As things stand, and have stood since Victorian times, those accused of a wide range of lesser offences, such as shoplifting or indecent assault, can choosewhether to have their cases heard summarily, in a magistrates' court, where sentences tend to be lower, or before a jury in a crown court, where acquittal rates are higher. Under Home Office proposals published last Tuesday, with the apparent approval of Mr Straw, defendants would no longer have that choice. The magistrates would take the decision.
It is a breathtaking volte-face,and it is already evident that Mr Straw will, like his predecessor, meet with stubborn opposition Much of it on that occasion came from the silkiest of trade unions, the Bar Council, but certainly not all.
This time round, the cries of "Objection!" were instantaneous. It would be a back-door removal of jury trial, said Bruce Houlder QC, speaking for the Bar, "a further unfortunate inroad into something which is being marginalised all the time". The radical Legal Action Group was also quick into the fray, reminding the Government that "the defendant's right to elect a jury trial is one of the most important rights in the criminal justice system".
No one should have been surprised at the hubbub. Trial by jury is far from perfect - the worst system in the world save for all the others, it is often said. But our attachment to the jury system in this country is an article of faith and attempts to diminish its role raise hackles right across the political spectrum.
IT HAS to be said that there are good arguments for reducing the large number of apparently piffling cases that go before juries. The theft of a bottle of milk from a doorstep could in theory lead to a full crown court trial. The cost would be at least five times greater than if the case were heard by magistrates; estimates put the average contested jury trial at pounds 13,500, against pounds 2,500 for a magistrate's court case. The prospect of massive savings has reawakened the Home Office's zeal for reform and caused Mr Straw to think again.
It is also true that experienced crooks exploit the system, banking on a jury's good-heartedness and lack of experience to get them off. When I wrote a book about the jury system last year I encountered a widespread belief that this was so - especially among the police. In such cases this was not justice, they pointed out. Nor is it.
By the same token, many wrongly charged defendants also get the benefit of the doubt - a benefit that might not be so readily available from a trio of case-hardened JPs, whose conviction rate is almost double that of juries. To be charged with stealing a packet of prawns or goosing a ballgirl at Wimbledon might seem of no great moment to some, but it could spell the end of their worlds if the accused were a schoolteacher or a clergyman, people whose livelihoods depended on their reputations.
"If you were charged with shoplifting a box of chocolates and you hadn't done it, what would you do?" asks former judge Sir Stephen Tumim. He has no doubt. He would rather be judged by a jury than by magistrates, who have seen too much of human nature always to think the best of it.
For all its imperfections, the jury system is a precious institution, a valuable ingredient in national self-esteem. To tinker with it merely for the sake of good housekeeping is to trifle with history. Whereas the monarchy makes us subjects, the jury system defines us as citizens. It is a safeguard against oppressive and outdated laws. It ensures that the accused hear their trials conducted in language they understand. Above all, it is a guarantee that no one in this country can be deprived of his liberty for more than a few months without 12 of his fellow-citizens agreeing to it.
About 22,000 cases a year would be affected by the abolition of the right to choose jury trial in "either-way" cases. To put that in a wider perspective, the vast majority of criminal cases in England and Wales, at least 93 per cent of them, are heard in magistrates' courts. That leaves at most 7 per cent of defendants to be tried by juries. Of that 7 per cent, the 22,000 represent less than a quarter.
Nevertheless, it is not hard to imagine the kind of misfortune that could lead to an otherwise blameless person being one of those accused. As an ex-juror, I would be alarmed at being refused the option of a jury trial in such circumstances. I have sat in the jury box on short trials at Southwark and an immensely long one at the Old Bailey. In each case I was impressed by how such a random collection of involuntary volunteers rose to the occasion and strove to reach a fair verdict.
My conclusion is that most juries treat their task with remarkable conscientiousness. The newly ennobled Helena Kennedy QC agrees. "Juries use their sixth sense, their sense of smell. They sniff the air and get a feeling about whether people are truthful or reliable. They may go in with a whole set of prejudices, but what always impresses me is that they can filter them out. They can make subtle distinctions. You can see the effect in the verdict, when they find a defendant guilty on some counts of the indictment but not on others. Collectively this group of people is better than the sum of its parts."
IT IS TRUE that the acquittal rates are much higher when juries and not magistrates are in the seat of judgment. But that is what you would expect. Members of the jury, you must decide "so that you can be sure", says the judge. "Beyond reasonable doubt," adjures the counsel. Those are mighty obstacles in the path of a carelessly considered conviction.
In spite of the arguments for keeping the jury system as it is, some form of change regarding these "either-way" cases now seems unstoppable - just as it seems clear that juries will one day be removed from complicated fraud cases and be replaced by tribunals. Mr Howard's Home Office was forced to rein in on both these reforms. But there are few checks on New Labour, especially when Lord Irvine, the Lord Chancellor, is cracking the whip.
If it is to be left to magistrates to decide on the form of trial in "either-way" cases, I would recommend that in such instances the bench ought to have before it the defendant's criminal record, should he have one (as many do). Anyone without a record - who therefore has a reputation to defend - should automatically be allowed to opt for trial by jury. That way the benefit of the doubt which juries notoriously afford the man or woman in the dock would apply where it was most properly due.
I am surprised to be writing about this subject today. Less than a year ago, as I was finishing The Juryman's Tale, I wrote this: "The present government, needless to say, has no plans to carry on where the reviled Howard left off - yet. But the 'either-way' saga clearly shows that, for all the lip service paid to it, the jury system in this country is by no means invulnerable. The warning words of the great 18th-century judge and jurist Sir William Blackstone are sure to be invoked again before the new millennium is very old.
"He warned of the lure of new and arbitrary methods of trial: 'However convenient these may appear at first ... let it again be remembered that delays and inconvenience in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters ... and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern."
Though it hasn't waited for the new millennium to re-survey the sacred bulwark, I don't think this is what the Government has in mind. But great edifices are eroded from the outside. It would be ironic if, just as countries such as Russia, Spain and Japan are turning to the jury system as a better means of doing justice, New Labour started knocking bits off it in order to save on the upkeep bills.
Trevor Grove is the author of 'The Juryman's Tale' (Bloomsbury).Reuse content