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Lord Wigoder: My Lords, before I--
The Earl of Onslow: My Lords, is my noble friend saying that we should vote it down at Second Reading because it is such an awful Bill, saving time and money--that seems to be important to the Government--by not allowing it to go to Committee and Report stages?
Lord Alexander of Weedon: My Lords, as always my noble friend is extremely discriminating. My personal view would be that if the Front Benches of the opposition parties had decided that they should seek to vote it down today I should have rejoiced and followed them gladly and with high step into the Lobby.
Lord Wigoder: My Lords, the noble Lord--
Lord Williams of Elvel: My Lords, following what the noble Earl, Lord Onslow, said, the noble Lord, Lord Alexander, is quite entitled to challenge the Motion for a Second Reading. I listened carefully to what the noble Lord said. He objects so fundamentally to the Bill that he is perfectly entitled to put the Question, and oppose it.
Lord Alexander of Weedon: My Lords, the noble Lord is a talented cricketer and writer about cricket. Before that course is considered, perhaps he would care to give an assurance to the House that the Government do not have troops lurking in the pavilion against that very eventuality.
Lord Williams of Elvel: My Lords, whether the Government have troops in the pavilion, I know not. That is up to my noble friend the Chief Whip. I simply say to the noble Lord that having made his speech in the way he has, he would be entitled, probably following the noble Earl, Lord Onslow, to challenge the Second Reading of the Bill.
Lord Alexander of Weedon: My Lords, happily I am sure the noble Lord would agree that I would have a discretion--the very discretion that we seek to keep on behalf of defendants in criminal proceedings.
5.55 p.m.
Lord Wigoder: My Lords, third time lucky! I find myself in a difficult position in wondering whether to follow the noble Lord, Lord Alexander of Weedon, in
his powerful and destructive analysis of the Bill. I think that on the whole I shall not do so. Instead I shall confine myself to my principal objection to the Bill which is not to its contents but to the fact that it represents a further stage in chipping away the rights of defendants and the right to jury trial in this country--a stage embarked on long before now and which will continue well into the future.I say that it has been embarked on previously because the noble and learned Lord the Attorney-General gave a number of examples of measures covering, broadly speaking, related ground to the measure we are discussing today. Not one single one of the measures he mentioned increased the rights of the defendant. Not one single one of the measures he mentioned increased the opportunities of jury trial. I believe that if in due course we pass the Bill--I trust that we shall not--it will be followed rapidly by other Bills of a similar nature. Lurking in the background is the abolition of juries in long fraud cases. If that came into effect, it would be said, "If this applies to long fraud cases, let's abolish the right in all long cases, whether or not fraud". It would then be said, "If we abolish the use of juries in long fraud cases, why not in short fraud cases as well? The poor juries obviously cannot understand a word of what is going on". Then there would be an attack from the other end, diminishing the number of cases in which election for trial is possible, and increasing over and again the extent of summary trial without any option.
If the noble and learned Lord the Attorney-General were to say that he has not the slightest intention of embarking on any further measures that will restrict jury trials, I would accept at once that he believes it completely; and I would accept that that would be his present intention. However, I believe also that because jury trial inevitably involves conflict with government, further attacks on the independence of juries will follow inexorably. They will follow to the extent of doing substantial harm eventually to the whole structure of which we should be very proud.
We should accept that the role of juries is not simply to return verdicts of guilty or not guilty. Although it is an important role, it is not simply that it should offer to the defendant the opportunity of being tried by his equals. The role of the jury fundamentally is this: I almost hesitate to recall the quotation, and if I begin with the words,
- "The first object of any tyrant",
- "The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen".
I give the examples of some 35 years' experience at the criminal Bar prosecuting, defending and trying cases. I have been driven to the conclusion that juries--and I am proud to say it--stand up to authority, even if it may mean stretching the evidence and returning a verdict which is not true according to the evidence, but true in the interests of wider justice.
Before giving those examples, perhaps I may make three brief one-sentence provisos. First, for obvious reasons, I do not propose to identify individual cases. However, there will be one exception to that. Secondly, some of the cases to which I shall refer were not triable either way; not directly caught by the Bill. But that is totally irrelevant to my argument on the progress of jury trials generally.
My third point was made by the noble Lord, Lord Borrie. I refer to our lack of knowledge of what happens in the jury room. I wholeheartedly believe that any form of invasion of the privacy of the jury room would be a total disaster. I have always opposed the suggestion and I shall continue to do so. However, I must add, perhaps curiously, that during my observations I shall repeatedly say, "The reason why a jury took a view in this case is obvious and it is this". One is able to say that because, in certain types of case, a pattern develops. An unexpected verdict on a particular set of facts is repeated over and over again. Then it is possible to state beyond reasonable doubt the motive behind the jury's verdict.
The first category of case relates to the Official Secrets Act 1911. I am sorry to say that the Act was passed by a Liberal government, and went through all its stages in this House in five columns of debate in Hansard. It passed through all its stages in the other place in 35 minutes flat! Your Lordships will remember that Section 2 of the Act imposed draconian penalties on any civil servant who released any information, however trivial, about what was happening in his office. I refer, for example, to the number of cups of tea the Minister had drunk that day or the names of Cabinet Ministers.
A series of trials took place in the 1960s and 1970s in which governments attempted to intimidate, primarily, civil servants in their employment by prosecuting them under that draconian Act for the most ridiculous, absurd revelations or leaks. The matters were in no way related to the security of the country or to the safety of the state. Prosecutions were brought and the judge, bound by the law, had to tell the jury, "It is very difficult to see that there is any defence in this case"; and in one case after another, the jury returned a "not guilty" verdict. I suggest that it is beyond doubt that such juries were saying to the Government, "You are being oppressive. We do not like what you are doing and for that reason we are going to throw this case back in your face".
That series of cases came to an end when my noble friend Lord Hutchinson of Lullington and I happened to co-defend in an Official Secrets Act case in which a High Court judge finally took his courage in his hands and told the jury he thought it time that Section 2 of the Act was pensioned off. In due course, it was.
The second type are obscenity cases. The decision as to what was or was not obscene was decided by the tribunal without further assistance from the law. Such offences were triable either way, but I cannot recall any case before lay justices, a stipendiary magistrate or a professional judge alone trying a case on appeal at Quarter Sessions in which the tribunal said, "This item is not obscene". Of course, if there had been a photograph of the noble and learned Lord in his spangled tights, perhaps a different view of the proceedings might have been taken. That was the view of the professionals--and I include lay justices.
When cases went for trial by jury, in one after another case the books, photographs or whatever were found not to be obscene. No one now doubts that the juries and not the professional tribunals were then in tune with the times. That is why that Act has, for all practical purposes, fallen into disuse.
The third type of case, recently in the news, relates to the battered wives syndrome. I refer to cases in which battered wives have been driven to such a state by their husbands that they have killed them. The charge has been one of murder and the judge has been under an obligation to tell the jurors that the law provides that they cannot convict of manslaughter instead of murder unless the violence was so imminent in relation to the killing that at the time the wife must have lost all her self-control. Some juries instructed in that way convicted, but some--and all praise to them--notwithstanding the judge's direction, proceeded to acquit of murder and return a verdict of manslaughter. Those cases and those actions by those juries, supplemented by the media, lead to cases being brought before the Court of Appeal and to the law being modified.
I turn to police evidence and try to put the matter as quietly and moderately as I can. Some time ago in some areas of this country, undoubtedly some police officers committed perjury over and over again in order to secure a conviction. There is now no doubt about that. It was not discovered by the lay magistrates, the stipendiary magistrates or the judges on appeal at the Quarter Sessions. The juries sensed that something was wrong and realised that at that time in those places police officers could not be trusted unless there was strong corroborative evidence. Juries, one after another, returned verdicts of "not guilty". As we now know, subsequent inquiries justified that.
There are other reasons why juries stand up to the judge or the tribunal and show independence. In some cases, a witness is malicious and offensively racially bigoted, and the jury takes the view, "Never mind what the defendant has done, we are going to teach that witness a lesson. We are going to put on record the fact that we thoroughly dislike him and hold him in contempt". The guilt or innocence of the defendant is let go in those circumstances. I said that I should mention only one such case; it is the recent case in the United States of O.J. Simpson. I believe that my suggestion is the only reasonable one for the "not guilty" verdicts which were eventually reached.
The role of the jury is crucially important in cases in which the prosecuting authority and prosecution witnesses show a degree of unfairness. It used to be a commonplace in my younger days that judges would sum up violently in favour of the prosecution, and over and over again juries would return and say "not guilty", for the simple reason that they wanted to cock a snook at the judge and make it clear what they thought of his behaviour. Similar cases exist where those responsible for the prosecution have failed at times to disclose the kind of evidence that they should have disclosed to the defence, yet it comes to the attention of the jury. Every defence counsel knows that from that moment onwards only one verdict will be returned.
I remember a particular case with some pleasure because the defendant was one of the few defendants acquitted after I had addressed the jury who was actually grateful for the result. The defendant was a detective superintendent charged with stealing a packet of crayons worth sixpence--which gives an idea of the date of the matter--from Woolworth's. On my advice he elected to go for trial. I cannot truthfully say that he had much of a defence. One did one's best with limited material. The jury were out for five minutes and then returned with a "not guilty" verdict. I have seen that pattern happen in cases over and over again. It is obvious that, in that case, the jury took the view: "Yes, he did it, but he is a detective superintendent. It is the first time there has been anything like this. If we convict him, he will lose his job and pension and he and his family will suffer for the rest of their lives. We know perfectly well that he will never do it again".
In those circumstances, in the interests of a wider justice, the jury found that man not guilty of that trivial charge. I appreciate that such a situation may be covered under the present Bill, but I should hesitate before putting my trust in magistrates or in the judge on an appeal to the Crown Court determining that that was a suitable case for jury trial, bearing in mind the trivial amount of the money involved.
In those circumstances, it seems to me that the noble Lord, Lord Mackenzie of Framwellgate, was quite right when he referred, in the passage to which my noble friend also referred, to there being "vested interests" at work on those issues. There are indeed vested interests at work: those of authority, government, the Civil Service and the police. One must face up to that fact. It has always been that way and always will be. It is therefore a real temptation for governments to introduce such measures to try to restrict the right of ordinary people in this country to trial by jury.
To pass the Bill would be to take a significant step on a slippery downward slope. I am delighted to hear the contributions to the debate, exactly as I was delighted to hear, from the almost unanimous contributions made at the meeting last night with the Home Secretary, that there is every prospect that, in due course, we shall halt the Bill in its tracks.
6.13 p.m.
Lord Archer of Sandwell: My Lords, if the noble Lord, Lord Wigoder, finds that it fortifies him, I agree with almost every word he said. I hope that he will forgive me if, on a matter which is perhaps rather marginal to the debate, I say that I find myself on the side of my noble friend Lord Borrie. It would be helpful if we knew more about some of the dialogues that take place in the jury room and the workings of jurors' minds. It would be possible to introduce safeguards into that research. It is a subject on which I have been corresponding with my noble and learned friend the Lord Chancellor and on which I welcome the support of my noble friend Lord Borrie.
I should very much like to congratulate the noble Lord, Lord Wigoder, who did not introduce a disquisition about the previous convictions of my noble and learned friend the Attorney-General. My noble and learned friend does not require me to defend him. The question of whether he altered his mind since the matter was last discussed or whether anything turned on the absence of an appeal seems to me to be fairly marginal to what we are discussing today. If my noble and learned friend had said that he had listened to the arguments with an open mind and that he concluded it possible that on the previous occasion he might have been wrong, would that not have been commendable? Do we not complain that governments do not listen with an open mind?
I can think of a number of issues on which I hope my noble and learned friend and his colleagues will listen again with an open mind in the weeks that lie ahead. I do not criticise my noble and learned friend for having an open ear. Indeed, if I may say so--I hope that the noble Lord, Lord Cope, will forgive me for doing so--I should have thought that the change of mind might have received a more generous response from the Opposition. Two years ago, it was they who were deploying the arguments which my noble and learned friend deployed this evening.
The Government now say, "Well, you were right. We have decided that we agree with you". Was there rejoicing over the repentant sinner? Did the fatted calf collapse in mortal terror? No--the reply was not, "So glad that we can now agree", it was, "Well, if you have come to join us, we are no longer standing in the same place". Oppositions, too, are entitled to change their minds.
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