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The Earl of Mar and Kellie: The grouping seems to have been too wide. Therefore, I beg leave to withdraw Amendment No. 14.

Amendment, by leave, withdrawn.

5.45 p.m.

Clause 6 [Lists of potential jurors]:

Lord Macaulay of Bragar moved Amendment No. 15:


Page 5, line 16, leave out ("for") and insert ("after").

The noble Lord said: The amendment relates to Clause 6 of the Bill. It is designed to ensure that not only a juror's address but also his occupation is disclosed in the list of potential jurors.

The purpose underlying the amendment is that the occupation of prospective jurors should be included in the list of assize people. That gives a useful guide to the defence to ascertain which jurors to challenge or indeed not to challenge. For example, as the Law Society of Scotland has pointed out, it may or may not be inappropriate for a social worker to serve on a jury in a child abuse case; or for a chartered accountant to serve on a fraud case on which he might impose his own views on the facts and indeed his own experience.

Jurors are told that they should be masters of fact. That does not imply that they should be expert witnesses. For that reason it is helpful to know the occupation of jurors in order to ascertain whether the distinction between being a juror and an expert is blurred. I am sure that both noble and learned Lords opposite know that it is sometimes counter-productive to challenge a juror because jurors become suspicious that the defence may be up to something if it opposes a person being called for no apparent reason. I know that the practice in the courts has been improved. I believe that all prospective jurors are now given an address by the clerk of the court, outwith the presence of the accused or anyone else, to say, "You've been called for jury service. If your name is called out and someone

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objects to you being called, don't worry about it, it's nothing against you personally". The jury is given that address and I sometimes wonder whether it is helpful or counterproductive.

If we do not leave the right to challenge three jurors, I hesitate to mention it but we may be in the O.J. Simpson scenario—to use a cliché from television. The accused may have to be served formally with a list of the potential jurors, say, 14 days before the trial. At the moment, in practice, as the Committee knows, in the High Court in Scotland or the sheriff court in the sheriff and jury proceedings, one is handed a list of potential jurors. The clerk of court will read out, "Numbers 51 to 95 today" and one is presented with the list. It may include Joe Bloggs, blacksmith, Jimmy Smith, bus driver and perhaps someone unemployed. One goes through the list and tries to assess whether those people might have a valuable input into the case.

However, if the occupation of the juror is hidden from the accused and his representatives we may be faced with a situation where there is a demand for the list of jurors to be given to the accused and his representatives early on so that they may make investigations as to who are on the list. That could be socially damaging and might have on-costs to the legal aid system. You may come to the court with a list of jurors and no one knows who is who, so you may ask for the court to be adjourned because you have just been handed the list of jurors—Joe Bloggs, Jimmy Smith and so on—and you want to find out who they are and what their prejudices might be, depending on the type of case. You may be adding to the costs of the legal aid system. I do not say that legal aid will be granted—and judging by the pronouncements of the noble and learned Lord the Lord Chancellor today in relation to England it is highly unlikely that it will be—but I raise the question also in the European context because people are entitled to know who is sitting in judgment of them and what is their occupation.

I am not quite sure of the objective behind the removal of the occupation. What social or legal function does it serve? For example, if you are sitting in a case of a robbery and you see: "J. Smith, security officer", you can bet your last dollar that "security officer" means retired policeman. Ergo, you say, "Objection". No questions are asked, you just say: "No, I don't want you on the jury". The chap does not take offence because he has been told about it and if he is a former policeman he would probably know why there is an objection to him anyway.

If it is a journalist, he has read all the background to the case. Let us take the current proceedings in the south and assume that the West trial—if it ever gets on—is taken in Scotland. There may be a journalist from—I shall not name any newspaper, there may be some interest in it—a tabloid who had covered all the background to the case, heard all the rumours, the gossip and innuendo. The defence has no notice of that person's involvement and if he does not disclose it and say to the clerk of court, "Look, I know all about this case, I have my own preconceived views as to the guilt or innocence of the person in the dock", then there could be real problems.

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To erode the right of the challenge to a juror may create more problems than it removes. I have heard of no juror who has taken exception to being refused jury service; in fact, most people I know are delighted when there is an objection because they do not wish to serve on a jury. I am sure that we all know from our practice in court that serving on a jury can be a terrifying and responsible experience. In my submission, this is an unnecessary deletion from the rights of the accused, as are some of the other provisions in the Bill to which we will come in due course. Accordingly, I beg to move Amendment No. 15.

Lord Fraser of Carmyllie: The purpose of Clause 6 is to improve the selection of juries so that they are more representative of the population as a whole. As I think the noble Lord will readily admit, it is common practice for defence agents or counsel to object to potential jurors simply on the basis of their occupation. We do not believe that an occupation per se should be sufficient justification for an objection. It may result in those in certain occupations being deprived altogether of their opportunity to serve on juries.

The first of the two amendments would alter Clause 6 to reinstate the requirement to indicate a juror's occupation on the list of potential jurors. In my view, there is no practical requirement for a juror's occupation to be published on that list and I accordingly urge the Committee not to accept the amendments.

There are six other amendments in the group, but I understand that they are essentially consequential on the earlier ones.

To some extent I accept that if Clause 8 is to be part of the Bill and if the right of peremptory challenge is to be removed, the issue of occupation may not be as acute as I believe it to be at present. Nevertheless, I see no practical reason for having an occupation published on the list. Accordingly, I invite the Committee to resist the amendments.

Lord Macaulay of Bragar: I am grateful to the Minister for what I hesitate to call an explanation, if I may say so with the greatest respect. What is the reason for this legislation? It exists in England and Wales, I understand, and I am not sure what effect it has had. If I am being tried, why should I not know whether the person sitting on the jury is a former policeman? Why should I not know, if I am charged with a white-collar or blue-collar crime, whether the person who will try me is an accountant who would bring his expertise to deliberations in the jury room?

I do not know why this proposal is made, except to be a mirror image of what is happening in England. If I am wrong about what is happening there then, of course, I apologise, but it is a dangerous situation. Can the Minister or the noble and learned Lord the Lord Advocate give an undertaking in regard to informing the representatives of the accused in serious cases in Scotland in the solemn procedure before a jury in the sheriff court or the High Court? They need not necessarily give that undertaking today because I have only just raised the point.

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Will either of the noble and learned Lords the Lord Advocate or Lord Fraser of Carmyllie write to me with an undertaking or explanation as to what will happen once the designation of jurors is removed? Will the defence solicitors or the accused be given an early list of the people who have been cited to attend the court? If not, then what is the position in the long term where people may become involved in a jury trial who have knowledge or insight into the case? That may be particularly important in drugs cases. The defence may find out about it after the trial is over. Someone may say: "I will tell you who was on that jury—Joe Smith, who was a pal of so-and-so who did this and that". That may sound unlikely but that is the way it happens.

There is then an appeal and the defence will tell the Appeal Court, "We didn't know who the jurors were, the Crown would not tell us. We were presented with the list on the morning of the trial and didn't have time to investigate it". As counsel for the defence I may stand up and say to the judge, "Wait a minute, I have just been given this list of people supposed to be the peers of my accused. I want to know more about them. Would you kindly adjourn the trial?" You can imagine what would be the response from the court. I am sure that the noble and learned Lord, Lord McCluskey, might give an indication. We are entering very dangerous waters at the moment. I should like to have an undertaking from the Minister that the list of assize which will be served on the accused if this particular clause goes through will be served perhaps 14 days before the date of the trial.

One other consequence is that people who are simply going about their business who have their name on the list of jurors may very well be harassed, spoken to, and so on, which does not happen at the moment. I have never known a case—perhaps the noble and learned Lord will tell us whether he knows of one—which has had to be adjourned to consider the status of a juror. I can see the far-reaching effects of this particular provision. All sorts of legal points could be taken, perhaps even hampering the course of justice. I beg to move.

6 p.m.

Lord Fraser of Carmyllie: I do not know whether there is any proposal—nor would we have one—to give a list of the assize at an earlier date. I have to say to the noble Lord that he is making a mountain out of a molehill. The law of England has existed for many centuries. Jury trials have been held here for a very long time. The occupation of prospective jurors has never been shown.


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