CRIMINAL JUSTICE BILL (Hansard, 1 June 1965)

§ LORD DENHAM
My Lords, I beg to move that this Bill be now read a second time. This rather imposing title belongs to a Bill which gives effect to a small but important reform in the law regarding juries. As your Lordships may be aware, before 1925, if a juror died or was discharged, the whole trial had to begin again. Section 15 of the Criminal Justice Act of that year made is possible for a trial to continue in spite of the death or inability to serve of a juror, provided that both prosecution and defence gave their consent in writing and provided that the number of jurors did not fall below ten. That is how the law now stands.
Although both parties are usually pre pared to give the necessary consent in writing, and it is rare for the number of jurors to fall even as low as ten, it has been felt for some time that the present state of affairs is unsatisfactory. There is a possibility that in a long trial either the prosecution or defence might refuse to give their consent to a reduction in the number of jurors, simply because that would necessitate a new trial, which they might feel would give them a better chance. Equally, the defence might refuse their consent in order to put off what they considered was inevitable punishment.
The Criminal Law Revision Committee considered this problem, and their conclusions have been given in their Fifth Report, published as Command Paper 2349. Two possible courses seemed open to them. The first was that the trial might be allowed to continue in all cases so long as the jury did not fall below a certain number, no consent being necessary. The second alternative was that alternative jurors might be sworn in at the beginning of the trial to replace any who fell out. Each of these two alternatives, of course, would be subject to the right of the court to discharge the whole jury and order a retrial, if they thought it was in the interests of justice.
The Committee felt—and I agree with them—that to have a reserve of jurors 1085 would be to subject them to an intolerable and time-wasting wait in order to fill a vacancy that might not occur, and that this would he justifiably resented. Accordingly, they recommended the first alternative. It is this recommendation which my honourable friend the Member for Maidstone introduced in another place in the form of the Bill that is now before your Lordships.
Under this Bill, if a member of a jury dies or is otherwise unable to carry out his duties, the trial may continue, provided that the Court does not order otherwise, and provided that the number of jurors does not fall below nine. The minimum has been reduced in this Bill to nine because, although it is unlikely that a jury would ever be reduced to this number, cases have occurred in which two jurors have fallen out, and there has been an awkward feeling that if another did so the trial would not be able to continue. I am sure your Lordships will agree that it is right that, as provided in Clause 1(2), in trials for murder or for any offence punishable by death the consent of both parties should still be necessary for the trial to continue with a reduced jury, although if this consent is given the minimum number would he nine and not, as now, ten. This Bill was supported by both sides in another place, and I should like to congratulate my honourable friend the Member for Maidstone on introducing this necessary reform. I beg to move.

§ LORD STONHAM
My Lords, I am sure that we are all very grateful to the noble Lord, Lord Denham, for sponsoring this Bill and for his brief but lucid explanation of the necessity for it. Her Majesty's Government join in what I hope will he a general welcome for this Bill, which derives from the Fifth Report of the Criminal Law Revision Committee. This distinguished Committee, sitting under the chairmanship of Lord Justice Sellers, was asked by Mr. Henry Brooke, then Home Secretary, in August, 1963, to consider whether any revision of the criminal law was desirable to facilitate the continuance of a trial where a member of the jury dies or is for any reason discharged. After careful consideration of the problem the Committee, as your Lordships have 1086 heard, advised that the law could and should be improved, and suggested how it should be done. I think we should be grateful to the Committee, not only for their work, but for having expressed their views so cogently in only two and a half pages of print. It is refreshing, not only that we can agree, but that we should agree so quickly.
The Committee's recommendations are embodied in the Bill now before your Lordships, and the Government fully support them. In the majority of trials, which, as we know, do not last more than a day or so, no real problem arises. The risk of the interruption of a trial by the death or discharge of a juror is small, and there would be no great inconvenience in starting all over again if it should become necessary. But there are occasions and—unhappily they seem to be getting much more frequent these days—when a trial goes on for weeks. Then there is far greater danger that a juror may fall out, and it becomes all the more important that we should avoid the cost and inconvenience of starting all over again unless it is clearly necessary in the interests of justice. Your Lordships may recall, for example, the protracted proceedings against a substantial number of defendants in connection with the Great Train Robbery in Buckinghamshire in 1963. Happily—one might almost say, remarkably—the empanelled jury remained fit and well throughout. But one can imagine the tremendous delay and considerable expense that would have resulted if one of the jurors had fallen sick and a retrial had been demanded, as in a case of that kind it might well have been.
Under the present law the trial, as the noble Lord, Lord Denham, has explained. cannot continue without the consent of both the prosecution and the defence. They are not required to give any reasons for objecting to its continuance and, as the Criminal Law Revision Committee pointed out, one side or the other might withhold consent merely in the vague and perhaps fruitless hope of obtaining some advantage from a retrial. This is obviously undesirable, and I am sure there will be general agreement among your Lordships that it ought to be prevented. Under the terms of the Bill it will still be open to the court to order a 1087 fresh trial if justice requires it, and the court will naturally have regard to anything which the prosecution or the defence may have to say about it. But the possibility that either side will be able, without good reason, to insist on a retrial will be removed. There is one very important exception to this provision—namely, in the case of a trial for murder, or for an offence punishable with death. There the Committee felt—I am sure quite rightly—that a decision ought not to be imposed on the accused, and therefore the requirement of the written consent of both parties is preserved. The exception applies to all trials for murder, irrespective of what sentence may be imposed on conviction, now or in the future.
The small changes of procedure proposed in the Bill appear to Her Majesty's Government to be both reasonable and desirable. I am glad to be able to support the Bill, and wish it a speedy passage through the House.

§ LORD MORRIS OF BORTH-y-GEST
My Lords, may I be allowed to add a word of welcome for this Bill, and to express my entire concurrence with all that has been said by the noble Lords, Lord Denham and Lord Stonham? I feel sure that this is a desirable measure. I should like, if I may respectfully do so, to endorse what fell from the noble Lord, Lord Stonham, in his praise for the work of the Committee presided over by Lord Justice Sellers. I think the practice they follow when a matter is referred to them—that is to say, not only coming to conclusions and expressing their conclusions in a Report, but also adding a draft Bill in the way in which they suggest would be appropriate—is a very desirable procedure. I am sure that all noble Lords would join in what has been said in expressing admiration for the work of the Committee.
The number we have on juries to-day is twelve, and so long as we have twelve (and I certainly would not suggest that we should have fewer than twelve), I feel 1088 that it would not be desirable to allow trials to continue with a jury of much below that number. It is true that in time of war we had juries of seven, but at that time there were seven on all juries. The Report, I think, makes it clear that it is unlikely that the number of jurors would, in fact, fall as low as nine, and I think good reasons are shown in the Report for having the minimum number lowered to nine.
The problem of long trials in criminal cases is becoming a very pressing one these days, and great demands are made on juries if criminal trials last for weeks and weeks. It is becoming a pressing problem to find out whether there is any way of shortening the length of time. It is a great strain on all concerned. It is a demand upon the profession, but more particularly it is a demand upon members of the public who are called upon to perform a very important and special public service, though one which may involve them in a considerable sacrifice of time. I feel sure that if in a long case a juror had unfortunately to be discharged owing to illness or for any other reason it would be unfortunate if the trial had to be heard again merely because somebody unreasonably withheld his consent. I have such confidence in Her Majesty's Judges that I am quite sure the provision inserted in the Bill will be amply satisfactory to ensure that a just and fair result occurs when difficulty arises through the illness or death or discharge of a juror. My Lords, I feel this is a measure that the legal profession will welcome. Good reasons in support of it have been advanced, and I hope it will meet with your Lordships' favour.

§ LORD DENHAM
My Lords, I am most grateful to the noble and learned Lord, Lord Morris of Borth-y-Gest for expressing the support of the legal profession, and to the noble Lord, Lord Stonham, for reinforcing the support of Her Majesty's Government for this Bill.