§ 11.9 pm
§ Mr. Toby Jessel (Twickenham)
In the debate on the Loyal Address on 7 November, in reply to an intervention from me, my right hon. Friend the Home Secretary expressed concern about the current position on peremptory challenges of jurors. He was kind enough to say that he had read the speech that I had made the previous night in the debate on the Loyal Address, in which I put the case to curtail the right of peremptory challenge of jurors in Crown courts, especially in multiple cases with several defendants, which tends to handicap the police in their efforts to deal with violent and serious crime.
Before I develop that argument, may I please make two points clear? First, in the debate on the Loyal Address on 6 November I said:I do not blame defence counsel—they do their best for their clients within the rules. The rules are wrong, and it is up to us to change them.—[Official Report, 6 November 1985; Vol. 86, c. 92.]That is consistent with early-day motion 152 which was tabled by my right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle), together with several other leading and distinguished parliamentarians who are also lawyers.
My right hon. and learned Friend's early-day motion says:That this House reasserts that so long as the right of peremptory challenge to members of a jury exists then, in accordance with the traditions of an independent legal profession, it is the right and duty of defence counsel to exercise that right if he considers that it is in his client's interest to do so, or if he has received instructions from his client to do so.I added an amendment to the effect that I agreed with that.
Secondly, I believe that it is important that juries should comprise a broad cross-section of the adult population. We do not want to replace one slant by another slant.
Next, may I remind those right hon. and hon. Members who are not lawyers of the current position. In Crown courts, there are two types of jury challenge: peremptory challenge and challenge by showing cause. Under peremptory challenge, each accused person, through his lawyer, can challenge and remove three jurymen without giving any reason whatever. Thus, in a multiple trial where there are four accused there can be 12 challenges. Where there are seven accused there can be 21 challenges. Several defence counsel, either acting singly or getting together to work out their policy, can continue to challenge and to remove jurors until they get a jury that is broadly to their liking.
There is also the right to challenge jurors by showing cause. In that case, the accused has to show good cause why a juryman or jurywoman should be removed and to justify his objections. Nobody is saying that that second right should go. I would add that in criminal cases the prosecution also has the right to both types of challenge, but so far as I am aware nobody has suggested that the prosecution systematically uses that right to challenge in order to unbalance the composition of juries. Defence counsel, however, sometimes do so.
Lord Denning has said that peremptory challenge should be abolished. He said so in another place as recently as 4 December. In his book "What Next in the Law?" the passage on this subject caused such a reaction that he resigned as Master of the Rolls and the book was 416 withdrawn from sale, but not before the House of Commons Library had obtained a copy. I shall now quote the relevant passage, which is headed "Packing the jury." Lord Denning wrote:It is now becoming apparent that the accused, by using the 'peremptory' challenge, may seek to 'pack' the jury-box with jurors who are sympathetic to his side, or at any rate to get enough so that more than two will disagree. The most important case in recent times was when there was a riot in a coloured area of Bristol called St. Paul's. The police moved in to make inquiries as to illegal goings-on there, such as prostitution and the like. They were attacked by mobs of the coloured people living there. They did not like their illegal activities being stopped. There was most serious disturbance. The police were outnumbered and had to withdraw for a time. Many police were injured. Twelve of the ringleaders of the riot were arrested. They were charged on indictment with riot at common law. The panel of jurors was composed of people of Bristol, both coloured and white. On the jury being called, each one of the twelve accused used his right of 'peremptory' challenge. So there were thirty-six challenges available to the twelve. They used up thirty-five of them. It was done so as to secure as many coloured people on the jury as possible—by objecting to whites. This meant that five of the jury were coloured and seven white. The evidence against two of the accused was so strong that you would think they would be found guilty. But there was a disagreement.Lord Denning refers to another case, and continues:the right of 'peremptory' challenge has been used to secure for the defence a jury thought to be more sympathetic to the defence—such as long-haired youths—or timid women—according to the nature of the case. Sometimes it is used so as to object to any man who is dressed well or who looks intelligent or middle class.This prompts the reflection: What is the justification today of the right of the accused to 'peremptory' challenges? Should we any longer permit the accused to exclude a juror simply because of his looks?
§ Mr. David Ashby (Leicestershire, North-West)
My hon. Friend talks about packing a jury. How can any one challenging a juror say where the juror lives, what his occupation is, what his interests are, whether he is married or single—or anything about him? If one has no such information, how can one pack a favourable jury? Is not suggesting that that can be done unworthy of those people who spend so much time on jury service for which they are low paid?
§ Mr. Jessel
I hope that my hon. Friend will contribute to the debate later, since he made five or six points. I cannot answer them all. However, to tell what a juror is like one must go by the average and take into account certain characteristics. As a leading article in The Times said last June:Today the peremptory challenge seems to be used by defence counsel in an endeavour to achieve as far as possible a jury composed of people believed by the defence to be likely to be hostile to the prosecution and sympathetic to the defendant. Race, class, age, sex and education all seem to play a part in the selection process.There is a discernible tendency to favour those who seem to be … unskilled and relatively uneducated …The principle of random selection is fundamental to our jury system … What is now happening is that the right of challenge is being used not in order to achieve a fair and just trial but in order to defeat the principle of random selection and replace it by a partial, or in some cases a total, selection of the jury by the defendant …If the jury system is to survive in this country, it must retain public confidence. The present abuse of the defendant's right of peremptory challenge is bringing the system into serious disrepute. This should be a matter of concern for all who care about jury trial. There is no longer any sensible justification for preserving the right of peremptory challenge, which ought now to be abolished.I received a letter from a lady in Surrey a couple of weeks ago. She said: 417I was recently a juror on a case involving the dealing and selling of heroin. The two defendants challenged five jurors, four of whom were elderly, the fifth was a very smartly dressed young man in suit and tie.The drug squad and the police presented the fact very clearly and one of the defendants admitted that he smoked heroin and that it was found in the the squat where he and his girl friend lived. In spite of this, we were unable to return a guilty verdict.Three youngsters on the jury were anti-authority, anti-police and in fact anti-everything to do with law and order. One said that all his friends were on drugs and he certainly wouldn't return a guilty verdict.How can any hon. and learned Member justify that? We all know that it is wrong, that it is unjust, that it undermines the fight against violence and serious crime, that it undermines respect for the law, for the Bar and for the courts and that it must stop, and quickly. We know that it is going on and anyone who pretends that it is not or who plays down its importance is acting against the public and national interest.
I tabled an early-day motion a few weeks ago about the Cyprus secrets trial, in which I set out an account of a pretrial meeting which took place at 9.35 am on Sunday 14 April in a private room at the Old Bailey. Because that motion was long, I will not read it. It was abundantly clear that leading defence counsel in the case got together and discussed how best to obtain a jury to improve the chances of acquittal—that is, to diminish the chances of conviction. It was, no doubt, a lawful exercise, but its revelation met with a deafening silence from the Bar Council.
§ Sir Anthony Meyer (Clywd, North-West)
I do not wish to express an opinion one way or the other on the fundamentals of what my hon. Friend is saying. However, will he agree that a consequence of what amounts virtually to a selected jury may not merely be that guilty people are not found guilty but that people who are innocent walk from the court with a cloud over their heads because people will say, "The jury which found them not guilty was not a proper kind of jury."?
I am particularly concerned about that because, in the case of the Cyprus accused, one of them who was my constituent was, I am convinced, entirely innocent, and I believe that that was true of one or two of the others. They now feel that they have been acquitted by a jury about which there is some suspicion.
§ Mr. Jessel
I accept what my hon. Friend says, though it seems an added reason for getting rid of the peremptory challenging of jurors, or at least sharply curtailing the number of such challenges.
I should make it clear that a leading defence counsel in the Cyprus case—one of the seven—Lord Hooson, who was formerly a much-respected Member of this House, and his junior Mr. Britton were not present at the meeting to which I referred. All the other leaders were.
Challenges should be used to remove jurors who might be biased. Yet challenges are now being used systematically to introduce bias—a bias towards acquittal—and that is not fair to the public, who want to help the police deal with serious and violent crime.
The Home Secretary told me that the Crown prosecution service would look into the matter. I fear that that could take too long. The Crown prosecution service seems likely to have some teething troubles and manning and salary problems. It will not begin in London until 418 April and in the rest of the country until October. We do not know how long it will take over its inquiries; how long the Government will take to consider its findings; or how long the Government will need thereafter to prepare legislation, which might then get caught up in an election period. Thus, any new law might not be on the statute book before 1988 or even 1989. Three or four years is too long to wait.
The Home Secretary was kind enough to see me in his rooms on 27 November last to discuss the matter. He referred to the forthcoming White Paper, early in the new year, on next year's Criminal Justice Bill. At that time he gave no undertaking about whether there would be any reference in the White Paper to the peremptory challenge system, but he said that it might be under consideration. I understand that since then there have been discussions between different Government Departments on the matter and I hope that my hon. Friend the Minister will reflect the need for urgency when he replies.
§ Mr. Mark Carlisle (Warrington, South)
We will all be grateful to my hon. Friend the Member for Twickenham (Mr. Jessel) for raising this matter tonight, because it needs to be aired in the House, and I hope aired with some realism. I was delighted to hear my hon. Friend's acceptance that the use of the system that exists is not an abuse of the system by those who use it.
We are told that there is great concern about the use of the right to peremptory challenge. There is nothing new about this. The right to peremptory challenge by a defendant of members of the jury has existed for many hundreds of years. Indeed, under the Criminal Justice Act 1948 every individual defendant had the right to challenge without cause seven members of the jury. It was only in 1974 that that number was reduced to three. Throughout the years, as the Solicitor-General reminds us in a statement that he has issued, that right has been in existence, has been used and has been properly used by defence counsel on behalf of their clients.
So long as that right exists, it is the right and responsibility of defence counsel to use that right if they believe it to be in the interests of the client whom they are defending. My hon. Friend was good enough to say that he agreed with the terms of the early-day motion which I put down and which was supported by all parties. He was good enough to say that he was not suggesting that defence counsel had abused their right. But, unfortunately, he then went on to use language of the type which has led the press to suggest that counsel have behaved wrongly. He said that, when he raised the fact that counsel had objected to certain jurors in the spy case, it had been met by a deafening silence by the Bar Council. The only implication of that must be that my hon. Friend is suggesting that there was something that the Bar Council should have been inquiring into. I repeat that, so long as the right to object to jurors without cause exists, it is, in my view and I believe in the view of hon. Members and the legal profession, the right and duty of defence counsel to act in the interests of their client and to object to jurors if they are either instructed to do so or believe it is in their interest to do so.
The real issue is not the use that is made of the right at the moment but whether that right should exist. There I must confess that I share my hon. Friend's view. I am a radical on the issue. In 1970, when I was a junior 419 Minister in the Home Office and there was a right to seven peremptory challenges, I argued that we should not reduce that to three but should get rid of them entirely. I was overruled and those who overruled me may have been right. I take the view that the right of jury trial is a sacred right in this country and that every man has the right to be tried by his peers, but that he does not have the right to choose who those peers shall be. I question the right to peremptory challenge without cause rather than the right to challenge with cause. I appreciate, however, that that is a minority view in my profession. Most of my colleagues, whom I respect, believe that there is a case for limited use of peremptory challenge as a safety valve against an individual feeling that he is being tried by a jury which may be weighted against him. That may be right. Therefore, although I am prepared to reconsider the need for peremptory challenge at all, the matter is not so one-sided as my hon. Friend the Member for Twickenham suggests.
In ordinary cases, I do not believe in using the right to peremptory challenge. I am no psychiatrist and I do not accept that a man in a jacket and tie is necessarily more likely to convict my client than is a man wearing a sweater. Indeed, I find the suggestion offensive to the man in the sweater. In my view, it is impossible to tell from the look on a juror's face what his attitude may be. In multiple cases, however, in which there are many defendants, I accept that defence counsel will use that right to try to eliminate certain jurors if they or their clients believe, rightly or wrongly, that the jurors in question are apathetic to the case being made for the defence.
Finally, my hon. Friend the Member for Twickenham must not forget there is an equivalent right for the prosecution. Indeed, the prosecution has an unlimited right to stand aside anyone it wishes. I have no objection to reexamining the right of challenge because I personally question its validity, but if we do so it must be on the basis that we look at the rights of defence and prosecution alike. In other words, if we consider removing the limited right of the one we must also consider the unlimited right of the other.
Therefore, I say to the Minister: let us have a serious examination of the present situation if that is necessary, but let us not imagine that it is a major abuse of the legal system, because it is not. It is a limited area which may require examination—but in the light of reality and fact rather than in the heightened atmosphere of an individual case.
§ Sir John Page (Harrow, West)
I often think that debates of this kind, especially those which take place late at night, are of great importance because only those who are really interested in the subject bother to be here. I am grateful to my hon. Friend the Member for Twickenham (Mr. Jessel), who I hope will shortly return to the Chamber to receive his bouquet from me, for raising this important matter. I am here because I thought that, as a non-lawyer amateur, I should stand shoulder to shoulder with my hon. Friend in case that proved necessary.
I am reminded of an occasion when I spoke—rather well, I thought—on the Ecclesiastical Jurisdiction Measure. On leaving the Chamber, I was greeted in the Lobby by Lady Gammans who at that time represented Hornsey. She said, "I would like to congratulate you on your tremendous speech tonight, Jack," and I said, "Thank 420 you, Muriel. How kind." She replied, "I felt you were. speaking for all of us who knew nothing whatever about the subject."
Tonight I speak for the well-mown and carefully nurtured grassroots of Harrow. There is definitely concern in the country about whether there is a possible abuse of the peremptory challenge in the jury system. As my hon. Friend the Member for Twickenham will be aware, there is also a danger of what my hon. Friend the Member for Warwick and Leamington (Sir D. Smith) calls the "Alsatian syndrome". When an Alsatian dog attacks a person or child, for the following three or four weeks the newspapers are full of stories about Alsatians attacking people and there are demands for greater control of such dogs. Subsequently another fad occurs, and one never hears of the Alsatian attack again.
But that is not the case in this important aspect of our legal system. As the son of one lawyer and the father of two, I have always felt that the jury system should be preserved and is something of which we should be proud. As a pretty hard-line Conservative, I feel that there are dangers in changing, without the most careful thought, systems that have stood the test of time.
But my right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle), in a well-measured, eloquent and impartial speech, reminded us that the last time peremptory challenge was tested was in 1974, when the number was reduced from seven to three. There is something innately fair in the opportunity for challenge to be made. In the case of a single accused the challenge of three merely on visual attitudes seems to be quite successful, but in cases involving multiple accused, I wonder whether each should have an equal chance of challenging three of the jurors.
A thought that I throw into the limpid pool presided over by the Under-Secretary is that, if there is more than one accused in a multiple case, there might be good sense in reducing the numbers that could be challenged by each individual. I would like to think that never more than nine out of 12 jurors could be replaced by this challenge.
§ Mr. Gerald Bermingham (St. Helens, South)
If all men are equal before the Crown, and if one man has a right to three challenges, how can it be argued that in a multiple defence case each man should be treated differently?
§ Sir John Page
I am grateful to the hon. and possibly learned Gentleman because I have been tussling with that very point this evening. If people are being jointly accused of a single crime, they may have a kind of joint attitude towards their defence—[Interruption.] The hon. Member for St. Helens, South (Mr. Bermingham) may laugh, but at least I have taken the trouble to think about the problem, and it seemed to me that that was not a bad way of getting over the hump.
§ Sir John Page
I am no Rumpole of the Bailey. I thought my hon. Friend the Member for Twickenham got out of answering the question rather neatly when he said that he hoped that my hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) would have the opportunity of asking the question in his speech and answering it as well.
421 Having suggested that there should perhaps be a limit to the number of challenges in one case, I wonder whether there is something to be said for looking at the catchment area for juries in cases where there is a major local interest in a case. It is difficult to find unbiased juries in an area where a local crime has had considerable local publicity. There is a danger in such cases of not having a completely impartial jury. An accused person has to be tried by his peers, and it is worth considering rather carefully who our peers are.
§ Mr. William Cash (Stafford)
One of the investigators in the Cyprus spy trial is a constituent of mine. He came to see me recently, and I was very disquietened by what he said. I know that there is a Government inquiry into the circumstances which led up to the trial. As far as I am aware, the accused have not participated in the inquiry.
I have great sympathy with what was said by my hon. Friends the Members for Twickenham (Mr. Jessel) and for Harrow, West (Sir J. Page), as well as by my right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle). The matter requires careful consideration, and I congratulate the Government on setting up the inquiry. The outcome should help us to arrive at a conclusion, not only as to the facts in the Cyprus case, but as to the principles on which peremptory challenge takes place.
I conclude my very brief intervention by saying that I have every intention of returning to the matter when the Government inquiry has concluded. I believe that it will lead to a very satisfactory outcome in the last resort.
§ Mr. David Ashby (Leicestershire, North-West)
It is important to recall the more recent history of the jury system. In the days when Sir Edward Marshall Hall made eloquent speeches in which he quoted from the Greeks and the Latins, they were addressed to juries of householders. They were well educated people who had achieved a certain status in life. We enlarged the category of people who were eligible to serve on a jury as we spread the franchise—to women, to people over 21 and then to all people over 18. I am not decrying that, but we must look at the realities. Juries can be drawn from a complete cross-section of the population—good, bad and indifferent. We may have a jury on which some of the jurors cannot read or write, or on which some of the jurors are not the most intelligent people. There is a problem in fraud cases involving complex issues and many documents if the jurors cannot read, let alone understand, the documents. That is one of the fundamental problems that we must consider.
My hon. Friend the Member for Twickenham (Mr. Jessel) has relied on anecdotal evidence with respect to a secrets trial, the details of which I understand to have been improperly leaked by some dishonourable member of the legal profession who had a duty not to disclose that information and who cannot therefore be trusted in any way. That dishonourable person gave anecdotal evidence about who decided within the meeting to take certain action with respect to the jury. Some people decided that one approach was a good idea, another group decided that another approach was a good idea, and yet another group 422 decided that a third approach was a good idea. My hon. Friend the Member for Twickenham is trying to say that a disgraceful action arose out of that, but it did not. As far as I can make out, the people had totally differing views on the composition of the jury. That is the fundamental problem to which my hon. Friend must address himself.
We do not know the composition of a jury. We can go on challenging until we are blue in the face, but we cannot be certain of what we are getting. That is right and proper. That is how it should be. In challenging juries, one has a right, as my hon. Friend the Member for Twickenham said, to have "a broad cross-section of the population". I have seen juries comprising 11 women and one man and have thought to myself, "That is not a broad cross-section of the public. The population is not composed 11: 1 of women. Should I use my challenge to reduce the ratio so that it is closer to the proportion in the population?' I have come across a jury composed of people of 50 or more and have said to myself, "That does not reflect the population. The jury can include people from the age of 18. Should we not have a few people on it who are between 18 and 25, or between 25 and 30?" Is that not a proper challenge to make?
One may look at the jury panel on the right and the jury panel on the left and say, "There are 10 people of 50 or more. Should I challenge three to try to get some of the younger people on to the jury?"
§ Mr. Jessel
Can my hon. Friend say with his hand on his heart that it is not his purpose when making those challenges to obtain a jury that will improve his client's chances of an acquittal?
§ Mr. Ashby
It is first of all my responsibility to do my best for my client, just as it is equally the Crown's duty to do its best for its client. The Crown has the police as clients. It is my duty to try to get a good cross-section on to the jury. With my hand on my heart I can say that, by and large, I challenge juries to obtain a good cross-section—to use my hon. Friend's words, "a broad cross-section of the population."
I speak for my colleagues at the Bar, with whom I have discussed the nonsense that has been talked about juror challenging in the past few weeks. Almost all my colleagues at the Bar take the view that it is nonsense. They have all asked, "How can we pack a jury when we do not have a clue who the jurors are? We do not know where they come from. We do not even know which part of London they come from, for example. We do not know what their views are or anything else about them."
§ Mr. Ashby
My colleagues at the Bar all say that some juries are not composed of a broad cross-section of the public. There are some unbalanced juries.
If I could be sure of a number of factors, I should happily give up the right of peremptory challenge. First, I look for an intelligent jury. If a barrister has a good defence, he will want to submit it to an intelligent jury. He will not want a dumb jury to listen to his defence. Secondly, I should be happy to revert to juries of householders, but that will never happen and so it should be forgotten. Thirdly, if I could be assured that a jury consisted of a good cross-section of the public, I should be happy with it. I want to know that the jury is composed 423 of men and women in equal numbers and that it is representative of age groups in the population and of the area. That will not be achieved by the present system, and that is why the preremptory challenge is available.
I intervened in the speech of my hon. Friend the Member for Twickenham because I wanted to pay tribute to juries. I have been involved in a case which has run for five weeks, and the jury gave up its time to hear it. Jurors are virtually unpaid, and they give up their families, work and many other things. In the five-week case in which I appeared, the jurors listened to the evidence day after day with the greatest attention, as well as to counsel's closing speeches and the summing-up. I pay tribute to jurors throughout the country for undertaking that responsibility willingly.
To talk about juries being packed, to suggest that some jurors are less worthy than others and to refer to the jury in the secrets trial as one which was incapable of coming to the right decision on the evidence, is to mount the most scurrilous attack on the integrity of honourable and decent people. I challenge my hon. Friend to name one person on the secrets trial jury who was not honourable and did not come to his decision rightly on the evidence. The jurors came to their conclusion on the evidence. My hon. Friend was not there, and neither was I.
I listened to my hon. Friend the Member for Twickenham referring to Lord Denning's anecdotal story about the Bristol riots. When a number of black persons come from a black area and they are charged with the most serious offences, is it not right and proper that they should ask, in keeping with having a broad cross-section of the population, that there should be a few coloured people on the jury? Where is our idea of justice and fairness? It is an idea that has evolved over the years. It has created a wonderful system which is the pride of our nation. It is one which we have exported, and one which is held in the highest esteem by many countries throughout the world. Where is our sense of value that we should try to denigrate something that has grown up well and honourably over the years?
The jury system is a well tried and true system; it is an honourable system; it is the best system that we can devise. We should uphold it, not denigrate it. What other country would acquit six people who had allegedly confessed to what amounted to treason? It says much for our system—and I have been proud to be a party to that system for 23 years—that that should happen in such a serious case. Indeed, the system is highly thought of by other countries.
What do people want? Do they want a system of rough justice? Do they want juries to be packed so that those who may be innocent are convicted? The tenor of the debate has been totally to misunderstand the system—that people are innocent until they are proved guilty; that each individual is to be tried and treated as an individual so that each should have the right of jury challenge; that cases should be tried separately and that evidence against persons should be judged separately. Those six people may have been on trial together, but they were not considered as a lump; each was considered separately.
I entirely disagree with the comments of my hon. Friend the Member for Twickenham. I believe that three peremptory challenges are right and proper to ensure a proper balance and a proper cross-section of the population.
§ Mr. Neil Thorne (Ilford, South)
I congratulate my hon. Friend the Member for Twickenham (Mr. Jessel) on raising this important issue. It should be aired in the House because, whatever hon. Members have said this evening, there is great cause for concern in the country. If there is cause for concern, the matter should be debated here. Where else would we want it to be debated? The question of peremptory challenges is a matter of some concern.
I am grateful to my hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) for explaining why the number of challenges has been reduced from seven to three. I now understand that in the old days it was householders who usually served on juries, so by and large they were people of more mature years.
There are a number of defects in our present system because we do not provide that those who have been recently convicted should be excluded from jury service. Nor do we take account of those who have been awarded suspended sentences. When the present system was introduced, suspended sentences did not exist, so we have a right to reconsider the matter. Anyone who has been convicted, has served, or been awarded, a suspended sentence of two years or more, should be excluded from jury service for life. Clearly they are not the sort of people who are likely to apply a clear mind to the matter.
That causes considerable concern. I have no objection to people aged 18 serving on juries, but several people in the lower age bracket of 18 to 25 have no interest in serving on most juries, and those who serve with them confirm that. They are only anxious to get out of the jury room as quickly as possible, which is not good for justice to be seen to be done. Therefore, people under 25 should have the right to opt out of jury service if they wish.
I should like the age limit to be pushed up because people of 65 and over could ably and willingly serve on juries. Even some judges are considered capable of working until the age of 70, so there is no reason why people up to 70 should not be allowed to serve on juries, which might help considerably.
The problem today is that so many people try to get off juries when they are put on them. Many self-employed people and others could give extremely good service on juries, but they do not have the time because they are not sufficiently rewarded for the service that they provide. That is a major handicap. Undoubtedly the people who are given a pittance for their jury service do everything they can to get out of it. That is not good for justice.
I have watched with concern the high rates of acquittals in some courts—some are as high as 75 per cent. I am in doubt whether that is because cases are brought unsatisfactorily in the first place or because the juries are not capable of considering them adequately. I fully accept that juries that have given many days, if not weeks, to considering a case, are to be thanked for their public service, but unfortunately many of the people who could contribute greatly to that work are using every opportunity to be excluded.
My hon. Friend the Member for Leicestershire, North-West was honest in his reply to my hon. Friend the Member for Twickenham when he was asked to say that he did not try to choose jurors who would help his case. Rightly, he said that he must put his client's interests first. That is fully accepted. I do not think that anybody in the House would believe that that was the wrong thing to do. 425 When my right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle) was challenged by my hon. Friend the Member for Twickenham about what interest the Bar Council should take, he was trying to say that the Bar Council should take an interest in the matter, from the point of view of justice being seen by the public to be done. If it felt that that was not so, it should be expressing an opinion, not allowing the problem to run on. My right hon. and learned Friend is absolutely right in his view. I fully support him in saying that peremptory challenges should be abolished. It does not stop people being challenged, but the explanation will have to be given to the judge, which is always right and proper.
My constituents have told me of their experiences. One bank manager told me that when he was called for jury service, on the first day he appeared in a blazer and grey flannel trousers, and he was objected to each time he appeared. The next day he appeared in sweater and jeans, and no objections were raised to his appearance. That seems strange. For the rest of the week he played a full part in the court.
§ Mr. Bermingham
Does not the hon. Gentleman accept that if one looks at any jury panel on any day, one sees people dressed in almost anything? It is almost impossible for somebody appearing on behalf of the defence or the prosecution to know anything about them from their dress. To draw conclusions because of anecdotes is to mislead the public, and indeed the House, about the reasons why objections might be obtained. Would it not be fairer to say that people appear and serve because they believe in serving? We should stop the farce of alleging that there is a devious motive in objections.
§ Mr. Thorne
If someone finds that his dress has a bearing on whether he is objected to, he is entitled to express such an opinion. It is also right for him to express some anxiety if he is objected to in court while wearing a collar and tie. I appreciate that a person's dress does not necessarily mean that he will deal with an accused person in a given way.
§ Mr. Thorne
Indeed they could. One, a constituent, spent the rest of the week in sweater and jeans serving on the jury. My advice to bank managers who want to serve on juries is to wear sweaters and jeans.
§ Mr. Rogers
Would not the hon. Gentleman's argument be completely destroyed if the bank manager turned up on the first day in jeans and sweater?
§ Mr. Thorne
He would not have been rejected. That proves my point. My advice to people who want to do their bit is to appear in such dress if they do not want banisters to object to them. That is unfortunate.
§ Mr. Thorne
I can only say that that was my constituent's experience. He was objected to each time he appeared in the jury box on the first day and was not objected to for the remainder of the week. We must draw our own conclusions whether he was rejected because of his dress.
426 This matter requires careful consideration. My hon. Friend the Member for Twickenham is right to draw it to our attention and I hope that my hon. Friend the Minister will be able to give some encouraging news that the Government have the matter under consideration and will seriously consider doing away with peremptory challenges.
§ 12.7 am
§ Mr. Clive Soley (Hammersmith)
It was a pleasure and a relief to listen to the hon. Member for Leicestershire, North-West (Mr. Ashby) make such a spirited defence of juries. If I had not heard him, I should be getting deeply depressed by some of the speeches that I have heard today. They were not founded in fact and were insulting to many juries.
Whether intentionally or not, the hon. Member for Twickenham (Mr. Jessel) has gone a long way to undermine public confidence in the jury system by the cheap publicity that he has obtained in the handling of this case. He has done it unacceptably and he should review his method of tackling the matter.
We have heard comments from the hon. Member for Twickenham and, I am sorry to say, from the hon. Member for Ilford, South (Mr. Thorne) about the type of dress and the type of person who might be acceptable in a jury. The hon. Member for Twickenham talked about working-class people being less likely to convict.
§ Mr. Soley
The hon. Member strongly implied that. He also implied that young people were less likely to convict. The hon. Gentleman should look at the evidence that is produced by the Government whom he supports. He should examine the British crime survey and other surveys, which show that the typical victim of crime is the young working-class male—young blacks as well. If any lawyer or solicitor is stupid enough to select people from working-class or black backgrounds simply because he believes that that will get his client off, he is wrong, because those people are more likely to take an authoritarian view towards people appearing in court.
§ Mr. Jessel
Did the hon. Gentleman hear me say almost at the beginning of my speech that I wanted to stress that a jury should be a typical cross-section and that I emphasised that I did not want to replace one slanting with another?
§ Mr. Soley
I heard the hon. Gentleman say that, but if he reads his comments in Hansard tomorrow he will find that he implied that working-class people and young people were likely to be anti-authoritarian and to let people off. I shall have to look carefully at his words about ethnic people, because I am not sure whether he also included them in that statement. That is wholly wrong, even according to the Government's evidence.
The hon. Gentleman could have told us that every member of the jury was vetted by the special branch. Let us have some balance. If we are to have peremptory or other challenges for the defence, we should extend them to the prosecution. If we are to have some form of vetting, let us vet both sides. My advice would be to defend the jury system, not undermine it.
The failure to get convictions in courts has nothing to do with the jury system. The Government and the hon. Gentleman are worried about the failure of their law and 427 order policy. They cannot face the increase in crime. In 1984, one half of all the Crown court acquittals were by judges, not by jurors. Is the hon. Gentleman saying that we should sack all the judges because they are not doing their job properly? Are they undermining the police as the juries are, according to the hon. Gentleman? Perhaps the judges are wearing the wrong clothes. Perhaps they are working class. I rather doubt it. Perhaps the hon. Gentleman had better start attacking the judges too.
In 1983 the Home Office conducted a study, and the Minister will undoubtedly advise his Back-Bench Friends on it. It found that jurors were not becoming more cynical or doubting of prosecution evidence. Indeed, I am not sure why we need the study by the Crown Prosecution Service.
§ Mr. Bermingham
Does my hon. Friend agree that if we were to carry out a survey of acquittals in the metropolitan area, as opposed to in the shire counties, we might find that the rate of acquittal in the shire counties was much lower? Does he further agree that that might have something to do with the quality of preparation for the cases, as in the shire counties there are professional prosecuting teams for that? One finds that the standard of preparation is better in those areas.
§ Mr. Soley
My hon. Friend has much more knowledge of the law than I have, and I shall take his word for that. I am sure that he is right.
The hon. Member for Twickenham is saying that he did not like the result of the Cyprus case. Therefore, he wants to change the jury system. I do not accept that. The jury system is much more important and longer lasting than one particular case, be it right or wrong. I cannot judge that, but I accept that 12 citizens can and should judge a case properly. Juries were never meant to be a rubber stamp for the Government or case-hardened judges.
Juries are there precisely because they represent the community. They are not supposed to be lawyers or to have detailed knowledge of the law, or to come into court with preconceived ideas. They are there to listen to the evidence that is put before them and to make up their minds on the rights and wrongs of the case. That is part of the democratic judicial system, which we have had for a long time, and we should go a long way to protect it.
The prosecution has the power of the state behind it. At present, the defence can rely only on appearance. It cannot even know the occupations of jurors. In Scotland, it is possible to know their occupations. Of course a defence might wish to challenge a shop manager on a jury if his client is charged with armed robbery in a shop, but he would not be challenging only on appearance. The right to challenge is exercised to obtain a different sexual balance, as the hon. Member for Leicestershire, North-West said, or a different racial balance. There is nothing wrong with that if the defence lawyer believes that the jury is out of balance.
The hon. Member for Twickenham gave the example of the lady who wrote to him about a drugs case. He should have been a little stronger and clearer in his principles when he answered that lady. The implication of the way in which he used her letter in this debate was that he would wish to exclude from the jury anyone who was in any way sympathetic to drug abuse. I have no desire to rake over the past, but the implication is that anyone who appears before a jury on a drink-driving charge would want to exclude from the jury everyone who believed that drinking 428 was had. Anyone opposed to drink might be seen as opposing the defendant. What sort of jury system do we want? What right do we have to challenge the attitudes and values of all the people in the jury system? I would have replied to that lady: the jury system is supposed to represent a cross-section of the community. In that community are people of different ages, sexes, ethnic backgrounds, views, attitudes, beliefs and everything else. That is what we should aim for, and that is what the right of challenge is about.
The Crown prosecution service is supposed to conduct a study, but I am not sure why we need it, in view of the 1983 Home Office study. If, according to the Home Office, there is no sign that jurors are more likely to be biased against the prosecution than they were previously, why are we asking the Crown prosecution service to study the matter? Why on earth are we asking the prosecution service of all people? That service is on the side of the prosecution, and no one has yet suggested that the Crown's rights should be restricted. It would be nice if the Crown Prosecuting Service studied the matter and decided to restrict the rights of the prosecution to challenge or vet. That would at least put some balance back into the system.
I draw to the attention of the House a few quotes from the debate which the hon. Member for Twickenham introduced in the press, when he used the press to make his case. The Solicitors' Journal, which wished to introduce hooded jurors, said:Most effective would be gowns buttoned up to the neck and hoods similar to those worn by visitors to a hospital operating theatre when surgery is in progress.One could add that such hoods are worn when raiding banks or by members of the paramilitary groups in Northern Ireland. The Home Office response was:A jury ought to be a random selection of people and it would be artificial to insist on a standardised form of dress.I wish that that response had been tougher and that the Home Office had said that such suggestions should not be considered acceptable in a sophisticated democracy. It is an insult to that democracy.
In the Sunday Telegraph, Paul Williams—who also appeared to wish to put the knife into juries—said:Those most likely to be challenged are middle-class matrons.That is news. I do not know whether it is the experience of the hon. Member for Leicestershire, North-West that lawyers always challenge middle-class matrons. Paul Williams continued:they have probably themselves suffered at least one theft and are likely to be sceptical about the ludicrous alibis often presented. In the case where I played my little trick"—he was talking of the trick that he played on the court—it was clearly the comfortable-looking ladies who were on the top of the list of objections.Mr. Williams is making many assumptions, but perhaps more stupidly he seems to have misunderstood the pattern of crimes. Middle-class ladies are not highly represented in the crime figures. Again, these are prejudices based on fiction, not fact.
My final quote is from the Solicitor-General. I was a little puzzled when I found myself at short notice on the Front Bench to answer this debate, because my immediate reaction was that this should be Solicitor-General business. Only when I had discovered a little more about the law did I realise that the debate involved the Home Office. I saw that the Solicitor-General is strongly in 429 favour of the jury system, and I give him full credit for that. In response to the hon. Member for Twickenham, he said:The right to make a peremptory challenge of jurors without giving a reason has existed for the last 600 years. Until recently each defendant was allowed seven peremptory challenges.He went on to refer to the 1977 Act, and said:So long as that law remains as it is, then counsel have a right and duty to use the peremptory challenge as they conscientiously think best for the interests of their clients.I agree with the Solicitor-General, and I hope that the Minister does as well. For one wild moment I thought that he had been sent out to have tea with the Secretary of State for Defence to work out their policies against the Government. I hope that the Minister will come out strongly in favour of what the Solicitor-General said.
There is a major law and order problem, which to a considerable extent has been created by the Government's policies. They have a disaster on their hands, but there is no way that they can use the police and manipulate them to deal with the social and economic consequences of their policies, and using the jury system as a scapegoat for defendants getting off in court will not be acceptable.
This is a serious matter, and any attempt to continue the erosion of the rights of juries is a retrograde step. We should at least be looking at a balance between the rights of the prosecution and those of the defence. If we can do that, some good will have come out of the debate.
§ The Parliamentary Under-Secretary of State for the Home Department (Mr. David Mellor)
This has been a lively and absorbing debate and it is a genuine pleasure, notwithstanding the hour, to have the opportunity to respond to it.
The hon. Member for Hammersmith (Mr. Soley) has rightly reminded us of the sage words of my hon. and learned Friend the Solicitor-General, and in particular his remark about the antiquity of the jury challenge. From as far back as 1509 comes a statute that restricts challenges to 20 for each defendant, and we know that, in the Juries Act 1825, provision was made for a right to challenge up to 20 jurors per defendant in a case of murder or felony, and up to 35 challenges for a case of treason.
We also know that changes have been made in this century, so that in 1984 there was a reduction to seven in the number of challenges that each defendant could make without showing cause. Even then, there was pressure to abolish the right altogether, and no one must think that what my hon. Friend the Member for Twickenham (Mr. Jessel) has said is raising a new matter. He speaks as the latest in a long line of hon. Members who have expressed concern about this matter. These points were raised during the course of a debate in 1977 in which my right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle) played a leading role. As a consequence of those debates, and the concern that was expressed, the number of peremptory challenges permitted per defendant was reduced from seven to three.
It is important to begin by setting out why peremptory challenge has been permitted for so long in our law. It was very well stated by Mr. Arthur Davidson, who was then the Parliamentary Secretary, Law Officer's Department, 430 in the debate on the Report stage of the Criminal Law Bill in June 1977. I cannot improve upon his formulation. He said:If someone, for whatever reason, thinks that a particular person is likely to be prejudiced against him or, for some reason, he feels that that person is not likely to give him a fair hearing, it is right that he should have the right to challenge him.That is the basis for the peremptory challenge having been permitted. It was put very eloquently by Blackstone, one of the great creators of the English legal system. Many years ago, in justification of the system, he referred to the right to object to a person whose looks the defendant does not like. He said:It is … a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous … As every one must be sensible, what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another; and how necessary it is, that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him; the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike.The point that Blackstone makes is related to the occasions when almost all felonies were capital offences. Therefore, the right to alter the character of a jury in a capital offence trial might take on a rather different perspective from the right to alter the composition of a jury in a minor matter that is before a Crown court.
May I turn to the 1977 Act and perhaps have the attention of the hon. Member for Hammersmith as I do so, because I am trying to reply to some of his points? Whether or not he agrees with the concern about peremptory challenges—the same is true of my hon. Friend the Member for Leicester. North-West (Mr. Ashby)—that concern has never been confined to one side of the House, it has a lengthy provenance and it cannot be dismissed simply as an unfair response to a particularly celebrated acquittal or, even more inappropriately, as an attack upon the jury system.
The hon. Member for Hammersmith may be interested to know that the person who played the leading role in the 1977 changes was somebody whom he would be pleased to hail as a defender of civil liberties in this country. He was a man of great experience in the law and in the Home Office, Alex Lyon, the former Member for York. In the debate he said:it seems to be an anomaly that an accused person, or his counsel, should be able to prevent someone from going on a jury simply because, for some visual reason, he seems to the defence to be inappropriate for the particular trial … We have to ask ourselves whether in principle it is right. I have argued that it is wrong in principle.That view, interestingly, was strongly shared by another hon. Member who is no longer a Member of this House; however, he was held in considerable respect as a lawyer of integrity, as I know that my right hon. and learned Friend the Member for Warrington, South will agree. That was Mr. Edward Lyons. In that debate he said:It is obvious to anyone who goes to the Old Bailey that most of the peremptory challenging that goes on there is based on calculation about whether a particular juror is likely to be helpful or not to the defence.At a later stage he said:At the Old Bailey—although it must be said that many counsel refuse to participate in this practice—the defence appears to operate in favour of whoever is likely to be least intelligent and most anti-establishment. The very young, those without ties and those who look stupid to the challenger are not challenged. But it is expected that the middle-aged may be worried about their houses being burgled and may not be431sympathetic, and therefore it is thought best to get them off the jury. Those considerations are not proper. They are designed to achieve not a jury best able to deal with a particular case but, often, one which is least able to deal with the case.My hon. Friend the Member for Leicestershire, North-West might not agree with that, but please let it not be said that my hon. Friend the Member for Twickenham is off on a mad frolic of his own. This case has a decent provenance and is argued by people whose experience of the law and of practice in the courts is every bit as lengthy and distinguished as that of my hon. Friend the Member for Leicestershire, North-West.
My right hon. and learned Friend the Member for Warrington, South, who in a previous incarnation was Member for Runcorn, made then a speech which reflected the points which he made today. As ever, he was right at the heart of the matter. I cannot improve on his phraseology. He said during the debate in 1977:The principle we should work on is that the individual is entitled to he tried by 12 of his fellow citizens, but he has no right to choose who those fellow citizens should be."—[Official Report, Standing Committee E, 28 June 1977; c. 642–9.]That is an eloquent statement of the case against the peremptory challenge; it deserves not to be satirised and not to be regarded as an attack on the jury system. It should be recognised as a strong, dignified and sensible argument when we consider the detail of our criminal justice system.
In that light, I detain the House about the Cyprus case. I do not know whether what was recounted in the document put before the House is right or wrong. One counsel apparently wanted a young, middle-aged, middle-class jury, another wanted a young, working-class jury. I am not sure what a young, middle-aged person is. It is what a sycophant would call you, Mr. Deputy Speaker. Another silk is alleged to have said:"We couldn't improve on fate." That piece of philosophy, no doubt, was worth the fee charged. Determining a person's attitude is like asking how long is a piece of string. We do not want to worry too much about that.
My right hon. and learned Friend the Solicitor-General was right. It is permissible under the rules for this to be done and counsel should not be blamed for doing what the House has said is right, after hearing the opposite arguments. If counsel chose not to exercise that right they would be blamed. But should they be put in their present position?
Anyone reading the document is bound to find it unedifying. We must question whether the practice should be allowed to continue. We must ask whether it contributes to the elevated principles upon which we pride ourselves and our criminal justice system rests. That is a proper question to ask and Government must try to answer it. That is exactly what we are trying to do.
Let us be clear that this is not an attack on the jury system. I do not blame the hon. Member for Hammersmith or my hon. Friend the Member for Leicestershire, North-West for saying that it is, because no less a person than Mr. Bernard Levin, perhaps one of the most noted polemicists, said in The Times the other day:I find the increasing pressures on the jury system, of which this particular criticism constitutes only the latest of many, alarming and even sinister.But surely we show our respect for the jury system by evaluating it and subjecting it to scrutiny, and particularly any aspect which might threaten the reputation and 432 standing of the system. We cherish it by keeping it in good running order, and that means making changes from time to time.
That is exactly what we have done. We radically changed the basis on which jurors are selected less than two decades ago. We widened the base for disqualification for people serving on juries on the basis that those with criminal records should not serve, and in this Parliament we doubled the number of people disqualified from serving on juries.
§ Mr. Mellor
No, only a few minutes remain and I will not give way. The hon. Gentleman overran the time by which I suggested he might finish.
The only way to achieve our aim of preserving the integrity of the system and public confidence in it is to take these issues as they arise and examine them sensibly, and that is what we are doing. The Home Secretary said in the debate on the Address that we shall be asking the Crown prosecution service to gather some factual information on the use of challenges—by the prosecution and the defence—and our research and planning unit will assist in designing the survey and the analysis of the results.
We hope that the Director of Public Prosecutions can make a start on those cases in which he is invoked now and that the Crown prosecution service, which comes into force in April in the metropolitan counties and in October in the rest of the country, will continue from there. No survey can be conclusive on all the matters that have been canvassed in this debate, but it can provide a factual base, enabling us to get away from some of the anecdotage which, while in some cases it is illuminating, can in others be misleading.
We must recognise that for those who believe that, as a matter of principle, the defendant should not be able to influence the composition of the jury, no amount of research will make any difference to what is a perfectly honourable and considered position. In 1977, by consent of the whole House, a reduction was made front seven peremptory challenges to three, without any clearly researched basis at that time. There can be no reason why, in the interim, consideration should not be given to a further reduction—from, say, three to one—without any necessity for further research on the matter. The question of an upper limit on total challenges in multihanded cases also arises, as does the position of the prosecution and their right to stand by.
I wish to make it clear that the Government have reached no settled or concluded view on this matter, and it would have been wrong for us to do so at this stage. I agree with my right hon. and learned Friend the Member for Warrington, South that this is not a major abuse but a limited area that should be looked at again. I endorse that observation and that, calmly and sensibly, is what we are doing.
No one has any interest in delay, and I assure my hon. Friend the Member for Twickenham that there will be no question of unnecessary delay. I hope that we shall arrive at a conclusion that will commend itself to the whole House on a matter which, if it is interesting enough to arouse the passions that it has aroused tonight, is certainly interesting enough for mature reflection and a considered response in due course.