§ 53 Insert the following new clause:
§ Peremptory challenge of jurors459
§ 53AThe Lord Gifford to move, That this House doth disagree with the Commons in their Amendment No. 53.
§ [Amendment No. 53A not moved.]
§ Lord HARRIS of GREENWICH
My Lords, in the absence of my noble friend Lord Gifford I think that I should move that this House doth agree with the Commons in their Amendment No. 53.
Section 12(1) of the Juries Act 1974 provides that a person on trial for an offence on indictment may challenge not more than seven jurors without cause and all or any of the jurors for cause. This new clause would have the effect of reducing from seven to three the number of challenges without cause, or peremptory challenges as they are normally called, permitted to each defendant in such circumstances. It reflects the growing criticism that the defendant's right of peremptory challenge is being increasingly abused by certain defence counsel who hope, by its manipulation, to secure a jury which they feel will be more likely to favour their client's case. Having considered these criticisms most carefully, the Government have come to the conclusion that it would be wrong to permit the present system of peremptory challenges, whereby each defendant can challenge up to seven jurors without showing cause, to continue unaltered.
§ Moved, That this House doth agree with the Commons in the said Amendment. —(Lord Harris of Greenwich.)
§ Lord WIGODER
My Lords, I am sorry that the noble Lord, Lord Gifford, is not here to move Amendment No. 53A because this is a matter that requires some little attention, and perhaps rather more attention than it received in the other place, where the issue was disposed of extremely rapidly with very little argument on either side. I have no intention of standing in in place of the noble Lord, Lord Gifford, because I support the Amendment as it was passed in another place—which is that there should be a reduction in the number of jurors who may be challenged without cause.
I should like to make three comments on this proposal. First, there is not and there never has been any magic in the number seven, which is the present number of jurors who may be challenged without 460 cause. I suppose that there was a theoretical argument that seven was one more than half the number of the jury and therefore if one objected to a jury as a whole one could get rid of over half of them before the trial started. I doubt whether that argument has any force any longer; certainly it cannot have had since majority verdicts came into force, which means that the number seven no longer has any magic power about it. Therefore, a lesser number might well be substituted for the figure seven.
Secondly, I hope that the noble Lord, Lord Harris of Greenwich, will forgive me if I dissociate myself as strongly as possible from his observation that the present right of challenge without cause has been abused. It has not been abused and it cannot be abused. There is a complete and absolute right in a defendant and, through a defendant, his legal representative to challenge a juror for any reason or for none, for good reason or for bad; because he does not like the colour of his hair or the colour of his skin; or because he does not like the political content of the newspaper that he happens to be carrying with him into the jury box. Any defendant, or any member of the Bar on a defendant's instructions, who has challenged seven jurors in those circumstances has been fully entitled to do so, and I am sure that the Bar would not accept the criticism that the system has in any way been abused. The system exists, with a complete, absolute unarguable right and it is, indeed, an abuse of language to suggest that any defendant can be abusing a system in exercising his rights.
The third observation I wish to make—and it is this that leads me to think that it might be sensible to reduce the figure from seven to three—is that these days there are a number of very long trials in the course of which a very large number of defendants appear in the dock; many of us would say that very often there are too many defendants. However, it is not in any way unusual to start a long trial with 10, 15 or sometimes 20 defendants in the dock. Indeed, on one occasion I represented 38 defendants who could not all get into the dock because of sheer weight of numbers.
At the beginning of a trial each defendant has at present a right to challenge seven jurors, which has to be taken into account. 461 One must take into account the fact that some jurors may be challenged for cause; one has to take into account the fact that if it is a long trial a large number of jurors who are called into the box will say that they cannot serve for reasons of personal hardship. In the result it is no exaggeration to say that before a long trial starts some 200 to 300 members of the public are called to court and wait at the back of the court in order that 12 of them might be chosen to serve on a particular jury.
That is a very great waste of public time and public expense and it is a great inconvenience to those people who are called. It does not lead the jurors who are not chosen to respect our system of law. In these circumstances, it is perhaps right that the right of summary challenge—that is, of peremptory challenge—should be maintained but that a reduction in the numbers could properly be made without in any way impairing a defendant's right to a fair trial. Therefore, I venture to support the Amendment in the form in which it has come back from another place.
§ The Earl of MANSFIELD
My Lords, I was intrigued by the remark of the noble Lord, Lord Wigoder, that counsel have never abused the right of peremptory challenge. I well remember that I used to abuse it when I defended robbers. I want to ask the noble Lord, Lord Harris of Greenwich, whether the system still continues. I have on occasions, in company with the noble Lord, Lord Wigoder, defended a number of "high-class robbers", if I may so call them, so I know what used to happen. We got hold of the roll of jurors at the Old Bailey and used to go down it; anyone who came from W.1 or S.W.3 was immediately challenged by one of us. Equally, if there was a lady on the jury who looked what I might call "well turned out and presentable" she also was challenged.
There was absolutely no doubt that we could influence the composition of a jury if there were five or six robbers before a court by means of 35 challenges, so that eventually we got a layabout lot of unemployed males on the jury. If that system still prevails, I support Amendment No. 53. However, if it does 462 not and defendants really are left to peremptory challenge—which simply depends on the appearance of the would-be juror—then I think it is pointless.
§ Lord HALE
My Lords, I am grateful to the noble Lord, Lord Wigoder, for his comments. Like the noble Lord, I am sorry that the noble Lord, Lord Gifford, did not move his Amendment. I imagine that he did not anticipate that we should have dealt with 50 or 60 Amendments by 4.30 p.m., including a Statement. I must say that I had the same feeling; I never thought that we should be able to do so either. When we move Amendment No. 20 with Amendment No. 78, Amendment No. 103 and Amendment No. 139, someone might wonder what the common or garden Back-Bencher can do except shuffle papers like a pack of cards and fail to find the ace.
I entirely agree with the comment of the noble Earl, Lord Mansfield. In the provinces we used to obtain a copy of the jury list and probably in serious cases where our clients were liable to a considerable charge we looked down it —we usually employed a retired policeman for the purpose. If he came back on a case involving drink and said that one of the jurymen was the president of the teetotallers' Association, we put a tick against that man. In Ireland, where deep religious issues were involved, there used to be—and it was not considered to be terribly wrong—a famous Lord Chief Justice who was colloquially called "Peter the Packer" because he could pack any jury, and by some mysterious means when there was a Catholic in the dock 12 Protestants were invariably summoned to sit in the jury box. If he was asked his reasons—and he was a very cheerful and witty man—he would say, "It is the only way of getting a conviction in Ireland", which is true. On the other hand, it is not the duty of a solicitor or an advocate for the defence greatly to assist in securing a conviction. So it was a valuable right.
I should not want to press this any further because, as one knows, the pressure on the courts and the multiplicity of actions in the courts make jury service a very considerable burden on people, and one many people are reluctant to undertake. In those circumstances, and with reluctance, I am not prepared to 463 suggest that opposition to the Commons Amendment goes any further. Whether or not it will be good I am not sure.
§ 4.10 p.m.
§ Lord SIMON of GLAISDALE
My Lords, I should also like to support the Commons in their Amendment. As the noble Lord, Lord Wigoder, said, it is perhaps wrong to speak of an abuse of a constitutional right, but undoubtedly it is a misuse to use the right of challenge to get a jury which is other than what a jury should be—namely, a microcosm of the whole of our democratic society. It was always said that, in Ireland in the last century, the Crown counsel automatically challenged any man who came into the jury box without a collar on. Obviously if everybody without a collar has to stand by for the Crown, the jury is unlikely to be a microcosm of society. I entirely agree that where one has a multiplicity of defendants, to allow each to challenge without cause seven people coming into the jury box is inherently likely to get a jury which is other than a complete microcosm of society, and I think is a misuse of a constitutional process.
§ Lord PONSONBY of SHULBREDE
My Lords, I, like the noble Lord, Lord Wigoder, am sorry that the noble Lord, Lord Gifford, has been unable to be here this afternoon to press his Amendment, because I must confess some worry about the Commons Amendment in this case. As has been said, the essence of our jury system is that a man is being tried by his fellow citizens, or by a microcosm of his fellow citizens as seen in the jury. It is important that it should be seen from the prisoner's point of view that the jury does in fact represent that microcosm of society.
One can think of the cases when the person to be tried is a woman, for example, or is a member of a particular racial group, when the counsel defending a particular client will want to be sure that in fact that particular constituent of society as a whole is adequately represented in the jury. It may take a number of challenges in order to bring that section of the community on to the jury. Therefore, the fact that one is proposing to reduce the number of challenges from 464 seven to three seems to me to make it that much more unlikely that one will in fact get a microcosm of society as a whole on a particular jury.
§ Lord HARRIS of GREENWICH
My Lords, I shall speak only briefly in reply because I think that all who have spoken have, broadly speaking, accepted the Commons Amendment, with the possible exception of my noble friend Lord Ponsonby. I would settle with the noble and learned Lord. Lord Simon of Glaisdale, for "misuse" of the present system rather than "abuse", if I can carry the noble Lord, Lord Wigoder, with me in that, although I am bound to say that what we were told by the noble Earl, Lord Mansfield, sounded rather more like abuse than misuse of the present system.
§ The Earl of MANSFIELD
My Lords, I must set the record straight. When appearing on behalf of the Crown I used to stand by jurors on behalf of the prosecution just as shamelessly.
§ Lord HARRIS of GREENWICH
My Lords, this has been a fascinating exercise, certainly, to a non-lawyer like myself, who has been aware of the mounting concern about the practice of a number of counsel in using the peremptory challenge very vigorously. I have found this a highly educational experience, as I think have all others who have sat here during this short debate.
Let me give one or two examples of the sort of problem with which we have been confronted. I think that the noble Earl, Lord Mansfield, invited me to do just that. In a case at the Old Bailey in March 1973, seven defendants were charged with offences involving conspiracy to defraud. They initially challenged approximately 40 jurors off the jury and when, subsequently, following the arrest of another person in the same connection, a new jury was empanelled to try the case, they challenged another 22 potential jurors. In the opinion of the trial judge, those challenges seemed designed to secure a jury of people who would be unlikely to understand the intricacies of fraud. To me, that sounds an extremely disturbing situation.
It is important to maintain the confidence of the accused person that he will 465 be tried fairly, and I think that what is provided for in these Amendments will achieve that. There will still be three peremptory challenges for every defendant. It is also important to maintain public confidence in the administration of the criminal justice system of the country. I do not believe that practices of this sort create that climate of confidence. Nor do they do so in the police service, whose interests should also not be totally ignored in considerations of this sort.
§ On Question, Motion agreed to.
§ [Amendment No. 53A not moved.]