§ Mr. Deputy Speaker (Mr. Sydney Irving)
It would be for the convenience of the House if we were also to discuss Amendments Nos. 23, 25 and 26.
§ Mr. Deedes
I hope that the House will not think it perverse to return to a matter upon which there was such a long argument in Committee. During our proceedings 150 pages out of 1,100 were occupied upon this. It is a matter which still arouses strong, tenaciously held differences, and these have not diminished. If anything, they have tended to increase since the argument began last August when the announcement of the change was first made.
Unlike the majority of right hon., hon. and learned and hon. Members I have never addressed a jury. I have never been on a jury and I have never been tried by one, and I leave the judicial arguments 1737 to then. The single point with which I am concerned is that the Home Secretary appears to have taken this serious decision with undue haste on insufficient grounds or alternatively, if he has evidence, he has failed to convey that evidence adequately to the House and the country. I have gone fairly thoroughly into the history of this, and I have no intention of wearying the House with it now, but it deserves an outline. Publicly, at any rate, the history of this appears to have been confined largely to last year. It was first reported in March, 1966, that Scotland Yard was investigating attempts to bribe jurors. Then in May it was widely reported that the "nobbling" of juries had become a serious matter although no detail was offered to substantiate this. The source of this appears quite clearly now to have been the policy. I am not saying that they were without total justification, but none the less they were the source of what was being said.
In June a case at the Old Bailey attracted considerable attention and on 8th August the right hon. Gentleman announced his decision in the debate we had about crime. At that time the Home Secretary spoke about a proportion of "big fish" who were getting off. How was this, he asked. It was largely because of the power to intimidate and corrupt witnesses and juries. At that time the Home Secretary spoke of mounting and formidable evidence, especially in London, that a serious situation had arisen. We heard very little more until it came to December when it came to the Second reading and the Home Secretary said then:I am convinced, however, that all we have seen so far is the tip of a very nasty iceberg." —[OFFICIAL REPORT, 12th December, 1966; Vol. 737, c. 61.]So far as these remarks may be taken at their face value they seem to imply a situation calling for much more severe remedies, and action of a different kind from simply resorting to a majority verdict. In February, the Home Secretary added to the background knowledge by stating that six cases had been known to the Metropolitan Police in the succeeding three years, and the Commissioner of Police thought that he knew of more.
This was principally in London, and four other places outside of London were named. The Home Secretary also said 1738 that he had received a letter in 1966, conveying the views of the Lord Chief Justice on the opinion of the judges. That opinion, as given to the Committee by the Home Secretary, was that as regards majority verdicts, the judges were unanimously in favour of 11 to 1, probably unanimously in favour of 10 to 2, but, beyond that, the Lord Chief Justice was not sure. With respect to both the eminent gentlemen who supplied that evidence, I am bound to say that on my information they were incorrectly informed, or opinions have changed since.
But my explanation at present is that the majority of judges at the Old Bailey, of all places, did not favour this change. Other hon. and learned Members will, no doubt, be able to offer their own evidence. It is fair to add that, no doubt, some views have changed since this matter was first announced by the Home Secretary. I think that this offers some evidence to the thought that we are acting on insufficient evidence and consideration. A large number of, not only hon. Members, but others have changed their minds on reflection after considering the matter for three or four months.
I certainly do not belittle the evidence which the Home Secretary has tendered to hon. Members on three separate occasions. It is strong. But surely the question we have to ask is: is it strong enough to justify a change which certainly hon. and learned Members regard as a change in what has been for a long time one of the hinges of justice? This is something which goes back in. history about 600 years. That does not mean that it should not be changed. The question is: should it be changed in the light of one year's rough experience?
Nobody seems to deny that, other things being equal, the unanimous verdict is best. It is certainly best for the man who must otherwise tell his friends, "I was acquitted by 10 to 2". I would say—and I speak not as a learned Member—that we could carry the perverse juror with us on the unanimous verdict. He is no new problem. He has, I notice, been called in, to some extent, to add weight to the argument put forward in favour of majority verdicts. But I think that it is generally admitted that it is the corrupt and intimidated juror who constitutes the new and disquieting factor.
1739 It seems to me that at least this can be said. Against comparable changes which have been made in our law in recent years and the thought given to them, this has undoubtedly been the least considered and the most hastily reached. That, I believe, is beyond argument. I hasten to add that that does not mean necessarily that it is ill-judged, but it certainly exposes itself to the charge—and indeed the charge has been made—that it is ill-judged. That is what troubles many of those who disagree with this proposal and who therefore describe it, perhaps unfairly, as a panic measure by the Home Secretary.
I am in agreement with something which my right hon. and learned Friend the Member for Warwick and Learning-ton (Sir J. Hobson) said in earlier proceedings. When we speak about the war against crime, this particular proposal should not be called in aid. I do not think that the Home Secretary strengthens his case when he twits some of us for calling for a hotting-up of the war against crime and says that we are denying him a valuable instrument for so doing. We could effectively hot up the war against crime by rewriting the Judges' Rules as the police would like to see them rewritten, but that is not what we are proposing to do. That I would put on a par with this sort of proposal.
When the Home Secretary first spoke on this matter in August, I followed him in the debate. I said that I thought that here and elsewhere many would applaud his observations on juries, but I asked that there should be a considered presentation of his case, possibly in a White Paper. This was not done, no doubt for excellent reasons. As a result, we have reached this point with no considered document—for obvious reasons known to hon. Members we must exclude the Morris Committee—on this subject; indeed, no evidence at all outside the three speeches which have been delivered by the Home Secretary. Therefore, it is perhaps not surprising that those who, in the light of a great deal of evidence, have had reservations about this matter from the start are still unhappy.
I know that the Home Secretary— I sympathise with him—wants, as it were, to catch the tide with the Bill and not to miss the opportunity of making this 1740 change which the Bill offers. He feels that there is urgency notwithstanding that the Bill will offer certain other safeguards against the abuses which trouble us. I am most anxious, particularly as a lay Member, not to advance an immoderate argument. I do not say that the case presented so far by the Home Secretary carries no weight. It has carried some weight, but, in my view and, I think, the view of other hon. Members, the case which the Home Secretary has so far presented has not carried such weight as to justify a change of this gravity. It is on those grounds that we seek to remove this proposal from the Bill.
§ Mr. Speaker
I wish the House to help me. I understand that we are taking also Amendments Nos. 23, 24, 25 and 26 in the name of the hon. Member for Oldham, West (Mr. Hale).
§ Mr. Speaker
I am obliged to the hon. Member. I am left with Amendment No. 79, to leave out subsection (2). It is a question whether we take it with the present Amendment without a subsequent separate vote or whether the hon. Member for Runcorn (Mr. Carlisle) wishes to reserve the right to seek a Division on it.
§ Mr. Carlisle
I wish to reserve my position on Amendment No. 79, Mr. Speaker. It raises a different point which will arise if the Clause remains in the Bill.
§ Mr. Speaker
The House will understand that I am not seeking to dissuade any right hon. or hon. Member. It is a question of the form in which I put the Question.
The Question which I have to put to the House is, That the words proposed to be left out, to the end of line 21, stand part of the Bill.
§ Mr. Hale
I put down Amendments to the Clause particularly because, with great deference and respect to the very able discussion in Committee, it seemed to me that in all the very able speeches that were made, a question in relation to 1741 the onus of proof had not been fully put. I refer to relation of the jury to the onus of proof. I take the Clause seriously. While I shall, I hope, not use unnecessarily the time of the House, I have not the slightest intention of curtailing some of the things which I have been wanting for a considerable time to say about this proposal.
We are told that the jury came over with the Conqueror, that it is part of the Salic law, that it passed to Normandy and that William the Bastard brought it over. As far as I know, however, it bore no relation of any kind to a jury of today until about the fourteenth century. From that time, for several centuries, the jury was regarded with peculiar horror by Her Majesty's judges, who devised every means of persecuting a jury, because a fury was regarded as a rather democratic institution intruding themselves into an eminently legal and specialised organisation.
We are told, not with any certitude, that the original practice if a jury disagreed was to appoint additional jurymen and to carry on with the trial again, going all through the evidence.
This has been open to some discussion, but whatever it is, and whatever has been the position, for centuries juries were sent out without light or food or heat or comfort, and as Lord Denning said in a recent speech, without a chamber pot, and asked to come to a decision when constrained to do so by the pressure on the stomach or on the bowels. And right up to the eighteenth century in Ireland, certainly within my historical recollection, a jury could be carted to the boundaries of the county, and if they had not agreed by the time they got to the county boundary, they were dumped out and left to walk home.
It was not a popular institution in certain elevated quarters, and the fact that juries have stood for liberty all this time, and over all these centuries, is something that this House of all places in the world should never forget. We should never forget the battle against the old libel laws until we got Fox's libel Acts and the case of the Addington repression was a battle between the jury and the judiciary.
Through the courtesy of Lord Denning and the publishers I have received a copy 1742 of the very able and brilliant speeches he made on many subjects. I am not sure that I am entitled to quote them, but I am entitled to quote what has appeared in The Times. He referred to the Northamptonshire case of 1370 when one juryman said, "I would rather die than record a verdict against my conscience". This was England, and this was the tradition of England. This was one of the glories of England, and it was one of the admirations of England among all the countries of the world. When has a dictatorship had a jury? How quickly after a dictatorship is established do they abolish the jury system?
I do not think that anyone will contravene what I say on the mode of proof. A jury is not 12 men on the top of a Clapham bus. A jury, if I may use a homely and almost vulgar metaphor from horticulture, is a collection of 12 odds and sods, some squares, some triangles, some little bits here, and some there as one re-lays the lawn. Politically speaking, there are four Socialists perhaps, three Conservatives, one Liberal, and three don't knows. But this is it. This is the raison d'être, however it may sound. This is it. We collect 12 average men, good and true, good men we hope, true men we hope, but they are not supposed to be very bright. They are not supposed to be lawyers. In fact they are not allowed to be. They are not allowed to be experts. They are just a dozen decent chaps drawn together to try to do justice as they see it.
What are they called on to do? The first proposition was put forward in the fourteenth century by our old friend William of Occam, Occam's Razor, entia (or essentia) non Stint multiplicanda praetor necessitatem.
Juries are expected to accept the legitimate reasonable explanation. William was talking about nominalism as a philosophical conception, but it has become embodied into all our law of proof that if there is a simple, effective, convincing explanation, we do not go out of the ambit of that simple explanation to chase possibilities or remote chances of finding something else. We accept it because the safety is in the 12, and this is the point about the 12. Every judge now rules in almost identical terms, "You must not be afflicted by vague doubts. You must not 1743 worry about hesitations. We know that we cannot convince you beyond any possibility of remote doubt that this crime was committed by the accused. The most that we can do is to present to you, as 12 men, an overwhelming apparent probability from the evidence. Do not be worried," says the judge, "Take as a test the sort of standard of conviction which would apply to you in any ordinary important affair of your life".
A couple of years ago, as an ordinary important event in my life, I read in a Sunday newspaper an article to the effect that shares in the electronics industry would rise dramatically now that Frank Cousins was handling them, with the Prime Minister's passion for technology.
§ It being half-past Nine o'clock, the debate stood adjourned.
§ Question again proposed, That the words proposed to be left out, to the end of line 21, stand part of the Bill.
§ Mr. Hale
For the moment I was all of a dither, Mr. Speaker. I hasten to say that I am quoting a genuine example concerning the standard of proof. I read the article and I invested in Pye shares. This was one of the decisions that a person takes in his life. It could have had a serious impact on my future. I think that at the time the shares stood at £1, but they went down to about 5s. 6d. in 12 months.
I am serious about this, even if I have quoted an example which has not inspired the sympathetic interest that I hoped it would from all parts of the House. It is a question of the standards that we employ in coming to an important decision in our lives. That is the standard of proof that a jury applies. The protection is that there has to be unanimity among the 12. If there is a doubt, the person concerned must not be deprived of his reputation, his security, his liberty and his family.
1744 The Clause legitimates the doubt, and exalts it. I do not want to say a discourteous word to my right hon. Friend because he has always been very courteous. He has produced these provisions with great ability. He has produced some very impressive ones. But 1 must point out that never before in the history of Parliament has there been a provision undermining the constitution of the nation, the liberties of the people and a system of justice that, with all its faults, is the envy of the world, on less evidence, with less consideration, and with a more complete absence of reasoning in its support.
I am sorry that my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) is not here. I have never thought it necessary to say that one might refer on Report to what another hon. Member said in Committee, but in Committee there was a tendency for more than one hon. Member to assume ex ipso facto that a minority of one was an obstinate idiosyncratic, odd individual who was standing against the current of modern thought. All history shows that that is not true. We do not know what happens in the jury room, and I do not suppose that it would be a good thing if we did. [Interruption.] I always listen to the right hon. and learned Member for St. Marylebone (Mr. Hogg) with a great deal of respect and regard, but we should not start to examine one of the bulwarks of our unwritten constitution through a microscope.
I was asked by a Frenchman some time ago to tell me about the Royal Princes. I said, "If you take a synthesis of His Royal Highness the Duke of Edinburgh, the noble Lord, Lord Snowdon and Angus Ogilvie and amalgamate their qualities, you may be able to visualise precisely what you have in mind." He said something about liquorice allsorts. There is an infinite variety.
So it is with a jury. Out of the 12 there may be two members of the Church of England, two Catholics, three Protestants, three Agnostics, one Seventh Day Adventist, one Spiritualist and so on—I have forgotten how many that adds up to. They must all agree. It may well be that one dominates over the others. But from all the history and from what we know about juries we can conclude that one able, sincere man who says, "I am 1745 not convinced, and I shall not shift. I will not send a man to prison for a long term unless I am convinced", is much more likely to influence half a dozen to change their view than the other way round.
Of course it is true as well—and all our history shows this—that if the jury are 11 to one in favour of acquittal, they become unanimous. It is not often that anyone stands up on an issue of principle if the overwhelming majority is in favour of acquittal. It is when a man says, "I will not take part in a miscarriage of justice".
I am rather surprised that some of the classic cases have not been recalled. I recall the Peasenhall case, a rather strange case, when there was very strong evidence against the accused. There was a remote possibility of accident, which is now much more seriously accepted by modern experts than it was by the experts of that day. We know the figures in that case—we do not normally know, because in England they are not announced, although they often are in American States where series of ballots are taken. But in that case we know the figures, which in the first trial were 11 for conviction and one for acquittal.
The second trial was within four months when the same counsel was defending and the same counsel prosecuting. There was probably the same sort of jury, so far as we know, but there was a different judge. The first trial was by Mr. Justice Grantham and the second was by Mr. Justice Lawrance. Grantham had many virtues, but not eminently judicial virtues. No one can be quite certain, but it is said that at that second trial there were 11 for an acquittal and one for a conviction. So it was nolle prosequi and Mr. Gardner disappeared from human knowledge, perhaps into the wilds of London, one does not know.
Under the new Amendment he would have been hanged. Although there was very strong suspicion against him—and I would not underestimate the strength of the case against him—every skilled writer on the subject has said that there was just not enough evidence. There was just enough doubt to say that there must not be a conviction.
It has been said that if the system has worked in Scotland for a hundred years, 1746 it is all right. Not having a very extensive reference library at home, last night I turned up the case of Madeleine Smith. This case, of course, is relevant to another point. In his letter to The Times my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) said something about how we must examine our institutions from time to time. Of course we must and we have been constantly doing so. In my time we have abolished the grand jury and the special jury and during the war we introduced a smaller number of jurors and we have also substantially abolished the use of juries in civil cases and so on. This has been a subject under constant review. It is well worth remembering that this human institution of 12 people is also capable of developing with the times. It does not have the old prejudices. It does not have to listen to judges with some of the old prejudices, and it does not have to take too much notice of them if it does.
Frankly, I think that the evidence against Madeleine Smith was overwhelming, but the jury's decision was two guilty and 13 not proven. Though the judges were very fair in excluding, on what I regard as unsubstantial grounds, the evidence which was strongest against her, she was of course, exposed to the contumely of the judges and to constant criticism on the ground that she had surrendered herself, as the term was, to her lover, not in the sanctity of the bond of marriage, not in the discreetly curtained double bed, not even on the hurly-burly of the chaise-longue, but under the open sky in the sight of Heaven and, what is worse, she had written to say that she liked it.
What could happen to her later when she left the court with two of the jury having said that she was guilty and 13 having said that it was not proven, damned as a prostitute by the virtuous people of Edinburgh, by purple-faced judges suppurating from a strangulated hernia of the vocal organs in their indignation, while the people of Glasgow were queuing up to the junior clerk of assize and paying a quid a time to be allowed to read through the salacious letters? I am at least happy to see that the hon. Member for Wimbledon (Sir C. Black) is not here, or I should get into trouble about this.
1747 These are the cases. There is a plaque at the Old Bailey commemorating the jury which stood up for William Penn, which said, "You can imprison us, you can fine us, we will appeal—but you will not change our minds." Even the Old Bailey commemorates that with a plaque in memory of the great hero of Bushell's case. At the end of the 17th century, the juries fought the battles of religious freedom and refused to convict William Penn in three succesive trials at which the Lord Chief Justice himself came along to secure a conviction—
§ Mr. Daniel Awdry (Chippenham)
The hon. Member is giving us a great history lesson going back over the years. Will he address himself to the modern problem of jurors who are bullied and threatened?
§ Mr. Hale
The right hon. Gentleman has come from time to time and said that jurors are being bribed. Of course they always were. They used to be bribed by the Government of the day. The most attractive of the Irish Chief Justices was notoriously known every where as "Peter the Packer", and if Peter the Packer could not put in the box a jury which would convict, nobody could.
But what evidence is there? When all is said and done, I say to my right hon. Friend with great respect and regard, that the job of law enforcement is to detect that offence and punish it. It is not to alter our liberties and constitution on the evidence of a couple of vague cases, one of which I believe has already passed into the miasma.
The hon. Gentleman said that I have given a lesson in history. I would not have presumed for a moment to do so: I have come here to learn. If he wants us to talk about the modern problem, I refer to The Times newspaper, which is now under new management and bright and effective ownership, which has rebuked my right hon. Friend very strongly for the precipitancy with which this Clause was introduced, about the lack of evidence. It said—it calls for comment —that, in the course of one of his very able speeches, there came a point at which, somehow, he became less forceful and less convincing. There came a point at which the argument could not be made.
1748 The Times published some figures from America. I am not a Dr. Gallup fan and I am not greatly impressed by figures or comparisons. The sort of figures which one gets from different American States never impress me—about capital punishment or anything else. But one point which was made, because it had been made in argument, was that they said that in Oregon, I think, where there is a 10–2 verdict, the moment that verdict is reached, proceedings close down and the 10–2 verdict is recorded and they send a chap out with the public intimation that two people thought he was guilty, even if 10 thought that he was innocent.
What do you do if you are a solicitor, or clergyman, or doctor, or, we will say, a public officer, or employed at the town hall? If you are sent back to the town hall with 10 people saying, "We are not convinced that this man buggered a lad of 14, but two thought that he did and were prepared to send him up for 10 years for it," where is his future? Where is our tradition of justice? Once that has been done, we have clearly destroyed the foundation.
No one has ever answered that proposition. The Times article, which Mr. Blom-Cooper wrote from the Temple, said that the great protection in America was the system of challenge. I found this the most extraordinary argument. I have read for a long time—and I have read some strange letters in The Times recently. One knows, of course, that the great, expensive advocates of America flex their biceps in prolonged challenges to the jury asking whether they are "Pink" or Red or pre-Shinwell resignation or post-Shinwell resignation or what their views are on this or that.
There is a different state of affairs which they have over there. If one is a highly paid advocate who is defending the nephew of a Mafiosi who has taken the oath of Omerta and who is paying 100,000 dollars a year to the public attorney or to the Governor of the State and who is living with a lady who was in one of "Lucky Luciano's" whorehouses —as they call them over there—there is a clear necessity for getting a jury composed of ladies of Italian birth who are married to corrupt police constables. 1749 One knows what one wants. I am glad that that condition does not obtain here.
I do not want to detain the House, but I want to put the case. There was a famous case in which the jury tried to deal with the situation. The facts, so far as I know, are not known. This was the case of a lady who was defended by Sir Edward Clarke on a charge of having poisoned her husband with chloroform and the medical evidence was that one could not administer that dose of chloroform, because he would have vomited it up. What was her name? Clarke was cheered at the theatre on his brilliant success.
Ultimately, on a special verdict—technically an improper verdict—the jury found that there was grave suspicion against the lady, but said that they had come to the conclusion that there was not sufficient evidence to justify a finding of guilt.
As it happens, only one competent research writer has ever placed the facts on record. I am quoting from a book by the hon. Member for Oldham, West. The members of the jury were most indignant at the criticisms of their verdict. It was said that their verdict was an example of an ignorant jury casting a slur on the lady. The foreman of the jury wrote a letter to The Times saying, in effect, "When we retired we were 11 to one in favour of an acquittal. One man refused to budge. Having seen this lady suffering under the burden of a trial for murder day after day, the question we had to consider was whether we would do her less harm by recording a verdict of acquittal, with some slur on her character—which the one man who refused to budge would agree to because he would not agree to a verdict of not guilty—or whether we should put her to the shame and public anxiety of a second trial."
Who would like to say, in that dilemma, what should be done? It was certainly, if not a legal, a sensible, human and kindly thing to say, "The lady should go free and be relieved from this burden and worry." So the jury recorded a verdict of acquittal, and a unanimous verdict at that. [Interruption.] What could the jury do? What could a jury do now? It would still have to record a verdict of acquittal, but 1750 just the same slur would remain. Even so—
§ Mr. Hale
I am obliged for your protection, Mr. Speaker. The position I have outlined is the one we face today. Here alone—at any rate, almost alone in the world; I cannot speak for some of the Scandinavian countries with complete accuracy—we maintain this institution which everyone else envies and which every established dictatorship abolishes the moment democracy begins to cease to function. In this we are almost alone, a tribute to the integrity of the English people.
I forget the exact figures, but I understand my right hon. to have said that in bribery only two out of 100 cases—I understand these to be selected figures from the Central Criminal Court; but I am quoting from memory—is there disagreement, so that in about 45 per cent. of cases there are acquittals, in about 45 per cent. of cases there are convictions and in about 10 per cent. of cases there are disagreements, the jury being unable to reach a decision.
It is a curious English habit that our verdicts are normally recorded very quickly. I wish to quote from the case to which Lord Denning referred in his lecture and to which I referred in my book. It is interesting, although it relates to 1670. It is just as true today. How many of us who have lived in the courts have felt able to say to our clients when the jury has retired what we think the verdict will be? How many of us have dared ever say, "You are virtually certain to be acquitted"? How many of the attractive novelists who write the life stories of some of our great advocates have commented, "They always wait to see whether the jury look into the eyes of the defendant; and if they do, there will be a verdict of not guilty". How many of us have said to our clients, "On the evidence presented to us, we think that you should be acquitted, but we can make no promises"?
If we find ourselves in doubt, why should not the jury be in doubt? I make this point even though, in a sense, it argues somewhat against my argument. I suggest that juries do not disagree often enough. The facts are so often in doubt 1751 that they are bound to disagree on occasion, and this is a small price to pay for the preservation of justice. Juries should make sure that they are absolutely satisfied before they send a fellow to damnation, to imprisonment, to loss of character, reputation, home and freedom.
When Edward Bushell, the juryman to whom I referred in the case of Penn and Mead, expressed his view, Chief Justice Vaughan said:I would know whether anything be more common than for two men students, barristers or judges, to deduce contrary and opposite conclusions out of the same case in law? And is there any difference that two men should infer distinct conclusions from the same testimony?…How then comes it to pass that two persons may not apprehend with reason and honesty, what a witness, or many, say, to prove in the understanding of one plainly one thing but in the apprehension of the other, clearly the contrary thing?Is not that our experience in this House? Was not that our experience in Committee—a majority verdict of two with half the Committee abstaining? This the conflict of view and the conflict that comes out of an honest expression of opinion.
I beg my right hon. Friend to reconsider his policy in relation to Clause 10 and to say, "One should not introduce so enormous a change in the face of such strong opposition". He should say that even if, by issuing the Whip on this side, he can take into the Lobby more hon. Members than will go into the other Lobby because, I understand, no Whip has been issued on the benches opposite he will take time to reconsider a vital decision.
§ Mr. Crowder
Tonight, we are discussing a matter which has stood the test of time and the test of centuries, and no one could have put the case more eloquently, if I may say so, than the hon. Member for Oldham, West (Mr. Hale). One always listens to anything he has to say in regard to the law and history with the greatest possible attention. But I hope this evening that although we are discussing something that affects the liberty of the subject we will do it on a strictly non-political basis. There should be a free vote, on both sides.
I have noted with interest and admiration the pains which the Home Secretary has taken to go into this matter. I think that I am right in saying that he does 1752 not have the advantage, or it may be the disadvantage, of ever having been a solicitor, of ever having been a judge, or of ever having been at the Bar. He has probably never been in a court at all as a defendant, or anything like that, though he may have gone to listen. What the right hon. Gentleman has to listen to are words of advice.
During the Committee stage the Home Secretary did something which has not only caused great interest but has literally swayed public opinion through the whole country. He quoted a letter from possibly one of his chief advisers in the matter—no less a person than the Lord Chief Justice of England, in which the Lord Chief Justice said:As regards majority verdicts, I can safely say that all judges would be in favour of them.The Home Secretary was quoting, quite properly, the words of the Lord Chief Justice of England. Naturally, any layman reading that sort of thing in the Press would be tremendously moved by it, because the Lord Chief Justice is supposed to know what is going on.
Naturally, I immediately made inquiries. I went straight away to see a judge at the Old Bailey, and asked him: "Is there any truth in this?". He said, "None whatever. If you want to know, I was astounded by that statement which seems to have pushed the Home Secretary into this move, and I had my clerk look up the last year's figures. Out of 117 cases in my court at the Old Bailey there were four disagreements, every one of which in my view was fully justified as the cases were extremely difficult. On subsequent retrial, two of the defendants concerned were acquitted."
The following day, off I go to assizes. The two High Court judges were kind enough to invite me to luncheon, and asked me: "What is this nonsense which the Home Secretary is putting before the country through the words of the Lord Chief Justice? We are both "and they were High Court judges: "dead against this."
I have been at the Old Bailey today, People come to one from every corner and ask, "How can the Home Secretary be influenced by this sort of thing? How can the Lord Chief Justice come out with remarks like that? Is the Lord Chief Justice consulting the judges?" 1753 Is it the situation that every one knows that the Lord Chief Justice is in favour of this Clause, and it so happens that those judges who know it and are in agreement with it have written to him and said so and the Lord Chief Justice has, quite honestly and with the utmost integrity, formed the view which was quoted by the Home Secretary, which, of course, is absolutely untrue:As regards majority verdicts, I can safely say that all judges would be in favour of them.Those words were in the letter which the Home Secretary quoted in the Standing Committee—he will correct me if I am wrong.
After all, the right hon. Gentleman is in the position of having to rely on advice. He has never practised at the Bar and does not know the inner workings of the courts. It is quite incredible that some one in a responsible position like the Lord Chief Justice should write a letter of that sort unless "all the judges" means those judges who have been consulted in the matter, and have happened to move the Home Secretary in this way. In this matter, one would expect the Home Secretary to move like this if some one like the Lord Chief Justice writes to him in those terms. It may well be that before the matter came to be discussed many more judges were in favour of it than there are today. My view is that at the Bar quite a lot of people were in favour of the Home Secretary's idea, but every day literally one finds opinion changing. There was not a dissentient voice among those I met at the Central Criminal Court today when they asked me, "What are you going to do about it? How on earth can this be stopped?"
I listened with the greatest attention to the hon. Member for Oldham, West giving historical allusions. I am concerned with the reality of the situation. I do not know whether the House is aware that at the moment judges are encouraging juries to behave almost as a committee and as a composite body. If a jury has been out for some time and comes back and says that it finds difficulty in agreeing, there is now a leading case which is usually read out by most judges to the jury. What is said is this: 1754You are a body of 12 men. Each of you has taken an oath to return a true verdict according to the evidence, but of course you have a duty not only as individuals but collectively. No one must be false to their oath, but in order to return a collective verdict, the verdict of you all, there must necessarily be argument and a certain amount of give and take and an adjustment of views within the scope of the oath you have taken. It makes for great public inconvenience and expense if jurors cannot agree owing to the unwillingness of one of their number to listen to the arguments of the rest. Having said that, I cannot say more. If you disagree in your verdict you must say so.That judgment was upheld in the Court of Criminal Appeal.
Juries feel that in a sense they are a composite body, a committee, a family. They owe a duty to one another, but under this new scheme four jurymen may say, "We want to find this man not guilty". The foreman of the jury will then say, "On this 10 to two nonsense two of you have to give way." Suppose the Home Secretary and I are two of the number. We might say, "In accordance with Clause 10 not only have we a right, we have a duty to disagree which is given to us. The effect of being a member of this composite body, this team or committee has gone. Why should we be the two to give way? Why should not those other two give way?" The result would be that we would get disagreement after disagreement.
This thing has been running extremely well for centuries. I know that majority verdicts are not allowed. There was an occasion at Hertfordshire Quarter Sessions a short time ago—I am happy to say that I did not try the case—when the jury came back and was asked, "How do you find?" They found not guilty and when asked, "Is that the verdict of you all?" a juryman said, "No, it certainly is not" and it turned out to be seven to five. I cannot tell the House of the consternation that resulted. The whole matter had to be tried again.
While we have this committee situation it works in the same way as the House of Commons and another place work. It may be quite illogical, but it works. This Bill is putting it on the same basis as introducing P.R. when it is not necessary at all. The analogy is almost on the same basis. All that will happen will be disagreement after disagreement. The Home Secretary, through no fault of his own, after making a very close study of the 1755 matter, naturally accepted the advice of the Lord Chief Justice. He is doing his best to improve something as one would seek to improve a Rolls Royce engine when it is working properly. Why not leave it alone when it is working?
Is there any evidence to show that juries are nobbled or got at in the provinces? There may be cases—only one or two—in which juries have been nobbled or got at in the Central Criminal Court. If a gang gets hold of one man and obtains a disagreement, the case is tried again. One hopes that it is not a long case. It may be a two-day case. It may be a three-day case. The eventual result is nearly always a conviction. I cannot see any reason for upsetting a system which has withstood the test of centuries.
I must not in any way speak sub judice, but may I put this to the House. Hon. Members will have read the papers. Let us suppose that a police officer were to be tried at the Central Criminal Court on a charge of bribery. Let us suppose that the jury were to disagree. Let us suppose that the verdict was an acquittal on the basis of 10 to 2. What would be the situation of that police officer? What would be the situation of a public man from the City? It would be utterly impossible. I do not know of any other situation, particularly in this country, which believes in democracy, where a person's honour and integrity can be tried by a majority verdict.
§ Mr. Sydney Silverman
I want to begin by asking my right hon. Friend the Home Secretary whether he himself has asked Her Majesty's Judges of the High Court if they are in favour of this proposed change or not. I am not asking him what hearsay evidence he has received from the Lord Chief Justice or from anybody else. I am asking him whether he himself, as he would clearly have a right to do, has asked the Judges of the High Court: "Yes or No, do you want this change?" I would like the Home Secretary to tell us this, because I think that we would all be influenced by the answer, more particularly if it turned out that the letter from the Lord Chief Justice upon which the Home Secretary relied earlier was mistaken.
My next comment follows directly upon something said by the hon. and 1756 learned Member for Ruislip-Northwood (Mr. Crowder). Some judges are acting as though this change in the law had already been made. I cite two cases. An appeal was heard only a week ago in the Criminal Appeal Division of the Court of Appeal in which a convicted man complained that the summing up was defective in that the judge had misdirected the jury, because he had failed to tell them that their verdict ought to be unanimous.
I should have thought, in my innocence, that this was a perfectly sound complaint to make. The Lord Chief Justice, presiding over that court, giving the judgment of the court—I do not say that he was speaking only for himself; but it happened that he was the vehicle through which the judgment was given—dismissed the appeal on the ground that it was no longer necessary to tell a jury that its verdict ought to be unanimous.
I think that we are reaching a stage now when the Lord Chancellor might direct the attention of all Her Majesty's Judges to the fact that, although they are just as free as anybody else is to advocate changes in the law, they are not entitled to administer the law as though the change of which they are in favour has already been made.
I want to cite another case. At the moment, until Parliament agrees to a change, unless a verdict is in fact unanimous it is no verdict. There was a recent case in the Court of Criminal Appeal—I think that it was the Court of Criminal Appeal and not the Criminal Appeal Division of the Court of Apeal—in which a convicted defendant sought to have the conviction quashed on the ground that the verdict was not in fact unanimous. He had to prove that, of course. Otherwise, there was no basis for his complaint. In order to prove it, he produced a member of the jury, who swore an affidavit. He asked the Court of Criminal Appeal to let her give evidence and be cross-examined and make up their own mind whether she was telling the truth.
In her evidence, this lady said, "I never agreed to this conviction. When the foreman said 'Guilty', and he was asked, 'And that is the verdict of you all?', to which he replied, 'Yes', he was wrong. It was not the verdict of us all. I disagreed. I was afraid to say anything in court. I did not know how to say anything at that stage. I did not know what 1757 to do or where to go. After the sentence was passed, I went out of court and went straight to the man's wife to apologise to her for not interfering".
The Court of Criminal Appeal decided that that evidence was not worth listening to. It did not care whether the verdict was unanimous or not; so long as the foreman had said that it was unanimous, the court was satisfied, not thinking that it was any of its business to find out whether the truth was being told or not.
§ Mr. Carlisle
I agree with the general view which the hon. Gentleman is expressing, but is he not being unfair in that case? The difficulty was that the woman admitted that she had agreed with the rest but later regretted that she had been persuaded to do so. She had allowed herself to go along with the unanimous verdict. That is why the Court of Criminal Appeal said that it would not interfere.
§ Mr. Silverman
I think that there is something in what the hon. Gentleman says, though I do not think that it was quite put in the way he put it. She said that she agreed, but she said that she was intimidated and bullied into agreeing. That is why she regretted it, and then swore an affidavit, wanting to withdraw. It was not that she had ever genuinely agreed.
During the speech of my hon. Friend the Member for Oldham, West (Mr. Hale), one hon. Gentleman opposite talked about the people being intimidated. They are not always intimidated in favour of acquittal. They are sometimes intimidated in favour of conviction. No one who has practised in the criminal courts for any length of time is unaware that there are cases of that kind from time to time. It is not always the friend of the criminal who intimidates the jury. Sometimes it is the prosecution.
There are ways of preventing this kind of thing. As my hon. Friend said, there was a time when the jury was locked up, not allowed to go home or to do anything until they reached a decision, a unanimous decision. If there is any real ground for fearing that people who are allowed to move about may be intimidated, corrupted or bribed, the answer is not to change the law but to ensure that no one has the opportunity to interfere, to bully, to intimidate or to bribe a juror. 1758 It is easy to arrange. We succeeded in arranging it throughout centuries. What are we afraid of now?
It seems to me that the virtue which the verdict of a jury has rests upon its unanimity. This is what gives it validity, not the fact that the jurors all say the same thing for different reasons, or something of that kind. What is important is that, after the argument, when everything has been said by both sides that each wishes to say, when the judge has given directions on the law and has summed up the evidence, when the jurors have retired to consider their verdict and have had their own discussions and arguments, at the end of the day they are all content to say, "Yes" or "No". That is what gives validity to the verdict of a jury, not the accident or agreement among 12 individuals who may he picked out on the street corner at any moment.
My right hon. Friend said earlier this afternoon that this was not a take-it-or-leave-it Bill. The House was free, exercising its own conscientious judgment, to reject any point with which it was not satisfied. I appeal to him to apply that criterion to himself. Is he really satisfied, at the end of the argument, that the case for making this fundamental change in the criminal law has really been made out? Does he really think that no further inquiry and discussion are necessary, that we can throw aside the practice of the last 600 years on the basis of the kind of argument that has been offered here, unexamined, uncriticised, unco-ordinated, unrelated and virtually undiscussed, and that we can go on making these changes because the decision in two cases in a hundred may have resulted from somebody's illegitimate interference?
If there were no other way of dealing with illegitimate interference, a case might be made out for the proposal, but even then it would be necessary to show that the mischief one was trying to cure was substantial and not an occasional thing that happened now and again. God knows where and how. The case for the proposal has not been made out and I beg my right hon. Friend not to spoil the magnificent record he is building up as the most progressive Home Secretary we have had for many years by this foolish thing at the dictation of a 1759 Lord Chief Justice who seems to me to know nothing about the criminal law.
§ Dr. Winstanley
I shall try to be as brief as I can, for I had a go in Committee and many hon. Members want to have a go tonight. What is the Clause intended to do? We gather from repeated statements by the Home Secretary that it is to do away with intimidation and corruption of jurors as far as possible, and that we can do that only by reducing the number of disagreements or the number of acquittals by second disagreements.
How often do those things happen? I am informed that the present number of disagreements is about 3.7 per cent. On subsequent retrial, the breakdown of those disagreements comes in the ratio of four-two-one, as between conviction, acquittal and second disagreement. Working out the calculation from those figures shows that the proportion of acquittals secured by second disagreements is one in 175.
How many of those disagreements fall within the figures the Home Secretary has in mind? How many fall within the ten-two or eleven-one disagreement? Is it not likely that the vast majority are in fact nearer nine-three, eight-four or seven-five? If one takes that point into consideration, the figure will not be one in 175 but one in a much larger figure, perhaps one in 400, 500 or even more.
If it is one in 400 or 500, how many have been secured by corruption, bribery or intimidation? People do disagree from time to time. The Home Secretary has done something very desirable in a later Clause, which will make it illegal for a person who has previously served a prison sentence to serve on a jury. Removing those people will not only remove those most likely to be subjected to corruption and intimidation but also those with an innate tendency to disagree, and it will therefore meet part of the problem.
Returning to the figures, the percentage of cases which this Measure will affect must be infinitesimal. This is a terribly marginal matter, to do something which, from the discussions that we have had, would quite clearly cause great distress and worry, whatever be its practical effects. People will be worried. There is no doubt in my mind that if we em- 1760 bark on this procedure it will weaken public confidence in the jury system. This point has been referred to by a number of hon. Members, in particular by the hon. Member for Oldham, West (Mr. Hale).
There is the question of the burden of proof. As I have always understood it, we have endeavoured to prove guilt beyond reasonable doubt. What we are now saying is that there is only two-twelfths of a doubt, and therefore it is all right for the person to be guilty. In other words, we are defining a reasonable doubt as two-twelfths. I am sure that this will weaken public confidence in the system. Next it will clearly breach the secrecy of the jury room.
Once it is announced, as it will be announced, that a person has been found guilty or acquitted by ten to two, the two will hasten to say why they disagreed with the others. They will go to some length to say that they were right, that the man was guilty and that the others were wrong. Before we know it, the issues involved will be bandied about.
§ Sir D. Renton
There seems to be nothing in the law which would prevent juries from being interviewed by newspapers after they had disagreed.
§ Dr. Winstanley
I am obliged to the hon. and learned Gentleman. I see no limitation at all. I want to make the brief point that once one has a majority verdict, these people in the minority will be anxious to explain and justify themselves, and by doing so they will cast further doubt on the validity of the verdict which, if it had been a unanimous verdict, the public would have been willing to accept.
Another point is that the one juror who stands out, may very well be right. It may not always be the case but he will now stand out. The immediate effect will be for the majority to sit it out until the necessary time has gone. The procedure which goes on at present when there is an argument within the jury will cease once one has arrived at a ten to two position. Why should the two struggle? The jury will have arrived at a decision which will be regarded as satisfactory. For these, and a whole variety of reasons, I believe that this will be an unsatisfactory measure.
1761 I believe also that the Home Secretary has not yet, even at this eleventh hour, demonstrated a real need for a change. If the need has not been demonstrated, there can be no point in doing this. Secondly I believe that all manner of disadvantages have been demonstrated, as a result of adopting this procedure. Therefore, I very much hope that the Home Secretary will think again, and 1762 perhaps think of another method, a different route by which he can attack the question of corruption.
Surely he can, in those special cases, and he has told us that he recognises which are the kinds of cases likely to be affected, simply lock those particular juries up and have a different process, rather than alter the whole basis of the law in this way.
§ Mr. A. J. Irvine
The House has heard persuasive speeches against this Clause. I was much impressed, as I know all hon. Members were, by the speech of the hon. Member for Oldham, West (Mr. Hale) which was a moving and able speech. The arguments are strong, and to my mind this is a very narrowly balanced issue. My hon. Friend may be right but I am not entirely convinced. Very briefly, I want to put my reasons for saying that before the House. The concept of unanimity of the 12 jurors is of immense value and importance in our system of justice. It gives an edge and weight to a verdict. The unanimous verdict possesses an imponderable and unmistakably quality. I acknowledge that. It is very valuable. I agree with my hon. Friend the Member for Oldham, West that the fact that it has stood and prospered for so long is a circumstance in its favour. That makes it the more desirable that we should be very careful before we propose any change.
But that is not the whole of the picture with which the House has to deal. We have a phenomenon which belongs to our own time—a special set of circumstances. We are going through—it can be exaggerated, but it can also be underestimated—a period of large-scale crime. Threats to society, large-scale crime and protection rackets are I should have thought, on an objective view, a distinctive and exceptional feature of our period.
§ Sir Douglas Glover (Ormskirk)
Is the hon. and learned Gentleman really saying that, because our society cannot control the evildoer, people should be found guilty who otherwise would have been found not guilty?
§ Mr. Irvine
That is not the point which I am seeking to develop. In balancing one thing with another, and in taking into account the force and admitted strength of the argument of my hon. Friend the Member for Oldham, West and of those who share his point of view, we are entitled to have regard to contemporary circumstances—the threats to society which are peculiar in our time. As I was saying, it is easy enough to exaggerate them, but it is also easy enough to underestimate their importance.
§ Mr. Irvine
I do not think I should give way. Perhaps my hon. Friend will forgive me. I do not wish to take up too much time.
We must have regard to the social phenomena of which I speak. The House is in a congenial and well disposed frame of mind, as is often the case when it considers matters of historical importance. But it must realise that one of the realities of our time is large-scale crime and the rich master-mind organisers of crime. If my hon. Friend the Home Secretary is satisfied—and, after all, he is in a very advantageous position to discover the facts and to weigh the importance of these matters—that there is a contemporary situation which calls for a change to take account of this phase in our social history, my view is that the House should be extremely careful before it disregards his advice. As I said, it is a narrowly balanced issue. I only want to let the House know where I stand.
When we were considering this matter in Committee, once one acknowledged that it was desirable, because of the contemporary situation, that there should be some modification of a well respected and well established tradition, one wanted to reduce the effect of the change—to take account of the reality as one saw it but to make the change as slight and as restricted as possible. It was with that aim in view that I favoured introducing the element of judicial discretion, to be exercised only in the event of a ten to two majority for a conviction, when the judge would be able to say that he would not accept the majority verdict. In exercising that discretion, the judge would have in mind the character of the charge, the character of the trial and the extent to which, if at all, the class of case with which he was concerned was one which was susceptible to the contemporary real danger of nobbling and corruption.
I got no response from the Government to that argument. I expressed the point of view and I still think I was right. That being so, I now have to have regard to the Bill as it comes to the House on Report. My hon. Friend the Member for Oldham, West may well be right. This is a narrowly balanced affair. On the other hand, we should not be dog-in-the-manger even on matters of principle, because against the value and worth of the 1765 tradition of unanimity in jury trials we have to balance this inescapable feature of our period of history in which the danger of the nobbled jury and the danger of corruption from sources which are extremely powerful and rich should not, and cannot reasonably by this House, be under-estimated.
My disposition, therefore, is, not without doubt and not without anxiety, to support this Clause when the matter comes to be determined.
§ Sir D. Glover
On a point of order. Could the House be informed, Mr. Deputy Speaker, whether any hon. Member who did not serve on the Standing Committee on the Bill is likely to be called in this debate? So far, no hon. Member has been called who was not a member of the Committee.
§ Mr. Deputy Speaker (Mr. Sydney Irving)
In any event, selection is a matter for the Chair and is not a point of order.
§ Mr. Grieve
On this vital issue of conscience and principle, I do not know what arrangements pertain on the Government benches tonight, but I am happy to say that on this matter, on which opinion is deeply and not surprisingly divided, we on these benches have a free vote and we shall each vote in accordance with our respective consciences.
I am in disagreement with a number of my right hon. and hon. Friends. I have already, on Second Reading and in Committee, made my views about the matter plain, and I would not detain the House for one moment when many other hon. Members wish to speak were it not for the fact that, in accordance with my conscience, if there should be a vote on this issue, I intend to go into the Lobby to vote for Clause 10 and against the Amendment.
1766 I appreciate fully, and feel deeply with those who believe, that an institution which has stood the test of centuries is not likely to be tampered with and is not likely to be changed. All institutions, however, must be examined in the light of contemporary circumstances, and the jury as much as any other institution. I believe that when the jury is examined in the light of contemporary circumstances and not, although I listened with enormous interest to the cases outlined by the hon. Member for Oldham, West (Mr. Hale), in the light of nineteenth century cases, there is a strong case for the change which is set out in the Clause. We live in a time when crime is highly organised and criminal ventures are carried out by men who are applying and perverting their intelligence, highly trained very often, to that purpose.
I agree with those hon. Members who, during the Second Reading debate, this evening, and in Committee, have said that the evidence which has been adduced by the Home Secretary is really very slight. He has adduced some evidence of subornation, interference, corruption and intimidation in London, but where else has there been interference, and is this sufficient to justify interference with the jury principle? I believe that the very nature of the problem is such as to give us only the tip of the iceberg in a matter of this kind. Naturally if there has been successful intimidation, successful subornation, and corruption, there will be no evidence of it because it will be kept underground by those who have perpetrated it, and those who have been the victims, or those who have benefited by it, because they have something to hide.
The fact that there has been what I believe is an alarming number of such cases brought to light indicates that the time has come for very serious consideration whether we should protect society against such malpractices, and the only way we can protect society is by providing for a form of majority verdict.
I believe that a good deal of the opposition to this lies partly in reverence for an established institution which is a bulwark of our way of life, and partly in a confusion between two principles with which we associate the jury. 1767 The first principle is that they should be unanimous. That, I agree, is now to go by the board. If the Clause is accepted, we shall have a verdict by a majority of not less than ten to two, but the other principle which is confused with it—and I have detected such confusion in some of the speeches tonight—is that of the fact that the burden of proof lies on the prosecution and must be made good beyond all reasonable doubt. It will still have to be made good beyond reasonable doubt. At least ten members of the jury will still have to be sure in their consciences of the guilt or innocence of the accused before they can return a verdict accordingly.
During the war—and I said this on Second Reading and I apologise for repeating it—we had verdicts by juries of seven, and we were content. I do not believe that the principle that the juryman has to be satisfied beyond reasonable doubt will be cut down by the fact that he will be able to return a verdict by a majority if he is agreed with nine of his fellows.
This change will to a large extent protect the public and society against intimidation and corruption, because while one person may be interfered with, or even two, it is most unlikely that a crook will be able to lay his hands on more than two members of the jury. Secondly, it will provide against the type of disagreement which results from there being a crank on the jury. A crank very often stands out for a conviction when the majority are in favour of an acquittal.
We must from time to time examine our institutions in the light of circumstances prevailing at the time. I believe that when the jury is examined in the light of the circumstances prevailing today, without our minds being clouded by an overdue reverence for great institutions, we will come to the conclusion that this change is justified.
§ Mr. Alexander W. Lyon
There are two strands in the argument in opposition to the Clause, both of which have been aired again tonight, as they were in Committee. The first is one which was put in a typically moving and powerful speech by my hon. Friend the Member for Oldham, West (Mr. Hale), that this is an attack on one of the basic foundations of 1768 the liberties of the subject in this country, and that it is not something that we ought to do lightly.
The other strand of the argument was given by the hon. Member for Cheadle (Dr. Winstanley) when he said that what we are doing is totally unnecessary since it will affect only a very limited number of cases. Sometimes speakers in opposition to the Clause have confused both arguments, which in my view are quite irreconcilable. Either we are discussing something that is of comparatively little importance because it affects only a few cases, or we are discussing something which affects the great bulwark of our liberty.
In Committee I took the view that the real attitude to take to this reform was that it was a useful little one. [HON. MEMBERS: "Oh"] There was the same kind of reaction in Committee. The only thing that seemed to unite every speaker in Committee—whatever view individuals took—was that it was wrong to regard it as a useful little reform; it was something major, however it was viewed.
But right at the end of the debate the hon. Member for North Fylde (Mr. Clegg) introduced figures which had been produced in the analysis by two American academics in Chicago of a study of the American jury system as it operated in five States. The hon. Member is to be praised for introducing into our discussion at that stage a subject which, The Times said, had never previously been put before the Home Secretary. It published an article about three or four weeks afterwards, and that article has now been given wide publicity.
What the Chicago study showed was what I suggested would be the result of the Clause—simply that, generally speaking, there was a decrease of about 40 per cent. in the number of cases where a verdict could not be recorded by reason of disagreement, and a slight increase, in most of the States, in the number of disagreements initially.
The only exception was the State of Oregon, which has been mentioned by my hon. Friend the Member for Oldham, West. In four States out of the five the evidence indicates that I was right in my assessment of the effect of the Clause. We are not discussing the 96 per cent. of cases in which, at the 1769 moment, there is a unanimous verdict. The verdict in those 96 per cent. of cases will be unanimous even after the Clause is passed. The only difference will be in the limited number of cases where there is a disagreement at the moment.
§ Mr. Sydney Silverman
My hon. Friend is not entitled to say that. The percentage of cases in which a unanimous verdict is ultimately reached must depend to some extent on the jury's being warned that their verdict must be unanimous. When we make this alteration the jury will no longer be so warned; therefore the proportions will change.
§ Mr. Lyon
If my hon. Friend will wait I will deal with his argument when I come to the Oregon situation, where the evidence tended to confirm my hon. Friend's view that there would be an increase in the number of decisions which are not unanimous.
I was saying that the likely result is that we shall have just about the same number of disagreements, and that of that number a verdict will be recorded in some cases as a result of a majority. That will limit the number of disagreements which require retrials.
Hon. Members have asked what is to happen to the police officer, the civil servant, or the lawyer at whose trial a majority verdict is recorded. What happens to him now when there is a disagreement? What happens to his reputation among his friends when it is said among them that the jury could not agree? It is true that he gets a retrial, but in about 20 per cent. of cases which go to retrial there is still disagreement, so what does he get then? He gets a verdict of acquittal on the direction of the judge after two disagreements, because the prosecution does not think it right to go on with a third trial. What is then his reputation in society? How does he face his partners at work then? Surely the same difficulty is now met which would be met in a situation in which there was a verdict as a result of a majority finding.
It is true that to some extent there may be a reaction, but this is surely a matter of public attitudes. There is no similar reaction in other States where there are majority verdicts and where they have been used for many years. There is no 1770 similar attitude if a police officer on a charge of larceny elects to go for summary trial by the magistrates and he is found not guilty by a verdict of two to one. In those circumstances he is the subject of a verdict where there has been disagreement but there is no reflection upon him among the general public, because the general public accepts that magistrates can reach a majority verdict.
After the passage of time, when the public has become used to majority verdicts, it will simply accept that such a decision in favour of, or against, the accused was on balance the right decision. In every other sphere of our lives we are content to accept majority verdicts. We did so on the issue of whether a man should be hanged. In the House we say that it is only a matter of deciding the way in which the majority wants to go and the country then accepts that view for the time being—although, of course, there is a substantial minority. None the less, the decision having been made, the country accepts that for the time being that is the decision. If this is the kind of way in which we order our lives, why should it be any different in a case before a criminal court?
Experience throughout the world suggests that our attachment to the unanimity rule is not an absolute and indispensable guarantee of our liberty. I therefore return to my point that this is a useful little improvement. I have not changed my view for many years and for me this is not a recent departure brought about by the Home Secretary's view of a number of cases at the Old Bailey. I said in Committee that I was not impressed by the evidence about bribed jurors at the Old Bailey and that it was many years ago when I first took the view that it was rather silly in this sole part of our lives on this sole class of decision that we allowed the veto of one man to take precedence over the decision of 11 others, and that often in the face of the evidence and often on the most flimsy of grounds.
What worries me as much as the possibility of disagreement is that of a compromise decision which satisfies no one. I mentioned in Committee a case, in which I was involved, of the conviction of a man on a lesser charge simply because the jury could not agree on the more serious one—a decision which was not justified on the evidence but because 1771 of which the man is now in prison. A majority verdict would have been much more satisfactory in that case. I accept that it might have been five to seven, and that there might still have been a disagreement, but the appearance of the jury—we all have intuitive knowledge of these matters—made it plain that the decision had been an eleven to one compromise.
The final argument of the opponents of the Clause was put by my hon. Friend the Member for Nelson and Colne (Mr. Sydney Silverman), that it is likely that, without an insistence on unanimous verdicts there will be a sharp rise in disagreements. That is not likely. There have been five experiments in America, in four of which the pattern emerged which I have described. Only in one was there a rise—of 25 per cent.—in the number of decisions as the result of disagreements.
I tried to find the detailed evidence from Oregon. Curiously, in their large book of results, the authors of the study did not once rely on the results from Oregon, apparently not thinking it of sufficient importance. It is brought into their article in The Times only as a sidewind. In the area of Oregon which supplied the results, there had been only 500 trials, and it is conceivable that such a small number could have produced a freak statistic of a 25 per cent. rise in disagreements.
The pattern shown in the other four States is what will happen here, provided that there are sufficient checks on the new power—and they are contained in the Clause. The court will not accept a majority verdict unless the jury have deliberated for two hours, and the judge will even then be able to send the jury out to reconsider if he thinks that they have not had long enough to debate a long and complicated case. There will inevitably be pressure on them to reach a unanimous verdict, although in the end they could settle for something else.
Judging by the reaction of ordinary Englishmen on these benches, the reaction of an ordinary juryman in any case would be to strive for a unanimous verdict if possible. The Clause will simply allow ten men who are satisfied beyond reasonable doubt on the evidence to overrule the objections of the other 1772 two if they do not consider them to be well-founded.
§ Mr. Hogg
I rise for three short purposes, two of which I can discharge briefly. The first is to invite the Home Secretary to tell us for how long he proposes to continue tonight. I believe that too many hon. Members want to take part in our proceedings for us rationally to arrive at a conclusion tonight. In any case, I invite the right hon. Gentleman to enter the debate at this stage to indicate, for the convenience of the House, what he intends to do.
The second is to confirm what has been said by my hon. Friends about there being no question of the Whips being on on this side of the House. Every one of my hon. Friends must feel himself absolutely free to arrive at a decision on a matter which, from our point of view, contains no party content and about which only individual opinion must prevail, based partly on experience and partly on conviction. In saying that, I make no suggestions to the party opposite. I realise that the Government are responsible for law and order and that they must come to their own decision on this matter. However, we have arrived at the decision that the vote should be a free one, and I for one shall be expressing views which are not the same as those of all of my hon. Friends.
The third is to give expression to my views shortly, for I am conscious of the fact that I have had two opportunities in the House, and one in Committee, to say exactly what I think on this subject. I do not know whether consistency is a virtue in this matter, but at least I can claim it, whether it be a virtue or the opposite.
When we spoke about this subject in August a number of my hon. Friends, some of them extremely distinguished members of my party, including my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) and the former Solicitor-General, were on the same side as the Lord Chief Justice. I recall that at that time my hon. Friend the Member for Runcorn (Mr. Carlisle) formed part of that company. I understand that since then they have changed their minds. There is nothing wrong with that and I do not reproach my hon. Friends for doing so; although I should remind those of my 1773 hon. Friends who reproached me in Committee upstairs for forming an unholy alliance with the Home Secretary in this matter that they, too, have a number of unusual allies. At least mine is a highly respectable one.
Having expressed my views before, I will merely summarise them. To begin with, if I thought that the proposal of the Home Secretary would alter the burden of proof in a criminal trial—as has been suggested by the hon. Member for Oldham, West (Mr. Hale) and at least one of my hon. Friends—I would vote against it. I support it only because I am confident that that is neither intended nor what will be achieved.
When the hon. Member for Oldham, West referred to having purchased Pye shares, he was misdirecting himself about the burden of proof in criminal trials. He was, I suspect, buying Pye shares on the balance of probability. I doubt whether he was so satisfied as to be absolutely sure that they would go up. It is true that 12 jurymen must decide unanimously, but they must—each applying to himself the common sense to which the hon. Member for Oldham, West referred—be directed to apply severally the criterion of proof beyond reasonable doubt. If I thought that it would go forth from this House that, if majority verdicts were to be accepted, jurors were to apply each to himself a totally new and alien burden of proof, I would take a very different view from that which I am taking now.
§ 11.0 p.m.
§ Mr. Sydney Silverman
Does the right hon. and learned Gentleman think that it makes a difference to the burden of proof whether one undertakes the onus of convincing every member of the jury or whether one accepts the onus of proving guilt to a majority only?
§ Mr. Hogg
The hon. Gentleman, with the greatest respect to him, is using the words "burden of proof" in two different and equivocal senses. In the sense in which the words are generally understood, whether the tribunal be a single judge or 12 or 24 men, with regard to the standard of certainty which is required of the tribunal, in that sense it makes not a ha'p'orth of difference whether there is unanimity or not. Each man must apply the correct burden to his own conscience. 1774 If I thought that was to be altered, I would not support this proposal.
Secondly, I do not want to criticise the most venerable of our national institutions after the Crown and the Church. I share the enthusiasm of the hon. Member for Oldham, West for the Penn jury who stood out against the Crown. The perverse verdict, as I said in Committee, is one of the palladia of our liberty. But it is not the verdict which is being discussed here. The juries who have acquitted in the face of the executive have not been in disagreement. They have been juries which have united because the judge has overstepped the mark, because the law has been unjust, because prosecuting counsel has been overzealous, because for some reason or other they think an injustice has been done.
If I thought that the right and privilege of a jury to acquit—their absolute prerogative to bring in a verdict of not guilty—would be affected, I would think that it was an unholy alliance which had brought me into agreement with the right hon. Gentleman the Home Secretary.
§ Mr. Hogg
I was not intending to say this, but I will say it since the hon. Gentleman has put it to me. I share—and I do not want anything that I say to indicate that I do not share—the hon. Gentleman's enthusiasm for juries, but I cannot accept the view which he developed at great length that countries like Switzerland, Scandinavia and even Scotland are lesser breeds without the law simply because they do not take his view about unanimous verdicts. It is true that many European countries have succumbed to tyranny, but there have been more substantial defences than simply the unanimous verdict of a jury in those countries which have resisted it.
With respect to my fellow countrymen and to my hon. Friends who sometimes disagree with me on this matter, I never cease to be astonished by the extraordinary conservatism, sentimentality and 1775 superstition of the English people. Why are there 12 jurors? Because there are 12 tribes of Israel, 12 months in the year, 12 inches in the foot and 12 apostles. What is the magic in that number? No one could say that if there had been 11 they would not have agreed, or that if there had been 15 they would have agreed.
§ Mr. Hogg
And 12 Liberals. This is the reductio ad absurdum.
My right hon. Friend the Member for Ashford (Mr. Deedes) said that this was one of the hinges of justice. With great respect it is not. I do not ask the House to accept what I am trying to say as necessarily infallible, but I ask it to consider the view of Lord Devlin, a great expert on legal history and one who happens to believe in the unanimity rule in criminal cases. Whatever else is true about it, this is not one of our great constitutional rational decisions.
I venture to ask the House a question which I asked before and which has not even been raised by the opponents of this Clause. Why is it rational in this particular instance—I do not say fundamental, but even rational—to allow one vote to veto 11 or two votes to veto 10? The answer is that there is nothing rational about it. This is what Lord Devlin says in his book "Trial by Jury", which has just come out in a new edition:The rule makes a startling exception to the ordinary processes of English administrative life where decisions, even the most momentous, are almost invariably produced from a majority vote. Why is the verdict of a jury thought to require a degree of assent which for most purposes would be rejected as impracticable? The answer is that no-one ever planned that it should be that way; the rule is simply an antique. Twelve witnesses were required to support the winning party and naturally for that purpose, their testimony had to be unanimous; when the twelve witnesses were translated into judges, the unanimity rule, notwithstanding that its original significance had then departed, remained with them. The rule was clearly settled in 1367, long before the jury was exercising any real judicial function… The retention of the rule is a classic piece of conservatism…A good thing, conservatism, in its place—'that preposterous relic of barbarism' Hallam called it.1776 This is the thing which is bringing tears to our eyes this evening.
§ Mr. Gilbert Longden (Hertfordshire, South-West)
With great humility and respect to my right hon. and learned Friend and to Lord Devlin, is not the reason for the unanimity rule in this case that all of us, including the supporters of this Clause, want convictions to be without reasonable doubt? But if there are two members of a jury who disagree, there certainly is doubt, and I think it fair to say there is reasonable doubt.
§ Mr. Hogg
I thought I had already disposed of that argument, but as my hon. Friend may not have heard what I said, I shall certainly repeat it. The burden of proof is one thing. Each individual member of the jury must apply his own judgment to whether he is convinced beyond reasonable doubt—that is, satisfied so that he is sure. That remains whether we pass this Clause or not, but a reasonable doubt, as judges tell juries and I say to the House, is nothing more than a doubt from which reasons can be given. The fact that one man out of 12 differs from the other 11, or two out of 12 from the others does not establish that their doubts are reasonable. Reasonable doubts are doubts for which reasons can be given.
What we are concerned with is the notorious fact that if we select a tribunal with a pin, which is what we do in effect when we summon a jury, from time to time we shall get one or two who are not altogether reasonable in their judgments on evidence.
§ Mr. John Lee (Reading)
The right hon. and learned Gentleman says that if only two jurors disagree that is no indication of the reasonableness of their disagreement. Would he extend the argument and say that if three, four, or five disagree he would still regard it as no proof of reasonableness?
§ Mr. Hogg
It could be no proof of the reasonableness. The standard of proof which each member of the jury must apply to himself is one of reasonable doubt. The mere fact of numbers achieves nothing. The question is a matter of judgment of what will make a good criminal tribunal. My judgment is in favour of the Home Secretary's proposal. In the long run, it is a matter of 1777 judgment. In my view, most of this a priori argument against the Home Secretary proposal's we have heard is unconvincing, all the sentimental stuff is wholly irrational, and the belief that there is any magic in 12 is mere superstition.
Because I want my fellow-countrymen to try to introduce into their criminal law, at a time when crime is threatening to undermine the foundations of society, some degree of rationality and to abandon superstition and unreality in their thinking about the criminal and civil law, I support the right hon. Gentleman.
§ Mr. Roy Jenkins
We have now been considering this Clause for about two hours, which is the time specified, and I would not wish—[An HON. MEMBER: "Specified?"]—Yes, specified in the Clause. I am sorry if the hon. Gentleman has not read the Clause which we are debating. But I would not wish to ask the House to arrive at a majority decision without those who wish to speak having an opportunity to express their views. I propose, therefore, in the hope that it would be agreeable to the House generally, that I might now intervene for a few minutes and then, at the end of my speech, we might adjourn, continuing the debate tomorrow afternoon, when, I hope, we shall reach a decision reasonably early.
§ Mr. John Wells (Maidstone)
So far, no hon. Member from the back benches on this side has been called who was not on the Committee. There are many hon. Members on both sides who wish to speak. No one on this side, save my right hon. Friend the Member for Ashford (Mr. Deedes), has been called who is not a lawyer. The Home Secretary has said that we shall have an opportunity tomorrow, which I accept, but there must be many of us who made particular efforts to be here tonight, on the understanding that we would have an opportunity to debate this matter, who may have inevitable engagements elsewhere tomorrow.
§ Mr. Jenkins
It is an unusual situation in which the Government offer to allow the House to go home reasonably early and give time to continue the debate the next afternoon, and an hon. Member is sufficiently ungracious to make points at length objecting to it. My impression was that the course I had proposed was 1778 generally acceptable to the House. I believe that to be so.
We have had an extremely interesting and worth while debate on this subject. My hon. Friend the Member for Oldham, West (Mr. Hale) opened it, with his wealth of historical and legal knowledge, interestingly and fairly, so fairly, if I may say so, that I thought that one of the cases he cited tended to be an argument in favour of the majority verdict and not against it.
The hon. and learned Member for Ruislip-Northwood (Mr. Crowder) made some of the points which my hon. Friend had made and, as I understood him, added another point which seems to be a surprising argument against majority verdicts. He said that, in practice, majority verdicts had been taking place for a long time, and what he objected to was their coming out into the open. It seems an extraordinary proposition that a majority verdict is all right provided that it is cloaked in a certain amount of hypocrisy but it is not all right when it is stated in open court.
§ Mr. Jenkins
I have no doubt that, as the hon. and learned Gentleman presented his argument, that is what he was saying—that in a great number of cases people had come into line against their real views in order to make it possible to arrive at a verdict.
§ Mr. Crowder
I did not say that at all. I said that, under the present system, a jury works, and is encouraged to work, in accordance with the judgment which I quoted, as a team, as a composite body. Under the new scheme, jurors will be encouraged to disagree, and, if there are four jurors who wish to find a verdict of not guilty, they will say, "We do not own allegiance to what is, in effect, a team and a committee. We are now encouraged to disagree". Two of them will say, "Why should we be the two to disagree?". The net result will be more disagreements.
§ 11.15 p.m.
§ Mr. Jenkins
Members who heard the hon. and learned Gentleman will agree that his argument tended strongly towards what I believe to be recognised, that there is a great number of majority verdicts which are presented as unanimous verdicts.
1779 The hon. and learned Gentleman made a great issue about the position of the Lord Chief Justice, as did my hon. Friend the Member for Nelson and Colne (Mr. Sydney Silverman). It is true that in Committee I quoted a letter which the Lord Chief Justice had sent the Lord Chancellor as an expression of his opinion that the judges were unanimous. I made it clear that that was an expression of his opinion. I do not agree with the hon. and learned Gentleman that it reverberated throughout the country. It may have reverberated around the Bar, but as far as I can see it was hardly reported in any newspaper at that time or since.
However, after I had made the statement the Lord Chief Justice no doubt met one or two of the judges to whom the hon. and learned Gentleman referred who expressed a contrary view, and therefore the Lord Chief Justice immediately wrote to me on his own initiative, saying that he was worried about the position and proposed to conduct a poll of the judges individually at the earliest possible moment and report to me the exact results.
He did that in a letter which he wrote to me on 7th March, some few weeks after I had made the speech in Committee. I think it important that the House should be in possession of the full facts of the situation. He said:Out of 37 Queen's Bench judges, including myself, 25 are wholly in favour of majority verdicts provided that the majority does not fall below 10 to two. In addition, two Queen's Bench judges said that they have not sufficient experience on which to base an opinion and would be prepared to follow the majority. Eight judges are wholly against majority verdicts, several of them having changed their minds since the pros and cons have been ventilated. In addition, one judge who is against majority verdicts would be prepared to see them tried for an experimental period and one judge would be prepared to accept majority verdicts in cases lasting four days or more.That was a very precise polling of the Queen's Bench judges.
§ Mr. Jenkins
We must accept the Lord Chief Justice's ability to tot up the number of Queen's Bench judges, even if we do not accept his views on a point of argument.
§ Mr. Sydney Silverman
I asked my right hon. Friend the direct question whether he had ever sought to take his own poll of the judges. If not, why not?
§ Mr. Jenkins
Mainly because I have other things to do. It would be most inappropriate for a Minister to conduct individual interviews with judges as though he were canvassing their opinion for and against a particular point of view. I do not think that there is any Member who would take the view that the Lord Chief Justice, having recognised that he somewhat exaggerated the position, and having gone into the matter very carefully and polled the judges individually, would conceivably misrepresent the views of his fellow judges. I do not believe for a moment that my hon. Friend the Member for Nelson and Colne would take that view. Therefore, we must accept that letter as an authoritative statement of the position on 7th March, when the Lord Chief Justice wrote to me. It amounts to 27 judges in favour, eight against, and two approximately neutral.
§ Mr. Jenkins
I have given way a great deal and I think that it would now be for the convenience of the House if I concluded my remarks soon.
Some hon. Members—I think that it was my hon. Friend the Member for Oldham, West in particular—asked why cases of possible interference with jurors, either by bribery or intimidation, were not brought to justice.
Part of the crux of the problem is that it is extremely difficult to detect such interference. By its very nature, almost by definition, it is possible to detect it almost only when it is unsuccessful, and not particularly dangerous, and not when it is successful, and therefore particularly dangerous. I have never attempted to conceal from the House or the Committee that there are not a vast number of cases which can be pointed to as evidence of interference with jurors. I think that the hon. and learned Gentleman the Member for Solihull (Mr. Grieve) may well have been right when he referred to the tip of the iceberg.
There have been a number of cases in London, and there were six cases outside 1781 of London, which I cited to the Committee. I do not attempt to say that this is an overwhelming volume of cases. What I do say, and have said on previous occasions, and what I wish to repeat now, is that from the point of view of the crime situation, to which anyone in my position cannot be insensitive, this is a qualitative issue to a greater extent than it is a quantitative issue. This is because the attempt to interfere with jurors is essentially something which takes place in big criminal conspiracy cases, when one is dealing with the really big criminals, and therefore the position cannot be judged by citing percentage figures of the number of jury disagreements or the possible number of false acquittals which may arise.
§ Sir J. Hobson
I am sure that the Home Secretary will realise that the qualitative argument works the other way. In every treason trial, in every great political trial, the rule of jury unanimity will have been removed.
§ Mr. Jenkins
I firmly believe that this will not mean that in the great majority of cases one will not continue to have unanimous verdicts, which will be announced as unanimous verdicts, for reasons which I will come to later. I propose that it is right, if the Clause is accepted, that jurors should announce in open court whether their verdict is unanimous, and, if it is not, by what majority it is given.
That is very important from the point of view of seeing how this system works in practice and learning a little more about it. We have been accused of not having done enough inquiry into the work of the jury system. It would be very foolish to introduce this majority system, and then blind ourselves as to how it was working by saying that it could not be announced in what number of cases it worked, or by what majority the verdict was given.
I would also remind the House that there are considerable difficulties about conducting an inquiry into the form of working of the jury system. It was not open to me, or to any other Home Secretary, to conduct a really effective inquiry without breaching a jury principle which many people would regard as just as important and significant as that of unanimity, and that is the principle of jury 1782 secrecy. It would not have been possible to conduct that inquiry without knowing effectively what went on in the jury room.
§ Mr. Weitzman
The question of "nobbling" of juries was gone into by the Mersey Committee, which dealt with jurors, and it gave a decided view that it did not consider any change should be made in the law
§ Mr. Jenkins
The Mersey Committee sat many years ago, and in very different circumstances from those confronting us now. We are now confronted with a very different crime wave compared to that in the past. It is certainly the case, if I may continue the point about an inquiry into the jury system—and I am anxious that we should do what research we can into this, and other aspects of the jury system—that we shall have to consider carefully the secrecy point. Some research was done in America by the "bugging" of jury rooms. A very narrow sample was taken, but when it was discovered that this was going on, grave objections were made to the practice and it was stopped.
It is also important that the House should bear in mind that American jury practice is in many ways different from ours in a way which makes it difficult to draw comparisons. There the system whereby one can challenge jurors and question them about their suitability to sit, can result in it taking a very long time to empanel a jury in a major case. One gets a very narrow sample of jurors when one has done that.
There is importance in this point, and I should like, as I did in Committee, to remind the House of a passage by Lord Devlin, who has been quoted this evening in this context. This is from the Hamlin Lectures, when he pronounced on a majority system.
He said then:But it might be dangerous, so long as the unanimity rule is retained, to equate the jury franchise with the right to vote. No one expects the country to be unanimously in favour of the Conservative Party.I do not know why he chose the Conservative Party, but he said that the decision must be unanimously for a plaintiff or a defendant. He said:The approach to unanimity must be helped to some extent by the fact that the jury is drawn from the central bloc of the population. It is difficult to estimate what would be the effect of some diversionary elements, and if 1783 unanimity is insisted upon and the narrower franchise is preferred, it is better that the jury be taken from the middle where safety is more likely to repose".I think that most of my hon. Friends would not like to see carried into effect something in which there would be certain considerable dangers, but it could be asked if there are dangers in departing from the unanimity rule. Are there equivalent dangers in departing from that?
None of us would wish to do this if we thought that there was any serious increased danger of miscarriages of justice, but it is the case that we have lived within this island for centuries with our unanimity rule while the Scots have lived alongside us with their rule of a bare majority. I am fully aware that there are considerable differences between the English and the Scottish legal codes, but I am bound to tell the House that, having studied the matter most carefully, I am sure that these differences do not affect the question whether the majority verdict is right or not.
I do not say that there are never miscarriages of justice under any system, but I am certain that there have not been greater miscarriages in Scotland than in England. Therefore, I think that one can greatly exaggerate the dangers which may follow from this. One is confronted with a situation in which serious attempts have been, and may still be, made in the future to pervert the course of justice by "nobbling" jurors. In the Committee I said that there was a case which had gone on for some time in which 72 police officers had had to be employed to watch the jury, and in a case which is at present before the courts, no fewer than 82 police officers have been employed continuously since 4th April and may well be employed for many weeks to come in order to keep guard over a jury.
I cannot be indifferent to this fact that considerable numbers of men have to be employed in this way and, with the known shortages of police, nobody would wish to see men used in this way unless it was to make certain that justice was not perverted. Right hon. and hon. Members in all parts of the House, I know, have strong feelings on this subject and have expressed their views agreeably and honestly in the course of this debate 1784 which we shall continue tomorrow. At the same time, strong arguments should not serve only to make us prisoners of the past, and I think that we shall make our case stronger if, instead of that, we look afresh at this matter in the new circumstances of today.
§ Debate adjourned.—[Mr. Harper.]
§ Debate to be resumed Tomorrow.