§ 11.23 a.m.
§ The LORD CHANCELLOR
My Lords, I have to repeat, with your Lordships' permission, a Statement which my right honourable friend the Attorney-General has made this morning in another place on the subject of jury checks. The Statement is as follows:
"I have now completed the review, which I have been carrying out over recent months in consultation with the Home Secretary, the Lord Chancellor and the Director of Public Prosecutions, of the arrangements whereby jury checks are carried out in a limited number of cases under the guidelines laid down by my predecessor. In reaching my conclusions I have taken account of the recent judgments of the Court of Appeal, particularly that in the case of R v. Mason. A copy of the revised guidelines 1183 which I propose to issue has been placed in the House of Commons Library.
"The existing law provides, as it has for over 600 years, and rightly in my view, that the parties to any jury trial may inspect a copy of the panel from which the jury in their trial will be chosen, and there is no legal restriction on the use which may be made of this information. It has been accepted by the courts that the objects of this provision were to enable the parties to inquire about the members of the panel and to decide whether any should be challenged. I have also taken into account that, although the selection of those who are summoned for jury service from among those qualified and the final selection of those who are called to serve on a particular jury must be random, both parties to criminal proceedings have the right to object to a juror called to serve, the exercise of which inevitably limits the truly random nature of the jury which eventually tries the case.
"A distinction must be drawn between checks to which my guidelines refer—namely, checks on the Records of Police Special Branches—and checks of criminal records which may be made for the primary purpose of preventing persons who are disqualified by reason of their previous convictions from sitting on a jury. It is a criminal offence for a disqualified person knowingly to serve on a jury and a check of criminal records of the members of a panel is a matter for the police. That was recognised by the Court of Appeal in R v. Mason as a proper thing to be done. The Association of Chief Police Officers, after discussions with the Home Office, is making recommendations to its members as to the circumstances and procedures relating to checks on criminal records, and these will be annexed to my guidelines.
"The checks, which for convenience I shall refer to as 'authorised checks' and to which my guidelines refer, are checks which go beyond criminal records and for purposes wider than the mere discovery of previous convictions. I consider that it is in the public interest that the prosecution should continue to make use of its right to make inquiries about a jury panel with a view to exercising its right to stand by a potential 1184 juror. The practice, however, should not be unlimited and I therefore endorse the general principles of the previous guidelines, which were self-imposed restraints on the part of the Director as prosecutor. "Experience, recent observations of the Court of Appeal and a keen public interest in the subject have nevertheless caused me to make some revisions to the guidelines. The most significant are as follows:—
- (i) No check on the Records of Police Special Branches will be made except on my authority "—
- that is, of course, my right honourable friend—
- "following a recommendation from the Director of Public Prosecutions.
(ii) Except in terrorist cases such checks will not be authorised in cases involving so-called strong political motives. (iii) In cases involving security, such as under the Official Secrets Act, such checks will only be authorised when national security is involved and it is expected that the Court will be asked to sit in camera. (iv) In no other type of case will such checks be authorised. (v) Except where and in so far as it may be necessary to confirm the identity of a member of the panel against whom the initial checks raised doubts, checks will not be made which go beyond checks on criminal records or those of Police Special Branches. (vi) All parties to proceedings have a statutory right of access to inspect the jury panel under Section 5(2) of the Juries Act 1974. Therefore the judge's authority for access is not required and will not be sought. However, the judge and defence counsel will be informed when a check has been authorised. (vii) The result of an authorised check will be sent to the Director of Public Prosecutions. The director will then decide, having regard to the provisions of the guidelines, what information ought to be brought to the attention of prosecuting counsel. (viii) Records will be kept by the Director of Public Prosecutions whichthe first person singular is, of course, my right honourable friend— 1185 I will see and thus be able to monitor the operation of the guidelines".—
"I have recognised that the defence may have a particular reason to wish to have the panel checked for disqualified persons or to seek assistance in obtaining information relative to its right of peremptory challenge but has no access to the information available to the Crown. It is also my view that the courts have no jurisdiction to order the police to reveal information on their records relating to jurors. Accordingly, in cases which would fall within my guidelines, I will he prepared to consider a request made by defence counsel through the director for assistance in obtaining information. I understand that chief constables, on the general recommendation of their association, will be prepared to consider a request relating to checks on criminal records if approved by the director. In both cases the results of any check undertaken will be sent to the Director of Public Prosecutions who will treat them in accordance with my guidelines. The intention of this proposal is merely to assist the defence and not in any way to restrict the right of the defendant to inspect the panel and to take such action as is lawful".
My Lords, that concludes the Statement, but it may be helpful to your Lordships to know that I have caused a copy of my right honourable friend's guidelines to be placed in the Library of this House as well.
§ 11.32 a.m.
§ Lord ELWYN-JONES
My Lords, while we are all grateful to the noble and learned Lord for this morning reading this lengthy Statement of the Attorney-General, I really must make some protest about what is taking place. This is a tremendously important Statement; that it should come before this House on a Friday morning is really intolerable. There are many of my friends in the legal profession who would greatly have liked to be here. I think, for instance, of the noble Lord, Lord Wigoder, and others. I, myself, saw the Statement for the first time at five minutes to eleven this morning. This is no way to treat this House. I do 1186 protest most strongly. This is a very important Statement governing a vital aspect of the civil liberties of this country; namely, the right to trial by jury. "The palladium of our liberties" and all sorts of other noble phrases have been applied to it through the generations. In particular, there has been a great deal of concern about the nature and extent of jury vetting.
I should like to ask a number of questions. What troubles me is this. This Statement calls for a debate, and unfortunately I see little prospect of that being possible within the coming week. But I do give notice that we shall need to return to this in detail and with care as soon as the House resumes in October. In the meantime, I must ask the noble and learned Lord what consultations took place before the preparation of this Statement. What consultations took place with the legal profession, with the Bar, with the criminal Bar, with the solicitors, with the various bodies intimately concerned—the National Council for Civil Liberties and other bodies? The Statement itself speaks only of consultation with the Home Secretary, the noble and learned Lord the Lord Chancellor—which, of course, I appreciate —and the Director of Public Prosecutions. There is no clue to consultation outwith the Government departments themselves, and if that is in fact the position I find it highly unsatisfactory.
I come now to the points of detail. I do not know whether noble Lords who have been listening to the Statement have been able to come to a conclusion that the outcome of all this is going to be more or less jury vetting; it is not clear, and we shall need time to consider it. As I understand it, the basic principle that selection of the jury must be a random selection remains; but when one comes to consider, for instance, what has been done by chief police officers, there has been a certain lack of uniformity in what they have regarded it as proper for them to do. I hope that the references to decisions of the Association of Chief Police Officers will establish uniformity of practice and conformity with the guidelines.
We are, of course, grateful to the noble and learned Lord the Lord Chancellor for saying that he has put the guidelines 1187 in the Library, but they were not there when we arrived this morning; at least I have not had an opportunity of seeing them. So I really find myself embarrassed on this occasion in dealing with the Statement, and accordingly I must reserve our position on this side of the House in regard to what is proposed. There is an indication, which I welcome, that defence counsel are to be informed and to be assisted in various ways; we shall have to see how that operates. Am I to understand from the Statement that these new guidelines will operate forthwith, before Parliament has had a further opportunity of considering them? That, again, I would not regard as wholly satisfactory, and I should be grateful if the noble and learned Lord would assist us in dealing with a situation which this morning I have found, frankly, quite intolerable.
§ 11.36 a.m.
My Lords, in thanking the noble and learned Lord the Lord Chancellor for repeating this Statement, may I join with the noble and learned Lord, Lord Elwyn-Jones, in asking the noble and learned Lord whether he does not agree that Friday morning is not really, at short notice, the most convenient time at which to marshal the kind of advice necessary in order to deal with a Statement of such immense importance as this? The noble and learned Lord will realise that we shall wish to study this Statement very carefully. In the meantime, may I ask him whether he is aware that there are noble Lords on these Benches who take the view that we weakened our jury system somewhat by introducing systems of majority verdicts? Thus we welcome this Statement in so far as it makes clear that we will not weaken the jury system further by jury vetting, save in cases in which national security is involved. May I ask the noble and learned Lord whether we will have an opportunity of considering these matters in much more detail at a later stage when we have had more warning?
§ The LORD CHANCELLOR
My Lords, I am grateful for the expressions of thanks from the noble and learned Lord and the noble Lord. If he will forgive my saying so, I think the noble and 1188 learned Lord, Lord Elwyn-Jones—and he knows with what respect and affection he is regarded by my colleagues and myself—was a little unreasonable in his criticism of Friday morning The custom of Parliament is that Statements are made in the House of which the responsible Minister is a Member. When, as is more frequently the case, the House concerned is the House of Commons, it is their usual channels and their convenience which are studied primarily, just as, when my noble friend the Foreign Secretary makes a Statement here, it is his ability to attend and to deliver a Statement in the first place which are normally considered.
Like myself, the noble and learned Lord has been a Member of the other place. He knows that, although it is true that there are distinguished Members of this House who are members of the legal profession and who would wish to be present on an occasion like this, there are far more such members, including my son, who are Members of the other place. These are matters which doubtless were considered through the usual channels of another place when that place designated this particular Statement for a Friday morning. I am sure that, at the end of a session which is heavily loaded and sometimes when tempers rise rather high, all these matters were taken into consideration when the Statement was made.
If I may venture a personal opinion, when the noble and learned Lord consults the guidelines, which of course are the key to the whole matter, he will realise that, in the nature of things, this Statement cannot be really penetrated and discussed in detail; there are many pages with their annexes of closely-typed foolscap, and what the House, I imagine, will want to do, and what I imagine another place will want to do, is to study them carefully and then consider what further comments require to be made. The guidelines, which have no legal force at all, will, I hope, be followed from now onwards, hut both Houses if they desire a debate, which I imagine they will, will have an opportunity to debate them.
As regards consultations, I think my noble and learned friend has pursued the correct course. The matter is far too detailed and urgent to require consultations in that sense, while criminal trials 1189 are going on every morning, and what will be required is a careful consideration by both branches of the legal profession as to the implications, and their comments and those of the press will naturally be taken into consideration. But, until the matter is fully exposed to the public gaze and not subjected to leaks, which are the inevitable accompaniment of prolonged discussion internally, I think publicity and open government demand publication at the earliest possible moment, and of course criticisms will be made.
I do not understand why the noble and learned Lord asks whether more or less vetting will take place as a result of the guidelines; I should have thought it was obvious that the answer was less. I can only attribute the question to the fact that he has, quite rightly, complained that he has had very little opportunity to study the matter in detail. I agree with him that what one wants is uniformity of practice, but once one is given the fact, first of all, that the courts have a limited jurisdiction in this matter and that both parties in every prosecution, some of which are private prosecutions, have the right by statute to inspect the panel—which derives from a statute of 1974, so it has recently been considered by Parliament, but which has an honourable tradition of no less than 600 years behind it; I think it was first introduced into England in 1368 or something of that order—then one must realise that one can proceed, unless one is going to alter the substantive law, only by guidelines and that the essence of there being guidelines is that absolute uniformity cannot be imposed.
The noble Lord from the Liberal Benches, Lord Winstanley, associated himself with the noble and learned Lord's protest about a Friday morning, and I can understand that he himself was in a particular difficulty in the matter because I have no doubt that the Liberal Party would have liked to have seen the noble Lord, Lord Wigoder, in his place, and so should I, but I have already dealt with that and I shall not repeat myself. I do not share his view that the jury system was weakened by the introduction by Mr. Jenkins of majority verdicts. I supported Mr. Jenkins throughout in another place in his desire to do so, and I must remind the noble and Liberal Lord that majority verdicts of acquittal have saved a number of people from 1190 being subjected to a second trial; and the public annoyance caused by the existence of the "oddball" who happens to exist on a panel of 12—or in Scotland a panel of 15 where they have majority verdicts of eight to seven—and who can subject both parties to costs amounting to tens of thousands of pounds if a trial aborts by reason of a disagreement. That is a very real evil, the extent of which is, I think, underestimated.
§ Lord ELWYN-JONES
My Lords, I do not think the Statement had anything to do with majority verdicts, so I will not deal with that issue, but I confess to a sense of dissatisfaction with the noble and learned Lord's reply. This decision of the Government involves immediate action. As I understand it, these arrangements will apply from now on and, as I further understand, there has been no consultation outside Government departments. I find this a curious form of consultation—Executive action first, consultation afterwards—which is the cart before the horse in our understanding of what open government could indicate. Certainly there will now be careful examination, and of course it will be the duty of the Government to hear and consider whatever representations may hereafter flow. This matter has been on le tapis for month after month and the plea of urgency, with great respect, is not convincing in those circumstances. Certainly there should be a decision and it is right that one should be made.
I am not now going into the detail of the examination of the pluses and minuses of these proposals in regard to the practice of jury vetting, but we shall have to go into them very carefully. I must, however, repeat my feeling that on this crucially important aspect of the administration of justice, this has not been a satisfactory way of dealing with the matters involved. I have not had an opportunity, for instance, of discussing it with the Shadow Home Secretary in another place. That opportunity was not available in the circumstances. All I can now say, apart from protesting, is that we shall return to this subject as soon as may be.
§ The LORD CHANCELLOR
My Lords, I believe the noble and learned Lord has the wrong end of the stick here. 1191 This is not Executive action; this is a guideline which imposes further restrictions in the interest of human liberty—by way of guideline and not Executive action—as from now on. In other words, it is an enlargement of liberty and not a restriction of it, and it is not Executive action. lf, like Alice in Wonderland, one was saying, "Execution first, evidence later", I would see the force of the noble and learned Lord's protest in that respect, but I do not think it is fair. And I would add that I do not think his other criticism is fair, either. It is true that this is an extremely complex and difficult matter and that it has been protracted for a very long time. That is an argument in favour of urgency and not an argument against it.
I quite understand that the matter requires further consideration and I am sure the House will give it, but to have withheld over the long Recess an enlargement of human liberty on the basis that it is called Executive action is, I believe, a complete misconception of the situation. I hope the noble and learned Lord will realise that I am not intending to express a harsh criticism of what he said; I am simply expressing my personal disagreement.
§ 11.50 a.m.
§ Lord HALE
My Lords, I agreed in the main with every word my noble and learned friend Lord Elwyn-Jones said on this matter and with his protest, although I disagreed with him in what he said about majority verdicts, although it is a question of the manner in which majority verdicts were introduced. It appeared to me to throw away the basic principle of British justice in the administering of the criminal law, without adequate opportunity for discussion. Mr. Jenkins (as the noble and learned Lord quite properly refers to him) called in their absence the evidence of unnamed judges who were alleged strongly to approve of this innovation after several hundred years.
I have previously suggested—and my noble and learned friend Lord Elwyn-Jones has expressed that prompt disagreement that I usually encounter from my legal friends—that there is growing evidence that the power of the Director of Public Prosecutions has increased, is 1192 increasing, and ought to be diminished. It was never intended that the staff and the organisation of the Director of Public Prosecutions should be large enough or influential enough to undertake so many duties and so vast an increase in the number of cases.
I do not often intervene. This is the first time that I have intervened on a question in the Royal Gallery, although I made a brief speech last night. I am speaking about something which has greatly affected my heart during the past few years. There must be opportunity for the fullest consultation before there are taken innovatory steps which weaken the situation or which lead to the possibility of more disagreement.
§ The LORD CHANCELLOR
My Lords, the noble Lord began by saying that he agreed with every word of the noble and learned Lord, Lord Elwyn-Jones, and then proceeded to disagree with what seemed to me to be the one unexceptionable statement that the noble Lord had made; namely, that we were not debating majority verdicts. Since the new proposals, whatever they may be, and whatever their merits, will not alter the powers of the Director of Public Prosecution, I do not see the relevance of what the noble Lord says on that point.
§ Lord RENTON
My Lords, is my noble and learned friend aware that the making of this Statement today will be greatly welcomed by all concerned with the administration of the criminal law, and that they might have had reason to complain had the Statement been delayed until the re-assembly of the House of Commons on 27th October?
§ The LORD CHANCELLOR
My Lords, I am grateful to my noble friend, and I entirely agree with what he says.
My Lords, first, I wish to thank the noble and learned Lord Chancellor, whom I respect very highly and with whose views I most frequently agree. But it is not quite a question of the material itself; we do not know what that material is. I speak as a solicitor of 60 years standing. I wish to ask a question not only in my personal capacity, but also as an officer of the solicitors' group in both Houses. Does the noble 1193 and learned Lord Chancellor realise that this matter has been before us for 60 years, in my experience at any rate? We would be very anxious to use the proposal, but we cannot possibly do anything about it until it appears in the Library. Since we are meeting next week surely an opportunity should be taken after the proposal has been deposited in the Library for those of use who are very deeply interested in this problem to have a look at it. We may entirely agree with it; I do not know, because, first, we cannot hear very easily in this Chamber. Secondly, we must have an opportunity to see what it is all about, so that at least we can either approve it, or make some comment about it. I am sure that the noble and learned Lord Chancellor will realise our difficulty in that regard.
§ The LORD CHANCELLOR
My Lords, as the noble Lord knows, the use of the House's time is not a matter for me. I do not see my noble friend the Leader of the House in his place, but I see the Chief Whip present and no doubt he will convey the feelings of the noble Lord to the Leader. My own feeling is that this is a complex matter and that it should be carefully considered. When we come to debate it, as obviously we must, we ought to have had a much wider opportunity of seeing the reactions in the press and consulting our friends in the profession. We do not want to hurry a debate, but of course if the House wants a debate next week, I am sure that the Leader will pay attention to that.
§ Lord ELWYN-JONES
My Lords, if the noble and learned Lord will permit me to say so, those last observations were more helpful than some of the earlier ones.