§ 4.8 p.m.
§ Order of the Day for the House to be again in Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Stonham.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 11:
§ Majority verdicts of juries in criminal proceedings
§ 11.—(1) Subject to the following provisions of this section, the verdict of a jury in criminal proceedings need not be unanimous if—
- (a) in a case where there are not less than eleven jurors, ten of them agree on the verdict; and
- (b) in a case where there are ten jurors, nine of them agree on the verdict;
§ (2) A court shall not accept a majority verdict unless the foreman of the jury has stated in open court the number of jurors who respectively agreed to and dissented from the verdict.
§ (3) A court shall not accept a majority verdict unless it appears to the court that the jury have had not less than two hours for deliberation or such longer period as the court thinks reasonable having regard to the nature and complexity of the case.
§ VISCOUNT DILHORNE moved, in subsection (1), after "verdict" to insert "of guilty". The noble and learned Viscount said: We had considerable discussion of this clause in the debate on Second Reading, and as I think the Committee are aware I support it in principle. I have been for a long time in favour of a majority verdict being sufficient for a valid verdict of guilty, but I am strongly opposed to the adoption of any procedure whereby it becomes known or can be inferred that a verdict of not guilty is a majority verdict. For once that is known or can be inferred, a stain is placed on the reputation of the acquitted man which is quite irremovable, similar to the stain left by the verdict of not proven. The position at which I should like to arrive is that, although when a majority verdict of guilty is returned it should be known then that it was not 300 unanimous, it should not be known or be an obvious inference that the verdict of not guilty is anything other than unanimous.
§ What will happen if the clause is passed? At the end of the summing-up the jury will be told to retire to consider their verdict. Is it contemplated that before they retire they will be told under what circumstances it is open to them to return a majority verdict? I hope that that is not the case, because I do not think that any mention of that possibility should be made until after the jury have made a really serious attempt to reach an agreement, whether it be on a verdict of guilty or a verdict of not guilty.
§ Under this clause, if the jury are told to retire to consider their verdict, if they are unable to agree within two hours or within such longer period as the judge may think reasonable, then it is open to them to return a majority verdict. So I suppose what is contemplated is that if after two hours they have not reached an agreement, they will then be brought back into court and told by the judge of their right to return a majority verdict. So far as that verdict is concerned, if they return a majority verdict of guilty, it is obviously essential that the court should satisfy itself that there is the necessary majority for it to be a valid verdict. Equally, if they return a majority verdict of not guilty, it is also essential that the court should be satisfied that that is a valid verdict, and that there is the requisite majority for that. So it would seem that in either event the jury, or the foreman of the jury, will be asked to say whether ten, or it may be nine in certain circumstances, are unanimous upon that verdict whichever it be.
§ If that happens and if there is a verdict of not guilty, the inference is absolutely clear that it is a majority verdict. That, I think, would be very unfortunate; and indeed if after two hours or so, after the jury have been told by the judge of their power to return a majority verdict, they then return a verdict, not having returned one in the previous two hours and before they were told of this right to return a majority verdict, then it is also clearly to be inferred that the verdict was a majority one. So far as an accused person who is found not guilty by that verdict is concerned, I must say I think that is a very unfortunate result, 301 and one that we should seek to avoid if we possibly can.
§ The noble Lord, Lord Stow Hill, who I am glad to see is now in his place, made a very impassioned speech on this point with regard to the impact of a majority verdict of not guilty on a person who is charged with an offence. I have been very concerned to see whether there was any way whereby one could avoid those consequences, and I have put down this Amendment because at the moment I have not found a method which I am satisfied would work correctly. My noble friend Lord Brooke of Cumnor has an Amendment to subsection (2). I understand that that Amendment has been put down with precisely the same object and purpose as that with which mine has been tabled. With the greatest respect to him, I do not think it really achieves that object, because all that it does is to say that the foreman of the jury shall not say what is the majority when there is a verdict of not guilty. It will still be possible to return a verdict of not guilty by a majority, and it will still be clear in many cases that that is a majority verdict. That is the consequence which I want if possible to avoid.
§ I hope that the Government will view the purpose of this Amendment sympathetically, and I hope they may be able to find a way in which my object can be achieved. But at the moment I have found no way in which a court can satisfy itself that there is the necessary majority for a valid verdict without that becoming apparent, and without it being clearly shown that in a particular case a man has been acquitted by such a verdict. Having failed in my endeavour to find some way of doing that, I have put down this Amendment to limit the clause to verdicts of guilty. That would mean—and it is an awkward result, and I face up to it—that you could have a man found guilty by a majority verdict, but only found not guilty by a unanimous verdict. That is not a very happy state of affairs, I quite agree. But I am inclined to the view that that would be better than enabling a man to be found not guilty by a majority verdict, when it would be known that he was found not guilty, not unanimously, but only by a majority, and that there were people upon the jury who thought that, despite the verdict, the case against him was proved.302
§ It can be argued that if a solution of this problem cannot be found, it would be better to change the law only in relation to verdicts of guilty, and to enable only a majority verdict of guilty to be brought in, and not a majority verdict of not guilty. One reason why I think it would be better to provide that is because I believe that in nearly every case a minority in favour of a conviction are much more likely to change their views to make it accord with the majority, and so will return a unanimous verdict of not guilty, than a minority in favour of acquittal are likely to change their view in favour of conviction.
§ The proposal in this clause is not, as I understand it, to abolish all disagreements on the part of juries or re-trials in certain circumstances. If, for instance, there is a majority, but not the necessary majority, in favour of conviction, there will be no valid verdict and there will have to be a re-trial. If it were the case that the jury did not agree upon a verdict of not guilty, then again there would have to be a re-trial as there is now. But there would be this difference, would there not? The prosecution would know that they had not been able to establish the case to the satisfaction of the necessary majority upon the jury to return a verdict of guilty. That would be something which they ought to take into account in considering whether or not to offer any further evidence on the re-trial; and if they offered no evidence the verdict would be unanimously not guilty. Although it may take a little longer, I think probably that is better so far as the accused person is concerned.
In this connection I must say that I am not happy about the wording of subsection (2) of this clause, when it says:
A court shall not accept a majority verdict unless the foreman of the jury has stated in open court the number of jurors who respectively agreed to and dissented from the verdict.
He has to state in court the number who agreed to and the number who dissented from the verdict. I see the purpose of this, because the court must be satisfied that there is the necessary majority. But surely that can be done by the clerk of the court speaking to the jury.
§ If one goes through the process, the jury are first of all sent out. Then they come back and are asked whether they 303 are agreed upon their verdict. if they are, that is the end of the matter. If they are not agreed, the judge may tell them that they can return a majority verdict. They will go out again, and when they come back the first question which they will then presumably be asked will be, "Have you now agreed upon your verdict?" The answer then may be, "Yes". If so, that is the end. If it is not, "Yes", the jury may be asked: "Are ten of you agreed upon your verdict?"—which is all the court wants to know. If the answer is, "Yes", then that verdict is a valid verdict. But I do not like the idea of the foreman having to state in open court the number who agreed and the number who dissented, because I think it is possible that in some cases he may get up and say that there were eight in favour of a conviction and four not, in which case the court will not accept the verdict. Then, if there is a retrial, on that retrial it may be known that eight of the jurors at the first trial were convinced of his guilt, when ten would have sufficed to return a verdict of guilty. And that knowledge, I think, might be prejudicial.
§ So I hope that consideration will be given to the wording of subsection (2). I am not in the least opposed to its purpose, if I understand it correctly, but I think that, although it would be necessary for the foreman to say affirmatively that there were ten in favour of the verdict (or nine, as the case may be) it should not be necessary to ask him to go into any further detail than that. That, however, applies, as the clause now stands, to verdicts of any kind by a jury. I hope that the Government will be able to find a way which is satisfactory, and will work in practice, whereby one can have a majority verdict in the case of either a verdict of guilty or one of not guilty without its becoming apparent, in the case of a verdict of not guilty, that it is a majority verdict. If the Government cannot do that, then I believe that it would be better to make this clause apply only to majority vedicts of guilty.
§ This is a difficult question. If the Government take the view that a majority verdict of not guilty should be allowed but that they are not able to indicate that such a verdict—a valid verdict with the right majority—may be given without 304 disclosure that it is a majority verdict, I think that it may lead to many of those who were in favour of this clause initially changing their attitude at a later stage. I beg to move.
Page 10, line 25, after ("verdict") insert ("of guilty").—(Viscount Dilhorne.)
§ LORD GUEST
Perhaps this is an appropriate point at which I should make an explanation in regard to this clause. During the debate on the Second Reading of this Bill I intervened to give some explanation of the practice in Scotland in regard to majority verdicts, and I said that majority verdicts had been known in Scotland since the sixteenth century; that they had worked well, and that there had been no objection or criticism made of them. In the course of my speech I ventured to indicate what the practice was, and I am afraid that, through a slip, I made an error which might have an effect upon the consideration of the Amendments now being discussed by your Lordships' Committee. I said that when the verdict of a jury was given in Scotland, if it was one of guilty they were asked whether that verdict was unanimous or by a majority—and that is so. But, by a slip, I indicated that where the verdict was one of not guilty, no questions were asked as to whether that verdict was unanimous or by a majority. That is wrong. The position now is that in Scotland, in the case of verdicts of guilty, of not guilty or of not proven, the foreman of the jury is asked whether that verdict is a unanimous verdict or by a majority.
I must apologise for misleading your Lordships in that way, but it was entirely due to a slip. I informed the noble and learned Lord the Lord Chancellor, and I informed the noble Lord, Lord Stonham, immediately I remembered it, and I thought it only right, in order to put the Record straight, that I should make this explanation to the Committee.
§ THE LORD CHANCELLOR (LORD GARDINER)
Before the noble and learned Lord sits down, I wonder whether he could add, for our benefit, whether it is the mere fact that it is a majority verdict that is announced, or whether the actual figures are announced.
§ LORD GUEST
The actual figures are not announced. Perhaps I could just give the Committee the form of what happens when a jury return from their considerations. The clerk asks the jury, "Who speaks for you?", and usually the foreman stands up and says, "I do". The clerk then asks the foreman, "What is your verdict?" The foreman then answers, "Guilty", "Not guilty" or "Not proven", as the case may be. The clerk then says, "Is that the verdict of you all, or is it by a majority?"; and the foreman then answers in the appropriate manner. But no question is asked of the jury, "What is the majority?", and it is never known officially what the majority in fact is. I do not know whether or not that answers my noble and learned friend's question.
§ 4.26 p.m.
§ THE LORD CHANCELLOR
I am very grateful to the noble and learned Lord. Perhaps it would be convenient to the Committee that I should say something at this stage, though not, of course, with a view to stopping any other Members of the Committee from speaking on the Amendment. First of all, the noble and learned Viscount has criticised the wording of subsection (2), but he has not put down any Amendment to that subsection. The Amendment that we are discussing is to subsection (1). Secondly, I am not clear whether the noble and learned Viscount realises it or not, but the effect of his Amendment would be not only to prevent majority verdicts of acquittal but also to prevent majority special verdicts; for example, a special verdict under the Criminal Procedure (Insanity) Act 1964, or verdicts on pleas in bar, autrefois convict or autrefois acquit. That could perhaps be cured by altering the wording. But we have here two Amendments—the Amendment just moved by the noble and learned Viscount and the following one, to be moved by the noble and learned Lord, Lord Brooke of Cumnor.
§ THE LORD CHANCELLOR
By the noble Lord, Lord Brooke of Cumnor—though I am sure he is, in fact, learned. The first Amendment is one which asks the Committee to agree that, while we should have majority verdicts, they should 306 be majority verdicts only of guilty, and that we should not have majority verdicts of acquittal. The Amendment to be moved by the noble Lord, Lord Brooke of Cumnor, is to the effect that the amount of the majority should be announced in court only if there is a verdict of guilty, and that if there is a verdict of acquittal the voting should not be announced in court. The curious position, in a sense, is that the noble and learned Viscount says that it is really the object of the second Amendment which he wants to achieve by his first Amendment.
§ VISCOUNT DILHORNE
Will the noble and learned Lord give way to me? He is really taking this on too narrow a ground. The criticism I made of my noble friend's Amendment—both Amendments are directed to the same objective—is that, even though the precise voting is not announced in court, it will still be apparent, if the procedure which I indicated is followed, that it is a majority verdict, and then the harm is done. I am not so concerned about the numbers of the majority, although you have to find the numbers to be sure it is a valid verdict. But I am concerned that it should be apparent, by inference or expressly, that it is in fact a majority verdict.
§ THE LORD CHANCELLOR
I appreciate that. But to say that this is to be at the cost of not having majority verdicts for acquittal is, I would have respectfully thought, quite impossible. How can it possibly be right to say that a man can be convicted by ten out of twelve, but that he cannot be acquitted unless he gets all twelve to agree to his acquittal? This I should have thought, with great respect, was an impossible proposition.
When we come to it (although I must not discuss it in too much detail now) there will obviously be two questions on the next Amendment. The first will be the question: Is what is proposed practicable? This is one of the questions to which the noble and learned Viscount has been addressing himself. Will it be possible really to operate majority verdicts at all unless the divisions of opinion are announced in court, both with a verdict of guilty and with one of acquittal. If the answer to that question is, "Yes, it is practicable", that, as I understand 307 it, would dispose of the real thing which is troubling the noble and learned Viscount; and, of course, consideration has been given to this question. The second question which would then arise is, "If it is practicable, is this a thing we ought to do?" One must deal with that question when one comes to it.
It would appear to me, at least to my right honourable friend—although no doubt this is a point on which the noble and learned Lords, and particularly the noble and learned Lord the Lord Chief Justice, could help us—that it would be possible in this way: that if a jury come back under two hours they will be asked, "Have you reached a verdict upon which you are all agreed?". If they say, "Yes", of course they will be asked, "What is your verdict?". If they say, "No", then they will be sent out again for the remainder of the two hours. After two hours, they will come back and will be asked, "Have at least ten of you agreed on a verdict?". And if they say that at least ten have not agreed, then they will be told that that is no good and they will be sent out again. If they say, "Yes"—that is to say, at least ten have agreed—they will be asked, "What is your verdict?". If the verdict is "Not guilty", that verdict will be accepted. If the verdict is "Guilty", then they will be asked, "Is it the verdict of you all, or by a majority?". If they say, "By a majority", they can be asked, "How many of you agreed to the verdict and how many of you dissented?".
Therefore, in that way it would be perfectly practicable—it would be a little complication of the judge's task; and anything which further complicates the judge's task may be said to be undesirable unless necessary—to have a verdict of acquittal of not less than ten without anything being said as to whether it was ten, eleven or twelve. Therefore, if, when we come to it, the Amendment proposed by the noble Lord, Lord Brooke of Cumnor, appeals to the Committee, it would, I should have thought, also satisfy the purpose for which the noble and learned Viscount has put down this Amendment. If not, I still do not think that it can possibly be right to have a majority verdict of guilty—that ten out of twelve is all right for guilty—while 308 telling a man that in order to get an acquittal he has to get all twelve in his favour.
§ VISCOUNT DILHORNE
Before the Lord Chancellor sits down, may I put this point? I have listened with great interest to his explanation of how he thinks this method will work practicably; but it still does not seem to me—I may not have understood it correctly—quite to meet the point. The jury are asked, "Are you agreed on your verdict?", and, if they are unanimous, "What is your verdict?". But if they were not unanimous, I think he said, they would be sent out for further deliberation. At that stage, or after the two hours, they would presumably be told that they could return a majority verdict. Then when they come back they will be asked, "Have at least ten of you agreed on your verdict?". If the answer is "Yes", then they are asked, "What is your verdict?". If they say, "Not guilty", that is the end of the matter. You do not go on to numbers.
If that is so, if that verdict is returned just after they have been asked: "Have at least ten of you agreed on your verdict?", my difficulty is that I think the inference will clearly be drawn that that was a majority verdict of not guilty. That is what bothers me—not mentioning the precise number but that it was a majority verdict. I may have got it wrong, but I do not think that depends on whether or not the last question is asked: "How many of you agreed and how many dissented?" But if that is the sequence of events, then I think the inference must arise that the verdict of not guilty is only by a majority.
§ THE LORD CHANCELLOR
With respect, I do not follow that; for that, after two hours, would be the first question in every single case: "Have at least ten of you agreed on a verdict?" If the answer is "Yes, a verdict of acquittal", then why anybody should assume that it was ten and not twelve I cannot understand.
§ VISCOUNT DILHORNE
I should have thought it depended on whether a direction about a majority verdict was given.
§ LORD BOOTHBY
I want to say only a sentence or two. I agree, as I often do. with both the noble and learned Viscount, Lord Dilhorne, and the noble and learned 309 Lord, the Lord Chancellor. I see the points they both raise; but on the whole I think the noble and learned Lord the Lord Chancellor "has it on the game". I must tell the Committee just this. For 34 years I represented a constituency called East Aberdeenshire. In that constituency was Peterhead Prison, the Dartmoor of Scotland, for sentences of long penal servitude. I used to go there quite often and take part in games with the prisoners. One day I was playing whist in the prison and I said to my partner, "You seem to me to be very cross." He replied, "If you were in my position you would be pretty cross." I asked, "Why?" He answered: "Because Oscar Slater."
That was a very interesting experience. I should like to try to prevent that ever happening again. Of course, Craigie Aitchison got him off eventually. He did not get enough compensation; but he got something. He was held for about ten years for a murder which they ultimately decided had never been committed. I have never forgotten that experience and I think it worth while bringing it to the notice of your Lordships so that whatever view prevails in the Committee that situation should never arise again.
§ LORD PARKER OF WADDINGTON
It is, I think, inherent in this clause dealing with majority verdicts that some verdicts of acquittal will be by a majority. What I think all noble Lords are concerned with is that nobody should go away with the public knowing that his acquittal is by a majority; in other words, a second-class acquittal. It seems to me that this is perfectly workable along the lines of the Amendment put down by my noble friend Lord Brooke of Cumnor; because a time must come after the requisite period has elapsed (whether two hours or another period) when the jury are still disagreeing. It is then, as it seems to me, that the judge will say, "I want you to go out again and I still want you to be unanimous. But if, having spent a certain amount of time in deliberating in that way, you are not unanimous, I will accept a majority verdict." In due course they come back and the clerk of the court asks: "Are at least ten of you agreed on your verdict?" If the answer is "Yes", then they are asked, "What is your verdict?" 310 If the verdict is one of not guilty, no member of the public knows whether the acquittal is by a majority of whether the jury, having gone out again on the judge's direction, have ended by being unanimous. That, I think, is sufficient, it being inherent in the clause that there may be a majority verdict of acquittal.
§ LORD LEATHERLAND
Does it not follow, nevertheless, that if a jury has returned after a period of two hours and has then gone out again, that when it ultimately returns to deliver its verdict it will be a majority verdict—that is, a second-class acquittal? The whole trouble here arises out of subsection (3) which stipulates this two hours' duration and then a second round. I am wondering whether we should not ignore this two hours altogether and adopt some system along the lines of that suggested by the Magistrates' Association to the Departmental Committee which considered the questions of juries. The proposal of the Magistrates' Association was that the jury should file back and that the clerk should say to them, "Are ten or more of you agreed upon your verdict?". And the fact that in any case the verdict was that of a majority would not be disclosed. I think that is the only way we can deal with this matter, and we can deal with it in that way only if we scrap the whole of the provision about two hours' deliberation. I think we are coming round to the view that there is little ethical difference between the one kind of verdict and the other. We are saying that among a group of intelligent men a verdict of ten out of twelve is sufficient to establish either guilt or innocence.
I listened with great attention to the noble Lords who have spoken, and I have seen virtue first on one side and then on the other; but I feel that the deeper we go into this matter the more confused and complicated it will become. I wonder whether it is not worth while the experts giving a little consideration, perhaps in a quiet atmosphere, to the proposal of the Magistrates' Association which I read out a few moments ago.
§ 4.41 p.m.
§ LORD STOW HILL
I should like shortly to intervene on this Amendment. I think that technically the Committee is discussing the Amendment of the noble 311 and learned Viscount, Lord Dilhorne. May I at the outset express my apologies to him for not being present when he began his speech? When we were considering this Bill on Second Reading, I ventured, as the noble and learned Viscount kindly reminded your Lordships, to offer certain objections to the proposal for majority verdicts. Listening to the discussion on this Amendment, it seemed to me that I had been given two very strong considerations in support of my argument. The first was by the noble Lord, Lord Boothby. I was very moved by his speech, as I always am by the speeches which he addresses to your Lordships. To-day the noble Lord made an earnest appeal that nothing should be left undone which could possibly prevent a recurrence of cases like the Oscar Slater case and he was so completely right. Majority verdicts will increase immeasurably the possibility of injustices of that kind. That is one of the reasons, or indeed the main reason, why I am so strongly opposed to the principle of majority verdicts. I am grateful to the noble Lord for speaking so movingly on that very tragic case.
The second argument which I heard in support of the view which I ventured to address to your Lordships' House on Second Reading was that with which the noble and learned Lord supported the Amendment which your Lordships are now considering. Clearly it is shocking that a person who is acquitted should have it said of him, "Well, you only managed to get away by persuading ten out of the twelve." That is an intolerable position, and the noble and learned Viscount, pressed with that difficulty, has put down an Amendment in order to try to remedy that situation. It seemed to me that the noble and learned Lord who sits on the Woolsack gave a conclusive answer to that.
I hope that I do not use hyperbolic language when I again employ the term, "shocking". I think that anyone would wish to use that term if he were told that it was the law of this country that you could be found guilty by a majority verdict of ten out of twelve, but that you could not have your innocence established unless all twelve of the jurors felt that the case against you had not been proved. It seems to me that in a civilised country one has only 312 to state that proposition for it to carry immediate conviction. I would venture to put to your Lordships that it is oppressive that, whereas you can be convicted by the verdict of ten out of twelve, you cannot be acquitted unless twelve out of twelve feel that the case has not been made out against you. I pray that argument in aid in support of the view which I have addressed to your Lordships, that the whole principle of majority verdicts is wrong, and that your Lordships should not accept it.
The noble and learned Lord, Lord Denning, has put an Amendment before your Lordships asking you to reconsider the question of majority verdicts altogether. Perhaps it would be more appropriate if I reminded your Lordships of the arguments which I am now addressing to the Committee when the noble and learned Lord's Amendment is considered, but they arise immediately on what has just been said. The noble and learned Lord the Lord Chancellor suggested that a way round the difficulty would be to proceed on the lines of the Amendment on the Order Paper in the name of the noble Lord, Lord Brooke of Cumnor. With great respect, I should have thought that the noble and learned Viscount, Lord Dilhorne, gave the right answer to the view expressed by the noble and learned Lord the Lord Chancellor. A jury come back after two hours and, as I understood the proposal of the noble and learned Lord the Lord Chancellor, they are then asked, "Are you agreed on your verdict?" The answer is, "No". Then the question is asked, "Are ten out of twelve of you agreed upon your verdict?" The answer is, "Yes". Then the question is put, "What is your verdict?" and the answer is, "Not guilty". It is perfectly true that it cannot be predicated with absolutely certainty whether it was ten, eleven or twelve who thought that the accused person was not guilty, but, as the noble and learned Viscount, Lord Dilhorne, pointed out, there is a very strong inference that the acquittal is simply by a majority, and not by a unanimous view of the jury that the case had not been proved.
I think, with respect, that the proposal of the noble and learned Lord the Lord Chancellor would not meet the difficulty which has arisen, and that there is really only one way of meeting it, that is, to 313 accept the Amendment which the noble and learned Lord, Lord Denning, will ask your Lordships to consider later on, which is to scrap this principle of majority verdicts, which I am bound to say I regard as a piece of jurisprudential vandalism.
§ VISCOUNT DILHORNE
May I say a word in reply, because I think perhaps I may be able to save time. I think the Committee wishes to consider the main principle. Strong words have been used by the noble and learned Lord, Lord Stow Hill, about the Amendment I have tabled, and also by the noble and learned Lord, the Lord Chancellor. In moving it, I said that I had put it down because I thought it was better, if a choice had to be made, that you retain the present system, although I did not like the result, rather than having to disclose that an accused person was found not guilty by a majority. There I have the noble and learned Lord, Lord Stow Hill, with me. I listened very carefully to the explanation given by the noble and learned Lord the Lord Chancellor, and I think that if what was said by the noble and learned Lord the Lord Chief Justice is followed, it will prevent any inference arising.
The noble and learned Lord the Lord Chief Justice made an addition to what the noble and learned Lord the Lord Chancellor said which I regard as of the highest importance. As I understood what he said, it was that after a jury had been out for two hours, or it may have been longer, when they came back he would tell them of their right to return a majority verdict. At the same time he would tell them (this I regard as of vital importance) that he wanted them, if possible, still to try to reach agreement—all of them. If after they had been told that they came back and to the question, "Have at least ten of you agreed on a verdict?" they said "Yes", and that the verdict was one of not guilty, then you could not reasonably infer that that had been an acquittal by a majority. That seems to me to depend in every case upon the judge telling them of their right to return a majority verdict, and saying that he wants them to go on to see whether they can possibly get a unanimous verdict. That cannot be embodied in the Statute, but I am sure that steps can be taken to see that not only High Court Judges do it (I am sure 314 that they would), but also that recorders and chairmen of quarter sessions do it. If that were done, I think it would work without that slur which I want to avoid. It was in an attempt to avoid that slur that I put down this Amendment; and in the belief that a way has been shown in which that slur may be avoided I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.50 p.m.
§ LORD BROOKE OF CUMNOR moved, in subsection (2), after "verdict" to insert "of guilty". The noble Lord said: Never in my Parliamentary experience has an Amendment standing in my name been so searchingly discussed before I have said a word in its favour, and I am chary of saying much in case I were to spoil the good impression it has already produced. As I think will be sensed, I am, like my noble and learned friend Lord Dilhorne, in favour of the principle of Clause 11. Like him, I was particularly anxious that in a verdict of not guilty there should be no disclosure of the number voting, but, unlike him, I was not prepared to go so far in pursuance of that object as to risk losing the possibility of a majority verdict of not guilty.
§ I do not think that I need to explain my Amendment in any sense, because its purpose has become clear already. I had contemplated the possibility, especially after what the noble and learned Lord, Lord Guest, said, that it might be argued by your Lordships that the fact that the disclosure of a majority verdict of not guilty has gone on for hundreds of years in Scotland might be pressed as an argument why in England we should accept a declared majority verdict of not guilty as satisfactory. But I feel that your Lordships are not inclined to take that view, and we have to remember, without establishing any comparison, odious or otherwise, between English law and Scots law, that it is not only the law that matters but also the general state of opinion in the country. And in this country we have always been accustomed to unanimous verdicts. If we start to have declared majority verdicts of not guilty, there is no doubt that many people would say that a man was not properly cleared. The argument that such a man would have been regarded in Scotland as properly cleared would cut little ice.315
§ I should like to thank my noble and learned friend Lord Dilhorne for stressing as strongly as he did the necessity for securing that the course of action that has been adumbrated, first by the noble and learned Lord the Lord Chancellor and developed by the noble and learned Lord the Lord Chief Justice, should be made uniform and essential in all courts. When I put down this Amendment I hoped that its principle might commend itself to the Government and to your Lordships, even if it should be thought that certain other words in the clause might have to be altered to secure the result which I think all of us are seeking. I am quite prepared to leave that to the Government between now and later stages of the Bill. So far as I am concerned, if my Amendment could be accepted by your Lordships, with the clear understanding that the procedure outlined by the noble and learned Lord the Lord Chief Justice shall be followed in all courts, I should be quite content, and I should feel that I had been instrumental in making some small contribution to the discussion of this important Bill. I beg to move.
Page 10, line 33, after ("verdict") insert ("of guilty").—(Lord Brooke of Cumnor.)
§ THE LORD CHANCELLOR
I have already said that the Government are satisfied that this Amendment would be practicable. That being so, there is only one thing to be said for the Amendment and only one thing to be said against it. What is to be said for it is that it will stop people from going round and saying, "Oh, he got acquitted, but only by a majority". What is to be said against it is that it will somewhat complicate the judicial procedure. The history of law reform is littered with extraordinary fears as to what will happen if we change the law. We are a fairly small island. For hundreds of years in Scotland they have announced majority acquittals and people do not go around saying, "Oh, he was acquitted, but only by a majority". And when people are used to it here, I have no doubt that they will not do it here. If the Committee think that on the whole this is worth doing, I shall accept it.
§ LORD CHORLEY
I should like to say a word about this and the earlier Amendment which the noble and learned Viscount Lord Dilhorne withdrew when I was getting on to my feet. I find it extraordinarily difficult to understand the view that the man who is acquitted by ten out of twelve of his fellow citizens gets an insecure verdict. Just consider his position in relation to that of a man under the present dispensation where the jury disagrees. Surely it is swallowing the camel not to think that the arrangements under this Bill are infinitely better than that. If we were to put it to anybody who had been in that position, he would say that he would very much prefer to have a verdict of ten fellow citizens on his side to not get a verdict at all from a jury. After all, he could go back and be tried again, and again the jury might not reach a verdict and the man would have to live under this incubus for the rest of his life. I think that this is as good an example of swallowing the camel as I have come across.
I thoroughly agree with my noble friend in supporting the views of the Magistrates' Association. I disliked this two hours business from the start. It is very artificial. It accentuates the difficulties in a way that the proposal of the Magistrates' Association does not do. I think that if we adopt the Scottish method, which the noble and learned Lord, Lord Guest, has explained to us so lucidly, of a judge, when summing up, explaining to the jury what their rights and duties are, these difficulties will disappear. It seems to me most important that it should be explained to a jury at the beginning of their task, and not after they have been out for something like two hours. That gives rise to an unnecessarily difficult and complicated situation which could be entirely avoided by means of the sensible suggestion put forward by the Magistrates' Association.
§ LORD MORRIS OF BORTH-Y-GEST
I appreciate the spirit in which the noble Lord, Lord Brooke of Cumnor, has put forward this Amendment and the way in which it has been received by the noble and learned Lord the Lord Chancellor. I think it may well be an improvement to the clause, but I am bound to say that I do not think that it wholly meets the difficulty and objection which so many 317 have felt. The jury retires and having been out not quite two hours comes back, and the court is told that they are not agreed. Then, if I follow what has been said rightly, the judge will send them out again, telling them that they should still make every endeavour to be unanimous and then explaining to them the new law, that there can be a majority verdict. When the jury finally comes back the question put to them, as I understand it, will be, "Are at least ten of you agreed upon your verdict?". I agree that anyone after that, if the jury say "Not guilty", will not be certain as to the grounds on which the verdict is being returned. But it seems to me that the public will think: "Well, that man was acquitted by a majority, and the question was put: 'Are at least ten of you agreed?'". I think that feeling will still be left in the minds of the public. Although the endeavour— and it is an endeavour that one supports if the clause is to be part of the law—is a splendid one, I cannot think that it will meet entirely the objection that so many have felt.
§ On Question, Amendment agreed to.
§ 5.1 p.m.
LORD BROOKE OF CUMNOR moved, in subsection (3), to leave out all words after "jury have" to the end of the subsection, and to insert instead:
given adequate consideration to their verdict having regard to the length and complexity of the trial and to the nature and seriousness of the issues involved therein.
The noble Lord said: This Amendment gives your Lordships the opportunity of discussing a point that has been mentioned earlier by the noble Lords, Lord Leatherland and Lord Chorley. To my mind there is no great point at issue here, but it seems to me right that your Lordships should discuss for a few minutes this two-hour proposal. We all recognise that it is two hours-plus. As it stands, subsection (3) refers to:
two hours for deliberation or such longer period as the court thinks reasonable having regard to the nature and complexity of the case.
I am well aware that in various countries overseas there are time limits of this kind in the law, whether it be two hours, three hours, or whatever it may be; but I have no personal experience of the working of the law in those countries. I ask myself whether the public, and, in
particular, members of juries, will feel that there is any strong justification for Parliament having written this particular period of two hours into the law.
§ One can well understand that in a complicated case which has been going on over a period of days two hours is an almost negligible period for the jury to discuss the evidence. On the other hand, if the hearing of a case has been completed in an hour or so, it would seem somewhat strange that a majority verdict from the jury cannot be accepted unless the jury has been conferring for at least a minimum period of two hours. One wonders whether the latter part of that period of two hours will be used to any good effect, or whether it will merely anger members of the jury that they have to wait and perhaps make them less responsible in the final opinion they reach.
§ This is, in a sense, a probing Amendment, but I do not feel content about the two-hour limit. If I may respectfully say so, I think it deserves a great deal more justification than has hitherto been offered for it. And I have a feeling that the arrangements which we have been discussing in the light of our object of avoiding the declaration of a majority verdict of not guilty, might be eased rather than aggravated if there were no two-hour limit. That is why I move this Amendment, and I very much hope that noble Lords on both sides will say whether or not they agree with me that the insertion of the words "two hours" appears somewhat superficial. I beg to move.
Page 10, line 37, leave out from ("have") to end of line 40 and insert the said new words.—(Lord Brooke of Cumnor.)
§ VISCOUNT DILHORNE
My noble friend asked to know whether people agree with him. On this occasion I must say that I do not think I do. I should not like to see it made too easy for a jury to return a majority verdict; and I should not like to go to the stage that the noble Lord, Lord Leatherland, advocated: that they should be told when they first retire that they can return a majority verdict, and so be able to come back in a quarter of an hour or half an hour and say: "We have ten who agree, and that's that." I should like to see a 319 real attempt made in every case to reach agreement. That is the purpose, as I understand it, of providing for this two-hour period.
I am not wedded to the two-hour period. Your Lordships will find a similar provision in the law of many Commonwealth territories, although the period varies, so far as I can see, from six hours, in some countries, down to one hour, in another. On the whole, I do not think that two hours is an unreasonable time to ask a jury to spend in trying to agree. I think that the insertion of this provision in the Bill indicates—and the indication is desirable—that Parliament does wish a strenuous effort to be made to reach agreement.
§ LORD PARKER OF WADDINGTON
On the whole, I support this Amendment, though without any strong feeling in the matter. It seems to me quite illogical to fix an arbitrary time like two hours during which the jury must remain in retirement trying to agree. After all, one of the objects of the clause is to deal with the case of the "nobbled" juror or the "crank". The man who says, "I will never convict anybody; count me out of the discussions", is thrown up in the first few minutes. After that, under this clause as it stands, the rest of the jury have to sit and play cards, or amuse themselves in some other way, until the two hours is up. It is illogical.
On the other hand, I sympathise with the idea of ensuring that judges—and I refer also to recorders, chairmen of quarter sessions and their deputies—should be anxious to get a unanimous verdict if possible. But I do not think there is anything in fears on this score. I am sure that all Her Majesty's judges, and certainly, I should have thought, recorders and chairmen of quarter sessions, would be only too anxious to take every step, and to allow as long a time as they thought reasonable, in order to get a unanimous verdict. But, as I say, I have no strong feelings on the matter.
§ LORD CHORLEY
There are two points that I should like to mention. First of all, I want to apologise to the noble Lord, Lord Brooke of Cumnor. I rather ran away with the idea that one of the noble Lord's Amendments was 320 consequential upon the other, and I apologise for speaking to the second one before it was put to your Lordships.
My other point is this. I think that Lord Dilhorne's estimate of juries is rather a denigratory one. I have never known a jury which in a difficult case did not take a substantial amount of time, and sometimes rather more than the bench thought appropriate, in reaching a verdict. I think the idea of having a sort of mandatory order to the jury that they must take all this time in coming to a verdict is rather an insult to juries. I have had a long experience of juries—although I have not dealt with them as often as the noble and learned Viscount has—and over an experience of fifty years I have never met a jury which dealt with a case in a perfunctory way.
§ LORD MORRIS OF BORTH-Y-GEST
If this clause in any form is to become part of the Bill, I should welcome this Amendment, respectfully, for the reasons advanced by the noble and learned Lord the Lord Chief Justice. I think it is unfortunate to have undue rigidity, and in a matter of this sort I should have thought we could always safely trust Her Majesty's Judges and those presiding over trials to operate the matter in the way best calculated to ensure that the jury have every opportunity to reach unanimity, if possible, and the fullest opportunity to give consideration to a case.
§ 5.11 p.m.
VISCOUNT COLVILLE OF CULROSS
I wonder whether the noble and learned Lord the Lord Chancellor could help me on one point. It arises both on the Amendment and on subsection (3) as it at present stands. If subsection (3) remains as it at present stands, the jury may come back after two hours and say, "We cannot agree," and the judge or recorder or chairman may well then say, "This is a very difficult case, and I am not prepared to contemplate a majority verdict at this stage until you have considered it further." The same thing could happen at any time under the Amendment, the two hours having run first.
I understand the formula which the noble and learned Lord, the Lord Chancellor produced, in that if it occurred that the jury came back at any time after 321 the two hours and said, "We cannot agree", they are then told to go away again and try to seek unanimity, and at the end of the time, when they come back, having by that time realised, no doubt upon the direction of the judge, that if they cannot reach unanimity they may nevertheless return a majority verdict, the formula is given to them. Under the Bill as drafted there is no necessity for the jury to come back at any stage. I entirely appreciate the point which my noble and learned friend Lord Dilhorne has made about this. But supposing the jury are out for three and a half hours and do not come back at any time and say. "We cannot agree", when is it, if at all, that the judge is going to tell them they may reach a majority verdict? Is it left to them on their own knowledge of the law, or are they to be told in the first place that, provided they are out for more than two hours, even if they do not come back, then a majority verdict upon the formula produced by the noble and learned Lord the Lord Chancellor will be available to them and will be acceptable?
I am afraid I do not understand how this is going to work in practice if the jury do not come back; and what inducement, under the Bill or the formula, there is for them to agree within the time, or within the extended time, or under the Amendment within the adequate time, without having to come back and give the prima facie impression that they were disagreed. That is where I think the whole trouble will have arisen in the first place, because if they come back and say they are disagreed it may be that some people will have the suspicion that they continued to be disagreed, notwithstanding the formula. I do not know whether the noble and learned Lord can help me on this point. If he can, I shall be grateful.
§ THE LORD CHANCELLOR
I will, if I may, deal with the point raised by the noble Viscount, Lord Colville of Culross, first. It is not intended that there should be any changes in the existing practice, except in so far as it may be rendered necessary by the Bill. If the jury do not come back at all they will not be left to starve or anything of that sort. No doubt the appropriate official will descend in the usual way to ask them whether they are ready and, in 322 effect, how they are getting on. If they come back into court they will be asked whether they are agreed upon their verdict or not. If they say they are not, there is a position that they will be asked whether at least ten agree. I do not see, with respect, that there will be any practical difficulty—this is assuming, again, that more than two hours have elapsed. The reason for fixing a specific period—
VISCOUNT COLVILLE OF CULROSS
With great respect, that is just the point. If they come back and are asked, "Are you all agreed?" and they say, "No, we are not", and then they are asked, "Are at least ten of you agreed?" and they say, "Yes, we are", they are next asked, "What is your verdict?" They may say, "Not guilty"—and precisely the difficulty that is in everybody's mind will have at once arisen. The formula produced by the Lord Chancellor will work only if, after having been told they can go out and produce a majority verdict, they then go out and there is a possibility that during their further absence they may have agreed. They then come back; the formula is put to them, "Are at least ten of you agreed?", and they say, "Yes". They are then asked, "What is the verdict?", and they say, "Not guilty". In those circumstances nobody will know, as the noble and learned Lord said, whether it was ten, eleven or twelve who agreed on the verdict of not guilty. But in the circumstances which the Lord Chancellor has just adduced it will be perfectly clear that there was a majority verdict of not guilty. I think that this is one of the troubles we are all anxious about.
§ THE LORD CHANCELLOR
With great respect, I do not think that there is any real difficulty about this. There is nothing in the Bill which will prevent the judge, after two hours, from asking them to consider their verdict further. But when they eventually come back, it being after two hours, if they say they are not all agreed then they will be asked whether at least ten agree. If they say, "Yes", and are asked, "What is your verdict?", and it is that of not guilty, nobody will have any reason to know whether it is ten, eleven or twelve. This is a matter on which we should like to hear the view of the noble and learned Lord the Lord Chief Justice. If it is suggested—and this is really a matter 323 for him—that every jury shall be told exactly what the law is before they first retire, that will of course meet the noble Viscount. That may be the answer, but it is a matter for the noble and learned Lord the Lord Chief Justice. The Government are not committed to a particular period of two hours. The noble Lord, Lord Brooke of Cumnor, said that he had put down the Amendment as a probing Amendment to see what the Government had to say for the clause as it is.
The purpose of specifying a minimum period of retirement is to provide an absolute safeguard against a too hasty majority verdict. If we do not have a minimum period, what courts will do will necessarily vary a good deal. A similar Amendment to this was put down in another place and resisted by the Government. If there is no minimum period at all, there may be a good deal of difference of practice between different courts. No one who occupies my position can be in any doubt that if there is one thing which concerns very large numbers of the public, perhaps more than anything else in the field of justice, it is disparity of treatment of citizens by different courts, mainly in relation to sentences, but not entirely. That is the reason for the period of two hours. The defenders would be likely to get a sense of grievance if it was found that courts were adopting substantially different policies in similar cases. The two hours would secure substantial uniformity.
Also, the whole thing is not in any way an innovation, as I said on Second Reading. We have had majority verdicts in very large parts of the Commonwealth—I remember in the case of Ceylon since 1801, which is a long time ago. As I said on Second Reading, we have asked all our High Commissioners whether there has been any dissatisfaction about this, and they all say, "No". And it is usual in the Commonwealth to have some period specified. Gibraltar has a two-hour period; Trinidad a three-hour period; South Australia a four-hour period; St. Lucia, I think, a two-hour period. It seemed to the Government that on the whole a two-hour period would probably be the best choice.
The Amendment which has been put down in itself raises some difficulties, as 324 one sees when one tries to find an alternative. The Amendment says:given adequate consideration to their verdict having regard to the length and complexity of the trial and to the nature and seriousness of the issues involved therein.The judge cannot possibly know whether or not the jury have given adequate consideration. For all he knows they may have spent the time playing cards, and it seems an extraordinary test that it must appear to the court that they have given adequate consideration. I think we really must find some test other than that.
That brings one back to the difficulty, unless one has some degree of uniformity such as that the jury have been out for two hours. That is a simple thing which everybody can understand, and all courts can be uniform. But for the court to be satisfied that adequate consideration has been given is much more difficult. One remembers that the questions which a judge can ask a jury are extremely limited, and any question to a juror as to what has been going on in the jury room is, of course, extremely dangerous. Therefore, on balance it seemed to the Government that the reasonable thing to do was to provide a measure of uniformity by having a specified period, and they thought two hours was the right period, considering the practice that has existed for many years in the Commonwealth and which has been found to be satisfactory.
§ LORD BROOKE OF CUMNOR
I am grateful to the noble and learned Lord the Lord Chancellor and to the other noble Lords who have spoken on this Amendment. I think it would be quite wrong if I were to press this Amendment to a Division and to seek to write it into the law by force of numbers. I accept at once that there would be difficulty for the court to determine whether or not the jury had given adequate consideration to their verdict. Indeed, in the light of what the noble and learned Lord the Lord Chancellor has said I can see at once that the Amendment would be better if it read:That the jury have had time to adequate consideration to their verdict".But I am encouraged by the support which I have had from the noble and learned Lord the Lord Chief Justice, the noble and learned Lord, Lord Morris of Borth-y-Gest, as well as other noble 325 Lords, and I should like to think that it might be possible for this point to be examined further between now and the Report stage. We are all at one in wanting to reach a sensible conclusion, and I think most of us would feel that if we could arrive at a form of words that would secure reasonable uniformity without putting in a specific time, there would be much to be said for that solution. I accept that my wording is not wholly satisfactory and therefore, as I think there may be that understanding between us, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 11, as amended, shall stand part of the Bill?
§ 5.24 p.m.
§ LORD DENNING
I oppose this clause. It is a fundamental principle of our English law that a jury should be unanimous; and the reason for that principle is that no man should be found guilty unless his guilt is proved beyond reasonable doubt. It is for the protection of the accused; and as long as there are twelve good men and true, and one or two of them conscientiously feel strong enough to dissent, that in itself shows that there is reasonable doubt. That was the reason laid down for the rule. We had the actual date in our year books of 1367, when the one man stood out and saidI would rather die in prison than give a verdict against my conscience.From that day to this the judges of England have held that a jury must be unanimous.
Can there be any doubt that, at least in the days when capital punishment was available for crime, no one would have suggested the contrary. No one would think of hanging a man if there was one dissentient. But the burden of proof is the same in every branch of the criminal law. It has to be "beyond reasonable doubt", and whether capital punishment is abolished or not makes not the slightest difference. We should not change our rule of law on that account.
Not only in this country, but wherever settlers from England have gone overseas, in nearly every country that rule has remained. Whether one goes to the United States of America, to Canada, to Australia (subject to two exceptions), to New Zealand—all the settlers have taken with them that rule of law, and so far 326 as I know there is no hint of any departure from it. Of course in countries where our settlers did not go, whether it be Trinidad, as my noble and learned friend said, or Sierra Leone and the rest, there may be different rules, but among our English speaking peoples the only two exceptions I know are Tasmania and South Australia. Apart from that the rule still remains. Is it to be changed?
§ One word as to the law of Scotland.
§ LORD DENNING
We do not always think the same way. I would not, with all respect to my noble friend, say that we should adopt all of it. I should not like to have in England the possibility of a verdict of "Not proven", which means, "We think you are guilty but we are not going to find you so". I would not have, as they have in Scotland, a simple majority of eight to seven, but in Scotland they do have a safeguard as to proof beyond reasonable doubt in cases of identification. I do not know their law exactly—they may not only require two witnesses; they may require corroboration—but in our law, and especially in cases such as I have mentioned, of identification, where one or two perfectly honest witnesses may impress the jury greatly, there may still be one person on the jury who is not convinced, and honestly not convinced, and who feels so strongly that he says, "I am not prepared to find this man guilty". He may feel so strongly that he will hold out in that honest opinion.
There is the reasonable doubt, and that is the reason for our principle, which I submit should not be thrown away or altered, at least without due and proper inquiry. We never should alter such a system unless it is shown that the mischief exists and that this is the only remedy. The mischief is shown to exist in the other parts of this Bill. If we take the first two or three clauses we find that they follow long inquiries and elaborate Reports by the Criminal Law Revision Committee. If we look at the Report which was referred to yesterday, in regard to the reporting of committal proceedings we see that the Committee headed by the noble and learned Lord, Lord Tucker, had 88 memoranda and heard 48 witnesses before deciding that the existing procedure should be altered. We had the 327 case of the Director of Public Prosecutions v. Smith, and my noble and learned friend yesterday introduced an Amendment to give effect to the Criminal Law Revision Committee's full inquiry, with full memoranda. We had Mr. Justice Widgery's Committee coming on later with legal aid. All these matters were the subject of full inquiry, and of investigation of witnesses and evidence, before a recommendation was made. But on this, the most important and serious of all, there has been no such inquiry by any Committee or Commission inquiring into the mischief or what the possible remedies are.
And what is the mischief? What is it that is to change our rule after all these years? It is said to be the chance of finding on juries "cranks" and "crooks"—all right, I will put it as the prejudiced juryman or the corruptible juryman. That mischief is supposed to have arisen in the last year or two; there was no mention of it before my noble and learned friend Lord Morris of Borth-y-Gest's Committee or anybody before. The prejudiced or corruptible juror is the mischief against which this clause is directed. Our forefathers had their remedies. Whether they should be applied to-day or not is another matter. Through the years until 1897, in all cases of felony, juries were kept together, from the beginning of the case to the end, so there could be no possibility of anyone tampering with them or bribing them. In all cases of murder and treason up to the year 1948 the jury were kept together from the beginning of the case to the end, and indeed accommodation was found for them overnight, whether in a hotel or elsewhere, so there could be no possibility of any one tampering with them. So far as Australia is concerned, I was told only to-day by a judge of their courts in New South Wales that in Sydney accommodation is provided for jurymen who have to be kept more than a day; or indeed a floor in a hotel is reserved. That is one remedy. I do not say that it should necessarily be introduced to-day. A judge could at this moment say so; the jury are separated only if he thinks fit. At all events, consider that possibility. It is what our forefathers thought was a remedy for the mischief.
328 But there are other safeguards. There are the qualifications of a juror: he must be a man of standing, a householder; provisions for challenging, standing by for the Crown or challenging by the accused. All these remedies were available in the old days. I do not say that we should necessarily go back to any of those. But I do say that the matter should be considered.
What is the extent of the mischief? What is the evidence of it? Only the indirect evidence that we are told of certain long cases in which there have been attempts to bribe one or two of the jury. It is a very risky thing to try to bribe a juror. If he reports it to the judge, and the judge warns the jury about it, the attempt does not help the accused. The attempts, I hope, have largely failed: I hope they all fail. But surely the right thing to do is to tackle the evil at its source; to get hold of the briber or corrupter. Indeed, I would go so far as, for special purposes, to let the secrecy of the juryroom be opened even for an investigation before a Committee or Commission. We do not know how juries work. We could surely have evidence for that limited purpose. I would go further. It is still possible for a judge to make every juror give his verdict separately, and in a special case at least I, as a judge, would be prepared to make each man give his verdict separately. Then you would know who were saying not guilty and could investigate the matter. These are remedies. I do not say they are right or wrong, but what I do say is that if there is a mischief it should be inquired into to see its extent.
My noble and learned friend Lord Morris of Borth-y-Gest's Committee inquired only two years ago into the qualifications of jurors. The most relevant factor was whether there was an increase of disagreements, or in bribery or corruption or prejudice, or whatever it may be. There was no suggestion of it to that Committee. I hope that my noble and learned friend will tell your Lordships himself what happened. In fact the proportion of disagreements has remained remarkably uniform all through. At all events, what I would suggest is that before this change is made, a fundamental change in our English law which will affect many countries 329 overseas of our English stock, at least there should be a fuller inquiry than that which has been made hitherto.
What is the evidence? All we know is that my noble and learned friend the Lord Chief Justice did write some time ago and was sure that all judges were in favour of majority verdicts. That was corrected later to say that the judges were, I think, twenty-five to eight in favour of majority verdicts. The High Court Judges, wise as they are, have not a monopoly of wisdom or experience in this matter. There are all the recorders, chairmen and deputy chairmen of quarter sessions. Even in the Central Criminal Court—I was speaking to one of the judges the other day—the judges are evenly divided. If your Lordships should ask (we have not had the evidence all through the country), I very much doubt whether there would be an abundance of opinion in favour of majority verdicts. At least all these matters should be canvassed and inquired into. We should not make such a great change as this without further consideration and deliberation. I therefore ask that this clause do not stand part of the Bill.
§ LORD BOOTHBY
May I just say to the noble and learned Lord, the Master of the Rolls, that I admire him very greatly, but he must know in his heart that the laws of Scotland are incomparably superior to the laws of England. That is because they are firmly based upon Roman Law, which is the best law that has ever been devised in human history. The best thing the English could do would be to copy us. The Common Law of England is nothing by comparison with the Roman Law of Scotland. We are right. The noble and learned Lord is wrong. He has to stick up for English law, of course, to the best of his ability, but it just will not work. The Scottish law is superior.
All Law Lords in the House of Lords realise this very well, and notably the late Lord Dunedin, who was a great friend of mine. He said that Scots law was so immeasurably superior to the law of England that he could hardly bring himself to examine the latter. He did it very well, and he was a great judge, as the noble and learned Lord would admit; but he said that Scots Law was much better. 330 And it is. My appeal is for all your Lordships to come round as soon as possible to Scots law and submerge the Common Law of England and take our laws as they are, because they are much more just and much better.
§ 5.39 p.m.
§ THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM)
I do not want to enter into any discussion about submerging the laws of England, or indeed Scotland, or into any quarrel between the noble Lord, Lord Boothby, and the noble and learned Lord, Lord Denning. But it might be for the convenience of the Committee if at this early stage of the debate I gave an indication of why the Government are strongly in favour of having majority verdicts and very much desire this clause to remain in the Bill. I want to give, briefly, the reasons why we ask for your Lordships' support for this clause and for the rejection of the Amendment. Later, my noble and learned friend the Lord Chancellor will speak on other points which are brought up in the debate.
We want this clause in the Bill for two reasons. First, and by far the most important, to check the abuse of the jury system by intimidation or corruption of jurors or attempts to corrupt them. Secondly, and admittedly far less important, but still important, to reduce the frustration and waste which is caused when a jury is prevented from reaching agreement by the perversity of one or two jurors.
I shall not repeat either of the authorities that I quoted on Second Reading, or the arguments which I then adduced, but I think it is fair to say that many other countries have long and considerable experience of majority verdicts, all, so far as we are concerned, satisfactory. Even the noble and learned Lord, Lord Denning, did not evince one single example anywhere in the world, so far as I am aware, where they have majority verdicts where we know, or it has been alleged, that an innocent person has been convicted by a majority. I am sure that had he been aware of any such example he would have mentioned it.
In Scotland we have had verdicts by a simple majority since the 16th century; and of course in some 13 Commonwealth countries, one of them since the 331 year 1801, they have majority verdicts. Certainly, there is no evidence to the effect that they lead to the conviction of innocent persons. In many of our own courts the great majority of cases are settled by majority verdicts, those of justices. Again, there is no suggestion that they do not reach the right verdict. Therefore, majority verdicts are not new. But what is new in this country, despite what the noble and learned Lord said, is the menace to juries and to justice, the menace of the determination of powerful and ruthless criminals who spare neither expense nor threat in their efforts to secure a disagreement by a jury despite the evidence.
The noble and learned Lord said that the mischief must be shown to exist. It astonishes me that he is not aware from the facts that are already public that the mischief does indeed exist, and the evidence is that it is on the increase. The noble and learned Lord was most moving, and I do not doubt that others will be, about the question of an absolute majority. I do not want to quote the authorities, but I do not have so much belief in the absolute majority on which he pins such faith.
I know as much about what goes on inside the jury room as the noble and learned Lord, which is nothing—or at least I should know nothing and he should know nothing. I base my belief on my experience of life. Rarely in my life have I been among the majority. Almost always when I express a view I find myself, or have found myself, in the minority. I am rather like the worn-out boxer who is getting a terrible beating, and in an attempt to revive him his second says, "Come on, Bill; you are favourite". The boxer pulls off his gloves and says, "This is the first time in my life I have been favourite". That is how I shall finish up. It is certainly my experience that a majority of ten to two for an opinion that I hold scarcely ever happens, and I do not think it happens often with other people. I think that any accused person would prefer an acquittal on a majority of ten to two rather than a disagreement because the verdict had to be unanimous.
My noble and learned friend and I made it perfectly clear on Second Reading that the Government were moved to 332 propose the introduction of majority verdicts first and foremost because of the disturbing evidence that we had heard of attempts to corrupt and intimidate jurors in order to secure disagreements and, if possible, acquittals. Some of the comment—indeed, that of the noble and learned Lord, Lord Denning—was that there was only indirect evidence of attempts to try to bribe jurors. It implied that this is a negligible, almost an illusory, problem about which we can produce no evidence.
It is not possible for me to say much about a case which is before the courts, but I can at least refer to newspaper reports of only last week. The case made headline news, and can scarcely have escaped the attention of any noble Lord, The presiding judge in that particular case—here I quote The Times of May 27—ordered direct line telephones to be installed in the homes of the jury yesterday, after he had revealed that three times in the last week efforts had been made to influence the jury.The judge referred in particular to an approach which had been made to the elderly mother of one of the jurymen. This was not the only approach, and I submit to your Lordships that it could have far more effect on a juror if his relatives or his old mother are threatened than if the juror himself is threatened.
This is but one example of the kind of alarming evidence of approaches to jurors which persuaded my right honourable friend the Home Secretary that there was a problem which called for incisive Government action. I think the noble and learned Lord, Lord Denning, suggested that if there is a mischief it is a mischief which has always been with us. But I do not think it can be disputed that there is a new problem; that the organisation of crime as "big business" confronts us with a problem which is quite different, in quality at least, from any that has come to our notice before. It is beyond dispute that there is a type of highly professional, modern criminal who expects to be successful; who bitterly resents any success the law may have in catching up with him, who will stop at nothing to evade being brought to justice and who, once he is caught, has friends with finances, with the determination and with the brute force, to aid him. It is a new problem, and the Government feel entitled 333 to ask your Lordships not merely to take notice of it, but to help us to meet it.
Sometimes the police come in for criticism, usually unmerited. I ask your Lordships to consider what is involved in a long fought case of this kind. The noble and learned Lord, Lord Denning, said that there were days in the 19th century when juries were shut up and kept together. If he had gone back a little further in time he could have quoted cases when juries were shut up and told, "Do not come out until you have reached a verdict". I should not have thought that that was the kind of unanimity we want in order to solve this problem. It might mean shutting a jury up for two months. That could happen in some of the cases which are now going on.
Consider also the problem involved in relation to the police. As I mentioned on Second Reading, there are 82 police officers, plus a detective inspector and a detective sergeant, engaged in aiding the jury in one case. These are tremendous problems for the police, and difficult problems for the jury. Indeed, they are problems of some delicacy, because the police must be absolutely certain that in their efforts to protect juries from intimidation and corruption they do not take any kind of action which would lead them to influence juries in any possible way. The accused person who succeeds in getting a jury corrupted may only secure one disagreement and then be convicted at a subsequent trial. But the mischief which we have to consider is the larger one, that there are dangerous and powerful offenders who are attempting to make a mockery of the whole process of justice and who are holding it up to contempt.
I do not think there is any precedent for a presiding judge having thought it necessary to demand special telephone facilities for the protection of jurors, or to direct that for the purposes of their protection their names and addresses and particulars of their relatives should be furnished to the police. If we permit conditions to continue where such fears can be inflicted on juries and where we put such enormous responsibilities on police, it is surely unthinkable. By this clause which we are now discussing, the Government seek to make it profitless to attempt such corruption or intimidation, and in this way we hope to end it.
334 It could be said that it is useless to take a step such as this, since all that the criminal will have to do in future is to corrupt three jurors and they will get around it. But that is a very much more difficult task. And such confidence has been expressed by everybody in the quality of our jurors that we could reasonably hope that at least ten out of twelve would normally be incorruptible. It has also been said that attempting by bribes or corrupt means to influence jurors is a criminal offence, that of embracery. That is true, but it is most difficult to establish, and indeed there has been only one recent case of a successful prosecution for that offence. I believe that the need for this change is not only new, but that it is established. The attack which has been made on the clause, sincere and deeply felt as it is on a question of principle and as a matter of history, is understood and appreciated, but history moves and we have to deal with this new situation. We think that this is one way of dealing with it, one way of helping the police and of making more sure of justice. Therefore, I hope that your Lordships will support this clause.
§ 5.53 p.m.
§ LORD STOW HILL
I hope your Lordships will acquit me of discourtesy if I am not able to stay until the end of the debate. Unfortunately, I have made arrangements from which I cannot escape. However, it will enable me to make a few observations on a matter on which I feel very strongly. I have previously deployed the reasons which actuate me to the view that Clause 11 is a bad clause, and that the majority principle is a bad principle. I do not wish to repeat them. I advert to the speech to which we have just listened. It is said that there is a new mischief. If that is so, do we know on what scale? In what percentage of cases are these attempts made by these sinister kings of the underworld to "nobble" juries? If a percentage is given, on what is that based? How can it be shown? The case for a majority verdict is said to rest in any event, as I understand it, only on the Central Criminal Court. I gather that it is not suggested that it is necessary for cases before quarter sessions, assizes and other courts up and down the country.
The objection to the majority verdict, as I see it, is that it enlarges the chance of innocent people being convicted. My 335 noble friend Lord Stonham referred to a case which hit the headlines within the last fortnight or three weeks. He might also have referred to a case in which the Home Secretary thought it right—I do not criticise his decision—to release a person who was serving a life sentence on the ground that his conviction was not a safe conviction and had reason to think that a mistake might have been made. The Home Secretary, having come to that conclusion, very properly, if I may say so, released that individual. At the same time, that individual having been convicted by a unanimous verdict of twelve jurors, the Government now propose to disband that safeguard for persons charged by substituting a majority verdict of ten out of twelve.
Of course, one has to fight attempts to "nobble" juries. I agree that this is a difficult matter to prove, but the right way to fight this is to enlarge our police force and to have a police force capable of carrying out the onerous task imposed upon it. The present Home Secretary is doing his level best to accomplish that objective, and all credit to him for so doing. That is the right way to tackle this sort of thing, not to make the chance of innocent persons being convicted greater than it is at the moment. There are wrong convictions, even with unanimous verdicts. I speak from some experience in this matter. I have had to recommend the release of persons who had been wrongly convicted—beyond a doubt wrongly convicted—by a unanimous verdict, the appeal having been dismissed by the Court of Criminal Appeal. Therefore, I very strongly regret that the Government have embarked on this course.
There are these sinister individuals. Many of your Lordships, in the course of discharging public duties, have had occasion to see the prison population inside prisons. Should I be wrong if I said that in the vast majority of cases those persons are social inadequates? For example, there is the middle-aged social inadequate who lives in a dingy "bed-sit." in a dreary back street, drawing National Assistance, occasionally augmented by the proceeds of a robbery. He has seen a couple of bottles on a front step not collected and he goes into the house and steals a couple of suits and a gramophone, "flogs" them to the local 336 "fence" and uses the money he gets on drink. Or there is the pimply, unhealthy-looking, young man with sideboards—probably a homosexual from a broken home. That is the sort of person one sees inside as part of the prison population—a prison population of 25,000, or whatever the figure now is, if one excludes borstals, detention centres and so on. They comprise most of the people, so far as my experience goes, who make up the prison population. The idea of those people having at their disposal emissaries who will chase jurors to their homes, with sums of £100 or £200 saved out of their National Assistance with which they can bribe them, seems to me to be so completely unrealistic as entirely to cut away the argument in support of this proposal, a proposal which I much regret.
We are now considering the question whether the clause shall stand part of the Bill. It is perhaps appropriate here to put before your Lordships a consideration which will need to be thought about at some time. Noble and learned Lords may have to decide this issue judicially at some time, and I should have thought that they might feel embarrassment in offering a view upon it. The point I put forward for consideration is this. It has always been the most salutary principle that the Criminal Division of the Court of Appeal does not, except in very rare circumstances, inquire what went on in the jury room. Is that principle going to stand now or not?
Take a typical case which occurs over and over again. The owners of a house leave the property in the afternoon and there is a burglary. A man is charged, and brought before the court. Three people say that they have seen a man during the course of the afternoon or evening, when it is dusk, leaving the house. There is no fingerprint evidence, because the burglar has used gloves. There is common consent that none of the three witnesses managed to get within nearer than 30 yards of him; and, as I have said, it was dusk, and there were limited opportunities of seeing him. They swear, no doubt perfectly honestly, that the accused person, of the sort I have described, a non-descript type that one sees in large numbers on many streets in the cities of this country, was the man they saw coming out of the house. He 337 is convicted by a majority of ten out of twelve.
If the man appeals, is it to be legitimate for his counsel to submit to the Criminal Division of the Court of Appeal—especially when one bears in mind that we have recently had a new Criminal Appeal Act which requires the Court of Appeal to allow an appeal if, in all the circumstances, it considers it unsafe for that conviction to stand—that it is a relevant circumstance that two people out of twelve were not satisfied, upon an assessment of the evidence of three witnesses who gave evidence of identity against that prisoner? Or is the court to be told that there is a kind of taboo about the two; that there is a legal presumption that they are both crooks; that they have been corrupted or are cranks? If that is to be a legal presumption, then it seems to me that it is grossly unfair to the accused person. In a case of that sort, where the question is whether the jury have rightly assessed the credibility of three witnesses to identity, I should have thought it was the most relevant circumstance that two out of twelve about whom nothing is known—they may be perfectly respectable people—were not satisfied, from listening to the cross-examination, that the assessment of the majority was appropriate.
How far is it to go? Are counsel to be entitled to say to the Court of Appeal: "Not only do I ask you to bear in mind that two out of the twelve did not agree. I am going to show you, if you allow me to tender evidence on that behalf, that the two were far from being either crooks or cranks; they were most respectable. One is a lady with three children who lives with her husband on a council estate, and is known in the vicinity as a sober and balanced person, and the other has a position of responsibility. Neither has been approached by any cranky society and no one could have approached them on behalf of the prisoner in the dock. "I should have thought that justice to the person accused would require that counsel should be heard in making submissions of that sort, and would require that the Court of Appeal should allow evidence to be given that the two had been observed and followed and their status in society ascertained in the appropriate way; and that evidence should 338 be placed before the Court of Appeal which should be addressed to the fact that here twelve sensible people differed. Two sensible people thought that the evidence was inadequate, and ten sensible people thought that the evidence was adequate.
How far is it to go? Is counsel then to be entitled to follow the ten in the majority and find out that some of them might be cranks, that they were associated with societies which propounded extravagant views, and so on? It seems to me that, once one accepts this principle of majority verdicts, that most salutary doctrine that the Court of Appeal does not interfere with what goes on in the jury room is abrogated, as justice requires that it should be abrogated. After all, it is a fiction, anyhow. Nobody pretends that the jury system is perfect; no human institution ever is. It is the best that we can devise to ensure that nobody goes to prison unless it is certain that he is guilty. For that reason, if a jury, properly directed, have said by a unanimous verdict that he is guilty, the Court of Criminal Appeal does not ask what took place among the jury when they deliberated in their room.
It seems to me—and I put this question for consideration—that we must reconsider that doctrine, and that it will now be necessary for the Court of Appeal, in asking whether it is safe for the conviction to stand, to start making inquiries and to allow evidence as to what sort of people came to one conclusion and what sort of people came to the opposing conclusion. That is one of the reasons which leads me to the view that the proposal is one very much to be deplored, and I am very sorry that the Government are apparently set on advising your Lordships' House that it should be carried through to the Statute Book.
§ 6.5 p.m.
§ LORD PARKER OF WADDINGTON
Those who listened to the debate on the Second Reading and who are here to-day have heard a number of very impassioned speeches on this subject. It is clearly a question upon which opinions differ, and I shall try to approach the matter in as dispassionate a way as possible. Listening to the speeches on Second Reading and those we have heard 339 to-day, such as that by the noble and learned Lord, Lord Denning—and I expect we shall hear from the noble and learned Lord, Lord Morris of Borth-y-Gest—the question is put really in this form. We have had this system for 600 years and it is a sacred English institution. It is a fundamental principle of our Constitution, with an inference that Scotland is a bit of a barbaric country. When it is put in that way it is important to come down to earth and see what we are really dealing with. Some comment could be made that if a thing has stood for 600 years without being inquired into it is about time we gave it a look, but that is mere comment. What are we dealing with?—trial by jury. What position does that hold in the administration of justice in this country? I am going to venture to weary your Lordships with one or two figures, but they are striking.
The figures for 1965 show that in that year 1,439,006 persons were proceeded against in magistrates' courts, and of those only 29,632 were committed for trial before a jury. In other words, the magistrates' courts, deciding by a majority, disposed of all the crime in this country except for 2.1 per cent. Of course, it could be said that those figures include every form of crime, trivial or otherwise, motor car offences and so on. So may I carry it a step further and see what indictable offences magistrates deal with? Again I take 1965, and in that year 235,143 persons were proceeded against for indictable offences, and of those 24,590 persons were committed for trial by jury; that is, 10.5 per cent. So that even in the case of indictable offences convictions have been made, or could have been made, by a majority in just under 90 per cent. of cases.
The matter does not rest there, if I may carry it one step further, because of those who were committed for trial for indictable offences in 1965 some 36 per cent. pleaded guilty. So that—and this is pure mathematics—only 36 per cent. of 2.1 per cent., or 0.76 per cent. of all the criminal cases which could result in trial by jury, resulted in trial by jury. In all other cases the decisions have been arrived at, or could have been arrived at, by a majority
§ LORD BYERS
With all respect to the noble and learned Lord, would it not be right to say that there is a very big difference between saying that those verdicts were arrived at, and saying they could have been arrived at? Surely that is a very big difference indeed.
§ LORD PARKER OF WADDINGTON
I am sorry I worded it in that way. They were tried by a body of persons who were able to decide by a majority. In how many cases they were unanimous, and in how many cases they differed, no one can possibly say. But in all cases other than the 0.76 per cent. the cases could be decided by a majority.
Having obtained those figures one then asks oneself: Why then is unanimity so sacred? Why is it so fundamental to our Constitution? Of course, the matter does not rest there, because on an appeal to county quarter sessions the matter is dealt with by way of a re-hearing, and there, again, the decision can be a majority decision. Taking the matter a step further to the Criminal Division of the Court of Appeal, with three Judges or five Judges, again the decision can be by a majority and in some cases they are deciding the very same thing as each juror has to decide: "Are we sure that the prosecution have proved their case? Is it safe to allow this verdict to stand?". They are deciding the very same sort of question that each juror is having to ask himself. Whatever may have been the position in the past, I venture to think that unanimity among those who decide cases has long ago ceased to be a fundamental principle of our Constitution.
Now one asks oneself whether there is any reason for preserving unanimity in this very small area of cases, this 0.76 per cent. The reason, if there be one, must be that if even only one out of twelve jurors disagrees with the others there must be a reasonable doubt. But does that really hold water? The test, whether it is unanimity, ten or eleven, is always whether the prosecution have proved their case so that the jurors feel sure. That is the way in which English law approaches the matter. If there is anything in this principle, one would think that if one Judge in the Court of Appeal differed from the others, or if one magistrate at county quarter sessions differed from his colleagues, then, all the more than in the case of a juror whose name is picked at 341 random out of a hat, there would be ground for saying that there must be a reasonable doubt.
Your Lordships have no doubt read the book by the noble and learned Lord, Lord Devlin, which was quoted extensively in another place. I should just like to remind your Lordships of what he said in Trial by Jury. He said:The rule makes a startling exception to the ordinary processes of English administrative life where decisions, even the most momentous, are almost invariably produced from a majority vote. Why is the verdict of a jury thought to require a degree of assent which for most purposes would be rejected as impracticable? The answer is that no-one ever planned that it should be that way; the rule is simply an antique. Twelve witnesses were required to support the winning party and naturally for that purpose their testimony had to be unanimous; when the twelve witnesses were translated into judges. the unanimity rule, notwithstanding that its original significance had then departed, remained with them. The rule was clearly settled in 1367, long before the jury was exercising any real judicial function…Again, the noble and learned Lord, Lord Devlin, in his Hamlin Lectures, pointed out a warning. He said:
But it might be dangerous, so long as the unanimity rule is retained, to equate the jury franchise with the right to vote".It is no secret, I think, that the Government—and I am sure we are delighted—propose to implement the Report of the Committee under the chairmanship of the noble and learned Lord, Lord Morris of Borth-y-Gest, and it may be that next year everyone who has a vote will be entitled to sit on a jury. A jury will no longer be what it was supposed to be—a body of middle-class property owners of some education. Members of a jury will be anybody, young or old, whatever his education, so long as he has the vote. I think that that is something which is very relevant to this matter and something that one ought to consider.
Then, again, in all the strata of society, where indeed can one find people—some, at any rate; and it is a very healthy situation—who have dissenting minds: people who approach a question from a different angle and in a way different from that of the majority of their fellow human beings? But when it comes to a jury's verdict, should one man be able to frustrate the proceedings? Is a man entitled to go into the jury room and say, "I will never convict anybody; count me out of your dis 342 cussions", and sit in a corner and say nothing? Should the elderly lady, with the best intentions in the world, be able to say, "I will never convict this young man because he may go to prison and it will interfere with his education"? Is she entitled to do that?
Again, a thing which has worried me considerably is the position of jurors who are found to have committed offences in the past. We know that it is hoped to deal with that to some extent in a subsequent clause in this Bill, but may I just give the figures of what has been found? In a case tried some time ago in the Central Criminal Court, out of a panel of 35 there were 12 with records of crime; and when, as a result of many challenges, another 24 names were supplied, it was found that 8 of these had criminal records. And in a much more recent case the startling discovery was made that out of a panel of 345 names no fewer than 124 had convictions for crime recorded against them. As I said, it is hoped that under a subsequent clause in this Bill some steps can be taken to eliminate these people; but who can be sure that they will be eliminated? Who can be sure, under the American system of challenging jurors and voir dire, that they can eliminate the crooks or the cranks, as they have been called? Accordingly, as it seems to me, we must face the position that from time to time juries will include people of that sort.
There is one other matter which has struck many of us who sit day by day in the courts, and that is the feeling, which is growing, that to-day unanimity is often obtained only by a process, I will not say of bullying but of a certain amount of threats; by a number of people (it may be the majority of the jury) saying, in effect: "It is a waste of time sitting here. We want to get home. We have got friends coming", or that something else is happening; "Hurry up, do change your mind, do agree". There is the feeling that from time to time quite a number of people are not strong enough to stand out and say, "In all conscience, we disagree". And should they not be allowed to, as, under the Bill, they will in these circumstances?
There was a case which received some notoriety concerning a woman who sought to say that she had been threatened or 343 intimidated. I think all she meant was that pressure was brought to bear on her to agree with the rest so that they could all go home; and one really feels that that must inevitably happen in a certain number of cases to-day. So far, I have merely approached the matter from the angle of asking whether to-day, whatever the position may have been in the past, it can be said that there is some fundamental principle in our Constitution which demands unanimity in every case.
The matter does not rest there, because as the noble Lord, Lord Stonham, has said, this country is to-day faced with an urgent fight against crime, and there is a new feature which has arisen. The real gangster crimes—the bank robberies, jewellery shop robberies, wage snatches, bullion snatches, protection rackets and such like—are naturally centred on London, and they naturally find their way to the Central Criminal Court. In those cases the rewards are great and money is no object; the accused have little to lose and everything to gain by bribing jurymen.
It is all very well to say that that must be stopped, that the bribers must be found and must be convicted. I almost said to my noble and learned friend Lord Denning: "I feel they would be very glad of your advice"—because it is the hardest thing in the world to catch somebody bribing a juror, to find out who it is and to bring him to justice. Are the jurors really to be kept in hotels for weeks on end? How are they to be kept in hotels and not be allowed to communicate with anybody outside—not even with their homes? If not, how does it differ from the position to-day when the police are engaged in protecting not only the jurors themselves, when they leave court, but now, also, the relatives, family and all the rest? And as this type of crime increases I think we have to face the position that this intimidation of jurors is going to grow and grow.
My noble and learned friend Lord Denning said that there are just as many disagreements now as there have been in the past, that these disagreements are constant. With all respect to the noble and learned Lord, they are not constant. If one takes 1959, there were only 39 days lost in jury disagreements at the Central Criminal Court; by 1966 the figure had 344 risen to no less than 163 days. And, as we know, there is hardly a day goes by when one cannot say that there is some case, sub judice (one has already been referred to), in which attempts have been made and in which those concerned with the case are naturally in grave fear lest the case, after weeks of work and enormous expense, should end in a disagreement.
I come, finally, to what must be the vital point in this case. Is there any danger of an innocent man being prejudiced by the introduction of this clause? We have heard my noble and learned friend Lord Stow Hill make his point. He feels very convinced on the matter. If I felt convinced as he did; if I felt that there was a danger, I should vote against this clause. But I am quite satisfied in my own mind that majority verdicts will not prejudice an innocent man one iota. I think one has only to read the magnificent speech, if I may say so, of my noble and learned friend Lord Guest on Second Reading on what has happened in Scotland to make one feel that there is not the slightest danger of an innocent man being prejudiced in any way.
It was to be noted that the noble and learned Lord, Lord Guest, said—and I quoted him in answer to something that the noble and learned Lord, Lord Stow Hill, said—that in Scotland there had been established a Court of Criminal Appeal in 1926 and that, if an appeal is taken, the fact that the jury had returned a verdict by a majority is something the Court of Criminal Appeal can take into account. I have no doubt that in this country in the case of a majority verdict it is something that the Court of Appeal will take into account in deciding whether it is safe to allow the verdict to stand.
In my final words, I should like to quote that distinguished lawyer, Blackstone, who in dealing with juries said in his Commentaries:The unanimity of twelve men, so repugnant to all experience of human conduct, passions, and understandings, could hardly in any age have been introduced into practice by a deliberate act of the Legislature.I think the time has come when a deliberate act of the Legislature should do away with this practice.
§ 6.25 p.m.
§ LORD MORRIS OF BORTH-Y-GEST
I very much hope that the Committee 345 will not allow this clause to remain part of this Bill. On the Second Reading I ventured a few submissions, and I do not want to repeat anything I then said. I want merely to make a very few observations in the same spirit of approach as that adopted by the noble and learned Lord, the Lord Chief Justice, who has just spoken. This is a matter I hope we can treat quite dispassionately and I am sure that every one of your Lordships will wish so to do. I suggest that the real issue now before your Lordships is whether it is shown that we are making a vital and fundamental change; and, if that is shown, whether a case for that change is made.
As regards the first, I venture to submit that there really can be no doubt: if you think it right to include this clause in the Bill your Lordships will have no doubt whatsoever that you are making a vital change. I am not going to deploy the line of reasoning that the noble and learned lord, Lord Parker of Waddington, thought that I might employ—that is, to refer to the past 600 years. I do not say that, because a system has lasted for 600 years, we should not change it. Of course, we should—if we find that the system needs to be changed. But on the first proposition that there is a vital and fundamental change I would invite your Lordships to say that that admits of no argument. It is for this reason that, rightly or wrongly—and whether it has been right or wrong may be for your Lordships to consider—we have had a great horror in the past of any risk of an innocent man being condemned and being sent to prison.
To avoid this, we have adopted two safeguards, the best that we have been able to devise. First, we have told each individual juror that in his individual approach he personally must be sure before he is prepared to record a vote of guilty or not guilty. And we have said that the system we will adopt is not to have trial by judges, by lawyers, by experts, by picked people, but to have trial by the country. A man, if he pleads not guilty, puts himself on the country—and the jury is the country. The jury, a body of people chosen at random, citizens, have to decide. The second safeguard is that that group of citizens must all agree before there is a verdict. It does not matter whether the number is twelve, 346 eleven, ten—or even seven, as we had during the war. The strength and force and validity of the system we have accepted up till now has been that we have had those two features.
The issue, as I understand it, before your Lordships is: should that now be changed?—because I think one is entitled to ask whether we are going to make a vital fundamental change without having good reason for it. I venture to submit that there is a little divergence between the Government view and the view that has just been put forward so powerfully by my noble and learned friend the Lord Chief Justice. And may I say that every one of your Lordships always has the profoundest respect—in which I share—for any expression of opinion of the noble and learned Lord, the Lord Chief Justice. But the view of the Government, as I understand it, is that a new situation has arisen; that the new situation is serious and demands this drastic remedy.
The argument, as I followed it, of the noble and learned Lord, the Lord Chief Justice, was rather different. His argument was that our system is not very good after all. That is not the reason given by the Government for this change. We have heard a lot of talk about Scotland, and one noble Lord who has a great affection for Scotland has made his voice heard. I have the greatest possible respect for the Scottish legal system and for Scottish lawyers. I have very good reason for having respect for Scottish lawyers because I have the privilege of sitting with two very distinguished Scottish lawyers constantly. But how does Scotland come into this argument?
It is said that Scotland has had this system of theirs for 400 years and it has worked very well. Her Majesty's Government are not saying, "We have just realised that; we have just woken up to the fact that Scotland is different and we think we should like to change". They have not just woken up to the fact; it has been known for 400 years. The different system here has existed for 600 years. Those arguments, I submit, have no validity whatsoever. I am sure that the system has worked well for Scotland. We have thought that our system has worked well here. We have believed in it. It has been something that many of us have felt to be precious and part of 347 our heritage. By all means let us change it, and change it straight away, either if there is an imperative, urgent case now presenting, or if we can discover that the whole thing has been rather a poor system all along.
We were told that Jeremy Bentham was in favour of majority verdicts. He may have been. But Jeremy Bentham has been dead a very long time, and what he said about majority verdicts he said before he died. No one is thinking that Her Majesty's Government have only just heard of Jeremy Bentham. They do not put forward that reason. They do not say that because Scotland has it now, we wish to follow suit. The reason put forward by the noble Lord, Lord Stonham, in his powerful speech is the only reason which has been put forward by Her Majesty's Government; namely, this new situation.
The noble Lord, Lord Stonham, said he always found himself in a minority. I hope that your Lordships will not break his record to-night. The reason put forward by the noble Lord, Lord Stonham, is that we are faced with a new, serious and critical situation. The noble and learned Lord, the Lord Chancellor—and of course we accept every word—said that these perils have manifested themselves not only in London; they have manifested themselves in other towns, and the noble and learned Lord the Lord Chancellor mentioned them in his speech on Second Reading. My Lords, let us accept every word that has been said by the Home Secretary in another place, by the noble and learned Lord, the Lord Chancellor, and the noble Lord, Lord Stonham. I accept it implicitly. Here is a new and awful situation. Is the problem, serious though it is, of sufficient seriousness to warrant our throwing over our system? Somebody wrote a letter to The Times and said that this change is like debasing your coinage because a few people have gone in for some counterfeit coins. Are we really to allow a few crooks to change our system, unless the system that we have been operating is shown to be all wrong?
Is the argument in regard to magistrates' courts really a valid one? We do, not know whether magistrates give their decisions by a majority. It may be known, sometimes, but as a rule it is 348 not. There is no situation of lack of confidence because magistrates have said "This is a majority decision". It may be a majority decision but we do not know. Suppose five magistrates were sitting to decide whether a man was guilty of stealing a book from a shop, and three of them thought he was and two were convinced that he was not. is it really satisfactory that the man should be convicted; and is it right to point to that possibility and say that because it can happen in the case of magistrates, it will not be all that bad if we have majority verdicts in the case of trials with juries? It is the more serious cases that go to juries. Magistrates deal with the less serious cases, and it may be that our system in the magistrates' courts is the best we can do.
What I submit is that the volume of this new complaint is not such as to make it right to reverse our system now. Here is something that we have really believed in. It has been part of our heritage. People in this country have believed in freedom and preserved it, and I suggest to your Lordships that there is a large body of opinion in the country which would be unhappy indeed if now, because of a few crooks, we reversed and jettisoned a great principle.
§ 6.37 p.m.
§ LORD DONOVAN
My Lords, I have very few qualifications to intervene in this debate. I did try serious crime for some 14 years, but I am very willing to subscribe to the doctrine that judges are not always the best counsellors in these matters of legal innovation. But where we differ from each other, as we obviously do, the process of counting heads is apt to go on, and I should like mine to be counted on the right side. I do not believe, as others do not believe, in some magic attaching to the unanimity of twelve which does not attach to the unanimity of ten. I do believe, with others, in the desirability of retaining the unanimity rule, unless that rule is being exploited by ruthless and determined criminals for their own ends. Even then, I should retain it if the remedy were worse than the disease. I do not believe that it is.
What is that disease? The noble and learned Lord, the Lord Chief Justice, sends me to the Old Bailey to try a serious crime and we know the trial will 349 last a month. The jury is empanelled and I say to them, "If any of you are going to suffer severe hardship by being here for a month, I will see whether I can excuse you". Oddly enough, no one applies to be excused. So the case proceeds, and witness after witness goes into the witness box, is examined, cross-examined and re-examined. Speech after speech is made by counsel and in the end I sum up for a whole day. Out goes the jury, and hour after hour goes by. So I call them back and they tell me they are not in agreement. So I send them out again with a despairing plea that they should agree. They come back eventually and say that they cannot agree, so I discharge them, and the whole weary business has got to be gone through again. And all because one juror has been "got at" and it has been made worth his while to disagree, whatever he may feel; so from the very beginning the whole exercise was doomed to failure. Another twelve citizens have to be summoned. another judge has to be found, and the witnesses, reluctant in the first place to come at all because of fear of what might happen to them, have to be persuaded again. And you may not be successful, and in any event no one can be sure, that the result on the second trial will not be just the same. If there is no more than a real risk of that happening, as apparently there is, if it happens only once a year or twice a year, then I still say that that is an affront to the whole of society and that we should he seriously lacking in our duty if we did not try to cope with it.
The sole question is whether the proposed remedy is worse than the disease, as it would be, of course, if innocent people were imperilled. So it is said against the clause that two dissidents out of the twelve may be the only ones to see the reasonable doubt—in other words, that our jury system is such that out of any twelve we select, we may get ten who are subnormal and only two with the necessary wit and common sense to recognise a reasonable doubt if they see it. If that be so, of course, it would he a devastating comment on our whole jury system—and the sooner we scrapped it for computers the better. What would he the position of the judge in such a case? Would he be blind to the reasonable doubt, too? And if he is not, if he is aware of it, what is he doing in his 350 summing up to be able to get that across to only two jurors out of twelve?
Furthermore, we now have a Court for criminal appeals which we have had for only a tithe of the time that we have had juries. It used to regard the verdict of a jury as practically sacrosanct if at least there was some evidence to support it. Now it is not so. Parliament last year made the Court of Criminal Appeal a Division of the Court of Appeal, presided over by the noble and learned Lord, Lord Denning, and gave it power to quash a verdict of a jury, even if there was some evidence to support it, if the Court found, or thought, that that verdict was unsafe or unsatisfactory. Is my noble and learned friend Lord Denning to fail to see the reasonable doubt; and arc his colleagues in the Court of Appeal going to fail to see it, too? Of course not. The truth is that such a case, where two men alone out of twelve "see the light", is unlikely to occur. But even should it occur, the safeguards which we have built into the appeal system since last year reduce this risk to infinitesimal proportions. They are certainly not such as to justify our standing by and doing nothing at all in the face of this danger to the very foundations of our system of justice. The Government are absolutely right in this case, and I hope that they will stick to their guns.
§ 6.43 p.m.
§ LORD SHAWCROSS
I must apologise to your Lordships because, though I came straight here from London Airport, I was deprived of the opportunity and advantage of hearing the speech of the noble and learned Lord, Lord Denning, and heard only a part of the speech of the noble Lord, Lord Stonham, though I did have the advantage of reading the speech which my noble and learned friend had made upon this matter on the Second Reading of this Bill. If I may say so with the greatest respect to him and to the noble and learned Lord, Lord Morris of Borth-y-Gest, it rather confirmed me in my view that in this matter, as in so many matters affecting the law in this country, although moving from camp to camp as individuals, we tend on every particular issue to find ourselves as protagonists in one of two camps.
There are, on the one hand, the traditionalists, those who, as the noble and 351 learned Lord, Lord Morris of Borth-y-Gest, said in such eloquent terms, believe that some particular aspect of the legal system of this country is part of our great and noble heritage, and who on an issue of this kind, perhaps sentimentally, believe that nothing should be done to diminish the odds in favour of a criminal escaping conviction. On the other hand, there are the people, whom I should like to describe, because on this occasion I belong to them, as the realists, who are just as much concerned as anybody else in ensuring that innocent men are not wrongly convicted; people who believe just as strongly that it is better to allow guilty men to escape conviction than to have an innocent man wrongly convicted, but people who consider that we are now paying altogether too high a price, altogether an unnecessary price, for protecting the innocent. It can happen that innocent men are wrongly convicted. I believe that it happens very rarely, but it certainly does happen on occasion. There is, however, no reason whatever for supposing that the unanimity rule affords a real safeguard against this happening, or that in courts or in countries where the unanimity rule does not exist at all, and where majority decisions are accepted, innocent men are exposed to a greater risk of being wrongly convicted.
Reference has been made to the position of the magistrates' courts in this country where, of course, the majority of criminal cases are tried, and to the position in Scotland. In spite of what has just been said by the noble and learned Lord, Lord Morris of Borth-y-Gest, about the position in Scotland, I should have thought that we are entitled to say that there is a country not less jealous of justice than we are, there is a country which for many hundreds of years has had experience of majority verdicts by jury, and there is a country in which nobody has suggested that there is a greater risk that innocent men may be wrongly convicted because of the acceptance of those verdicts.
But there is, on the contrary, a good deal of reason for believing that the unanimity rule does help the guilty to escape. How is it, one is sometimes asked, that we know that people who escape conviction on the verdict of a jury are in truth guilty? Everyone who has 352 practised, as I used to do, in the criminal courts, knows perfectly well that criminal trials in this country are conducted rather like a game, with the judge sitting as an umpire, in accordance with rules which give the accused a sporting chance of getting off. And all of us know of cases where men who were guilty were acquitted. How do we know? Often we know because of other evidence which was available, but which for legal reasons could not be presented to the court. Maybe the accused himself has made some statement which was inadmissible in evidence against him. It may be that other witnesses—possibly a wife, who is not a compellable witness—have made statements which, with the rest of the evidence, make the thing perfectly clear. It may be—and this happens from time to time—that the accused himself has admitted his guilt to his lawyers before his trial, or boasts about it after he has been acquitted. These cases are not so exceptional as noble Lords may imagine. All of us who have practised in the criminal courts will have had experience of cases in which there has been no possible doubt at all that guilty men have been acquitted.
The plain fact is nowadays that the person who commits a crime has a six-to-four chance against being arrested at all, and once arrested, if he is unlucky enough to fall into the minority if he is tried by a jury, again he has a six-to-four chance of avoiding conviction. That is why crime in this country is steadily increasing and is reaching the most alarming proportions; and that is why crime pays.
The noble Lord, Lord Stow Hill, who has had to leave, referred, as I understood him, to the criminal population being largely composed of long-haired and pimply homosexuals. It is not so long since the noble Lord left the office of Secretary of State for the Home Department. He surely cannot have forgotten the carefully planned, usually expensively organised and boldly carried out, raids of one kind or another which are a constant occurrence, and which we read about in the newspapers day after day, in which grave crimes are committed and in which, I regret to say, in the majority of cases the criminals escape.
Why is it that the unanimity rule contributes to the acquittal of guilty men? 353 I do not believe it is only because individual jurors may be "got at" or "nobbled", although the risk of this is undoubtedly increasing nowadays. I have always thought—and this whole problem is, I think, no new one, as the noble and learned Lord, Lord Morris of Borth-y-Gest, has just suggested—that the majority rule is wrong. I think that people are often acquitted because of the kind of philosophical doubt and difficulty which jurymen notoriously have in applying the rule about reasonable doubt—the kind of difficulty which I thought the speech of the noble Lord, Lord Stow Hill, very clearly indicated. Sometimes jurymen and jurywomen assess this problem of reasonable doubt, not subjectively, by asking whether they themselves individually have a reasonable doubt about the conclusion, but arithmetically, by counting the heads in the jury room. If on a count of that kind two out of the twelve take the view that there ought to be an acquittal, then some of the rest of them are inclined to think that that fact in itself means that there must be a doubt about the case, although they do not personally share it. Having been instructed as they would have been by the judge that the verdict has to be the verdict of them all, they say to themselves: "Well, there must be a doubt here, because two of our number say that they do not agree with the rest of us. "So, although they themselves as individuals are not personally in doubt, they think a doubt exists, and they concur in a verdict of acquittal.
Why the two dissentients may take the view that they do, that the accused should be acquitted in a particular case, is, of course, a matter about which one cannot possibly generalise. While very few of us here—and certainly not I—have ever served on a jury, most of us, I dare say, have' talked to responsible and reliable people who have, and who have told us about their experiences and the odd influences which they have found may affect a juryman. It may often be that, "There but for the grace of God go I"—a very understandable feeling. That is perhaps one of the reasons why it is most difficult ever to get a conviction in a case concerning a motoring offence. That is notorious. No motorist who is not a fool and who has the right to go to trial by jury would dream of being tried in any other way, because he knows 354 that there will be one or two people on the jury who are motorists who will feel that they are lucky not to have been caught themselves, and will press strongly on the others in the jury room that there ought not to be a conviction in the case.
It may not only be motoring offences. Statistically (this is rather a gloomy observation to make, but I understand that there is no doubt about it) the chance that someone on the jury will, whether convicted or not, have in fact committed some crime or at least fallen foul of the police in his previous experience is a high one. Then, sometimes it is the view that particular offences—perhaps bigamy or some of the sexual offences—ought not to be considered crimes at all. Or it may be the other way round. And sometimes, I dare say—this is what one hears from people who have served on juries—it is a kind of perversity, of being "agin the Government" and dissenting from majority opinions, as the noble Lord, Lord Stonham, said that he consistently does. There are all manner of reasons for these dissents. Occasionally they may be quite correct reasons, as in the case of dissenters who find themselves in a minority in this House, like the noble Lord, Lord Stonham and I myself, as, for instance, in our objection to the provision for gagging the Press contained in this Bill. The reasons may be quite correct. But the conduct of ordinary affairs in this country, and I venture to think the conduct of justice, would be quite impossible if a dissenting opinion of that kind were able to exercise a veto—and that is what a minority of two in the jury room may do—on the opinion of the majority.
As the noble Lord who has just spoken said, there is no magic key to justice in this unanimity rule. It is something which, as the noble and learned Lord the Lord Chief Justice has said, had a completely fortuitous origin. And, equally, there is no magic in the number twelve. Why twelve? Why not seven? Why not fourteen? In fact, for a long period during the war we were content to rely on juries of seven, and nobody at that time thought that the world of justice had come to an end. Now, although we have the example of Scotland before us, it is proposed not to go for a bare majority, but to provide that no one is convicted of a criminal offence unless there are at least ten people on the jury 355 —ten of the countrymen upon whom the accused has put himself—who believe him to be guilty. Why is that so much more dangerous than when seven could do so during the war?
I am an English lawyer. I have an affection and respect for the English system and tradition of justice. But I have seen enough of the administration of justice in this country and in other countries to know that England is not the only country which believes passionately in impartial justice. I think, too, that I have seen enough of other systems of law in other countries to know that our system is not in every respect the one best suited to achieve impartial justice. And I mean justice. Justice involves not only the acquittal of those whose guilt is in doubt, but also the conviction of those who are guilty. The Scots believe equally in justice as we do. There is no reason whatever to doubt that they, by their system, are achieving it.
This present proposal does not go so far. It will, I think, do a little to redress the balance in favour of society, and perhaps—and I am not dismayed by this—do a little to reduce the number of occasions on which the criminal can, as often nowadays he can, cock a snook and laugh at the administration of justice in the English courts of law.
§ 7.0 p.m.
§ LORD CHORLEY
I should like to say a few words on this subject, which is one of great importance. I cannot agree with my noble and learned friend Lord Morris of Borth-y-Gest that unanimity is fundamental to the administration of criminal law in England. I think that what an Englishman is entitled to is a verdict from his fellow citizens—that is his fundamental right—and not that it should be unanimous on the part of twelve of his fellow citizens.
Of course, this makes a substantial change in our law, but I cannot agree that it makes one of a vital, fundamental character, as the noble and learned Lord, Lord Morris of Borth-y-Gest, contends that it does. I feel, indeed, that we are making rather heavy weather of this proposed alteration in our law. I have no doubt that in its day the unanimity rule was valuable. The noble and learned Lord, Lord Denning, has reminded us that there was a time when every felony 356 was punished by death; and it was a very different thing then, of course, to require unanimity. There was a time, very much more recently, when no prisoner was allowed to give evidence on his own behalf, and in those earlier days, obviously, it was necessary that an accused man should have certain valuable protections from the procedure, one of which was the unanimity rule.
But the situation now, I venture to suggest, in the 1960s, is a very different one from that which existed at the beginning of the 19th century, or even that which existed at the end of the 19th century. Lord Denning himself pointed out the position in two out of the States in the Commonwealth of Australia. We lawyers in the university law schools have learnt to look to Australia for many of the most valuable innovations in the Common Law and, indeed, the alteration of the Statute Law, over the last years, and it is significant, I think, that two of the States of the Commonwealth of Australia have realised that they are living in a new world, and that in a new world you need procedures of a different sort.
I am afraid that this unanimity business has become something of a "sacred cow" to many lawyers, including some of my great friends on the bench. I remember once seeing a tram-car held up by a sacred cow which chose, in one of the main streets in Calcutta, to lie down on the tram rails, and that held up the traffic in that street for a substantial period of time. The modern world was held up by the ancient world, by the "sacred cow" of the old days, and I am afraid that a good deal of the opposition to this proposal is indeed an attempt to hold up the needs of the administration of criminal justice at the present time by the interposition of what is really no more and no less than a "sacred cow".
Of course, no one can say that there cannot be an occasion now and then when an innocent man is convicted, or when a dissenting juror has not saved an innocent man from prison, but I should say that these cases are only an infinitesimal number. I am pretty sure that the occasions to which attention has been drawn, when jury disagreements have been followed after a new trial by acquittal, are invariably occasions where 357 a substantial proportion of jurors at the first trial have been in disagreement with the others, and not cases where only one or two have disagreed.
I would accept the view that it is better that a guilty man should be acquitted, that he should escape, than that an innocent man should be sent to prison. I should even be ready to multiply that by ten, as is very often done, and say that it is better that ten guilty men should escape than that one innocent man should be sent to prison. But I am not prepared to go any further than that, and I am not prepared to multiply it by 20, by 50 or by 100, which is, I am afraid, what is involved in the administration of our criminal law in a number of cases at the present time. When I am asked to support a system which enables numbers of the sort given by the noble and learned Lord the Lord Chief Justice to escape, and when I am asked to say that that must go on indefinitely, all I can say is that I am not prepared to agree that it should do so, because society at the present time simply cannot afford to allow these numbers of criminals to escape.
I am afraid that those who are opposing this alteration in the law are striking a pretty serious blow at the very foundations of the order of our society at the present time, as the noble and learned Lord, Lord Shawcross, has just pointed out. It is not the feckless type of persons to whom the noble Lord, Lord Stow Hill, was referring as forming the majority of our criminal population who are the real danger to society at the present time. It is the 10 per cent. of professional criminals, whom the Institute of Cambridge, in a recent report, has shown are not in fact caught and are continuing to execute their depredations on the community with very little fear of arrest and conviction.
Speaking from a pretty long experience of the administration of the criminal law, extending indeed, as I remarked earlier this afternoon, to something like fifty years—although I would not pretend it is as intimate as that of many other of your Lordships who have spoken this afternoon—where I have been in many criminal cases both as counsel and later as chairman of quarter sessions, I cannot say I have ever, in the whole of this 358 experience, had a case where an undoubtedly innocent man was convicted; I have seen very, very few cases where I had any real doubts that a man who was convicted was guilty. And I believe, from the opportunities I have had of speaking to them, that that is the general experience of chairmen of quarter sessions and recorders up and down the country.
But I have had very many cases where a man was found not guilty by a jury when the whole of the bench of my quarter sessions were quite satisfied that he was guilty. That happens time after time, and we are at a loss to understand how the jury—and these are not only motoring cases—can have brought in a verdict of not guilty. It is not until from time to time one has the opportunity of speaking to somebody who has served on a jury that one begins to understand the extraordinary make-up which very often takes place on the jury, because no effort is made to be certain that those who are chosen to serve on juries are altogether compos mentis, and it is very true indeed that there are people who are really complete cranks chosen to serve on juries. So long as that happens we are bound to get these disagreements, which are really quite a marked feature of our present system.
Sitting in my own court of quarter sessions, which is not a very busy one, seldom a year goes by without two or three of the quite small number of jury cases we have to try resulting in disagreements. That, I think, certainly ought not to happen, because I have practically never known one of these cases where the bench of magistrates, who after all are a pretty good selection of the responsible population of the country, have not been quite satisfied that the case had been brought home against the prisoner. Moreover, the Criminal Division of the Court of Appeal are there as a long-stop; and, as has been pointed out this afternoon, many of the cases in which they quash convictions are only cases where, as a result of some infraction of a rather technical rule of law, they feel the rules of the game have not been effectively carried out and they must—although they frequently indicate they realise perfectly well that the man was almost certainly guilty 359 —apply the rule and quash the conviction which has been brought in against him. All these things seem to me to bear out very strongly what was suggested by the noble and learned Lord, Lord Shawcross, only a few minutes ago: that we are at the moment erring in our administration of the criminal law by an overdose of verdicts of not guilty in cases where the prisoners are pretty clearly guilty, and this suggestion that we should have majority verdicts seems to me to be at any rate one practical method of trying to put an end to this unsatisfactory state of affairs. Therefore I hope your Lordships will support the Government and will see that this clause remains in the Bill.
§ LORD AIREDALE
I should like to make two brief points. The noble Lord, Lord Stonham, and the noble and learned Lord, the Lord Chief Justice, both drew attention to the contrast between the procedure in magistrates' courts, where no unanimity rule exists, and trials before juries where the unanimity rule does exist. The noble and learned Lord the Lord Chancellor made this point very strongly in his Second Reading speech, and it may be that he will deal with the point again this evening. I do not know.
The two points with regard to this matter which I wish to make, and which have not been made so far, are these. First, at least it can be said that when a bench of magistrates arrive at what is only a majority verdict they do not publish this fact, whereas under this Bill a conviction by a jury by only a majority is going to be published as being a majority conviction. I do not know what would be thought in the country if chairmen of benches of magistrates fell into the habit of saying to prisoners in the dock, "I, the chairman, and one of my colleagues think that you are not guilty, but three others of us think that you are guilty; so you are guilty and you will go to prison for six months". If that sort of pronouncement started to be made by chairmen of benches of magistrates I imagine that there would be a public outcry. That is my first point.
My second point is this. Except in the least serious cases no accused person need accept the risk of a majority verdict by magistrates against him if he does not 360 want to undertake that risk. Almost without exception, in every case where an accused person is liable, on conviction before magistrates, to be imprisoned for more than three months he must be told, "You can elect either to be tried in this magistrates' court or you can he tried before a jury". And he will of course know that in the event of his choosing trial by jury only a unanimous verdict will suffice to convict him. So, almost without exception, it is only by the voluntary choice of the prisoner himself that he lays himself open to a majority verdict against him in a magistrates' court. I think those two points ought to be borne in mind when one considers the contrast in the procedure in the two courts. In conclusion, I think that Her Majesty's Government may have made out a case for an inquiry into whether the unanimity rule for juries should be abandoned or preserved, but I believe that if we were to legislate without a preliminary inquiry we should be legislating precipitately.
§ 7.14 p.m.
§ THE LORD CHANCELLOR
We have had an interesting discussion, and it may be that the Committee now feel prepared to come to a conclusion. The speeches we have heard have been so good, on both sides of the argument, that I am sure the Committee will not think me discourteous if I am extremely short, because I think everything that can be said has been said.
Perhaps, from one point of view, it is surprising that those who feel that, although in every other walk of life we all always act on a majority, this is a very special field where unanimity has some peculiar intrinsic value; that on this Criminal Justice Bill they have not put down any Amendment to provide that before justices of the peace send a man to prison they must be unanimous. I appreciate what the noble Lord, Lord Airedale, has just said, but the fact remains that over 98 per cent. of all the criminal cases in the country are decided by bodies who are not required to be unanimous. People are sent to prison every day of the week, and have been for years and years and years, by a body whose decisions do not require unanimity. And if people so convicted appeal, and go to quarter sessions, again unanimity is not required. If they appeal 361 to the Criminal Division of the Court of Appeal, whether or not they are let out of prison depends on three Judges: it is not enough that one Judge thinks that a man ought not to be in prison at all.
As to the mischiefs in it, I am very disturbed, as I know the noble and learned Lord the Lord Chief Justice is, at the marked increase in the last four or five years in these very long cases. The noble and learned Lord the Lord Chief Justice knows that I have had one such case to-day. If there is one very long case at assizes, as soon as the assize judges get there—there may be two of them—if they find there is one case which will take up the whole assize that means that the available judge power is cut in half. The result is that the other judge says, "I cannot possibly get through both the criminal and the civil work which there is to do, apart from this one case, plus the remanet of the civil cases left over from the last assize. What am I to do?" I am referring to the sort of case that lasts five or six weeks and costs £75,000 to re-try; the sort of case in which, as the noble and learned Lord, Lord Donovan, said, after weeks which are a great strain on the jury, on the witnesses and everybody concerned, when the foreman of the jury says, "Aren't eleven out of twelve enough?", and you have to say "No", the whole thing has to start all over again.
So far as the cranks are concerned, the only point I should like to make is that there seems to be a tendency to suppose that, while all the other sensible members of the jury want to convict, the crank is always a man with a grudge against the police who does not want to convict. But I believe that there are probably as many cranks who insist on convicting when everybody else wants to acquit. I think this is perhaps borne out by last year's figures at the Central Criminal Court, where there were disagreements in 51 cases. When those cases were re-tried, in five cases the jury again disagreed, showing that those five were proper cases, cases in which there was a genuine doubt. But, of the remaining 46 cases, in 23 of them there was a unanimous conviction, and in the other 23 there was a unanimous acquittal. This suggests to my mind that it is possible to have a man who has a "bee in his 362 bonnet" about, say, homosexuality to a far greater degree than anybody else and he cannot believe that anybody who is charged with it could possibly be otherwise than guilty.
In answer to the observations of the noble and learned Lord, Lord Morris of Borth-y-Gest, as he knows, the Government have already stated that they propose to accept the substance of the Report of the Committee of which he was such a distinguished Chairman. I think we must all realise what that is going to mean. I think it is right that in a democracy everybody ought to be eligible for jury service, but whereas up till now we have had reasonably intelligent householders, if those recommendations are accepted, as I hope they will be, and implemented, we shall have everybody who is on the electoral roll. Half of every jury will be women, and half will be of a markedly lower educational standard than those we have now. It is only reasonable to assume that the proportion of cranks will substantially increase.
The only other thing I wanted to say was to emphasise the very real gravity of this new position in the last couple of years; that is to say, the crooks apart from the cranks. I think there is no doubt at all that fairly recently we have had in England a type of highly organised crime which we have not had in the past, and men to whom what some might consider big money is of no interest. If you can get away with half a million pounds' worth of gold bars and sell them, what is a couple of thousand pounds to bribe a juror? It may be a lot to the jury man.
Let me take a particular case of five men charged with conspiring to break into a bank in London. The first trial started on January 31 last year. At the start of the trial one of the accused immediately objected to six jurors. He is allowed to object to seven without cause. This applies to each of the accused. It was noticeable that those to whom he objected were all the most intelligent looking jurors. On the two following days two of the jurors who had replaced members of the original jury were seen to have been approached by associates of one of the accused. That was brought to the notice of the judge, who discharged the jury and the trial started again. The 363 second trial started a week later, and 15 jurors were peremptorily challenged by the accused men. To quote the judgment in the Court of Appeal,It became apparent those who were being challenged were the ones who looked the most intelligent.A few days later one of the jurors was seen talking to a man well known to the police to have a criminal record. They received information that this juror had been approached with a proposition he was considering. That juror was discharged. The same evening a coloured juror was approached by three men who offered him £600 to bring in a verdict in favour of the accused. This coloured man was honest and went straight to the police. That was not the end of the matter. On February 27 another juror reported to the police that an unknown man had called at his house and offered him £100 to help the prisoners. The eventual outcome of the trial was that four out of the five were acquitted: the only man convicted was the "inside" man.
This sort of thing is not, as the noble Lord, Lord Stow Hill suggested, limited to London. There have been cases in Glamorgan, Sheffield, Northampton, York and Buckinghamshire. This really does sap at the very vitals of justice. We were told to-day by my noble friend Lord Stonham that in one case alone 82 plain-clothes men had to keep an eye on the jury because of the risk of their being bribed or intimidated. In the Northamptonshire case there was a con-
§ viction. The difficulty is to get evidence. The man will, understandably, say to the police, "I have told you this, but nothing will induce me to give that evidence in the witness box because I shall be beaten up". Potential witnesses are too frightened. This is the only rational and sensible way, I think, to deal with the situation. I hope, therefore, that the Committee will agree that the clause should stand part of the Bill.
§ LORD DENNING
This is such an important point that I hope your Lordships will not regret the time we have spent upon it. I would only say that the contributions that have been made have been most instructive to me, among others. I only suggest that the mischief that it is sought to remedy is the mischief of the long trial with the possibility of disagreement. But not only that: in these days of bribery and corruption, will this remedy achieve what is desired? If two are not sufficient may not the bribers and corrupters manage three? Will not the same problem arise? Will you not still have to have the policeman following the jurors and seeing that they are not corrupted? Have we really found the right remedy? I would still urge your Lordships to say that, before this change is effected, there should be fuller investigation and inquiry.
§ 7.30 p.m.
§ On Question, Whether Clause 11, as amended, shall stand part of the Bill?
§ Their Lordships divided: Contents, 74; Not-Contents, 8.365
|Addison, V.||Gifford, L.||Milverton, L.|
|Archibald, L.||Goodman, L.||Molson, L.|
|Asquith of Yarnbury, Bs.||Granville-West, L.||Morris of Kenwood, L.|
|Atholl, D.||Grimston of Westbury, L.||Oakshott, L.|
|Audley, Bs.||Guest, L.||Parker of Waddington, L.|
|Beswick, L.||Hall, V.||Phillips, Bs. [Teller.]|
|Boston, L.||Hamilton of Dalzell, L.||Plummer, Bs.|
|Bowles, L.||Henderson, L.||Raglan, L.|
|Brooke of Cumnor, L.||Henley, L.||Reid, L.|
|Brooke of Ystradfellte, Bs.||Hilton of Upton, L.||Rhodes, L.|
|Burton of Coventry, Bs.||Iddesleigh, E.||Ritchie-Calder, L.|
|Chorley, L.||Ilford, L.||Rowley, L.|
|Crook, L.||Inglewood, L.||Royle, L.|
|Derwent, L.||Latham. L.||Sandford, L.|
|Dilhorne, V.||Leatherland, L.||Shawcross, L.|
|Donovan, L,||Lindgren, L.||Shepherd, L.|
|Emmet of Amberley, Bs.||Lloyd of Hampstead, L.||Somers, L.|
|Falkland, V.||Longford, E. (L. Privy Seal.)||Sorensen, L. [Teller.]|
|Ferrier, L.||Lucas of Chilworth, L.||Stonham, L.|
|Fraser of North Cape, L.||McCorquodale of Newton, L.||Strabolgi, L.|
|Gaitskell, Bs.||Maelor, L.||Strang, L.|
|Gardiner, L. (L. Chancellor.)||Massereene and Ferrard, V.||Strange of Knokin, Bs.|
|Swanborough, Bs.||Vivian, L.||Walston, L.|
|Taylor of Mansfield, L.||Wade, L.||Wolverton. L.|
|Tweedsmuir, L.||Wakefield of Kendal, L.|
|Airedale, L.||Grantchester, L.||Morris of Borth-y-Gest, L. [Teller.]|
|Clwyd. L.||Hylton-Foster, Bs.|
|Denning, L. [Teller.]||Kinnoull, E.||Sandys, L.|
§ Resolved in the affirmative, and Clause 11, as amended, agreed to accordingly.
§ LORD STONHAM
I think it would meet your Lordships' convenience if at this stage we adjourned for dinner and resumed at 8.45.
§ [The Sitting was suspended at 7.36 p.m. and resumed at 8.45 p.m.]
§ LORD BROOKE OF CUMNOR moved, after Clause 11, to insert the following new clause:
§ Obtaining or attempting to obtain from a juror, or disclosure by a juror of, information as to jury's deliberations in jury room
§ ". Any person who obtains or attempts to obtain from any member of a jury information as to what occurred in the jury room when the jury was considering its verdict, and any member of a jury who, after a jury has returned a verdict, discloses what occurred when the jury was considering its verdict, shall be guilty of an indictable offence punishable with imprisonment for a term not exceeding two years or by a fine or both."
§ The noble Lord said: The purpose of this new clause is to make it a criminal offence for anybody to seek to obtain from a member of a jury information as to what occurred in the jury room while the jury was considering its verdict. Likewise, it makes it a criminal offence for any member of the jury, after it has returned a verdict, to disclose anything that happened when the jury was considering its verdict. It occurs to me that what goes on in the jury room is liable to become a matter of much greater interest to the Press, and it may be to others, if we are to have majority verdicts than it ever was when a jury had to be unanimous. After all, there was relatively little to find out if the jury reached a unanimous verdict of guilty or not guilty. I appreciate that there were cases where the jury was unable to agree and where a second trial was ordered. Clearly, then, people outside, including the Press, would be more interested in the outcome of the second trial, and indeed they might put themselves in jeopardy if they were thought to have been in- 366 quiring too closely into what happened in the jury room at the first trial.
§ Henceforward, if a verdict is admissible when it is reached by ten or more members of the jury the proceedings in the case will be over, there will be no second trial, and it may be of considerable interest to a good many people, and indeed it may have commercial value, to know what actually happened and precisely how many people composed the minority and, indeed, which of the jurymen it was. I do not know whether any of these things will happen, and I am not making any allegations against anybody in advance; but I can visualise that the enterprising journalist may think that this is a possible, and fruitful, field at which his inquiries and his energies may be directed. This is particularly the case since it appears that there is no penalty whatever attaching to his making these inquiries, nor is there any penalty attaching to the juryman who discloses what happened. As I understand the law, that would be the case.
§ I am not claiming that this clause is perfectly drafted; indeed, there may well be further points which ought to be considered in this connection. But I hope that the Government will be disposed to say that this is a matter which deserves attention and is something which I am justified in bringing to the notice of the Committee. In that event I shall be satisfied, because we can then examine it further; but, to my mind, it is essential that this point should be considered and examined and, so far as I know, it was not referred to at all in another place. Therefore we in this Committee would be doing a positive service if we were to give special consideration to it. I beg to move.
§ Amendment moved—
§ After Clause 11, insert the said new clause—(Lord Brooke of Cumnor.)
§ 8.50 p.m.
§ THE LORD CHANCELLOR
There are 154 Amendments on the Order Paper, 367 a number of them Government ones of course, but there have been an exceptionally large number of Opposition Amendments. Then, apart from Gibraltar it has been Hong Kong, and if it has not been Hong Kong it has been Aden; and if it has not been Aden it has been the Middle East or Prices and Incomes. This is just the sort of point which I should like to have the opportunity of discussing with my right honourable friend the Home Secretary and my noble friend Lord Stonham, which opportunity I have not had.
It is not an easy point. On the one hand, I personally have considerable sympathy with this Amendment. After all, this is really a historical accident. The grand jury, which left us only quite recently, always had to take an oath that they would never reveal what went on in the course of their proceedings, which the petty jury has never had to do. It has always seemed to me an odd thing that there has never been a law against a juryman in a sensational murder case telling a Sunday newspaper exactly what went on in the jury room. Juries cannot, I think, even be "run in" for contempt of court, because how can it be contempt of court to do something which the judge never tells them they must not do? I am told—I do not know whether it is true—that in some jury rooms there is a notice about this, cautioning them. This would appear to me, in a sense, to be telling them that something is the law, which it is not.
What we have been saved by so far, I think, is that everybody thinks there is a law against it. Indeed, when I have been asked by newspaper editors I have had some difficulty in satisfying them that there is not a law about it. I have always told them, "No, you are quite entitled to get a long article in your paper from a member of the jury explaining exactly what went on in the jury room." I have added, of course, "If you do it there jolly soon will be a law against it." But there is not at the moment; and there ought to be a law, because, although I have great confidence in juries as a whole, they sometimes do odd things, and it would only bring the whole system into disrepute if, when something odd happened, it was all in the papers.
368 There is a very well-known murder case in which, when the jury retired, the clerk of assize naturally went to his room. At that time there were alterations and decorations going on at the town hall: they were redecorating the room of the clerk of assize, and doing it in halves. They put a curtain down the middle of the room and decorated in one half so that he could use the other half. On this occasion the clerk of assize went back to his room, but he had no sooner sat down at his desk when he heard voices from the other side of the curtain, and he suddently realised, to his horror, that they had put the jury in the other half of his room. He thought about taking off his shoes and creeping out, but then he thought it would look rather odd if the clerk of assize was seen leaving his room with his shoes in his hand. So, rightly or wrongly, he sat there, hoping that he would not cough.
Shortly after that somebody, who he assumed was the foreman, said, "Well, I take it, then, that we are all agreed that he is not guilty?" Everybody agreed to that, and then somebody said, "I suppose we had better go back to court." But then somebody else said, "Well, counsel for the prosecution has been talking to us for an hour, and counsel for the defence has been talking for an hour and a half, and the judge has been summing-up for two hours. If we go back at once, won't it look as though we have not given the case proper consideration?" So they all agreed, and then they started talking about the Test match.
This went on for about 50 minutes and then there was a complete silence. This complete silence was broken by two people talking at once, and each of them said, "After you". Then one of them said, "I was only going to say that it is a funny thing, when you come to think of it, that he said that about the policeman." Then they started talking about the case again, and three-quarters of an hour later they came back with a verdict of guilty, and the man was duly hanged. That is one of a great many things which has always led me to think that men who are fallible ought not to be trusted with a punishment which is irreparable, because, of course, if somebody had not been too polite to go back at once, there would have been a verdict of acquittal.
369 Therefore, I do not think it would be a good thing if any juryman could sell his story to the newspapers, and I have a great deal of sympathy with the object of this Amendment. On the other hand, I do not think this Amendment could be accepted quite in its present form. I know that one of the things my right honourable friend is anxious to do is to have more research work in this field than we have had in the past. The noble and learned Lord the Lord Chief Justice and I, in the last year or two, have had a number of applications from research workers to be allowed to do research in this field—for example, by "bugging" a jury room. As long as I have any say in the matter, nobody in this country is going to be "bugged" without their knowing it; so that is out so far as I am concerned and, I think, so far as the noble and learned Lord the Lord Chief Justice is concerned. They have also asked whether somebody could sit in the jury room; but it seemed to me. and I think to both of us, that if a jury knows that somebody is sitting there taking notes they will not act in the same way as they would if they were entirely on their own.
In America some research work has been done by allowing research workers to ask juries privately what happened, with an undertaking that no particular case would be referred to. This, of course, would be much less objectionable. Indeed, I am not sure—this Amendment is in very general terms—that there is any real objection to people describing how things looked to a jury if they do not identify particular cases.
I remember an article by a man I happen to know. He had sat on several juries in London—I forget whether it was at the Central Criminal Court, but I think it was either at the London or the Middlesex Sessions—and from an advocate's point of view what he said was very interesting, because this was how things looked to an educated man on a jury. They did not like counsel standing too close to them; they did not like counsel who made jokes; and they did not like the way in which the witnesses for the prosecution, who sat in the back of the court after they had given their evidence, laughed openly at the witnesses for the defence when they were giving their evidence. Then, after 370 their first case, they were glad to find that the man they had convicted had several previous convictions, which the officer in charge of the case read out from a blue form; but they did not like the way in which, in subsequent cases, the inspector, who sat down in front of counsel, obviously shuffled his papers in front of them, including the blue form in the particular case, so that they would realise that this man, too, had previous convictions. It is rather interesting, certainly from an advocate's point of view, to know how things look to a jury.
In view of all those considerations, if the noble Lord, Lord Brooke of Cumnor, would be prepared to withdraw this Amendment I should be very happy to discuss the subject with my right honourable friend in order to see whether we could not accept it, no doubt with some adaptations to the way in which it is framed.
§ LORD PARKER OF WADDINGTON
I rise to express the hope that the Government will consider some clause on these lines. I say that really for the protection of jurors, for whom, on the whole, I have the most tremendous admiration. There have been cases drawn to my attention by the Recorder of the Central Criminal Court of jurors who have been approached by people wanting to know what happened in the jury room—and the reaction of the average and honest juror is outstanding. He is indignant, furious. Indeed, he writes to the court and says, "How can you let people know my name and address so that I may be approached in this way?" When it becomes known that the verdict may be a majority verdict, these approaches are likely to be far more numerous, and I think a clause on these lines is really necessary for the protection of the jurors themselves. I ought also to plead guilty. To a research worker who approached me to ask whether he could question a juror when a case was over, I said that I could not possibly give him any consent and that I did not even know whether the Lord Chancellor could give him any consent. But I ought also to plead guilty to saying to him: "Why don't you try it once or twice, and see what happens?" The reactions were extraordinary. I heard from the Clerk of the Central Criminal Court who had been approached by two jurors who were in complete fury 371 that somebody had approached them to know what had happened in the jury room. I think that is a very healthy sign. I believe that some clause on these lines would be an added protection to the juror.
§ VISCOUNT DILHORNE
I should like to add a word on this Amendment. I think this is an important proposal, and I do not believe it has been considered before. I was glad to hear what the noble and learned Lord the Lord Chancellor said in the first part of his reply. The response to the attitudes of jurors, to the conduct of advocates, to the conduct of witnesses who have given their evidence and to police sitting in court are very interesting indeed; but I am not concerned with them. What I believe we ought to preserve absolutely inviolate is the secrecy of what goes on in the jury room when the jury are considering their verdict. In these days it is very fashionable to talk about research and to give research workers all these facilities; but I believe myself—and there is no Party politics in this at all—that it is essential that research work should not take place into what goes on in the jury room when the jury are considering their verdict. I read the report of the American investigation into how juries had operated. I did not think it of very much value; I do not believe that information obtained from individual jurors after the trial is over is of very real value at all.
Therefore, I hope that when the noble and learned Lord the Lord Chancellor discusses this matter with the Home Secretary, not only will he be able to persuade the Home Secretary to accept some clause on these lines but he will also stand absolutely firm in resisting any attempt by anyone to find out what goes on when the jury are considering their verdict; because I think that would be very harmful. As the noble Lord the Lord Chancellor said, it is extremely curious that in the case of a court-martial members of the court take an oath not to reveal what goes on except under due authority, yet there is nothing of this kind in relation to ordinary jurors. One way of dealing with the matter might be to impose such an oath upon the jurors. I do not think that that alone would suffice; I believe there would have to be some deterrent to stop people from 372 bothering jurors in an endeavour to find out what is going on in the jury room.
§ LORD FRASER OF NORTH CAPE
May I say a word, as a layman? Does this clause apply to a juror talking to his wife about the proceedings? I feel that if it does, it will ruin hundreds of homes in this country.
§ LORD BROOKE OF CUMNOR
That is a very searching question. I am gratified that this new clause of mine should have received a welcome from such experts as the noble and learned Lord the Lord Chancellor, the noble Lord the Lord Chief Justice and a former Lord Chancellor. I fully appreciate that there is a great deal to be thought about, and that the noble and learned Lord the Lord Chancellor has not had sufficient time to discuss this in full with his colleagues and advisers. Nevertheless, I hope that he will feel able to say to the Home Secretary that this clause has had a friendly reception in your Lordships' Committee and that there appears to be a general feeling that, if possible, something should be done upon these lines. Having said that, I willingly beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 12:
§ Disqualification of ex-prisoners from serving on juries in criminal proceedings
§ (2) A person who serves on a jury in any criminal proceedings when disqualified by this section from doing so shall be liable on summary conviction to a fine not exceeding £100.
§ 9.5 p.m.
VISCOUNT DILHORNE moved, after subsection (1), to insert as a new subsection:
( ) A verdict of a jury shall not be invalidated by reason of the fact that a person disqualified by the preceding subsection has served on it.
The noble and learned Viscount said: The provision for disqualification of ex-prisoners from serving on juries in criminal proceedings has I think been generally welcomed, and was on Second Reading, but it seems to me that there is a gap in the statutory provisions. Suppose a case occurs where someone who is disqualified does in fact serve on a jury, and it is
discovered only after the jury has returned a verdict. What then is to be the position? The Bill is silent about this, and therefore I have put down this Amendment.
§ I do not know, but I hope that this w ill not happen—or at least that it will not happen often—but if a man has been through his trial and has been acquitted, surely the verdict should not be invalidated by reason of the fact that afterwards it is found that a man disqualified from sitting on the jury in fact sat on it. The same would apply in relation to a verdict of guilty. After a very long trial, should the whole thing be invalidated if it subsequently appears that a member of the jury which returned the verdict of guilty was, by reason of this clause, disqualified from sitting on the jury? I think it important that some clarification of this should be made in the Bill, and I have drafted this Amendment with that object in view. It may not be in the right place; it may not be in the right language, but that is the point with which it is intended to deal. I hope that I have made it clear to the noble and learned Lord the Lord Chancellor, and if I have, there is no need for me to say any more in moving this Amendment. I beg to move.
§ Amendment moved—
§ Page 11, line 8, at end insert the said subsection.—(Viscount Dilhorne.)
§ THE LORD CHANCELLOR
I appreciate what the noble and learned Viscount has said, but it would appear to me that this Amendment is unnecessary, because the fact that a juryman was disqualified would not in law make the trial invalid. I do not know whether the noble and learned Viscount has had an opportunity of considering the case of Rex v. Kelley, reported in  2.K.B., at page 164, where it was contended that there had been a mistrial in that one of the jurors was disqualified from sitting on a jury. The Court of Criminal Appeal took the view that once a person's name is on the jurors' books then, by virtue of Section 2(1) of the Juries Act 1922, he is liable to serve; and it was held that it is immaterial whether any person in the jurors' book called to serve on a jury has or has not claimed the exemption to which he is entitled; and immaterial that the electoral registration officer would not have included his name in the book if he had known of the disqualification.
374 The terms of the judgment are very wide indeed, and appear to me to suggest that if, for whatever reason, a juror is disqualified, this will not result in the trial being invalid. If the noble and learned Viscount has not had an opportunity of considering that case, and if he were to think it proper to withdraw his Amendment; and if, having considered that case, he was not satisfied by it, I should, of course, be very happy to discuss with him the point at issue. It is simply a question of law, and one would not want to take up the time of the Committee in unnecessarily discussing it further now. If that course commends itself to the noble and learned Viscount, perhaps he will consider and let me know whether or not he is satisfied with what I have said.
§ LORD MORRIS OF BORTH-Y-GEST
After what the noble and learned Lord the Lord Chancellor has said, it may well be that no legislation is being contemplated. I rise only to say, lest it may be of any help, that in the Committee to which reference has been made we did consider this matter. In paragraph 344 of our Report we said:It is clear that if our recommendations are accepted there may be occasions when, because questionnaires are incorrectly filled in, either by accident or design, jurors will serve who are by law not eligible or disqualified. We recommend that legislation should provide specifically that this will not affect the validity of the trial.Then we stated that it should be an offence, additional to the offence of answering the questionnaire untruthfully, for a person actually to serve on a jury knowing that he is disqualified or ineligible, and having failed to disclose the fact to the summoning officer or to the court. I mention that lest it might be of any assistance. Probably that recommendation was superfluous in view of what the noble and learned Lord the Lord Chancellor said, but we thought that it ought to be made clear that probably legislation would help.
§ VISCOUNT DILHORNE
I am grateful to the noble and learned Lord the Lord Chancellor for his reply. I must confess that I am not familiar with the decision to which he referred, but I have no doubt at all that he has correctly stated what is its effect. Assuming that to be the case, I would put this to the noble and learned Lord. An express 375 provision with the authority of an Act of Parliament included in the very clause which provides for disqualification would make it much easier for practitioners. They would see it straight away. Whether or not it makes any change in the law—and I am not suggesting that it does—I still believe, as did the Committee presided over by the noble and learned Lord, Lord Morris of Borth-y-Gest, that there is a case for putting in this provision. I would willingly discuss this with the noble and learned Lord the Lord Chancellor, but I feel that if we do not have it in we may cause a good deal of trouble, because people will look at this provision, wonder what is the effect of a disqualified juror serving, and then have to search for the required case. I cannot see that the insertion of this provision would do any harm. But I shall be glad to discuss the matter with the noble and learned Lord and in the meantime beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 9.14 p.m.
LORD BROOKE OF CUMNOR moved to insert at the beginning of subsection (2):
Notice of the provisions of this section shall be given to all persons summoned to serve on a jury in criminal proceedings and".
§ The noble Lord said: I beg to move Amendment No. 16, and with permission should like to discuss with it Amendment No. 17, because it was that which started me on my line of thought. It appears to me that a fine of £100 may not be a sufficient deterrent in this case, if there is any dirty work afoot. I am not prepared to say that all attempts to get at or corrupt members of a jury will cease immediately there are majority verdicts. The noble and learned Lord, Lord Denning, failed to carry his point, though his speech on Clause 11 impressed us all. He reminded us that if it was possible to corrupt two members of a jury it might be possible to corrupt three. Clearly, somebody with a criminal record who finds himself on a jury and is a likely subject for corruption, if I may put it that way, and knows that the worst that can happen to him is a fine of £100, will be fairly secure. That is why it appeared to me that the Bill should involve a fine considerably higher 376 than that. The figure of £500 is a spot figure. It might be some other amount. I submit to your Lordships that the maximum fine should be a definite deterrent to a man with a criminal record sitting on a jury and not disclosing that by that record he is disqualified.
§ Then it occurred to me that it would be somewhat unfair to render him liable to a substantial fine if no action had been taken to draw his attention to the state of the law. I agree that probably it might not need any statutory provision to ensure that members of a jury were informed of the disqualification that will be enforced by Clause 12, if this Bill becomes law, but it seemed to me that the right thing to do was to put down both these Amendments: first, to ensure that everyone summoned to serve on a jury in criminal proceedings would be given, without fail, proper particulars of the requirements of Clause 12; and secondly, that such a person, having received particulars of what Clause 12 provides, should then be subject to a really substantial fine if he failed to disclose that he was disqualified by Clause 12.
§ I trust that the Committee will be ready to consider these two matters together. I appreciate that the following Amendment in the name of my noble and learned friend Lord Dilhorne also bears on the same subsection. I greatly hope that the Government will see fit to make some move in the direction in which I have been arguing, because I do not feel satisfied that in the clause as it stands at present there is a sufficient deterrent to the disqualified and dishonest juryman. I beg to move.
§ Amendment moved—
§ Page 11, line 9, at beginning insert the said words.—(Lord Brooke of Cumnor.)
§ VISCOUNT DILHORNE
I do not know whether it would be for the convenience of the Committee to discuss Amendment No. 18, which is down in my name, at the same time. All these Amendments, as my noble friend has said, are related Amendments, and if it would be for the convenience of the Committee I would say just a word or two about my Amendment now, and then when the Lord Chancellor or the noble Lord, Lord Stonham, comes to 377 reply he can deal with the whole matter together.
I should like to say why I put down the Amendment. Your Lordships may remember that in the course of the Second Reading debate I expressed anxiety about the position of a man who had been in trouble and was disqualified but who since his punishment had done something to re-establish his reputation. I was worried lest he should find himself in the dilemma of either having to remain silent and serve when disqualified, thus running a risk of prosecution, or of having to state in open court, in public, his record which he was hoping that everyone would forget.
I was told, I think by the noble and learned Lord the Lord Chancellor, that in fact every single person who was required to serve on a jury would have notice of disqualification and an opportunity of saying in private, before it ever came into court, "I am disqualified". So far as that went, it was satisfactory. But I feel that there is no sanction behind the first Amendment moved by my noble friend. If that is not observed, nothing happens. A man ought not to run the risk of being fined up to a maximum, whether it be of £100 or £500, for serving when disqualified if he establishes to the satisfaction of the court—and by my Amendment the onus is put upon him—that he was not told when he received the summons to serve on a jury of the disqualification imposed. That should be a matter of defence for him if he was prosecuted.
I think that this is a slight modification of the Bill, but it is also some protection to the disqualified man against prosecution when in fact he has not been notified, perhaps through a slip, and has taken the choice of remaining silent and running the risk of prosecution rather than revealing in public his past.
§ THE LORD CHANCELLOR
If it is convenient to the Committee, I am quite prepared to deal with these three Amendments together, though, in a sense, one has to deal with them separately. So far as the first is concerned, it is simply a question of whether it is better to have something dealt with administratively or in the Act; and as Acts of Parliament are too long, if one can cut out something I should have thought it 378 was a good thing to do so. The practice which the Amendment is designed to secure is a sensible one. I said on Second Reading that what would be done was that an arrangement for warning notices in a standard form would be enclosed with every jury summons, setting out the general sense of the provisions of Clause 12, carrying the warning that if a disqualified person served on a jury he would be liable to a fine of £100 and advising disqualified persons to inform the summoning officer of the fact of his disqualification so that the summons could be withdrawn. If that is the proposed administrative arrangement, I am not clear what advantage is to be gained from putting it into the Bill.
I am told that so far as the wording is concerned it might to some extent have to be redrawn. But the position of the Government is that we do not feel adamant about this matter. If the Committee as a whole think it would be better to have it in the Bill than to leave it to an administrative arrangement, there would be no strong opposition so far as the Government are concerned. It may be that the wording would have to be considered; and it may be that the noble Lord, Lord Brooke of Cumnor, will think it proper to withdraw the Amendment on the footing that we should then discuss it and try to agree a right form of words, if the Committee thought it ought to be in the Bill.
With regard to the next Amendment, relating to the £100, the penalty of £500, I should respectfully submit, although the offence is a serious one, is really quite out of line. About 30 pages of this Bill is taken up entirely with trying to get the different maximum fines for different offences into some sort of order. As we all know, over the years a great many of them had become disproportionate to one another and quite out of date; and I think I am right in saying that something like 30 pages—that is, from about page 71 to page 104—are taken up entirely with trying to get fines into due proportion.
The £100 penalty for this offence has been fixed to accord with the penalties imposed for broadly similar offences under the Local Government Act 1933 and under the Representation of the People Act 1949. Under the Local Government Act, the maxim um penalty which 379 can be imposed for the offence of acting as a member of a local authority while disqualified is £50; and under the Representation of The People Act a fine of £100 can be imposed for the offence of voting when knowingly subject to legal incapacity. I appreciate that these cannot be said to be exact parallels of the offences under subsection (2) of Clause 12; but they provide a general guide to the penalties imposed for this kind of offence, and it is felt that in the present circumstances a fine of £100 should be a sufficient deterrent to prevent persons from serving on a jury while disqualified. The sum of £500, I should have thought, would in any event be inappropriate to this offence, since £400 is the maximum penalty which magistrates' courts would be empowered to impose for an indictable offence, tried summarily, and there would have to be quite exceptional grounds for specifying a higher maximum penalty for a purely summary offence.
The Government would not wish to depreciate in any way the seriousness of the offence of serving on a jury while disqualified, but one has to keep a sense of proportion. If, notwithstanding what I have said, it is felt that £100 is too little, the Government would consider an increase to £200; but having regard to the amounts fixed for other serious offences I do not think that £500 would be in the least in line.
§ THE LORD CHANCELLOR
Will the noble Earl forgive me? I had forgotten that I was going on at the same time to deal with the next Amendment, that of the noble Viscount, Lord Dilhorne, who has proposed the proviso that no one shall be convicted if he establishes to the satisfaction of the court that when he received the summons he was not told of the disqualifications imposed by the preceding subsection. The proposed means of notifying potential jurors is that warning notices in a standard form will be enclosed with every jury summons, setting out the general sense of Clause 12 and conveying the warning that should a disqualified person serve on a jury he will be liable to a fine of £100, or whatever it is, so that the summons may be withdrawn. These 380 forms will be sent out by very experienced staff and I should have thought it would be rather difficult for anybody to persuade a court that he had not received it. But, of course, if a court was satisfied that he had not received it, it is impossible to suppose that a penalty would be imposed. They would give him an unconditional discharge or something of the sort, and I should have thought in all the circumstances that this proviso was not necessary.
§ THE EARL OF IDDESLEIGH
I venture to hope that in considering this matter the interests of your Lordships will be considered. Criminals are not the only persons prohibited from serving on a jury. Your Lordships also are prohibited. I remember that some years ago a form was sent to me asking me to state any reason why my name should not be placed on the Jury List. Having read a little history, I scrawled "Magna Carta" across the form and sent it back; but some noble Lords here might not be as well informed as I was on that point, so I hope that Peers will receive quite as much protection as is due to criminals.
§ VISCOUNT DILHORNE
I personally think that the fine of £100 is too low for this offence. I do not think it necessary to fix a maximum perhaps as high as £400, but I would ask the noble and learned Lord the Lord Chancellor to consider whether something slightly in excess of £200 would not be right, for the reason that I think the cases to which he referred as being somewhat analogous are really quite distinguishable. I am concerned with the man who might be offered quite a substantial sum of money not to disclose his disqualification and to sit on the jury. With regard to my own Amendment, at the moment it would not be a matter of defence for a man to establish that he has not had the notice. If it be the case that the procedure which the noble and learned Lord has outlined is in fact followed, there will be no occasion for that defence; but things do happen. There may be a slip-up. It is an unlikely event, but I cannot see that it would do any harm to provide expressly in the Statute that it is a valid defence if a man serves without notice of his disqualification. I ask the noble and learned Lord to think about that again between now and Report stage. I 381 shall not press it on him, but I do not think it could do any harm.
§ THE LORD CHANCELLOR
I do not think it will do any harm and I am certainly quite prepared to consider it.
§ LORD BROOKE OF CUMNOR
At the end of what I am going to say I will certainly withdraw my Amendment No. 16, but first may I reassure the noble Earl, Lord Iddesleigh, by telling him that these Amendments refer only to Clause 12 of this Bill. It would affect only a person who served on a jury in any criminal procedings when he was disqualified by this clause. Unless he has served any part of a term of imprisonment during the past ten years he will be outside the mischief of whatever fine may be decided here. I am inclined to think, like my noble and learned friend Lord Dilhorne, that it would be a good thing to spell out what we all want in subsection (2) rather than leave it to administrative action. No doubt all this can be considered further by the Government before the next stage.
As to the amount of the fine, I shall not move Amendment No. 17 when we come to but I should like to put as forcefully as I can the point that this fine, in my regard, is not to be considered alongside the fines that we shall be examining for a large number of pages in one of the Schedules. My concern is about the disqualified man whose fine, if he gets fined, is going to be paid by some crook who thought that that juryman would serve his purpose. I do not really believe that a crook would be inclined to bribe a disqualified person to serve as a member of a local authority when disqualified. This is really a special case.
I therefore hope that the Government will favourably consider my suggestion, and that of my noble and learned friend Lord Dilhorne, that a figure substantially higher than £100 should be fixed. I noted that in Clause 3 the fine proposed for an editor who offends under that clause is a fine not exceeding £500 on summary conviction, and it seemed to me not unreasonable to suggest a fine of £500 here. But I am quite content that all these matters should receive further consideration, and I am grateful to the noble and learned Lord the Lord 382 Chancellor for his approach to the whole matter. I beg leave to withdraw Amendment No. 16.
§ Amendment, by leave, withdrawn.
VISCOUNT DILHORNE had given Notice of an Amendment, to add to subsection (2):
Provided that he shall not be liable to be convicted if he establishes to the satisfaction of the court that, when he received a summons to serve on a jury, he was not told of the disqualifications imposed by the preceding subsection.
§ The noble and learned Viscount said: I see the noble Lord, Lord Stonham, indicating to me as if I should move this Amendment. I am perfectly willing to do so, but I thought we had left the flatter over for discussion at the next stage. I think the noble Lord was signalling that I should move it.
§ Clause 12 agreed to.
§ Clauses 13 and 14 agreed to.
§ Clause 15:
§ Restrictions on refusal of bail
(5) The foregoing provisions of this section shall not require a magistrates' court to remand or commit a person on bail—
(a) where he is charged with an offence punishable by that court with imprisonment for a term of not less than six months and it appears to the court that he has been previously sentenced to imprisonment or borstal training;
§ 9.33 p.m.
LORD BROOKE OF CUMNOR moved to add to subsection (5)(a). "or detention in a detention centre." The noble Lord said: I beg to move Amendment No. 19. I attach a much greater degree of importance to this Amendment than to the last one which I had the privilege of moving. Clause 15 is entitled "Restrictions on refusal of bail", and subsection (5) of the clause, which I am seeking to amend, says:
The foregoing provisions of this section shall not require a magistrates' court to remand or commit a person on bail—
(a) where he is charged with an offence punishable by that court with imprisonment for a term of not less than six months and
it appears to the court that he has been previously sentenced to imprisonment or borstal training".
I entirely agree with that, but I cannot understand why the sentence of detention in a detention centre is not included along with a sentence of imprisonment or borstal training.
§ Magistrates do not lightly send a young man or woman to a detention centre. There are many other ways in which it is open to them to deal with a young offender. Detention in a detention centre is a relatively recent innovation in our penal code, and I personally think a most desirable one, though I would agree that everything depends on a right choice by the magistrates as to those who are sent there. But though I have never been a magistrate myself, I have made some study of detention centres, and I certainly never found there, or expected to find, anyone who had not been in fairly serious trouble or created fairly serious trouble, as some of the young do.
§ It appears to me that if somebody has served a sentence of a month's imprisonment then, under subsection (5), the magistrates will not be required to remand him on bail. But if what has happened is that he has been to a detention centre for three months, nevertheless the magistrates will be required to remand him on bail. I simply cannot understand this. I have read the proceedings in another place, and I cannot find that this matter was discussed at all. I am sure that it should be taken seriously. I know that numbers of magistrates are concerned about this. It is a restriction on the powers of magistrates.
§ I feel most strongly with the Government that there tend to be an excessive number of remands in custody, but that does not mean to say that one should deprive magistrates of a discretion which they seriously and deeply feel they ought to retain. I believe that is the case as regards those who have been sentenced to detention in a detention centre, and unless the noble Lord, Lord Stonham, can convince me that there is a strong reasoning behind the exclusion from this list of detention in a detention centre, I greatly hope that noble Lords will back me in my attempt to get it written into the Bill. I beg to move.384
Page 13, line 11, at end insert ("or detention in a detention centre.")—(Lord Brooke of Cumnor.)
§ 9.39 p.m.
§ LORD STONHAM
I agree with the noble Lord, Lord Brooke of Cumnor, that this is an important matter and I can appreciate that he attaches great importance to it. I cannot understand why he was unable to find that anything was said about this matter in another place, because the words which he proposes to insert in the Bill now were included in the Bill originally, but they were removed by the Government in Standing Committee in another place. Although I read every word of the Standing Committee proceedings I cannot say whether there was a long discussion on this matter, or indeed whether there was a Division on it.
§ LORD BROOKE OF CUMNOR
Perhaps it may help if I observe that a number of Government Amendments were taken together in Committee, and, so far as I could ascertain, not one word was said about this one. It may be that some of my honourable friends were at fault, but it slipped through in Standing Committee without any debate at all. I cannot say why.
§ LORD STONHAM
I must immediately acquit the noble Lord's honourable and right honourable friends of any fault at all. They discussed the Bill in Standing Committee for 19 full Sittings, and some of the matters were taken at very great length. Therefore I do not think they allowed anything whatever to slip through. I can only suggest that in another place the noble Lord's right honourable and honourable friends were so convinced of the rightness of this decision that they did not think it merited any very lengthy discussion. At least I hope he will accept that they acquiesced in it. The noble Lord said that magistrates do not send young people to detention centres lightly; and I entirely agree. It is equally true that there are a great many cases involving young offenders, particularly those who may have committed an offence which we should regard as serious, but who have not gone very far along the criminal path. One is at great pains to try to find a place for them in a detention centre rather than to send them for two 385 years to borstal, and certainly rather than to send them to prison.
After the Second Reading of this Bill in another place the Government gave careful consideration to the comments of many people well qualified to form an opinion on the clause, and it seemed to us that, bearing in mind the already restricted scope of the clause, it would be possible to reduce the scope of the exceptions in paragraph (a) of subsection (5) and so tighten the restrictions on remands in custody. In effect, paragraph (a) makes it possible, notwithstanding the general restriction, for a magistrates' court to refuse bail where the defendant has a bad record. The Common Law has always regarded the defendant's record as a proper factor to be taken into account. The dominant question when bail is being considered is whether the accused will appear at his trial if released on bail. It has always been recognised that the more severe the punishment the defendant is likely to receive, if convicted, the more likely is he to want to evade that punishment.
The question raised by the noble Lord, Lord Brooke of Cumnor, is whether a previous sentence of detention should be taken into account in the same way as one of imprisonment or borstal training. We do not think so. As my noble and learned friend the Lord Chancellor explained on Second Reading, a sentence of detention is often passed for comparatively minor offences which would not merit imprisonment or borstal training. I think it would not be an exaggeration to say that when the noble Lord, Lord Brooke of Cumnor, was Home Secretary he was in large measure responsible for the more rapid development of detention centres in this country. I feel he will agree with me that he was responsible for encouraging the development and the provision of detention centres in this country and the reputation which they had of a "short, sharp shock". If I may say so, we have been at pains for some years to eradicate and eliminate that reputation. Detention centres—and I have no doubt that the noble Lord has visited many, as I have—are exclusively places of training. A great deal of that training is of course of a physical character, and a great deal is also of an educative character.
386 The basis is very different indeed from either imprisonment or borstal. To start with, a boy sent to borstal can be there for as long as two years. In the main, a boy sent to a detention centre goes there for three months nominal, which means between eight and nine weeks. There is indeed a very great difference, and the basic difference which is here embodied in the present clause, and which is the reason why I hope the noble Lord will agree to withdraw his Amendment, is that we do not want new offenders—those young ones who are, as it were, starting on a path of crime—to become conditioned to imprisonment. In our view, they will not be if they go to a detention centre.
One of the primary objects of Clause 15 is to avoid conditioning people to prison and so blunting the deterrent effect of custodial sentences. In the case of a defendant who has obviously been to prison or borstal the damage is done: the conditioning has already occurred; and to send him to prison on remand is not likely to do further harm to him in that regard. But, in our view, this is not the case with a person who has previously been only in a detention centre. Therefore we regard the exclusion of such a sentence from the exceptions in paragraph (a) as justified.
I do not know whether the noble Lord has seen recent figures of the success rates in detention centres, but they are extremely encouraging. I find them very encouraging, and I do not regard these sentences as a basic element in the penal structure for those who are becoming confirmed on the path of crime. They are a penultimate stop enabling us to rescue a high proportion from the path of crime. I regard them as very much distinct from either borstal or imprisonment, and the fact that we have excluded them from paragraph (a) is a very right decision. I do not know whether I have convinced the noble Lord, but I hope that I have and that he will withdraw his Amendment. But, if not, I hope your Lordships will agree with me that this is an Amendment which we should not accept.
§ LORD PARKER OF WADDINGTON
I so agree with Clause 15 as a whole that I hesitate to ask the Government to think carefully about what I am sure is an improvement, as suggested by the noble Lord, Lord Brooke of Cumnor. 387 I can quite understand the argument that a sentence to a detention centre and a sentence to imprisonment are different in kind. Unfortunately that is theoretical, because in practice they are not pure alternatives. If everybody whom magistrates desired to be sent to a detention centre could go to a detention centre, that would be one thing. But everybody knows that there are not enough detention centres, and what happens is that magistrates, not being able to send a prisoner to a detention centre, have to sentence him to imprisonment.
The result is that, merely because a detention centre could not be found on an earlier occasion and the man was sent to prison, he may not get bail, whereas, as the clause stands, the lucky man for whom there was a position in a detention centre cannot be remanded in custody. They are not pure alternatives. It is purely fortuitous now as to whether a man goes to a detention centre or to imprisonment. The irony of it is that, although often magistrates cannot find a detention centre to take a man and have to send him to imprisonment, quarter sessions get more favoured treatment; and when he comes to the Court of Appeal there is always a vacancy available. As the position stands at the moment—and it is purely fortuitous—I think that certainly a detention centre ought to be added in the way suggested by my noble friend Lord Brooke of Cumnor.
§ VISCOUNT DILHORNE
In the light of what has been said by my noble and learned friend the Lord Chief Justice and my noble friend Lord Brooke of Cumnor, I must say that I believe there is a very strong case indeed for this Amendment. I listened with the greatest attention to what the noble Lord, Lord Stonham, said. I hope he will not mind my saying that I thought his observations were singularly unconvincing, and not wholly relevant to the question at issue, because what we are considering here is whether there shall be a discretion on the part of magistrates to grant bail to someone who has been sentenced to a detention centre, or whether it should be mandatory upon them to grant him bail.
It is all very well for the noble Lord to tell us of the distinction between bor- 388 stal training and detention, and of the very satisfactory results that are now being produced at detention centres. I am very glad to hear it. But the question here is: what should be the power of the magistrates in relation to someone who has been at a detention centre and who then comes before the court charged with another offence? It seems to me to be ridiculous that the magistrates should have no discretion in the matter, but should have to grant bail to that young man who has been sentenced to detention. I believe that the magistrates ought to have a discretion. I cannot see any reason why they should not have it, and nothing the noble Lord has said leads me to see any reason why they should not have it. I therefore hope that my noble friend will press this Amendment, and if he does I shall be glad to support him.
§ 9.53 p.m.
§ LORD BROOKE OF CUMNOR
I must confess that I was not convinced by the reply of the noble Lord, Lord Stonham. He seemed to base it partly on the fact that there is a great difference between a sentence to a detention centre and a sentence to imprisonment or borstal training. Of course they are different sentences, but I am not prepared to say that the difference between a sentence of a month's imprisonment and a sentence of three months in a detention centre is such that one should take away from the magistrates all discretion in the case of the latter. Of course I entirely agree that detention centres aim, or should aim, at being educative. I do not think I ever used the phrase, "short, sharp shock"—at least, I hope I never did. Indeed, in my early days as Home Secretary it was a great concern of mine to try to ensure that there was more useful training and more useful work done in detention centres, and that it was not simply a matter of rigid discipline all day; and I greatly welcome all further advances that have been made to that end. I am quite sure that different people should be sent to detention centres from those who are sent to borstal, although in my ideal world there would not be a very great difference in the quality and character of the training as between detention centres and borstals.
The noble Lord also said that if my I Amendment were carried it would mean 389 that many young people who had been sent to a detention centre would then get their first taste of prison on remand. I had always hoped that it was the desire of the Government to avoid sending people on remand into ordinary prisons, and that we were going to see a great development of remand centres and the like which would avoid those who were remanded in custody being put among prisoners. Again, the noble Lord's argument was that this would mean that virtually all these people would be sent to prison; that they would be remanded in custody and would go to prison. That is not what I am seeking. I am seeking that the magistrates should have discretion.
If the noble Lord reads subsection (5) he will see that it definitely indicates not that the magistrates shall be prevented from remanding on bail the people covered by paragraph (a) but that they shall have the option whether to remand them on bail or in custody. It seems to me that it is a perfectly reasonable option for the magistrates to exercise; and I should have thought that in the minds of the magistrates there might be considerable disquiet about being compelled by Statute to remand somebody on bail if he had previously committed an offence serious enough to merit a sentence of detention in a detention centre. I am sorry to disappoint the noble Lord, but I attach so much importance to this Amendment that I am not disposed to withdraw it.
§ LORD STONHAM
I am sorry if I have not convinced the two noble and learned Lords and the other noble Lord who have spoken in support of this Amendment; but I am bound to say that I was completely unconvinced by their arguments. In particular, I thought that the noble and learned Viscount, Lord Dilhorne, ignored completely in his remarks all the other subsections of this clause—where, indeed, there are many exceptions apart from paragraph (a). The noble Lord, Lord Brooke of Cumnor, particularly in his second speech, seemed to contradict himself. He assured us that he was very much opposed to remanding young people in prison—indeed, I thought that that was the main object here. But acceptance of his Amendment would greatly increase the risk that young people would be remanded to 390 prison; in other words, would be sent to prison. We are talking here about young people who have never been sent to prison before. They may be guilty as charged; but they may not.
The noble Lord said he was not anxious to send young people to prison on remand but that he was anxious to give magistrates the discretion whether or not they should be so sent. The whole object of this clause is to limit that discretion; and the reason for limiting that discretion is in our view, a view which I thought was universally accepted, that far too many people were being remanded in custody—something like 34,000 to 35,000 every year—and that more than half of them either were not convicted subsequently or were charged with offences not deemed of sufficient seriousness to merit sending them to prison.
It is all very well for the noble Lord to argue about that discretion. Magistrates have had that discretion all the time. The result of that discretion—and this is a general view; the view that the noble Lord accepts, the view that everybody accepts—is that far too many people have been sent to prison on remand. This means they have experienced prison when there was no need for it. We are now considering only the comparatively limited category of young people who have committed an offence which has warranted a spell in a detention centre of three months, less remission. The Government are arguing, after the most careful consideration, that magistrates should not be able to remand such offenders in custody, unless of course they come under any of the other provisions in this clause; for example, if they are charged with having committed an indictable offence—in other words, another rather more serious offence—then this prohibition does not apply, together with all the other subsections, which might mean that there would be no mandatory grant of bail.
The noble and learned Lord, Lord Parker of Waddington, also supported this Amendment. He said (I am paraphrasing his words) that borstals and detention centres are different in kind. In my submission, they are different in fact and different in régime. They are intended to be different in respect of the type of young, offender who is sent to a detention centre. The noble and learned Lord, Lord Parker 391 of Waddington, argued that because there are not sufficient places in detention centres for all the young people whom magistrates would like to send there, in preference to sending them to prison or borstal, that was an argument for the Amendment. I submit that it is an argument for more detention centre places, which is precisely what we are providing as quickly as possible. It is not an argument for putting something in a Statute for which, in my submission, there is no justification. In other words, the argument that because there are not enough detention centre places—and I admit that there are not—you should therefore not make it mandatory for magistrates to grant bail to offenders, or alleged offenders, who had been in detention centres is something with which I must flatly disagree. I cannot see that it is an argument which would stand up, however eminent its source.
I would say to the noble and learned Lord the Lord Chief Justice—if his point was that a sentence of imprisonment may be necessary because there is no detention centre vacancy—that the point we are discussing here is whether a defendant has in fact been in prison before, and therefore whether he has already been
THE DEPUTY CHAIRMAN OF COMMITTEES
As it appears that fewer than 30 Lords have voted, in accordance with Standing Order No. 51 I declare the Question not decided, and, pursuant to that Standing Order, the House will resume.
§ House resumed.