HL Deb 22 June 1984 vol 453 cc554-70

11.8 a.m.

Report received

Clause 1 [Disqualification for jury service of persons who have served or had imposed on them certain sentences]:

Lord Mishcon had given notice of his intention to move Amendment No. 1: Page 1, line 15, leave out from ("detention") to end of line 17.

The noble Lord said: My Lords, I should like to commence any remarks on this amendment by expressing appreciation to what I believe we call "the usual channels" for having arranged for the Report stage to be taken at a time when several of your Lordships have managed to be present. I say that because the Committee stage was taken during the dinner interval and we merely had sufficient numbers of your Lordships present to fill one jury box—which was rather an astonishing situation when dealing with a Bill concerned with a juror's disqualification.

The background to the Report stage of this Bill is that to which I referred at Committee stage, and perhaps I may also mention the proceedings in another place. I do not say this to give the noble and learned Lord an opportunity again to reprimand me, as he did on a previous occasion, in his usual gentle and jovial tones. In another place this Bill had no Second Reading debate and the only stage at which there was a debate was in Committee, which lasted less than one and a half hours. I repeat that this is in no way meant as a criticism of another place for it is not our practice to criticise in that way. I merely refer to it as being a responsibility upon this House when dealing with an important constitutional Bill—of sufficient importance, incidentally, to be included in the Government's party manifesto—to give the proper consideration which your Lordships always give to a Bill before it becomes an enactment.

My noble friends on these Benches are certainly in favour of the principle of the Bill. We were merely looking to see—as I believe many noble Lords in all parts of the House were—whether the Bill itself does do justice to various classes of people who are covered by it. We have no doubt whatsoever that those who have been sentenced to a term of imprisonment—and we even have no doubt where there is a suspended sentence—should, because of experiences over recent years especially, be disqualified, certainly for a period of time, from jury service. There is no difference there at all.

Therefore, we looked at those who were not subjected to any kind of prison sentence. This being a Private Member's Bill, it is obviously a matter for each individual Member of your Lordships' House to be free from any kind of party allegiance on these matters, and I make that clear. But my noble friend and I and, I believe, the noble Lord, Lord Wigoder, and his noble friends, felt that it was wrong to include in this disqualification those who were subject to community service orders. We advanced those reasons in Committee.

I should have said, perfectly frankly, that there can be different views on this matter held with perfect sincerity and that the balance is a very fine one indeed. It is because of that, and because I do not believe that your. Lordships ought to find—I say this in all humility—the same fineness of balance when we come to the next amendment on the subject of probation, that what I propose to do, and I hope that your Lordships will regard this with some favour, is not to bother your Lordships with any arguments on community service orders this morning. I shall withdraw this amendment and concentrate on the aspect that worries many of us; that is, Amendment No. 2, which deals with those who are subject to probation orders. Therefore, I ask leave of your Lordships to withdraw this amendment.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

My Lords, I think that the correct form is for me to ask if the amendment is not moved. That is the point I make now.

[Amendment No. 1 not moved.]

11.15 a.m.

Lord Mishcon moved Amendment No. 2: Page 1, line 18, leave out from ("who") to ("has").

The noble Lord said: My Lords, we now deal with the question whether those who are subject to probation orders should be disqualified from jury service. This amendment immediately admits that those who are subject to probation orders should not be qualified for—indeed, should be disqualified from—jury service during the period of their probation. So we are merely dealing with those subjected to probation orders who have finished their period of probation.

I first quote a statistic. It is the latest that I could cull and relates to 1981. It is a Home Office statistic. Of those who are subject to probation orders, 40 per cent. are under the age of 21, and 50 per cent. are under the age of 29. Therefore, we are dealing substantially with young people who have been subjected to a probation order. The second point which I want to make immediately is that your Lordships, in your experience, will know that there are several occasions when a judge, on coming across an accused and convicted person who has served prison sentences in the past, will, in his mercy, on those occasions when he thinks it suitable, tell the convicted person that he will give him a chance and put him on probation. I do not think we need worry about that sort of case because obviously if there have been prison sentences in the past that will in any event disqualify such a person from serving on a jury for a very substantial period of time under the provisions of this Bill and, indeed, the provisions of the previous Act.

Therefore, we are dealing with the normal type of person who is subject to a probation order. Those of us with experience in the courts—some of your Lordships are members of benches of magistrates and among your Lordships are those who have had experience of these matters—know that often the courts have cases to deal with where there are social problems, personal problems, employment problems, unemployment problems, and that the court decides that even in the most trivial of cases the proper thing to do in order to assist the person before them is to put that person on probation. There is a substantial number of such cases. Is it right that in that sort of case, outside the probation period itself, someone should be disqualified from jury service?

In dealing with this matter on a previous occasion the noble and learned Lord—I repeat, with his customary joviality—laughed and said he had always found it a great relief to find that because of his status in various directions he was exempt from jury service. He thought that, instead of anyone complaining about being disqualified, they might greet it with some amount of joy. If the noble and learned Lord looks at it in that way it must be an opinion to respect. Equally, I think one would respect an opinion which says that it may well be that something that is cast upon the citizen is quite irksome (it may be that several people find it irksome to vote in an election) but if that citizen is told that for some reason—not an honourable one, such as being a member of the Bar or being a member of my side of the legal profession—he is disqualified from that duty, immediately there is some sort of slur upon him. His immediate reaction, however he may have regarded that duty, is one of being disadvantaged. It is in that respect that I plead for this amendment.

I know that the noble Lord, Lord Wigoder, advanced a different point of view at the Committee stage, and it is for him to express why he feels that those who have had a probation order made against them but are outside the period of service should not be disqualified under this Bill.

I hope that your Lordships will regard this as a most serious matter. It is not one that was canvassed to any extent at all in another place, and certainly in no substantial way was it dealt with. It is therefore a burden—your Lordships may think a privilege—of your Lordships to deal very carefully with this amendment and this matter now that we are considering it at the Report stage of this Bill. I beg to move.

Lord Wigoder

My Lords, may I start by differing at once from the noble Lord, Lord Mishcon, in one observation that he made when he said that on a previous occasion I had spoken on behalf of my noble friends? I did not. There is no question of there being any party point of view on this Bill at all. It is not a Government Bill; it is not a Conservative Bill. I know so far as my own noble friends are concerned that they are entirely free—of course they are—to go into the Lobbies, in I hope a very short time, taking their own view of this point and basing it on their own judgment.

I support this Bill. It is a sensible Bill. It plugs a gap in the law. If I may, I congratulate the noble Lord, Lord Renton, on introducing it and monitoring it as he has done in your Lordships' House. It is a sensible Bill because all of us, I think, without arguing the point would agree that real criminals ought not to serve on juries. That I think is a self-evident proposition. The problem arises when one tries to define what is a real criminal.

One might do it, I suppose, by dealing with the nature of the offence. One might set out a series of offences—murder, rape, or whatever it might be—and say that anyone who commits any of those is a real criminal and is disqualified. There are practical difficulties about approaching this problem that way. One might do it in the way that I tried to do it, with the noble Lord, Lord Hams, alongside me, a year or so ago by saying that anybody who committed within a particular period of time two indictable offences could be said to be a real criminal. That was, I think, sensible, but not practicable in administrative terms.

Therefore the other approach has been taken in this Bill, and it is, I think, an intelligent approach. It is the approach, on which the existing Act is based, of saying, "As you cannot define a real criminal in any satisfactory way, let us deal with it from the point of view of penalty. Let us look at the punishment that has been imposed, and let us say, "Well, because of that punishment, it really follows as a matter of common sense that in all probability the person concerned is the sort of person who ought to be disqualified from sitting on a jury".

For that very good reason, the existing law having proved inadequate, there have been additions proposed by this Bill (which I entirely welcome) to the category of penalty which indicates that a person ought to be disqualified, such as suspended sentences which were not in existence when the original Act was introduced. They are now included—quite right. Sentences of less than three months' imprisonment or any custodial sentence are now included—quite right. I do not think that anybody could seriously argue that, where a suspended sentence or a custodial sentence, even a short custodial sentence, has in fact been imposed, the defendant is not a person who comes within the category of being a criminal who ought not to be allowed to serve on juries. Community service orders are perhaps slightly more arguable, but, having regard to the fact that the courts have indicated that community service orders ought to passed only as an alternative to a prison sentence, it did not appear to the noble Lord, Lord Mishcon, and myself appropriate to pursue that any further with your Lordships. So that category is now included; and those three categories I think make this a very useful little Bill.

We then come to the fourth category, where the Bill suddenly goes off at a tangent, and says, "and furthermore, anybody who has been put on probation". If I may say so, that really has nothing to do with the proposition upon which this Bill is based. When people are put on probation, as when people are fined or granted an absolute or a conditional discharge, that is no indication at all of the type of offence that they are likely to have committed, the gravity of the offence, or whether the person involved is the sort of person who should not he allowed to sit on a jury. The noble Lord, Lord Mishcon, has dealt with what was referred to last time as the old lag's chance, where sometimes criminals, serious criminals, are given a chance and put on probation. But, as he has pointed out, that need not trouble us, because that sort of person would be disqualified anyway under the various other provisions of the legislation.

One therefore has to ask the question: who are these people who are being put on probation? The figures are clearly somewhat misleading. Quite who has the misleading figures I am not entirely sure. The noble Lord, Lord Renton, gave us at Committee stage the statistic that in 1982, 17 per cent. of probation orders were for burglaries and another 58 per cent. were for theft or fraudulent handling. I am sure that those figures come from some appropriate table. The only table that I could find when I looked into the matter, which was in the criminal statistics for 1982, and was table 7.14 at page 184, gave rather different figures. That table shows that of the indictable offences for which people were put on probation, only 7 per cent. were for burglary (and not 17 per cent.) and only 8 per cent. were for theft and handling (and not 58 per cent.). As they are almost all indictable offences—burglary, theft and handling—that would mean in fact that, if one took all offences, and included summary offences as well, the proportions would be even lower.

As I say, I am not sure which of us has misread a perhaps rather complicated table, and I am perhaps not very sure indeed that it matters unduly. Many of your Lordships, I know, will have had experience of sitting in courts and will know the sort of offender who is placed on probation. It may be for a trivial offence; it may be for a rather more serious offence. The essence of a probation order is that the court is not paying attention to the actual offence that is being committed so much as paying attention to the circumstances of the offender and the probation officer's report saying that it is desirable that a defendant should be helped. It is as simple as that. That is why I say that this Bill goes off at a tangent.

Probation orders do not indicate the gravity of the offence. Indeed, it may very well involve a much less serious offence and a much less serious criminal than in the case of a person who is being given an absolute or a conditional discharge or a fine; and nobody suggests that this Bill should be extended so as to cover everybody who is convicted of any criminal offence in any court whatsoever.

In those circumstances, as I say, I support this Bill, but I think that it has the one weakness that in including probation orders it is not being true to itself and it is taking a course there which I think will lose it public support. If we are extending the boundaries of disqualification, it is important to make sure that we carry public opinion with us. In those circumstances I hope that your Lordships will individually come to a view and will decide to take an appropriate course when a Division is called.

11.30 a.m.

Lord Campbell of Alloway

My Lords, the views expressed by the noble Lord, Lord Wigoder, and of course the noble Lord, Lord Mishcon, always command the utmost respect. However, I am unable to support this amendment. It is true, as the noble Lord, Lord Wigoder, says, that disposal affords no certain yardstick to the gravity of the offence, especially as regards probation where the range of gravity of the offences for which it is imposed is so wide. The range extends from the most serious offence—so serious that it would be common ground that in the circumstances the disqualification should run—to the relatively slight offence committed by the man who is given the chance, to whom the noble Lord, Lord Mishcon, referred.

But on a workable, practical plane how else can one judge gravity? The Bill is not perfect—few Bills are—but respectfully I join issue with the noble Lord, Lord Wigoder, when he says that the Bill goes off at a tangent on the question of probation. I agree that it rides off on a slightly different course because of the very nature of probation. However, the basic principle holds, because it provides a reasonable and requisite safeguard, which may be tilted in favour of the general safeguard rather than in favour of individual considerations, such as the slur of disadvantage to which the noble Lord, Lord Mishcon, referred. Surely that is just what is required. Surely it plugs the gap to which the noble Lord, Lord Wigoder, referred. If it were tilted the other way, in favour of considerations that are individual and against the general safeguard, it would not serve the interests of due administration, and much of the evil with which it is designed to deal would remain.

Lord Edmund-Davies

My Lords, a mere two or three years ago Parliament had occasion to consider Schedule 1 to the Juries Act 1974, an Act which emanated from the admirable report of a greatly loved member of your Lordships' House, and a close friend of mine, Lord Morris of Borth-y-Gest. I confess I have not read the debate which was conducted in both Houses of Parliament two years ago. But one of two things happened: either it then occurred to nobody to include, under the disqualifications, those who had been placed upon probation; or secondly they considered and rejected it.

The peaks and the valleys of criminality continue to present a most depressing picture, and must alert everyone to a necessity for close scrutiny of the penalogical provisions of this country. Having had a long time in the law and a good deal to do with the criminal side of the law, I must say that I do not detect any great difference between the picture presented in 1982, when Parliament last considered this matter of disqualification, and the present day. I recall that the foundation of the present system of probation is derived from the Criminal Justice Act 1948.

Since there was what, most respectfully I venture to describe as a certain amount of loose talk at the Committee stage about the attitude of the courts towards cases where they were minded to make a probation order, I wish, most respectfully, to remind the noble Lords and noble Baronesses that the two requirements for consideration under the 1948 Act remain untouched today; namely, that one has regard, first, to the nature of the offence, and, secondly, to the antecedents of the offender. I believe that it is only in the rarest of cases that a person with a bad criminal record is placed on probation. If a person has a bad criminal record, as the noble Lord, Lord Mishcon, has said, he probably comes under earlier provisions of the Act as it stands at the moment and under the proposed amendment. It is only in the rarest cases that a person who has anything like a tendency towards habitual infringements of the criminal law is placed on probation. So in the vast number of cases those who are placed on probation are people who have had a comparatively good record hitherto. In order to be placed on probation their antecedents, and the nature of the offence then under consideration and giving rise to the criminal proceedings, must be other than of a deeply criminal character.

So I have to say that while I am very alive to the necessity, as I have already said, of scrutinising from time to time what are our penalogical provisions, I am not satisfied that there has been any material change in the position of criminal offences between 1982, when your Lordships' House and the other place scrutinised Schedule 1 to the Juries Act 1974, and today. Accordingly, I identify myself with those who have criticised the second paragraph, the last paragraph here.

Lord Morris

My Lords, I think the misunderstanding on this particular point has arisen from the Short Title of the Bill itself, with the inclusion of the word "Disqualification", as though the Bill is taking something away. I most sincerely believe that to serve on a jury should never be considered as either a right or a privilege. It is nothing other than a very onerous duty.

I have listened with very great care to the arguments of the noble and learned Lord on the Cross-Benches. I certainly felt far more in tune with that approach than I did with the approach of the noble Lord, Lord Mishcon, who came out with this astonishing phrase, which I think lays the ghost of this particular matter, when he referred to a normal type of person who has served a probation order. Surely a normal type of person who has served a probation order would not be considered by the people in this country as being a right and proper person to serve on a jury among 12 good men and true. I think that this amendment should be resisted.

Lord Renton

My Lords, I think we should be grateful, as the noble Lord, Lord Mishcon, said on the last amendment, to the usual channels because they have enabled us to have this most interesting debate. May I say how much one appreciates the interest and the value of the contributions made by all those noble Lords who have spoken? I wonder whether I may first of all deal with the point just made by the noble and learned Lord, Lord Edmund-Davies. Before doing so, may I say that it is such a great advantage to the House when a Lord of Appeal in Ordinary retires, because he then gains the freedom which he was not fully able to exercise previously in taking part in our debates.

However I have the misfortune to disagree with the noble and learned Lord when he says that there is no difference between 1974 and now—

Lord Edmund-Davies


Lord Renton

I am sorry. I misheard the noble Lord—between 1982 and now. There is, indeed, a difference, alas! There has been a difference in each year since 1974, and continuing through 1982 and 1983, in that there is more crime in this country. The administration of criminal justice has been under greater strain and there has been more jury nobbling. Jury nobbling is made much easier when jurors themselves have a past criminal record.

I must make it clear, as the promoter in this House of this Bill, that I am unable to advise your Lordships to accept this amendment tabled by the noble Lord which would have the effect of enabling those—and indeed requiring those—who have been on probation to sit on juries within five years of the making of the probation order after the order has expired or been discharged. I must correct several impressions that have been given by the noble Lords, Lord Mishcon and Lord Wigoder, greatly though one respects their views. The first impression is that a large proportion of probation orders are given to first offenders. Of probation orders given in 1982, 10 per cent. were to those who had a previous record that was unknown, while of the 90 per cent. given to those whose record was known, only 23 per cent. had no previous convictions, 16 per cent. had been previously on probation and 24 per cent. had been in custody. Therefore, the balance between 23 per cent. and 90 per cent. had been previously convicted and had had the fates that I mentioned.

Then the noble Lord, Lord Mishcon, said that probation orders apply to a great extent to young offenders. Of course, a great many of the young offenders placed on probation would be too young to sit on juries, anyway. That is common ground between us. They will not sit on juries. However, if we compare those aged from 17 to 20 years inclusive and those aged over 21 we find that the percentage of first offenders between those two age groups is about the same. The figures that I gave just now relating to those placed on probation who had no previous convictions, who had previously been placed in custody and who had previously been on probation are about the same for those under 21 as for those of the age of 21 and over.

Probation, I suggest to your Lordships, contrary to what has been mentioned, does not signify a trivial offence. If the offence is trivial, there are other ways of dealing with the offender short of probation. One way is in the hands of the police. They can just give a caution, and that is sometimes done. It used to be said that the boy who was found stealing apples was given a good cuff over the head by a police officer; but that of course causes trouble if it is done these days. However, a caution is sometimes appropriate in those circumstances. The court can award a discharge, absolute or conditional, for a trivial offence. Or, coming a little closer to probation, the court can bind the offender over for a period to be of good behaviour. So, for the trivial offences, there are matters short of probation. I suggest to your Lordships—many of you have at least as much experience as I have, and I have a lot of experience of these things—that probation is not lightly given by the courts.

I must refer to the figures quoted by the noble Lord, Lord Wigoder. The noble Lord stated that the figures I quoted at Committee stage were not correct. I have just had them verified. They are in fact correct and I will give them to the House.

Lord Wigoder

My Lords, I was careful not to say that the figures were not correct. I could only say that his figures differed very remarkably from mine. It may be that the tables were drawn up on a totally different basis. I would certainly not accuse the noble Lord of being incorrect.

Lord Renton

Of course, my Lords, it is not unknown for different statisticians within the government service to give different answers to the same problem. All that I can say is this. I have got my figures from those collated from probation officers all over the country and handed to me by the Home Office. I shall repeat them. In 1982, 17 per cent. of those placed on probation had been convicted of burglary; 7 per cent. of violence of one kind and another; and no fewer than 52 per cent. for theft or handling stolen goods. It is very pertinent and rather interesting to refer to a study made by the Home Office in 1979, and I would have thought that the experience gained then is possibly an indication of what still happens and may happen in the future. The study in 1979 of those convicted in 1971 showed that 63 per cent. of them of all ages were reconvicted within six years. Sixty-three per cent.! That is surely a figure that is most material to the arguments used in support of the amendment, including the argument used by the noble and learned Lord.

One must also bear in mind that probation is—and, on the direction of the Court of Appeal, the courts have a duty to consider it—sometimes awarded to those who have been in prison many times, sometimes to old lags. It does not happen often. I did it myself on one or two occasions in pursuance of the direction of the Court of Appeal, and experimentally. But it does happen. Another figure is that 54 per cent. of first offenders—they were of course a minority—aged 17 to 20 who were placed on probation had been reconvicted within six years of the probation order.

Of course, statistics never tell the whole story. We are here having to consider a principle. Whatever the statistics may show, I suggest to your Lordships that we should not lose sight of the principle. I think that we must conclude that probationers are more likely than not to offend again between the end of probation and the period of five years that is envisaged by the Bill following the probation order, and that it would be a serious risk to the system and a serious risk to the administration of justice if we allowed those who have been placed on probation to sit as jurors. We owe a duty to the public to see not only that justice is done but that justice appears to be done. If the public see people sitting on juries who have been convicted in recent years and placed on probation they will lose confidence to a greater extent than have some of them in the system of justice.

I wish to conclude by referring to a point that I do not feel carries conviction made by the noble Lord, Lord Mishcon, when he said—and I am paraphrasing his words—that it is wrong to deprive someone of a civil right, the right to sit on a jury, a right of which he may not be conscious, but if you tell him that he has lost it he would be indignant. What is being said is, Where ignorance is bliss, 'tis folly to be wise". But I think that many of those who have been convicted are much wiser than the noble Lord assumes. Then he says, "Oh, but it's a slur not to be allowed to sit on juries; whatever the public may think about it, it's a slur on the individual". I can only say that it is a slur which he has brought about himself by his criminal behaviour.

Baroness Macleod of Borve

My Lords, I should like to intervene very briefly. I agree with what the noble Lord, Lord Renton, has said about the confidence of the public—and not only of the public, but of the defendant. It is very important that he should know that he is being tried by a jury of people who are otherwise blameless, or anyway have not been caught. As everybody knows, statistics can be made to prove any case that anybody cares to make; therefore, I am not going into that. But I do say that anybody who has been before any court of law and has been put on probation has already been found guilty of an offence. For that reason, I think that they should not sit on a jury.

11.52 a.m.

Lord Elwyn-Jones

My Lords, I will willingly give way to the noble and learned Lord the Lord Chancellor, but as I am going to agree with the amendment perhaps he ought to hear me first—

The Lord Chancellor

Yes, my Lords.

Lord Elwyn-Jones

—because I venture to suspect that he may not support the amendment. In those circumstances, if the noble and learned Lord will forgive me, I will not detain the House for long.

My own reactions are in favour of the amendment and in support of the views expressed by the noble and learned Lord, Lord Edmund-Davies, and the others who have supported the amendment. I have sat at the feet of the noble and learned Lord on many occasions—and I am very happy to do so again today—both when he was recorder and in other circumstances and conditions. One of the matters that I think we should remember from the beginning, particularly in the light of the observations of the noble Lord, Lord Renton, is that the existing disqualification of persons sentenced to imprisonment remains unaffected; the "old lag" syndrome is well and truly covered by that disqualification. We need not worry unduly about that.

The point of significance that was made by the noble and learned Lord, Lord Edmund-Davies, was that this matter of jury service was examined with great care and in great detail in 1982, under the chairmanship of the late Lord Morris of Borth-y-Gest. I remember the discussions we had upon that. At that time there was no suggestion that probation should be a disqualification. It is said that there has been more crime since 1982. That is true, but, then, there have been more severe penalties available and imposed since that time to cope with that particular situation.

The imposing of a probation order is very often done, for instance, even as an alternative to absolute discharge, because the judge may take the view that the offender in the particular case needs the support of the probation service. What I find regrettable in this debate is how little help is available to your Lordships from bodies like the Probation Officers' Association and other bodies which might have been able to assist us in our consideration of this matter. One of the difficulties on a Private Member's Bill is that the Private Member cannot call in aid the kind of support, with information, that I think the House needs on an important measure of this kind.

It is easy to scoff at the consequences of a probation order disqualifying the person concerned from future service. When notices come out ordering him to do jury service—perhaps he is a young offender—it may come as quite a surprise to him, if not as a shock, to learn that he is something of a second-class citizen. The scoffing is no answer to this. It does impose upon him a limited status. Most people would be delighted; I think that is quite true. But whether or not that is so, whether that is too righteous a view of the mentality of those who might be affected, I do not know.

One could contrast the way in which those subject to probation orders are identified for special treatment in this respect with the imposing of enormous fines on crooks, on fraudsmen, who may have cheated the revenue, the public purse, of hundreds of thousands of pounds. They are not going to be disqualified from jury service. What a strange distinction and differentiation there is here. They ought to be far more deserving of the reproach of the community involved in what is proposed here in regard to probationers—far more deserving of being excluded from the serious responsibility of making a decision of guilt or innocence on an accused person.

Without traversing the ground again, I respectfully invite the House to consider, with anxious care, the experience—I make no apology for this, although it will embarrass him—of noble and learned Lords who, like the noble and learned Lord, Lord Edmund-Davies, have been through the whole range of responsibility in this field, including recordership, over years and years. I invite the House to the view that what is proposed by the inclusion of probation service is a backward step. I do not think it will increase respect for jury service; on the contrary, I think it will be diminished if this amendment is not carried.

Lord Edmund-Davies

My Lords, despite my appreciation of the graceful—

Baroness Trumpington

My Lords, order!

Noble Lords

By leave of the House.

Baroness Trumpington

Yes, my Lords.

Lord Edmund-Davies

My Lords, if I may have leave, I should like to point out an error which the noble and learned Lord made in the course of his contribution. It is a purely factual error, which I am sure he would regret immediately Hansard appeared. But I do not press it. He did give a wrong date; that was all. May I have leave to correct it for the record?

The Lord Chancellor

My Lords, I did venture to say on Second Reading that I thought the noble Lord, Lord Mishcon, and the noble and learned Lord, Lord Elwyn-Jones, were probably making too big a meal of this. We have now had three courses to that meal—on Second Reading, Committee, and now Report. We also had a fourth course, in the shape of an hors d'œuvre, in the short speech in which the noble Lord, Lord Mishcon, did not move his first amendment.

But I must begin by adverting to the hors d'œuvre first. He did venture to say, for the second time, despite my protest, that the Commons had debated this Bill too little. He mentioned the Second Reading, or absence of it. He mentioned the Committee stage, which was an hour and a half, but he omitted to say that there was a debate between about 9.30 in the morning and about 2.40 in the afternoon on Third Reading, ending in a Division in which two members of his party stood as tellers and nobody voted with them. So whatever else happens here, we have debated this for a shorter time in three courses than the Commons did in one.

Lord Wigoder

My Lords, I know that the noble and learned Lord will not wish in any way to give a false impression to the House. The debate in another place which he is talking about consisted almost entirely of a long filibuster (did it not?) by two Members there.

The Lord Chancellor

My Lords, I was only dealing with the point which the noble Lord, Lord Mishcon, omitted to state; and he did omit to state it. I do not think we ought to debate what happened in another place—I said so on Second Reading—but it does seem to me that my point was a valid one, as far as it can be.

There were originally two amendments. I ventured to say on Second Reading—and I say again now—that the origin of all political error is based on either false premises or false analogy. This one suffers from both faults. Perhaps I may interpose for a moment the point which was made by the noble and learned Lord, Lord Edmund-Davies. He was of course in honour bound, as he did, to correct the noble and learned Lord, Lord Elwyn-Jones, about the date of the Morris Report, which formed an integral part of the argument of the noble and learned Lord, Lord Elwyn-Jones, in support of the noble and learned Lord, Lord Edmund-Davies. But I would venture with respect to say that the point made by the noble and learned Lord, Lord Edmund-Davies, was also a false one.

The present law is based on, I think it is, Schedule 1 to the Juries Act 1974. That was a consolidation Act and therefore could not contain an amendment to the law. There was an amending Act, as I think the noble and learned Lord said, in 1982; but that was an amendment to the consolidation Act which changed the consolidation Act only to the extent of taking account of youth custody, and therefore it is totally irrelevant for the purpose which the noble and learned Lord was seeking to put forward. It was not carefully considered by Parliament at that time. A consolidation Act was amended in order to take account of a subsequent change in the law. So the point is a bad one.

Having said that—and said it I hope without unkindness—I come back to the purpose for which this Bill was intended. To complete the point that I was making a moment ago, perhaps I ought to have said that from the very next year, 1983, there have been repeated attempts in Parliament to effect the very purpose of this Bill. One such attempt was in another place by the Member for the New Forest, Mr. McNair-Wilson, and one was by the noble Lord, Lord Wigoder. Both of them sought to amend the law in this very respect and they only failed basically because, although they were trying to do the very thing which this Bill is trying to do, they tried to do it by a route which proved, for practical purposes only, to be unworkable, although in fact in some ways their attempts were more logical because they based the new disqualification on conviction and not on disposal.

I go back to the purpose of the Bill. The purpose of the Bill, universally endorsed now on all sides of the House, is to ensure that in trials on indictment we do not have criminals on the jury—and here I am virtually quoting from the noble Lord, Lord Wigoder. The right, both of the prosecution and of the defence—and here I am virtually quoting from my noble friend Lady Macleod of Borve—is to have on the jury 12 lawful men and women, 12 legales homines. It is widely conceded, and it was admitted on Second Reading, that all too often we do not achieve that purpose of having 12 lawful men and women on the jury. This imposes a potential injustice both on the prosecution and on the defence, because it is not necessarily to the advantage of the defendant to have corrupt members on a jury. Therefore, we have sought on three occasions, of which this is the third, to put the matter right.

The two amendments—one of which has not been moved—suggested by the noble Lord, Lord Mishcon, would have had the effect of putting back on the jury candidates who had been sentenced either to community service or to probation. Community service has now disappeared. But I must remind the House—devoting myself solely to probation for the purposes of my argument—that my noble friend Lord Renton was perfectly right. The fact is that those placed on probation more often than not have previous convictions of serious crime and stand a 6: 4 chance on, of committing another offence within the period of five years, which is the period with which we are concerned for the purposes of disqualification. So the effect of the amendment which now remains after the noble Lord failed to move his first amendment, is that we are dealing with a class of person who more often than not has previous convictions and who more often than not will be convicted again within a period of five years, which is the only relevant period we are considering. Quite frankly, this is not acceptable to me. As I have said, the chances are both that they have previous convictions and that they will offend again.

So far as concerns a comparison between the amendments, I can only say that that relating to probation is rather worse than that relating to community service. Community service is usually limited at the most to 100 hours; but probation may last for three years. I really do not think that it is suitable—quite apart from all the other arguments which have been adduced against this amendment—that, when a person is still under the supervision of the state by reason of the fact that he is on probation and therefore not a totally free agent, he should serve in a judicial capacity. It seems to me that that is the true point to which we ought to have addressed ourselves. But the fallacy of which noble Lords who support this amendment are guilty—and I except from this the noble Lord, Lord Wigoder, to whose argument I shall come in a moment—is the fallacy of false analogy.

The question of disposal was only introduced into this series of Bills—of which this is the third and I hope successful attempt to legislate—because of practical difficulties in the way of the other and more logical system which was based on the nature of the offence or the number of convictions. Therefore, the question of sentencing policy, but for one other argument which I will adduce in a moment, is totally irrelevant to our considerations in this debate; it is an argument based on a totally false analogy.

The noble Lord, Lord Mishcon, whose heart on this occasion has slightly tended to rule his head, told us during the Committee stage on 7th June at column 832 of Hansard—but he virtually said the same this morning and on Second Reading—with almost sobs in his voice: One finds terribly often that we have rights, and we are not terribly proud of them, and nor do we value them, until somebody tries to take a right away from us". Wiping away for a moment the tears from my eyes at the pitiful picture of the young offender doing 100 years' community service in an old persons' home, or rather 100 hours' community service in an old persons' home—

Lord Mishcon

My Lords, I hope that the noble and learned Lord will forgive me, but he must not continue to exaggerate!

The Lord Chancellor

My Lords, I apologise for the slip of the tongue. But I have the picture of this poor boy doing 100 hours' community service in an old persons' home or serving three years on probation, sobbing away to himself and saying, "Not only that, but I am a second class citizen. They have even taken away my right to serve on a jury in the Crown Court at Snaresbrook". This is cloud cuckoo land. Surely the noble Lord, Lord Wigoder, was right in Committee when he swept that argument aside and blew it sky high by saying at column 836: I doubt if it is helpful to talk about the rights of people to serve on juries, because, frankly, 90 per cent. of the community would disclaim the opportunity if they had the chance of doing so. What it is I think is a duty … It is an arduous duty. It is time-consuming. Particularly with women jurors it may impose a considerable strain on their family life … Very often it gives rise to real financial hardship". The noble Lord, Lord Wigoder, in Committee brought in his powerful guns in support of the noble Lord, Lord Mishcon, on a totally different and in fact demonstrably inconsistent line of country. On Committee, at any rate, the line of country that he pursued was that he was very concerned with the potential pool of jurors. He said that it would narrow the pool of potential jurors. I was particularly grateful to the noble Lord, Lord Wigoder, for blowing sky-high the fundamental assumption of the noble Lord, Lord Mishcon, and for his solicitude for the potential pool of jurors. But, as the Minister responsible for summoning jurors, I have to tell him that, difficult as it is to find willing volunteers, the press-gang is not yet quite so hard put to it that we have to find pressed men who are more likely than not to commit a criminal offence in the future, who more likely than not have committed more than one in the past, and who have certainly committed at least one in order to have been given a probation order.

There is one other point, and I do not stress it quite as strongly as those on which I have been expanding a little. We try to persuade judges not to impose custodial sentences, except in the last resort, even for an indictable offence and even when the record is bad. In many such cases, in particular those of juveniles, community service or probation is a wholly desirable alternative. But can we be absolutely certain that the same would be true if the judge had to say to himself, "If I do not send him to prison for this offence, even for a couple of days, the next thing will be that I shall find him at Newington Causeway glowering at me out of the jury box."? For those reasons I can only advise the House to reject this amendment.

Lord Mishcon

My Lords, on a Friday afternoon your Lordships have been treated not to a meal but to a feast of robust advocacy. I honestly believe that if the noble and learned Lord were to revert to his previous much admired status of counsel and prosecuted in a case in which the jury consisted of 12 old lags, they would convict the accused and add a rider that they thought he ought to have an extremely guilty conscience.

I always find—and I know that the noble and learned Lord will forgive me when I say this—that the more robust he is in his advocacy, the greater is his realisation that he has a rather weak case to defend; but, my word, he will defend it! Therefore, allegations of false analogies and false premises are hurled about, and inconsistencies are found between the noble Lord, Lord Wigoder, and myself. But it has been great fun, and we have all enjoyed it.

Having said that, I should like to speak for only a few moments before your Lordships express a view. Obviously, I am now treating this subject seriously. The noble and learned Lord said that this House was making a meal of something. I do not object in the very slightest to your Lordships making a meal of this when—and I must repeat this—in another place it was merely a snack. It really is essential that your Lordships heed the very authoritative opinion, delivered with his usual quietness and moderation, of the noble and learned Lord, Lord Edmund-Davies. Your Lordships heard then from not only the experience of one of our great judges, but also the judgment of one of our great judges.

The issue is a simple one. We are disqualifying from jury service various elements. We have agreed on all of them except one. There is not the slightest doubt that, in regard to that one element of those who are subjected to a probation order your Lordships are dealing not with the old lag example—which, as the noble Lord again emphasised, was in any event covered by the present legislation, because he is an old lag and he would have been sentenced to terms of imprisonment and therefore would be disqualified in any event—but essentially with young people who, for one reason or other (and there are many) have been put on probation.

The noble and learned Lord the Lord Chancellor referred to probation periods as long as three years. It does not matter how long is the probation period because this amendment provides that certainly during the period of probation the disqualification appears and should be effected. If I were to go on talking until lunchtime, I would not only interfere with your Lordships' pleasure on a Friday afternoon, but I might dissipate your Lordships' patience and tolerance of the arguments that have been advanced. I think that all those arguments are now before the House and, without a sob in my voice, I ask your Lordships to divide.

12.16 p.m.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 27; Not-Contents, 80.

Ardwick, L. [Teller.] John-Mackie, L.
Bernstein, L. Leatherland, L.
Boston of Faversham, L. Maybray-King, L.
Brockway, L. Mishcon, L.
Caradon, L. Mulley, L.
Carmichael of Kelvingrove, L. Oram, L.
Parry, L.
Collison, L. Ponsonby of Shulbrede, L.
Edmund-Davies, L. Shackleton, L.
Elwyn-Jones, L. Stoddart of Swindon, L.
Gaitskell, B. Stone, L.
Graham of Edmonton, L. Taylor of Blackburn, L.
Halsbury, E. White, B.
Jenkins of Putney, L. Wigoder, L. [Teller.]
Airey of Abingdon, B. Killearn, L.
Alexander of Tunis, E. King of Wartnaby, L.
Amherst, E. Kinloss, Ly.
Annan, L. Lane-Fox, B.
Attlee, E. Lawrence, L.
Avon, E. Lloyd of Kilgerran, L.
Belhaven and Stenton, L. Long, V.
Bessborough, E. Lucas of Chilworth, L.
Boothby, L. Macleod of Borve, B.
Caccia, L. Mancroft, L.
Caithness, E. Masham of Ilton, B.
Campbell of Alloway, L.[Teller.] Merrivale, L.
Meston, L.
Campbell of Croy, L. Molson, L.
Cockfield, L. Morris, L. [Teller.]
Coleraine, L. Mowbray and Stourton, L.
Cork and Orrery, E.
Cottesloe, L. Moyne, L.
Cowley, E. Nathan, L.
Denham, L. Northchurch, B.
Diamond, L. Portland, D.
Eccles, V. Reay, L.
Effingham, E. Renton, L.
Ellenborough, L. Richardson, L.
Elton, L. Roberthall, L.
Fletcher, L. Sainsbury, L.
Fraser of Kilmorack, L. St. Aldwyn, E.
Gainford, L. St. Davids, V.
Glanusk, L. Sempill, Ly.
Glenarthur, L. Skelmersdale, L.
Granville of Eye, L. Spens, L.
Greenway, L. Strabolgi, L.
Hailsham of Saint Marylebone, L. Strathcona and Mount Royal, L.
Hampton, L. Swansea, L.
Hanworth, V. Swinton, E.
Harris of Greenwich, L. Terrington, L.
Henley, L. Trefgarne, L.
Holderness, L. Trumpington, B.
Home of the Hirsel, L. Vickers, B.
Hornsby-Smith, B. Whitelaw, V.
Ironside, L. Wise, L.

Resolved in the negative, and amendment disagreed to accordingly.

[Amendment No. 3 not moved.]