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Baroness Carnegy of Lour: I am still not absolutely clear what the noble and learned Lord is saying. He quoted the example of a person who was clearly a dimwit and said that he could not do anything about it. However, as I read the Notes on Clauses, if the prosecution and the defence agree that the person is clearly a dimwit, he will not be a juror. It is obvious that that is covered. What we are talking about is the motivation of people to get rid of potential jurors on various grounds which may well be trivial. When it is obvious, is it not covered? I have not read the Thomson Report—I am sure it is a brilliant document—but this is a simple point on which we need to be clear.

Lord McCluskey: The judgment that one makes in the course of the few seconds that it may take a person to walk from the back of the court to the front of the court may not be one that is shared on all sides of the Bar. The defence might think that they cannot have that person because he looks as if he is not up to it. The Crown might say otherwise. I have known that to happen. If one gets agreement, that is fine. But if there is no agreement, what then? There is nothing wrong

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with the right of peremptory challenge. It may be difficult to justify in principle. I know precisely who wrote those words into the report. It was a person with a considerable degree of logic in his mind. But the simple fact of the matter is that it does no harm and I know of no reason to suppose that it is abused. I wish someone would give me an example of real abuse. I have never known one.

Lord Stewartby: I am sure that my noble and learned friend the Lord Advocate does not need any support from me but perhaps I may offer it nonetheless. I came in to listen to the debate because I was particularly concerned to hear the arguments which the noble and learned Lord, Lord McCluskey, would put forward. I defer to his great experience and knowledge but there is a non-lawyer's view about this which ought to be briefly stated.

Whether or not peremptory challenge is abused in practice—there is a difference of opinion on this between my noble and learned friend and the noble and learned Lord, Lord McCluskey—it is clearly open to abuse. As an ordinary citizen it seems basically wrong, particularly in a jury system where the verdict is by majority and is not unanimous, that the defence ought to be able to pick and choose the composition of the jury.

I find that very offensive. If this matter comes to a Division, I shall support the Government with enthusiasm.

Lord Pearson of Rannoch: Perhaps I may come in very briefly to support that point. Although I have not done jury service in Scotland, I have done it in England. I attended court on four days on the trot and I was surprised that each time I came forward for jury service I was objected to by the defence who said, "We do not like the look of that fellow". I did not understand what was happening until some of my colleagues said to me, "If you turn up dressed like that you will never get on a jury. Try not shaving for two or three days, turn up looking extremely scruffy and you will get on a jury".

I followed that advice, and I was immediately allowed on the next jury with, I must say, deeply unsatisfactory results for other reasons. There were a number of people on that jury who would never find in favour of police or Crown evidence whatever the evidence before them. They had all been selected by the process which has been referred to. I agree with my noble and learned friend the Lord Advocate and object to this amendment.

6.45 p.m.

Lord Macaulay of Bragar: This has been a very interesting debate on an amendment which I thought would produce a short debate. The contributions of the noble Lords, Lord Stewartby and Lord Pearson, have been very informative in showing what life is all about at the sharp end of jury practice, so to speak. As the Committee will know, we are not allowed to have the privilege of serving as jurors.

When I was listening to the debate I wrote down two words, one of which was "why". No one in this Chamber can ignore what has been presented to us by the noble and learned Lord, Lord McCluskey, in support of his argument as an experienced High Court judge and

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who is one of the senior judges in Scotland. We have no other here. Why should his plea be rejected by the Government? All he is asking the Government to do is to go away and think about this matter again. They should forget about England and Wales. We are running our own legal system in Scotland within the Act of Union. That is one of the few rights which we have left. Perhaps we shall get others back in a few years' time.

The noble and learned Lord the Lord Advocate said, "We do not want to take up time-consuming objections". I do not know how often the noble and learned Lord has acted as defence counsel. There is a small amount of time needed to object. The clerk of the court pulls a little ticket out of a glass, tells counsel at the table "number 44", one looks at the list and says, "Not on; forget it". The clerk of the court says to the potential juror, "You need not come". That probably takes about 10 seconds. Therefore, in the course of a jury trial with three objections being taken, we are talking about 30 seconds to a minute of the court's time being taken up by the challenges. It is not a time-consuming objection at all.

As the noble and learned Lord, Lord McCluskey, has quite properly pointed out, if we do away with the right of objection, we shall go into the investigative procedure. Then we shall come to stupid arguments about cause shown. That is built into the criminal system in Scotland at the moment. I hope that I shall be supported in this matter. It operates through the goodwill of the defence and the Crown. The Crown comes to the defence and says, "By the way, that chap is on a charge of attempted murder". The police tell the Advocate Depute who then tells the defence who, 99 times out of 100, will say, "Just forget him and take him off the list". There are various ways of getting off a jury list which no doubt we all know. One can go to the clerk of the court and tell him that you are a journalist and know about the case. You can tell him this or that, and you will be excused.

What is important is that, as the noble and learned Lord the Lord Chancellor indicated yesterday, there are going to be inroads made into the legal aid system. I do not know what the package is going to be. There is going to be a Green Paper for England and Wales. I do not know what is going to happen in Scotland, but judging by the Government's performance we shall get a mirror image in Scotland. Who is going to pay the representatives for the time-consuming arguments about what constitutes "cause shown"? Although I have not researched this matter because I did not expect it to come up to the extent that it has today, to my knowledge no one in the criminal courts has defined what "cause shown" means.

If one takes away the job description of the person who has been cited as a juror and merely puts it down to investigation as to whether he is a proper prospective juror, one will perhaps get into real trouble. If the noble and learned Lord the Lord Advocate wants to get involved in time-consuming exercises, there is no more time-consuming exercise than three lawyers and a judge discussing what "cause shown" means. If this Bill goes through in its present form, no doubt that will be done.

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The courts in England, Scotland and Wales operate on the goodwill of everyone involved. For example, if I am told by my instructing solicitor that juror X has a bad reputation for whatever it might be, and that there are 10 witnesses who can speak to it, do I then go to the judge and say, "I am objecting to this man on cause shown"? The judge then says, "Show me the cause" because that is what "cause shown" means. I say to the judge, "I shall show you the cause. I have 10 witnesses outside who will tell you what Mr. Smith's propensities are either for the police, against them or for the accused, against certain kinds of offences" and all the rest of it. It is ridiculous to take this step at this stage with no reason.

We never get answers from the Government, but I should like to know why this provision is being made within the Scottish legal system. I should like to know where it comes from. It does not come from the Thomson Committee, as the noble and learned Lord, Lord McCluskey has already indicated. To my knowledge, no one has ever challenged the status of that committee to say that it was composed of a bunch of legal Rambos, so to speak, who did not know what they were talking about. It was a very distinguished committee, as the noble and learned Lord has indicated. Its views have been taken very seriously and it is hoped that that will always be so. Can the Minister tell the Committee where the demand comes from?

Arising from the debate is the parallel point which the noble Earl, Lord Balfour, raised. Will this measure apply to civil jury trials in Scotland? It is a while since I took part in one because civil jury trials in Scotland are a protected species. My recollection is that as regards the list of jurors for civil trials, everyone knows what occupations they follow. If I am wrong, I shall stand corrected.

If we are going to change the system for criminal cases, there must be change for one reason and one reason only—that is to say, that the knowledge on the part of the defence of the occupation of a prospective juror who may be "prejudiced" by his occupation against a particular kind of crime is the reason why the measure is being removed. It does not matter to leave it as regards civil matters. I say with some diffidence that it is part of the, "You have got to get the criminals convicted" mentality which pervades this Government's thinking. I suggest that the noble and learned Lord the Lord Advocate takes heed of the wise counsel which he has been given by the noble and learned Lord, Lord McCluskey, and thinks about this matter again.


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