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Second Reading

Volume 218: debated on Wednesday 22 April 1874

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Order for Second Reading read.

, in moving that the Bill be now read the second time, said, the evils he proposed to remedy had been long admitted and frequently recognized by Parliament. He proposed to remedy them by no new-fangled scheme of his own, because the prominent feature of the Bill had been before Parliament and had been sanctioned by them. It was in many respects the Bill of 1872, which was introduced by the late Government, and he claimed for himself no undue merit for bringing the Bill forward beyond what was due to one who long recognized the defects of the present system, and who had persistently agitated in Parliament for its amendment. Much credit was due to Mr. Erle, the Associate of the Common Pleas—a gentleman who had brought his great knowledge of the subject to bear upon the preparation of the measure. He considered that a London juryman was the worst used animal within the bills of mortality, lie was often fined without any opportunity of explanation; he was kept waiting in a badly-ventilated Court, or in its precincts; his time was disregarded, and lie was called upon to decide difficult questions, and to solve complicated questions of fact which subtle and astute counsel were employed to confuse and mystify. Both Select Committees and Commissions had recommended an amendment of the law, and accordingly an Act was passed in 1870, but it was merely fragmentary, and although it contained some good clauses, yet some—those in reference to the payment of juries—had to be repealed in 1871, being found unworkable. In February, 1872, he moved a Resolution to the effect that the law relating to Juries ought to be dealt with as a whole in a Bill to be brought in by the Government at the earliest possible period." That Resolution was unanimously adopted by the House, and in consequence the then Attorney General brought in a Bill upon which this present measure was founded. He thought he had fully established the proposition, that the existing evil was an admitted one, and that it had been over and over again acknowledged in that House; and in introducing the present Bill he was nut seeking to abolish or discountenance trial by jury, but merely to improve the details of the existing system, and to secure a just and uniform incidence of jury service on all persons qualified to serve. In the first place., it was proposed to increase the area from which jurors were taken by creating some now qualifications. For instance, lodgers would be qualified to serve both on common and special juries, and on the latter class of juries the managers and directors of certain companies would also be lable to serve. At present, persons above the age of 60 were absolutely exempt, whereas the Bill provided that no one should be absolutely exempt until he had attained the age of 70, although any person might, if lie thought fit, claim exemption at the age of 65. It seemed to him that there were a great number of persons between the ages of 60 and 70 who were not only competent to serve upon juries, but who could afford most valuable assistance, on account of their experience and business habits. There was, however, a provision that persons suffering from sickness or infirmity might be excused at any time. In the Government Bill of last Session it was proposed to increase the qualification of common jurors; but he proposed to retain the old qualification, which was proscribed by the Act of George IV. However, he intended to increase the rating qualification of special jurors. Formerly the only qualification was a social one, as no one could serve on a special jury who was not a merchant, hanker, esquire, or person of higher degree. A rating qualification was substituted for that by the Act of 1870. If it were possible, he should like to go back to the old qualification, but it would be very difficult to do so, though he might state that since the introduction of the rating qualification the character of special juries had, very much changed. He had always contended that the imperfect and inaccurate compilation of the jury lists lay at the root of the unfair incidence of jury service. This could be proved by the evidence given by several witnesses before the Select Committee of 1867–8. Hitherto the overseers had received no remuneration for the work they were called upon to perform, and doubtless this had much to do with the perfunctory way in which they discharged their duties. Accordingly he proposed by his Bill that the overseers should be properly paid for the duty they had to discharge. The expense would not, however, be cast upon the rates, and he mentioned that the late Government had admitted the payment ought to be made out of national funds. Again, the present mode of summoning jurors was far from satisfactory, and accordingly the Bill provided that all jury summonses should pass through the post, so that as the summoning officer and the jurymen would no longer be brought in contact with each other, corrupt practices would henceforth become impossible. Another proposal embodied in the Bill was that in civil cases the number of jurymen might under certain circumstances be reduced to seven. The late Government in their Bill of last year proposed compulsorily to reduce the number of jurors from 12 to 7 in all eases except trials for murder. His proposal was that there should be 12 jurymen, as heretofore, in all criminal cases, and he did not compulsorily reduce the mystical number in civil cases. Primâ facie, every civil case would be tried by a jury of seven, but either party would be able, on giving formal notice, to have it tried by a jury of 12. He considered that the effect of that reduction would be that a considerable majority of cases would be tried by a jury of seven, which fact in itself would give relief to the large body of jurymen. It was also proposed that the verdict should be unanimous, and, indeed, the fact that the number of jurymen might be reduced enhanced the necessity of unanimity. The Bill likewise dealt with the question of payment. At present a special juryman was entitled to a guinea for every case he heard, and even the jurors in the great Tichborne case were legally entitled to only one guinea each for their services during that long protracted trial. A common juryman was entitled to 8d. for each case, and this was certainly a very inadequate amount. Under this Bill it was proposed that special jurymen should continue to be paid one guinea, and that common jurors should receive 5s. for each case. Another alteration consisted in the assimilation of the qualification for jurors in boroughs and cities of counties with the qualification now required in the counties by which they were surrounded. A minor provision in the Bill was to the effect that trials were to be continued in the event of the number of jurors being reduced by illness or death. If in the Tichborne case a juror had happened to die. the whole of the proceedings must have been commenced de novo, and this would have been neither more nor less than a national misfortune. His proposal was, that the Judge should have the power in case of death or illness to order a case to go on with a reduced number of jurymen provided the reduction did not go beyond a certain extent. It was proposed that a jury of 12 should not be reduced below nine, nor a jury of seven below five. By leave of the Judge, a special jury might be summoned to try criminal cases; and the Judge would also be empowered by the Bill to release jurors in criminal trials during the adjournments, instead of having them locked up during the whole of the night. One merit of his measure, he ventured to think, was that it embodied a complete digest of the law on the subject of juries. The Government, he had reason to believe, were not opposed to the Bill, and he hoped that at a subsequent stage of its career, they would not be disinclined to proceed with it as a Government measure. The hon. and learned Gentleman concluded by moving the second reading of the Bill.

thought the hon. and learned Member for Frome (Mr. Lopes), deserved great thanks for having taken up the subject. Under ordinary circumstances the Government should have the charge of a Bill of this kind, but Governments had already tried their hand and failed, He should support the Bill, but at the same time he considered that the unanimity clause was capable of amendment, and also the clause with regard to the number of a jury. Without destroying the confidence of the public-injuries, he believed that the number of jurors in civil cases might be reduced with advantage. The hon. and learned Member proposed that the number should be seven, but he (Mr. Young) doubted whether the hon. and learned Member went far enough. In his opinion, it would be better to have only four. With the smaller number, the individuality and responsibility of each juror would be greater; and he was able to say from his own experience in Now South Wales, that the system of trying civil causes with four jurors had worked very successfully; as had also the plan of allowing three-fourths of the jury to give a verdict after all the members of the jury had deliberated together for a certain number of hours, and he should, therefore, take the opportunity of moving in Committee a non-unanimity clause, to the effect that after a certain number of hours' deliberation the verdict of three fourths of the jury might be taken in civil cases. As for unanimity, there was practically no such thing, and verdicts were arrived at by compromise; and who could expect that it should be otherwise? It was our daily experience that people disagreed, and why should we expect them to be more unanimous in a jury room than elsewhere?

congratulated his hon. and learned Friend on the favourable reception which the Bill had met with from the House. He admitted there was no magic in the number 12. but what they had to consider in legislating upon this subject was a regard to what had happened in the past, and the state of public feeling, and, to a certain extent, public prejudice. With reference to the number, it was a considerable alteration to propose that it should be reduced to seven, and it would be hardly wise to carry the reduction further. For his own part, he believed the latter would be a convenient number, and that by its adoption they would materially reduce the number to be called upon the jury list. With regard to the question of unanimity, it was a very anomalous tiling that one juryman should be able to force terms on the rest, and, as it were, to compel them to split the difference, and therefore, if in Committee the hon. Member for Helston (Mr. Young) would propose some modification of the present system, he would be inclined, not only to consider, but to entertain it, especially if directed to the prevention of one individual juryman enforcing terms on the rest. His principal reason, however, for addressing the House, was to urge the Government either to take up the Bill, or to afford facilities for its discussion.

also congratulated the hon. and learned Member who had brought in the Bill on its main features, but said, there were one or two points on which he wished to make a few observations. The recent change of the qualification for special jurors had caused a marked deterioration in special jurors, as had been remarked by all who regularly attended the Courts. Again, after full consideration, and hearing all that was to be said in favour of the proposal, he thought it would be a great mistake to reduce the number of jurymen from 12 to seven. Trial by jury in this country had been a most successful institution. and when that was the case, it would be very dangerous to meddle with it, for we could not ascertain to what particular circumstances its success had been owing. Besides, if you had 12 men in a jury box, the chances were that some two or three of them would have a special knowledge of the subject, and, if they were men of sense, would be able to guide the remainder of the jury to a right conclusion. If you reduced the number, there would be no security that you would have any men with special knowledge on the jury. He was glad his hon. and learned Friend adhered to the principle of unanimity, which a large majority of the most experienced Judges were in favour of maintaining. There was one defect, however, in our present system which he should wish to see dealt with in the Bill, and that was the failure of justice which might arise, especially in the case of a protracted trial such as had recently been held, from the death or serious illness of one of the jurymen, for it was really remarkable that the present condition of the law had not been productive of more evils than it had. He would also suggest that some accommodation should be provided for persons summoned as jurymen. At present, nothing whatever was done for their accommodation, and no remedy was proposed in the Bill.

said, he hoped that Her Majesty's Government would take charge of the Bill, and endeavour to pass it this Session. They had heard in recent years the noble institution of trial by jury assailed. He could only say, after many years experience, having often presided at both civil and criminal trials, he had been struck with the intelligence and the care which juries brought to the exercise of their duties, and he had derived much assistance from them. Although he entertained an old-fashioned predilection for the time-honoured number of 12 jurymen, he was disposed to acquiesce in the reduction of the number to seven; but he had heard with the greatest satisfaction that his hon. and learned Friend did not propose to interfere with the principle of unanimity. If unanimity were not insisted upon, the result would be that in capital cases there would be an uneasy feeling in the public mind that the minority in favour of acquittal were right. He was, therefore, most desirous that it should be preserved. As regarded the remuneration of jurors, he should like to see a power given to the presiding Judge of extending the remuneration to common jurors in civil cases beyond the he proposed by the Bill, when the trial proved of unusual duration. It was most important in many criminal cases that they should have a class of jurymen of greater intelligence than usual; therefore he cordially approved of the introduction of special jurors, where the difficulties arising from scientific evidence presented themselves. He quite approved of the principle of supplying refreshments to jurymen when it was needed, but he considered that this ought not to be at their own expense.

said, with regard to the payment of common juries, he saw no reason why, if special jurors were to be paid, common jurors should not be paid also. Indeed, special jurors, from their position in life, were better able to give their time without injury to themselves than small tradesmen, and if they could not be placed on the same footing, he should much prefer seeing their remuneration abolished altogether. He did not approve of some of the qualifications contained in the Bill, lie did not approve of a director or manager of a company, as such, being held to be fitted to sit on a jury to try cases, as many of them did not command the confidence of the commercial world, and ought not to be allowed to sit in judgment on the rights and liberties of others. As regarded unanimity, it was idle to talk of there being in general a unanimity of 12 jurymen. In general the case was virtually decided by two or three jurors, whose lead the others followed. He therefore approved of the provision proposed by the Bill for reducing the number of jurors in civil cases to seven.

said, he would admit that 12 minds were better than seven, provided all 12 were concentrated on the evidence; but if there was a want of concentration with 12, a smaller number might be better, so far as it secured closer individual attention. He trusted that the question of qualification would be carefully considered, inasmuch as the variation in the value of property in different parts of the country made it a difficulty which no legislation could entirely grapple with. Exemptions ought also to be most narrowly watched, for every exemption was an imposition of liability upon some other person, lie had been informed, for instance, that the City of Westminster was entirely exempt from contributing to a jury of Middlesex, and there did not seem to be any reason why Commissioners of Inland Revenue should be exempted from serving as jurymen, whether they were acting Commissioners or not. The necessity for continuing a trial notwithstanding the illness or death of a juryman was strongly shown by the Tichborne Case. The preservation of the jury in that case seemed to indicate a perfectly providential interposition. They were entitled to a testimonial for having lived, for never before had we had such an illustration of the value of life. He very much approved the principle of exempting persons of 65 years of age, and upon the whole he very much approved of the Bill, and was thankful to the hon. Member for introducing it.

said, he fully-concurred in what had been said as to the debt of the House to the hon. and learned Member for introducing the Bill; but was afraid—though it could scarcely have fallen into abler hands—he would have some difficulty in passing it, unless the Government took it up. The necessity of the Bill no one could doubt, for the practical experience of those who came into contact with juries showed that some alteration, particularly in the qualification of special juries, was absolutely necessary. It was advisable that a Bill should be passed as speedily as possible, and therefore he would urge the Attorney General to take charge of this Bill. His hon. and learned Friend would have an easy task, for the hon. and learned Member for Frame had done his work well, and, moreover, the provisions of the Bill had been framed after a careful consideration of facts by a Select Committee, and a Bill like it very nearly passed in the last Parliament, and it was therefore a legacy which the present Government might very well accept. The discussion that was now taking place, however, would not be useless: but would help to smooth and simplify the future course of the measure. The qualification fixed by the Bill was that adopted by the Act of George IV., and no argument could be stronger in its favour, than that if the juries were qualified then, they certainly would be now. With regard to the liability of directors and managers of companies to serve on London juries, when the clause was drawn in the Bill of last year it was intended that the managing directors of companies should be selected as the representatives of 1,500 companies having offices in the City, which otherwise evaded the liability of occupancy; but to embrace, as the present Bill did, all directors of the companies would bring in, perhaps, 15,000 gentlemen, many of them living at great distances in the country, and discharging their public duties as residents. One change in the Bill raised a question as between local and Imperial taxation. The Bill of last year was stranded upon what appeared to be a very small rock, the payment of overseers out of the local rates; an adverse opinion was expressed against the continuance of that burden, and the Bill had to be withdrawn. Now that it was proposed to transfer the charge to Imperial taxation the Chancellor of the Exchequer might have something to say; and, on that point, he (Sir Henry James) further thought the present was not au opportune time to raise the question. As regarded the number of the jurymen and the question of unanimity, he was in favour of 12 as the number, and of entire unanimity. As to the objection that we could not get unanimity, the practical answer was, we did get it; we got it in the Tichborne Case, and the number of cases in which juries were discharged because they could not agree was far below 1 per cent. In some cases it was very well they should be discharged, because the evidence was not sufficient to justify them in giving a verdict on (c) way or another. It would be wrong in principle to leave it to the parties to a cause to select the number of a jury; if it were right to have 7. or 12, Parliament ought to say so. In the last Parliament, reasons were given in favour of the number of 12 jurymen, so cogent that the late Attorney General abandoned his proposition; and he trusted that when the Bill went into Committee they would decide to retain the present number. Whether the Bill were in the hands of the Government or those of his hon. and learned Friend, he would do all he could to assist in the passing of it.

said, with regard to the defects complained of in the Act of 1873, they were defects in the practical working rather than in the principle of trial by jury. The present Bill was framed upon conclusions which were come to by the Select Committee of 1872, and at which the House arrived in the last Session of Parliament, when some 54 or 55 clauses of a Bill of 90 or 100 clauses were passed by the House, and therefore it now came before the House with much to recommend it. He would give his cordial support to the second reading, and he thanked the hon. and learned Member for offering to place it in the hands of the Government. He felt very much disposed to accept the offer, seeing the approval which the Bill had received from both sides of the House; and, though he could not do so at once, he would inform the hon. and learned Gentleman before the day fixed for going into Committee of the determination at which the Government should have arrived, after considering more in detail the clauses of the measure. On behalf of the Government he thanked the hon. and learned Member for the care and attention he had bestowed on the Bill, and the manner in which he had brought it forward; and as they desired that it, or a similar Bill, should passduring the Session, if it should not be taken up by the Government, he would give the hon. and learned Member every assistance in his power towards securing its passing.

advocated the proposal that the Government should take the Bill up, inasmuch as there were many arrangements to be made in the jury system which could be much better carried out by the Government than by a private Member. With reference to the question of local taxation involved, the late Attorney General, now Lord Coleridge, last year assented to the principle of charging the jury list on the Consolidated Fond.

begged to thank his hon. and learned, Friend (Mr. Lopes) for making his Bill a complete digest of the Jury Law. Of late years a pernicious practice had grown up of passing Acts which referred to other Acts so that it became necessary to look at those Acts and see what the law really was, and our Statutes were a practical puzzle of legislation. He (Mr. Forsyth) wished to confine his remarks to the question of the unanimity of juries. His opinion had long been that unanimity ought to be retained in criminal but not in civil cases. One reason for retaining it in criminal cases was, that if the question of guilt was determined by a majority it would be impossible in capital cases to carry out the sentence considering the sensitiveness of the public as regarded capital punishment. And in other cases affecting not life but liberty, if a minority thought, that the accused was "not guilty" it would cause an uneasy feeling that the prisoner, though convicted, was innocent. He might illustrate this by the Tichborne trial, where, if the verdict of guilty had boon only by a majority, the fooling of the country would, he feared, be very different from what it now actually was as to the guilt of the accused. The origin of the rule as to unanimity was this. Anciently the jury were witnesses who came from the neighbourhood vicinetum, hence the word venue, and it was in the Anglo-Saxon and Anglo-Norman times thought necessary that 12 witnesses should be agreed as to the disputed fact. In no other country in Europe was unanimity required. Not in Scotland, or France, or Bavaria, or Prussia, or any other part of Germany, even in criminal cases, as to which he (Mr. Forsyth) did not wish to see the rule altered. It was a sham and not a real unanimity that was produced in the jurybox. In every other assembly or meeting to determine civil questions or rights, including the House of Commons, the opinion of the majority prevailed, and he could see no reason why it should not be the same in the jury-box, with certain safe-guards. No one would believe that if we were to legislate de novo on the subject, and for the first time to introduce the jury system, we should dream of requiring unanimity in civil cases. We adhere to it simply because it had come down to us from immemorial antiquity. The only objection to the change was that juries might come to hasty conclusions and not take sufficient time to deliberate. But what he (Mr. Forsyth) would propose was, that in civil cases a verdict should be given whenever there was a majority of nine to three; but that in such cases the verdict should not be taken until the; jury had been in consultation for four or five hours, He believed that this would ensure duo deliberation and get rid of all difficulty.

said, that the plan which the hon. and learned Member for Marylebone proposed had been recommended 40 years ago by a Royal Commission composed of the most experienced lawyers of that day. One reason for accepting the verdict of a majority in a civil cause after a jury had been three or four hours in consultation was, that a new trial could be granted, and the dissidence of a minority would be an additional reason for granting it. Again and again he had been asked to release juries that could not agree, and when half an hour afterwards a verdict was given it was impossible to suppose that the dissenting jurymen had been convinced. Certainly. 12 jurymen had not the same opportunity for discussion as a lesser number, and the reduction of the number would increase the sense of individual responsibility. It was true that with the increased number the chance of having some with special qualifications would be increased; but that would not be an unmixed advantage, as special qualifications would bring with them special prejudices. To insist on keeping up the maximum, moreover, was to increase the burden, and he was afraid that would lead to growing dissatisfaction with the system, and he wished by reducing the burden to improve the working of the system. He thought the clause in the Bill most valuable which, for the first time, introduced as a disqualification the having been convicted of the crimes of treason, felony, or any other infamous offence, or being an uncertificated bankrupt, for it was not an unusual thing to try cases of great commercial importance with one or more uncertificated bankrupts on the jury.

said, that he regretted to find that no provision had been made in the Bill for the better accommodation of jurymen, a subject to which he had directed the attention of the Select Committee of 1867–8. In this country they were much to be pitied, because they were worse treated in the English Courts than in any other Courts in Europe. They were crammed into the smallest space possible, and, as no special accommodation was provided for them, they were continually brought into contact with suitors and witnesses who wished to tell their respective versions of their stories. With respect to the payment of common jurors, he thought, although 5s. might be ample in London, it certainly would not be sufficient in the country, and that he should prefer to see a sum of 7s. a-day to be paid to jurors for attending at the Assizes. The deterioration of special jurors was patent both in Middlesex and on the circuits. They were no longer of the same class they were some years ago. It was said this had arisen from the number of gentlemen claiming exemption as commissioners of income tax; but he was rather disposed to account for it by the abolition of the old distinction of merchants, bankers, and magistrates, and the reduction of the qualification to a mere money standard. On the part of the profession he must thank his hon. and learned Friend for the introduction of this Bill, and as he observed that his hon. and learned Friend had abolished that time-honoured institution, the jury of matrons; and had made no provision in its stead, he (Mr. Huddleston) supposed the onus incases requiring such an inquiry would range itself among the numerous, and already too onerous and invidious duties of the Home Secretary.

said, he would also thank his hon. and learned Friend the Member for Frame (Mr. Lopes) for the great trouble and pains he had bestowed on this subject, and the care with which he had drawn the Bill. He must also endorse what had fallen from his hon. and learned Friend the Attorney General, that the Government hoped to see a Bill on this subject—either this Bill, or this Bill altered in certain particulars—passed before the end of the Session. The matter had been under discussion now several years, both in Committee up-stairs and in the House; and it was ripe for legislation. He need hardly say, however, that matters had been introduced into the discussion to-day on which some difference of opinion prevailed, He would undertake, on the part of the Government, that these points should have careful consideration before the Bill was set down for Committee; and if the Government could not see their way to adopt this Bill, they would, at all events, do their best that some Bill should pass this Session.

Motion agreed to.

Bill read a second time, and committed for Tuesday next.