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The Times
May 23 2000
Trial by jury: the Government's case
Abolition of the right to trial by jury in 'either way' cases is not the radical departure it seems, says Jack Straw
'I want fairer justice for all'
A judge wrote to me last month to tell me of a case that had recently come before him. The defendant had used his right to elect for jury trial in "either way" cases despite the willingness of magistrates to hear it. He had a string of previous convictions, and was accused of stealing a Filofax worth £11.99.
I do not believe that our system of criminal justice is well served by cases like these. Ending such abuses is the aim of the Government's Criminal Justice (Mode of Trial) (No 2) Bill, which would give magistrates the decision on whether to send a defendant for jury trial in such "either way" cases.
Yet to judge by some of the criticism of the Bill, one might be forgiven for thinking that we were sweeping aside the fundamental principles of our judicial system. Nothing could be further from the truth.
Trial by jury is a long-established part of our criminal justice system - and long may it remain so. Serious offences should always be heard by a jury - that is, indictable-only cases like murder and rape, and those "either way" cases of sufficient seriousness. The Bill does not affect jury trial for such cases.
Yet the vast majority of criminal cases are not heard by a jury. Of almost two million trials going through the courts each year in England and Wales, well over 90 per cent are dealt with by magistrates' courts. Many are "summary" offences only. Today these include drink-driving, assault on a police officer and taking a vehicle without consent.
No one suggests that defendants in such cases are being denied ancient rights by not having a jury trial despite the serious personal consequences that may flow from conviction. And defendants who are tried summarily and are dissatisfied with the outcome have an unfettered right of appeal to the Crown Court.
At issue are the "either way" offences, such as burglary and theft, which can be tried in either the magistrates' court or the Crown Court. It is the process of deciding where these cases are heard that is in need of reform. In proposing such change, the Bill is a key element of the Government's programme to modernise the criminal justice system.
In truth, the right to choose jury trial in such cases is not quite the ancient right of free-born Englishmen that critics imply: it was a mid-19th century compromise. And it has never existed in Scotland, where the decision lies not with the court but the prosecutor. No critics have yet claimed that justice north of the border suffers as a result.
At present magistrates can, and in many cases do, direct an "either way" case to the Crown Court if they judge it appropriate. They would be able to continue doing so under the Government's proposals. But at present the defendant may choose a jury trial, even where the magistrates consider that the case would be suitable for them to hear themselves. Last year just under 19,000 defendants took advantage of this power. The Mode of Trial Bill would end it.
Critics who accuse the Government of striking down ancient rights should consider that the majority of these defendants change their plea to guilty once their case reaches Crown Court. The reason is not hard to see. It takes longer for cases to get heard in the Crown Court and a significant number of less serious cases end up never reaching court, as witnesses drop away. This is the cynical ploy of persistent offenders intent on working the system to escape punishment.
Trials like this help to clog up the courts - cases can sometimes take more than a year to come to court. Delays of this kind hamper the ability of the Crown Courts to deal expeditiously with more serious cases. That is not fair, either for victims, witnesses - including child witnesses in some cases - or for defendants themselves.
The current arrangements also waste police time, as well as a great deal of public money in keeping prisoners on remand awaiting trial and in the higher costs of Crown Court trials. It is estimated that the Bill will save more than £120 million annually.
Some have claimed that black and Asian defendants will be more likely to be discriminated against by magistrates than by juries. The argument is unconvincing. There is no evidence to suggest that magistrates treat ethnic minority defendants unfairly. Indeed, a recent study showed that, in contested cases, black defendants are 6 per cent less likely than whites to be convicted, in magistrates' courts and in the Crown Court. Separate Home Office data published last year suggested a very similar pattern.
In addition, the Bill includes stringent safeguards. Magistrates would be required to give reasons for their decisions. Defendants will have a right of appeal to a Crown Court judge against a decision by magistrates not to direct a case to Crown Court.
When I first considered this proposal three years ago, I was against it. But the more I examined the evidence, the more I was persuaded by the case for change. It has the support of the Lord Chief Justice, the Magistrates' Association and all three major police associations because they want a fairer, more efficient judicial system. And that is the goal of this Bill: a system that is fairer to defendants but also fair to victims of crime and to the community.
A lawyer puts the case against: What price Straw's 'new justice'?
