trained quickly, and unless there is to be a breakdown at the assizes, we shall want really good assistants in the offices of the clerks of assize. That is all I have to say by way of criticism of the Bill, and I hope that your Lordships will see fit to give it a Second Reading.
§ 3.44 p.m.
§ LORD DU PARCQ
My Lords, perhaps I may be allowed to add a few words in support of what has been said. I entirely agree that this Bill deserves support. I wish to say a word on one subject, though I must not dwell upon it for it would be wrong to do so. My noble and learned friend the Lord Chief Justice has said something about the employment of juries. He said truly that juries are nowadays comparatively rarely employed in civil actions. I hope (it may be a hope that is not likely to be realised) that we may reach a time when they will be more frequently employed. I am bound to say that as the result of my own experience as a judge trying cases with juries—it extended over only six years, I am afraid—I have never felt such complete satisfaction with the result of cases which I have heard as when I had the assistance of a jury. Sometimes 196 I have had a doubt as to the wisdom of my own decisions on questions of fact, but I do not think I have ever had a doubt as to the decision arrived at, when I have summed up a case, by a jury.
I well remember that distinguished judge, who was one of the finest specimens of a judge one could ever wish to meet, Lord Justice Bankes, telling me that in his experience he had sometimes thought a jury wrong, but on reflection afterwards had come to the conclusion that it was the jury who were right and he who was wrong. Not only did he tell me that was his own experience, but he said that much the same thing had been told him by a member of your Lordships' House, Lord Sterndale, who is, perhaps, better remembered by many as Lord Justice Pickford. Those were two great judges and they both held the view that you could not have a better or fairer trial than a trial with a jury. Of course, it is perfectly true, as the noble and learned Lord the Lord Chief Justice has so amusingly said, that many people who are charged with criminal offences prefer to be dealt with by the magistrates. Great as is my respect for magistrates, certain as I am that people get a fair trial from them, it has to be remembered that, usually, people tried by them are likely to get a lighter sentence. The matter is disposed of quickly, and, as a rule, the sentence is less.
No matter should be considered of more importance than this question of juries. I will say one word about their expenses. I entirely agree with what has been said already to the effect that it is not desirable that everyone who undertakes service for his country should feel that he has a right to payment. I was a party to the Report of the Royal Commission on Justices of the Peace. That Commission reported unanimously—for on this point they were entirely unanimous—that, apart from payment of out of pocket expenses and matters of that kind, there should be no remuneration for justices of the peace. The juryman is in a very different position. I suppose it must be twenty years or more ago when I was told this by the clerk of assize of the Western circuit of that day. We were at Winchester, and I was then at the Bar. There was a rather long case in progress and the clerk of assize 197 told me that when the court rose a jury, man came to him and said: "What am I to do? I live in the Isle of Wight. The judge has said that we are to sit to 10.15. I cannot possibly be here in time to-morrow. I cannot get a boat to take me home to-night or one to bring me back here in time." The clerk said: "You must stay in Winchester." To that the juryman replied, "Where am I to stay?" The clerk replied: "You must go to an hotel or a boardinghouse." "But," said the juror, "I have no money." And he literally had not got any money, and he could not get any in the ordinary way. He had no money to pay for his bed and breakfast in Winchester. The clerk of assize eventually gave it to him out of his own pocket without any hope of ever recovering a penny from any fund.
I was at once made aware of what perhaps I had not fully realised before—that this was a monstrous imposition to put upon members of the public, willing to do their duty but unable to provide the money for their expenses, for their meals and so forth, when away from their homes. And one need not think about it very long in order to realise that a man is not likely to be at his best if he is wondering all the time he is in the jury box what is happening to his little shop, or what his employer will say to him, or how he is going to find the money necessary to enable him to get home, or how he is going to find the money for some other purpose. It is high time that this change was introduced. I entirely agree with the noble and learned Lord, the Lord Chief Justice, that the machinery will need to be looked at. It may be much too difficult as it stands, but in principle, I hope your Lordships will all support this measure.
My experience of special juries was much the same as that of the noble and learned Lord, the Lord Chief Justice. I do not think I was told that if I had a bad case I should ask to have a common jury—I agree with the noble and learned Lord that if I had been, it would have been very bad advice—but I was told that if heavy damages were required, it was a good thing to have a special jury. Time after time I was asked by clients who were claiming damages whether there ought to be a special jury, and in cases where the claim was for heavy damages, I always asked for a special 198 jury. By heavy damages I mean something running into thousands of pounds. Juries were not so liberal in those days as they are now; an award of £1,000 was regarded as a heavy one when I was first at the Bar. The idea of asking for a special jury was that it was composed of wealthy people who had more money and thought naturally in higher figures. In one part of the country a common jury who gave some young woman an award of £100 felt that they were endowing her for life; that it was a magnificent sum and that she was sure to find a good husband and be set up for life. That did not apply to a jury in London. They thought in much higher figures and had very different standards. Things have changed now, as my noble friends have remarked. We cannot judge the education or affluence of a man by the rateable value of his house. He may be so fortunate as to have a house protected by the Rent Restrictions Acts, or he may not.
I remember my first case in the High-Court, as all noble Lords who have been at the Bar will remember theirs. An action was brought against an hotel keeper for supplying oysters which unfortunately caused typhoid fever. We had a special jury. I remember one old hand at the Bar saying, "Be careful. You are having a special jury. The way the under-sheriff collects them is to draw first from one district and then from another. I believe you will find that all your jurors are from Bloomsbury. They will all be hotel keepers and boarding house keepers. You will not have a ghost of a chance!" I do not remember whether they were, but the case was quite successful. If there were hotel keepers on the jury, they were not prejudiced.
Those juries will go, and a good thing too; but it is important that we should not think of the special jury as of a rather wealthy and prejudiced class, and of a common jury as of a poorer class, with possibly prejudices in the opposite direction. I am rather sorry that the term "common jury" has been retained. If we are going to keep by way of a special jury only the City of London special jury, then why not call it the "City of London Jury" and the others "juries." There is, of course, nothing derogatory in being called "common," because the word is contained in titles 199 of great dignity—I am sure that the Common Serjeant is extremely proud of his title. What I am anxious about is not a matter of mere name, but a matter of substance. I am anxious to see in every jury box people representing different classes of the community. I should like to see an occasional banker and merchant as well as men who keep small shops and men who work in the country on the farm and in town in the factory. I am anxious to have intelligent householders of every sort. Because the vast majority of them are intelligent, and, what is even more to the point, they are not only fair-minded but are also extremely conscientious. Those of us who have summed-up to a jury and observed their bearing during a case, know that the only moments when they are distressed is when they are not certain they are appreciating what is being said. They attend and listen carefully, and to say that there is any prejudice on the part of a jury, is, except in the rarest instances, in my opinion mere calumny. I think it only right that I should say so. I am very glad to be able to join in the chorus of approval of the principles of this measure.
§ 3.56 p.m.
§ LORD CHORLEY
My Lords, I need hardly say that I am exceedingly gratified at the response which has come from noble Lords in all parts of the House to this Bill. It has in fact turned out to be uncontroversial, and apart from matters of detail, on which noble Lords have very properly entered caveats, the whole reception of the Bill has been as friendly as one could have desired. Noble Lords having great experience and the highest distinction in both the practice and administration of the Law have joined in paying tribute to the value of the jury system. With only a very small experience, although possibly I may be the only one among noble Lords taking part in this discussion who has served on a special jury—and that was indeed a valuable experience and certainly increased my respect for the institution of the jury—I am glad to be able to add my tribute to those of the noble Lords.
The noble and learned Viscount, Lord Simon, and other noble Lords, have expressed the very emphatic opinion that juries are not class-conscious. In support of that view, the noble Marquess, Lord 200 Reading, made what I thought was an important point when he said that there was a view abroad—how widely it goes it is possibly difficult to estimate—that juries were class-conscious, and that one of the valuable results of the passing of this Bill will be to remove that impression, because, as was said by a late member of your Lordships' House, it is not only necessary that justice should be done but just as necessary that it should appear to be done. In some very interesting reminiscences, the noble Viscount, Lord Simon, pointed out that the system of challenge has disappeared from our courts. That is a comparatively recent development. Until quite recently the special jury used to be subject to a system of what was called "striking," before any question of challenging an individual juror arose. Some forty-eight jurors were selected and each side was allowed to have so many struck out.
Your Lordships may be interested in a short passage from a most valuable book by Dr. Jackson, of the Cambridge University Law School, called The Machinery of Justice in England, I am sure it is familiar to many of your Lordships. He describes a case decided before the First World War, and in that description this system of "striking a jury" is illustrated. Dr. Jackson writes:Mr. Lygon, M.P. (Conservative), brought a libel action against Mr. Green (Liberal) and a newspaper owned by Mr. Winfrey, M.P. (Liberal). Mr. Lygon had said that he was against feeding school children out of the rates and he was cited as being against feeding school children, the words 'out of the rates' being omitted, so that a fearsome innuendo arose. The Master ordered a special jury to be struck. The venue was Northamptonshire, so the sheriff of that county sent the special jury list to his London asent before whom the parties appeared and balloted for forty-eight names. Another appointment, a day later, was made for 'striking.' The plaintiff's solicitor at once set off for Northampton, followed by the defendant's solicitor, to find out the politics of the panel. The result showed thirty-five Conservatives and thirteen Liberals. The next day with 'unerring accuracy' the plaintiff struck out twelve of the thirteen Liberals, whilst the defendant said he objected to the twelve 'most violent Tories.' That left twenty-three Conservatives and one Liberal. At the assizes the one Liberal got in on the ballot, and because he was a 'quiet, unobtrusive Liberal … we got him foreman of the jury, and he brought down the verdict from £500 to £100 by sticking out'.That shows how the special jury system might have worked a long time ago in the case of a political libel action.
201 The noble Marquess, Lord Reading, complained of what he considered to be a superabundance of clauses in the Bill. That is due to the fact that there are a considerable number of different types of juries, each of which has to be dealt with; indeed, the arrangements in the counties are often complicated by the fact that some counties are divided up into ridings and other smaller areas, and in some of these counties the administration of justice is based on this type of division. All those matters have to be dealt with in the machinery clauses of the Bill. The noble Marquess also felt that it would be better to have a flat rate. Obviously there is a good deal to be said for that, but it is felt that the system introduced in this Bill should follow that established in connection with witnesses. If that were not done, a juryman might possibly have a grievance that a witness was being treated better than he was, and vice versa. In connection with witnesses, under the order to which I directed your Lordships' attention, this system has in fact been in use for many years, and has been revised and brought up to date as recently as August of last year. On the whole, therefore, it seems advisable that the matter should be dealt with in the same way in this Bill.
I was delighted to be given historical information by my noble and learned friend the Lord Chief Justice in regard to the date of 1645, which I had not myself been able to find. I understood that the special jury came into existence before that date. I am glad to be reminded of the interesting fact about Mr. special juryman Vaux, who was one of Lord Mansfield's jurors. The noble and learned Lord Chief Justice also, very properly, drew attention to the difficulties which might be caused on circuit and in the Crown Office by this problem of having to pay a substantial number of jurors. I am glad to be able to tell him that the Government already have in mind some strengthening of the staffs of clerks of assize. I think I can safely give the noble and learned Lord an assurance that the other matters to which he drew attention will be carefully considered.
I was very glad indeed to hear the observations of the noble and learned Lord, Lord du Parcq. I entirely agree with him that we have gone rather too far in giving up the use of the jury in 202 civil cases. The beginning of that was the First World War, to which the noble and learned Viscount, Lord Simon, drew attention. But it was rapidly accelerated as recently as the 'thirties; and another stage was reached during the recent war. We never seem to get back to the earlier position which existed before such wars. With the noble and learned Lord, I hope that it may be possible to revive the use of the jury in a substantial number of civil cases. Certainly in running-down cases, where often the jurors include a number of motorists, the jury is in my experience a good tribunal for dealing with the problems that arise.
The case of the special jury awarding heavier damages than the common jury is, I agree, a very cogent argument why the special jury should be abolished. Surely it is altogether wrong that the compensation which a man may receive for injury to his body or to his reputation should depend on the accident of whether his advisers decide that he should have a special rather than a common jury. That seems to me to be an overwhelming argument in favour of abolishing the special jury. I again thank noble Lords who have taken part in the debate for the friendly way in which they have received this Bill, and for the cogent arguments they have advanced as to why it should receive a Second Reading in your Lordships' House.
§ On Question, Bill read 2a and committed to a Committee of the Whole House.