The Government, in a consultation paper published in July 1998, proposes to further curtail the right to trial by jury in certain "either way" cases - that is, cases in which a defendant can choose between trial in the magistrates' court and trial in the Crown Court.
The transparent motive for the proposed change is cost-cutting. The positive characteristics of summary justice are not legal so much as economic and bureaucratic. Summary justice is fast, easy and cheap.
Trial by jury is too expensive: even justice is now subject to market considerations. Yet this economic imperative is not openly stated, instead we are told that: "The (consultation) paper is concerned not with the merits of jury trial, but only with the defendant's ability to choose it."
This is despite the fact that there has been a steady decrease over the last 10 years in the percentage of either-way cases committed to the Crown Court for trial which arrive there because the defendant exercised personal choice, as opposed to being sent there for trial by the magistrates.
It would appear that the Government is acting in haste and has not fully thought through the implications of this proposal. In particular, its potentially adverse impact on the black community has clearly not been considered. The Home Secretary, Jack Straw, showed sensitivity in setting up the Stephen Lawrence Inquiry. Sir William McPherson's eagerly awaited report is expected to make important recommendations aimed at improving the relationship between the black community and the criminal justice system. The Home Secretary evidently sees no connection with his current proposals. Perhaps he is dizzy, brought on by the sudden U-turn he has made.
A mere 22 months ago he said: "Surely, cutting down the right to jury trial, making the system less fair, is not only wrong but short-sighted, and likely to prove ineffective."
There is evidence that the black community will be disproportionately affected by the proposed changes and this could well undermine any future efforts to improve their relationship with the criminal justice system.
Research published by the Runnymede Trust in 1990 showed that of defendants who had a choice, one third of Asian defendants, slightly fewer white defendants, but nearly one half (45 per cent) of Afro-Caribbean defendants chose to be tried in front of a judge and jury. The authors of the report regarded this difference as "highly statistically significant".
They concluded that: "At the very least, these figures suggest a marked reluctance by Afro-Caribbean defendants - where they have a measure of control - to be tried at the local magistrates' court."
These figures were later confirmed by Roger Hood in a report prepared for the Commission for Racial Equality.
It would further appear that Afro-Caribbean defendants are making an informed and rational decision in removing themselves from the process of magisterial judgement. To begin with, only 2 per cent of magistrates are non-white. Further, the Home Office is currently conducting pilot studies into the differences in outcomes between ethnic groups being tried in magistrates' courts and the Crown Court. This research is still at an early stage; however, initial findings in Leicester Magistrates' Court showed that 13 per cent of black defendants were sentenced to immediate custody for theft offences, compared with 5 per cent of whites.
This is a startling statistic. Further, white defendants were granted unconditional bail at a significantly greater rate than their black counterparts - over 60 per cent compared with 44 per cent for black defendants. Is it any surprise that there is a disproportionate number of blacks in prison?
Does the Government not see the reservoir of resentment which will inevitably begin to build up in a community already convinced that the criminal justice system does not provide justice for them. The jury is the last place in our institutions where the people take a hand in "administering" themselves.
By so doing, they add legitimacy to our system of justice. This is of more than symbolic significance, for as that great 18th-century jurist Blackstone observed:
"Delays and little inconveniences in the forms of justice are the price all free nations must pay for their liberty in more substantial matters."
Courtenay Griffiths QC is a barrister at 2 Garden Court, London EC4Reuse content