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Lord Macaulay of Bragar: With respect, I am not interested in that statement. I asked the question and have received an answer, but it is of no relevance.

Lord Fraser of Carmyllie: The noble Lord says that he is not interested in the reply. He asked a specific question and it is very unfortunate that he got the wrong answer, but that is nevertheless the state of play in England.

Lord Macaulay of Bragar: I take the point. I may have scored an own goal on this occasion, but that is

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another matter. The law of Scotland has also existed for a long time. We do not need any lessons from the law of England and Wales if there is any distinction between these two. In the meantime, I—

Baroness Carnegy of Lour: Before the noble Lord withdraws his amendment, if that is what he intends to do, perhaps I may ask him this. We have heard that this has been the case in the law of England for a very long time. We have had the description of the occupation in Scotland. If in effect it means that people are being challenged because they have the wrong occupation, is it not the case that we are then doing less well in England? I am new to this subject, but it seems to me that the noble Lord's argument is rather unreasonable. If it is a handicap to people to have certain occupations because other people will challenge them and they will not get to be on juries, is that not a bad thing?

Lord Macaulay of Bragar: It may be a case of negative discrimination because of a particular job. I accept that. But certainly those of us who have practised in the courts in the past know that it is required to have the designation on the list of jurors. I am not sure how much investigation is done in England when the English counsel or solicitors are given a list of potential jurors. That may be a matter that we can investigate between now and Report stage.

There are always apparently good reasons for objecting to particular people in particular cases. It is down to the judgment of the people involved. They decide whether or not a person in a particular occupation should serve on the jury. I really cannot see where this particular amendment is leading the criminal process in Scotland or what benefit it will have. However, I have heard what the Minister has to say. What he said about not giving notice to the defence will no doubt be noted in other quarters, and we shall return to the matter at Report stage. In the meantime—

Lord McCluskey: Before the noble Lord withdraws his amendment: I shall speak on matters to do with juries in connection with Clause 8 rather than this particular matter. But I ask Members of the Committee to bear in mind that the lessons to be learnt by England from Scotland or by Scotland from England may be many, but in the field of juries in criminal trials they are virtually none. The reason is that although both countries have jury systems, the English had a jury of 12 and required a unanimous verdict. The Scots have always had a jury of 15 and required a simple majority verdict. The English now have a qualified majority verdict of 10:2. These differences are so fundamental that one should not make easy comparisons across the Border. There are very few lessons to be learnt in this field by either side from the other. We must live with our own traditions and modify them in the light of modern requirements.

Amendment, by leave, withdrawn.

[Amendment No. 16 not moved.]

Clause 6 agreed to.

Clause 7 [Jury service]:

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Lord Macaulay of Bragar moved Amendment No. 17:

Page 6, line 3, leave out paragraph (a).

The noble Lord said: We have discussed more than once in the course of the proceedings so far the question of a presumption of innocence. There is a view that the mere fact that a person has been charged with an offence and permitted bail subject to the constrictions which the Minister intends to impose in the light of the previous section in the Act should deprive him of his civil rights in the community. Again, it may very well be that there is a European context to this and that he may be being deprived of his rights as a citizen. The amendment represents a short proposition which may or may not appeal to the Minister. I beg to move.

Lord Fraser of Carmyllie: Clause 7(2) (a) of the Bill adds to the categories of persons disqualified from jury service those on bail in connection with criminal proceedings anywhere in the United Kingdom. I make this point with some hesitation in view of the last intervention of the noble and learned Lord, Lord McCluskey. Our proposal is based on a recommendation made by the Royal Commission on Criminal Justice in England and Wales. However, we have decided to include this in the Bill not simply on that basis. Before this Bill, in our paper on juries and verdicts, we included it as a proposal. Following on the consultation and the views that we received on it in Scotland, we decided that it should be included in the Bill.

I agree with the noble Lord, Lord Macaulay, that a person on bail has, and should continue to have, the benefit of the presumption of innocence. However, the justification for disqualification is not that those on bail might have committed an offence. Rather it is that they have been accused of committing an offence and are still subject to criminal proceedings, and that that might improperly affect their attitude to the proceedings in which they would be contributing to the verdict.

It does not seem right in the interests of justice that such people should be asked to serve as members of the jury. With that short explanation to the noble Lord as to how we arrived at this particular proposal, I hope that he will feel able to withdraw his amendment.

Lord McCluskey: I entirely support the noble and learned Lord the Minister in this particular regard, and indeed for the reasons that he and the Royal Commission have given. I was a prosecutor for a number of years, from 1964 to 1971, in the High Court. The way it worked in those days was that if the police knew that a person was on bail, or whatever, the police would come to the advocate depute, and the advocate depute, exercising the right which the Government are about to take away, would then simply intimate to the court that he objected without cause shown to the person. The person who was thus on bail did not serve. That seemed to be an eminently sensible way to go about the matter. I entirely support this provision because it is quite wrong that a person who is himself facing criminal proceedings should be asked to adjudicate judicially upon somebody else's guilt or innocence.

Lord Macaulay of Bragar: I find that a strange proposition. It almost amounts to a form of secret justice

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when people are put on a jury list and some police officer, prejudiced for or against the accused, comes to the prosecutor, or indeed to the defence, and says, "By the way, do you know that he is up on a charge of (whatever it might be)? Would you mind objecting to him?". If we are getting to that point, it is a very dangerous state of affairs. But I am not sure whether that was what the noble and learned Lord was suggesting.

Lord McCluskey: I am suggesting that on the jury there may be people whose minds are so affected by some event that they are not able to act judicially. It is exactly on a par with another case in which I, as a judge, felt able to excuse a serving juror when it emerged, during the course of the case—it was a murder trial—that her mother had been murdered. That person could not bear to look at the photographs or bear to think about the matter. Of course, she should have intimated that at an earlier stage, but she did not. Once into the trial, when she realised it, she did so. That person was unfit to continue as a juror because personal circumstances affected his or her capacity to act judicially. The same must apply to a person who is out on bail. It is not a question of secret vetting by the police; it is a question of fitness to act as a juror.

Lord Macaulay of Bragar: Perhaps we can discuss that point at greater length on another occasion. Does it mean that if I have an argument with my wife in the morning before I leave home, having been called as a juror, I can go to the judge and say, "By the way, I have had a pretty bad morning—it started off badly and can only get worse—and so I cannot apply myself to this case. Would you please excuse me?"? That seems an extraordinary proposition. But perhaps we will come back to it at some other time. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

6.15 p.m.

Clause 8 [Challenges to jurors]:

Lord Macaulay of Bragar moved Amendment No. 18:

Page 6, leave out line 17.

The noble Lord said: This is an amendment in relation to the peremptory challenge of jurors. Basically, the amendment refers to what we have already discussed; namely, that the peremptory challenge should not be abolished. My information is that the Thomson Report held that the peremptory challenge should be continued unless good reason were given for this particular part of the Bill by the Government. The Government have to look at the matter very carefully to consider whether it is in the interest of justice. I beg to move.

Lord McCluskey: It will be observed from the Marshalled List that I gave notice of my intention to oppose the Question that Clause 8 stand part of the Bill. But Amendments Nos. 17 and 18 run together and I shall therefore address the whole matter in dealing with Amendment No. 17.

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First, let me remind the Committee that at Second Reading I made some observations about this matter (Official Report, 29/11/94; col. 566). The position is that prior to 1980 there were five peremptory challenges; in other words, either party—although it was almost invariably the defence—could exercise the right, without cause shown, to say "I object". The juror would not then proceed to enter the witness box. Administratively, the position is different from that in England. What happened was that the clerk of the court would pull a number out of a box—say, number 123—and everyone knew who it was. Then he would call, "Mrs. Elizabeth Jones". At that stage the defence counsel would say, "Object", and the clerk would simply say, "Mrs. Jones, please remain in your seat". So it was done and always is done with reasonable dignity and the least offence to people.

There were five peremptory challenges. One will find the history of the matter narrated in the Thomson Report (Command paper 6218 of October 1975, paragraph 51.28). The Thomson Committee recommended reduction of the jury in Scotland from 15 to 12. That recommendation has never been acted upon. In that context the committee suggested the reduction of the peremptory challenges from five to two. So, logically, for 15 jurors it follows that it would recommend three peremptory challenges.

That matter was dealt with by that very distinguished committee. I gave an indication of its membership when I spoke at Second Reading. Therefore I need not repeat it. Let me refer to paragraph 51.30, which is what the committee found:

    "The overwhelming view of our witnesses who submitted evidence on this issue was in favour of the retention of the peremptory challenge although some suggested that the number of challenges should be reduced".

At paragraph 51.31 it said:

    "We agree that peremptory challenge is difficult to justify in principle but we think that it should be retained in order to restrict as far as possible the use of the challenge on cause shown".

So the recommendations were made on that basis.

In 1980 the Government came forward with a Bill and a proposal to reduce the number of peremptory challenges from five to one. At that time in this Chamber I asked that the number should not be five but three. The Government rejected that proposal. Then, in another place, the Government accepted that proposal. Accordingly, the 1980 Act confirmed that the number of peremptory challenges was to be three.

I do not want to quote at great length from what was said in the Committee in the other place but the Minister, Mr. Rifkind, said that Mr. Ewing—now the noble Lord, Lord Ewing—had asked the Government to have a rethink. He said:

    "The Government have done so. The Government's original proposal was that there should be only one peremptory challenge. An amendment was tabled ... which proposed three challenges ... Three challenges is a balanced compromise between those who hold different points of view. It would be unwise to disturb that compromise now".—[Official Report, Commons, 23/7/80; cols. 628-629.]

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Therefore, in 1980 the Government's view was that the number should be three. The noble Earl, Lord Mansfield, who was the Minister responsible, accepted that in this Chamber at a later stage.

To echo what has already been said in an earlier debate, there are good reasons for objecting to jurors. The noble Lord, Lord Macaulay, referred to some of them. Even the address discloses the risk that the juror may have heard some of the gossip. He may live in the neighbourhood. One wants to know that. He may have lived in the same area as a previous, notorious case, possibly of the same kind in public imagination, involving the same wrongdoer. The name of the juror, particularly in parts of Scotland, may suggest ethnic, religious or even football associations that might lead to prejudice. I do not make any light-hearted remark about this risk. I know cases in which, if one is acting for the defence, it is extremely important to avoid having people of a different religious persuasion involved in the case. In my experience there have been many cases in which counsel have come to a sensible view that there are too many jurors of one sex on the jury or too many jurors of a certain age on the jury.

I see no reason to abolish the peremptory challenge which now exists. There is in circulation an apocryphal story about jurors in England carrying a copy of the Financial Times under their arm and wearing a tie and thus being objected to. I should like to know whether that ever happened or whether it is just a story invented for some particular purpose.

I am concerned about this matter. I shall be told that the practice in England tells me otherwise, but for good reasons I do not believe that the practice in England is very relevant. I believe that what will happen is that, if the defence wants to object to a person because that person's name is Riley or because that person lives in Govan or if counsel and agents want to object because that person is of a particular sex or age or for some such reason, but there is not cause shown, the objection will nonetheless be taken and a good deal of time will be wasted.

I cannot see any point in that. If the defence indicates that it is going to object, then, in order to save time and to have the case proceed, the Crown will tend to agree. Under the new provision the court then has no option and the juror will be stood down. It is silly to move in that direction—away from a compromise which followed the recommendation of an extremely experienced committee.

I know of no evidence of abuse of the system as it currently exists. In all seriousness, I say—I have said it before and repeat it—that I have more experience of appearing in the High Court in Scotland than any other serving judge or participating advocate with the possible exception of one or two who are now full-time lawyers acting for the defence. I have sat for 10 years in the criminal courts. I was a prosecutor and solicitor-general for 12 years. I acted for the defence over the rest of my career. I have no evidence whatever of abuse of the right of peremptory challenge. If the Minister knows of abuse of that right, I hope that he will tell us about it.

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I know that if we give a right of peremptory challenge, such as exists in the 1980 legislation, more jurors will need to be brought to court—not many, but a few. That is not in itself a bad thing. It is important that members of the public should come into court from time to time and see what the court does, even if their involvement is the modest one of attending for the purpose of balloting a jury and then being told their services are no longer required. I do not believe that most people would regard that as an improper waste of their time. For those reasons, I intend to oppose the Question that Clause 8 shall stand part of the Bill, but I support Amendment No. 18.

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