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Lord Rodger of Earlsferry: The issue is an important one, as the speeches of Members of the Committee made clear. I start from the basic principle which I am sure most Members accept. The basis of jury selection in Scotland, as in England and Wales, is one of random selection. We are dealing with a principle that people who will form a jury and judge somebody should be selected randomly and in that way one obtains a fair system.

That is subject to one important point, to which the noble and learned Lord, Lord McCluskey, alluded—that is, that there can be good reasons why specific individuals should not serve on a jury. I do not need to debate whether all the examples he gave would be examples of good reason. I accept that there may be cases where it would be wholly inappropriate for a specific person to sit on a jury. For example, if the person happened to come from the house next door to where the victim was killed, that would be a very good reason not to have that person serving on the jury.

In that situation the Bill allows that matter to be aired, either by way of objection on "cause shown", or indeed where the matter is so patently obvious that the prosecution accepts the position in terms of the provision to which the noble and learned Lord, Lord McCluskey, referred—that is, subsection (3) (a).

There is no doubt that the provision allows for the position to be properly regulated where reasoned objection can be made. At present the situation exists where the defence—it is usually the defence—uses objections to remove people from jury service often for no obvious reason. For example, it may be because the person is a teacher. One has seen that happen on many occasions. There are all sorts of reasons why teachers may or may not make desirable members of a jury. But for that to be done on a regular basis, as the noble and learned Lord, Lord McCluskey, accepts happens, is wrong in principle. It is wrong that people who have chosen a specific occupation, or who happen to live in a district of the town when it is not associated with the crime, or who happen to have some other characteristic which the defence thinks makes them an unsuitable or perhaps disadvantageous jury member, should be removed from the jury automatically by the use of such objection. In that situation one is running the risk of skewing the selection of jurors in a way which is irrational, as the Thomson Committee said, and difficult to defend in principle.

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I ask the Committee what its reaction would be if the Crown were to use its right of objection in that entirely random way. People would immediately object that the Crown were trying to take a view of who should sit on a jury, which is wholly unacceptable. Except where proper cause can be shown, the basic rule should be that people who are selected on a random basis should serve; where a proper reason for them not serving can be shown, then that matter can be dealt with by the courts.

The noble and learned Lord, Lord McCluskey, counselled against looking rashly at the experience in England and Wales. Nonetheless, what has changed in the years since 1980 is that we can look at the experience of England and Wales. I accept that the mechanics and so forth are slightly different. But the basic position has been that, despite forebodings as to the difficulties which would be caused when the peremptory challenges were removed, in practice the system works perfectly well. In fact, as I understand it, there are few occasions where time-consuming objections are taken to jurors.

This provision therefore rests on a good basic principle; that is, that the basic test should be random selection subject to reasoned objections in appropriate cases. That is the correct principle. Experience in England and Wales shows that that can work. The objections today are misconceived. I therefore ask the Committee to reject the amendment and in due course to provide that the clause should stand part of the Bill.

The Earl of Balfour: Before my noble and learned friend the Lord Advocate sits down, he spoke of "random selection". Perhaps I can give an example, though not necessarily a good one.

Unfortunately, farming has a high record of industrial accidents. I feel that I could end up in court on an offence under Health and Safety Executive provisions, which may go to trial. As a person involved—forgive me quoting an industry in which I happen to be involved—I would not be too happy for a farm worker on a similar farm acting as a member of the jury in my case. That may or may not happen.

Is there anything in the words used by my noble and learned friend, or has the procurator fiscal or some other individual any powers in his original selection of 15 or 20 persons, to weed out those who, in his opinion, may be influential in a specific case that is coming to trial? Unfortunately, I do not know enough about the law; but that is my question.

6.30 p.m.

Lord Rodger of Earlsferry: The simple answer to the question posed by my noble friend is that it would not be possible for the procurator fiscal or anyone else to weed out people in the way in which he suggests. Unfortunately, the position is that it is unlikely that my noble friend would be the only person whose trial would be down for hearing at a particular sitting. There would be a whole lot of cases. People would be summoned as potential jurors in a whole range of cases. The kind of approach which my noble friend suggests would not be possible.

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Furthermore, my noble friend has put forward a case where he conceives that having a farm worker serving on the jury might be objectionable for the reason which he stated. I can see that that might be so, but that is exactly the kind of case where one could point to a legitimate possible ground for objection to that person serving as a juror. That could be brought forward; and if the court thought it was appropriate in the circumstances, the juror would be removed from the jury.

The Earl of Balfour: I am sorry to rise again but I thought that we were no longer going to require jurors to declare their employment. Am I correct?

Lord Rodger of Earlsferry: That is indeed so. But it might come out. In the particular circumstances one might know the employment from the address or it might otherwise be known. I am assuming that for some reason the occupation is known. The point of principle is that where it is known, and there is an objection which can be legitimately taken, even after the Bill goes through, that is provided for. I do not think that I need to go any further on the matter.

Lord McCluskey: For me, the Lord Advocate needs to go a good deal further. I have already said—and he has not responded to my point —that the Thomson Committee was the most distinguished committee on criminal procedure in Scotland this century. It heard evidence from every legal body and all kinds of bodies, including policemen. The vast majority recommended retention of this right. The Thomson Committee recommended retention of it. The Government keep coming forward and saying no; and they do not explain why. They have to explain why.

There is another point. In a recent case it was obvious to me, although it so happened that the defence were not in the least interested in the composition of a jury and were paying no attention to who went into the jury box, that one of the persons who was shambling forward was half-witted. No one looked at him. I have no right of objection or I would have said "Don't let that person sit". This person shambled forward and took his place. No one objected. On the next day he did not turn up. He did not turn up because he had no money. He had walked six or seven miles home. He then set off walking the following morning and did not know where the court was. Supposing I had had a power to object, or I had been counsel and had looked around and seen this person coming up, I would have said, "I must get him off the jury. I do not want that person sitting in judgment on my client". What cause would I show under Section 130(4)? "My Lord, I object to this person on the ground that he looks a right dimwit". I cannot do that. One should give the right of peremptory challenge to cover all these situations.

I will not accept from the Lord Advocate that I know perfectly well that the defence use objections for no obvious reasons. The reasons may not be obvious to the Lord Advocate, who I think had a very modest defence practice in his day, but the defence do not have to stand up and give reasons. That is the whole point. They made

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a peremptory challenge and the fact that a fiscal does not understand or the Lord Advocate does not understand why the objection was made does not mean to say that there was not a good reason. They do not do it for fun. I do not know whether they object to teachers. In my time I objected to many teachers as jurors when I practised in the civil courts because it was always thought in the 1940s, 1950s and 1960s, when there were quite a number of these cases, that teachers would somehow dominate the jury room. That was the belief at that time. We did not want anyone dominating the jury room so all teachers were removed from juries. I do not think that was true in criminal cases. It was certainly not my experience. No justification is being given for departing from the recommendation of the Thomson Committee for the practice that has obtained in Scotland for centuries.

The Lord Advocate makes the point of principle that the selection of jurors is random. It is not. First, jurors may be removed on cause shown. Secondly, they may be removed under Section 133:

    "The court shall have power to excuse any juror from serving on any trial, the grounds of such excuse being stated in open court".

So they may be removed on cause shown, they may be excused, or they may be taken away for reasons specified in Section 134. There are all kinds of reasons for getting jurors out. Selection is never 100 per cent. random.

Furthermore, on the point of bringing numbers to court, because there exists the possibility of objection on the ground of cause shown, on the ground of excuse to be stated in open court, or on the ground of unfitness by reason of this, that or the next thing, it follows that one has to bring more jurors than one actually needs. That covers the point of peremptory challenge. For all those reasons I urge the Government to do what they did in 1980 and think again. It is arrogant of the Government to come forward with this proposal on these inadequate grounds, given the whole background to this matter.

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