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The Times
May 23 2000
Trial by jury: a lawyer puts the case against
The right to a jury trial is under threat by a Government struggling to find new ways to fight crime, says Mark Findlay
What price Straw's 'new justice'?
Jack Straw suffered a defeat in the House of Lords recently over his Criminal Justice (Mode of Trial) Bill. Among other problematic, and some say contentious, proposals, the Bill purported to restrict access to trial by jury for persons accused of a range of what could be serious offences. Now the Home Secretary is to have another go at getting his legislation through, albeit in a modified form.
In defence of these proposals, it has been said that in other common law jurisdictions direction away from jury trial is available for similar offences. This is true but with some fundamental procedural differences. In Australian jurisdictions, a range of less serious offences is nominated as electable for trial with or without a jury.
The decision can be made by the prosecution or the defence, and in certain situations requires defence agreement. In no situation is the application made before the court to which the matter would be referred. There is no preliminary hearing on such an application and information such as the accused's criminal history is not taken into account in determining the form of trial. (It would be inappropriate, as even the Bill suggests, for the consideration of the accused's reputation to have any bearing on the election of jurisdiction.) Finally, if summary trial is chosen, the court is not composed of lay magistrates. Instead, the magistrates' bench would be composed only of legally trained practitioners with considerable trial experience. These safeguards are not to be found in the Home Secretary's Bill.
To understand the symbolic significance of the jury and its place as a prize in the political struggle for justice, it is worth reflecting on the tone of the Government's justification for this "reform". The Home Office, prior to the Bill's passage through the Lords, published a Briefing Note in which it addressed some of the "most frequently asked questions". However, the most frequently asked question I have encountered is: "Why would the Government, and the Home Secretary in particular, want to attack trial by jury in the first place, at this time or with such determination?"
The answer lies in the temptation that, by curtailing the jury, a government (or its Home Secretary) will demonstrate the most potent control over workings of criminal justice. This is not because the jury has a big and all-pervasive influence over criminal justice in practice. Quite the contrary.
The impact of the jury has been diminishing in every jurisdiction, except perhaps in the Russian Federation. The real prize in attacking the jury is to show power over an institution which, when measured in terms of community faith and public confidence, outstrips any other in criminal justice.
If a government is able to propose policy justifications that triumph over jury trial they will resonate through the reform of criminal justice. This might also explain why Mr Straw intends to press on with a revised Bill even while a government-sponsored inquiry into criminal court procedure is under way.
The policy weapons in the attack on the jury are revealed in the justifications for the Bill. The first is blatant managerialism. Trials must be as efficient and cost-effective as possible. Juries waste time, delay process and allow the unscrupulous defendant to filibuster. Whether this can ever be established, the cost savings suggested in justification of this exercise would largely rest outside the trial. As for manipulative defendants, it seems far more likely that prosecution and charge bargaining practice will influence the plea more than claims for jury trial.
Another prevailing policy perspective can be found in the "level playing field" image of justice. This is common ground for liberals and conservatives and has seen the defeat of such traditions of common law criminal justice as the right to silence and protection from requirements as to defence disclosure.
The double jeopardy rule looks next to go. The expansion of the summary jurisdiction and the significant impact that this will have on the nature of criminal justice (particularly in light of the traditions of the magistracy in England) remain masked in the justifications for the Bill. It is said that the Bill will not result in magistrates dealing with cases that are too serious because they will determine suit-ability. The barrenness of this argument deflects attention from the otherwise clearly demonstrated redirection of power towards the lay magistracy in the determination of case seriousness, and from doubts about their competence to manage it.
Ultimately, however, this Bill fits within the contemporary redetermination of the "rights" debate within criminal justice. The rights of the witness are now fair consideration in the determination of trial venue.
Interestingly, in the earlier draft, the right to reputation was also advanced as a consideration against the accused's election for jury trial. Here there exists the echoes of state paternalism in needing to protect the reputation of the few from the ravages of the jury. The "reform" initiatives confirm that while the critique of the jury may be different today, the policy purposes are the same and the political prize remains.
The relentless nature of the political struggle over the jury may be another
reason for some circumspection when viewing the Government's arguments for
change. This is particularly so when the case against jury trial is constructed
in the atmosphere of "new justice" for the accused and a desperate
search for crime control initiatives.
