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The Earl of Mar and Kellie: My Lords, I rise to support the amendment. It seeks to ensure that juries are made up of appropriate people who can be easily scrutinised at the beginning of the trial process and who are unlikely to be biased in favour of the prosecution or defence. I speak briefly as someone who has been excused jury service on three occasions because I have been employed at the social work end of the criminal justice system.

Lord Fraser of Carmyllie: My Lords, when this matter was debated at an earlier stage I made the error of indicating that the occupations of jurors in England and Wales had never been shown on the jury list. I regret that my knowledge of the criminal law of England was imperfect in that respect. I understand the position to be that occupation was shown until 1973 but has never been shown since. I may be corrected again, but I understand that the absence of the occupation of the juror has not caused any particular difficulty this side of the Border.

As I explained at Committee, the clause is part of a package of reforms to improve the selection of jurors and to ensure as far as possible that a jury is randomly selected and is representative of the population as a whole. We know that in practice potential jurors of certain occupations are regularly objected to for no apparently legitimate reasons. The noble Lord gave an extremely interesting example at Committee stage. He said that if he saw someone described on the jury list as a security officer he would make the automatic assumption that the individual was a retired policeman and immediately object to him. With respect, that seems to raise an extraordinary number of questions. First, that individual may never have worked for the police. Secondly, if retired policemen are never to sit on juries it seems to me that the more appropriate way to deal with it is to have an extended list of those who are not eligible for jury service.

As my noble friend Lady Carnegy pointed out during our earlier debate, discrimination against certain occupations is unfair to individuals and also prevents the selection of representative jurors. Accordingly, in the view of the Government there are sound reasons of principle for the proposal in Clause 6. With that repeated explanation, I hope that the noble Lord will feel that he can withdraw his amendment.

Lord Macaulay of Bragar: My Lords, we are to some extent going over the same ground. It is a fact that in practice when people were designated security officers that assumption was made. In modern times when security services are put out to private tender and different groups look after security that fact may no longer apply. However, no doubt those involved in court cases will take that into account.

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The fact that England has survived with this system since 1973 has nothing whatever to do with Scotland. On the next amendment I shall make the point that Scotland has an entirely different system. In England one can have either a unanimous verdict of 12 jurors or a majority of 10 votes to two. The system is completely different in Scotland. In an attempt to seek a balance in any trial it is important that the defence should at least know from where the juror comes, and who he is. It should be able to make a reasoned judgment on the matter, rather than having to scratch about for information on jurors to see whether the defence should advance an argument on cause shown.

I am sure that the matter will raise its head in another place. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

Clause 8 [Challenges to jurors]:

3.45 p.m.

Lord Macaulay of Bragar moved Amendment No. 5:

Page 6, leave out line 14.

The noble Lord said: My Lords, Amendment No. 5 relates to the removal of the right to the peremptory challenge of three jurors. The matter is linked to what has already been said in connection with earlier amendments about leaving out the occupations and addresses of potential jurors for the information of the Crown and the defence in criminal trials.

There is no good argument as to why the peremptory challenge should be abolished. It is a quick and convenient way to convene a jury to hear a case. The view has been expressed that to require cause to be shown in open court can prejudice a potential juror, but I assume that if an argument on cause shown were presented to the court the presiding judge will ask the potential juror to leave the court.

I make the short point that comparisons between England and Scotland in the process of criminal law are invalid. It should be borne in mind that Scotland has a completely different system and balance. A criminal jury in Scotland is composed of 15 people. One can be convicted or acquitted on a single vote of eight to seven. The balance in the voting system in England is already in favour of the accused to some extent. In England the Crown has to convince 10 out of 12 people that a person is guilty before such a verdict can be recorded. In Scotland the Crown simply has to persuade eight out of the 15. That is why I suggest that there is an imbalance in the system. If we retain the previous situation regarding addresses and the peremptory challenge of jurors, we can retain a balance in the Scottish criminal system. I beg to move.

Lord McCluskey: My Lords, this amendment is associated with my Amendment No. 6. Clause 8 effectively removes the first few subsections of Section 130 of the Act which describe what the section is about. Section 130(1), which the Bill proposes to remove, reads:

    "In any trial, each accused may challenge three jurors, as may the prosecutor, without giving any reason."

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That enshrines the peremptory right—it is equal on both sides—of challenge to three jurors.

I remind your Lordships that the details of the discussion on this point can be found in the Official Report at vol. 559, no. 7, col. 566, when the matter was discussed at Second Reading on 29th November 1994, and in vol. 560, no. 22, col. 335, on the first day of Committee on 12th January 1995.

The Government have said that they are advancing a good basic principle in relation to the abolition of the right to peremptory challenge. I remind your Lordships of what I said on previous occasions. The matter of principle was looked at by the Thomson Committee in the 1970s, the most distinguished body of criminal lawyers and others which had been gathered for such a purpose this century. It did not recommend what the Government now propose but recommended that centuries of history and tradition should be adhered to in this regard. The Government brought forward a proposal in the 1980 Bill to reduce the number of peremptory challenges, and they ultimately settled for the compromise—agreed by all parties—of three peremptory challenges. That is what we find in Section 130(1) of the 1975 Act, as amended.

The Lord Advocate then and the Minister now both espoused the principle of randomness and justified the provision on that basis. But they do not seek to justify it properly on the basis of randomness because under the new Bill they give both the prosecutor and the defence the right to agree to interfere with random selection by their agreeing to take someone off the jury. They also leave the right to remove a potential juror for cause shown.

I urge the Government therefore not to tamper with a principled tradition which is centuries old, not on the basis that the Lord Advocate or the Minister thinks it is justified in principle, but on the basis that the Minister should be humble enough to realise that when judgments of principle are made, such as that in relation to the Child Support Agency, the Government can get the matter entirely wrong. One can think of other examples where so-called principles were brought forward and in practice produced extraordinarily bad results. I believe that that is a likely consequence in this regard and that the numbers called upon to attend for jury service will not be reduced. The probability is that the number of challenges for cause shown will rise in Scotland—they may not have risen in England, but I am sure that they will rise in Scotland.

One other red herring is constantly dragged into these debates and was dragged in on a previous occasion—that is the assertion that if a member of the public turns up in court carrying a copy of the Financial Times, that person will automatically be objected to. In 40 years of practice I have never known that to happen; in fact, I do not believe that I have ever seen a copy of the Financial Times in a Glasgow criminal court or any other criminal court in Scotland.

It so happens that, sitting as I am currently in Glasgow on criminal trials, I saw two juries empanelled last week and on each occasion three objections were taken—that is the maximum. On each occasion counsel did not look to see who the juror was to whom objection

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was being made, so it was not done on the ground that the person was wearing a collar and tie or that she had had her hair recently permed or that he was carrying a copy of the Financial Times; it was done on the basis of an address or some other circumstance which counsel had obtained via the jury list.

That brings me to the terms of my specific amendment. At the present time, objection to a juror should be taken when the name of the juror is balloted. That is the present law. I say that it should be done by written intimation to the clerk of court after the ballot has been called and pleas recorded.

Your Lordships should understand that what happens at the present time is that the clerk of court, once the pleas have been recorded, pulls the names of the jurors from a glass bowl and, for instance, calls No. 128, Mrs. Sarah Jones. She makes her way towards the front of the court and if she is objected to, objection is taken while she walks. That may be upsetting; to some it may be humiliating and others may regard it as offensive.

I propose that if people want to object to a juror, not on a ground that he or she is holding a copy of the Financial Times or is wearing a specific kind of hairstyle, but on a ground related to the address or other information in the jury list, then counsel should prepare a list of the names to which he objects and hand that list to the Clerk of Court. That would be the effect of my amendment. It would enable the right of peremptory challenge to survive; it would enable it to be done on the basis of the jury list rather than on the appearance or accoutrements of the juror, and would preserve the tradition for which the Government have shown no justification to change.

I should like to know—and the answer should be recorded so that it can be studied in another place if not here—upon what true basis the Government are seeking to interfere with the right of peremptory challenge. Who made the suggestion before they put out their trawl looking for support? I support the amendment of the noble Lord, Lord Macaulay, and at the same time proffer my Amendment No. 6.

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