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Lord Macaulay of Bragar: The noble and learned Lord has put forward an interesting proposal. However, with respect, I think that it is an intrusion into our current criminal justice system which must be treated with great caution. I should like to deal with the amendment in the spirit in which it has been brought before the Committee, as was the case with the previous question of victim impact statements. The question of lay participation in sentencing policy within a court could be referred to a working party for consideration or even to the Scottish Law Commission, as was suggested by the noble and learned Lord in relation to victim impact statements.

Subsection (5) states:

I take it that a majority of eight to seven is envisaged.

However, what is more important and what causes me some hesitation and prevents me from agreeing entirely with the noble and learned Lord is the fact that jury service as it stands is an imposition on the citizen. Many people are absolutely terrified at the prospect of serving on a jury. Of course, they cannot get out of that duty simply by saying that they are frightened because every citizen is told that he has to do his public duty within the legal process.

Let us consider the example of a juror who is not very happy at having to serve on a jury in the first place. If the judge thinks that he is going to give the defendant a sentence of three years or more, under the provisions the juror will be obliged to stay on in the court to

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determine the sentence recommendation, subject to subsection (5). Let us consider a case involving a serious assault where the judge thinks that he will be obliged to give a sentence of more than three years. Let us also suppose that the jury views the case with equal abomination and that it returns with a majority, saying to the judge, "We think that this man should get 10 years". That being so, a juror is open to possible retribution from the family and friends of the accused on two counts: first, for having been part of a jury which convicted the accused and, secondly, for being responsible for the sentence that was imposed on the accused. In my submission, that is not fair to the jurors.

Nothing in the amendment gives a reluctant juror the right to say, "No, I do not want to be part of this process. I am not staying here to consider what sentence the accused should be given". If Amendment No. 87 were to have any practical effect, provisions would have to be built into it to specify that jurors should have the right to opt out of the sentencing recommendation process if they so chose. Only if the whole jury, by a unanimous vote, agreed to assist the judge should the jurors participate in the process.

I am not sure that close contact with the law and criminals is a good recommendation for taking part in sentencing policy. I may have misunderstood what the noble and learned Lord said, however, and I shall read his words in the Official Report tomorrow.

I am of the view that until something better is demonstrated —and it will take time to demonstrate that, for example, lay input in sentencing policy is better than our current court-led sentencing—subject to the views of the Court of Appeal, judges should continue to administer justice as they have undertaken to do on oath, without fear or favour. That is what society expects of the courts and judges and that is what should happen until it can be demonstrated that there is something better, or that lay input can improve our sentencing policy. For those reasons, I do not feel that I can support the noble and learned Lord's amendments.

6.15 p.m.

Baroness Carnegy of Lour: I have been fascinated by the discussions about the involvement of victims and the jury. I have also been extremely impressed by the very clear exposition which the noble and learned Lord, Lord McCluskey, has given us. I should, however, like to ask the noble and learned Lord whether he really feels that being involved as a member of a jury in making a recommendation as to sentencing will necessarily help the public to feel that they are having a say in the system. It seems to me that if a jury recommends a certain sentence and the judge appears to have listened to the jurors, they will be awfully pleased and will think that the system is awfully good, but the victim will not be so pleased because he or she will feel that the jury has influenced the judge. That is not an easy thing to accept. Conversely, if the jury appears not to have influenced the judge and he does something very different from what the jury has suggested, I should have thought that the whole jury would be cross with

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him, although the victim might be pleased. I do not believe that that will help the public to have confidence in the system or in the judges.

I quite see that from the judge's point of view there is a great longing to know what the public are thinking about what judges do. When I was an honorary sheriff I remember being only too well aware of what the public thought of what I had done because I met them in the street afterwards when they often cursed one into heaps and said, "Why didn't you do something different by way of sentence?" Some even criticised the sort of case that one was handling. When I became a Peer I was asked, "Surely Peers handle more important cases than that?"

I believe that the public think about this a lot and that, although the press may exaggerate, Members of Parliament, councillors and other people who have to listen to the public's opinion on all sorts of things know a bit about it. I believe that it might be counter-productive if this proposal were to become a regular procedure. People might begin to watch carefully to see what disagreements arose, which might cause upset and disrespect for the law.

Lord Elton: I am not sure whether Sassenachs who are not engaged in this matter should join in, but I was interested by what the noble and learned Lord said. I wonder whether he can explain a couple of points. First, what is the relationship between the judge and the advice of the jury? Will the judge be given guidance as to whether or not to accept it, or what weight to give to it? What happens when there is a perverse recommendation? Is he to say that it is perverse and that he is rejecting it because it is perverse? Will he have to give reasons why he has accepted or rejected the advice or why he has modified his position to come nearer to that of the jury? If judges do not normally accept the advice of juries, will not the process begin to diminish the authority of the judges in the eyes of the public?

Secondly, I see that this procedure is to be brought into action when the judge is minded to pass a sentence of three years or more. Presumably there is some process by which the jury becomes aware of the fact that the judge is so minded. I wonder whether we could be told at what stage in the proceedings that would be, and how it would be communicated.

The Earl of Balfour: Perhaps I may follow what my noble friend has just said. As a justice of the peace of a district court, I was always advised by counsel as to what sentence should be passed. To the best of my knowledge—I am on shaky ground here legally—all a jury has ever been asked to do in a court in Scotland has been to return a verdict of guilty, not guilty or not proven. I do not believe that the jury has ever been expected to consider what sentence should be passed.

In relation to Section 217C(3)—Amendment No. 87—if that is approved in principle, I wonder whether the clerk of the court, who is mentioned in that

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subsection, should perhaps advise the jury as to what it should do or give it guidance. I am not altogether happy with the proposal.

Lord Monkswell: I support the proposal made by the noble and learned Lord, Lord McCluskey. It is eminently sensible and I thank him for bringing it before the Committee. I bear in mind the reservations of my noble friend Lord Macaulay, but on reflection I wonder whether the safeguards for which he was obviously looking are not built into the amendment. He suggested that one of the problems might be annoyed victims or their families having a go at the jury because it has been seen to inflict the sentence.

By virtue of the fact that the jury can reach a majority decision on whether to make recommendations to the judge, that decision would obviously be in secret. So no one would know which way any member of the jury had argued. Therefore individual members of a jury should feel safe from any possible repercussions.

It is interesting to compare a jury trial with a trial in a magistrates' court. If we look at what has developed over history, we can see that in the Crown court there is a separation between the jury's decision on guilt or innocence and sentence. There is a separation between the judge and the jury, but in the magistrates' court, the judge and jury are effectively enshrined in the same person. It has recently been recognised that it is not useful to have magistrates who are set above and distinct from society. Successive Lord Chancellors have appealed continually for "ordinary people" to come forward to serve as magistrates. That is useful, because it is wrong for people not to be tried by their peers. That is something that has developed within magistrates' courts which we all welcome.

In a Crown court jury trial we still have a large degree of separation between judges and jurors. The crux of the problem with which the noble and learned Lord is attempting to deal is how judges, in their determination of sentence, can be informed of what is in the minds of ordinary people. The noble and learned Lord has arrived at a mechanism which would be useful. I note that in the amendment he does not take from the judge the responsibility for determining sentence. The jury's role would be purely advisory. It would make a recommendation to the judge who would then take the decision. It would be useful to have that mechanism in place.

Obviously a jury could not be asked to decide what the sentence should be. It is likely that there would be a lack of consistency over time between one judgment and the next, because different people would be involved. It is obviously necessary to leave the ultimate responsibility in the hands of the judge at this stage of the courts' development. With those reservations, I warmly welcome the noble and learned Lord's proposal. I suspect that it will not receive the Government's support or acceptance, but we owe him a debt of gratitude for bringing it before the Committee to enable us to debate this important subject.

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