Criminal Justice Bill [H.L.]

HL Deb 02 November 1987 vol 489 cc784-863

2.57 p.m.

The Earl of Arran

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(The Earl of Arran.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 98 [Criminal injuries]:

The Chairman of Committees

If Amendment No. 171 is agreed to, I cannot call Amendment No. 172.

The Lord Advocate (Lord Cameron of Lochbroom) moved Amendment No. 171:

Page 73, leave out lines 5 and 6 and insert—

1. ("(i) an offence which is specified in subsection (3) below; or
2. (ii) an offence which is not so specified but which requires proof of intent to cause death or personal injury or recklessness as to whether death or personal injury is caused; or")

The noble and learned Lord said: In speaking to this amendment I would also speak to Amendments 173, 175 and 183. These amendments bring together in one place the definition of a "violent offence" and remove any implication in the existing wording that the offences specified in subsection (3) are not offences of violence. Amendments Nos. 173, 175 and 183 are consequential drafting amendments. I beg to move.

Lord Morton of Shuna

This amendment turns round the drafting of Clause 98(1) and I would have no objection to it. However, I remain baffled as to why it is thought that the offences in subsection (3) are not offences which require proof of intent to cause death or personal injury or recklessness. One would have thought that that naturally applies to rape or to any offence of causing bodily harm, to arson, to offences which cause personal injury under the Explosive Substances Act and under the Firearms Act, and the same to riot and affray. It seems to me that subsection (3) is completely otiose and unnecessary, but I suppose there is no difficulty in saying everything twice.

Lord Cameron of Lochbroom

The reason why subsection (3) is there is to assist in eliminating uncertainty at the borders of the scheme. The Committee will understand that this is a statutory scheme which will apply on both sides of the Border. I understand that there are certain differences in the way in which our respective criminal law looks at certain crimes and offences. It is for these reasons that it is thought better to make the matter entirely clear—which I am sure the Committee would wish in a scheme of this kind—that this specification is given.

Lord Morton of Shuna

In considering the matter, the Government are taking into account the views expressed by Lord Justice Lawton when he said that the board will be able to recognise a crime of violence when they hear about it, even though it is difficult to provide a definition which is not too narrow or too wide. That is an English lawyer's approach to the matter which has, I should have thought, a great deal of common sense. Once one tries to define a matter too far one then gets into difficulties.

Baroness Phillips

As regards subsection (3), would the noble and learned Lord explain why the Scottish offence of wilful fire-raising does not appear to be an offence in England? Is there a different definition of that offence?

Lord Cameron of Lochbroom

I understand that in England the offence is called "arson". In Scotland we describe it in a slightly less oblique way.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 173: Page 73, line 16, leave out subsection (2).

The noble and learned Lord said: This amendment is consequential. I beg to move.

On Question, amendment agreed to.

The Chairman of Committees

If Amendment No. 174 is agreed to, I cannot call Amendments Nos. 175 to 182.

Lord Morton of Shuna moved Amendment No. 174:

Page 73, line 22, leave out subsection (3) and insert— ("(3) Any person who deliberately places himself in the path of an approaching train or engine on a railway shall be deemed to commit an offence for the purposes of this Part of this Act only.

The noble Lord said: This amendment has been tabled in order to deal with the offence classified in subsection (3)(j). I shall also speak to Amendments Nos. 181 to 184. The offence under Section 34 of the Offences Against the Person Act covers almost any action on a railway that endangers anyone in any way. As on Thursday, I should declare an interest as a member of the board. I doubt whether the Government intended the board to cover people who open carriage doors as the train is coming into a platform and causes injury in that way, or somebody who makes a mistake at a level crossing.

As I understand the matter, this subsection is intended to cover the unfortunate practice of people who commit suicide by throwing themselves in front of a train and cause nervous shock to the driver. The Government have undertaken that that situation should be covered, and Amendment No. 174 is intended to deal with it more happily and not to cover anything else.

Amendment No. 181 attempts to put the same idea into words that would be necessary for the framing of subsection (3) if the other list remains. Amendment No. 184 is designed to remove the subsection which, I must say as a Scot, I find extremely difficult. The noble and learned Lord opposite will no doubt consider how a solicitor in Ullapool, or otherwise in Lochbroom, can be expected to know what would be an offence under an Act which applied only to England when advising a client who might have a claim. It seems to me that that could be more happily expressed in words which could be more easily understood by people in Scotland. I beg to move Amendment No. 174.

Lord Denning

I should like to say a few words in support of the amendment. It is important that such cases should be covered. At the moment it is an offence unlawfully and maliciously to intend to endanger life on the railway. That does not cover the case of suicide. Perhaps I may remind the Committee that in the old days the offence of suicide was the most heinous crime known to our English law. It was a felony for a man to rush unasked into the presence of his maker. He had no Christian burial; his body was staked to the crossroads.

There was a case in respect of the matter when I was at the Bar and it was held by the House sitting judicially that suicide was the most heinous crime known to our English law, as I have said. No one could recover in respect of it. In 1961 Parliament abolished the crime of suicide and attempted suicide and they are no longer offences in English law. However, for the purpose of compensation, ought they not to be covered for victims of a crime of violence? The amendment clearly relates to suicide or attempted suicide. It reads: Any person who deliberately places himself in the path of an approaching train or engine on a railway shall be deemed to commit an offence for the purposes of this Part of this Act only'". Is it not right therefore that the engine driver, in a sudden state of shock, or people in the train, should receive compensation if they are injured by that act of suicide or attempted suicide? I support this small addition which gives rise to the payment of compensation to people who are injured by such acts.

Lord Cameron of Lochbroom

I doubt whether there is any disagreement in principle between the noble Lord opposite and myself as regards what we are attempting to achieve in this part of the Bill. I should like to remind the Committee that the subsection that we are considering was included in the Bill when it was being considered in another place before the end of the last Session in response to an Opposition amendment. It was included because attention had been drawn to the cases of train drivers who had suffered nervous shock when someone committed suicide by throwing themselves in front of a train, or by someone who was trespassing on a track and was knocked down and killed by a train.

I suggest that the problem is not happily solved by the noble Lord's formulation because it would narrow down the clause beyond what was intended, as I believe is now clear from what I have said. It would also open up a debate about cases involving suicide or attempted suicide in a wholly unpredictable and possibly extensive and expensive way.

I accept, as is important to bear in mind, that there is some measure of restriction in the provisions particularly of Clause 99(8) which specifies certain conditions which must be met before such cases can arise. Subsection (9) specifies condition so far as qualifying injury. The problem being that which I have set out, and the fact that the present amendment would be insufficient, it was thought that what was proposed would be satisfactory at least to deal with the instances with which Parliament was concerned to deal.

As the noble Lord opposite pointed out, the problem in Scotland is that there is no readily identifiable Scottish equivalent to Section 34 of the 1861 Act. I accept that there may be problems for Scottish solicitors. There are none in Ullapool but I accept that Scottish solicitors elsewhere might find difficulty. However, this is a scheme which will become generally well known. I should not have thought that the difficulty was in itself sufficient to preclude this method of getting round our problem of drafting.

It is important—as the noble Lord's amendments recognise—to ensure that the position in Scotland is the same as it is in England and Wales. It seems to us that at present the only practical method of achieving that, however inelegant it may appear, is by the formula in subsection (5). However, since we are at one in what we are seeking to secure, I should be happy to undertake to draw the difficulty to which the noble Lord opposite has alluded in his amendment to the attention of my right honourable friend the Secretary of State for Home Affairs in order that the matter can be reconsidered in the light of this debate. I cannot promise that necessarily we shall find a better answer.

It would perhaps be difficult to use a word such as "suicide", at least in the context of suicide being a crime as it was known in the law of England, for the simple reason that in the law of Scotland I do not think that suicide has ever been a crime, at least not for some centuries. Therefore, while I cannot accept the present amendment, I certainly should be happy to consider whether this matter can be resolved in a slightly more elegant way than is presently secured.

3.15 p.m.

Lord Irvine of Lairg

It was good to hear the noble and learned Lord indicate that he thought that this matter called for further consideration. For my part, I should like to invite him to focus upon Amendment No. 181. The Bill seeks to deal with the situation as it was revealed in the Warner case; namely that train drivers who suffered nervous shock as a result of witnessing suicides on the line could not be compensated because, although the suicide has committed an offence under Section 34 of the 1861 Act, that offence did not constitute a crime of violence.

We welcome the fact that the Bill seeks to bring cases of that type within the Act by including the relevant offence among those which Clause 98(3) specifically lists as entitling the victims to compensation. Indeed we urged that in another place. However, I invite the Minister in his considerations to bear in mind two essential points.

I question whether the Government have not gone rather too far in one regard and left a loophole in another. Section 34 of the 1861 Act is not confined to railway suicides. In a paraphrased version of the words of the section, it catches anyone whose unlawful act, or wilful omission, or neglect, endangers the safety of any person conveyed or who is in or upon the railway. The world "wilful", as is well established in law, connotes only that the act or omission is intentional. This provision means that any negligent act or omission, so long as it is performed intentionally, will probably amount to an offence under that section if it is such as to endanger the safety of persons on the railway.

Let us take the example of a man who puts his heavy suitcase on the luggage rack. The suitcase is too big for the rack and falls off when the train starts, injuring another passenger. An offence under Section 34 has probably been committed and in the present circumstances it matters not that no prosecution would be brought in such circumstances. The point is that as the Bill stands the injured passenger will be able to obtain compensation from the board. The effect is to give victims of negligence a specially privileged position if they happen to be railway passengers.

Of course, it is high time that we had a state system of compensation for accident victims, as was recommended long ago by the Pearson Commission. But this scheme relates to injuries resulting from crimes of violence. The railway suicide is a special case. The special case should be tightly defined and should not bring in quite unrelated situations.

Amendment No. 181 sets out what it is that a railway suicide does and makes that action a qualifying offence for the purposes of the Act. That is my principal reason for commending it. However, the amendment also has the important advantage of forestalling any possible argument that the suicide did not endanger any other person and therefore no offence was committed under the 1861 Act. For example, it might be argued that no one else has been endangered if the suicide has merely stepped in front of one of the new high speed trains. It is appreciated by the noble and learned Lord that without danger to others there will be no offence under the 1861 Act.

Since the Government are committed to bringing such cases into the scheme for the benefit of train drivers, I suggest that they do so clearly and without leaving any possible loopholes. If accepted, Amendment No. 181 means that there will be no need for subsection (5) to create a kind of Scottish equivalent of the Section 34 offence. As I understand it, that is why the effect of Amendment No. 181 is to delete that subsection. It is also independently beneficial because it would avoid the need for Scottish members of the board to apply English statute and case law with which they are not familiar. For those reasons, in addition to the arguments advanced by the noble Lord, Lord Morton of Shuna, I urge the noble and learned Lord to consider with care the particular merit of Amendment No. 181.

Lord Grimond

Before we pass from this amendment, would the noble and learned Lord the Lord Advocate be good enough to clarify one matter which may be perfectly clear to lawyers but which I do not entirely understand? At my local railway station the porter has twice been involved in the very unpleasant aftermath of suicides who threw themselves from the platform in the way of an oncoming train. During the discussion of this amendment reference has been made almost exclusively to engine drivers; indeed, I think it is written into one of the clauses that he has to be present at the act complained of. I suggest that the case of a porter who has to deal with the aftermath of suicide is serious. Certainly, the porter I have mentioned suffered severe shock and required medical treatment, though I do not know for how long.

Lord Cameron of Lochbroom

I am grateful to those Members of the Committee who have spoken further on this matter. In reply to the noble Lord, Lord Irvine of Lairg, the amendment as I indicated does not quite cover all the cases that were intended to be covered with regard to train drivers. To the noble Lord, Lord Grimond, I can say that the purpose of the scheme is to deal with crimes of violence to the individual and not, unfortunately, however it may be seen, to deal with those who may subsequently come upon the scene to deal with the aftermath. Such people may be firemen, ambulance-men and the like. They do not come within the terms of the scheme.

I am grateful to those who have spoken and, as I have said, I shall take these matters to my right honourable friend. In the Bill as it stands we have sought to meet a very genuine concern. The Committee has pointed out the problems that can arise, but for the reason that I have indicated I cannot accept this amendment. I invite the noble Lord opposite to withdraw it on the undertaking that I have given.

Lord Mishcon

Perhaps the noble and learned Lord will allow me to make one observation. Although we support the amendment moved so well by the noble Lord, Lord Morton of Shuna, it seems to some of us that it is a little clumsy to have criminal provisions that one does not mean to be criminal provisions at all. It is not the way that Parliament normally legislates.

The noble and learned Lord was kind enough to say that the whole matter would be reconsidered. With his right honourable and learned friend, will he at least consider the possibility of including some provision for an order which would add to those matters that the Criminal Injuries Compensation Board could consider and where indeed compensation could be awarded? From time to time we might well think of circumstances which properly come within that, and it seems tidier to do it by order empowering the board to deal with matters of that kind.

Lord Morton of Shuna

We have had an interesting and rather longer dicussion on this than I had thought was intended. I am very grateful for the support that I received from the noble Lord, Lord Irvine of Lairg. I am disappointed that the noble and learned Lord opposite did not seem to take the point that part of the intention of this amendment was to restrict the cases to certain types of event. I was also disappointed that he said that "suicide" should not be used in Scotland. I agree it should not be used in Scotland. It is not used in this amendment at all anyway. In these circumstances, in the hope that we can come to a satisfactory definition, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cameron of Lochbroom moved Amendment No. 175: Page 73, line 22, leave out ("(ii)") and insert ("(i)").

The noble and learned Lord said: I spoke to this on Amendment No. 171. I beg to move.

On Question, amendment agreed to.

Lord Morton of Shuna moved Amendment No. 176. Page 73, line 24, leave out paragraph (b).

The noble Lord said: I beg leave to speak to this amendment with Amendments Nos. 178 and 180. This is the list of offences. I speak with all the deference that is due from a Scottish lawyer speaking about English offences. We now have an offence—and this is in Amendment No. 171 that we have just accepted—which requires proof of intent to cause death or personal injury or recklessness as to whether death or personal injury is caused. Why do we require in the Bill to have what will be by the next amendment an offence under Section 47 of the Offences against the Person Act? I should have thought, with my simplistic approach, that an assault is clearly already included under the definition of an offence causing death or personal injury and, therefore, that one does not need either paragraph (b), as it now is, or the reference to Section 47.

If we go on to Amendment No. 178, that is to leave out paragraph (e), an offence under the Explosive Substances Act. If the explosion actually takes place and somebody is injured, there is no doubt whatever that that is within the definition and it is unnecessary to have the reference. I cannot for the life of me see how, under Section 3 of the Explosive Substances Act, there can be a personal injury which arises out of attempting to cause an explosion which, on the face of it, did not cause the explosion, or keeping explosives with intent to endanger life, which again entails that that has not yet happened.

Then one moves on to my Amendment No. 180, which raises an even more difficult problem, because the reference to the Firearms Act and the various sections would add into the band in which compensation has to be paid—maybe it should be, maybe it should not; but it certainly makes it interesting—airgun offences. This is the sort of situation where children are playing either as trespassers or in a public place with airguns, shooting at tin cans, and one of them gets hit. That is, depending on where it happens, Section 19 or Section 20. It also covers, or could cover, certainly purely accidental injuries occurring. It seems to offend against the general intent of this part of the Bill that we are dealing with, which is that it should be intentional or reckless causing of injury, not accidental. For the life of me I cannot see what is achieved by adding in the references to these Acts, because they are in the normal situation crimes of violence anyway. I beg to move.

Lord Cameron of Lochbroom

I indicated earlier that it was thought proper to make clear where difficulties were perceived on the margins of the general description of conduct which would fall within the terms of the scheme. I will deal first with Amendment No. 180. It is an offence to carry a firearm. That is part of our criminal law. The question arises as to whether there should be compensation for personal injury which is caused by any conduct which would fall within the terms of paragraph (f). No difficulty surely can arise with regard to the possession of a firearm with intent to injure. No difficulty surely can arise with regard to use of a firearm to resist arrest. No difficulty surely can arise with regard to a personal injury arising from carrying a firearm with criminal intent or carrying a firearm in a public place, or trespassing with a firearm. It seems to me perfectly appropriate that we make it plain within the terms of this clause what are the circumstances in which a criminal injury arises.

So far as Amendment No. 178 is concerned, I think it only fair to draw the noble Lord's attention to the fact that there is an amendment down in my noble friend's name which makes it clear that we are dealing here with the matter of an assault. So far as concerns the first matter—an offence of causing actual bodily harm to a person—it may be said that that does not necessarily come within the general description in subsection (1) as that is now amended. To make the matter entirely clear, it is thought appropriate to include that offence—one, I am bound to say, I should be more familiar with if I were an English rather than a Scots lawyer. Having said that, it merely makes clear why the matter should be made plain within the Bill itself.

With every due respect to the noble Lord's argument, these are entirely proper attempts to make the margins of this scheme clear so that there can be no difficulty for those who properly could come forward to the board and seek compensation for a criminal injury. I therefore regret that I cannot advise the Committee to accept these amendments.

Lord Morton of Shuna

I am obliged to the noble and learned Lord. I am sorry if I did not make myself clear, because it does appear to me that he has not answered the point, especially about firearms, which I was endeavouring to make. I will try to put it again very simply.

Section 19 covers carrying a firearm in a public place. Section 20 covers carrying a firearm while trespassing. Both of them include airguns. Children regularly injure themselves playing games with airguns, and they cause the board considerable difficulty as to whether an offence has been committed or not. What this Bill is doing is to add to these difficulties by saying that if the child who fires the airgun—and it usually is a child—is trespassing, there is liability; but if he happens to be somewhere with permission, say in a garden or in grounds, no offence is committed at all. Surely the Government do not intend such a bizarre approach to be taken. That is the difficulty which does not appear to be met. We are meeting certain classes of airgun accident. The others do not really cause any problem. However, we are leaving out other things which cause injury such as crossbows and bows and arrows. They are left out altogether. It is only the trespassing airgun, so to speak, or the public place airgun, which is covered. Private places, such as a garden, or somebody's estate or farm land where they are entitled to be, are completely uncovered. There is a difficulty which the noble and learned Lord might take on board and consider, but, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.30 p.m.

Lord Cameron of Lochbroom moved Amendment No. 177:

Page 73, line 24, leave out paragraph (b) and insert— ("(b) an offence under section 47 of the Offences against the Person Act 1861 (assault occasioning actual bodily harm:")

The noble and learned Lord said: With the leave of the Committee, I would also speak to Amendents Nos. 179 and 182. Amendment No. 179 is to define more precisely the offence of assault, which is covered by the scheme, and it removes the possibility that the present wording might be taken to include accidental injuries which would not entitle a person to compensation under the present scheme. The amendment to the reference to the Explosive Substances Act 1883 limits the application of the Bill to those sections of the Act containing offences which may give rise to injuries that would qualify a person to make application under the scheme. I beg to move.

On Question, amendment agreed to.

[Amendment No. 178 not moved.]

Lord Cameron of Lochbroom moved Amendment No. 179: Page 73, line 27, after ("under") insert ("section 2 (causing explosion likely to endanger life or property) or 3 (attempt to cause explosion, or making or keeping explosive with intent to endanger life or property) of").

The noble and learned Lord said: I have just spoken to this amendment with Amendment No. 177. I beg to move.

Lord Mishcon

Would the noble and learned Lord again consider, since we have had a long discussion now about the type of matters which should be covered by compensation, whether instead of trying to do a very difficult thing—namely, to include all these matters within this Bill—it would be wiser to have a general provision that by order the type of matters that can be covered by the board in giving compensation should be placed before Parliament with an affirmative resolution? We would then be able, as I say, to list from time to time matters that would occur to all of us as being proper matters for compensation, without having this rather difficult task before us now of seeing whether we have included things in a way which is satisfactory to the Committee.

Lord Cameron of Lochbroom

I think I undertook in regard to the 1861 Act to draw the matter to the attention of my right honourable friend the Home Secretary. Obviously I shall do likewise with regard to what the noble Lord has said. We must try to get the matter absolutely right. I accept that and I am not suggesting that our formulation is necessarily ideal. This is one of the reasons why Committee debates of this kind are so helpful. I hope that the noble Lord will not think that the Government's mind is closed on the matter. However, I think I have indicated the difficulties that we see in the amendments with which we are dealing.

Lord Morton of Shuna

There is a basic attraction in having the scheme set out in an order. But the difficulty about that, if I understand the procedure of your Lordships' House correctly, is that there will be no opportunity to amend the order or to persuade the Government to put in amendments. This sort of discussion would therefore be impossible.

On Question, amendment agreed to.

[Amendments Nos. 180 and 181 not moved.]

Lord Cameron of Lochbroom moved Amendment No. 182: Page 73, line 37, leave out from ("in") to end of line 38 and insert ("this subsection").

The noble and learned Lord said: This amendment is consequential. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 183: Page 73, line 39, leave out subsection (4).

The noble and learned Lord said: Again this amendment is consequential on Amendment No. 171. I beg to move.

On Question, amendment agreed to.

[Amendment No. 184 not moved.]

Clause 98, as amended, agreed to.

Clause 99 [Qualifying injuries]:

Lord Cameron of Lochbroom moved Amendment No. 185: Page 74, line 23, at end insert ("and references in this Part of this Act to an injury sustained in Scotland include references to an injury sustained, on, under or above any such waters as are mentioned in paragraph (e) above.").

The noble and learned Lord said: This is a technical amendment to provide that the various references in the Bill to an injury sustained in Scotland are covered by the geographical definition of qualifying injury in Clause 99. Perhaps I might mention a matter which the noble Lord, Lord Morton, raised on the last day in Committee about the Sumburgh air disaster. I think that this would cover that disaster in regard to the fact that it occurred above Scottish waters and was in a British hovercraft as that is defined in Clause 99(2). But I cannot say that that was the reason for this amendment. I beg to move.

Lord Morton of Shuna

I accept that this amendment goes some way. However, if one adds it as printed at the end of line 23 it becomes part of paragraph (e), which seems to be wrong. I should have thought it should be either paragraph (f) or a proviso or something else. Also it does not appear to cover the problem about the ships and whether a ship is to be regarded as Scottish, English or Welsh. That can make a crucial difference to the assessment of damages, especially if the assault takes place outside territorial waters.

Lord Cameron of Lochbroom

I think that the noble Lord has raised a point which I answered in Committee earlier. But so far as his first point is concerned, this is a matter of how it will look when the Bill is finally reprinted. I think he will therefore be satisfied that we can look at it again then.

On Question, amendment agreed to.

Lord Morton of Shuna moved Amendment No. 186: Page 75, line 2, leave out ("95") and insert ("98").

The noble Lord said: I have to speak to this amendment with Amendments Nos. 190,194 and 206. For some reason all the references to what should be Clause 98 are printed as Clause 95. I beg to move.

On Question, amendment agreed to.

Lord Morton of Shuna moved Amendment No. 187: Page 75, line 22, leave out ("so").

The noble Lord said: This amendment goes with Amendment No. 188. The difficulty I have is that if one looks at sub-paragraph (ii) of paragraph (b) half-way down page 75, one gets the astonishing assertion: if the person injured has not so ceased to live, that circumstances prevent him from doing so", which is not the happiest phrase in any statute. One can work out eventually what it is intended to mean, but I am trying to make the meaning clearer. I emphasise that a lot of the applicants to the Criminal Injuries Compensation Board are individual. They do not get advice from lawyers or anyone else. They are supposed to understand what we are providing for them. It is just to make the meaning clear that these two amendments are moved. I beg to move.

Lord Cameron of Lochbroom

I am aware of the purpose of this amendment. It might be described as an attempt to improve the elegance of the wording of the present sub-paragraph. I take the point that perhaps we ought to look to see whether we can improve sub-paragraph (ii) of paragraph (b). The intention is that it will take into account the circumstances which are referred to in the first sub-paragraph; namely, that there may be only one person, or more than one person, responsible for causing the injury. These amendments would not deal with the latter question. Equally the question of whether a claimant intends to resume cohabitation with the perpetrator in the future, the question that the person injured has not so ceased to live in the same household, would also require the claimant to satisfy the board that he or she, in intending to move out, was not intending to live again with the person or persons responsible for the injury. This is not an easy way.

I think the draftsman thought that the way in which he secured the objective, which I think is common to both the noble Lord and myself, is an elegant solution. It is apparent that the noble Lord does not think so. I shall go back and ask the draftsman whether there is a better way. It may be that at the end of the day it will more verbose. We have all sought to cut down the wording but if it makes matters plain I should be happy to secure that result. Perhaps with that undertaking the noble Lord will not press the amendment.

Lord Morton of Shuna

With that undertaking, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 188 not moved.]

The Chairman of Committees

If Amendment No. 189 is agreed to I cannot call Amendments Nos. 190 or 191.

Lord Morton of Shuna moved Amendment No. 189: Page 75, line 24, leave out subsection (6).

The noble Lord said: At this point I am speaking to Amendments Nos. 189 and 191 because they are really two ways of dealing with the same circumstance. Subsection (6) deals with the situation where a person sustains an injury when he is attempting to prevent an offence or apprehend someone or is assisting a constable who is so doing. As it stands at the moment in this subsection he is only required to satisfy the board that he was taking an exceptional risk. That may be so, for example, if a police officer were minded to run across the M25 during the rush hour to try to stop someone committing an offence against the Litter Act. But that is the point of Amendment No. 191. The risk must be a justifiable one, which is what is provided in the scheme at the moment.

Amendment No. 189 goes back to the position of some years ago where there was no such provision at all—neither the exceptional risk nor the risk that is justifiable in the circumstances. What this provision does not cover is the situation of a perfectly innocent person who is knocked down and injured by a store detective, a constable or someone else who is rushing after a thief.

An example of such a case is the Schofield case in 1971. That case went to the Court of Appeal and as a result the Government changed the scheme to remove that kind of injury from it. It may well be that the Committee will consider that that kind of injury should be included; that is, the injury that is sustained by an innocent person who is knocked down by someone trying to arrest an offender or trying to stop an offence. That is the purpose of Amendment No. 189.

If, however, it is not intended to cover that kind of innocent victim, in my view it would be necessary to qualify the provision in the way that the present scheme qualifies it by saying that the risk must be a justifiable one in the circumstances. That provision is contained in Amendment No. 191. I beg to move.

Lord Renton

I ask my noble and learned friend the Lord Advocate to give very careful attention to what the noble Lord, Lord Morton of Shuna, has said. I wish to draw upon a strange experience that I once had in order to support the case.

One night I saw a police officer apparently trying to arrest two men who were smaller than himself. He was a big uniformed police officer and the two men were of about my own stature. I approached the scene and I got hold of the man on the outside, as the police officer had both men on his right-hand side. I had of course made a serious mistake of fact because one of the people who looked like a rough was trying to help the police officer. That man thought that I had come to rescue the other rough.

He gave me a jolly big thump on the outside of the ribs. If I had been seriously enough injured to make a claim before the previous non-statutory board or, in the course of time before the proposed statutory board, it would have been very hard on me if my claim had been defeated by my having to make a calculation as to whether I was taking an exceptional risk. Therefore I consider that the noble Lord, Lord Morton of Shuna, is on to a good point.

3.45 p.m.

Lord Irvine of Lairg

We are of course discussing Clause 98(1)(b), which brings within the scope of the scheme injuries sustained accidentally but in the course of attempting to prevent an offence or to apprehend the offender. On page 75 of the Bill Clause 99(6) takes such injuries out of the scheme again unless the risk which the victim was taking was an exceptional risk for him to take". I find this a very obscure piece of drafting. I suppose that it probably means that the scheme is not to be concerned with people such as policemen and security officers for whom preventing offences and apprehending suspects is part of the daily routine. If so it would perhaps be better to have a reference to the normal course of employment. But perhaps I am entirely wrong about that and that is not the point. Perhaps the question is whether it was exceptional for the character of the individual in question to take the risk. So the bold type who would think nothing of having a go would be excluded because his public spirited action is nothing exceptional for him, but his more timorous neighbour who plucks up courage and commits the same action would get compensation if injured. That situation would obviously be very odd indeed. As I have said, it may be that that is not what is meant at all. However, it is not clear whether "exceptional" intends to have regard to personal qualities or occupational position.

I invite the noble and learned Lord to explain and tell us what is intended by "exceptional". I can imagine all kinds of other difficulties of interpretation arising from this subsection. On the footing that it refers to employment does "exceptional" mean not part of the job or very infrequent in practice? If it is the latter does that mean that a superintendent of police who happens to get involved in an incident could claim but the man on the beat could not? Does "the risk" mean the risk that is actually perceived in advance by the victim or the risk which hindsight shows objectively to have existed?

I invite the Lord Advocate to consider the case of a police car which is in hot pursuit of an offender trying to make his escape. The car goes out of control and injures a passer-by. Prima facie the passer-by has sustained an injury caused by the attempted apprehension of an offender and would be entitled to compensation by virtue of Clause 98(1)(b) but he must satisfy the board that the risk that he, the passer-by, was taking was exceptional. But how on earth is the notion of taking a risk to be applied in that context? It simply cannot be applied. It does not arise.

In any event why exclude professionals who are concerned with law and order where the injury is accidental but not where it is deliberately inflicted so that it falls within Clause 98(1)(a)? Let us take this example. A robber deliberately assaults a security guard. That falls within Clause 98(1)(a) so the guard can be compensated although he was doing nothing whatever that was exceptional at the time. But if the guard chases a robber from the scene of a wages snatch, runs into the path of a car and is hurt, the subsection that we are discussing may deprive him of compensation on the grounds that what he is doing is not undertaking an exceptional risk for him, although a mere passer-by who chased the robber and met the identical misfortune would recover. Is that really what is intended? For my part I find this very obscure and very unsatisfactory. That is why I support Amendment No. 189, which would delete subsection (6).

I hope that we shall hear the noble and learned Lord the Lord Advocate say that he will take the time to consider those various points. For my part, I should not be minded to move Amendment No. 191 because I regard the provision in its present form and structure as being beyond redemption.

Lord Cameron of Lochbroom

Perhaps I may first say that the exceptional risk part of the sub-paragraph has been part of the non-statutory scheme since a report published by an interdepartmental working party in 1978. I have heard nothing to suggest that the board has had substantial difficulty in dealing with the matter. However, I should like to explain that the reason for the introduction of the question of exceptional risk was that the working party felt that while accidental injury was deserving of public sympathy, it was questionable whether compenation from public funds for all injuries incurred by accident was a proper purpose of a scheme designed to compensate the victims of violent crime.

The noble Lord, Lord Irvine, gave me what I rather thought was viva voce in this matter. With due deference to him, I should have thought that his bystander would not fall within the reasonable meaning of personal injury, as set out in Clause 98, caused by…the apprehension or attempted apprehension of an offender or suspected offender". However, I recognise that no two lawyers necessarily have the same view about the meaning of a statute. That is why we have judges.

The case which brought the question of injuries inflicted in circumstances of accidents within the scope was the earlier case of Ince in 1973. Until then, those kinds of cases had been excluded. The Court of Appeal took a different view and as a result compensation was likely to be payable, for example, not only to a police officer injured at the scene of a crime while taking active steps to prevent its commission but also to any officer who believed that an offence was about to take place and was accidentally injured in taking some action to prevent it.

In the case of an attempt to arrest, any injury accidentally sustained from the time that the police officer received instructions and responded to them might have been within the scope of the scheme. Such a situation would have required the scheme to provide compensation to a police officer who walked into a lamp post while proceeding to the scene of a reported incident.

Those are perhaps ways in which one can demonstrate how far one is getting from the purpose of a scheme designed to compensate the victims of violent crime. It was for that reason that the working party report of 1978 recommended the inclusion in the scheme that compensation for accidental injury in the circumstances set out in Clause 98 should be payable only where a person takes an exceptional risk which is justified in all the circumstances.

That leads me to Amendment No. 191 which seeks to restore to the statutory scheme as proposed the justified risk element of the exceptional risk test which the board must consider in the case of accidental injury. In the non-statutory scheme the justified limb of the test is intended to avoid giving compensation to a person whose actions, though laudable in having the objective of preventing crime or arresting an offender, was such that he was liable to incur injury with no appreciable prospect of achieving the desired result. If, on the other hand, the desired result is the prevention of a trivial offence, then the action would be less justifiable than if a serious offence is in prospect or is being committed.

On consideration, we feel that the need for the subsidiary test for accidental injury is an unnecessary further qualification for the board to consider. It imports a large element of subjectivity into the board's consideration of actions undertaken on the spur of the moment. Its absence from the provisions of the statutory scheme would, we suggest, assist rather than hamper the board's consideration of an application that falls under subsection (6) of Clause 99 In one sense, it may therefore be said to go wider than Amendment No. 191.

With regard to what my noble friend Lord Renton has said, I take the point that if he had been able to identify the real culprit and had received a blow from him, he might well have brought himself within the terms of the scheme. I recognise that there are always certain difficulties on the margins. But at the end of the day, I should have thought that some form of certainty is better to secure the result which we want in a statutory scheme. The exceptional risk clause has been with us since 1978. As I say, I am not aware that it causes any undue difficulty in separating the purely accidental from those cases in which it may well he appropriate to award compensation.

We have not gone so far as the present non-statutory scheme because we have taken away the justifiable element which is superadded to the exceptional risk and therefore, I suggest, given the board a greater discretion than they have at present. Again, that seems to me to be a laudable objective. For those reasons (which I have explained as well as I can to the Committee) we cannot accept either amendment.

Lord Renton

I have listened carefully to my noble and learned friend. However, I wish to ask him to consider the matter further. The fact that the provision was in the non-statutory scheme and that the Government are proposing to relax it somewhat to give the board a wider discretion does not get over the difficulty that people who try to help the police to make arrests should not be penalised by having the burden of arguing a case which may depend upon a very fine distinction.

I should have thought that if we are making the criminal injuries compensation scheme statutory, we should try to avoid fine distinctions and aim at the justice of each case within the discretion of the board. The board is bound to have to use its common sense, in any case. I am very disappointed to find that my noble and learned friend is not prepared so far to consider this matter further. I urge him to take it away and think about it. There are many difficulties in retaining the provision in the Bill as it is at the moment.

Lord Grimond

I feel that the series of amendments deserves support. I find it puzzling to see how the board has managed up to now to deal with those matters. One often sees in the press that the public is warned against attempting to interfere with dangerous criminals. I take it that if one interferes in a case in which a dangerous criminal is involved in spite of that warning, as that is obviously an exceptional risk one will get compensation for injury. However, if one merely attempts to assist the police in the normal run of their duties—which would seem a wholly reasonable thing to do—and if one is seriously injured, then because the risk was not obviously exceptional, one might receive no compensation. I must say that—

Lord Renton

Will the noble Lord permit me to interrupt him? I believe that he should bear in mind that it is not only a police officer's duty but, if an arrestable offence is being committed, it is also the citizen's duty.

Lord Grimond

I am grateful to the noble Lord, who speaks with great authority on those matters. He is unquestionably right. I must confess that as the matter stands at present, it seems to me to be totally anomalous. I should have thought that it is a matter which the Government should take away and reconsider.

4 p.m.

Lord Morton of Shuna

I am very grateful for the support that I have had from noble Lords and especially from the noble Lord, Lord Renton. If the Government do not consider that this clause in the scheme would cause difficulty then the members of the board, of whom I am one, have not managed to get our point across. It causes tremendous difficulty as to what is to be exceptional, for one thing, on the points mentioned by my noble friend Lord Irvine of Lairg; but what is unfortunate in my view, is that we have not dealt at all with the situation of the bystander. The noble and learned Lord has not dealt with that.

Perhaps I can illustrate this by citing the case of Ince, to which he referred. That case concerned a police car which was travelling with siren blaring in response to a burgular alarm and had a road accident when it went through a red light. Mr. Ince's widow was in the end compensated. However, if such a car in such a situation had knocked down an innocent pedestrian who was standing waiting for the lights to change so that he could cross the road, that person would not be within the scheme at all at the moment. That is what I am querying. Such a person would be accidentally injured—a person not taking any risk, but just waiting for the green signal to appear. Yet it is quite clearly an injury caused by a crime or an attempted crime.

It is very satisfactory that we have changed the wording from "directly attributable" to "caused" and that gets us away from the argument on causation and into the normal civil law. However, I would suggest very strongly that this is a matter which requires cosideration, for the reasons I have endeavoured to put and which have been put very strongly by the noble Lord, Lord Renton.

Lord Harris of Greenwich

I hope the noble and learned Lord will listen—I am sure he will—to the points that have been made in this short debate, not least by the noble Lord, Lord Renton. In a number of cases, as he will be aware, chief officers of police in England and Wales (and so far as I know in Scotland as well) have asked for the assistance of members of the public to help the police when they are involved in an episode of the kind which has been described. I think it would cause widespread concern were they to believe that people who were injured as a result of attempting to assist the police were not to receive the degree of assistance which I think most of us believe they should receive.

Lord Cameron of Lochbroom

I detect from the views that the Committee have placed fairly forcefully before me that there appear to be two elements. The first concerns those who actually assist or may themselves, as civilians, attempt to assist in the apprehension or attempted apprehension or in the prevention or attempted prevention of an offence. The other element concerns the bystander, to which the noble Lord, Lord Morton, referred.

So far as the latter is concerned, I have to say that I have made the Government's position clear. On the former, obviously I shall place the views before my right honourable friend. However, I must make it clear that those are matters which were carefully considered because it was not thought proper to go beyond the scheme as it now exists except with the limited qualification to which I alluded when replying to the second amendment in regard to "justifiable". That is a relaxation, as I think the Committee will recognise, in the existing test. Certainly the purpose of the Committee is to allow views to be expressed, and I shall certainly see that these are transmitted to my right honourable friend.

Lord Renton

That is very satisfactory. I hope that when my right honourable friend considers this further he really will give much thought to leaving out subsection (6) altogether. That is by far the best solution.

Lord Morton of Shuna

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 190: Page 75, line 25, leave out ("95") and insert ("98").

The noble Lord said: I beg to move Amendment No. 190. That involves changing the figures in line 25. I beg to move.

On Question, amendment agreed to.

[Amendment Nos. 191 and 192 not moved.]

The Chairman of Committees

If Amendment No. 193 is agreed to, I cannot call Amendment No. 194.

Lord Morton of Shuna moved Amendment No. 193: Page 75, line 37, leave out subsections (8) and (9).

The noble Lord said: This amendment is to leave out subsections (8) and (9). The purpose of these subsections is apparently to define and qualify injuries by shock: otherwise the board is to assess damages, broadly speaking, in the same way as a civil court would assess damages. But when concerned with damages caused by shock, it is to limit it. Where a criminal injury is caused by shock it is only a qualified injury if the person who sustained it did so by virtue of being present when the conduct mentioned was engaged in and was at the time put in fear of immediate physical injury to himself or another.

That is a complete denial of the civil law, as laid down in the recent case of Mc Loughlin v. O'Brian, where a mother suffered nervous shock in situations where she had not been present at the accident but just saw in one case a dead child. I suggest that it is proper that the board, in assessing damages, should do so as far as possible in exactly the same way as a civil court does and that the law should not be confined by an Act of Parliament on this matter but should be allowed to develop, as the common law does, in the other way.

Subsection (9) is also difficult. It says: (9) Where any criminal injury caused by shock consists of harm to a person's mental condition, it is only a qualifying injury if it amounts to a psychiatric illness". I would ask: what definition of a psychiatric illness does the Bill give us? The answer is "none". How are we to know what a psychiatric illness is, and how does somebody know whether or not they are suffering from such an illness? Is an illness such as that suffered by Mrs. McLoughlin a psychiatric illness or not?

In the McLoughlin case the noble and learned Lord, Lord Wilberforce, drew a distinction between the inability to recover damages at common law for grief and sorrow, and went on: … a claim for damages for 'nervous shock' caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injuries for oneself". That is my understanding of what the common law is; and that is what it should be. It is quite impossible to define it in the way that is suggested and also to define it by way of an undefined category of psychiatric illness.

It appears that the Government, having made the concession concerning what may be referred to in "shorthand" as railway suicides by saying, "Yes, we will leave them in: they will be in Clause 98(3)(j)", then take it away again. Of course what happens is that the driver is coming along and he is not at the time in fear of immediate physical injury. If one imagines a driver bringing an Underground train into a platform and somebody throws himself in front of the train, the driver is not in fear of immediate physical injury: he is going to suffer nervous shock because somebody has committed suicide in front of his train. I would ask the Committee to consider very seriously whether these subsections, rather than adding anything, do not detract very seriously from the Bill. I beg to move.

Lord Denning

May I say a word in favour of this amendment? One of the biggest difficulties in our civil law over the past 50 years has been whether damages are available and are given for nervous shock caused by negligence. As my noble friend has said, the House of Lords has explained it as being quite worrying, and damages can be given in respect of nervous shock even though the person was not present at the time and even though the negligence did not cause a psychiatric illness. It seems to me that it would be much better to get our ordinary civil law about shock in cases of negligence into line in the same way as in the cases of criminal injuries caused by shock. It can be done quite well by omitting these two sub-paragraphs.

Lord Irvine of Lairg

I too support this amendment. As the noble and learned Lord, Lord Denning, has just pointed out, subsection (8)(a) provides that the victim must be present when the offence is committed or the attempted apprehension or prevention takes place. I suggest that is both wrong in principle and not very well thought through.

It is wrong in principle because there must be many cases where the chain of causation and the criminal conduct is clear yet the victim is not present at the scene. For example, suppose a mother sees her child shot by a gunman. If she suffers the requisite harm she will qualify, but if she is some way off when she hears the shot, comes to investigate and finds the child dying, then no amount of psychological harm suffered by her will give the board jurisdiction to award her a penny piece in compensation. I can see no justice in that.

As the noble and learned Lord, Lord Denning, observed, it is long established in the common law of tort that actual presence on the scene is unnecessary. I do not see why it should be necessary in this scheme. Paragraph (a) will also exclude that which is surely not the intention of the Bill to exclude. I should have thought it would not have been the intention of the noble and learned Lord the Lord Advocate to exclude it.

Suppose a terrorist plants a bomb which later explodes causing death or injury to some and nervous shock to others. This would not be nervous shock, which qualifies for compensation, because Clause 99(8)(a) says that the victim must have sustained the injury by virtue of being present when the criminal conduct or activity is being engaged in. There can be no compensation because the drafting focuses upon the conduct which constitutes the offence; the conduct here was planting the bomb and that conduct came to an end before the victims were present. On any view of it that just does not seem to be right or sensible.

Subsection (8)(b) requires fear of immediate physical injury to the victim himself or to another. Again this appears to me to be something which the common law certainly would not insist upon.

In one well-known Court of Appeal case a mother had her back turned when she was on one side of the road and a car struck her husband and children on the other. Obviously she never feared for anyone and by the time she knew what had happened the danger had been superseded by physical harm of a fearful kind. That surely should not exclude her from compensation. Again the present drafting does just that.

I should now like to add a few observations of my own to the requirement under subsection (9) that to qualify the harm to the person's mental condition must amount to a psychiatric illness. A case to which this provision might apply would be where a parent witnesses the murder of a child or a husband the rape of his wife and at the time is put in fear of immediate physical injury to himself or to another. The operative words would be "to another". But it cannot be right that before compensation can be awarded the mental harm which the parent or husband in either of these cases suffers must extend to a psychiatric illness.

As the noble Lord, Lord Morton of Shuna, points out, the Bill does not define psychiatric illness. I doubt whether anyone would be bold enough to attempt a definition. The condition of a person of robust constitution might not degenerate into something which psychiatrists agree constituted a psychiatric illness. Yet that person could suffer for very many months from acute anxiety, depression, apathy or a group of these symptoms. All of these are well recognised psychiatric symptoms going well beyond mere distress of mind, grief or suffering.

I think I have been able to work out for myself what the origin of this provision is and it is misconceived. In McLoughlin v. O'Brian, which has been referred to, the noble and learned Lord, Lord Bridge, said in this Chamber: The first hurdle which a Plaintiff claiming damages (for nervous shock) must surmount is to establish that he is suffering not merely grief, distress or any other normal emotion, but a positive psychiatric illness". That was taken up by the interdepartmental working party at paragraph 4.12 and I have no doubt it is the foundation of the provision that we see in this Bill. I have no doubt at all that the noble and learned Lord, Lord Bridge, did not intend his remarks in that case to be translated into statute. What he was contrasting was the ordinary human emotions of grief and distress with psychiatrically recognised symptoms such as anxiety, depression and apathy. He was excluding the ordinary human emotions of grief and distress from nervous shock as a ground for compensation.

I have had the advantage of a discussion on this subject with a most eminent psychiatrist. He tells me that this is the point. It is possible to suffer from these symptoms without developing a positive psychiatric illness. This provision is an insufficiently considered lifting or borrowing from the words of the judgment of the noble and learned Lord, Lord Bridge. I say to the noble and learned Lord the Lord Advocate as strongly as I may that this provision should be thought through again.

Plainly, acute depression, anxiety and apathy, or a group of these symptoms, falling short of what psychiatrists would agree constitutes a definitive psychiatric illness should be subject to compensation. The prospect of the board having to evaluate and choose between one expert's report saying that the condition had, and another expert's report saying that it had not, reached the stage of a definitive psychiatric illness must be as unwelcome to the board as to anyone who has had to try to give precision to these elusive concepts in a practical context.

I also agree with the noble Lord, Lord Morton of Shuna, that a specific case which has been quite deliberately brought within this legislation is that which we have already discussed; that is, the case of the train driver who suffers shock from a suicide on a railway track when he runs over and kills someone who has deliberately put himself in front of his train. That case is quite deliberately brought in by including it in the list of Section 98 offences. The Committee will recall, because we have referred to it already, that the Court of Appeal held in the Warner case in 1986 that a railway suicide was not a crime of violence, hence psychological injury suffered as a result was not subject to compensation under the scheme.

These cases are all too common. There are a lot of them. In 1981, 219 people committed suicide by throwing themselves in front of trains and another 36 were seriously injured while trying to commit suicide in this way. The figure of deaths in 1985 became as high as 390. Members of the Committee will know that there was a great outcry about this class of case. The Government, to their credit, have expressly brought this class of case within the legislation. In these cases drivers may be off work suffering from shock for a considerable number of weeks and it is very unpleasant. But they do not reach the stage of a definitive psychiatric illness. If subsection (9) is not removed, then I agree with the noble Lord, Lord Morton of Shuna, because what they have ostensibly been given by one provision has been taken away by another. There will be simply a renewal of the outcry which there was about this class of case if such a driver is denied compensation because his condition has not reached the stage of a definitive psychiatric illness.

The short answer to these problems is that the board should be left to adjudicate, as the noble and learned Lord, Lord Denning, said, on the shock causing mental harm cases uninhibited by fancy notions of psychiatric illness. It is directed by Schedule 6 paragraph 5(3) to assess compensation in accordance with the general law of damages. To do that will prove sufficient boundaries for nervous shock claims without trying to map out the boundaries on a couple of tablets of stone which cannot possibly cater for every eventuality.

I trust that this amendment may find favour with the noble and learned Lord the Lord Advocate or at the very lowest that he will take it away for serious consideration. I respectfully suggest that many of the points made are of real substance.

4.15 p.m.

Lord Morris

I have the greatest difficulty in accepting one leg of the argument of the noble Lord, Lord Irvine of Lairg. He expressed dissatisfaction with the drafting of subsection (8)(a), in particular the words: when any such conduct or activity as is mentioned in section 95(1) above was being engaged in". He drew an analogy with a man placing a bomb. I suggest that the conduct engaged in is not only the placing of a bomb but the causing of an explosion. That would be the offence and is not restricted alone to the time at which the device was placed. That argument does not appeal to me one little bit.

Lord Cameron of Lochbroom

I am grateful to the Members of the Committee who have taken part in this debate. I must make plain at the outset that it is not correct to suggest that the Government are in any way reneging upon an undertaking which they gave at an earlier stage in this legislation as to what they intended to do about train drivers. The noble Lord, Lord Irvine, is absolutely correct that that is in part related to this problem.

The opening words of subsection (8) are: Where any criminal injury is caused by shock". Of course it is only a shock injury and no other criminal injury with which we are dealing, which might dispose of some of the problems of bombs and so on. In certain circumstances I accept that there may be only shock arising. To that extent subsection (8) is well-intentioned.

Nevertheless, having heard what has been said, it would be prudent to look again at subsection (8) and go through what is already contained in Clause 98. The point made by the noble Lord, Lord Irvine, about not being present may be apt for certain of those offences.

I accept that subsection (9) was deliberately placed in the light of what the noble and learned Lord, Lord Bridge, said in his speech in McLoughlin v. O'Brian. The point is that the recent working party report concluded that it would be appropriate that only a serious and disabling psychiatric condition recognised as nervous shock should be incorporated within the statutory scheme. It was directing itself in slightly different words to the same point that the noble and learned Lord, as I understand it, was making in his speech in McLoughlin v. O'Brian; namely, the difference between the ordinary upset or distress that any of us would feel in witnessing death or injury and something that a psychiatrist would regard as an identifiable illness, reaction or condition.

We take the view that it would go too wide to try to cover compensation for what are common and understandable reactions. Obviously the drawing of the line between the two is difficult and depends on medical evidence, though that is a matter with which the board is well able to deal. I do not take the view that, simply because two psychiatric witnesses differ, at the end of the day the tribunal charged with reaching a decision cannot select one opinion in opposition to the other.

Nevertheless, I suggest that we should look again at subsection (8) and in the circumstances it would be as well that we look again at subsection (9) in view of what has been said. If the noble Lord who moved this amendment is content with that, I undertake to look again at this subsection.

Lord Morton of Shuna

I am grateful to those who have taken part in the debate and to the Lord Advocate for his undertaking to reconsider the subsections. In doing so I ask him to bear in mind that the vast majority of the 250, I think, railway suicide cases that were waiting at the time of the Warner decision were cases where people had been off work for five or six weeks. They had been seen by their general practitioners and not referred to psychiatrists. A number of the members of the board considered that it was not helpful to the health of patients to refer them to a psychiatrist if their general practitioner did not consider it advisable. Sometimes it makes people worse. Therefore, it would be interesting to know whether the board is to be entitled to act on a general practitioner's view of whether or not there is a psychiatric illness. However, in the circumstances I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 194: Page 75, line 40, leave out (95) and insert (98).

On Question, amendment agreed to.

Clause 99, as amended, agreed to.

Clause 100 [Claims for Compensation]:

Lord Morton of Shuna moved Amendment No. 195: Page 76, line 6, after (by") insert ("or on behalf of").

The noble Lord said: This amendment adds to the number of people who can make a claim. The paragraph would then read: A claim for compensation may be made…by or on behalf of any person who sustains a qualifying injury". There are people who cannot make a claim, such as children or people who have had a serious head injury and who are incapable of doing anything. It is broadly speaking that type of person who has to be covered; otherwise they will not be. I beg to move.

Lord Cameron of Lochbroom

I assure the Committee that the circumstances to which the noble Lord alluded will be covered under rules made under paragraph 17(2)(b) of Schedule 6 and therefore the amendment is not necessary.

Lord Morton of Shuna

That is an interesting observation. I should have thought that it would be easier to put this proposal into the Bill than to make a whole series of rules. At least we would then know where we were. We have not seen the rules. We do not know what they will cover. Undertakings given by the Government are not always met. This amendment could simply be accepted. It does not hurt the Bill. Surely the noble and learned Lord could think again. The words, "or on behalf of", are not going to change the Bill dramatically. However, I do not wish to delay progress.

Lord Cameron of Lochbroom

I should just like to make clear that this will be a matter for the rules and I suggest that that is the proper place to deal with it. But I take note of what the noble Lord has said.

Lord Morton of Shuna

I am glad of that. I ask leave to withdraw the amendment.

Amendment, by leave withdrawn.

The Chairman of Committees

If Amendment No. 196 is agreed to I cannot call Amendment No. 197.

Lord Cameron of Lochbroom moved Amendment No. 196:

Page 76, line 7, leave out from ("who") to end of line 15 and insert ("dies after sustaining a qualifying injury (whether or not he dies as a result of it). (1A) If a person who has sustained a qualifying injury dies otherwise than as a result of it, the Board may not award compensation to a dependent of his if before he died he became entitled in accordance with rules under paragraph 17 of Schedule 6 to this Act to a payment of compensation in respect of the injury. (1B) If a person dies as a result of a qualifying injury, the compensation that may be awarded in respect of that injury includes—

1. (a) compensation for reasonable funeral expenses paid in respect of him; and
2. (b) compensation for bereavement not exceeding the amount specified at the time of his death in section 1A(4) of the Fatal Accidents Act 1976.

(1C) An award under subsection (1B)(a) above may be made to any person other than a public authority. (1D) The only persons to whom an award under subsection (1B)(b) above may be made are persons for whose benefit damages for bereavement may be awarded under the Fatal Accidents Act 1976.

The noble and learned Lord said: This amendment was spoken to with Amendment No. 143. I beg to move.

On Question, amendment agreed to.

[Amendment No. 198 not moved.]

Lord Cameron of Lochbroom moved Amendment No. 199: Page 76, line 24, leave out ("section") and insert ("Part of this Act")

The noble and learned Lord said: This is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 100, as amended, agreed to.

Clause 101 [Powers to withhold and reduce compensation]:

4.30 p.m.

Lord Morton of Shuna moved Amendment No. 200: Page 76, line 41, leave out from ("that") to (": or") in line 42 and insert ("no conduct on his part was connected with the injury").

The noble Lord said: With this amendment I shall speak to Amendments Nos. 201, 202, 203, 204 and 205. This amendment is trying, in effect, to rewrite the provisions of subsections (1)(a) and (b) and to put them into one clause. The difficulty is that at the moment, as it is laid down, the onus of proof is on the applicant to show under Clause 101(1)(a)(iii) that he was in no way responsible, but under Clause 100(1)(b)(ii) the onus is on the board, or the advocate appearing on behalf of the board, to satisfy that his conduct, connected with the occasioning of the injury, should not result in the refusal of an award. In effect, instead of transferring the onus, which terrified some of us some years ago, one has two onuses operating like trains on the same railway line going straight at each other. It is an impossible position with which to deal. I understand that the noble and learned Lord may be prepared to consider these amendments, so it is perhaps better if I just move the amendment. I beg to move.

Lord Cameron of Lochbroom

I am not unattracted by the purpose of the amendments. A difficulty arises as they stand. We should like to consider further, in consultation with the board, a generally acceptable alternative, if such can be devised.

Lord Morton of Shuna

In those circumstances, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 201 to 205 not moved.]

Lord Morton of Shuna moved Amendment No. 206: Page 77, line 17, leave out ("95") and insert ("98").

The noble Lord said: I have spoken to the amendment before. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 207: Page 77, line 18, leave out ("is") and insert ("was").

The noble and learned Lord said: This is a drafting amendment of a similar character to Amendment No. 209. I beg to move.

On Question, amendment agreed to.

Lord Morton of Shuna moved Amendment No. 208: Page 77, line 18, leave out from ("years;") to end of line 20.

The noble Lord said: This amendment is to leave out subsection (4)(b). Subsection (4) allows the board, if it considers that it is not in the interests of the person who sustains the injury, not to make an award if that person is under 18; and, as it is stated in the Bill as printed, if he is living in the same household as the person or persons responsible for causing the injury. That is a situation which rarely occurs; where, for example, a parent causes injury to a young child—and the board does not consider it to be in the best interests of the child, if it is not a serious injury, that there should be compensation—and at age 18 the child is suddenly told that at the age of two or three he was assaulted by a parent and has £500 which has been accumulating for him.

The amendment seeks to give the board that discretion without confining it to people living in the same household. There are, unfortunately, many cases where, for example, a parent who is divorced is still in contact with the child. A similar situation may arise, although they are not living in the same household. This is a rare case, but it is appropriate that such discretion should be open to the board. It is also appropriate in certain cases of minor sexual assaults on young children. I commend the amendment to the Committee, and I beg to move.

Lord Cameron of Lochbroom

We do not feel that we can accept the amendment. The subsection gives the board discretion to refuse to make an award. We think that it is right that that discretion should be limited to the circumstances in sub-paragraphs (a) and (b). and not widened. I take the point about a child becoming aware, in due course, of the reasons for which the compensation may have been awarded. These are rare and arguable cases. It is accepted of course that in the case of a young child who has been injured, the board can delay payment. When payments are made at the age of 18 to children injured at a younger age, it should be possible to do so in a way that would not go into unnecessary details of the offence. That seems to be the better way to deal with the matter. We should be unwilling to extend the board's discretion. It is only right and proper that this provision should be seen as a counterpart to the discretion which apears in Clause 99(5)(b). For that reason, I cannot accept the amendment.

Lord Irvine of Lairg

I support the amendment. Under the present scheme, discretion is not limited to cases where the child lives in the same household as the person responsible for the criminal injury. This clause imposes that limitation for the first time. The purpose of the amendment is to remove that limitation. The purpose of the discretion under the present scheme is that the interest of the child to receive the award may be outweighed by the interests of the child not to be reminded of the offence by the existence of the award. Usually, such cases are cases of sexual abuse of children.

As the Committee well knows, sexual abuse is a major life crisis for a child. It could lead to behavioural problems, sleep and eating disturbances, truancy, emotional difficulties and antisocial tendencies in adolescence. Surely the interest of the child not to receive an award and so be reminded of the circumstances that resulted in the award may be in the child's overriding interest even where the child does not live in the same household as the person responsible; for example, the person responsible could he the father who does not live in the household but frequently visits it, or an uncle who lives elsewhere.

I support my noble friend Lord Morton of Shuna on the basis that in children's cases the board should be left with unqualified discretion to do what it thinks best. As I understand the position, the board, either through the social welfare services or sometimes by way of a trust, finds a way to ensure that the child is benefiting without being reminded of the offence. The purpose of the amendment, and why I support it, is that the board's discretion should be present in the case of all children.

Lord Morton of Shuna

I am sorry that the noble and learned Lord has not been able to accept the amendment or at least to take it away to think about it. I ask him to consider what happens if we are faced with a child of, say, under two who is making an application, and we have a report from a consultant paediatric psychiatrist which says that it is in the interest of the child that the child should never remember this incident. Do we make an award which is paid at the age of 18? What happens if the psychiatrist says that it is not in the best interest of the child for the child to have an award? Should we ignore the medical evidence and make the award? It seems to me to be a ridiculous situation. I regret the fact that the Government are not prepared to consider it. Perhaps they are.

Lord Cameron of Lochbroom

Before the noble Lord sits down, perhaps I may say that I would be happy to consider the point the noble Lord, Lord Irvine, mentioned about a parent living away from family as a special case which might be considered within the context of the Bill.

Lord Morton of Shuna

I shall continue with what I was going to do. I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cameron of Lochbroom moved Amendment No. 209: Page 77, line 19, leave out ("is") and insert ("was").

The noble and learned Lord said: This amendment is consequential upon Amendment No. 207. I beg to move.

On Question, amendment agreed to.

Clause 101, as amended, agreed to.

Clause 102 [Right of appeal by way of case stated]:

Lord Morton of Shuna moved Amendment No. 210: Page 77, line 31, leave out ("28 days") and insert ("3 months").

The noble Lord said: This is a very simple amendment. I would suggest, and I know that other members of the board agree with me, that three months is a more suitable time for a period for appeal than 28 days, which is far too short. All that a period of 28 days will do is to allow appeals to be notified but not proceeded with. I beg to move.

Lord Cameron of Lochbroom

We take the view that the time limit proposed here is unusually long. Perhaps I may refer to magistrates' courts. The appeal there by way of case stated is 21 days. Other tribunals have varying time limits, some of only 14 days and others of 28 days. The claimant will be present at a court hearing in most cases, I should have expected, and would have the reasons for the board's decision explained at the time. Therefore 28 days was thought to be a reasonable period.

So far as we are aware, the three months proposed in the amendment is unprecedented. We felt that it was preferable to have a relatively short time in which to appeal with a fairly broad discretion to extend it, as is provided in the clause, rather than a much longer period with a more limited discretion. I suggest that this is the proper way in which to concentrate the mind of the claimant upon the question of appeal. Surely it is desirable for the board to know as soon as possible whether an appeal is being sought. The existing formulation should ensure that in most cases there is given to the board generous discretion to let in out-of-time applications if it thinks that appropriate.

Perhaps the noble Lord would like to muse upon the matter. I have explained that we consider three months too long. Twenty-eight days is one month, and that seems to be a fairly lengthy period in which to make up one's mind about whether one will appeal in the first place. If one has good cause and has not done so in time, one can go to the board and explain why it should allow in an out-of-time appeal. It seems to me that speed is essential in these matters to concentrate the mind. Matters should not be allowed to become stale.

4.45 p.m.

Lord Morton of Shuna

I am certainly prepared to go away and muse over what the noble and learned Lord has said. However, it appears that those advising the noble and learned Lord may not appreciate that very large numbers of the cases that go to hearings are conducted by the applicants themselves or by somebody who is not legally qualified. The only ground of appeal given here is that the decision is wrong in law. That means that someone who has heard the decision has then to find somebody to advise him whether it is wrong in law.

That may take some time. It is not quite the same position as an appeal from the magistrates' courts where presumably the person has legal aid, because, as is clear from Amendment No. 211A, there is not legal aid for those appearing before the board.

I shall certainly examine what the noble and learned Lord has said, and I hope that he will also consider the position. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 211 not moved.]

Clause 102 agreed to.

[Amendment No. 211A not moved.]

Clause 103 agreed to.

Clause 104 [Reimbursement and recovery]:

Lord Cameron of Lochbroom moved Amendment No. 212: Page 78, line 42, leave out ("by virtue of paragraph 13") and insert ("under any provision contained in").

The noble and learned Lord said: This amendment is necessary because the board's power to reduce an award in recognition of other payments made to the applicant in respect of the same injury is not intended to be limited to cases under paragraph 13 of Schedule 6 but to extend also to paragraphs 12 and 14 of the same schedule. I beg to move.

On Question, amendment agreed to.

[Amendment No. 213 not moved.]

Clause 104, as amended, agreed to.

Clauses 105 and 106 agreed to.

Lord Irvine of Lairg moved Amendment No. 214: After Clause 106, insert the following new clause:

("Board's immunity against action and right to receive certain information.

.—(1) No action shall be brought against the Board, any Board member, any member of the Board's staff or any person providing information or giving evidence to the Board in connection with or arising out of any application to the Board.

(2) It shall be the duty of police authorities—

1. (i) to provide the Board upon request with all information whether written or otherwise in their possession which may be relevant to the Board's determination of any claim for compensation; and
2. (ii) to require such police officers as the Board request to attend to give evidence to the Board on the hearing of any claims for compensation by it.

unless the chief officer of police of any such authority certifies that there are exceptional circumstances justifying the withholding of any such information or evidence in the public interest in which case that police authority will be relieved of its duty aforesaid to the extent so certified.").

The noble Lord said: The first part of the new clause proposed by this amendment reads: No action shall be brought against the Board, any Board member, any member of the Board's staff or any person providing information or giving evidence to the Board in connection with or arising out of any application to the Board". The objective is to preclude actions for conspiracy as well as for defamation. Absolute privilege in defamation cases probably applies to a tribunal such as the board, but it is not certain and it should be made certain.

Members of the Committee will appreciate the extent to which the effectiveness of the board is dependent on the fullest co-operation by the police. From time to time police officers express anxieties in advance of hearings about whether they are protected by privilege from action in the courts. If some disgruntled person were even to begin proceedings against a single police officer in defamation, or more than one in conspiracy, arising out of evidence to the board then police officers generally would feel inhibited in the assistance that they give the board, at least until the action had wended its way through the courts and had been resolved. The purpose of the first subsection of this clause is to ensure that the board and all those who assist it are not subject to any feelings of restraint or inhibition in the vital business of getting at the truth.

Subsection (2) reads: It shall be the duty of police authorities:

1. (i) to provide the Board upon request with all information whether written or otherwise in their possession which may be relevant to the Board's determination of any claim for compensation; and
2. (ii) to require such police officers as the Board request to attend to give evidence to the Board on the hearing of any claims for compensation by it,

unless the chief officer of police of any such authority certifies that there are exceptional circumstances justifying the withholding of any such information or evidence in the public interest in which case that police authority will be relieved of its duty aforesaid to the extent so certified".

This subsection would impose a duty of co-operation upon the police. It would not be an absolute duty because the chief officer of police could excuse his force by certificate stating that there were exceptional circumstances making it not in the public interest for information or evidence to be given in a particular case.

I say straight away that experience has shown that generally the police co-operate fully with the board and that there is an excellent working relationship in practice between the board and the various police authorities. This amendment is in no way intended to cast doubt upon that. Equally, however, experience has shown that there are rare occasions when police officers have not co-operated or have not co-operated to the extent that they should. In those cases justice can be impaired.

I appreciate that it might be said that it should not be necessary to legislate to oblige one public body to assist and co-operate with another, but in fact the statute book is replete with obligations between public bodies to inform, to consult and to co-operate in various ways. The purpose of this amendment is to assert that the primary duty exists. For any police officer not to comply, he would, if it came to it, need his chief officer to certify that there were exceptional reasons in the public interest warranting his non-co-operation. The balance is struck by giving the police the last word in those exceptional cases.

I would support the amendment by saying that if it were accepted the board's powers would be supplemented in a desirable way and that the small minority of cases where co-operation has not been all that it ought to have been and where all the board today can do is to exhort would cease to exist.

Lord Denning

I hope the Committee will not accept this amendment. It is quite plain that the people who give evidence or make statements before a board may be liable in defamation unless they are protected by privilege. They may also be liable for injurious falsehood if they make a malicious statement without reasonable or probable cause. This gives far too wide an exemption from the ordinary common law. As to the duty of the police authorities, it is quite plain that they co-operate at the moment, and I suggest that there is no need whatever for this new clause.

Lord Simon of Glaisdale

In moving this amendment the noble Lord said truly that the statute book is replete with provisions enjoining one public body to co-operate with another. I can only say so much the worse for the statute book. I trust that for the reasons given by my noble and learned friend the Committee will not accept this amendment.

Lord Campbell of Alloway

I shall be very brief. I hope the Committee will not accept subsection (1) or subsection (2) for the reasons that have been given. The device of subsection (2) is that it creates a statutory duty and presumably envisages some form of enforcement. The mind boggles at that in this context.

Lord Cameron of Lochbroom

I am most grateful to the noble and learned Lords who have spoken because it renders my task almost otiose. In deference to the excellent arguments put forward by the noble Lord, Lord Irvine, which I fear are incorrect, I shall simply say that our understanding is that once the board is established on a statutory basis hearings before it will attract the same privilege as hearings before other statutory tribunals. I refer the noble Lord to the speech of the late Lord Diplock in Trapp v. Mackie. To legislate for it here might well create an undesirable precedent and put in doubt the position of the existing tribunals. I do not think that that is something we wish to have.

With regard to the second matter, I find myself entirely in agreement with what has been said already. Any difficulties that arise can be overcome by contact with the chief officers of police concerned. The noble Lord has accepted that the police generally co-operate. In special cases where there is difficulty local contact will achieve much more than statutory duties. I therefore cannot advise the Committee to accept the new clause.

Lord Irvine of Lairg

I am grateful to the noble and learned Lord for his courtesy and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 107 [Abolition of peremptory challenge]:

Lord Wigoder moved Amendment No. 215: Page 80, line 3, after ("cause") insert ("and the right of the Crown to direct a person to stand by").

The noble Lord said: We now come to one of the set piece debates on this Bill, the debate on jury challenge, but we begin with a modest and humble amendment, Amendment No. 215. The present position in relation to jury challenge for cause—in other words, the reason as to why a particular juror should not serve, a matter upon which the trial judge adjudicates—is that both the defence and the prosecution have an unlimited number of such challenges. However, when it comes to challenging without giving a cause—peremptory challenge—each defendant is limited to three such challenges, whereas the prosecution still has a totally unlimited number. It is true that they are not called peremptory challenges. They are called, "standing by for the Crown". However, apart from a certain technical difference of no relevance at this stage, it amounts to the same thing.

Clause 107, which we shall be debating in a few moments' time, is a proposal by the Government to abolish the defence right of peremptory challenge. This amendment seeks to say that if that is going to be done against the defence it would be manifestly fair and evenhanded that the prosecution's right of peremptory challenge should also be abolished. It would be presumptuous of me to seek to advise the Committee as to the course that this discussion might take. It may be that the Committee will think that it might be helpful if we hear at an early stage from the Minister as to the reactions of the Government to Amendment No. 215.

The indications so far are that the Government are not prepared to accept the amendment. I have a letter sent by the Home Office in April of this year giving reasons why the Government may be sympathetic in spirit to the amendment but do not find it practical to support it. I do not want to discuss those reasons at length now but I find them superficial. I believe it is perfectly possible for the Crown's right of peremptory challenge to be abolished and still solve the problems they have in mind. This could be achieved by allowing challenge for cause to take place but not in open court, although perhaps that is a matter to which we can come at a later stage in the Bill.

It might be helpful if the Government were at this stage to give their reaction to Amendment No. 215. If the Government were prepared now categorically to say that they are willing to legislate not only to abolish the defence right of peremptory challenge but also the prosecution right, it might indicate to some Members of the Committee that they were seeking to be fairminded in this matter and it might therefore indicate to some Members of the Committee that it might be possible to support Clause 107 abolishing the defence right of peremptory challenge.

On the other hand, if the Government continue to talk, as they did in their letter of last April, about guidelines, discretion, practice and so forth, but are not willing to give a commitment to legislate so as to be even handed, then it might strengthen the views of some Members of the Committee that the proposal in Clause 107 to abolish the defence right of peremptory challenge is unfair and manifestly biased against the defence. For that reason it might be that the Committee will think it appropriate to let the Minister deal with this matter straight away.

It is by pure drafting chance that this amendment comes before the main debate on Clause 107. That was not of my choice. It may be that the Committee will agree that logically the main debate on Clause 107 should take place at the earliest possible moment. When the Minister has replied to these few observations of mine, I shall ask the Committee's leave to withdraw Amendment No. 215 for an obvious reason. We ought to decide first the principal issue of Clause 107 standing part of the Bill.

If it stands part of the Bill, I would propose to put down this amendment on Report, and if necessary press it to a Division. Of course if Clause 107 does not stand part of the Bill today, then the amendment to which I now speak ceases to have any relevance. I hope that that will be a course acceptable to the Committee. With those few observations, I beg to move.

5 p.m.

Lord Havers

I hope that the Committee will forgive me for feeling a little strange. This is the first time that I have spoken from the Back Benches for almost exactly 15 years. On 6th November 1972, I became Solicitor-General.

I should like to deal with the point of the noble Lord, Lord Wigoder, because I believe I have something probably rather unique to contribute. In any very serious case—such cases were classified by me as Attorney-General—there could be an investigation into the background of a juror in strictly controlled circumstances. There was always the risk—and indeed it happened from time to time—that certain facts came out which made that juror totally unsuitable to serve. But they were facts from sources which would make it impossible to challenge for cause and disclose them.

When one looks at the fair balance that the noble Lord, Lord Wigoder, is seeking to establish between the defence and the prosecution, I think that in fact it would not be a fair balance. It cannot be right that somebody who is prejudiced or biased to the cause of the prosecution for reasons that we know but cannot disclose should serve on a jury.

I give to the Committee one example. In a serious IRA case in which I was involved a number of years ago, it turned out that one of the jurors was the girl friend of a notorious, well-known international terrorist. I do not think that any Member of the Committee sitting in this Chamber today would have felt confident if that lady had been serving on that jury. I do not think that anybody could have felt that there was any way in which she could be unprejudiced or unbiased.

Those are only some grounds. There are many more grounds of which I know but I am afraid that most of them have to remain under wraps. Certainly in my experience—and it was the longest experience for 250 years—as Attorney-General, I always had the result of the investigations reported to me, and I gave the instructions to the Director of Public Prosecutions as to what he was to do with counsel when somebody popped up on the wrong side of the line.

A number of cases we allowed to go on. In some cases we explained to defending counsel why we were going to challenge. But there were a number of cases where it would be quite impossible, in my view, for one to say that that juror would approach the particular problem—usually, terrorism or very big armed robberies—in a fair and unbiased way.

Lord Hutchinson of Lullington

The words that have fallen from the noble and learned Lord justify in themselves (do they not?) the purpose of this amendment? It was one of the most remarkable speeches that certainly I have heard in this House. It now appears that the prosecution, in circumstances which are strictly controlled, are prepared to vet jurors in certain cases and to discover that potential jurors are totally unsuitable for jury service for reasons that they may be prejudiced or biased to the case of the prosecution, but that the reasons for this cannot be given in open court.

I ask the simple question: why on earth should the prosecution have this power and the defendant not have this power? Supposing, on this jury, the lady in question had been the girl friend of the officer in charge of the case? Supposing the lady on the jury had been the girl friend of the Director of Public Prosecutions? Why on earth should this power be allowed to the Crown and not to the defence?

It is vital for the defence to know which members of the jury arc biased or prejudiced. In later debate, that will really be the essence of the retention of the right to challenge. The suggestion that it should be only the Crown which has this power surely justifies the amendment. Either you get rid of it on both sides or you keep it for both sides.

Lord Campbell of Alloway

I wish briefly to support my noble and learned friend Lord Havers. The speech of the noble Lord, Lord Hutchinson, seemed to me wholly unrealistic. It seemed to take no account of the due interest of the state, no account of national security and no account whatever of the way in which, by tradition, Mr. Attorney discharges his duties. There must be within the Attorney's province this power which has been so clearly explained. One really must, I should have thought, retain a sense of realism about this.

Lord Roskill

I do not want to postpone the amendment on which the noble Earl the Minister will deal with this matter, as the noble Lord, Lord Wigoder, suggested. Nor do I wish to postpone the main debate. I would just say that the proposal about the right of the Crown to claim stand by for jurors emanated, as did the proposal to abolish peremptory challenge, from the report of the Fraud Trials Committee. We were then dealing with—and only dealing with—serious fraud trials. That is a matter the Committee will wish to consider later.

It is only right to say, as I have just confirmed with my noble friend Lord Benson, who is sitting behind me, that when my colleagues and I proposed that the two rights should both be abolished—the noble Lord, Lord Wigoder, anticipated this a few moments ago—we regarded it as fair that the same rights should be lost on both sides. We took, into account the point that my noble and learned friend Lord Havers made; namely, that there are cases where security considerations arise. Indeed many of us in our trial judge days have had this challenge for that reason.

Although at a later stage when we come to discuss something else I may differ from the noble Lord, Lord Hutchinson, I agree with him on this. If, as we all know happens, there is a security risk challenge that the Crown wish to make—the type of case that the noble and learned Lord mentioned is not unique—then I cannot for the life of me see why that should not be dealt with in camera like other matters of this kind.

If the Committee, as I hope that it later will, approve in principle that there should henceforth only be challenge for frauds, then for our part of the Fraud Trials Committee, and speaking here today, I venture to think that there is no reason why what is sauce for the goose should not also be sauce for the gander and vice versa. As with peremptory challenge, the right to stand by for the Crown is ancient. However, in my own trial judge experience, it is not used frequently and when it is used it is needed. It is often used because somebody suspects a juror of being illiterate and not having a sufficient understanding, or of being half blind or deaf.

Subject to that, I suggest that, if Clause 107 goes forward as part of the Bill, there is a strong case for adopting what is recommended in the Fraud Trials Report and putting the Crown in the same position. I say that with the utmost respect for my noble and learned friend Lord Havers.

Lord Denning

As we are all expressing our views in advance of the Minister, I should like to say that I strongly support the right of the Crown to ask a juror to stand by because the prosecution may know—but they cannot disclose it openly—that some of the jurors are associated with the defendants in the dock, or that they have criminal records or that they may be seditious or terrorist people. The prosecution alone knows that and it seems to me that it is quite entitled, and it is its duty to ask a juror to stand by in circumstances where it cannot disclose the real reasons why the juror should not be there.

I entirely support all that my noble and learned friend Lord Havers has said. His reasons had appealed to me long before but he expressed them so well that I support them entirely now.

Lord Elwyn-Jones

I also support the right of the Crown to call for stand by. It is an ancient right but so is the right of the defendant peremptorily to challenge. I understand that juries were established as part of the criminal trial process in the 13th Century when Pope Innocent II decreed the abolition of trial by ordeal. One sometimes feels that a trial by jury is something of a trial by ordeal. However, since that time the right of a defendant peremptorily to challenge has remained. As I understand the matter, originally the defence could challenge up to 35 jurors. In 1949 that was reduced to seven and during my time on the Woolsack—if I may put it in that brief way—the defence right of challenge was reduced from seven to three. The kind of difficulties that have been explained and that come in the way of the prosecution and the Crown in having to avoid explanations in embarrassing circumstances can equally affect the position of the defendant and those advising him. While I am not terribly fond of a goose, geese and ganders being introduced into the argument, in my submission it is quite unjust and monstrous to continue the right of the Crown to direct a person to stand by and remove the ancient right of the defendant peremptorily to challenge in the limited amount now available to him, which is three challenges.

5.15 p.m.

The Minister of State, Home Office (The Earl of Caithness)

I am grateful for the way in which the noble Lord, Lord Wigoder, introduced the short debate. He is right in saying that we can separate this item from the main debate in respect of Clause 107. Although in earlier debates the noble Lord, Lord Wigoder, has made clear his own distaste for peremptory challenge, it is with great pity that I must depart from him on the question of the prosecution's right of stand by.

I hope that it will help the Committee if I explain briefly what stand by is and how it is used. It is sometimes talked about as though it were the mirror image of the right of peremptory challenge. It is indeed a similar procedure but with some important differences.

The Crown has no right of peremptory challenge. It may however direct a person whose name is called to stand by until the whole panel has been exhausted. At that point the Crown must show cause why the person should not serve. In practice matters rarely reach that stage. Panels are normally sufficiently large and, more importantly, the right is exercised only infrequently. According to the Crown Prosecution Service survey, to which noble Lords will doubtless refer in due course, stand by is used in something like 4 to 5 per cent. of trials.

Stand by is not used for the same purposes as peremptory challenge. It is not used because the prosecutor does not like the look of a juror. Nor is it used because the prosecutor thinks a juror appears unlikely to be willing to reach a guilty verdict. But we have acknowledged that the abolition of peremptory challenge strengthens the case for limiting the use of stand by to strictly defined circumstances.

My noble and learned friend, who has spoken so eloquently this afternoon, when he was Attorney-General prepared draft guidelines which prosecutors would be expected to observe. The effect of the guidelines would be that in future stand by would be confined to two categories of cases. The first is where a jury check has been authorised by the Attorney-General under the separate published guidelines which have existed for several years and which were updated last year. Such checks are confined to cases involving terrorism or national security.

It is worth recalling the terms in which the guidelines envisaged stand by being used. Paragraph 9 reads: No right of stand by should be exercised by counsel for the Crown on the basis of information obtained as a result of an authorised check unless the information is such as, having regard to the facts of the case and the offences charged, to afford strong reason for believing that a particular juror might be a security risk, be susceptible to improper approaches or be influenced in arriving at a verdict for the reasons given above". When one looks at the reasons given above, they are broadly any danger that the juror, either voluntarily or under pressure, will make improper use of sensitive information given in camera or that his political beliefs are so extreme as to interfere with his judgment of the case. I do not believe that it would be right to dispense with the prosecution's right of stand by in cases of that kind. It is also worth recalling how rare are these cases. In the whole of the period from 1982 to mid-1985 full jury checks were authorised on only 11 juries and eight jurors were stood by in all. In the same cases no fewer than 63 peremptory challenges were issued.

The second circumstance in which the draft guidelines envisage stand by still being available is where a juror is manifestly unsuited for jury service. To give an example of the latter, a potential juror with poor reading ability would have great difficulty in coping with a case which required him to read documents put forward in evidence. Lord Roskill's Committee—and I am delighted to see the noble and learned Lord in his place—advocated that fraud cases should be triable by a tribunal because of the complications. In the Criminal Justice Act 1987, which concerned the Serious Fraud Office, it was agreed that there should still be trial by jury. Nevertheless, the point made by the noble and learned Lord is valid and stand by provides the means to deal with cases where the potential juror is manifestly unable to cope with the case.

By the use of stand by he can quietly be removed with minimum embarrassment. I gather that that is often done by tacit agreement between the prosecution and the defence. That seems to be a sensible and humane solution to the problem and it is already used for such purposes with no controversy at all.

I should be willing to look at that aspect of our proposal again but my present view is that it would be a great pity to lose what is an eminently useful and reasonable facility. I cannot give the noble Lord, Lord Wigoder, the assurance that he seeks. I do not believe that the issue is one of equity, as he describes. The case for peremptory challenge stands on its own and I think that that can be justified.

Lord Wigoder

I should like to say how delighted we are to see the noble and learned Lord, Lord Havers, in your Lordships' House. I hope that he is being rapidly restored to the best of health.

I have only three observations to make. First, we ought not to deal with this issue on the basis that there is any difference between peremptory challenge and the prosecution's right of stand by. There is a purely technical difference, if the whole panel happens to be exhausted. I have never known it happen and I doubt whether any other Member of the Committee has experienced it; so that is a purely academic matter.

Secondly, the Minister said that the prosecution's right of stand by ought not to be used when prosecuting counsel happens to dislike the appearance of a juror or mistrusts a juror for some unmentionable reason. It may be that the prosecution's right of stand by should not be used in those circumstances. Certainly it has frequently been so used. All those who have taken part in jury trials have heard counsel for the Crown challenge jurors and order then to stand by for the Crown, and have been told afterwards by counsel for the Crown that it was for no other reason than some such personal idiosyncrasy.

Thirdly, there is the substantial matter mentioned by the noble and learned Lords, Lord Havers and Lord Denning. I entirely accept that it is not possible to mention openly such information as that the prosecution has discovered that a juror may be the girlfriend of an international terrorist. I believe that it must be possible to devise a system under which the prosecution can challenge such a juror for cause and the matter can be brought to the attention of the judge without it being done in public, so that throughout the trial the prosecution's right remains on the same basis as that of the defence.

Having said that, as I mentioned at the beginning I accept that in such a short debate the Committee is putting the cart before the horse. With the Committee's permission, I now beg leave to withdraw the cart so that we can proceed to debate the horse.

Amendment, by leave, withdrawn.

[Amendment No. 215A not moved.]

On Question, Whether Clause 107 shall stand part of the Bill?

Lord Hooson

I oppose the Question, That Clause 107 stand part of this Bill. The right of stand by for the Crown is a very important right and the equivalent for the Crown of the defence's right of peremptory challenge. If one right is accepted and the other is rejected, the balance is lost in our system of criminal procedure. To get down to the basics of a trial by jury, in this country the aim of a trial is the return of a just verdict according to the evidence. In the light of experience and knowledge, we believe that the best way of obtaining a just verdict is by means of a jury.

We are told, and it is undoubtedly true, that the essence of the modern jury consists in its random selection of representatives of the community in which the accused lives. Obviously, from the point of view of the public at large, the Crown and the accused, it is very important that the jury approaches its task with no apparent predisposition in favour of guilt or innocence. Moreover, it is quite clearly important that the Crown, representing the authorities in the country, should have confidence in the jury's disposition to be fair just as much as has the accused.

As has already been mentioned in a preliminary debate, the right of peremptory challenge is very ancient. It is a right that has been whittled down over the years; nevertheless, it seems to me that it represents a very important safeguard which, according to Blackstone in his Commentaries was justified by two considerations. First, the prisoner's limited right to object to anybody who "by bare looks or gesture indicated to the accused a view" enabled the prisoner to exercise some rights in obtaining a jury of whom he was entitled to have a good opinion. It gave him a safeguard.

Secondly, the right of peremptory challenge avoided the danger of developing challenge to cause, because, as Blackstone pointed out, the very questions asked or reasons given for challenge to cause may themselves excite prejudice against the accused. However we distinguish it technically, it has been also the equivalent of the right to stand by for the Crown.

Perhaps I may mention that I was in practice very much a "circuiter", and on my circuit peremptory challenge was rarely exercised. 1 can truthfully say that I have stood by jurors for the Crown more often than I have exercised peremptory challenge on behalf of the defence. I believe that the right to stand by on behalf of the Crown is a very important safeguard. As the noble and learned Lord, Lord Havers, the former Lord Chancellor was speaking (and I, too, am delighted to see him in his place this evening) I thought how important was not only that right but also the equivalent right. There are certain reasons for standing by a juror that cannot he disclosed by the Crown and it is much better that the Crown simply has the right to do it. Equally, it is right that the defence should have that safeguard.

It is undoubtedly true, as has been said in this Chamber, that there has been a certain misuse of the right of peremptory challenge, in particular in multi-defendant cases. It is a criticism which I have heard only in respect of multi-defendant cases. In some trials there has been such a concerted right of challenge as to lead people to believe that there have been designs on the jury, and that the defence had the intention of finding a jury panel that was favourable, or might be thought favourable to its cause. The profession has to accept that there has been a certain irresponsibility, particularly perhaps in the central criminal courts, where I understand the right to have been exercised more frequently than elsewhere.

The public can be safeguarded by the knowledge that all the inquiries made by the Crown Prosecution Service, as well as published statistics, for what they are worth, show that right to have been exercised in the country at large in only about one in five trials, and that it makes little or no difference to the results. I think I am right in saying that in cases in which there has been a peremptory challenge, by a small percentage the jury is more likely to convict. Certainly, in my experience of peremptory challenges in the majority of cases the jury has convicted in any event. Therefore it is suggested that the right of peremptory challenge is outmoded and is no longer required as a safeguard in this country.

I have reached the conclusion, and so advance it to the Committee, that such a view is wrong. Let me give to the Committee the example I submitted the last time this matter was debated in this assembly. I was involved on behalf of the defence in the Cyprus spy trial in which random selection had gone out of the window. The jury had been positively vetted— I had no complaint at all about that—but by the time there had been the exemptions and excusals of those facing an eight-month trial, and the judge had excused as many as over 100 people, at the end it tended to be limited to a very small panel. Though I did not personally take part in the defence, and I prefer to take my chance with the jury, it is perfectly understandable that the defence used the right of peremptory challenge to ensure that at least there were a few young people on the jury. That is just one example.

Between the excusals and the vetting in important cases the random selection principle is very much watered down. I am not disputing that there may be a case for limiting the right for peremptory challenge, particularly in multi-defendant cases. And I should have entirely supported Amendment No. 215A to limit the number of peremptory challenges in multi-defendant cases. It may well be that there is also a case for limiting peremptory challenges to certain important political cases—cases about which there is a political flavour. Certainly I think that in murder trials peremptory challenges should remain. I feel that we should not get away from this basic principle; that a defendant should feel safe and satisfied with the way in which a jury is allocated in his case. The right of peremptory challenge is for him a safety valve, just as the right to stand by is a safety valve for the Crown. It gives the accused some rights in ensuring that someone whom he feels is basically antipathetic to him, to his views or to his cause, is excluded.

I understand perfectly well a black man in the dock who sees an all white jury—he may be involved in a case which has racial overtones—wanting to see at least one or two people of his own colour on the jury. It is a perfectly understandable feeling. It is the feeling so much better described in Blackstone than by myself.

Therefore, although the noble and learned Lord, Lord Roskill, said that if Clause 107 remains part of the Bill it is possible to produce a kind of remedy for the situation which would then arise—perhaps in the form he outlined in his own report on fraud trials—I am bound to point out that will not be the result. It will simply mean that the peremptory right of challenge has been abolished, full stop. The right of stand by for the Crown will remain. Therefore, in all the circumstances, if we are concerned with the principle of fairness in this country. I do not believe that this Committee should accept Clause 107.

5.30 p.m.

Lord Elwyn-Jones

A slowness in leaping to my feet in no way reflects a lack of confidence in the propositions that I am about to put forward. In my submission, what is proposed in this clause amounts to a serious limitation of the rights of a defendant in criminal trials, a right, I ventured to say earlier, that has existed for hundreds of years. It is for those who seek to make this dramatic change to prove, first, that it is necessary to prevent proven or provable abuse and, secondly, that the change would not be unfair to defendants in their trails.

The Crown Prosecution Service made an interesting survey, covering it is true, only a short period of about three months, of the experience in Crown Courts of the use of peremptory challenge and stand by for the Crown. For what it is worth—I think it is of some value—the survey shows no abuse and no evidence that it led to more acquittals than should have been the case, and no evidence that it is over used in multi-defendant cases. That was the conclusion of a study by the Crown Prosecution Service. Statistically it is curious that where there was no peremptory challenge there was certainly no better result than in cases where there was a challenge. Of course, these statistical curiosities may not prove very much. At any rate, it is evidence and not long-remembered stories that the Committee should have before making this important change. And the evidence is not there.

As to the second aspect—the importance of those who seek to make the change having to show that it would not lead to unfairness for defendants—jury panels are at present unbalanced. There are too few women. There are consistently fewer members of the ethnic minorities than would represent a cross-section of the community as a whole. The right of peremptory challenge is a modest way to limit that unbalance in the state of jury panels. It is three and no more than three. In my submission, the removal of this right would tend to diminish the confidence of the public at large—certainly those who are liable to come before the courts—in the trial process; in the fairness of the trial. It would, in particular, cause great concern, I believe, among the members of the ethnic minorities. Some of the cases that matter, as the noble Lord, Lord Hooson, has said, arise in that field.

This matter has been looked at carefully in the past. It was looked at in detail in 1977 when the number of challenges permissible was reduced from seven to three. In my submission, there is no evidence of experience since that time to justify this serious intervention in the rights of defendants in criminal trials.

Lord Denning

May I say a word about the history? My noble friend, Lord Hooson, referred to Blackstone. In Blackstone's time peremptory challenges were allowed only in felonies, not in misdemeanours. In felonies, the punishment was capital. The number of challenges was not limited at all and the accused man could not give evidence himself. He could not be represented by counsel. Of course, in favour of life, peremptory challenges could he and were exercised by the man who was threatened with capital punishment. That was the first stage.

I now go on to my stage. During my time at the bar and when I was trying cases, there was never a peremptory challenge before me at all. That was so, 1 believe, with most of the judges from the 1920s onwards, because—and it was a good reason—of a household qualification. The jurors, in Lord Devlin's words, were all "male, middle-aged and middle class". There was no possible ground for any challenge of them; nor was any challenge made. That was in my younger days. Now it has all altered. The first use of challenges arose when women appeared on juries. Some counsel then tried to get an all-male jury or an all-woman jury by use of the challenges. So the number was limited to seven, compared to 20 previously. Then that, too, came to be abused. If you take seven jurors and challenge them without a cause, it really disrupts the whole panel. In 1977, the limit became three. It was then the trouble arose. If there are 10 defendants, each of them having three peremptory challenges, you can challenge 30 or more jurors of the panel. How upsetting it was!

What has happened? Let us suppose that a very respectable juror on the panel is called into the witness box at the Old Bailey. He has put on his best suit. He has The Times or some other good newspaper under his arm. Counsel says "Challenge" and he has to go downcast out of the box because he has been challenged in this way. Therefore inferentially the defence does not think that he is a suitable man to try the accused. That is a gross insult to the individual who comes as a juror to do his duty and is then prevented from doing it by the single word "Challenge" by the defence. How easy it is.

In fraud cases there is trial by jury. Also, there is now no longer the male, middle-aged and middle-class image. Everyone over the age of 18 and up to the age of 65—young, old, wise or stupid—can go on to a jury. Is it not wrong that the defence should be able to say, "I do not want a clever man on the jury. I want a young girl of 18. She will not follow it all"? Is it right that the defence should be able to challenge ordinary, respectable citizens on a jury without giving any reason whatsoever for it?

So, as I have thought for a long time, peremptory challenge in these days should be abolished completely. If there is any real cause, that can be dealt with and tried by the judge, but certainly peremptory challenge should be abolished.

Lord Havers

It appears that twice in the same afternoon I am going to give your Lordships' Committee the benefit of my personal experience. I have had quite a lot of experience of jury challenging and have found that there were occasions when there appeared to be no explanation at all. I think the case of which the noble and learned Lord, Lord Denning, speaks—the smart suit and the Financial Times under the arm—has been well established for many years. It is certainly copied by those who do not want to have the bore of serving on a jury. I am sure that a number of my friends who ring me up and ask, "How do I get off serving on a jury?", follow my advice and turn up suitably dressed and accompanied by the suitable newspaper, which used to be the Daily Telegraph, and they are automatically taken off.

But I think that there has been great anxiety over the years about the question of challenges. I had an example, which I think will probably horrify the Committee, in 1977 in which there were four defendants charged with the usual serious offences of attacking Securicor or Group 4 armoured vans. There was one defendant in the middle who was six feet six inches tall and obviously the leader. He took over the challenging. I was at one end prosecuting and the four silks defending were in the row at the Old Bailey, as practically always happens, alongside me. He came to the forefront and stood there and as each juror came to the jury box he would say to one, "Right, you challenge". Then he would point to another and say, "You challenge". He went up and down the row of QCs appearing, the other three defendants seeming to play no part in what was going on.

I finally thought that it was too much, so I got up and said to the judge that I thought it was a right which was exercisable by a defendant on his own behalf, either himself or through his counsel, and the judge—I thought with a degree of reluctance, which surprised me—said, yes, he did not think that it was the proper way to go about it. I think the Committee will not be surprised to find that all 28 peremptory challenges were duly exercised.

It was that that forced me—because it happened towards the end of the Committee stage of the Criminal Law Bill in 1977—to put down an amendment at Report stage in which I had the support of many of my friends, not only my learned friends in the other place but a number of Back-Benchers who had been occupied with this problem. I thought it was a very good debate on the amendment. It reduced the number from seven to three, and it was duly passed. In fact I should have liked to go for nil, but seven to three was a reduction of over 50 per cent. and I took the view, which was very much a political view—I see the noble and learned Lord, Lord Elwyn-Jones, opposite smiling at me—that we could not ask for more than that at first bite.

But now we are getting a second bite and my experience over many years at the bar—in fact I achieve 40 next year—has been that over the past years peremptory challenges have been grossly abused. Although as the noble Lord, Lord Hooson, and the noble and learned Lord, Lord Elwyn-Jones, have pointed out, the statistics are very interesting, one sometimes wonders just how far statistics take us. They can be made to be useful whichever way they go. But my view is that the time has come to abolish peremptory challenge altogether and I hope very much that that is what this Committee will do today.

5.45 p.m.

Lord Mishcon

It is a sad thing if the Committee has to reflect that over the past few years we have been chipping away at our system of justice and at many principles that we have held dear because of a situation which all of us find deplorable; namely, the increasing crime rate. The increasing crime rate, one hopes, will disappear. What remains will be the decisions of your Lordships' Committee as to how we have dealt with solemn principles of justice. We have been chipping away at the onus of proof.

We have been listening—always with respect—to the noble and learned Lord, Lord Roskill, as to how in regard to complicated fraud cases his committee recommended that juries should be dispensed with altogether. We have listened to submissions in regard to the disappearance of judges and judges only judging trials and having some sort of tribunal consisting of assessors. Now we are having a debate on the Bill in which it is suggested that the right of peremptory challenge to a jury should disappear.

We are doing it just 10 years after we considered all this in 1977, as the noble and learned Lord, Lord Havers, reminded us. Let me say on behalf of everyone on these Benches, including I know my noble and learned friend Lord Elwyn-Jones, what a delight it is to see the noble and learned Lord in his place and making a contribution which is so worthy of him, even if we disagree with the views he has expressed.

The noble and learned Lord said that what one did then was to take a political decision. With a smile, which was repeated by others who heard that remark in your Lordships' Committee, he said that it was a political decision because one thought then that one could not get away with complete abolition of that right. Is this the way in which the Committee intends to deal with solemn historic rights; that you first realise that you cannot do away with it all in 1977, but you have a plan, having reduced the number, to wait 10 years and then see that the right is abolished altogether? With great respect, it is not an appealing way to ask your Lordships to vote one way or the other.

I want in literally a couple of minutes to take the Committee away from this august atmosphere into what normally happens at a criminal trial and I am addressing myself to those who do not have the privilege, as I put it, of being lawyers. Let me take just one example. We are now a multiracial society. I wish that it could be said that every one of our citizens took it for granted that there was no racial prejudice in our land and that a black defendant who was faced with an all-white jury could feel that he would get a completely fair trial. Most likely the black defendant would obtain a fair trial but in the atmosphere that unfortunately exists at this moment we should find that the average black person feels as the noble Lord, Lord Hooson, said—that he would like to see someone of his own colour on the jury. That is why this is quite the wrong moment to make this change.

Is the Committee asking that counsel should get up and challenge for cause and say: "I do not trust, on behalf of my client, the fact that there is an all-white jury. I should like, if I may to have somebody of a different colour"? Or would counsel challenge without having to ascribe any such reasons in the interests of race relations generally? I prefer the peremptory challenge.

We must remember that juries are there as the sole judges of fact. It is upon their verdict and not that of the judge that a criminal is either acquitted or convicted. If we only base our argument upon the assumption that justice should appear to be done—that is not a phrase which originated with me—to the ordinary citizens of our land and not as I have said to the Members of the august Chamber we will decide that possibly the right of peremptory challenge should be contained. Possibly in regard to multiple challenges there should be a limit. That would be right and perhaps such an amendment will come before us on Report. That point could not be argued today because of the absence of my noble friend Lord Gifford, who I believe was going to move an amendment along those lines. I ask the Committee not to abolish this right completely. That would be a grave injustice, especially at this hour.

Lord Roskill

With profound respect to the speech of the noble Lord, Lord Mishcon, I earnestly urge the Committee to retain Clause 107 as part of the Bill. The noble and learned Lord, Lord Elwyn-Jones, asked what evidence there was of abuse. With all respect to the noble and learned Lord, I was a little surprised to hear the rhetorical question when the noble Lord, Lord Hooson, with his long legal experience accepted that the right of peremptory challenge had been seriously abused.

Of course this is a matter upon which opinions differ. We considered this with great care before the fraud trial Committee. I hope that I shall not weary the Committee if I say that, not surprisingly, in the evidence we received there was a difference of opinion as to the propriety of the exercise of the right of peremptory challenge. We were cited the evidence of one then very distinguished practitioner at the criminal bar who is now a judge at the Old Bailey. He said that he had been so outraged by what had been happening at the Old Bailey that he refused to exercise the right of challenge on behalf of a client and left it to the prisoner to exercise his own right of challenge. We have heard from the noble and learned Lord, Lord Havers, what can happen at the Old Bailey even in those circumstances.

This is not the kind of mathematics that requires the attention of my noble and learned friend the Lord Chancellor, but I invite the Committee to do a little simple statistical exercise. There may be 250 people who are summoned to the Old Bailey. A great many of them will be excused before they get there on grounds of holidays, age, health and for other reasons. By the time the panel reaches the Old Bailey it will consist of 100 people and there will be eight prisoners. From that group of 100 people there will be more excuses. There will be the man who is going on holiday, the self-employed person who cannot leave his business, the pregnant mother, the mother who is looking after small children and a host of other excuses.

The kindly judge will say: "Yes, of course you must be excused". So the panel of 100 people will probably be reduced to 80 or even 70 people. There will then be eight prisoners each with a challenge right of three. That means 24 off my 70. What then happens to the principle of random exercise? It is being hopelessly abused and has been abused. All the evidence that we had pointed that way. Hence our recommendation with a single exception for the reasons, which the Committee may or may not think convincing, in the dissenting note.

That being so, is there any case for retaining this? I have the greatest sympathy, as we made clear in the report, for the problems of the ethnic minority. Of course one understands the problem of the coloured man who goes into the dock and who is faced with a white jury. If there was any way round that difficulty one would of course support it, but it is not solved by peremptory challenge. Let us say for example that there is an all-white jury with a single coloured man in the dock and three peremptory challenges. The three are replaced by another three white men and the problem is not solved. There may be two prisoners and six peremptory challenges. I have seen six replaced by another six, and so it continues.

If a challenge for cause is instituted as we recommended in the report, I suggest that any sensible judge will do his utmost to see that by the use of challenge for cause the rights of the ethnic minority are properly preserved. No one is more conscious of this than I. As a newly appointed English judge I was sent to Wales on my first assize and I realised who the masters were and what it was like to be in a minority in court when faced with the tigers of the Welsh bar.

Lord Elwyn-Jones

I am not speaking of the ethnic minority or of the people who were the first inhabitants of the island; namely the Welsh. But is it not the case that in an attempt to show cause it has not been accepted that because the jury is all-white and the defendant is black that should be a reason for altering the composition of the jury?

Lord Roskill

The noble and learned Lord as a former Lord Chancellor has much greater recent experience than I have of this matter. I can only say that I am aware of cases where a judge has gone out of his way to see that coloured people were on the jury. I recall one case at Birmingham which occurred quite a long time ago now when I took that step. I may or may not have been entitled to do that but I did it, with unfortunate results.

It is often said that if the right of challenge for cause is extended we shall get ourselves into the transatlantic position of taking three days to choose a jury. The present law on challenge for cause is clear. There must he some evidence shown before the judge will allow the matter to be gone into. However, I do not believe that if the right of challenge for cause is exercised sensibly by counsel and, above all, by the judges concerned there is any cause for fear in that direction.

The day has come when one must stop abuse. Of course historically peremptory challenge was necessary. The Stuart Kings and their law officers used to pack juries. The attorney-generals of those days secured the packing of juries. In the last century there was the notorious Peter the Packer in Ireland, who left no stone unturned to see that juries would convict.

The purpose of this amendment is not to secure more convictions. I said that on Second Reading and I repeat it now. The purpose of this amendment is to stop an abuse which has been going on for far too long. Those of us who do believe in jury trials in the appropriate case are increasingly concerned that, if the abuse continues, trial by jury in those cases for which it remains wholly suitable will become discredited in the eyes of the general public.

Perhaps I may have one last word on the matter. The Times, which has already been mentioned as a reputable newspaper by the noble and learned Lord, Lord Denning, contained correspondence a few years ago from outraged jurors who had been challenged. I do not know how many Members of the Committee will have seen challenges being exercised. Perfectly respectable people are challenged and are almost ritually thrown off juries. One frequently sees a look of indignation and realises that they regard the whole thing as a lawyers' game and an insult to their integrity. They do not see why it has happened.

Those are the reasons why the clause should stand part of the Bill. I urge the Committee to let it stand.

6 p.m.

Lord Grimond

Whatever we may do as regards abolishing peremptory challenge, we shall certainly not increase the number of jurors from ethnic minorities. Nor are we going to give ethnic minorities any great sense that something will be done about what has been called their justifiable anxieties.

I do not have the experience of previous speakers. However, I have had some interest in this matter for a long time. Long ago I went as a Marshal to Mr. Justice Lewis on the Welsh Circuit. He was there charged with trying the Welsh nationalists who set fire to an aerodrome on Owen Glendower's birthplace. It was a celebrated trial which aroused much interest among the ethnic majority in the country. Not only are the Welsh an ingenious race; they are invariably courteous. That is very baffling to the British. They took every advantage which the law allowed. When I tell the Committee that among those defending was the noble and learned Lord, Lord Edmund-Davies, it will understand that the trial was of a very high order. I much enjoyed sitting on the Bench as challenges for various reasons went by and more and more jurors were taken away. Then I suddenly received a note saying, "If we run out of jurors, it is the duty of the judge's marshal to go into the streets and capture more". I think that the phrase is "praying the tailes".

The thought of being despatched into the High Street seething with agile and powerful Welsh men and women and capturing a dozen or two concentrated my mind. The point is that that was a trial in which half the people in Wales thought that the criminals were not those in the dock but rather the English officials who had decided to put an aerodrome down on Owen Glendower's birthplace. It was essential that all the advantages which the English law gave to a defendant should be deployed.

I believe that that is still very much the case and I agree with what has been said. It may be a logical system. But if we are going to introduce logic into the law, one of the things one might consider is abolishing the English Bar. However, I gather that that would not be so popular with many of the lawyers who are intent upon introducing logic.

Logic is one thing; public support and public understanding are quite another. Whatever the logic may be, I believe that if Parliament at this moment decides to abolish one of the oldest of the civil liberties known to our law, it is going to be regarded by minorities in this country as a blow aimed at them. They are going to say that as long as the English, Welsh or even the Scots were affected, such things were allowed. But now that other people, who, possibly wrongly, have come to doubt some aspects of how the country is run, are here, the liberties which we have always said were fundamental to this country are gradually being eroded.

It has been said that that is what has been going on in this Bill already. I do not believe that any useful purpose will be served by taking away the last remnants of peremptory challenge. If that alone was all that was needed to restore law and order in this country, then I should be very much surprised. I believe that it will shake public confidence if we, at this moment when there is real anxiety, do away with something which has not been demonstrated as leading to any great increase in crime and, however illogical it may be, is and has been for many generations regarded as a central element of the law.

Lord Hailsham of Saint Marylebone

I did not agree with the noble Lord, Lord Mishcon, when he said that we had been chipping away at our ancient liberties for the past 10 years. On the contrary, I believe that we have been rationalising a criminal law which was based more on the ethics of fox hunting than on common sense. I believe that a rational system of justice is in the end one which commands the respect of the public.

With great respect to the noble Lord who has just spoken, the right of peremptory challenge at numbers of three is perfectly useless for the reasons given by my noble and learned friend Lord Roskill for the purpose of protecting minorities. It is only useful in multihanded cases where it is used for a purpose for which it was never intended.

It is difficult not to be slightly anecdotal when one handles the subject. I hope that the Committee will forgive me if I tell two short anecdotes from my experience to illustrate the point I am trying to make. It happened that when the number of challenges was seven I was defending a young woman who was accused of murdering her child. She had beaten the two year-old child to death with a stick. I found to my dismay that when the jury was empanelled it was a jury of males. The circumstances were such that I thought it absolutely imperative that I should have a panel with at least some women on it.

When the jury came to be sworn I told the judge that I was going to challenge until I had exhausted my challenges in order to get at least three women on the jury. The judge, who was the late Mr. Justice Cusack, said, "That is a very improper remark, Mr. Hogg". I replied, "I thought your Lordship ought to know what I am going to do and why I am going to do it". By great good fortune, the first three jurors turned out to be women.

It is statistically incorrect to say, as the noble and learned Lord, Lord Elwyn-Jones, has said, that there are too few women on juries. Jurors are taken from the voting lists and statistically, unless they are excused, there will be a majority of women in most cases. If that is not so, it is because women have been excused. The point I make is that it was lucky in that case that the first three jurors happened to be women. The statistical chances in favour of black men, for instance, is that there will not be even one black man on a jury as a result of the use of three challenges.

I shall try in a moment to point out the way forward, which corresponds rather well with the views of my noble and learned friend Lord Roskill. However, I shall next tell the Committee my other anecdote. It happened that some years before the incident which I have just recounted I was defending a number of people who were subsequently convicted. I believe that there were four defending counsel and 10 defendants. I received direct instructions from my lay client that I was to challenge whenever he gave me a certain signal from the dock. Unlike the counsel who refused to take such an instruction, I, rightly or wrongly, took the view that as the right inhered in the client he was entitled to instruct his counsel to challenge whenever he did not like the look of a juror. He did that up to and including the number of seven, all of whom I duly challenged. I regarded that as a gross abuse of the right of peremptory challenge. I also regarded it as my professional duty to challenge when I was told, because the right is that of the client and not of the counsel.

I regard three as totally useless for the purpose of achieving the kind of object which the noble Lord, Lord Hooson, and the noble and learned Lord, Lord Elwyn-Jones, are suggesting. It is only useful for the purposes of advocacy; but I think there is a substantial point behind that being made. If instead of saying, "That is a very improper remark to make, Mr. Hogg", Mr. Justice Cusak had said, "I quite understand your point of view, Mr. Hogg", and he had been entitled to give effect to it, it would have been a very reasonable thing for him to do. I believe that behind this feeling that minorities may not be sufficiently recognised there is a genuine point that one should be entitled to object to the array, as the technical phrase is, on grounds which are not now admitted as part of our law.

However, the way forward is not to retain this totally obsolete form of peremptory challenge but to look at the grounds upon which challenges can be made, particularly a challenge to the composition of the jury. That is the way forward—not the proposal to omit Clause 107 from the Bill.

6.15 p.m.

Lord Hutchinson of Lullington

The noble and learned Lord who has just spoken said some interesting things about a debate which is not taking place. The debate now taking place is a question of abolition; not what you could have instead. The issue seems to me a simple one: does this right of challenge contribute significantly to a fair trial or is there evidence that its exercise tends to bring about injustice?

Its origin seems to be totally irrelevant at this stage—as irrelevant as it would be in respect of argument for the abolition of this Chamber. The point at issue is: is it of service in the administration of justice today? There are many involved in the practice of the criminal law—Treasury counsel who prosecute and advocates who defend—who are passionately concerned to maintain a certain standard of justice in a criminal trial. They have made it very clear to the Home Secretary and to the public that they consider this right to be one of the most important of the checks and balances making up our trial system. And our system remains one of the fairest in the world at the moment.

Why is it that those who practise in the courts—those who are at the coal-face, those who do the job—are for the retention of this right whereas those who have now reached a safe old age on the bench are the ones who tend to be against it? What is required is an efficient and just system which makes all those who participate, and particularly the accused, feel at the end of the trial that they have seen a system that was fair in its operation.

When the accused hears the 12 names of the jury who are to try him, he does not know how the jurors have been selected. He does not know whether the jury has been rigged or vetted. We heard a certain amount from the noble and learned Lord, Lord Havers, as to what happens in that situation. The noble and learned Lord, Lord Denning, at Second Reading, let another large cat out of his bag of judicial reminiscences, if I may say so, on the question of rigging. I refer to col. 970 of the Official Report of 14th July 1987. This is what he said, referring to the case he mentioned today which took place at the Old Bailey: I tried a complicated fraud case at the Old Bailey many years ago. I do not know how it happened but I expect whoever was arranging the panel was able to look down the list of occupations, and in this way there were accountants, bank clerks insurance clerks and so on. It was a first-rate jury that could understand and try the case. After six weeks it came to what I thought was a completely right decision. The Committee will have guessed what the decision was. He went on: Now that has all changed. Youngsters of 18 and 19 … are jurors. No wonder the prosecution hesitates to prosecute when the case is to be tried by a jury—I do not say this offensively—of ignoramuses". There is the truth of the matter and one of the most important reasons why this right of challenge should be preserved. I and other noble Lords in this Chamber who have practised in the criminal law will have heard judges telling the clerk to keep a convicting jury together, not to let it be broken up, and to send it into another court. Because that used to happen, when I was younger, at a certain sessions, it gave rise to an increase in jury challenge at that court.

Those may be important reasons for keeping this right. It gives the accused some say in the make-up of the jury who will decide his fate. As we have heard, when he looks at the jury, they may be all men, all women, all old, all young or all from one locality. If we are going to tell anecdotes, I shall tell only one. I myself stood by jurymen in a case when I was appearing for the prosecution because a newspaper had carried a highly prejudicial account of the previous hearing— prejudicial to the accused I was prosecuting. I stood by for the Crown a number of jurymen who, by their addresses, obviously came from that area.

Another reason for this power to maintain the proper administration of the law is that it can be done by a quick and simple use of the peremptory challenge. It avoids what will inevitably happen if it is now abolished; that is, if public application is made in the presence of the juryman, if questions are asked, and if the application is turned down, there will be a juryman on the jury who very naturally will be biased against the accused.

There is no grievance in challenging a jury. Any judge who knows how to conduct a trial warns the jury beforehand that there may be challenges. This is a perfectly normal course of events. It involves nothing personal to the juryman himself if he is asked not to sit in that particular case.

It is said that the right to challenge distorts the system of random selection. We have heard from the noble and learned Lord, Lord Roskill, that selection is not random. He has made that abundantly clear. In the Cyprus case, referred to by the noble Lord, Lord Hooson, 71 persons were excused service and 11 were challenged by the eight defendants.

What is required so far as possible is an unprejudiced jury. That is what we all require; and random selection simply fails to achieve this on occasions. The idea that an advocate challenges anyone wearing a tie or reading the Daily Telegraph or The Times is simply grotesque. It is almost as grotesque as suggesting that young ladies of 18 are all morons. Advocacy is based on argument and it is reasoning that convinces the listener. You cannot argue with a fool or someone who cannot follow a train of thought.

The reason the Government seek to abolish this right appears to be because of what was said in the Roskill Report. With the greatest respect to the noble and learned Lord, those few pages on the question of challenge of jurors can only be described as written in intemperate and unreasonable language. No evidence was produced in that report to show that one single trial had been influenced by the exercise of the challenge. Words are used such as "manipulation", "abuse", and "rigging". Nothing in that report is evidence of any of those words.

As we know, the noble and learned Lord, Lord Havers, who was, I think, Attorney-General at the time, immediately instituted a survey by the Crown Prosecution Service. In order to do what? I quote: to obtain a basis of fact on which the Government can decide whether action is needed". It was said in the White Paper: in order to inform debate when the matter is before Parliament". We know that after 11 months of inquiries stretching across England and Wales that report had not one single fact in it to show that in any single case there had been any form of abuse in relation to the verdict which was returned. As it has already been said, there were slightly more convictions where there were challenges than where there was none. It may well be that if the prosecuting authorities continue to put such a large number of people in the dock at one time there will be more and more challenges, and that may be an inconvenience and an irritation.

In the presence of the noble and learned Lord the Lord Chancellor, I know that what I am going to say is brave. I may be wrong. As I understand it, in Scotland there are three challenges allowed. I understand also that when the Criminal Justice (Scotland) Bill went through Parliament it started with a clause with one challenge. That was increased to three challenges during the course of the Bill. If I am right about that it will certainly be of interest to hear from the noble and learned Lord the Lord Chancellor what the argument is that what is cherished in Scotland should be abolished in England. I urge the Committee to support this Motion.

Lord Campbell of Alloway

As the noble and learned Lord, Lord Elwyn-Jones, has truly said, the onus is upon the Government to justify change. I hope the Committee will agree that the onus has been fully discharged. The noble and learned Lord also said that it must be shown that this change does not operate unfairly on the accused. Again, surely that can be shown.

It is a simple question. It is: why should an accused continue to enjoy what the noble Lord, Lord Mishcon, calls the ancient, solemn and historic right—if I have it correctly—to seek without any cause to select the jurors who shall try him? Challenge to the array as mentioned by my noble and learned friend Lord Hailsham is quite another thing. It is very much for consideration but it is not before us on this amendment.

In the whittled down form it is true that this anachronism has an advantage to the accused which tips the scales in his favour. I ask the Committee: why should the scales be tipped in favour of an accused today when he can give evidence as he could not in Blackstone's day? Already there are adequate safeguards to afford a fair trial. There is the burden of proof and the standard of proof which rests with the Crown and the overall presumption of innocence. The removal of the right to challenge without cause is a fair, reasonable and requisite corrective in the interests of the due administration of justice.

It is today an illogical refinement to trial by jury which was not illogical in Blackstone's day, as explained so lucidly in particular by the noble and learned Lord, Lord Denning. Today it is not only illogical; it is subject to exception and it is subject to abuse. It indeed invites abuse while it exists. This was explained from the experience of my noble and learned friend Lord Hailsham when he was at the bar, and I have been in the same position myself. Counsel is obliged to challenge without cause to seek to select a jury which, on his instructions, appears to his client most likely to acquit.

In the result there is no getting away from it—jurors are challenged on ethnic considerations, by reason of sex or age and apparent social background. It is idle to mock at the man in the natty gent's suit with the Daily Telegraph. I have seen it happen. We have all seen it happen. We have all seen jurors challenged because they appear to be respectable. I saw it happen only last month when sitting as a recorder at Lewes—my month in the country.

Jurors are challenged for all sorts of reasons that make no sense at all. All this is without cause as none of these considerations would ever afford cause. If the problem is looked at straight in the eye, some Members of the Committee may well think that in this day and age it is an insult to the jurors who serve in the system which I so greatly revere and admire.

As to the problems of ethnic minorities as explained in particular by my noble and learned friend Lord Hailsham—and it requires no repetition—that really is not the point. The extant right to challenge three without cause goes nowhere near causing any form of anxiety or allaying anxiety in that regard. What possible justification is there for the retention of this anachronism which made sense in Blackstone's day?

On objective analysis, having listened to what has been said in this Committee, I can find none. The only justification is that it is a long-standing custom, but that is an argument which, so to speak, devours its own tail, because, if you have to justify, you cannot justify by saying that it exists if you cannot find a reasoned justification for its existence. It is wholly inappropriate, as some Members of the Committee may think, to seek to equate the stand by for the Crown, as explained with authority by my noble and learned friend Lord Havers, with the peremptory challenge. The use to which each is put—one for the purposes of state, the other for the purposes of seeking to select the jury that the accused believes is more likely to acquit—renders any equation of no true comparable effect. For those reasons—and I hope they are reasons because I accept one has to justify change to show that there is no unfairness to the accused—I hope that the Committee will accept that Clause 107 should stand part of the Bill.

6.30 p.m.

Lord Benson

I hope that Clause 107 will stand part of the Bill, and I say so for four reasons. I cannot speak with the skill and knowledge of so many members of the legal profession who are steeped in the law. I speak only as a layman but I have the advantage of having studied the evidence which came before the Roskill Committee.

The four reasons are these. First, it is an anachronism. In olden days, according to the evidence put before us, jurors were chosen from the same village as the accused. They would know whether he was innocent or guilty and at that time the accused could not speak for himself or be represented by counsel. Under those conditions it was only right that the accused should have a large number of peremptory challenges so that he could select those who were to sit in judgment upon him.

Since then, and it has been so for over 100 years, the whole purpose of jury service has changed. Juries are intended to be independent and impartial and it is not for the accused to decide who should sit in judgment upon him. In those olden times, as has already been said, the accused was entitled to 35 peremptory challenges, reduced to 20 in the year 1509, to seven in 1948 and three in 1977. It is high time that this old-fashioned anachronism should be swept away in the same way as many of the other outmoded practices of our criminal courts.

Secondly, an accused person has the right to challenge for cause. If he can find a good reason he has only to bring it before the court and, provided it is a good reason, his request will be acceded to. But when he cannot find any good reason, when he has run out of good reasons, a most extraordinary situation arises. Under those conditions he is given three bisques which he is entitled to use capriciously and irresponsibly. He has not the slightest knowledge about the persons against whom he exercises his bisques, nor yet about those who take their place. Any such procedure invites ridicule and violates common sense.

Thirdly, as has been said in this Committee tonight and as was said on Second Reading, peremptory challenge entitles the accused to redress the balance of age, race or sex on the jury. As I understand the law, the jury system is intended to be by selection at random. It is intended that jurors make their decision on the basis of the facts put before them. It cannot be right that an accused person, by the capricious exercise of his bisques, should be able to find someone who is prepared to be influenced by emotion to give a judgment based on his age or the colour of his skin and who will be favourably inclined towards him in the jury room. If Parliament wants a particular balance on juries of age, race, sex, colour, creed or class, let Parliament decide what that balance shall be. It cannot be for an accused person to decide to redress the balance by the capricious use of bisques.

Fourthly, the system is blatantly and flagrantly abused. I should like to recall to the Committee one passage from the Roskill Report: Our evidence shows that the public, press and many legal practitioners now believe that this ancient right is abused cynically and systematically to manipulate cases towards a desired result". Those are strong words, and I hope the Committee will take note of them.

In a fraud case any potential juror who turns up neatly dressed with a copy of The Times under his or her arm will be subject to peremptory challenge. The reason is that the accused or his counsel prefer to have on the jury people who are not sophisticated and those who are unlikely to understand the complex issues at stake. The accused or his counsel usually try to have teenagers for the same reason. Then, by rhetoric and extravagant prolixity, counsel so confuses the issue that the jurors do not understand the case and acquit accordingly.

There is the other type of abuse which is also practised. I cannot be sure of the precise numbers, but the facts were clearly given to us by the Roskill Committee. It was, I think, a case of 18 persons who were accused of a picketing affray during an industrial strike. The lawyers for the accused searched through all the addresses of the potential jurors. By their 54 bisques they then excluded from the jury any juror unless his home address was adjacent to one of the accused. The object was that the jurors would know and possibly be friendly towards the accused and perhaps work with them cheek by jowl at the pits every day of the week. If we in this country believe in law and order these ancient anachronisms and squalid devices which have been adopted should he eradicated from our procedures.

Lord Ackner

Any debate which concerns altering trial by jury is bound to give rise to strong feelings. I have no doubt that when some 20 years ago we debated abolishing unanimity among jurors, there was more rhetoric than we have heard this evening. The noble and learned Lord, Lord Devlin, who is always quoted as being an authority on nearly everything, wrote some 10 years before that debate that it would be very wrong for a jury's unanimity to go. My noble friend Lord Hutchinson, in his anxiety to espouse the Scottish system, would not, I believe, accept the majority of eight to seven which they have in Scotland.

The right to challenge is a tactical weapon in the armoury of counsel. That is not an observation from a "safe old age on the Bench", assuming that I have reached that stage. It is an argument put forward on 27th April this year by my noble friend Lord Wigoder, who said: I could have found it difficult to accept that in exercising the right of peremptory challenge defendants are necessarily seeking to secure a balanced jury. I think most defendants—and it is the defendent who has the right to challenge, not counsel—if they were asked what they were doing when their barrister on their instructions made the challenge, would he somewhat startled if it were suggested that it was in order to secure a balanced jury. Of course it is not. They are doing it in order to secure the most favourable jury possible; and there is nothing wrong with that under our present system". [Official Report, 27/4/87; col. 1334.] They were tactics which were strongly advised against. In the same debate, my noble friend Lord Hooson said: I was brought up on a circuit—the noble and learned Lords, Lord Edmund-Davies and Lord Elwyn-Jones were my mentors—where it was thought"— I emphaise this— tactically unwise to challenge without cause unless one was absolutely certain it was necessary". [Official Report, 27/4/87; col. 1291.] As the Committee knows, I share many of the qualities, some good and some bad, of my noble friend Lord Hutchinson, and one of them is that we are members of the same circuit—the Western Circuit. I am sure that he will agree with me that if we had been in any trouble in the days when we were practising, we would have gone to the best defending advocate—present company of course disregarded—namely, to Norman Skelhorn, later Sir Norman Skelhorn, Director of Public Prosecutions. He made it a firm rule never to challenge because he reckoned that it was thoroughly bad tactics.

Anecdotes are permitted to the anecdotage. I may perhaps be allowed to give one example. I was trying a blackmail case at the Winchester Assizes. A young, apparently well educated, well dressed man was challenged off the jury. In his place there came a shy, demure, self-effacing, timid, middle-aged lady. She might have been the half-sister of my noble friend Lord Hutchinson, if he had a half-sister, and she took his place. The jury was out precisely 20 minutes. It brought in a conviction, delivered with a smile on her face by the lady who had replaced the educated young man.

We have in this place recently abolished one tactical manoeuvre that counsel were able—quite properly, because the law so provided—to employ; namely, to attack, right, left and centre, the prosecution witnesses, and then, so that the jury would not know the nature of the character of the attacker—the defendant—to allow him to make a long statement from the dock so that he could not be cross-examined and so that his record could not be brought out. We have got rid of that. They were out-of-date tactics which were unnecessary.

A little earlier we got rid of the ability of defending counsel—perfectly properly, because it was then permissible—to keep the defendant's alibi up his sleeve until the very last moment, and then to spring it on the prosecution, which had no time, even though it might have a short adjournment, to check up on that alibi. No doubt all those moves towards bringing our criminal law up to date were strongly contested. I respectfully suggest that this is an out-of-date, wasteful, tactical weapon in the armoury of the defence and that it is high time we saw the back of it.

6.45 p.m.

Lord Irvine of Lairg

The ultimate justification for juries is that the public trust the jury, and ultimately only the jury, in decisions affecting the liberty of any member of the public. We respect and trust our judges, but in criminal trials we trust our juries equally. When all is said and done, the justification for jury trial is that the public have confidence in that part of the system of justice on which the liberty of the subject depends, which is why the judges share that part of the system of justice with the people.

Surely the justification for the defence's right of peremptory challenge is identical to the justification for jury trial itself. It is rooted in public confidence in the administration of justice. A principle of justice is that justice must be seen to be done. The public must see it as justice. Public confidence in the administration of criminal justice is strengthened by the defendant having an absolute right to say no, even to as few as three jurors about whom he feels, on sight, unhappy.

My belief in physiognomy is somewhat less than 100 per cent. I might have tended to agree with Duncan had I been there when he said to Malcolm: There's no art to find the mind's construction in the face". Many who are not irrational think that they can tell a good deal from appearance. If one is black and there seem to be too many whites on the jury; if one is a woman and there seem to be too many men on the jury; and if one is poor and there seem to be too many better-off people on the jury, then the right to say no to three of them must increase confidence in the jury. True it is—the noble and learned Lord, Lord Hailsham, made the point very well—that it has a limited, if any, material influence on the composition of the jury. It does not create a balanced jury, but it increases confidence in the administration of justice.

If the Minister is impressed by what came from the noble and learned Lord, Lord Hailsham, the right course may be to take away this clause and think of fashioning a system along the lines suggested by the noble and learned Lord which would make for the creation of a balanced jury in a way that gives greater confidence. Nor, as the Minster has said, is the right of the prosecution limited to saying no to three without cause. It has the right to say no to literally any number of available jurors without cause until what is called the panel is exhausted. Only after that is the Crown obliged to show cause for saying no to any juror. There is already an imbalance in the law in favour of the prosecution. That imbalance becomes absolute if the right of the defendant to three peremptory challenges is abolished.

I know the argument is that the right of peremptory challenge cuts across what is described as the principle of random selection, but that argument assumes that legal tradition favoured such a principle and denied peremptory challenge. Not so, as we have heard: peremptory challenge has been with us since the 16th century. I suppose it could be said that the right of peremptory challenge is administratively inconvenient once jurors who have been sent away nave to be replaced. Some of them, I suppose, could be embarrassed or even offended. But those are minor considerations and a small price to pay for confidence in the system. Anyway, there is great administrative inconvenience in standing by for the Crown.

There is only one real new point of any substance, but its importance is greatly exaggerated. It is that in multi-handed defences in London the right may sometimes be abused so that, in the theoretical example which the noble and learned Lord, Lord Denning, gave, 10 defendants could remove 30 jurors. That problem arises in practice in a few cases in London and perhaps occasionally elsewhere in the South-East. It is not a problem elsewhere in the country. I look forward to hearing the Minister make, if he can, some attempt to quantify the alleged problem which has brought forth this remedy. Criminal practitioners to whom I have spoken tell me that it is of rare occurrence and confined to the parts of the country that I have mentioned.

For my part, I am therefore unpersuaded that the case is made out for any legislative change. But, if there is such a case, surely the change should be proportionate to the problem. It could, for example, be laid down that in multi-handed cases—the noble Lord, Lord Hooson, touched on such a possibility—there should be a maximum number of challenges—say, six and nine. That would meet the problem, if there were any problem. However, as so often occurs, this Government bring forward a change to the law which is disproportionate, one-sided and unfair.

For my part, I shall oppose this change on the one-sided basis on which it is brought forward, because I believe in the jury system and in public confidence in the fair and equal administration of justice. If it is necessary to retain the Crown's rights for the reason advanced by the noble and learned Lord, Lord Havers—and I think it is—then surely fairness requires that the present rights of the defence should remain, unless and until a wholly new system of ensuring balanced juries can be brought before Parliament for its consideration.

The Earl of Caithness

This has been a most useful and stimulating debate in which six noble and learned Lords have taken part. Four QCs have taken part; and, although the noble Lord, Lord Hutchinson of Lullington, said that all those at the coal face were against Clause 107, my noble friend Lord Campbell of Alloway is very much at the coal face and can give the noble Lord a year or two, I have discovered.

Before I concentrate on the detail of whether this clause shall stand part of the Bill, I should like to place the Government's proposal in a rather broader context. The sovereign importance of public confidence in the criminal justice system has been a thread running through the Committee's deliberations on the Bill. We have discussed proposals to strengthen the law by providing additional powers for the courts to order the confiscation of offenders' assets and to impose heavier penalties for certain offences which cause public concern. We have considered at length and in a debate of, if I may say so, exceptional quality, measures to improve confidence in the sentences passed for the most serious crimes. I shall shortly be inviting Members of the Committee to consider proposals to give better protection against violent young people who carry knives. In Clause 107, I ask the Committee to give its attention to the question of public confidence in the jury system, which I believe needs strengthening in this respect.

The jury is a cornerstone of our legal system. It is founded on the principle that the jury should be drawn as randomly as possible from those adult members of the community who are able to serve. Parliament has been ready in recent history to widen the pool from which jurors may he drawn. The use of the electoral register gives the broadest possible base for selection. I shall invite your Lordships in Clause 108 to take this process a step further by allowing people of 65 to 70 years of age to serve as jurors if they are able and willing to do so. Conversely, Parliament has been slow to exclude people from consideration as jurors. The list of those who are ineligible for service, or disqualified, or excusable as of right, is tightly drawn. Within this framework, which Parliament created and which I believe is widely respected, the survival of the right of peremptory challenge is an oddity, an anachronism.

Noble Lords have said very rightly that the right of peremptory challenge is an ancient one and should not be removed from our law without the most careful consideration. I have no doubt that for centuries it was a most necessary and desirable device. The jury panel used to be drawn from a quite limited section of the population and generally from a smaller community than nowadays. The defendant was liable to extremely severe penalties, including death and transportation, for offences which we would now consider not very serious. But, as law and practice changed, the need for the protection afforded by the right of peremptory challenge diminished. Parliament has acknowledged this over the years by reducing the number of challenges available to the defendant. In 1948, therefore, it was reduced from 20 to seven challenges. In 1977 it was further reduced to three. I believe we can now say that the defendant no longer needs the protection of peremptory challenge at all. His right to challenge jurors for a specific cause—which he may do on any number of occasions—enables him to remove any juror who might be unfairly disposed against him because of, for example, a personal quarrel.

Not only is the right of peremptory challenge unnecessary; it is positively harmful. Members have argued from differing points of view about whether the right of peremptory challenge is abused. I am not the person to say that the right of peremptory challenge is abused, but I am very glad to follow the authority of the noble Lord, Lord Wigoder, on this point. In the debates in this Chamber on the 1977 Criminal Law Bill the noble Lord made the point very cogently that use of a right does not constitute abuse. However, it is worthy of note that the interpretation of the noble Lord is different from that of his noble friend Lord Harris of Greenwich, who felt at that time that the right was abused. Today we have heard from the noble and learned Lord, Lord Roskill, the noble Lord, Lord Benson, and my noble friend Lord Campbell of Alloway that it is in fact still abused.

I suggest that the existence of this right provides a potential for distortion of the jury which I believe may have adverse effects on justice. Cases in which several co-defendants pool their challenges in order to remove large numbers of jurors underline this most vividly, but I am not concerned solely or even primarily with multi-defendant cases. It is on the principle of the matter that I believe we should concentrate our attention.

It seems to me that noble Lords who have argued against our proposals have based their case on two propositions. The first is that peremptory challenge is an important safeguard for the defendant. The noble Lord, Lord Hutchinson of Lullington, said that we should dispel from our minds the origins and history of peremptory challenge and that it was for the advocates of change to demonstrate that peremptory challenge was not an important safeguard. My answer to that is twofold. In the first place, I do not see how something so arbitrary as peremptory challenge can be a safeguard for the accused. The noble Lord, Lord Hutchinson, said that peremptory challenge was used to achieve an unprejudiced jury. But how can it have that effect? I have heard nothing in the eloquent speeches we have listened to this afternoon to demonstrate convincingly that peremptory challenge is a vital safeguard.

Secondly, I do not believe that we can so lightly disregard the history of the matter. The jury system, no more than any of our most treasured institutions, is neither static nor fossilised. It has evolved over time to meet changing needs, and it continues to do so. The system as it exists now would be unrecognisable to those who lived in earlier centuries. For example, one's impression is that the jury has moved from something intimate and local, with, in the 17th and 18th centuries, something of a premium being put on the jurors being known to the accused, to the much more anonymous system that we have now, expecially in the large cities.

The present notion of challenge for cause as applying only where there is a real likelihood of prejudice and with no opportunity for the accused to question jurors without first showing cause has developed over the centuries in striking contrast to the way in which the American jury system has developed over the same period. Peremptory challenge has been reduced, as we have heard from the noble Lord, Lord Benson, from 35 challenges per defendant in the 16th century to the present three. Most recently, and perhaps most dramatically of all, the pool from which jurors are drawn was massively expanded in 1974, with a shift from a property qualification to the electoral roll as the basis for jury service.

I mention these changes to illustrate two points. First, the jury system is not a fossil; it changes and is changeable and would be the poorer if it were not. Secondly, if there be a logical thread running through these changes it is the broadening of the popular base of the jury and the recognition, almost as a corollary of that, that, as the jury becomes more fully representative of the community, it is reasonable to expect the defendant to take it as he finds it save where he can demonstrate cause.

The second main argument advanced by those Members who spoke against the clause boiled down to the fact that peremptory challenge is a right that the defendant enjoys to make the jury more representative of his interests; and in particular because it is unfair to the black defendant to be confronted by an all-white jury. This is an important matter. I strongly believe that we should do all we can to ensure that the ethnic minorities have full confidence in our system of criminal justice. However, as the noble and learned Lord, Lord Roskill, and my noble and learned friend Lord Hailsham have reminded us, peremptory challenge is simply a mechanism which removes people from the jury and cannot guarantee a jury superficially more appropriate to the defendant's concerns.

To defend peremptory challenge on the argument that there should be some means by which the jury would be made more representative of the defendant's background and interests therefore seems to me, with great respect to the noble and learned Lords, to attribute to it a function which it does not have and which could only be created through a radical change in the whole system of selection. My right honourable friend the Home Secretary has described this approach as jury engineering, and it is an apt phrase. There is a logical case for jury engineering. The noble and learned Lord, Lord Roskill, reminded us of the Lord Chief Justice in Ireland known as "Peter the Packer". When he was asked why he had to pack the juries he said, "It was the only way I could get a conviction".

Lord Hailsham of Saint Marylebone

So it was.

7 p.m.

The Earl of Caithness

Although that was true at the time, as my noble and learned friend reminds us, surely that is not applicable in this country. That is an argument we cannot accept. There is a logical case for taking the jury as one finds it but there is no logical case for peremptory challenge.

The noble Lord, Lord Gifford, has not moved his amendment under which the number of challenges permitted per defendant would be progressively reduced for cases where there were more than three defendants. However, as it has been alluded to perhaps the Committee will bear with me if I say a word about it now. A sliding scale of the kind proposed by the noble Lord would indeed limit the mischief which could be wrought by a large number of defendants. That is a worthy aim. But however we may juggle with numbers it does not answer the question why it should be right at all to allow the defence to challenge a juror without cause.

The sliding scale approach itself raises issues of principle. If peremptory challenge is a valuable right of the individual, as some noble Lords have asserted, how can it be argued that some defendants have a greater right than others? A person with two codefendants could challenge up to three jurors. If he had three co-defendants he would have no more than two challenges. If he had seven co-defendants he would have only one challenge. That may be all very well for him if his interests are identical to those of his co-defendants. They can make common cause by pooling their challenges.

However, we cannot and must not assume that that will always be the case. Sometimes one of a number of co-defendants will have very different interests—for example, if he has co-operated with the police. Perhaps more important, it would be curious to say the least to construct the system in such a way as positively to encourage the pooling of challenges, which is one of the more unattractive features of current practice.

I have listened carefully to the debate this evening but it does not seem to me that those noble Lords who oppose Clause 107 have shaken the fundamental logic of our proposal that, challenge for cause apart, the defendant should be ready to take the jury as he finds it. Why should he be able to remove jurors without any reason given? If it is to achieve a particular balance of the jury then peremptory challenge is a poor and ineffectual tool and something much more elaborate is required. In the Government's view it is not only offensive to the people who give up their time for jury service to be peremptorily dismissed; it is wrong in principle. Peremptory challenge, valuable as it may have been as a safeguard in times gone by, has outlived its usefulness.

Lord Elwyn-Jones

I think I am entitled to make a few observations.

Lord Hailsham of Saint Marylebone

I think not.

Lord Elwyn-Jones

I am sorry, but I have taken advice from where it should come—from the Table.

Lord Hailsham of Saint Marylebone

We always like to hear from the noble and learned Lord, but I thought that we were on the Question that the clause stand part; and that being so it is not as if an amendment had been moved.

Lord Elwyn-Jones

I took advice and was advised that it was proper for me to make some observations. We have been at it long enough and I shall speak only for a moment or two.

What we have tonight is a one-sided decision to do away with the citizen's right to challenge but to keep the Crown's right to challenge indefinitely and in any numbers it chooses. It is a piece of inequality that is unworthy of this Chamber. What we are asked to do tonight is to diminish an ancient and important right of the defendant, of the citizen, in the courts. I hope that once again this noble Chamber will exercise its traditional care for the interest of the subject by rejecting this abominable proposal.

7.5 p.m.

On Question, Whether Clause 107 shall stand part of the Bill?

Their Lordships divided: Contents, 125; Not-Contents, 87.

DIVISION NO. 1
CONTENTS
Ackner, L.	Brougham and Vaux, L.
Ampthill, L.	Butterworth, L.
Arran, E.	Caithness, E.
Auckland, L.	Cameron of Lochbroom, L.
Beaverbrook, L.	Campbell of Alloway, L.
Beloff, L.	Carnock, L.
Belstead, L.	Constantine of Stanmore, L
Benson, L.	Cottesloe, L.
Blatch, B.	Cox, B.
Blyth, L.	Craigavon, V.
Borthwick, L.	Cranbrook, E.
Boyd-Carpenter, L.	Cullen of Ashbourne, L.
Brabazon of Tara, L.	Davidson, V. [Teller.]
Brentford, V.	Denham, L. [Teller.]

Denning, L.	Mountevans, L.
Dilhorne, V.	Mowbray and Stourton, L
Dundee, E.	Munster, E.
Eden of Winton, L.	Murton of Lindisfarne, L.
Elibank, L.	Napier and Ettrick, L.
Ellenborough, L.	Nelson, E.
Elliot of Harwood, B.	Nugent of Guildford, L.
Elton, L	Onslow, E.
Faithfull, B.	Orkney, E.
Fanshawe of Richmond, L.	Orr-Ewing, L.
Foley, L.	Oxfuird, V.
Fortescue, E.	Pender, L.
Fraser of Kilmorack, L.	Peyton of Yeovil, L.
Fraser of Tullybelton, L.	Portland, D.
Gardner of Parkes, B.	Rankeillour, L.
Glenarthur, L.	Reay, L.
Gray of Contin, L.	Renton, L.
Greenway, L.	Renwick, L.
Gridley, L.	Rodney, L.
Hailsham of Saint Marylebone, L.	Romney, E.
	Roskill, L.
Harmar-Nicholls, L.	Salisbury, M.
Havers, L.	Saltoun of Abernethy, Ly.
Hayter, L.	Sandford, L.
Henderson of Brompton, L.	Seebohm, L.
Hesketh. L.	Sempill, Ly.
Hives, L.	Shannon, E.
Holderness, L.	Sharples, B.
Hood, V.	Shaughnessy, L.
Hooper, B.	Sherfield, L.
Hylton-Foster, B.	Simon of Glaisdale, L.
Johnston of Rockport, L.	Skelmersdale, L.
Killearn, L.	Slim, V.
Kinloss, Ly.	Strange, B.
Lane-Fox, B.	Strathclyde, L.
Lindsey and Abingdon, E.	Sudeley, L.
Long, V.	Swinfen, L.
Lucas of Chilworth, L.	Terrington, L.
Luke, L.	Thomas of Gwydir, L.
Mackay of Clashfern, L.	Thorneycroft, L.
MacLehose of Beoch, L.	Trafford, L.
Macleod of Borve, B.	Tranmire, L.
Malmesbury, E.	Trefgarne, L.
Marley, L.	Trumpington, B.
Marshall of Leeds, L.	Vaux of Harrowden, L.
Maude of Stratford-upon-Avon. L.	Whitelaw, V.
	Wyatt of Weeford, L.
Merrivale, L.	Wynford, L.
Mersey, V.	Young of Graffham, L.
Mottistone, L.

NOT-CONTENTS
Airedale, L.	Hooson, L. [Teller.]
Amherst, E.	Houghton of Sowerby, L.
Ardwick, L.	Howie of Troon, L.
Attlee, E.	Hughes, L.
Birk, B.	Hunt, L.
Bonham-Carter, L.	Hutchinson of Lullington, L
Bottomley, L.	Hylton, L.
Brockway, L.	Irvine of Lairg, L.
Bruce of Donington, L.	Jacques, L.
Carmichael of Kelvingrove, L.	Jay, L.
Cledwyn of Penrhos, L.	Jeger, B.
Cocks of Hartcliffe, L.	John-Mackie, L.
David, B.	Kilmarnock, L.
Davies of Penrhys, L.	Lawrence, L.
Dean of Beswick, L.	Listowel, E.
Diamond, L.	Lloyd of Kilgerran, L.
Donaldson of Kingsbridge, L.	Lockwood, B.
Donoughue, L.	Longford, E.
Edmund-Davies, L.	Lovell-Davis, L.
Elwyn-Jones, L.	McCarthy, L.
Ennals, L.	McIntosh of Haringey, L.
Falkender, B.	McNair, L.
Fisher of Rednal, B.	Meston, L.
Foot, L.	Milner of Leeds, L.
Gallacher, L.	Mishcon, L.
Galpern, L.	Molloy, L.
Grimond, L.	Monson, L.
Harris of Greenwich, L.	Morton of Shuna, L.
Hatch of Lusby, L.	Mulley, L.
Heycock, L.	Murray of Epping Forest, L.

Nicol, B.	Sloddart of Swindon, L.
Ogmore, L.	Strabolgi, L.
Pitt of Hampstead, L.	Taylor of Blackburn, L.
Ponsonby of Shulbrede, L.[Teller.]	Taylor of Gryfe, L.
	Taylor of Mansfield, L.
Prys-Davies, L.	Tordoff, L.
Scanlon, L.	Turner of Camden, B.
Secar, B.	Underhill, L.
Serota, B.	Wedderburn of Charlton, L
Shacklelon, L.	Whaddon, L.
Silkin of Dulwich, L.	White, B.
Simon, V.	Williams of Elvel, L.
Stallard, L.	Wilson of Rievaulx, L.
Stewart of Fulham, L.	Ypres, E.

Resolved in the affirmative, and Clause 107 agreed to.

The Earl of Arran

The Committee may feel that we have reached a suitable moment to break. We shall return to the subject in one hour's time, at 8.15. 1 beg to move that the Committee do now adjourn during pleasure.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.15 until 8.15 p.m.]

On Question, Whether Clauses 108 to 110 shall stand part of the Bill?

Lord Wigoder

I should like to say a few words in respect of Clause 110. As I understand the matter, this clause was not in the original Bill when it was first produced many months ago. I then tabled an amendment to that Bill, which included this clause (now Clause 110) and which also included Amendment No. 217 with which we shall shortly deal. I therefore desire to claim the credit for Clause 110, as it now stands, because it follows the wording of the amendment that I tabled originally. I do so not in order to obtain credit but to establish my credentials when I move Amendment No. 217.

The Earl of Caithness

We always look with great care at the words of the noble Lord, Lord Wigoder, in the Official Report. I am delighted that we have been able to include Clause 110 for him.

Clauses 108 to 110 agreed to.

Lord Wigoder moved Amendment No. 216: After Clause 110, insert the following new clause:

("Power to defer Jury service.

.—(1) In section 9(1) of the Juries Act 1974, after "attending" there shall he added the words "or his service has been deferred".

(2) In section 9(2) of that Act, after the words "from attending" there shall be added the words "or that his service should he deferred", and after the words "from so attending" there shall be added the words "or defer his service for not less than a period to be stated".

(3) In section 9(3) of that Act, after "him" there shall be added the words "or defer his service".

(4) In section 9(4) of that Act there shall he added at the end the words "or defer his service for not less than a period to he stated".").

The noble Lord said: I hope that this amendment is a practical contribution to our discussions. I drafted it and therefore I accept at once that the drafting is faulty. The Minister need not trouble to say that when he replies.

As the position stands at the moment, if a person is summoned for jury service under Section 9 of the Juries Act 1974, he either undertakes his jury service or is exempt from his obligation to attend. He can apply to be exempt from that obligation on any ground if there is good reason. The usual reason is that holidays are coming up, but there may be other reasons such as the fact that he owns a small business and his manager is away for a period or whatever.

In those circumstances, as I understand Section 9 of the 1974 Act, if a person summoned shows that there is good reason to be excused from attending, the appropriate officer (under subsection (2) of the Act) or the court (under subsection (4)) can excuse that person from attending. In other words, the appropriate officer or the court has the alternative of saying, "No, you must attend", or, "You are exempt from attending".

Because of the large register that now exists jury service comes round comparatively rarely; in some areas it may be every five or 10 years. The position is therefore that if a person is to be on holiday when he is called for jury service he either serves in his turn or he is exempt from attending. In that case it may be another five or 10 years before he is called again.

In what I accept is probably inadequate drafting, the clause attempts to give the appropriate officer or the court an additional power; namely, that of saying, "Yes, we accept your excuse this time. You need not come but you will report for jury service next time", in three months' time, or whatever it may be. It seems to me that that would be fairer and a power that would be appreciated by the courts and the appropriate officers. I beg to move.

The Earl of Caithness

The noble Lord, Lord Wigoder, has argued persuasively for explicit provision in the Juries Act for deferment of jury service. I am glad to say that I can accept his amendments in principle. I cannot accept the amendments quite as they stand because I do not think it is necessarily right to provide the deferment of the service of those who are entitled to excusal as the amendment of the noble Lord would do. I should also like to consider the question of whether some time remit for the period of deferment should be provided.

That said, I agree with the noble Lord that deferment is a sensible and convenient device for ensuring that potential jurors whose names are drawn and who are willing to serve are not prevented from doing so by some temporary impediment. If the noble Lord is content to proceed in that way, I shall be happy to discuss with him a form of words that could be tabled on Report. On that basis I hope that the noble Lord will see fit to withdraw his amendment.

Lord Wigoder

When I have recovered from my surprise I shall say to the Minister that I am most grateful for his remarks. I accept his offer most gratefully and shall be happy to co-operate in any way that I can. In those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wigoder moved Amendment No. 217: Insert the following new clause:

("Power of judge to try preliminary issue without jury.

In any trial on indictment on which either of the following issues is raised—

1. (a) whether the defendant is mute of malice or by visitation of God, or
2. (b) whether the defendant is fit to plead,

it shall he for the judge, without presence of a jury, to decide the issue.").

The noble Lord said: This provision might be described as the other half of Clause 110 which the Committee approved a short time ago. The amendment proposes that certain preliminary proceedings, which at the moment are tried by a judge and jury, in fact are more appropriately tried by a judge alone. Those proceedings fall into two categories. First, under (a) of the proposed new clause, it is suggested that the issue of whether a defendant is mute of malice or by visitation of God should be tried by judge alone and not by a jury. I apologise for using such archaic legal expressions.

The present procedure is, I believe, that if a defendant does not speak in the dock when he is asked to speak, the jury has to be sworn in, not in order to try him but to try the single issue of whether his silence is because he is mute of malice (in other words, he refuses to speak because he is bloody-minded) or whether he is mute by visitation of God, namely, that he is dumb as a result of some natural ailment.

The consequences of the distinction in our law are, somewhat surprisingly, very substantial. I think I am right in saying that if a person is found by the jury to be mute of malice the judge then directs that a plea of not guilty should be entered and the trial proceeds under a different jury. Somewhat curiously, I understand that if the defendant is found to be mute by visitation of God, he is found unfit to plead and is carried off to some institution for the rest of his life—a very odd fate to befall someone who may be innocent but who happens to be dumb as a result of some natural ailment. So the issue that the jury has to determine is an odd one and it must be determined on the evidence that is called before it.

Other members of the committee who have practised at the bar have indulged in anecdotes this evening. Perhaps I, too, can offer an anecdote to illustrate what I think is the absurdity of the way in which these issues are tried at the moment. Some years ago, in a trial at the Old Bailey involving three alleged members of the IRA, I defended the third defendant in the list. All three defendants decided to ignore the court. The first was asked, "Are you guilty or not guilty?", to which question he simply shook his head. So the judge, who was a very wise old bird, said to him, "Well, will it be all right if I enter a plea of not guilty?" The first defendant said, yes, that would be fine.

Having heard the Irishman speak, the judge felt that it was all right; he was clearly mute of malice, and a plea of not guilty was entered. The same question, "Are you guilty or not guilty?", was asked of the second Irishman, who shook his head. The judge asked, "May I enter a plea of not guilty?" "Yes, certainly" said the Irishman. So the judge entered a plea of not guilty, and that was fine.

The third defendant, my client, was very much wiser than the other two defendants. Asked whether he pleaded guilty or not guilty, he shook his head. The judge then said, "Shall I enter a plea of not guilty in your case?" and the defendant simply turned his back to the judge and spat on the floor. So, for the only time in my experience a jury had to he empanelled to decide whether this particular defendant—the third Irishman—was mute of malice or mute by visitation of God.

As the jury was being sworn in for that purpose and upon reaching the eighth juror, the Irishman turned round in the dock and said, "Your Honour, have I the right to challenge any of these jurors?" There was nothing we could do except complete the empanelling of those 12 jurors. The prosecution then faced the absurdity of having to call a police officer to say that he had heard this man speak a few minutes ago when quite clearly everyone else in the court had also heard him. The judge then had to direct the jury as to the law, to sum up as to the facts and to ask the jury to deliver their verdict as to whether the defendant was mute of malice or mute by visitation of God. That was a manifest absurdity.

I venture to think that there is a case for saying that the judge alone should try that preliminary issue rather than continuing with such an archaic procedure—and we are becoming rather good at producing archaisms this evening—of swearing in a jury especially for that purpose.

The other half of this proposed new clause is perhaps a rather more difficult matter; namely, the proposal that it should be for the judge alone and not a jury to decide whether a defendant is fit to plead—in other words, whether there is a serious issue raised as to whether or not the defendant is mentally capable of following the proceedings. Those issues inevitably involve very substantial expert evidence called on both sides. Such evidence is extremely difficult for laymen to judge and is much more appropriate for a judge to decide upon. In those circumstances I hope that the Government will take the view that those two proposals in relation to preliminary issues supplement the other two proposals that the Government have already accepted in Clause 110. I beg to move.

The Earl of Caithness

The noble Lord, Lord Wigoder, has proposed that the judge rather than the jury should determine whether a defendant is mute of malice or by visitation of God. I understand the reasons he has given for bringing the proposal before the Committee. I fully appreciate that it may be distressing for, say, a mentally handicapped defendant to have to appear before a jury so that this issue may be determined. I understand also why it may seem a waste of time to trouble a jury with such an apparently straightforward matter. While I understand these arguments, I am afraid that I cannot follow the noble Lord to the same conclusion. I believe that it is important that we maintain the principle that it is essentially for the jury to determine the facts. That is the normal basis on which the law operates. In the complicated case cited by the noble Lord it would seem logical for the jury rather than the judge to have to determine the solution to that problem and other problems that it faces.

I well understand that cases in which fitness to plead is at issue are rare, and, although reasonably clear cut on many occasions, are often cases that are very serious where the involvement of a jury rather than a single judge is desirable. However, in view of the noble Lord's remarks, I think that this is something I should like to read and have a further look at. Obviously it is something that I should like to discuss with my noble and learned friend the Lord Chancellor and indeed with the noble and learned Lord, Lord Lane.

Lord Wigoder

I am grateful for those observations. I make it clear that these are not amendments in any event that I would seek to press. They are suggestions put forward in case they appear to be acceptable to the Government as a modest means of shortening some of our complex trial procedures. I am happy to ask leave to withdraw this amendment.

Amendment, by leave, withdrawn.

Clause 111 [Restrictions on the imposition of custodial sentences on offenders under 21]:

8.30 p.m.

The Earl of Caithness moved Amendment No. 217A: Leave out Clause 111 and insert the following new clause:

("Custodial sentences for young offenders.

.—(1) Part I of the Criminal Justice Act 1982 shall be amended as mentioned in subsections (2) to (5) below.

(2) The following subsection shall be inserted after subsection (3) of section 1.— (3A) Subject to section 53 of the Children and Young Persons Act 1933 (Punishment of certain grave crimes), the only custodial orders that a court may make where a person under 21 years of age is convicted or found guilty of an offence are—

1. (a) a sentence of detention in a young offender institution under section 1A below; and
2. (b) a sentence of custody for life under section 8 below."

(3) The following subsections shall be substituted for subsection (4) of that section— (4) A court may not—

1. (a) pass a sentence of detention in a young offender institution; or
2. (b) pass a sentence of custody for life under section 8(2) below, unless it is satisfied—
1. (i) that the circumstances, including the nature and the gravity of the offence, are such that if the offender were aged 21 or over the court would pass a sentence of imprisonment; and
2. (ii) that he qualifies for a custodial sentence.

(4A) An offender qualifies for a custodial sentence if—

1. (a) he has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them; or
2. (b) only a custodial sentence would be adequate to protect the public from serious harm from him; or
3. (c) the offence of which he has been convicted or found guilty was so serious that a non-custodial sentence for it cannot be justified."

(4) The following sections shall be inserted after section 1—

"Detention in a young offender institution.

1A.—(1) Subject to section 8 below and to section 53 of the Children and Young Persons Act 1933, where—

1. (a) a male offender under 21 but not less than 14 years of age or a female offender under 21 but not less than 15 years of age is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over; and
2. (b) the court is satisfied of the matters referred to in section 1(4) above,

the sentence that the court is to pass is a sentence of detention in a young offender institution.

(2) Subject to section 1 B(1) and (2) below, the maximum term of detention in a young offender institution that a court may impose for an offence is the same as the maximum term of imprisonment that it may impose for that offence.

(3) Subject to subsection (4) below and section 18(3) below, a court shall not pass a sentence for an offender's detention in a young offender institution whose effect would be that he would be sentenced to a total term of less than 21 days.

(4) A court may pass a sentence of detention in a young offender institution for less than 21 days for an offence under section 15(11) below.

(5) Subject to section 1 B(4) below, where—

1. (a) an offender is convicted of more than one offence for which he is liable to a sentence of detention in a young offender institution; or
2. (b) an offender who is serving a sentence of detention in a young offender institution is convicted of one or more further offences for which he is liable to such a sentence,

the court shall have the same power to pass consecutive sentences of detention in a young offender institution as if they were sentences of imprisonment.

(6) Where an offender who—

1. (a) is serving a sentence of detention in a young offender institution; and
2. (b) is aged over 21 years,

is convicted of one or more further offences for which he is liable to imprisonment, the court shall have the power to pass one or more sentences of imprisonment to run consecutively upon the sentence of detention in a young offender institution.

Special provision for offenders under 17.

1B.—(1) In the case of a male offender under 15 the maximum term of detention in a young offender institution that a court may impose is whichever is the lesser of—

1. (a) the maximum term of imprisonment the court may impose for the offence; and
2. (b) 4 months.

(2) In the case of an offender aged 15 or 16 the maximum term of detention in a young offender institution that a court may impose is whichever is the lesser of—

1. (a) the maximum term of imprisonment the court may impose for the offence; and
2. (b) 12 months.

(3) Where an offender is a female under 17 a court shall not pass a sentence for her detention in a young offender institution whose effect would be that she would be sentenced to a total term of four months or less.

(4) A court shall not pass a sentence of detention in a young offender institution on an offender whose effect would be that the offender would be sentenced to a total term which exceeds—

1. (a) if the offender is male and under 15, 4 months; and
2. (b) if the offender is aged 15 or 16, 12 months.

(5) Where the total term of detention in a young offender institution to which an offender is sentenced exceeds—

1. (a) in the case of a male offender under 15, 4 months; and
2. (b) in the case of an offender aged 15 or 16, 12 months,

so much of the term as exceeds 4 or 12 months, as the case may be, shall be treated as remitted.

(6) In this section "total term" means—

1. (a) in the case of an offender sentenced (whether or not on the same occasion) to two or more terms of detention in a young offender institution which are consecutive or wholly or partly concurrent, the aggregate of those terms;
2. (b) in the case of any other offender, the term of the sentence of detention in a young offender institution in question."

(5) The following subsection shall be substituted for section 2(4)— (4) Where—

1. (a) the Crown Court passes a sentence of detention in a young offender institution or a sentence of custody for life under section 8(2) below, or
2. (b) a magistrates' court passes a sentence of detention in a young offender institution,

it shall be its duty—

1. (i) to state in open court that it is satisfied that he qualifies for a custodial sentence under one or more of the paragraphs of section 1(3) above, the paragraph or paragraphs in question and why it is so satisfied; and
852
2. (ii) to explain to the offender in open court and in ordinary language why it is passing a custodial sentence on him.".

(6) The amendments and transitional provisions in Schedule [Custodial sentences for young offenders] to this Act shall have effect.").

The noble Earl said: It may be convenient for the Committee if we discuss with Amendment No. 217A Amendments Nos. 218ZA, 218A, 255A, 258A, 258B, 259A, 260A, 265A, 271A, 273A, 273B and 273C. It might also be convenient if we consider at this point Amendment No. 220 in the name of my noble friend Lady Faithfull, which deals with very similar matters. In the light of this debate, I hope that when we come to that point in the Marshalled List my noble friend may be willing not to move her amendment. The purpose of this group of amendments is to amalgamate the two existing custodial sentences for young offenders. I mentioned during our debate on Second Reading that we were giving active consideration to that possibility. We have since decided to adopt it. The amendments are the result.

It might help to set the scene for our debate if I started with a word about the Government's general philosophy on the use of custody for young offenders. First, we are in no doubt that custodial sentences are necessary for the most serious and persistent young offenders. I am aware that my noble friend Lady Faithfull and the exceedingly lively pressure group which she chairs, New Approaches to Juvenile Crime, have recently argued that custody for those aged under 17 should be phased out altogether.

I must say to her frankly that I cannot share that view and I do not believe that the vast majority of people do either. Too much crime is committed by those in their teens. Too much of it is too serious. The thug aged 14, 15 or 16 is not a pretty sight and should, if he has committed a sufficiently serious crime or crimes, be sent to prison if the courts think fit. But I agree with my noble friend that there is a serious question about whether the use of custody for young people should be sparing or liberal. On that the Government have no doubt where they stand. A custodial sentence is the most severe sanction available to the courts. It is particularly severe for the young. Youth is a time when family and community ties are most precious. Young people are impressionable. Perhaps most important, research findings suggest that for many young people crime is a passing phase. The courts should, and for the most part do, reflect long and hard before concluding that a custodial sentence is inevitable.

The Government have sought to encourage the sparing use of custody in a number of ways. We have tried to keep young people out of the courts altogether for as long as possible by encouraging the greater and more consistent use of the police caution. To take just one example, the number of 14 to 17 year-old boys cautioned for indictable offences as a proportion of all those cautioned or convicted increased from 35 per cent. in 1981 to 55 per cent. in 1986.

We have encouraged the development of demanding alternatives to custody. The Criminal Justice Act 1982 strengthens the powers of the courts to attach specific requirements to supervision and probation orders. Under that statutory umbrella, social services departments, the probation service and a variety of voluntary bodies have developed a range of schemes, particularly for juveniles. Our colleagues in the DHSS have helped the development of intensive intermediate treatment schemes with direct financial support.

While the overall effect of these measures may be a matter of debate, what is not in doubt in that the use of custody for juveniles, if not for young adults, has fallen quite sharply in recent years. The number of juveniles receiving immediate custodial sentences has fallen from 7,900 in 1981 to 4,500 in 1986, the lowest for 10 years. This is relevant to our proposals in ways which I shall explain in a moment.

The second limb of our policy on custody for young offenders relates to the quality of the custodial experience itself. The emphasis has been on a brisk regime for those serving the shortest terms and a greater emphasis on training and development for those serving longer terms. That is no more than sensible. It is a distinction which was made in our White Paper on young offenders as long ago as 1980. But as anyone will know who has visited detention centres and youth custody centres in recent years, as I have, it is inevitably an oversimplification. In the detention centres in particular, the experience of the tougher regime experiment in the early 1980s has been digested and built on. Features of that regime, including a disciplined and structured daily routine, can be found in the consistent regime, the introduction of which Mr Brittan as Home Secretary announced in 1984.

The White Paper which I have mentioned distinguished, as I said, between the regimes which would be necessary for those serving shorter and longer periods of custody. It concluded that the differences would be so great as to call for distinct court powers. It is that judgment which in the light of experience thus far of the Criminal Justice Act 1982 we now think should be revised. The Act achieved a considerable simplification of court powers. It abolished the intermediate sentence of Borstal training, together with youth imprisonment for young adults.

Broadly speaking, all custodial sentences are now determinate so that the court can impose the minimum sentence which it thinks adequately reflects the gravity of the offence. Again broadly speaking—because this is an area in which one has come to realise that there is bound to be an exception to anything one says—where the court decides on four months or less it must impose a detention centre order; more than four months, a youth custody sentence.

This was, as I say, a considerable rationalisation of sentencing powers. It has in itself contributed to a reduction in the use of custody, since average sentence lengths are lower than they were and the time spent on remand now counts towards sentence. But it has given rise to three problems.

The first is that the courts have not found the dual sentencing system altogether easy to operate. They are encouraged, quite rightly, to decide first what the length of the sentence should be and let the question of whether it is to be a detention centre order or a youth custody sentence flow from that. But presented with the appearance of a choice between two distinct sentences, they would be less than human if they did not occasionally try to exercise it. The Magistrates' Association has represented to us very strongly that this creates undesirable ambiguity and does not assist good sentencing practice. A variety of other organisations, including New Approaches to Juvenile Crime, also favour the move to a single sentence.

The second problem, of which I have more direct experience, is this. The retention of two sentences adds to the pressures on the prisons. There is in Section 12 of the 1982 Act a complicated set of rules about where those receiving the two types of accommodation can be accommodated. The effect of these is to create inflexibility and under-use of accommodation in some parts of the system. At a time when we face such severe problems of overcrowding in prisons it makes no sense to retain inflexibilities of that kind.

The third problem is in a way one of success. Fewer custodial sentences mean fewer custodial establishments and for the detention centres in particular catchment areas have become far too large. This creates difficulty for family visits, escorting offenders to court, supervision arrangements and so on. Family ties are always important but are especially important for young offenders.

For those reasons we have decided that the time is ripe to move to a unified custodial sentence. This is described in the amendments before the Committee as a sentence of, "detention in a young offender institution", and it would replace the two existing sentences, the detention centre order and the youth custody sentence. I emphasise that point. because we are not abolishing one of the existing sentences but replacing both of them with an entirely new sentence. What one might describe as the coverage of custody would remain the same. The maximum term would for those aged between 17 and 20 be the maximum term of imprisonment if the offence had been committed by an adult. For those aged 15 and 16 the maximum total term would be 12 months; and for 14 year-old boys it would be four months. The minimum term would broadly speaking be three weeks, as it is now.

The revised restrictions on the use of custody, now in Clause 111, are also embodied in Amendment No. 217A. The new provision therefore replaces Clause 111 and was generally applauded in our debate last Thursday.

I should perhaps also draw the Committee's attention to Amendment No. 260A. This introduces a new guarantee that all juveniles given the new sentence will be held in young offender institutions except for purely temporary purposes. The amendment also does away with those provisions in Section 12 of the 1982 Act which guaranteed a youth custody place for all young offenders sentenced to between four and 18 months' youth custody. This guaranteed training band, as it came to be known, was thought important in 1982 because at that time not everyone sentenced to youth custody could necessarily be offered the training to be provided in youth custody centres. So the argument ran that at least those most likely to benefit from training should be guaranteed a youth custody place. It was agreed that this group should comprise those sentenced to up to 18 months. Experience has shown, however, that sentence length is not necessarily a good predictor of suitability for training and that the guaranteed training band has introduced distortions into the system.

If I may give the Committee an example, a young offender may well be allocated to an available youth custody centre place because he is in the guaranteed training band, even if on conviction he has only a few weeks left to serve once time spent on remand has been taken into account. At the same time, someone with a longer sentence outside the guaranteed training band who would have been more likely to benefit from training in the youth custody centre would have to be denied a place there. The amendment will remove this kind of distortion and at the same time, as I have said, will guarantee that sentenced juveniles will not be held in adult establishments.

I should like to stress that our overall aim is to minimise the holding of young adults in prison. The introduction of the single sentence will enable us to have more young offenders in young offender establishments than is currently the case. Precisely how many will depend on the numbers to be sentenced, but I hope it will be possible to transfer anything up to 200 young offenders out of local prisons. This will have the added benefit of providing some welcome relief to the adult system. The other amendments, including the new schedule, are largely consequential and deal with such matters as transitional arrangements and the necessary amendments to other legislation.

It may assist the Committee if I outline how we see the new arrangements operating in practice. I mentioned earlier the distinction which the 1980 White Paper made between the regimes which will be feasible for those serving the longer and shorter terms respectively. That distinction seems to me as valid under a combined sentence as it was under two separate sentences.

We therefore envisage that those young offenders with relatively short periods to serve after sentence should experience the brisk, structured regime which has been developed in the detention centres. Those with longer to serve will experience a regime similar to that which is provided in the youth custody centres. Detailed plans are still to be made, but it seems likely to achieve the fullest use of the existing accommodation, as well as the reduction in catchment areas which we seek, we shall need to provide establishments different parts of which provide the different regimes. We shall also want to ensure that juveniles are accommodated, so far as possible, separately from young adults. Having visited a large number of young offender establishments I am myself persuaded that multipurpose institutions of that kind, with the various groups separated from each other, would be entirely feasible.

I have already spoken long enough. But this is an important change, and the Committee will want to give it due consideration. It is essentially a change in sentencing powers, and should complete the rationalisation of these powers which was begun in the Criminal Justice Act 1982. It should also bring great benefits, in terms of the more sensible use of custodial accommodation and some relief in prison overcrowding. On that basis, I commend these amendments to the Committee. I beg to move.

Baroness Faithfull

I rise to congratulate Her Majesty's Government and my noble friend the Minister on this amendment. It is one which those of us who work with juvenile delinquents have sought for many years. For about seven years we have been asking for the detention centres to be replaced, so that this comes as something which we very much welcome.

May I ask my noble friend the Minister three questions? First, is he not infringing the Sex Discrimination Act with the introduction of this unified custodial sentence? It is difficult to see any justification for maintaining sexual discrimination in the sentencing of 14 year-olds, whereby boys of this age can be sentenced to custody but 14 year-old girls cannot. It may have been possible to justify this when there were separate detention centres for males only, but can it be justified now that the single custodial sentence is likely to apply to both sexes?

Secondly, perhaps I may ask my noble friend whether it would not have been possible to exclude 14 year-old boys and girls from the penal system. It seems to me that 14 is very much an age which ought to be cared for, perhaps in local authority children's homes under supervision orders, or alternatively in voluntary homes.

Thirdly, my noble friend the Minister has explained the question of the regime. Even for a short time, would it not be better to embark on a rehabilitative programme rather than, still, the short, sharp, shock programme? By the statistics and by experience, the short, sharp shock has never worked. Therefore why do we continue with it even for a short time? I say again that we welcome this amendment, which is a great step forward in the the treatment of juvenile delinquency.

8.45 p.m.

Lord Hunt

From these Benches I very much welcome the decision by the Government to remove the distinction between two types of custodial order for young people. The need to remove that distinction is a very real and long-standing one. In particular—and here I support the noble Baroness—it is important to modify the treatment that is meted out to young people in detention centres under the so-called short, sharp shock. The consequence of that kind of treatment, in general, is not to make young people into reformed young citizens; it is to make them into budding young criminals; and it just does not work. The failure rate from detention centres has been for some time past of the order of 80 per cent.

Therefore when the noble Earl spoke of different regimes—and I quite appreciate that the regimes have to be different in that they are shorter for some and longer for others—I hope he did not have in mind a different kind of treatment in that sense. It is quite essential that the treatment of young people should be persuasive, constructive and purposeful.

Finally, as a professional soldier for nearly 30 years—admittedly, some time in the past—I think I can say with some authority that the system of sending young soldiers into what was called the glasshouse in my time simply did not work. It did not have any reforming effect, except in a strictly physical sense. It did not make good soldiers into bad ones.

In conclusion, I heartily agree with the noble Earl that it is the job of the courts to determine—I hope I am right in this—the length of the sentence, and it is wrong to ask the courts to determine the kind of treatment that offenders will receive when they are sent into custody. So I welcome very much what the noble Earl has told us.

Lord Elwyn-Jones

I similarly. It is a great pleasure to welcome what the noble Earl says from time to time. Let it not be thought that we are other than delighted when he says something of which we approve. Seriously, we approve and value this decision.

The Earl of Caithness

I am grateful for the welcome given to this amendment by my noble friend Lady Faithfull, the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Hunt, who speaks with great experience on these matters.

We gave considerable thought to this amendment and, as I have said, we saw it as an evolutionary process from the 1982 Act. My noble friend asked me three questions. If I may deal with the third one first, I think that one can defend the brisker regime because it provides much which is both positive and constructive. Much good work is already being done in detention centres, where staff have acquired considerable expertise in designing, for example, education modules and links with the community which are of considerable value to those with shorter sentences.

My noble friend mentioned the short, sharp shock. I was particularly interested when I first went to a junior detention centre to see what that meant. I was very pleasantly surprised because it was not the regime that I had been led to believe was the one that operated. 1 could sum it up by saying that I do not think that one can necessarily rehabilitate anyone in a prison establishment but one can give the opportunity for that person to rehabilitate himself and give the options which perhaps he or she has not had before on a firm basis.

My children are perhaps younger than those of other Committee Members. They are 10 and six years-old. I know how much they welcome the firmness as well as the caring side. Undoubtedly that is true of the slightly older generation that we are talking about who seem to respond to it. Certainly some of the young boys to whom I have talked have been very grateful for having a metaphorical solid wall off which to bounce. They are grateful to have someone there who is firm but caring. One can combine that with the brisk regime.

Lord Bonham-Carter

Is the noble Earl saying that a brisk regime is a euphemism for short, sharp shock? If he is saying that in terms of his experience with his children of six and 10, it is an experience that most people would not share. The experience of the short, sharp shock is almost universally disastrous so we were hoping that the brisker regime would not be a euphemism for that but would mean a genuine change of course. Am I right in supposing that or not?

The Earl of Caithness

I thought I had explained that clearly. I apologise to the noble Lord if I did not make myself clear. I was saying that the brisk regime incorporates a lot of constructive work with a firmness attached thereto, which undoubtedly the 14, 15 and 16 year-olds need. 1 went on to talk about some of the expertise that had been acquired by staff in designing education models. That is far from the image which some people like to conjure up of what the short, sharp shock was.

Turning to 15 and 16 year-old girls, I repeat that our general approach has been to leave the coverage of custody unaltered. At present a 15 or 16 year-old girl can receive a youth custody sentence of between four and 12 months. The numbers are very small—they were only 61 in 1986—and it has never been possible to make satisfactory arrangements for girls serving short periods of custody. On the whole we thought that it was better to leave matters as they are but I should be glad to look at the point again in the light of what my noble friend has said.

Turning now to 14 year-old boys, it is true that these proposals deal differently with boys as compared with girls, although I do not believe that they offend against the Sex Discrimination Act. Our general approach in devising the new sentence has been as I have described, that the coverage of custody should remain the same. Since at present 14 year-old boys can receive a detention centre order of up to four months we propose that they should be able to be sentenced to up to four months' detention in a young offender institution. We are merely carrying over the existing arrangements but not I believe unthinkingly, because 14 year-old boys can occasionally commit offences which are serious enough to justify custody but not sufficiently serious to be caught by the provisions of Section 53 of the Children and Young Persons Act 1933. I repeat that I am grateful for the welcome that has been given to the amendments. I commend them to the Committee.

Lord Hylton

Speaking as a complete layman in these matters it seems to me that this very welcome new clause proposes to legislate by reference to two previous statutes. The numbering is extremely complex. It goes back and forth and it is very difficult to follow for a person who is not legally trained. All that suggests to me that it is a prime candidate for consolidation. Will the Minister ensure that he gets the highest possible priority for that?

The Earl of Caithness

As a layman I sympathise with the noble Lord. I shall draw his remarks to the appropriate attention.

On Question, amendment agreed to.

Baroness Faithfull moved Amendment No. 218: After Clause 111, insert the following new clause:

("Placing in care of local authority.

Where a court remands or commits for trial or sentence a young person charged with or convicted of one or more offences other than homicide, rape, arson, inflicted greivous bodily harm or wounding with intent to cause grievous bodily harm, and he is not released on bail, then the court shall commit him to the care of the local authority in whose area it appears to the court that he resides or that the offence or one of the offences was committed.").

The noble Baroness said: The effect of this amendment would restrict the remanding of juvenile delinquents to prison and remand centres to await trial or sentence. The Government may perhaps be willing to accept this amendment and if so I ask the Minister what would be the date of implementation. I beg to move.

Lord Renton

I can see great virtue in this amendment and I have only one doubt about it. I can imagine that a young person (that is, someone under the age of 16) could be charged with an offence other than those mentioned, which are the most serious offences, but nevertheless one requiring a degree of security of custody. Unfortunately even young people of 14 and 15 get caught up in drug pushing sometimes these days.

If that were so it would be essential that, if the local authority is to have the care of them pending trial, in a very small number of cases it should be able to provide security of custodial arrangements. I do not know whether a local authority in these circumstances would have such arrangements hut I think that that factor must be borne in mind when considering what has been proposed by my noble friend.

Baroness Faithfull

I wish to say to my noble friend Lord Renton that local authorities have secure accommodation. During the time that I was working as a social worker, a children's officer and a director of social services we had run by the local authority a remand home with secure accommodation and we had some very serious cases. I can remember two cases of murder. But never did we send the offenders into a penal institution.

Lord Renton

Assuming that that applies to all local authorities it is a complete answer to my question.

Lord Donaldson of Kingsbridge

Surely the position is that if that does not apply this amendment if passed will enforce it, and so it should.

The Earl of Caithness

I hope that 1 shall not throw a spanner into the plans of my noble friend but my thoughts at the moment are to resist Amendment No. 218. But the amendment which is also being spoken to, which I gather is Amendment No. 221, I accept in principle in part. Therefore my noble friend might wish to expand her argument a little more.

Baroness Faithfull

I can only expand on this from experience. Once a child has entered a penal institution, even on remand, he is on the first rung of the ladder that leads to prison. The effect on children who are remanded in prison and then found not guilty is quite disastrous. It is disastrous for the parents and for the child. Even if the child is found guilty it would still have been better for him to have been placed in a local authority secure unit rather than in a penal institution.

9 p.m.

The Earl of Caithness

I am grateful to my noble friend. I think it has been worth while for the Committee to hear her further thoughts on the amendments, in the light of her great experience. We share my noble friend's concern that juveniles should be remanded to a prison department establishment only in strictly limited circumstances. Under the present arrangements, only 15 and 16 year-old boys may be so remanded. The criteria for such remands are already strict but we are committed to narrowing them further.

My right honourable friend Mr. Brittan, when he was Home Secretary undertook to confine custodial remands to cases where the boy was charged with murder, attempted murder, rape or certain other very serious offences. I regret to say that this undertaking has not yet been implemented. The reason is that one result of the proposed change will be that some additional young people will be committed to the care of local authorities. We have had to ensure that local authorities are ready to take on this extra responsibility. We are in discussion with the local authority associations and I hope that it will not be too long before we are able to issue a consultation paper setting out our detailed proposals. Our objective is to lay the necessary order by next Easter.

My noble friend Lord Renton said he would have to be satisfied that such accommodation was available. I have to say to my noble friend lady Faithfull that it is not yet so. We hope that by next year we shall be sending out the consultation paper, and we shall be in a much better position as regards this matter. As I have said, I regret that this has taken so long. But these are important changes, affecting circumstances in which there could be risk to the public as well as to the young people themselves. It is very imporant that we should get them right.

Turning now to Amendment 221, it follows from what I have said that we do not believe it is right or would be generally acceptable to the public to proceed immediately to the ending of all custodial remands. That would would be the effect of the amendment. Some 15 and 16 year-old boys have committed very serious offences. Physically they can be fully mature, and their behaviour can be as dangerous as that of any adult. The public rightly expects to be adequately protected from the dangers that such youngsters pose. In my view, subsection (2) of the new clause in Amendment 221 goes much too far in making such remands unavailable for any person under the age of 17, no matter how serious his offence or how dangerous his behaviour.

Amendment No. 218 would allow remands in prison department custody but confine them to juveniles whose offence was one of violence or who had otherwise committed serious acts of violence. The Government have more sympathy with this approach but believe that it also goes too far. It would rule out the possibility of a custodial remand for certain very serious offences for which it should be available. For example, should it not be possible to commit to prison department custody the young arsonist who persistently absconds from his local authority community home and commits further offences each time? The Government's own proposals, which, as I have said, we hope to bring forward shortly, will go a long way towards what Amendment No. 218 would achieve, but they will retain the possibility of a custodial remand for such very serious offenders.

There is, however, one respect in which I can, I think, meet my noble friend's amendments. Subsection (1) of Amendment No. 221 would repeal Section 22(5) of the Children and Young Persons Act 1969. This allows courts to commit to a remand centre juveniles for whom they have made or are considering making an interim care order and whom they regard as too unruly to be safely committed to local authority care. These juveniles will not be offenders. The Government share the concern that has been expressed about such juveniles being committed to prison department custody. As far as it is possible to tell, this provision has been used very infrequently if at all. We have sought the views of the local authority associations, who agree that this provision is unnecessary. In the light of this it is the Government's view that Section 22(5) of the 1969 Act can be repealed, and we will be ready to bring forward an amendment for this purpose at a later stage.

I realise that that is a good deal less than half the loaf my noble friend was seeking; but I hope she will agree that there is not a great deal between us in substance and that the changes we propose to make in the rules should go a long way towards meeting her underlying concern.

Baroness Seear

The Minister has said that the Government have sympathy with the proposals for local authority care and accommodation for young offenders and that in the days of Mr. Brittan the Home Office was considering such matters. I do not have the dates of the various moves of Mr. Brittan clear in my mind. However, it must be many months since he was in the Home Office. Can the Minister say how many youngsters we are referring to? I cannot believe that if the Government had really wanted that to be done, the accommodation could not have been found. If it was a matter of high priority in the Government's programme, that would have been done.

Baroness Macleod of Borve

I apologise to the Committee for being late. I should like to add a word about secure accommodation. It is obviously impossible for every borough in London, for instance, to have its own secure accommodation. However, in my time at Tottenham, I believe we had four secure hostels in the whole of London for remand youngsters, who would have stayed in the hostels for no more than three weeks. We are talking about a remand in custody for three weeks.

At the end of that time we had to make up our minds what to do with them. That meant that not every youngster could be near to home. But that was not, in our view, absolutely necessary. Such youngsters could always be visited. With 48 boroughs in the whole of London and four secure remand homes, the system worked very well because the youngsters were only away from home for three weeks, which sometimes did them a great deal of good.

Lord Donaldson of Kingsbridge

I should like to support the noble Baroness, Lady Macleod. What worries me is not the necessity to make sure that young villains of 14 to 17 years of age are prevented from being a danger to the public. We are all agreed on that matter. If there is no other way of preventing their being a danger, they must go to prison.

However, what we have heard from the noble Baroness, Lady Faithfull, whom I can hardly refrain from calling my friend, is that most local authorities have a certain amount of secure accommodation. I think that the numbers to be accommodated are few. If there is no other way of ensuring public safety, then it must be done, as I did myself in Northern Ireland. However, it is not the right solution and in this country it should be easy, by applying pressure to one or two local authorities, to make sure that a small number of violent young men or women could be kept in secure accommodation.

I believe that the Minister should not reject the idea but should take it away and look at it. If he comes back and tells us that it is entirely impossible, I shall accept that. The one thing I am not prepared to accept is having these dangerous young men out in public; but I do not believe it is the only way and I think the Minister should look at this further.

The Earl of Caithness

I am very grateful for the additional contributions which have been made at this Committee stage. Of course I will look at the matter; it is a very important area. I say to the noble Baroness, Lady Seear, that we are disappointed not to have been able to move as speedily as was hoped—I said there were reasons for it—with the consultations with local authorities. We hope to come forward next Easter with our consultation process. The noble Lord, Lord Donaldson of Kingsbridge, was right to highlight the importance of getting it right, together with the point about the safety of the public. I hope I have said enough to convince my noble friend that this is a matter we treat seriously.

With regard to the figures for which the noble Baroness asked, I do not have recent figures with me but from memory I think it is about 1,500 certificates for boys aged 15 and 16. These are certificates of unruliness and in 1980 I know there were 2,748 issued. That number has dropped pretty steadily every year since then.

Baroness Faithfull

I should like to thank my noble friend for his reply. Perhaps I could just say that I have been retired for 14 years and before that I worked for 18 years. Never in all my time did we remand a child to prison or to a penal institution. Let me take up the point made by the noble Lord, Lord Donaldson, that if local authorities do not have to do something they will not do it; if they have to do it then they will do it. However, I am bound to say that there is the question of resources. I hope at the moment that the local authorities will not make the excuse of lack of resources, or at least if they do I hope that some consideration will be given to this point.

I cannot speak too strongly on the effect on children, particularly if they are not found guilty, of being remanded to a prison institution. However, we listened to the sympathetic speech made by my noble friend. We will consider the situation and if necessary bring the matter back at Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 112 and 113 agreed to.

The Earl of Caithness moved Amendment No. 218ZA: Before Schedule 7, insert the following new schedule—