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The Lord Advocate (Lord Rodger of Earlsferry): My Lords, the Committee debated the issue of peremptory challenge at some length, and the noble Lord, Lord Macaulay, indicated that he was today concerned with very much the same matters. In relation to the general principle behind the Government's proposal, I adopt what I said in Committee. In reply to the noble and learned Lord, Lord McCluskey, I simply say that the matter of peremptory challenge arose for consideration when the Government were considering various issues in relation to juries and how they operated in Scotland.

In relation to the specific matter of peremptory challenge, we were aware that that right had been enshrined in Scottish law for a long time—centuries may be a slight exaggeration; I believe that it was introduced at the beginning of the 19th century in response to specific circumstances at the time. It has been modified since, as your Lordships have been told. As I said in Committee, we were aware of the recommendation of the Thomson Committee. We were

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also aware, as I indicated at Committee, that since that time there had been changes in the eligibility of people for jury service; and, more particularly, we were aware that over that period legislation introduced in England showed that the reform of the kind we envisage here did not bring in its wake in England the consequences which were thought may be brought in in the way of increased challenges for cause shown.

I do not believe that there would be a great increase in challenges on cause shown and that it is not legitimate to have regard to the experience in England. I accept that the juries are differently composed and that there are different mechanisms in place for verdicts in Scotland, as we all know. Nonetheless, I am certain that we can look to see what the experience has been.

In relation to the proposal of the noble and learned Lord, Lord McCluskey, I believe that in practice it would lead to further delay in the start of cases and would not be helpful. When one asks to what the noble and learned Lord is referring, we find that he is referring to the possibility that the defence, on looking through the jury list, will see, for example, a specific address. If that is a legitimate ground for objection to a potential juror—for example, that they live in the same street or next door to where the incident took place or that they may know the person concerned and that can be detected from the list—that may be a good ground for showing cause why that person should not be included on the jury. On the other hand, there is no reason why that should simply remain a basis for making a peremptory challenge.

I go back to the position from which I started; that it is right in principle to have regard to the random nature of selection, qualified by the kind of provision which we made in Clause 8 for both the prosecution and the defence and by the retention of the right to challenge on cause shown. We believe that with those qualifications the principle is the correct one and the clause should remain unamended.

4 p.m.

Lord Macaulay of Bragar: My Lords, I have listened with interest to what the noble and learned Lord the Lord Advocate has said. It merely underlines the problems which are awaiting us in the criminal courts. For example, the remaining matter which the defence can raise is cause shown.

I can very readily imagine defending someone in the criminal court in Glasgow, or anywhere else, and seeing that a juror came from a particular area with a high incidence of crime. That person would not necessarily be living in the same street or even the adjoining street, but on the face of it it could be said that he did not come from a part of the community which was interested in upholding law and order and justice. If I rose and said to the presiding judge, "I object to this juror", and he replied, "You can object only on cause shown, and what is that?", I could only say, "He lives on housing estate X and I have material from the Strathclyde police and the Lothian and Border police saying that one cannot trust anyone from that particular area because they will not

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co-operate with the police. They are not interested in law and order". The judge would then say, "Don't be so ridiculous. You cannot categorise people in one particular area as being all tarred with the same brush of not being interested in law and order". Therefore my cause shown would be thrown out of the window. But looking at the other side of the coin, it is possible that the Crown's case as regards a particular individual would also be out of the window because very often such persons do not care about the system of justice.

As I asked before, for the purposes of criminal proceedings, who is going to define what cause shown is, or is it going to be left entirely to the discretion of the presiding judge? However, I leave these matters as they stand because, like other matters, they will be raised no doubt in another place.

I am grateful to the noble and learned Lord, Lord McCluskey, for his support of my amendment. As regards his own amendment I can see the point of it. But there are matters which arise; for example, at the moment potential jurors are given a fairly lengthy lecture by the clerk of court telling them what the system is and instructing them that the defence has the right to object to three people for its own reasons and that potential jurors must not take it as a personal slur on themselves. I have never heard of a potential juror running to the authorities and saying that he was very upset because he was objected to. The system seems to work well.

The noble and learned Lord's system can only work in terms of written objections to the clerk of the court if the defence is given a list of assize and time to look at it. Very often that is done after the case is called on, which does not give much time for writing down the names of jurors who might be objected to. I hope that the noble and learned Lord was not suggesting that that would be the only way to object. It is not unknown in certain towns or in country areas, for example, for a person who has arrived for jury service to be called early in the morning if his countenance, to say the least, suggests that he may have an alcoholic problem. Therefore, the prospect of sitting in court from 10 a.m. to 4 p.m. will be abhorrent to him because he will not get his favourite beverage. He certainly would not get it at lunchtime in the Scottish court system. Therefore, if someone of that kind was spotted and he was objected to, would that be cause shown?

If I saw someone whom I suspected of being an alcoholic or having an alcohol problem and then said to the judge, "I am objecting to this juror", the judge asked why, and I replied, "Because I believe that he probably is an alcoholic or has a severe alcohol problem", the judge would then ask, "What is the basis for saying that?". I would answer, "I just do not like the look of him". The judge would tell me to sit down and behave myself. One can see the problems which are going to arise in this matter. I hope that it will be closely monitored by the Government to see how the system works. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord McCluskey moved Amendment No. 6:

Page 6, leave out line 14 and insert:
("(a) in subsection (2) the words "when the name of that juror is balloted" shall be deleted and in their place shall be inserted "by written intimation to the Clerk of Court after the diet has been called and the pleas have been recorded".").

The noble and learned Lord said: My Lords, I have already spoken to this amendment, but in moving it I shall use the opportunity to respond to some of the points which have been made. I respectfully suggest that the noble and learned Lord the Lord Advocate is wholly wrong to suggest that the system I advocate would lead to delay. On the contrary, it would have the opposite effect. I envisage that defence and Crown counsel be given the list of assize in time for them to scan it and to decide whether on the basis of address, name or any other information that it may contain they want to object to a juror. They would simply note the ones objected to and write them on a piece of paper. When the clerk of the court called the number, counsel would indicate to him that the number related to a person who should not be empanelled as a juror.

It can be done in a number of ways. Another is to have the clerk of the court simply read out the number. He would call, for example, "No. 128" and pause. If one wanted to object one would say, "Object!". In that way the name of the person is not called and he or she does not even know they have been called and rejected. That disposes of an argument which has been advanced that it is humiliating for jurors to be objected to.

The noble and learned Lord the Lord Advocate replied to the effect that, if there was a basis in relation to the address, the name, occupation or some other matter, that could provide substance for an argument that cause was shown. That would simply waste time. I am certain that as regards those cases on which I now sit very frequently, where the religion, address or other features of a potential juror are thought to be of importance, counsel would have to take objection on the ground of cause shown. Then the judge would have to entertain submissions on the matter from both parties. That is a very costly and unnecessary exercise.

The Government still have time and I urge them to think again. I urged them to do so in 1980 but they declined. When the matter came back to this House from the other place they had thought again and arrived at a sensible solution. I urge them to do the same on this occasion. With that observation, I beg to move. I do not propose to say anything further.

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