UK Law Articles
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The Times
September 8 1998
As the Government considers limiting the right to jury trial, Roger Ede explains why the accused should be entitled to choose the court for their case
In defence of a trial by jury
How many times have you come close to walking out of a store without paying for something? Distracted by crying children, tired, worried about work or a relationship or feeling the effects of medication, you may not have been paying attention to what you were doing. You could end up charged with shoplifting. It has happened: celebrated cases include that of Lady Isobel Barnett, who took her life in 1980 four days after being convicted of stealing food worth 87p from a shop. More recently, there was the case of Richard Madeley, of the TV-presenter couple Richard and Judy, who was prosecuted - and then found not guilty - of two charges of shoplifting from Tesco.
If that happened to you, would you regard it as a minor case, to be tried by lay justices in the magistrates' courts? Or would you consider that an accusation of being a thief was no minor matter and that you should be entitled to the option of choosing a jury trial?
When you are the person in the dock, a just result is more important than what is convenient for the system. The quality of decision-making matters more than the number of cases completed. There is no doubt that a jury trial is a superior process to a trial in the magistrates' court. It has important extra safeguards. What concerns the Government is that a jury trial may take longer and cost more and is more likely to result in an acquittal. That is why the Government is considering reducing its availability.
The Law Society is against removing the right to jury trial when theft is alleged and people risk losing their liberty, livelihood or reputation. Trials are conducted at a slower pace for the benefit of the jury, allowing a fuller consideration of evidence. The language used has to be easily understood by the jury (and, in turn, the accused). Jurors apply their experience of everyday life. Together, they represent a diversity of background: 12 ordinary people chosen at random who can benefit from their collective recall and group decision-making.
A vital prosecution witness may be a store detective or police officer who has regularly given evidence before the lay justices. There is a danger that the magistrates become case-hardened to defences such as "I just forgot to pay".
Restricting shoplifting cases to magistrates' courts would be justified only in less serious cases if the "dishonest" tag was removed. The person would simply be accused of having left the shop without paying (without a need to prove intention to steal) and would be offered the option of paying a fixed penalty without having to go to court.
Take another example of what could happen. Your son, in his first year at medical school, is charged with affray and causing grievous bodily harm. He was present when a friend started a fight with local youths. An eyewitness mistakenly identified him as being involved. The police found bloodstains on his shirt, but only because the person who was beaten had been pushed up against him. Your son's solicitor advises him to be tried in the Crown Court. Under the Government's proposals, a "We know best" approach would allow the lay justices to choose to decide on his guilt or innocence, rather than leave it to a jury. Your son's solicitor might want the defence to have a complete picture of the Crown's case which, in a Crown Court trial it must give the defence, rather than just a snapshot which he will get at a trial before lay justices. Or the solicitor may wish to seek to have the prosecution discontinue the case - on the ground of unreliability of evidence, for example. A case marked down for the Crown Court will be more fully reviewed as to whether prosecution is in the public interest and whether there is enough evidence. A Crown Court will also hear legal arguments over the admissibility of evidence; why adverse inferences should not be drawn from your son's silence on arrest or at the police station when he had had too much to drink and his lawyer advised him to say nothing.
At a Crown Court trial, the judge hears these legal arguments - in the absence of the jury - and deals with these issues, advising the jury about the law, applying the law to the facts of the case and summing up the evidence for the jury. In the magistrates' court, lay justices, without giving their reasons, decide on the law as well as on guilt or innocence. If there is to be a Crown Court trial, the prosecution must give the defence copies of its evidence, instead of just the snapshot of the case as in the magistrates' court.
Your son's solicitor may wish to try to persuade the prosecution to discontinue the case because of the unreliability of the evidence. A fuller review of the case by the Crown Prosecution Service inevitably comes after its being marked down for trial in the Crown Court. Further thought is given to whether a prosecution really is in the public interest and the evidence is checked by a lawyer. If that fails, the solicitor has a chance at the committal hearing in the magistrates' court to argue that the evidence falls short of what the jury needs in order to convict and that the case should be brought to an end there and then. So in a criminal case, when the assembled might of the police and the CPS is brought to bear on an individual, it is not surprising that a jury trial is a popular choice. Forcing someone to be tried in the magistrates' court against their will and their solicitor's better judgment is not cheaper when you consider the incalculable human cost of a wrongful conviction.
- Comments to the Home Office are invited by the end of this month. The author, a solicitor, is secretary of the Law Society's criminal law committee.
