§ The Attorney-General
I beg to move amendment No. 21, in page 3, line 29, at beginning insert'Without prejudice to any rule of law which prohibits disclosures by or approaches to jurors during or after the trial, and'.
§ The Attorney-General
This is probably one of the most difficult matters that we shall deal with on Report. A great deal of anxiety about the clause has been expressed both in Committee and in another place. Anxiety has been expressed outside the House in newspaper articles and during radio broadcasts. Even this morning I heard an eminent QC, who is the chairman of the Criminal Bar Association, or certainly a high officer in that association, express anxiety. It has come from those who have wide experience in the criminal courts, who are concerned about the effect that the clause would have upon the sanctity of jury room discussions. I can deal in more detail with that fear when the House discusses amendment No. 14 and other amendments.
The purpose of the amendment is to try to remove the feeling that the clause is the be—all and end all—of any sort of offence of contempt in respect of juries. In another place, my noble Friend the Lord Advocate made it clear on Report that the existing law on contempt was not affected at all. The only reason why the Government amendment has been proposed is the unexpected decision of the divisional court in the New Statesman case.
However the clause is worded, there will always be disagreement about the extent to which prohibition should 921 go. On the one hand, it could be said that the latitude granted by the Government in the clause is far too wide. On the other hand, if I may deal for a moment with future amendments, it could be argued that the restrictive approach favoured by the Opposition is too narrow. Others will say that the amendment tabled by my hon. and learned Friend the Member for South Fylde (Mr. Gardner) goes too far or is too weak. There is no doubt that we shall hear the views that have been expressed by judges and others during the debate.
The clause was originally designed to plug the gap which arose as a result of the decision in the New Statesman case. The amendment was simply to make it absolutely clear to anyone who reads that clause that it deals only with publication of jury secrets. It does not in any way seek to restrict or limit the existing powers of contempt in respect of improper dealings with jurors. There is no doubt that the threat to take revenge on a juror is contempt. In the New Statesman case, the court said that to attack or to threaten a juror after the trial in order to obtain revenge or for some other purpose connected with the discharge of his duty as a juror would almost certainly be contempt of court.
Other examples were quoted with hair-raising skill by Lord Hutchinson in the debates in the other place. It made me shiver to think of some members of the solicitors' profession in black coats, hovering outside the private exit of the Old Bailey after a retrial, waiting to grab a juror and to discover whether he should not have called a certain witness and whether the juror disagreed with him for that reason. That may be so—I do not know. However, it made exciting reading.
§ Mr. Lawrence
It is precisely because such an approach was made, albeit through journalistic channels in the New Statesman case, that I understood that my right hon. and learned Friend was introducing the amendment.
§ The Attorney-General
The approach with which I was concerned and the reason why the amendment has been proposed is to prevent the publication of any part of a jury's deliberation in a way which either identifies the accused or the juror. Finality in a criminal case is absolutely essential. When there has been a verdict, particularly one of acquittal, we cannot have a public retrial based upon apparent accounts given by jurors. If one read the two accounts given as a result of interviews after the Thorpe trial, one in the New Statesman and one in a book, one could not believe that those jurors were sitting on the same jury in the same trial.
§ Mr. Nick Budgen (Wolverhampton, South-West)
My right hon. and learned Friend says that the amendment does not in any way repeal the common law powers in respect of contempt. Is there not likely to be uncertainty if the law is partly based on common law and partly on statute? Those who are perhaps not inclined to look up the law books might easily assume that the whole of the law is to be found in the statute. Is there not something to be said for the amendment put forward by my hon. and learned Friend the Member for South Fylde (Mr. Gardiner)so that those who wish to know what the law is can go to a single document for it?
§ The Attorney-General
The purpose of the amendment is to resolve the difficulty about which my hon. 922 Friend has spoken. It is to remove any doubt about the whole of the law of contempt relating to jurors, which is contained in clause 9. The amendment states:Without prejudice to any rule of law which prohibits disclosures by or approaches to jurors".I hope that its purpose will resolve the difficulty which my hon. Friend says now exists by reason of the amendment. I am sorry that I do not understand his point.
I think it would be better if I restrained myself until we reach the other amendments. I do not believe that the purpose of the amendment can be objectionable to anyone. It removes any doubt about the existing law of contempt, although we are legislating solely for publication of what happens in the jury room.
§ Mr. Jeffrey Thomas (Abertillery)
I listened with great interest to the Attorney-General. So far as I understand his amendment, it seems to me wholly unnecessary. The present statement of the law, to quote from Lord Devlin, is as follows:Jurymen are invested now with judicial immunity. They have full judicial privilege and are not accountable for any thing said or done in the discharge of their office and any threats or language directed towards them as is punishable as contempt of court".If Lord Devlin be right in that regard, what on earth is the point of the amendment?
§ Mr. Lawrence
I do not begin to understand why the hon. and learned Gentleman is making that point because he said clearly in Committee that one adverse result of the clause as drafted isthat it will be assumed by many, perhaps rightly, that clause 8 is the only effective sanction against publication of, or inquiry into, jury deliberation".—[Official Report, Standing Committee A, 14 May 1981, c. 186.]It is to answer that point that my right hon. and learned Friend has introduced the amendment. Whatever else I have to say in due course about juries, it cannot be argued that my right hon. and learned Friend's amendment is other than directly in response to what the hon. and learned Gentleman requested in Committee.
§ Mr. Thomas
I do not believe that the amendment has that effect. I do not want to trespass on the next amendments to the clause. Most of the points will be best dealt with in debate on those amendments.
The point which the Attorney-General made, about reading accounts given by two jurors on the New Statesman case and not for one moment thinking that they were talking about the same clause, is precisely the mischief of clause 9 in relation to so-called bona fide researchers and others. I shall develop those points and others when we debate the next set of amendments.
§ Mr. Christopher Price
I agree that most of the discussions on the clause should take place on the next set of amendments. I thought that the Attorney-General was a little unfair to his hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen) when he dealt with his point. One needs to remember the history of clause 9 and how we reached this point.
The New Statesman published an account by a juror of what went on in the jury room. Perhaps I should declare an interest in that from time to time I write for the New Statesman. It is not a great interest as I am not paid a great deal of money. The New Statesman is not able to do so.
Before publishing that account, the New Statesman took careful advice as to the state of the common law at 923 that time. As it could find nothing to say that it should not do so, and as it felt that the particular case and the particular verdict in the particular circumstances were proper matters for public comment, it took that editorial decision and published the account.
The Attorney-General then quite properly made his decision. There was much concern about the case and the New Statesman was taken to court in the full expectation that the Lord Chief Justice would do his duty and take away the need for Parliament to do what we are now doing. Against all the odds, however, in what one must describe as a not very satisfactory judgment, the New Statesman got off. The Attorney-General was therefore faced with the need to legislate. At the time of that case, I put great pressure on the Attorney-General to the effect that Parliament should decide the broad rules about these things, not a Lord Chief Justice who is occasionally called in to pronounce on a particular issue at a particular time.
The clause was therefore drafted, after wide consultation by the Attorney-General, including consultations with me. That is the present position. Having reached this point, however, the Attorney-General must allow the point made by his hon. Friend the Member for Wolverhampton, South-West, that we are only half way there. My point, which has always been that it should be Parliament that lays down the rules for jurors, is also only half met.
As the Attorney-General has said, and as the amendment makes clear, nobody should think that clause 9 represents the whole of the law with regard to the conduct of jurors and those who have contact with them.
§ Mr. Budgen
Would not it have been very much to the advantage of the New Statesman if it had been able to know clearly and from a statute exactly what its legal position was? On advice, it took a chance which happened to come off. Nevertheless, it is undesirable for the law to be as uncertain as that.
§ Mr. Price
I agree. Although I go along with this, in retrospect I am not sure whether one clause in a Contempt of Court Bill intended to deal with the Thalidomide decision and Phillimore was the right way to deal with the problem. It should perhaps be dealt with far more comprehensively in a Bill devoted solely to that purpose. Indeed, I thought at one time that it was to be dealt with in that way.
I intervene only to point out that, although the Attorney-General is right to say that he has responded to pressure in Committee to make it clear that the law will be, as it were, hybrid—part statute law and part common law—when the Bill becomes an Act, that does not necessarily make the situation any clearer than it was when the New Statesman had to take the difficult decision whether to publish.
§ Amendment agreed to.
§ Mr. Edward Gardner (South Fylde)
I beg to move Amendment No. 14, in page 3, line 29 leave out from beginning to end of line 12 on page 4 and insert—'(1) Subject to subsections (2) and (3) below, it is a Contempt of Court to obtain disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings.(2) This section does not apply where any such particulars are obtained, disclosed or solicited with intent that they should 924 be published and—
- (a) the publication does not identify the particular proceedings in which the deliberations of the jury took place or the names of particular jurors, and does not enable such matters to be identified; and
- (b) the consent of the Attorney-General to the publication has been obtained before any such particulars are solicited.(3) This section does not apply to any disclosure of any such particulars—
- (a) in the proceedings in question for the purpose of enabling the jury to arrive at their verdict, or in connection with the delivery of that verdict; or
- (b) in any appeal from the verdict of the jury in the proceedings in question; or
- (c) in evidence in any subsequent proceedings for an offence alleged to have been committed in relation to the jury in the first mentioned proceedings.".
§ Mr. Deputy Speaker
With this it will be convenient to take amendment No. 6, in page 3, line 41, leave out subsection (2).
§ Mr. Gardner
I think it is right to say that the reason for the amendment lies in the fears felt by many hon. Members on both sides of the House about the effect that clause 9 in its present form would have upon the future of the jury system. Some of us take the view that if the law were to remain in the form presented in clause 9, the jury system as we know it might be condemned to ultimate extinction. I regard that as a very serious matter indeed. Moreover I have good reason to suppose that many other hon. Members give this problem the same priority as those of us who have studied the matter and have come to the conclusion that the law should not be left in this form.
The New Statesman case is important because the present law was laid down as precisely as it could be although, if I may say so, not very satisfactorily in the judgment of the then Lord Chief Justice. The finding appears to be that a journal may interview a member of a jury after a verdict or indeed a disagreement and it will not amount to a contempt of court provided that what is done does not tend in any way to diminish the finality of the verdict. Many of us regard that as a very unsatisfactory state of the law. Clause 9, which is presumably an attempt to improve on the present state of the law, allows for such disclosures to be published provided that neither the case nor the names of the jurors are identified.
The amendment was originally drafted by the Criminal Bar Association, an association of members of the Bar who specialise in criminal law. The association addressed itself to two pertinent and essential questions. First, should the law ever allow the secrets of the jury room to be disclosed? Secondly, if the secrets of the jury room were to become public, in what circumstances would publication be allowed?
The association was fundamentally opposed to approaches to jurors after a verdict or disagreement because any law which enables a jury of 12 anonymous members of the public to be asked why they reached or did not reach a verdict seemed to the association to be unwarranted and harmful pressure which should not be imposed upon any jury. I believe that the association is correct in that view.
The association expressed the fear that such disclosurescould undermine the whole purpose of jury trials".I believe that that fear is justified.
§ Mr. Christopher Price
I take the point about approaches to and pressure on jurors, and there is widespread agreement on that, but the hon. and learned 925 Gentleman's amendment appears to go a little further with the word "obtained". Even if, completely unsolicited, a juror bursts into a newspaper office and says "Something quite terrible has happened and I want to tell you about it, because it is a scandal", does the amendment almost make it an offence for the journalist not to plug his ears? Once he has listened to or obtained the story, is he committing contempt in terms of the amendment? What about the unsolicited information?
§ Mr. Gardner
Whether it is unsolicited or solicited information, unless it is done in a proper way, with proper safeguards, it inevitably tends to imperil the finality of the verdict. That is why, in our strong view, it would be wrong for that kind of information to be published. It could do infinite harm. Indeed, it could virtually be the basis of a new trial, which would be highly undesirable.
I was saying that I thought that the fear of the Criminal Bar Association that disclosures could undermine the jury system was wellfounded. There is a large body of opinion at the criminal Bar taking such a view, and it is held by members of the public. It is also a fear that is shared by the Lord Chief Justice, Lord Lane. I was allowed by the Lord Chief Justice to consult him about the amendment, and about clause 9 in particular. He was good enough to give me his authority to repeat to this House his reaction to any change in the law relating to the disclosure of jury deliberations. I quote his words with great care. He said:I regard any loosening of the strict rules about no disclosure of a jury's deliberations as anathema. The prospect of anyone, be he solicitor, press reporter or professor of law, being able, with or without the Attorney-General's permission, to go to a member of the jury and to ask for his recollection of the jury's deliberations and then to publish that recollection, even though there is no mention of the case or the name of the juror, seems to me an incredible idea. The dangers are obvious. The value is hard to detect.Those are the words of the Lord Chief Justice, and I hope that I have quoted them exactly.
§ Mr. Jeffrey Thomas
Having regard to what the Lord Chief Justice had said, and bearing those views in mind, would it not be better to adopt the course that we sought to adopt in Committee and expunge that part of clause 9 altogether, hook, line and sinker?
§ Mr. Gardiner
That is a view that I want to deal with next, because it is one that had to be considered and was considered very carefully by the Criminal Bar Association.
The Criminal Bar Association was divided on the second question: if disclosures are allowed, under what conditions should it be and with what restrictions should that licence be hedged? It is clear from the words of the Lord Chief Justice that he would in no circumstances whatever be prepared to allow disclosure. As I have said, the association was divided. Some, like the Lord Chief Justice, said that in no circumstances did they want any disclosure. Others took the view that the right to approach members of the jury after verdict or disagreement must be limited to genuine research, and then—this is the heart of the amendment—only provided that the Attorney-General gave his consent to such an approach.
No doubt an unrestricted right to interrogate after disagreement would be a tempting opportunity to an interested party to discover, by an interview with a member of the jury, which witnesses, for example, had not impressed and which witnesses had been stars in the 926 witness box, so that on a retrial other witnesses could be called who would be more effective. The conduct of the new trial might be governed by such findings.
Such abuse could bring the whole trial by jury system into danger of collapse. Many people believe that discovery in the interests of research should be allowed. However, if it is, it is clear that the ability to approach a member of the jury must be subject to severe and careful restrictions of the kind suggested by the amendment. There should be no approach to a member of a jury unless the Attorney-General is prepared to give consent. The amendment represents that view and I venture to think that that view will attract the support of hon. Members from all parties.
I should like to think that that view has the sympathy of my right hon. and learned Friend the Attorney-General. I hope that he will accept that the amendment was tabled as a responsible attempt to reflect the great anxiety felt by those who support it. With respect, it will not do to tell the House that there may be some sense in the amendment but that the Government will stick to the clause as drafted. The clause contains seeds that may ultimately do away with our jury system. Therefore, I beg him to take time to reflect and to accept the amendment as drafted or to suggest some way in which we could avoid what many of us believe to be the perils of clause 9.
Unhappily, I did not have the privilege of serving on the Committee. However, in Committee my right hon. and learned Friend said:I do not accept the proposition that no research is permissible … I do not believe that benevolent, genuine researchers, designed to give an approach to the jury system … will do any damage to the jury system."—[Official Report, Standing Committee A, 14 May 1981; c. 193–195.]I hope that he is right. He also said that he was not "frightened of investigation". As a rule, most of us are not.
However, I earnestly submit that unrestricted, indiscriminate and mischevious interrogation of members of the jury, after verdict or disagreement, could be the first irretraceable and fatal step towards the ultimate abolition of the jury system. That prospect frightens me just as I hope that it will frighten Members as well as many members of the public.
I should like to think that our citizens rely on Parliament to protect their rights. One of their most valuable rights is the right to be tried by their fellow countrymen in cases where their reputations or freedoms are at stake. It is the risk that this right may be undermined or indeed destroyed that causes those who support this amendment to ask the Attorney-General, to urge him, to accept this amendment and to hope that the House as a whole will see the benefit that it would bring to the law.
§ Mr. Jeffrey Thomas
I agree with everything that the hon. and learned Member for South Fylde (Mr. Gardner) said in support of his amendment. It is for that very reason that we contend that his amendment does not go far enough, especially bearing in mind what the Lord Chief Justice had to say. One cannot venture to imagine stronger language than that used by the Lord Chief Justice in the quotation read to the House by the hon. and learned Gentleman.
It is plain that insofar as clause 9 deals with interviews with jurors after a trial has finished it should be rejected root and branch. If what I have to say is rejected by the 927 Government tonight we shall support the amendment in the Lobby, but hope that even at this late stage we can reap some concession from the Attorney-General.
The Bill has some good things in it, and we welcomed the concessions made by the Government in Committee. We thought, in good faith, that there would be more concessions on Report, but it seems that we are to be disappointed. Having said that the Bill contains some good things, I say without hesitation that the clause is mischievous, insidious, and in many respects the most far-reaching clause in the whole Bill. That is basically why I agree with the hon. and learned Gentleman's argument and say that his amendment does not go far enough.
I go one stage further and say that if the amendment is carried—and we shall support it in the Lobby if that is the only course left open to us—it will be the thin end of the wedge for the jury system. I agree with the hon. and learned Gentleman when, echoing the views of the Criminal Bar Association and the Senate of the Inns of Court, he says that this could be the end of the jury system.
The House is debating the jury system. Although from time to time the system is attacked from certain quarters—quarters, incidentally, from whence one would least expect it to be attacked—the fact remains that with all its faults—and no system is perfect—the jury system is the linchpin of our system for the administration of justice. It is a uniquely British institution. Nothing of its kind exists outside the frontiers of this country. I have not the slightest doubt that it is the best system yet devised. We do not know why the jury system works, and to an extent we do not know how it works, but work it does, even if many people think in mysterious ways. I use "mysterious" in its original sense.
We do not even know why there are 12 members of a jury, although many romantic explanations have been proffered for the number 12—the 12 tribes of Israel, the 12 patriarchs, the 12 officers of Solomon recorded in the Book of Kings and, of course, the 12 apostles. So there is a mystery surrounding juries, how they are made up and how they go about their vital business.
Apart from any question of harassing and troubling jurors after the trial is completed, I do not believe for one moment that what transpires in a jury room is conducive to research or examination thereafter. The Attorney-General put his finger on one reason why when he said during the previous debate that when he read the accounts of two jurors of what happened in the same trial he could not believe that they were talking about the same matter. That is one of the nonsenses of clause 9.
As the Lord-Chief Justice said, it does not matter how learned and experienced is the researcher who seeks to go behind the closed doors of the jury room, because what has transpired is the culmination and synthesis of what 12 good and true men and ladies have been debating either for a long or a short time. It is not just that. It is a distillation of what has fallen from the trial judge both during the trial and later in his directions to the jury. It is a strange potion, an admixture that cannot be found in any meeting of any other group in the world. It is unique.
Lord Devlin may have advanced another reason why the jury system is not conducive to research and examination when he said in the course of his Hamlyn lecture some years ago, thatthe origin of the jury's verdict explains a unique feature of it that is still of the first importance. Judges give their reasons, either so as to satisfy the parties or because they themselves want to 928 justify their judgments. Even arbitrators detail their findings of fact. The jury just says yes or no. Indeed, it is not allowed to expand upon that and its reasons may not be inquired into. It is the oracle deprived of the right of being ambiguous. The jury was in its origin as oracular as the ordeal: neither was conceived in reason: the verdict, no more than the result of the ordeal, was open to rational criticism. This immunity has been largely retained and is still an essential characteristic to the system.I believe that Lord Devlin was coming near to the point of the difficulty of seeking to look behind closed doors and inquire into the minds of the 12 jurors. There are as many men as there are opinions. If one interviewed each of the members of a jury, one would find that every one had a differing account. There would be not two different versions, as in the New Statesman case, but 12.
What is the purpose of putting at risk a system that has lasted for hundreds of years? It has lasted since 1295, when trial by ordeal was abolished by Pope Innocent III. The jury system as we know it began, almost by accident, and slowly evolved and developed thereafter into the system that we know today.
I shall put it in a different way and change the burden of the argument that I have been adducing so far. Already juries have had to bear the burden of sitting—that is to say, taking part in a case—for long periods of time. They have had to endure bad working conditions in a court, and often long delays and personal inconvenience. They put up with all that because, as members of the public, they realise the overriding importance of their participation in the administration of justice. In our view, it is intolerable that they should, as proposed in the amendment, bear the additional burden of being subjected to cross-examination after they have delivered their verdict. There must be finality. I understood the Attorney-General to accept that in the short debate on the previous amendment. One matter that is of crucial, cardinal importance is that there must be an end. That end comes with a verdict, and that should be the finality.
I am sorry to have to say, but I believe that it is true, that this is part of a deliberate assault on the jury system. We saw that in the Supreme Court Bill. It has not been witnessed since 1295, when trial by ordeal was abolished. Lord Devlin foresaw what might happen in 1965, when he wrote about the slow unfolding of a doctrine that might blossom into what, to the defenders of trial by jury, would be a noxious flower.
Blackstone, in one of his celebrated commentaries, also foresaw what would happen when, either directly or as a consequence of proposals, trial by jury was slowly eroded.
He said:Inroads upon this sacred bulwark of the nation are fundamentally opposed to the spirit of our constitution: and that, though begun in trifles, the precedent may gradually increase and spread to the utter demise of Juries.That is why I support the arguments that have been advanced and say what the Government would describe as trifling and unimportant is an assault upon the jury system which, because of its effect on individual jurors, will put our system in peril.
Jury members bear a heavy responsibility, and we all owe them a great debt of gratitude. It is intolerable for a juror in the course of his deliberations to be aware that, when a verdict is given and the judge has passed sentence, he may be asked questions about how he or his fellow jurors reached the decision and the real nature of the decision. No juror should be asked to bear that burden.
§ Dr. Alan Glyn (Windsor and Maidenhead)
Even worse, there could not be a retrial, as evidence from the previous trial would be available to the new jurors.
§ Mr. Thomas
We dealt with it when the hon. Gentleman was out of the Chamber, but I shall come to the question of retrial, which is an important matter in the argument.
I hope that I shall not detain the House for too long, but I, too, feel extremely strongly about the matter, which is a major constitutional issue, so I hope that the House will forgive me if I take a little time in developing my argument.
Again I refer to the Hamlyn lectures. Lord Devlin said:What goes on in the jury room is not only to be subject to no interference but it is also to be kept secret. It is doubtful whether there is any formal obligation upon a juror not to disclose what takes place in a jury room and it says a good deal for the sense of responsibility of the average juror that it never seems to have been necessary to decide the point. In a sensational case the public, or at least the press, would give a great deal to learn something that went on in the jury room but except in one or two rare cases there has never been any public discission on it …The lack of any formal obligation to secrecy is a vestige of the embryonic jury.Lord Devlin went on to talk about the system. He referred to a case of Armstrong in 1922, wherethe writer of a newspaper article claimed to report what had been said to him about the evidence after the trial was over by a member of the jury. This was brought to the attention of the court which was hearing the appeal in the case, and Lord Chief Justice Hewart described it as 'improper, deplorable and dangerous;' he said that every juryman ought to observe the obligation of secrecy imposed by the oath of the grand juror. It so happened about the same time a case was heard in the civil Court of Appeal in which one of the rules about juries was discussed and observations were made about the Armstrong case. Lord Justice Bankes said: 'It has also been generally accepted by the public as a rule of conduct that what passes in the jury room during discussion by the jury about what their verdict should be ought to be treated as private and confidential, I may say that I saw the other day with astonishment and disgust the publication in a newspaper of a statement by the foreman of the jury in an important criminal trial as to what took place in the jury room after the jury had retired.That was a case in which the foreman revealed that the defendant had previous convictions.
Lord Devlin added:'I do not think it is necessary to express any opinion as to whether such a publication amounts to a contempt of court, but I feel confident that anyone who read that statement will realise the importance of maintaining the rule."'Lord Devlin then said, finally, that when the foreman of the jury has given the verdict,the clerk of the court says: 'And that is the verdict of you all'; and thereafter if no juryman dissents the jury is discharged and it is finis rerum. The court will not listen to any juryman who has second thoughts or allow any of them to assert thereafter that he was not a consenting party to the verdict. How otherwise could there be finality?That points to the major difficulties that confront the Government in clause 9. I sought to deal in Committee with some of the difficulties and practical problems that will arise. One that arose a moment ago concerns retrial. There are also the difficulties that will arise following a majority verdict or a disagreement that leads to inquiries about those who were good witnesses and those who were bad, together with the danger, if it could be ascertained, about which of their number was the most keen for a conviction.
What about the far-reaching difficulties that would stem from the discovery that some irregularity had occurred in 930 the jury room? It is not far-fetched to envisage a situation in which a juror could be bribed to concoct some such irregularity where none existed.
I believe that the clause will not only diminish the confidence of the public in the system, but that in a very real sense it will put at risk the finality of the verdict itself. I should like to quote Lord Hewart who in the course of his judgment in the Armstrong case said:If one juryman might communicate with the public on the evidence of the verdict, so might his colleagues also. If they all took this dangerous course, differences of individual opinion might be made manifest which at the least could not fail to diminish the confidence that the public has rightly in the general propriety of criminal verdicts".I could quote extensively from the case of the Queen v Thompson in 1962, but, in view of the time, I shall not burden the House with those extracts.
I return to the remarks of Lord Devlin, who said:Each jury is a little parliament. The jury sense is the parliamentary sense. I cannot see the one dying and the other surviving. The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives. To, many of us the boundaries between Whitehall and Westminster are uncertain and confused. We are anxious that government should be strong and yet fearful lest the gathering momentum of executive power crush all else in our State. We look for some landmark that we may say that so long as it stands, we are safe; and if it is threatened, we must resist. It is there, this beacon that seven centuries have tended".We interfere with that at our peril.
§ Mr. Martin Stevens (Fulham)
I am glad that this debate is not to become, as some in the corridors have whispered should be the case, the exclusive preserve of distinguished luminaries of the Bar. We are discussing the jury system, which is, after all, the apotheosis of the common man. Some hon. Members, who are lawyers only of the barrack room type, should also contribute to the discussion.
I share the anxiety of my hon. and learned Friend the Member for South Fylde (Mr. Gardner) whose view has been supported. I wish to add only one point. Over the years the qualifications for service on a jury have been diminished. The grand jury has gone. The property qualification for service on a jury has gone.
It would be easy for all of us, from our own personal experience and from the experience of friends who sit on modern juries, to form the view that decisions are reached sometimes by people who are illiterate, sometimes by people who have not understood the arguments, and sometimes by people who themselves are members of the criminal class.
Yet I accept, despite all those sources of anxiety and lack of confidence, that the jury system works for the reasons that others wiser than I have advanced tonight. It works because it is final, because it is accepted, and because, surprisingly often, it produces the right result.
Today, more than ever in the past, if we put the jury men and women in the witness box, we shall find that they are less articulate, less experienced and less sophisticated than their predecessors. The stories that will emerge, even if they are stories retailed by professors, will inevitably undermine the confidence in the system which has worked for so many centuries.
931 I told my hon. and learned Friend the Member for South Fylde that I would support him in the Lobby, and I said as much to the Whips. I hope that it will not be necessary to put the Government on the defensive in this matter, because I greatly hope that my right hon. and learned Friend the Attorney-General will be able to say something in his reply that will remove the need for us to divide.
I am certain that those of us who are not leading lawyers will feel, just as our professional friends and colleagues in the House clearly feel, that the jury system would not survive the kind of spotlight that is inherent in the clause as drafted. I add my voice to those better qualified advocates in urging that the modification in the amendment be accepted, or at least not rejected, by my right hon. and learned Friend.
§ Mr. Donald Dewar (Glasgow, Garscadden)
This evening we have heard splendid oratory and fine sentiments. I get the impression that the House is in favour of the jury system. I should express my own interest, in the sense that I am a solicitor in Scotland, and have on many occasions appeared before juries in that country. I have also been the recipient of publication of information from jury rooms on many occasions, because there are few jury trials, as the Solicitor-General for Scotland will know, where those connected with it do not know the voting in the jury room shortly after the verdict is reached. That may be shocking, but it is true. I hasten to say that it is only the numbers that one knows, but technically I suppose that that would be a publication of matter that would be caught by clause 9.
There is a tendency in all omnibus law reform Bills—I use the word "omnibus" in the sense that they apply to both Scotland and England—to forget that there are separate traditions north and south of the border. Although I admire what my hon and learned Friend the Member for Abertillery (Mr. Thomas) said about 12 good men and true, in Scottish criminal trials it is 15 men, and there is nothing necessarily sacred about the round dozen. As far as I know, the 15 are as good or as bad, as efficient or as inefficient, in legal terms, in Scotland as they are in England.
I defend the concept and institution of the jury. It is a good way to decide matters in a criminal court. I am not entirely starry-eyed. Indeed, I might be cynical enough to say, as someone connected with defence work, that the jury always gives one a fighting chance. Perhaps that argument would not appeal to the public. It is a time-honoured system and there is no way in which I want to see it attacked, endangered or replaced. I stand alongside those who defend the jury system.
I am not sure that clause 9 represents quite such a direct and immediate threat as some of my colleagues have suggested. We have had jury service for many centuries. The fact that on occasions there have been revelations about what did or did not happen in specific trials has not brought the whole system crashing down like a house of cards. I agree that protection is of paramount importance. It is vital that those who do jury service are reasonably sure that what they say in the sanctity of the jury room in the private consultations that take place will remain private and not become public knowledge.
I agree with those who have said from the Opposition Front Bench that we would prefer amendment No. 6, 932 which would remove subsection (2). That would be sensible. It would leave the position in the clear and simplistic sense that any publication was a contempt.
Contempt may be technical, and prosecutions may not be mounted. Under subsection (4), in England, although not in Scotland, the consent of the Attorney-General is required before proceedings are instituted. In many technical cases no one would bother to proceed, even in Scotland, and the matter would die the death. There is virtue and simplicity in this case. There is virtue in editors knowing exactly where they stand. Publication of details of what happened in the jury room should be contempt, and publication would then be at peril. People would know that they were in peril if they proceeded to go to press or to publish in whatever way was open to them.
I have a great deal of sympathy with some of the general arguments about amendment No. 14, although I prefer the Opposition amendment. We are now on Report, and unless we find some way to move a manuscript amendment we are stuck with the form of words in the amendment. That will not do for Scotland. One of the key sections in the amendment is thatthe consent of the Attorney General to the publication has been obtained before any such particulars are solicited.
§ Mr. Edward Gardner
My understanding is that if the amendment is carried tonight that will allow those in another place to look at it again. However, if no amendment is carried there will be no such opportunity.
§ Mr. Dewar
I understand that point. Perhaps I have not thought through my argument sufficiently. I suppose that it would be possible to put the matter right in another place. If the amendment finds favour, my brief remarks might be a hint to those in another place. As it stands, the consent of the Attorney-General is an integral part of the argument. It is an important plank on which the argument is based. It would be a strange anomaly if proceedings in Scotland required the consent of the Attorney-General for England, there being no such animal north of the border.
The matter could be put right simply by including some reference to the Scottish Law Officers and their consent. However, that would create an anomaly because subsection (4), which stands regardless of whether any amendment is successful, specifically rules out the involvement of the Law Officers in any proceedings for contempt under clause 9.
It would be rather strange if we were to accept the Scottish Law Officers' involvement, which would be implicit if we were to accept amendment No. 14, when we have specifically excluded it in subsection (4). This may sound a pettifogging argument but it is of importance. There will have to be changes to accommodate the fact that this is United Kingdom legislation.
In view of the attitude that we have properly taken, that we do not need in subsection (4) to have the Law Officers' consent in Scotland before any proceedings are instituted, it would seem rather inappropriate to incorporate the Law Officers in amendment No. 14 if the amendment were to find favour. That is a subsidiary argument but it buttresses my general conviction that amendment No. 6 is preferable to amendment No. 14, and I shall vote accordingly.
§ Mr. Budgen
The House should be extremely grateful to my hon. and learned Friend the Member for South Fylde (Mr. Gardner) for introducing the amendment. It is the strange feature, and in some instances the weakness, of the 933 Tory Party that by loyalty it often supports changes of a dubious constitutional nature when they are advocated by Governments that it supports. We know perfectly well on occasions when we come to support retrospective legislation, or allow it to go through on the nod, that we would be screaming blue murder if a Labour Government were to produce such legislation. I suspect that if the proposal before us had been brought forward by a Labour Attorney-General, the Conservative Benches would be well packed and noisy.
It was well said by the hon. and learned Member for Abertillery (Mr. Thomas) that this is an important discussion about the nature of the jury system. I am grateful for those who have spoken, as it were, for the man in the street and have said "I am no lawyer and I have no professional axe to grind, but I wish to support the jury system in its present form because I believe that it is a vital part of our constitution." Perhaps my view is distorted as I am a lawyer. However, I speak not as a lawyer but as one who cares very much about the support of our existing constitutional practices.
The Tory Party should not be interfering with the important parts of the constitution without the strongest criticism being exerted on any change and without the certainty that there is an overwhelming force throughout the country, as manifested by all sections of the community, that the existing constitutional position is unsupportable and must be changed in exactly the way that is proposed.
This is a change in the fundamental nature of the jury. My right hon. and learned Friend the Attorney-General said, as was certainly the case, that the decision in the New Statesman case was unexpected. Of course it was unexpected. It may be that there was a minority within the legal profession which anticipated it but the generality of us understood the law to be as expressed by Lord Devlin in the passages that the hon. and learned Member for Abertillery read out. It was a shock to us that the minority view prevailed in the New Statesman case. My argument is that we should return to the position that most of us believe to be right before that case.
Let us consider the most important sentence in the judgment in the New Statesman case. It reads as follows:provided that what is done does not diminish the finality of the verdict.There are many other qualities about the verdict other than its finality. There is, for example, the value of the verdict. The principal value of the verdict is that it has no reasons attached to it. Many hon. Gentlemen have dealt with that point from the point of view of the jury. I shall deal with it for a moment from the other points of view, firstly from the point of view of the accused.
If an accused man at present is acquitted, there is no question of any tiresome researcher coming along and showing for the sake of argument that he was acquitted because three chaps on the jury happened to believe that all police evidence is bent, that those people therefore wore down the jury over a long period and, eventually and reluctantly, the jury accepted that prejudiced view. There is no reason attached to the verdict of not guilty. Thus, no distinction is to be drawn by the public as a whole between one verdict of not guilty and another.
934 9 pm
If reasons are given as a result of some tiresome researcher having interviewed at length all the members of the jury, distinctions may be drawn. The accused may be known in the street as Fred Bloggs, the bloke who was acquitted of rape because a number of men on the jury did not like women. This is a serious matter because there would be no question of the finality of the verdict being in any way overturned, but the value of the verdict, most of all for the accused person, would have been much diminished by the activities of the researchers.
There is no analogy whatever between the role and verdict of the jury and that of the judge. The judge is trained to give reasons in an analytical and dispassionate way. The jury, which plainly represents the passions, idiosyncracies and irrationalities of all of us, has no such training. Judges must give reasons, for if no reasons are given, there can be no proper appeals procedure. That does not apply to the jury system. The process of allowing research damages it.
Secondly, I should like to consider the matter from the point of view of the public as a whole. Perhaps I shall gain a little support from Opposition Benches. I have argued and I shall continue to argue that it would be wise if there were a test of allegiance which applied to the 2 million people from the New Commonwealth and the ethnic minority. One of the reasons why I argue that is that I believe that there may be some evidence that on occasions members of the black community are influenced by their colour in the decisions which they make when sitting on juries.
I should not want that view to be investigated by any tiresome researcher. Whatever my views about the desirability of a test of allegiance, I believe that the existence and integrity of the jury system are far more important. If we start having a jury system which could be investigated by researchers, my view might be investigated. If it were investigated, that would undermine the whole jury system as well as damage the cohesion of our society.
The whole system of allowing any research is dangerous. Therefore, I believe that my hon. and learned Friend's amendment goes too far. It admits of the possibility of research and also of disclosure. If there is to be any attack on the integrity on the jury system, there should be specific legislation for it. I do not believe that, if there is to be any disclosure, that disclosure should be allowed by the Attorney-General. If disclosure were allowed in that way, it would inevitably bring the Attorney-General into the forefront of the political battle.
The Attorney-General has a delicate and very important role, to be not a party politician but a lawyer. He should have a quasi-judicial role and be above the vigour and vulgarity of party politics. If he were in a position to give permission for disclosure of the secrets of the jury room, he might imperil his very important independent position. Members of the Tory Party who, above all, are pledged to consider the integrity of the great pillars of the constitution should think very carefully before deciding to muck around with the jury system. We were not elected to do that. We should not do it by a by-blow, simply because my hon. and learned Friend the Member for South Fylde has alerted us to this most unfortunate proposal. This is not the kind of legislation that the Tory Party should be bringing in on an ill-attended night.
§ Mr. Bob Cryer (Keighley)
Some of the comments in the debate have been startling. For example, I did not think that any lawyer would require an exposition by jurors to decide who was the best person to put into the witness box. I thought that lawyers were employed to make that decision themselves.
There has been some robust defence of the jury system, which I share. Indeed, some Opposition Members were greatly concerned when jury vetting was disclosed by the Crown and the same information was not made available to the defence. I do not recall those making such robust claims for the independence of the jury system tonight expressing the same vigorous concern about jury vetting, which we regarded as interference by the Crown in the ability of a free jury of 12 peers of the accused to make an assessment of the case.
Hon. Members who have stressed the importance of the jury system have my support, of course, but we should consider exactly what the provision does. When the New Statesman case was being considered and it appeared that the New Statesman would be prosecuted, I made the plea that there should be legislation. It should not be a matter for the courts and for small circulation serious journals to prejudice their very existence by going through expensive cases to decide the law.
If, after proper legal advice has been taken, there is still doubt, it chould be clarified by Parliament and not by expensive decisions. Having heard the arguments in the earlier debates, however, I wonder how anybody can get any clear legal advice from lawyers.
In the present debate, I admit, there has been unanimity among the lawyers that the clause will not be helpful. That is one reason why legislation should never be left to lawyers. In earlier debates, however, lawyers have expressed completely opposite views with absolute certainty and conviction. No doubt that is one reason why so many of them are gainfully and indeed lucratively employed. It is importanc that Parliament should legislate to clarify the position.
The amendment provides:This section does not apply where…the publication does not identify the particular proceedings in which the deliberations of the jury took place or the names of particular jurors, and does not enable such matters to be identified".Therefore, the claim that specific cases would be brought out into the public argument, and that there would be a case for a retrial, or that on retrial particular aspects of a case would be put forward to give lawyers an advantage so that they could argue the case in a certain way, simply does not apply.
As I understand the clause, it would be sufficient if any indication were given of any particular juror and any particular trial on which a comment was made. Those matters cannot be justified, and rightly so, because it is important that we understand that criticisms can be advanced about jurors being badgered and selling stories to newspapers, and we do not want that.
But there is another side to the matter. There should be room for serious comment on past cases. If the clause is rejected, that room for comment is completely ended. The jury system has existed for several hundred years and, as has been said, it is robust. It has even survived the abolition of the property qualification. The hon. Member for Fulham (Mr. Stevens) seemed to regard that abolition as a blow to the standing of jurors. If it can withstand with fortitude all these changes, it must be a robust system, and 936 that very robustness should enable it to withstand some comment. It is important for the mass of people to understand the general but not the specific nature of juries in action.
§ Mr. Jeffrey Thomas
Would my hon. Friend agree that democracy has also lasted for centuries but that it is a fragile flower which has to be constantly and carefully tended?
§ Mr. Cryer
We all have to defend democracy. At the same time, we have to remember that democracy is being developed. There are many aspects to democracy. I shall not be tempted down that road because it is a side issue, but it is worth noting that democratic development has been taking place in the twentieth century. We have to nurture democracy. It can also be strengthened in various ways. I should have thought that subsection (2)—which amendment No. 6 seeks to delete—would not harm the jury system. If it did, I would not argue for its retention.
I support the jury system and want it retained. I argue against any attempt to erode the jury system. But in the cause of better understanding within our democratic society, comment of the nature permitted by subsection (2) would be helpful and not injurious. The clause in no way allows the identification of individuals connected with the case. It allows only general comment, based on information which has been received for the purposes of such general publication.
As clause 9 sets out a number of limitations on the position of jurors, quite correctly, because of the way in which the position of a juror could be prejudiced, I suggest to the Attorney-General that he might consider the position, with the possibility of that same pressure being removed from witnesses and defendants by extending the categories set out in paragraphs (a), (b) and (c) of clause 9. There is an argument that cheque book journalism has been rampant in one or two cases recently, in particular in the Yorkshire Ripper trial.
Indeed, the New Statesman article, on which the clause is based, contained a defence of the robustness of the jury system, in that the jury were able to recognise the inbuilt prejudices of a person who had entered into a financial contract with a newspaper. In this instance, I think that it was the Sunday Telegraph.
Therefore, there is a connection. I tabled an amendment that has not been selected. I do not criticise that decision, because on second sight I recognise that it was inadequately worded. However, it might be worth considering whether this type of clause can be used to ensure that witnesses are not placed in a position where they might seek to protract a trial or exaggerate their status to obtain financial gain.
As a whole, clause 9 is beneficial. It clarifies the position and enables publications to gain greater certainty in the law, subject to the enormous pitfall and hazard of interpretation by lawyers. Judged by tonight's proceedings, that will always be a difficulty. It also enables research and publication to take place, whilst protecting the jury's secret deliberations. As has been pointed out, the secrecy of the jury must be safeguarded.
We must try to obtain a balance. On the one hand it is desirable to produce a limited amount of general information and on the other it is necessary to protect 937 jurors from being badgered in the way that has been described. On that basis, clause 9 is a reasonable compromise and will certainly have my support.
§ Mr. Lawrence
I have listened to some outstanding speeches tonight. But the nearest that I came to thinking that the Government might give in to those of us who are behind the amendment was when I heard the speech of the hon. Member for Keighley (Mr. Cryer). When my right hon. and learned Friend the Attorney-General has to rely on the sole support of the hon. Gentleman, he is in a bad way.
The hon. Member for Keighley has chosen a bad night on which to pursue his usual vendetta against lawyers. The legal mafia in this House is engaged not in protecting its own interests with one voice, but in protecting the interests of the people. Tonight's activities could not underline more the futility of the hon. Gentleman's claim—which he continually makes—that hon. Members should not engage in outside activities. It has been practising lawyers who have identified the evil represented in the clause. They have advanced the arguments for its defeat. Great credit is due to the hon. and learned Member for Abertillery (Mr. Thomas) and to the right hon. and learned Member for Warley, West (Mr. Archer). In Committee they advanced strong arguments for the clause's omission.
With his usual modesty, my hon. and learned Friend the Member for South Fylde (Mr. Gardner) made a speech that relied on the arguments of the Criminal Bar Association and the Senate of the Bar and Inns of Court. However, he has the wisdom, experience and distinction at the Bar to advance the cause from his experience. If there is one thing that practising members of the Bar can do here tonight it is to put the weight of their experience at the Bar behind the need to support the jury system.
I am less modest, less successful and less eminent than my hon. and learned Friend, yet I think it important—even for me—to say that the Government are lighting a fuse, none the less destructive for being a slow burning one, which could easily destroy the jury system as we know it. Faced with the need to make a change as the result of the New Statesman case or, as the hon. and learned Member for Abertillery said, to plug the gap, the Government have made the wrong charge and plugged the wrong gap. They have refused immunity for publication and extended it to researchers.
In the opinion not just of the Criminal Bar Association, the Senate of the Bar and Inns of Courts, and the judges, most importantly represented by the view, expressed through my hon. and learned Friend today, of the Lord Chief Justice, but in the view of most of us who practise before juries this is a very dangerous measure. The jury system, for all its age and veneration, is quite a delicate plant. I agree with my hon. Friend the Member for Fulham (Mr. Stevens), who made one of those important contributions that the layman should make in a debate like this, that the jury system is not strong enough to withstand the assaults that may be made upon it if this clause is allowed to continue in its present form.
I give two reasons why, in my experience, I believe that is so. The first is that from time to time jurymen are threatened. As I understand it, it is because jurymen were so often threatened that the pressure came for the introduction of majority verdicts. There are ways in 938 serious criminal trials of getting to a jury. We must do nothing that makes the prospective juryman fear serving on a British jury. If the word were to get around that anybody may approach a jury as long as it is not for the purpose of publication it would not be long before people who ought to be sitting on our juries were claiming exemptions because they were frightened.
All of us who practise at the criminal Bar know from our own experience and knowledge that there have been juries who have come to verdicts because they were frightened. I give one example, where a juryman on a bus who happened to meet a solicitor in a very important murder trial told him that the reason the jury had come to the verdict acquitting the man of murder in the face of the strongest evidence was that the jury were terrified. If that can happen under the existing system with that possibility fortunately narrowed by the care and vigilance of the police and the supervision of the court, we must be very hesitant to open up the doors because we may find that the doors become flood-gates into which fear flows for future juries in this country.
The second reason why we must be careful, in my experience, is to do with the bona fide researcher. We heard in Committee that it was the mala fide researcher that we must fear, the one who was out only to undermine the jury system by malice. It is not. It is the bona fide researcher we must also fear because the bona fide researcher will not research because he wants to show how the strong lamp of freedom still glows in our society. That is not what happens. The jury system is full of warts. It is full of faults. It is full of matter for criticism. One can have a field day digging around for the thoughts and actions and views of jurymen.
What is the cumulative result of all that? It is to pile up the relentless, remorseless criticism that the bona fide researchers will build up over the years until it will be possible to turn to the British public and say "Look what you have got judging your cases". We have seen how that can pervert the system of justice if we look at some of the States of America. I can only advise some of my colleagues, when they are next in the United States, to speak to judges and practitioners about how the jury system can be subverted by attacks upon it from whatever sources so that justice is not necessarily done. Principally they have the attack which says that they can challenge jurymen until they have the jury of their choice.
Once we can choose a jury we are three-quarters of the way to choosing the verdict. That is precisely what happens in many American courts and that is why American judges admire our system. It is of no use thinking that the bona fide researcher will benefit the jury system. If anyone asks what is the use of a system that is so maggoty that it cannot bear the light of examination, I make the remark made about the other pillar of our system, democracy. When Winston Churchill was asked what he thought of democracy, did he not say that it was the worst of all possible systems—until we examine the alternatives? That is what is wrong with the criticism of the jury system. It is impossible for us to devise a better system.
To let the judges make all the decisions would be a matter about which all practising lawyers and members of the public would disagree. We hear attacks upon lawyers and upon judges from Labour Members who accuse judges of being a class-ridden sector of society. What confidence would be reposed in judgments made in criminal cases 939 concerning the freedom of the individual by some Labour Members who are so quick to criticise the judges when it suits them to do so?
§ Mr. John Ryman (Blyth)
Is not the hon. and learned Gentleman exaggerating the potential threat to the jury system? I sympathise with his general arguments against the clause and I am in favour of the amendment, but is not there a case, for example, in a long and complicated trial involving a commercial fraud for not having the jury system?
§ Mr. Lawrence
If I am exaggerating there can be no harm in showing an abundance of caution. It might be a good idea to take notice of it for it is not just my exaggeration. It is the exaggeration of Lord Devlin, who was extensively quoted by the hon. and learned Member for Abertillery. It is the exaggeration of the Lord Chief Justice and of the practising members of the Bar who make up the Criminal Bar Association and the Senate of the Bar and Inns of Court. If we are all exaggerating, I beseech the hon. Member for Blyth (Mr. Ryman) to realise that out of an abundance of caution we might be careful before we take this step. To find out too late that we were not exaggerating would be the worst thing that could happen.
The reason why judges are not acceptable as the sole judges of the liberty of the individual may have deep roots in the class system of our society. But it is not just that the lawyers feel confidence in the jury system. Accused persons feel confidence in the jury system. When they are convicted by a jury, they consider that they have less reason to complain; they feel safer in the hands of ordinary people.
It has been said by the hon. and learned Member for Abertillery that we do not know wherein lies the strength of the jury. We do know. It lies in the strength of ordinary people. Accused persons who are tried on matters which affect their liberty would rather trust the people. Would that more Members of Parliament trusted the people more often. Perhaps we would then have sounder laws.
The people who are accused of crime trust the jury system. If they trust the jury system, they accept the verdict. If they accept the verdict, there is a more peaceful conclusion even to the finding of guilt and the sentencing to imprisonment. A person will go to prison with fewer chips on his shoulder if he is convicted by a jury rather than by a judge. Many of us who practise in the courts know that there are judges who are individualistic or even eccentric.
For those reasons, the practitioner in our courts must be aware—whether it is slightly or greatly exaggerated—that there is more than a grain of truth in the fear that is too widely expressed that this measure lights a fuse which could, even if it does not certainly, demolish the jury system as we know it. My hon. and learned Friend the Member for South Fylde and my hon. Friend the Member for Orpington (Mr. Stanbrook) have proposed amendment No. 14. I think that it is a pretty poor amendment. I agree with the hon. and learned Member for Abertillery, who has striven so strongly both in Committee and in the House. I would not let anyone near a jury, with the Attorney-General's permission or not. However, we live in a real world and that sometimes requires compromise. If my right hon. and learned Friend finds it impossible to accept the thesis that bona fide researchers should not be able to go automatically as of right to a jury, 940 perhaps he will consider that if he has the power to say yea or nay to a bona fide researcher that might meet our objections.
In the spirit of compromise—a matter which is dear to the hon. Member for Keighley—I support and advance that amendment. I hope that my right hon. and learned Friend will look at it again, because we are concerned here with the sanctity of the jury system. We have been given the authority and the trust of the people to make sure, among the many other things that we have to do, that the sancticity of the jury system is maintained.
§ Mr. Christopher Price
I cannot remember an occasion when hon. Members, who express so much faith in an institution, have by their speeches shown how little faith they have in it and how unwilling they are to expose it to the normal winds to which institutions are exposed. We shall not get far in the debate if we have a competition about who believes in the jury system most. We all believe in the jury system for the complicated and different reasons that make up the good things about a jury. Why we do is not capable of analysis. I passionately believe in the jury system. It is one of the foundations of British democracy.
With my hon. Friend the Member for Keighley (Mr. Cryer) and a few people on the Leftish side of the Labour Party, I spent many years trying to prevent interference with the selection of juries and attempting to maintain the random selection of juries. In our own way, we believe in the jury system. It is stupid to say that because someone is for or against an amendment proposed by the hon. and learned Member for South Fylde (Mr. Gardner), he believes more or less in the jury system.
I also agree with the hon. and learned Member for Burton (Mr. Lawrence), as I do not have much faith in academic legal researchers. Much trivial stuff is talked about them. I am not so scared about it as others appear to be, but I do not think that it is all that marvellous. Some lawyers, including my hon. Friend the Member for Blyth (Mr. Ryman), would like to get rid of the jury system in some trials. The Supreme Court [Lords] Bill suggests that.
§ Mr. Jeffrey Thomas
My hon. Friend will be pleased to hear that on a vote taken in Committee the Government were defeated.
§ Mr. Price
My ignorance is due to my absence from this place. I cannot keep up. I am terribly pleased to hear that. At least there was an attempt by the Government to get rid of juries in that sort of case, and the proper democracy of a Standing Committee has wiped the proposal away. That is a first-class decision.
There are two sorts of lawyers. Some lawyers would like many cases decided by judges alone. Apart from my hon. Friend the Member for Keighley, there is widespread agreement in the Chamber that juries should decide cases where possible and judges should not. However, I am not persuaded that the amendment is right. I stick to my position in Committee. Clause 9 is about right. The Attorney-General has got it about right.
In an article in The Listener in February of this year, Geoffrey Robertson, a distinguished but still rather junior lawyer, stated:The Thorpe trial makes its contribution to the Contempt Bill in the form of a brand-new crime of publishing jurors' accounts of their deliberations in identifiable cases. It may be desirable to 941 spare defendants acquitted in notorious trials the double jeopardy of jurors prepared to announce that their doubts, though reasonable, were not many. But there are cases—the Thorpe trial was one—where the public interest can well be served by an identifiable revelation. There, it will be remembered, Peter Besse11 was 'bought' by the Sunday Telegraph with an escalation clause in his contract which doubled his money on conviction. Demands to outlaw this practice were met with arguments that jurors would not be influenced by it—until the New Statesman interview with a juror demonstrated that a deal had, in fact, effectively discredited Bessell's testimony. That revelation served the public interest because the trial was identified. The moral of the story is, surely, to extend the law of contempt to punish newspapers which make pre-trial financial deals with witnesses, rather than those which expose the evils of such deals in the most effective way. This new crime requires at the very least a 'public interest' defence.There is no public interest defence in the clause as it stands, and I am sorry about that. We could have done with it to cover such a case.
I support the clause as it is, not because I am against juries, but because I have more faith in them than those who put down the amendment. We do not need to be so solemn about jurors. After a recent long trial journalists and jurors relaxed together in the pub. Jurors that I have met there and on other occasions seem to be ordinary people, who take their job extremely seriously and do it with greater dedication than almost anything else in their lives. It is a tremendous experience for them.
For that reason, I believe that there should be some exposition, particularly in the press—I am not talking about research—of the broad shape and feel of being a juror, provided that there is no pressure on people to reveal their experience if they do not wish to and that there is no attempt to identity the case.
There is then the question of the journalist juror. Many of my journalist friends have at one time served on a jury. Their information about what it is like to be a juror involves no question of pressure or disclosure. It is within them. Their great desire is to write a column for the newspaper saying that they served on a jury and, without saying what the case was about, describe their experience. They might say that it was an exhilirating experience in which 12 strangers came together and took their duties tremendously seriously. That sort of exposition of what a jury is like can only strengthen the jury system and not weaken it.
I fear that the amendment proposed by the hon. and learned Member for South Fylde, whose reasons for tabling it I fully understand, would be harmful to that sort of journalism. People are often frightened of serving on a jury. They approach many hon. Members to ask how they can get out of serving on a jury. If there was more of that sort of journalism I have described, people would be less frightened of serving on a jury. I believe that clause 9 is about right.
§ Mr. Geoffrey Johnson Smith (East Grinstead)
The hon. Gentleman and I agreed on a number of matters in Committee. I accept fully the right of a journalist to write about his personal experiences as well as the experiences he might cover as a reporter. Is the hon. Gentleman not in danger of inviting the journalist to abuse his privilege, as a juror, of entering into private and confidential discussions and subsequently revealing them, claiming his right to do so as a journalist? I should have thought that 942 people could be scared off serving on a jury if it was known that a journalist, who was also a member of the jury, might reveal private deliberations to the public.
§ Mr. Price
At the end of the day, one has to trust the researcher, journalist or whoever one is dealing with. The literature already written about experience of serving on juries has on the whole strengthened rather than weakened the system of jurors. One cannot in the final resort stop people writing fiction about juries. They might write dramas or drama documentaries for television that get near to fact but are still officially fiction.
My broad view is that the amendment is over-solemn. There is no point in being frightened by abuse by journalists and researchers. Many of them may not get matters right, but the clause contains strong penalties if the juror is identified. To go as far as the amendment suggests would make jury service almost so solemn and ecclesiastical that people might be frightened off serving.
There is a genuine division in the House on this issue that does not seem to run exactly along party lines. My own Front Bench is inclined to support the amendment of the hon. and learned Member for South Fylde. One or two of us would not be inclined to support him. There is a great division on the Government side. My inclination is not to support the hon. and learned Gentleman. The Attorney-General might find himself accompanying me into the Lobby.
§ Mr. Ivor Stanbrook (Orpington)
I strongly support the amendment moved by my hon. and learned Friend the Member for South Fylde (Mr. Gardner). In every jury room in the Old Bailey there used to be a sign with the message, if I recall the wording correctly, "Her Majesty's judges wish to remind jurors of their solemn obligation not to divulge afterwards to anyone what passes during their deliberations in the jury room." I used to take that for granted, and, like a number of others, I used to wonder what legal authority there was for that solemn injunction from Her Majesty's judges.
Of one thing I was sure: that it was necessary, a matter of common sense and something that one took for granted as an important prop in the jury system that the proceedings and what happened in the jury room were secret. That attitude was held by everyone until the New Statesman case, when it appeared that the law did not support that general proposition.
Elsewhere in the Old Bailey—on the ground floor in the old building—there is a tablet on the wall to the courage and fortitude of a certain jury. If I remember the inscription correctly, it says that the jury, which in 1611 tried William Penn for the offence, I think, of preaching sedition, refused to return a verdict of guilty. Indeed, it refused to return a verdict at all. Apparently, the judge had insisted on a verdict of guilty, and for their pains the jurors were imprisoned. They insisted on their verdict and never returned the verdict of "guilty" that the judge wanted.Those two facts run together: the one was testimony to the other. The one was necessary for the observance of the other.
The Government are making a fundamental mistake in retaining the wording of the clause as drafted. The average juryman derives his strength and protection from the very anonymity which the secrecy of proceedings in the jury room gives him. The very mystique of the jury room and 943 the functions of the juror in important trials are important factors in our jury system and in its excellence. Every juryman sitting in the jury room believes himself to be part of a separate institution, applying his mind without fear of favour to the question of the verdict which is appropriate, and is able to do so because—by virtue of what we thought until recently was the protection afforded him by the law—he was entitled to exercise his own judgment on the matters that he had witnessed in the court room.
In the course of the trial members of the jury have to enter into the lives of people who previously were strangers to them, consider their thoughts, feelings and actions, share perhaps something of the drama of those lives and of a particular incident or series of incidents that occurred, perhaps derive some interest and satisfaction out of what they are doing and in the end come to a judgment.
Those of us who have been in court and near jury rooms often hear great commotions. From the noise that one can hear some distance away, it appears that members of the jury sometimes almost come to blows in their deliberations. They are engaged in taking a kind of snapshot of a section of the life of the defendant they are trying.
It is important to us, to our system of law and order and to justice that they take that snapshot, make a decision, return their verdict, and then have done with it. It is the finality that follows the verdict that guarantees the independence of the system. If there were any possibility that the verdict could be questioned in the way that the clause provides, it would destroy not only the value of the system, but the protection that every jury man feels as an anonymous person doing a job on behalf of the public. That damage to the integrity of the system, which is inherent in its secrecy, must be prevented.
§ Dr. Glyn
I shall be brief. As in the case of the right hon. Member for Orkney and Shetland (Mr. Grimond), it is a long time since I was called to the Bar. Tonight I speak purely as a layman.
The House, with one exception, has recognised the importance to Britain of the jury system. It has also recognised the importance of jurors feeling that they are protected. That importance is realised in the performance of the duty that those who serve on a jury take seriously. As the hon. and learned Member for Abertillery (Mr. Thomas) said, that system replaced an obnoxious system. Obviously, a jury system has imperfections, but any attack on that system will be a grave injustice. The country would not be pleased if it thought that we were in any way attacking either the system or the integrity of those who sit on the jury.
As my hon. Friend the Member for Orpington (Mr. Stanbrook) said, the importance is the finality of the matter. Once a jury has decided, that is the end of it. There is no argument about what they decided, how they reasoned and whether colour or faith played any part. When called upon to choose whether to be tried by a jury, many elect that course. That is because they believe, rightly, that they will have a better trial.
I raised an important point with the hon. and learned Member for Abertillery. I am sure that my right hon. and learned Friend the Attorney-General will pay attention to it. I refer to the question of retrials. If a retrial takes place there is a danger of some leakage of information that might affect the reasoning, the legality and the background of the second trial.
944 My right hon. and learned Friend is here not as a Conservative Member of Parliament, but as a Law Officer of the Crown to advise the House. When he replies I hope that he will take into account the views that have been expressed from both sides of the House on a matter of considerable importance. He would not be the first Attorney-General to stand up and say "I am a Law Officer of the Crown first, and my judgment must be reflected not in the political views of my party but in my position as legal adviser to the Government." I am sure that he will do that.
Many in Britain regard jury service as important. They have come to accept all its imperfections. I hope that my right hon. and learned Friend will be able to help my hon. and learned Friend the Member for South Fylde (Mr. Gardner) not to bring the matter to a Division.
§ The Attorney-General
I start by referring briefly to Scotland. Amendment No. 14 would have to be amended if it were to apply to Scotland. Secondly, the New Stateman case is not binding. Thirdly, in Scotland a serious view of interference with jurors is taken throughout.
I regret very much one sentence in what was otherwise, if I may say so, a splendid speech by the hon. and learned Member for Abertillery (Mr. Thomas), when he spoke about the Government mounting a deliberate attack on the jury system. I hope that on reflection he will regret saying that. Nothing could be further from the truth. Anyone who knows me and my noble Friend the Lord Chancellor will know that we have a tremendous belief in the jury system. To say that the Government are guilty of a deliberate attack is such nonsense that I intend to say no more about it.
Tonight I feel very lonely. It seems that I have two friends, the hon. Members for Keighley (Mr. Cryer) and for Lewisham, West (Mr. Price). I have no need to say that with friends like that—I shall not complete the sentence, because I am grateful for any support from wherever it may come.
The matter that we are discussing is one that the Lord Chancellor has considered with the greatest care. This is the Lord Chancellor's Bill. We are dealing with a matter that has caused him and me great anxiety. Happily, I am still a practising member of the Bar and a great deal of the work that I have done since I took silk has been in the criminal division.
I am conscious of the dangers of doing anything that might interfere with or diminish the jury system upon which we all rely. I am rather worried when I hear my hon. and learned Friend the Member for South Fylde (Mr. Gardner) talk about sowing the seeds of the end of the, jury system. The hon. and learned Member for Abertillery asked: "Why risk 12 versions of jury deliberations? There would be no finality." I do not understand that argument. If the clause as drafted prevents identification, either of the case or the juror, we shall not get 12 versions of jury deliberations that can be identified as coming from the 12 members of the same jury. It should not interfere with finality.
The clause seeks to go back to the position before the New Statesman case. That is all that it seeks. It does not permit jurors to be interfered with, it does not allow corrupt practices with jurors, it does not allow threats to jurors and it does not allow anything that would be likely to pevert the course of justice. None of the restrictions that 945 existed before the New Statesman case has in any way been diminished. Indeed, the amendments that I moved before the debate on amendment No. 14 began strengthened the restrictions. There can be no doubt that the existing law of contempt in respect of improper conduct of jurors is exactly what it was before the New Statesman case. It will remain exactly the same when the Bill is enacted.
What are we doing? I have to say that amendment No. 14 is a blunderbuss. It would make it a contempt for any juror to disclose anything at all of a jury's deliberations. It would make it a criminal offence for a solicitor to sit in a bus and to be told by a juror "Do you know what happened in the case that I have just heard?" Under the amendment that would amount to criminal contempt. It would introduce the concept of technical contempt. It would not matter if the disclosure did not identify the case or if disclosure were made on a purely social or domestic occasion. It would not matter if it were made to the wife or husband at the supper table. Some people may dine out for a month as jurors hearing a notorious case. However, to say a word over the sherry, over the dinner table, in the pub or in the cafe would, under the amendment, be criminal contempt.
§ Mr. Jeffrey Thomas
Surely the reality is that the Attorney-General would never give his consent, which is required under the amendment, to cases as trivial as discussions over a glass of sherry and so on.
§ It being Ten o'clock, the debate stood adjourned.
§ Question again proposed, That the amendment be made.
§ The Attorney-General
The argument is unattractive. It is being said that we are sorry that the drafting is sloppy, we are sorry that we are including in the amendment a number of people whom we do not wish to prosecute, but, although we have made them guilty or likely to be guilty of a criminal offence, we rely on the good sense of the Attorney-General to see that they are not prosecuted. Why not get the drafting right, so that those people are not covered at all?
The Bill excludes worries about jurors who will not identify the case or in any way lead to a lack of finality about it.
§ Mr. Lawrence
Will my right hon. and learned Friend confirm that, if there were enough support for amendment No. 14 or amendment No. 6, it is likely that their Lordships would be able to consider the question of juries, because my right hon. and learned Friend amended the clause when it came down from the Upper House?
§ The Attorney-General
The clause, having been amended, can be reconsidered in another place. If that happens, it comes back here, and there is a ping-pong situation. There is no doubt that that can happen.
The Criminal Law Revision Committee in 1968 was worried about the matter. It said in its tenth report thatservice on a jury is to some people an interesting occasion, and clearly there is no objection to jurors' discussing their experiences in a general way without identifying cases; and in any event there will inevitably be minor disclosures of a kind which, though they ought not to be encouraged, few people would regard as deserving of punishment.946 Amendment No. 6 is not so sweeping and has the advantage of being tremendously simple. It removes the exceptions that are now in the clause. Therefore, there can be no qualifications, no research and no publication. I know that that meets the objections of many people. As I said when moving my small amendment, there are three groups—those who follow and believe in the amendment No. 14 principle and that there should be some measure of strict control over research, those who believe firmly in the amendment No. 6 principle, and some who fall between the two stools. There is a strong feeling about that at the Bar and among people who are concerned with the matter.
Every time one considers the matter, one returns to ask what is the purpose of the clause. It is simply to return to pre-New Statesman days. What would have happened if the divisional court had found against Mr. Bruce Page and the New Statesman had said that it was contempt of court to publish the deliberations of the jury room and had not dealt with all the other matters that are extraneous to the purpose of the clause? Would these amendments to the Bill have been proposed? Through the clause I have sought to put us where we were before the divisional court made that odd decision.
§ The Attorney-General
It seemed to us that there were grounds for that view. There were precedents in the sense that there had been publication to an extent that was probably only properly known after the affidavit was sworn and the work had been done by the New Statesman. In those circumstances it seemed better that Parliament should have a chance to consider the matter rather than seek to overturn the decision. Usually, one likes to be reasonably confident of success before going to appeal.
There is another problem about amendment No. 14. I suppose that there must be someone to authorise this, but I do not welcome the choice of the Attorney-General. I am not keen on being either a kind of licensing authority or a kind of censorship authority. Inevitably, one would be one or other of those things, if not both, if the amendment were passed.
I maintain, as I said in Committee, that we should not fear genuine research into our jury system. I gave an example from the Legal Action Group bulletin of December 1979, which I believe should be compulsory reading for all pupils at the Bar. They could learn a great deal about how they should behave in criminal cases tried by juries.
In the end it must be for the Government, knowing the pressures that exist, and principally for my noble and learned Friend the Lord Chancellor, whose Bill it is, to decide, and for the House to say whether it accepts that decision. On balance, I believe that we have got it right. Strong views have been expressed from all parts of the House and, if I may say so, from people who know what they are talking about. It may well be, therefore, that this will be looked at again. I cannot give any undertaking that there will be any change of mind, and I should not wish to be thought to have said that. I undertake, however, that today's debate will be very carefully read.
§ Question put, That the amendment be made:—
§ The House divided: Ayes 72, Noes 126.950
|Division No. 223]||[10.08 pm|
|Alton, David||Jones, Dan (Burnley)|
|Archer, Rt Hon Peter||Kaberry, Sir Donald|
|Beith, A. J.||Leighton, Ronald|
|Bennett, Andrew (St'kp't N)||McCartney, Hugh|
|Best, Keith||McCrindle, Robert|
|Boothroyd, Miss Betty||McElhone, Frank|
|Brown, Hugh D. (Provan)||McKay, Allen (Penistone)|
|Budgen, Nick||Maclennan, Robert|
|Campbell-Savours, Dale||Maynard, Miss Joan|
|Canavan, Dennis||Millan, Rt Hon Bruce|
|Carmichael, Neil||Mitchell, R. C. (Soton Itchen)|
|Cook, Robin F.||Morris, Rt Hon C. (O'shaw)|
|Cowans, Harry||Morris, Rt Hon J. (Aberavon)|
|Craigen, J. M.||Newens, Stanley|
|Crowther, J. S.||Penhaligon, David|
|Cunliffe, Lawrence||Powell, Rt Hon J.E. (S Down)|
|Dalyell, Tam||Robertson, George|
|Dixon, Donald||Robinson, G. (Coventry NW)|
|Dormand, Jack||Ross, Ernest (Dundee West)|
|Ewing, Harry||Ross, Stephen (Isle of Wight)|
|Faulds, Andrew||Rowlands, Ted|
|Freud, Clement||Ryman, John|
|George, Bruce||Soley, Clive|
|Glyn, Dr Alan||Spriggs, Leslie|
|Golding, John||Stanbrook, Ivor|
|Graham, Ted||Stevens, Martin|
|Grant, George (Morpeth)||Strang, Gavin|
|Grimond, Rt Hon J.||Thomas, Jeffrey (Abertillery)|
|Hamilton, James (Bothwell)||Thomas, Rt Hon Peter|
|Harrison, Rt Hon Walter||Tinn, James|
|Haynes, Frank||Walker-Smith, Rt Hon Sir D.|
|Home Robertson, John||White, Frank R.|
|Hooley, Frank||Wigley, Dafydd|
|Howell, Rt Hon D.||Wilson, Gordon (Dundee E)|
|Hughes, Robert (Aberdeen N)|
|Johnson Smith, Geoffrey||Tellers for the Ayes;|
|Johnston, Russell (Inverness)||Mr. Ivan Lawrence and|
|Jones, Rt Hon Alec (Rh'dda)||Mr. Edward Gardner.|
|Alexander, Richard||Butcher, John|
|Atkins, Robert (Preston N)||Carlisle, John (Luton West)|
|Benyon, W. (Buckingham)||Carlisle, Kenneth (Lincoln)|
|Berry, Hon Anthony||Chapman, Sydney|
|Blackburn, John||Clarke, Kenneth (Rushcliffe)|
|Boscawen, Hon Robert||Clegg, Sir Walter|
|Boyson, Dr Rhodes||Colvin, Michael|
|Braine, Sir Bernard||Cope, John|
|Bright, Graham||Cranborne, Viscount|
|Brinton, Tim||Dickens, Geoffrey|
|Brotherton, Michael||Dorrell, Stephen|
|Brown, Michael (Brigg & Sc'n)||Douglas-Hamilton, Lord J.|
|Buchanan-Smith, Rt Hon||Dover, Denshore|
|Dunn, Robert (Dartford)||Neale, Gerrard|
|Eggar, Tim||Needham, Richard|
|Elliott, Sir William||Nelson, Anthony|
|Emery, Peter||Neubert, Michael|
|Fairbairn, Nicholas||Newton, Tony|
|Fairgrieve, Russell||Page, Rt Hon Sir G. (Crosby)|
|Faith, Mrs Sheila||Page, Richard (SW Herts)|
|Fenner, Mrs Peggy||Patten, Christopher (Bath)|
|Fletcher, A. (Ed'nb'gh N)||Percival, Sir Ian|
|Forman, Nigel||Price, C. (Lewisham W)|
|Fraser, Peter (South Angus)||Price, Sir David (Eastleigh)|
|Garel-Jones, Tristan||Proctor, K. Harvey|
|Goodhew, Victor||Pym, Rt Hon Francis|
|Goodlad, Alastair||Rathbone, Tim|
|Gow, Ian||Rifkind, Malcolm|
|Gower, Sir Raymond||Roberts, M. (Cardiff NW)|
|Gray, Hamish||Sainsbury, Hon Timothy|
|Griffiths, Peter Portsm'th N)||Shaw, Giles (Pudsey)|
|Hamilton, Hon A.||Shaw, Michael (Scarborough)|
|Hampson, Dr Keith||Shelton, William (Streatham)|
|Hannam, John||Sims, Roger|
|Haselhurst, Alan||Skeet, T. H. H.|
|Havers, Rt Hon Sir Michael||Speed, Keith|
|Hayhoe, Barney||Spence, John|
|Heddle, John||Spicer, Michael (S Worcs)|
|Henderson, Barry||Stanley, John|
|Hogg, Hon Douglas (Gr'th'm)||Steen, Anthony|
|Hunt, David (Wirral)||Stewart, A.(E Renfrewshire)|
|Jopling, Rt Hon Michael||Stradling Thomas, J.|
|King, Rt Hon Tom||Taylor, Teddy (S'end E)|
|Knox, David||Tebbit, Norman|
|Lang, Ian||Thompson, Donald|
|Le Marchant, Spencer||Thorne, Neil (Ilford South)|
|Lennox-Boyd, Hon Mark||Thornton, Malcolm|
|Lyell, Nicholas||Viggers, Peter|
|Macfarlane, Neil||Waddington, David|
|MacKay, John (Argyll)||Wakeham, John|
|McNair-Wilson, M. (N'bury)||Waldegrave, Hon William|
|McQuarrie, Albert||Ward, John|
|Madel, David||Watson, John|
|Major, John||Wells, John (Maidstone)|
|Marlow, Tony||Wells, Bowen|
|Marshall, Michael (Arundel)||Wheeler, John|
|Mates, Michael||Wickenden, Keith|
|Maxwell-Hyslop, Robin||Williams, D.(Montgomery)|
|Meyer, Sir Anthony||Wolfson, Mark|
|Mills, Iain (Meriden)||Younger, Rt Hon George|
|Mills, Peter (West Devon)|
|Moate, Roger||Tellers for the Noes:|
|Monro, Hector||Mr. Selwyn Gummer and|
|Murphy, Christopher||Mr. Carol Mather|
§ Question accordingly negatived.
§ Amendment made:No. 22, in page 3, line 30 at end insert
§ 'by virtue of this section'.—[The Attorney-General.]