HL Deb 04 May 1984 vol 451 cc726-43

11.28 a.m.

Lord Renton

My Lords, I beg to move that this Bill be now read a second time.

This is a Private Member's Bill introduced into, and piloted through, another place by my honourable friend Mr. John Watson, the Member for Skipton and Ripon. I am glad to have the privilege of presenting it to your Lordships. Although it is a short Bill, I am sure that your Lordships will agree that it is of great importance. Indeed, I would say that its importance is underlined by the presence on the Woolsack of my noble and learned friend the Lord Chancellor, who will be speaking later in the debate and who will no doubt give us the benefit of the Government's and his own views on this matter.

The question of who sits on juries and who should be disqualified from sitting on juries is important to good order and to sound justice in this country. It is important to ensure that those who do serve on juries are to a greater extent good men and true and not people with criminal records which may cause them to be either biased against authority, corrupt, or, strangely enough, as is believed to happen in some cases, determined that other accused people brought before them have a good dose of prison as they have had.

The present law is contained in the Juries Act 1974, which was a consolidation measure; Section 1 and the first schedule are particularly relevant. I shall refer briefly to the most relevant part, which is Part II of that first schedule, under which a person sentenced at any time to imprisonment for life, or for five years or more, or who has been sentenced to be detained during pleasure, is disqualified for life. The Bill does not seek to alter that.

But that schedule to the 1974 Act also provides that a person who at any time in the last 10 years has served any part of a sentence of imprisonment or detention of three months or more shall also be disqualified. The Bill substitutes for that paragraph of the schedule the provisions which are to be found in Clause 1(1). Those provisions have the effect that a person shall be disqualified if he has,

  1. (a)served any part of a sentence of imprisonment, youth custody or detention; or
  2. (b)been detained in a Borstal institution; or
  3. (c)had passed on him or (as the case may be) made in respect of him a suspended sentence of imprisonment or order for detention; or
  4. (d)had made in respect of him a community service order.
Subsection (1) also provides that a person who at any time in the last five years—not 10—has been placed on probation shall be disqualified.

I should like to say a brief word about each of those disqualifications which are referred to in Clause 1. The first two are so obvious as to need no explanation; that is to say, the sentence of imprisonment, youth custody or detention, or detention in a Borstal institution. But as to suspended sentences of imprisonment or an order for detention, I have to point out that experience shows that sometimes people who have a string of convictions are given suspended sentences. My attention has been drawn to a man who had 17 convictions for offences of theft or handling stolen goods and who, since 1972, has received four suspended sentences. I suggest that a person who has that kind of record would not make an ideal juror and should be disqualified.

Orders for detention can be made against young offenders in a variety of circumstances. Jurors have to be over 18 years of age, but if a young person goes to a detention centre or a Borstal, or is sentenced to youth custody, surely it is vital that there should be a spell of 10 years after he has served that sentence, or at any rate after it has been imposed on him, so that he has long enough to learn a bit of sense and decency before being allowed on a jury to sit in judgment on his fellow beings.

Then we come to community service orders. I must remind your Lordships that they can be made only for offences punishable with imprisonment, and they should not be regarded as a soft option, a soft alternative to imprisonment, which it might be thought they were if those sentenced to community service orders were allowed to serve on juries although they were eligible for imprisonment.

With regard to probation, I must point out the contrast. Probation does not disqualify, as do those sentences which I have mentioned, for 10 years; probation will disqualify for five years only. This is less stringent, but I hope that in the exercise of your judgment your Lordships will feel that that is about right.

The rest of the Bill is technical and self-evident, and unless called upon by any of your Lordships to explain any of it when I reply to this debate, I do not propose to say anything about those technical provisions.

I suggest that this Bill really is necessary. It will reduce the vile practice of intimidation of jurors and it should prevent the blackmail of those with criminal convictions, or at any rate reduce the amount of blackmail that has gone on. We must remember that those people who have criminal convictions may be more reluctant than most other people to seek police protection against the nobbling of jurors which sometimes takes place. We want a fair jury system, with fair trials, and we want jurors who, in the terms of the ancient oath, are without fear or favour, affection or ill-will. I commend the Bill to your Lordships. I beg to move.

Moved, That the Bill be now read a second time.—(Lord Renton.)

11.37 a.m.

Lord Mishcon

My Lords, juries have been called many things by counsel in the course of a criminal trial, or rather at the end of it, largely dependent on whether they be counsel for the prosecution or counsel for the defence and on the verdict the jury has given. But whatever else may be said in that connection, the whole of our jury system is very much the clean stream of justice that flows through our land and one that deserves to be conserved with the greatest care. As I see it, that means that if that stream becomes sullied, it is the duty of Members of this House and of another place to look with the greatest care and see what is the cause of that admixture and try to purify the stream. From that point of view I should have thought there would be no difference of opinion in any part of your Lordships' House.

However, what one must do is make sure that a great deal of consideration has been given before one deprives any one of our citizens of a very valuable civic duty and right. We must make sure that we have got the balance right. If I may say so, a very heavy burden rests upon your Lordships because, most unfortunately in regard to a very important constitutional Bill, there was no Second Reading debate on this Bill in another place. There was only one Committee day. That started at 10.30 and finished before 12 o'clock, and there were 14 Members of the Committee present. So this Bill reaches this place not even half digested. Therefore, I repeat that rather a heavy burden rests upon your Lordships, not for the first time, to see that no injustice is created by the Bill and that it is not out of balance.

It is in that way that I look at the provisions of the Bill before your Lordships, introduced with his usual ability and clarity by the noble Lord, Lord Renton. Your Lordships may remember that this is not the first time that an effort has been made by Parliament in fairly recent days to deal with what is undoubtedly a problem—not just the problem of jury nobbling, which is serious enough, but also the problem of whether it is suitable that somebody who has been convicted of a very serious crime should find himself as the judge of his fellow citizens in the very serious and responsible position of a juryman.

There is no doubt that there has been an evil. Indeed, over the last 12 months the position of the gallery in the Central Criminal Court was altered so that members of the public in the gallery could not see and, therefore, could not interfere with, members of the jury. There is no doubt, therefore, that we have to consider a serious problem, and that is why there have been some attempts before this one to deal with it.

A Bill was presented in another place by Mr. McNair-Wilson, and, indeed, it got through the other place. Mr. McNair-Wilson's attempt was to disqualify a person from jury service where he had been convicted of an offence for which the court could impose a prison sentence, except where there had been an absolute or conditional discharge or a binding over, and in those circumstances his Bill said that there should be a disqualification for 10 years. Although that Bill got through another place, when it came to this House it ran into very considerable difficulties at the hands of your Lordships, who felt that—to give but one example—somebody who might have stolen a milk bottle fell within the provisions of that Bill and would be disqualified for a period of 10 years.

One of the Members of your Lordships' House who commands considerable respect is the noble Lord, Lord Wigoder, and at about the same time he also had a shot at bringing forward a Bill to deal with the disqualification of jurors. His Bill wanted the existing disqualifications to apply—the ones that were so ably summarised by the noble Lord, Lord Renton, as regards the 1974 Act. He also wanted to add to those disqualifications a disqualification for 10 years for anyone convicted on two separate occasions of an offence which could have been tried, or was tried, on indictment.

That Bill also ran into rather rough waters. It did so because in endeavouring to make the voyage it created so many complicated little waves as to what could or could not be tried on indictment that it was realised, quite apart from other possible defects, that before anybody could know whether they were entitled to serve on a jury—if, indeed, they had run foul of the law at some time in their lives—they would have to be very substantial students of criminal law and procedure.

Indeed, the noble and learned Lords who help us so often on these occasions—the Lords of Appeal in ordinary—came to our assistance with contributions which, with deep respect, were acceptable to some of us but not to others of us, and sought to try to describe serious offences and other types of offences which might be caught by the Bill of the noble Lord, Lord Wigoder, and which might make it better. Therefore, they were then considering Bills which tried to deal with this very serious matter by way of the nature of the crime that had been committed. It was decided in the end, when this Private Member's Bill went before another place, to attack the matter from another angle and to deal with it not on that basis, but on the basis of this Bill which deals—in exactly the same way as did the previous Act—with the nature of the conviction, instead of the nature of the crime.

Lord Renton

My Lords, I think that the noble Lord means the nature of the sentence.

Lord Mishcon

My Lords, I am most grateful for that correction; I should have said the nature of the sentence, and not the nature of the crime. In my view that is a correct principle and a better one than the one which was adopted in the previous legislative attempts.

Having said that, I then look to see whether, for the sake of simplification, we have not turned over justice and the balance as to where we ought to be. When I see, apart from anything else, that a person who has had a community service order made against him will be disqualified for 10 years, and that then there is reference to somebody who has had a probation order—there is no question of age limit—made against him for five years, I wonder where we are getting to.

It is all very well—and I address this point to the noble Lord, Lord Renton—to talk about community service orders being made only under the provisions of the present legislation by which, but for the consent of the person to accept a community service order and but for its suitability, that person would go to prison. Anyone who practises in the criminal courts—I do not myself, but I have been advised by colleagues who do so—knows perfectly well that, most understandably, in the courts of our land, increasingly the magistrate or the judge is saying, "It is not sensible that this person obviously should go to prison. Equally it is not sensible that this person should get off scot-free. In my view he could really be made to have a sense of communal and community responsibility if I make a community service order and he consents to that order."

There are many people serving community service orders who do not come within a suitable category to be removed from this civic right and duty for a period of 10 years. I should have thought that all of us know that probation orders are on the increase. Indeed, I have before me some statistics with which I shall not weary your Lordships; but such orders are up by about 50 per cent. as against 1967. Those orders are made not just to save people from going to prison because prisons are overcrowded. They are made also because the offence is of a type in regard to which the court realises that very often a mistake has been made. The courts realise that somebody has been misled by a personality that is stronger than his. The offence has been committed—it need not be a heinous offence—and a probation order is made. From that point of view, to repeat that for five years there should be a disqualification must surely be wrong.

Finally, the balance must also be wrong if one is out of keeping, out of sound and out of sense with the rehabilitation legislation. As your Lordships may know, apart from other imbalances between this Bill and the rehabilitation legislation, one half of the rehabilitation periods that are required under that legislation apply to youngsters under the age of 17. Therefore, if the offence has been committed by someone under the age of 17, the sentences are halved against those for someone over the age of 17 from the point of view of the rehabilitation process.

There is no such distinction in this Bill. In many cases the legislation for rehabilitation will have been carried into effect in order to wipe a slate absolutely clean, but, under this Bill, the person concerned would still be disqualified and still have this stain upon his character in regard to disqualification from jury service.

I conclude in this way. This Bill is a necessary Bill. This Bill is a good Bill in some respects. But in many respects we shall have to look at it in Committee, and give it that amount of care and attention which it has not yet received anywhere, before we allow it to go forth as an Act of Parliament.

11.52 a.m.

Lord Harris of Greenwich

My Lords, at the outset I should like to say that, unlike the noble Lord, Lord Mishcon, I support this Bill almost without reservation. My single reservation relates to the point which the noble Lord, Lord Mishcon, made towards the end of his speech when he dealt with probation orders. At this stage I am not saying that I am necessarily opposed to the provision in the Bill, but it is only fair to say that many people in the probation service are concerned about it, and obviously we shall have to look carefully at this matter when we come to the Committee stage.

First, I must say that I am sorry that my noble friend Lord Wigoder cannot be present today because, as the noble Lord, Lord Mishcon, reminded us, he was the author of a Juries (Disqualification) Bill which passed through this House in the last Session of Parliament and which was blocked when it arrived at another place. At that time, as we have also been reminded by the noble Lord, Lord Mishcon, there was a Private Member's Bill in another place sponsored by a Conservative Member of Parliament. That Bill laid down that there should be disqualification on a single imprisonable offence, whereas the Bill of my noble friend Lord Wigoder laid down that there should be disqualification on the second indictable offence.

At the outset I recognise that there are real problems about where one, in fact, draws the dividing line; where one says that disqualification should follow. During the course of the discussion on my noble friend's Bill we had the opportunity to meet the then Home Secretary, the noble Viscount, Lord Whitelaw, to discuss this matter. Subsequently, we had another useful meeting with the then Minister of State at the Home Office, the present Solicitor-General. In fact, the present Solicitor-General asked our views on an approach which was rather similar to that laid down in this Bill, save for one very important qualification, which was that, as far as I can recall, the question of probation was not raised at our meeting, but certainly the question of community service orders was. As the noble Lord, Lord Mishcon, dealt with that matter, perhaps at this stage I could say why I disagree with him on the point of the community service order.

Lord Mishcon

My Lords, before the noble Lord does so—and I know that he will respect what I am saying, and if he disagrees with me he will say so—I, too, saw Sir Patrick Mayhew at that time and I understood from him that our discussions upon the Bill and upon what might take place in legislation were to be deemed to be private, which is why I, personally, did not refer to our meeting.

Lord Harris of Greenwich

My Lords, I am glad that the noble Lord had a meeting. As far as I can recall, we had no such agreement. We had a useful meeting with the Solicitor-General, but as far as I can recall there was no obligation on either side that there should be confidentiality.

I return to the point which I was about to make—namely, why I disagree with the noble Lord, Lord Mishcon, on the matter of community service orders. I believe that the noble Lord is wrong because, at the time of the passage of the 1972 Act, community service was regarded as an alternative to imprisonment. I believe that in circumstances of that sort it is quite different from a probation order and, for that reason—and I do not want to go into the matter in any great detail—I believe that it should lead to disqualification. Obviously, we can go into this matter at the Committee stage of the Bill, but at the moment I am certainly firmly in favour of it remaining in the Bill.

The principal reason why many of us have been increasingly concerned about the absence of provisions of the kind set out in this Bill is because of the change in sentencing practice in the courts. Since the Criminal Justice Act 1967 there has been an enormous growth of non-custodial disposals by the courts, which we all very much welcome. It was not until 1967 that we had suspended prison sentences at all as a possible disposal for the courts, and not until 1972 did we have community service orders.

In the light of what has happened since 1967,1 think that a situation has arisen which is unacceptable. As a result of this growth of non-custodial alternatives to imprisonment, many of those who now sit on juries have on many occasions been in the dock themselves. As I pointed out in an article in The Times on this matter the year before last, there have been a number of occasions on which people sitting as jurors at the Central Criminal Court have had eight, 10 or a dozen previous criminal convictions. Because of the new practices of courts, which bend over backwards to try to avoid sending people to prison unnecessarily, they have not been disqualified. Perhaps I may cite one anecdote. Not so long ago I had the opportunity of going to one of the Crown Courts in inner London and listening to the trial of a number of people who were finally convicted of shop-lifting. It was a serious offence and all the people concerned were sentenced to lengthy terms of imprisonment. But, when I heard their previous convictions read out, I realised that until that moment all of them would have qualified for jury service. The fact of the matter was that between them they had in the region of 30 or 35 previous convictions. In a number of cases there had been community service orders, there had been substantial fines, and there had been more than one suspended sentence of imprisonment. Simply because none of them had been put away in prison for a period of time covered by the present law, until that moment they would have been eligible to sit on a jury.

It may be asked: why should they not be able to sit on a jury? I think the answer to that is that most people who have themselves been criminal defendants on a number of occasions, who have stood trial before a jury and have been adjudged guilty, and who as a result of those experiences have had poor relationships (to put the matter at its lowest) with the police, cannot possibly evaluate evidence given by the police and other prosecution witnesses with that degree of impartiality which our fellow citizens expect from a British jury.

There is a second issue, which was touched on by the noble Lord, Lord Mishcon, and it relates to jury nobbling. I do not propose to go into this in any detail, but inevitably this Bill has some implications in this particular area. We have known over the last few years that there has been an increasing experience of this problem at the Central Criminal Court and at one or two other courts in London. In May of last year, for instance, I put a Question to the noble Lord, Lord Elton, concerning the case at the Central Criminal Court of Regina v. Turner, Terroni and Brown, where, as a result of a complaint by a member of the jury that he had been improperly approached, the entire jury had to be given 24 hours a day police protection and over 78 police officers were involved.

That case related to an instance of jury nobbling where a complaint had been made by a member of the jury. But what happens in those cases, which one is afraid do occur, where a complaint is not made by a member of the jury because they are in no way necessarily antagonistic to the people who make the approach? I do not want to make too much of this point because this is undoubtedly a fairly limited problem and it relates largely to London and major criminal conspiracy cases taking place at the Old Bailey. Nevertheless, it seems to me clear that it is much easier for a jury nobbler to approach a juror who has himself a substantial number of previous criminal convictions than someone who has never been in the dock of a criminal court in his life. Therefore, I believe that this Bill will have an additional advantage in that it will to some degree at least strengthen our defences against this dangerous practice of jury nobbling.

With that I come to end of my speech. I am a firm supporter of this Bill. My only complaint is that we did not have it at least a year or more ago. Nevertheless, it is now here, and I warmly welcome it subject to the point on which I, for one, shall certainly want to be reassured about those people who have had probation orders made against them. I shall certainly support the Bill through its Committee stage.

12.4 p.m.

Lord Donaldson of Kingsbridge

My Lords, I, too, am in full support of this Bill with one reservation, and I have little to add to what my noble friend Lord Harris has said. I think that I agree with all his points. In particular, I support him rather than the noble Lord, Lord Mishcon, over the community service order. It is laid down that a community service order is in place of imprisonment, and though I believe that it is quite frequently used otherwise it is an abuse of it to do so. This Bill may help in that way.

The only point I want to make—and it is quite a short one—is to develop the allusion that my noble friend made to probation. I am not at all happy about this, and a lot of my noble friends are not happy about it. We shall certainly table an amendment for the fullest discussion at Committee stage. It is not something to discuss now, but I should like to make one or two points. The first is that in the world of people who are concerned with criminals rather than with the law probation is seen as a second chance. A second chance means that you do not count the first matter. Therefore, I think that it is against the spirit of probation that people put on probation should be excluded in the same way as though they had been imprisoned. That is a most important matter.

Clearly, if somebody has been put on probation a dozen times then this needs looking at. But this is not the moment to look at it; I simply want to put the point. I am certain that it should not simply include probation as such; there must be some modification of that. It may not be easy to draft an exact legal definition which will make it quite clear, but that is a matter for Committee stage, to which I shall come back. Otherwise, I am in full support of the Bill.

Baroness Macleod of Borve

My Lords, I hesitate to rise, but I would have put my name down on the list of speakers if I had known that your Lordships would not ask the question of my noble friend Lord Renton that I want to ask. It is a short question, because I support this Bill, which is an important Bill. It is a question of semantics which I have discussed with my noble friend Lord Renton, and I have asked him whether he could find the answer for me today. The question concerns how this Bill will be implemented. As I understand it, people are sent a form almost out of the blue to tell them that they are required for jury service. Nobody is going to say, "Oh, I am terribly sorry but I cannot serve because I have been in prison for many years". They might well turn up and think, "Nobody is going to find out", and they will not know the law. I am wondering how it will be done.

Will every clerk of every court—and there will be hundreds and hundreds of people throughout the country called for jury service whose antecedents will have to be gone into—have to deal with this and find out whether their slates are clean, or will the Home Office do it and let them know in plenty of time whether some of the people they have called for jury service are not eligible to serve? That is my only question. I hope I gave my noble friend sufficient opportunity to find the answer, because I felt it was rather important; but I commend the Bill.

12.8 p.m.

Lord Hooson

My Lords, anyone who is concerned with the integrity of our trial system in this country, and who has practical knowledge of the sophisticated way in which large crime and international crime are organised these days, will support the principle behind this Bill. Having said that, I must give a more qualified support to it than have my noble friends Lord Harris and Lord Donaldson.

First, I do not think that this is the right way to go about what is in many ways an important constitutional change. It ought to have been a Government Bill. It is reprehensible that the elected House in our Parliament never debated the principles behind this Bill on Second Reading. It went through under the Friday afternoon procedure in the other place, which of course the noble Lord, Lord Renton, knows so well. It is a pity, therefore, that it went along in this way.

I have always thought that there should be automatic disqualification from jury service in respect of certain sentences passed. Therefore, the principle behind the Bill, that the disqualification should be based on sentence, is one that I commend because the judge, or whoever it is, has had to consider both the nature of the crime and the person sentenced, and it seems to me, therefore, that the sentence rather than the conviction is the important matter.

Having said that, I have always thought that there should be this kind of system, that there should be automatic disqualification and a discretionary disqualification. I see no reason why, in certain categories of cases, a magistrate or a judge should not be allowed a discretion to disqualify for a certain period of time, ranging from, say, two years to ten years. It would seem to me that such a system would be very much fairer and would deal with the problems that arise. For example, if a person is given a suspended sentence of imprisonment on a charge of dangerous driving, which certainly sometimes happens—it is not a rare occurrence—is he or she therefore to be disqualified from jury service for the next ten years? It seems to me a very hard result. On the other hand, I am bound to say that huge numbers of people are available for jury service in our country at the present time, and if one is going to err one must err on the safe side. So it is much more important that one preserves the integrity of the trial system in the long run, by keeping a balance in these matters, than that one imposes what is perhaps an unfair disqualification on a particular person.

1 am very much concerned at the fact that a community service order, if made, would automatically result in a ten-year disqualification. Whatever was the original intention of Parliament— and certainly, if one looks at the debates, it was intended that the community service order should be an alternative to imprisonment—the fact is that judges and magistrates today regard it as a sentence in its own right. I was a speaker at a judicial conference in Leeds towards the end of last year, and a fellow speaker, a distinguished judge, was certainly putting forward that view—that the community service order was now to be regarded as a sentence in its own right. For example, it is often passed as an alternative to probation.

In certain areas community service is extremely well organised. In the same districts or areas about five years ago one would have found a very much higher proportion of people put on probation than are put on probation today, because they are given community service orders. In practice, as opposed to whatever the theory of the matter was originally, the community service order is now regarded very widely as a sentence in its own right. Therefore, I have considerable doubt about that matter.

I also have considerable doubt as to whether a person placed on probation should automatically be disqualified for five years. When sitting as a recorder one would occasionally come across a person who one might have thought of in terms of a conditional discharge on whom one would impose a probation order simply because one thought that that person needed help and assistance. Is it right that such a person should be disqualified for five years? I think these are important matters. They have to be placed in the correct perspective, which is that what we are concerned with most of all is the integrity of the trial system.

I think I have pointed sufficiently to the problems that are bound to exercise your Lordships' minds. In Committee we must give very careful consideration to such points as these. Having said all that, I am convinced that in the long run we must certainly ensure that we have a system which enables people who would be automatically prejudiced against, for example, the prosecution to be exluded from juries, and we must remove from juries those who are particularly vulnerable to nobbling. It is the latter point which is of greatest concern in practice today. One knows that those involved in highly sophisticated, organised crime will go to all kinds of lengths to discover who is on the jury and to nobble. I do not think that it is a great or widespread problem. I rather disagreed with my noble friend Lord Harris of Greenwich when he suggested that this situation arises on many occasions and that there are people on juries with great strings of convictions. I do not believe that that happens very often. I think it is an occasional problem, and it is an acute problem with certain cases in London.

Lord Elwyn-Jones

My Lords, it has been said, I think quite unjustly, that Welsh juries are against crime but they are not dogmatic about it. In my experience as a recorder that was not in fact the case. I confess that in considering this Bill I do not feel dogmatic about a good deal of it—certainly not as dogmatic as the noble Lord, Lord Harris of Greenwich, if he will forgive me for saying so. That there is need to protect the integrity of the jury system by a provision, as practicable as possible, to exclude those manifestly unsuitable to serve on a jury is, I think, right. As my noble friend Lord Mishcon has said, we support the aims and objects of the Bill. The question really is whether the categories of exclusion are just, fair and effective.

As has been said by the noble Lord, Lord Hooson, and my noble friend, the treatment of this Bill in another place was really quite appalling. I think we are permitted to go as far as that with regard to the handling of it in another place. There was no debate on Second Reading, and the most brief and superficial examination at the later stages.

Lord Renton

My Lords, I wonder whether the noble Lord has overlooked the fact that plenty of time was available in Committee, and one and a half hours of it was used. One distinguished Member of the noble Lord's party. Mr. Dubs, moved a number of amendments, withdrew all but one of them, and had a Division on one in which he got very little support. I do not think it is right to say that there was a lack of proper discussion or of an opportunity for discussion in the other place, because the discussion could have lasted even longer than it did at the Committee stage.

Lord Elwyn-Jones

My Lords, one could look at the Hansard report of those proceedings. I am told that there were 14 Members in the House in another place, and that discussion was perfunctory. However, perhaps this matters not: the fact is that it is now before us, and we must do our best with it.

My anxieties have been expressed by my noble friend Lord Mishcon and by the noble Lord, Lord Hooson, in terms with which broadly I am in agreement. I would venture to have second thoughts about the inclusion of community service orders as an automatic ground of disqualification for a term often years. The quality and nature of a community service order implies, I should have thought, first, the view that the court did not think that prison was the appropriate treatment; it is an alternative to prison. Secondly, it implies that the offender has indicated a capacity for rehabilitation and reform. There is no doubt that in a very large number of community service order cases the effect of carrying out the terms of the order has been remarkably beneficial. I recently went to my old constituency, where some of the community service workers were explaining publicly the nature of their work. Some of the people there, who were then assisting in the enforcement or the carrying out of community service orders, had themselves been the subject of community service orders.

So I feel at this stage, anyway, that an automatic disqualification in all cases really needs second thoughts. It means a denial of the duty and the status of the person concerned to be deemed worthy of serving on a jury, and it is something that really needs looking at again.

On probation, I agree strongly with what my noble friend and the noble Lord, Lord Hooson, have said. One probation case of course differs from another. I confess that I do not quite see the practicality of the suggestion of the noble Lord, Lord Hooson, of a wide and general discretion on the part of the judge dealing with the case in the first instance in all cases. I do not think that that would be practicable at all. It would place too much uncertainty where there ought to be clarity, so I think that a discretionary approach would be helpful.

All I wish to say is that in supporting the Second Reading of the Bill and the provisions in subsection (1)(a), (1)(b) and I think, on the whole, (l)(c) there is room and need for further thought about the two aspects of the automatic disqualification in respect of community service orders and probation. Regarding prison, perhaps we should consider that one day spent in prison would be a sufficient basis for disqualification.

12.21 p.m.

The Lord Chancellor

My Lords, I must say that I have enjoyed this debate. All except two speakers were members of my own profession. I do not think that they were any better or any the worse for that—if I may say that to the two who are not.

My function, which is a relatively humble one and which I hope will be a relatively short one, is to give the Government's view on my noble friend's Bill. I also hope to express my own opinions occasionally which may seep through the official brief. In our view this is a valuable Bill and we should like to give it a fair wind. My noble friend has performed a public service in introducing it and has assisted the Government in carrying out a manifesto commitment which should not, I hope, arouse—and I do not think has aroused—controversy on party political lines.

I do not agree with the criticisms which have been voiced of another place, or that of the noble Lord, Lord Hooson, who said that it ought to have been a Government Bill—it was in our manifesto and it could have been, but it is here in the form of a Private Member's Bill. Who are we to criticise another place for having passed it in another form? I must say with great respect to those who said they did not discuss it enough that if this House has a fault it is that it discusses things too much. I think another place has one privilege—the noble and learned Lord on the Front Bench will confirm my view in this aspect. One of the undoubted and unquestioned privileges of the House of Commons is that they manage their own affairs. I think they managed this affair rather well and probably rather better than we are doing so now. We have made rather too much of a meal of this. We ought to have legislated on this point, as I think the noble Lord, Lord Harris of Greenwich, said, and got it right or reasonably right a long time ago. I do not think perfection is the objective here. The objective is to get a right principle and apply it in a common-sense kind of way. I should like to approach this subject therefore from the point of view of principle and only adumbrate—because we shall have a Committee stage—some of the Committee points which have been raised in this debate.

The object of criminal justice, oddly enough—as my father used constantly to remind me—is to convict the guilty and to acquit the innocent. But since the world is not a perfect place, one has to add the proviso that we must make absolutely sure that, so far as human justice can achieve it, the innocent are never convicted. The price one pays for that is that the guilty are sometimes acquitted.

Having made my short filial tribute, I point out that the safeguards of the proviso are the burden and standards of proof required of the prosecution, trial by jury in indictable cases and the rules of advisability regarding certain types of evidence. That is how we protect the innocent against the false conviction. But trial by jury, which is what we are discussing now, is a civic right; but it is a civic right primarily of the accused. It is for the protection of an accused person. I was surprised to hear the noble Lord, Lord Mishcon, and I think by implication some other speakers, say that to sit on juries is something which people are raring to enjoy. I was more surprised by the noble and learned Lord than anyone else because he, like me, must have received in his distinguished period of office piles of letters from Members of Parliament and members of the public complaining precisely that they were compelled to sit on juries very much against their will. It is an onerous public duty from which most of us would be only too glad to be excused.

Speaking for myself, I have been disqualified from sitting on juries for almost the whole of my adult life. I did not regard it and never have regarded it as a deprivation of a civic right like the right of free speech or the right to vote. I heave a sigh of relief that I simply cannot receive a jury summons. It is wholly unrealistic to start considering this Bill from the point of view that we are depriving potential juries of something that they ought to want even if they do not.

Lord Mishcon

My Lords, the noble and learned Lord is always courteous and jovial, and we appreciate both dispositions. However, would he please take the point on board that there is nothing quite so hurtful as a right that one never appreciated before when one finds it has been withdrawn for some nefarious reason, not the reason of being a member of the Bar?

The Lord Chancellor

My Lords, I think it is wholly unrealistic. The noble Lord, Lord Mishcon, very modestly admitted that he was not so familiar with criminal trials as with some other branches of the law. It is absolutely unrealistic to see persons who are on probation complaining that they are not allowed to sit on juries. Really! what are we coming to? What the noble Lord says is that there are two great fallacies which mislead people in public life: one is the false premise and the other is the false analogy. The noble Lord, Lord Mishcon, at various stages in his speech, was guilty of both; but this was a case of the false premise. The false premise is that the right to sit on juries is a right in the potential juror which he enjoys tremendously once every 10 years and not a right in an accused person to be tried by 12 of his fellow countrymen.

I was talking about the protection of the proviso, the protection of the innocent against a false conviction. On the main principle that the purpose of criminal justice is to convict the guilty and to acquit the innocent—that is the main principle to which the proviso is a protection—both sides are equally entitled to an impartial jury. From the very earliest days of the common law these were described (using, I am afraid, the male gender because in those days women were excluded) as "12 lawful men"—homines legales. We are discussing where one draws the line about those who are doubtfully legales.

The victims of crime and the public are both equally entitled to this safeguard as the defence. This has always been the rule and in a sense this Bill only articulates it. In the past, as my noble friend Lord Renton pointed out, when sentencing was more severe the problem was not so acute because the persons who perhaps now would sit on juries at the Old Bailey were in prison and could not do so. In the case of felonies, they were—alas! too often—no longer with us at all. But modern sentencing means that very many criminals do not go to prison at all or else for a very short time. We are, I am sure, all agreed that this is a great advance in the humane treatment of prisoners. But for goodness' sake let us not muddle up the humane treatment of prisoners with the right of people who might otherwise in the past have gone to prison to sit on juries, because that is the example of the false analogy. I shall come back to this again and again. There is the false premise and there is the false analogy.

In another place, the case was quoted of a man with 15 convictions who did sit on a jury. He was quoted as saying: "As far as I'm concerned, all defendants are not guilty unless they've been molesting kids. If a guy has done a bit of thieving to get a few bob, that's alright with me". Unfortunately, of course, he had even failed to notice the advent of decimal coinage. In the result, the juries on which he sat had acquitted a number of defendants of the fact of whose guilt he had entertained no doubt. Another juror known as Mickey the Fish was quoted in a newspaper as saying, "It's crazy having people like me on juries. I'd find everybody not guilty if I could". He was actually serving a suspended sentence at the time.

We must have some sense of proportion, some common sense in this. Quite apart from bias of this kind, a man or woman with a serious criminal record—as has been pointed out by more than one speaker—is quite unlikely to be able to bring an impartial mind to a case and is particularly vulnerable to blackmail, bribery or intimidation, which has been used (I suspect in increasing numbers of cases) to nobble juries in recent years. The noble Lord, Lord Harris of Greenwich, referred to this. There was one man whose name I shall not mention who actually boasted that he could never be convicted at the Old Bailey by an English jury—and he had some reason for this boast: he had, in fact, been acquitted six times. Of course, one can say that a man is innocent until he is proved guilty. He was proved guilty at the seventh time and went to prison for seven years. But on the previous occasions he must have been an extremely unlucky man to have false accusations brought in for him on indictment six times; or perhaps it is just possible that he was not altogether innocent of having got himself an acquittal.

My Lords, the present law, as my noble friend Lord Renton has reminded us, is based on the consolidating measure of 1974. That, in turn, had its roots in the report in 1965 of the Morris Committee, chaired by the late Lord Morris of Borth y Gest. Prior to that, I suppose that the householder qualification probably kept many convicted criminals off, but there was little statutory disqualification. As we have been reminded, under the existing law, recipients of an actual sentence of from three months up to five years are disqualified for five years; but if the sentence is one of over five years the ban is for life. The last provision is not affected by the present Bill. Exactly where, and on what criteria, we have to draw the lines, we may define a little more exactly in Committee. But I think it is now extremely important that we should get on with the business of legislating this.

We were reminded of the McNair-Wilson Bill in another place, which failed. The noble Lord, Lord Wigoder, brought forward a Bill, again strongly supported by the noble Lord, Lord Harris of Greenwich, and that met with blocking in the other place. This Bill, though similar in purpose, operated on a slightly different and, I should have thought, better principle. May I say that any system that you have has to be automatic in order to make it possible at all—and that will bring me in due course to a point made by my noble friend Lady Macleod of Borve. It has to be automatic because, like the noble and learned Lord, Lord Elwyn-Jones, I think that it really is not on that every time a man is sentenced for something like dangerous driving or whatever, the judge should scratch his head and say, "Shall I add a discretionary disqualification for jury service?" I think again that that is wholly unrealistic.

Under Lord Wigoder's Bill, the criteria for diqualification were based on two or more convictions for indictable offences, with an automatic disqualification for 10 years. This Bill, like the present law, is based upon sentence rather than conviction. It contains two new disqualifications, one for five years (based on a probation order) and one for 10 years, based on custodial sentences, even if suspended, or on a community service order. Whether five years is the right period or whether it should include probation and a community service order, are things that we can discuss in more detail in Committee.

But I would put this thought in the minds of the House, if I may. First of all, when a man is actually on probation, he is in fact no longer a free agent because he is under supervision; and it is extremely important, however much one may regard probation as a good thing or as an alternative to prison, that a person who judges the case of another should in every way be a free agent to come to a conclusion. I daresay that after the probation order is over there will be a period in which he recovers his freedom. The principle was affirmed by the Morris Committee, who also affirmed the qualification of the principle. They affirmed the principle that serious criminals—whatever that may mean—should not be allowed to sit and they added the qualification that disqualification for jury service should not be for life where the sentence of the offence is trivial. That I think is a perfectly sensible way of approaching the principle.

There have been criticisms. I did not go along with the noble Lord, Lord Mishcon, when he introduced the analogy of the Rehabilitation of Offenders Act because that is the second false analogy in the argument. The Rehabilitation of Offenders Act was intended so that those with spent sentences should not be at a disadvantage in relation to others in society. But jury service, for the reasons I have indicated, is not analogous to this. The calculations resulting—as I think, my noble friend Lord Renton, or it may have been the noble Lord, Lord Mishcon, pointed out—from the Rehabilitation of Offenders Act are, in themselves, complex, and therefore they are unsuitable for this Bill, which requires a simple question easily answered.

I now come to my noble friend Lady Macleod of Borve. The way it goes is that you get one of these forms. It already asks whether you are disqualified and on that you have got to say, "Yes" or "No". It adds on the form the various types of matter which disqualify. You read through that and you say "Yes" or "No" at the end of it. It will continue the method of enforcement exactly as it is now but with the new disqualifications substituted for the old.

My Lords, it is one of the great merits of this Bill that it is workable as well as being right in principle. Potential jurors will be able to understand clearly what they are being asked to answer without difficulty on the facts. They will not need to know about the maximum penalties, they will only need to know what penalty was actually imposed upon them as a result of the court proceedings. It should be no more difficult to make checks in a particular case than it is now and it should be clear to the public who is excluded and who is not excluded as a result of this measure. But I ask the House when it comes to discuss this in Committee not to discuss it on the basis that potential jurors are being deprived of a valuable civic right—because that is absolute nonsense!

Lord Renton

My Lords, may I say that I am deeply grateful to all noble Lords who have contributed to this very interesting debate, and especially to my noble and learned friend. In his most interesting speech he has said a number of things which will enable me to shorten my few remarks in reply; but I think I am entitled to draw attention to a fascinating conflict which has arisen and to which my noble and learned friend referred—the conflict between the supposed human right to sit on the jury and the public interest in the pursuit of justice through the jury system. I must say that if there is such a conflict I think it is one in which the public interest must prevail. But it can also be expressed as a conflict between two human rights: the supposed human right to sit on the jury and the human right, if you are in the dock, to be tried by jurors who do not suffer from the various prejudices which we all know arise from having been convicted. It is in the light of that that I would implore noble Lords who have doubts about probation or community service orders, which they have so fairly and thoroughly expressed, to realise that we must be thinking of fairness to the man in the dock as well as to the public interest.

On the question of probation, I wonder whether I may, as others have done, just briefly reminisce for one moment because, as my noble and learned friend may recall, I spent a good many years as a recorder. During that time back in the 1960s, the Court of Appeal (I think it was still the Court of Criminal Appeal then) said that not enough use was being made of probation and that even in the case of recidivists who had spent years in prison it might occasionally be right to try probation in order to see whether the probation officer could practise the art of redemption more succesfully than the prison authorities had been able to do. So we found then, and still occasionally find, that men with tremendous criminal records are placed on probation; and if they have been placed on probation they may have gone straight for quite a long time and they may have put themselves outside what we might call the 10 year rule. But if they are placed on probation then surely we should think twice about allowing them to sit on a jury. I feel that that, in itself, is a very full answer to those who have doubts about whether probation should be included among the disqualifications in this Bill.

As to communty service orders. I was grateful for the support of the noble Lords, Lord Harris of Greenwich and Lord Donaldson of Kingsbridge, although they had some doubts about probation. It seems that we shall have some Committee discussion, although I must confess that I had very much hoped. in order to ensure the passage of this Bill on the statute book, that we might have been able to be a little more expeditious than that. But if it be so, then let it be so, and we will discuss these matters.

May I just add one brief word to what my noble and learned friend said in answer to my noble friend Lady Macleod? The truth is that enforcement of the disqualification provisions has caused no real difficulty because with regard to a person who commits a criminal offence under Section 20 of the 1974 Act, if he serves on a jury having been disqualified through his criminal record, that in itself is, of course, a considerable sanction and prevents a great many people going on. But police officers and court officials sometimes spot among the jurors-in-waiting that there is someone who is disqualified, and a tap on the shoulder may very well be enough to save a lot of trouble there. However, if the worst comes to the worst, the Crown prosecutor has the right to say that a juror shall "stand by for the Crown", as we say in the criminal courts. Indeed, one may go further and challenge for cause; so I think we can assure my noble friend Lady Macleod that enforcement will create no greater problems in the future than it has done in the past. My Lords, I repeat again that I am most grateful to all those who have taken part in this debate.

On Question, Bill read a second time, and committed to a Committee of the whole House.