It's justice, but not as we know it

The Auld Report's proposal to end the automatic right to trial by jury has delivered just what the Government ordered
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The Independent Online

Criminal justice in England and Wales can never be the same again. The staggering 328 recommendations for reform of the criminal courts contained in Sir Robin Auld's seminal report, published last week, go to the very heart of how a society should put its citizens on trial.

Lord Irvine, who first asked the Court of Appeal judge to begin his mammoth task in 1999, has described the 700-page work as the most far-reaching reform programme in 30 years. Other lawyers say that if the report is implemented in full, it will mark the greatest change to criminal justice in more than 100 years. Given that Lord Irvine is responsible for making law out of Sir Robin's proposals, the Lord Chancellor's assessment of their potential impact is the one most likely to win the day.

For the Government, the Auld report offers a far more radical blueprint for change than it is willing to introduce. And ministers have wasted no time knocking down what they know they don't want. Accompanying the publication of the report, the Lord Chancellor, the Home Secretary and the Attorney-General issued a joint statement making it clear there were "difficulties" with some of the recommendations.

But on the key reform of ending a defendant's right to be tried by a jury for a whole raft of middle-ranking offences, Sir Robin has already delivered for New Labour. His proposal for an intermediate court, comprising a judge and two lay magistrates, goes further than anything the Government has suggested in this area.

Lord Justice Auld's reforms have now attracted all the flak that had been aimed at Labour's two ill-fated mode of trial bills, which were thrown out by the House of Lords. Over the weekend, this attack intensified as the legal profession rallied its forces at the annual Bar Conference in London. The Bar chairman Roy Amlot, QC, opened the assault by telling the audience of judges, barristers, politicians and reformers that public confidence in the justice system would be undermined by the abolition of jury trials in a broad swathe of criminal cases.

He added: "By all means strengthen the jury system. By all means widen the franchise and trust juries with wider areas of evidence, but please do not sacrifice them on the altars of cost and efficiency. They are too important for that. When it comes to criminal justice in this country, we want jury-made justice, not judge-made justice; otherwise we alienate communities and risk a fundamental lack of confidence in the whole process. People trust juries. We must trust the people."

Later, Lord Justice Kay, a Court of Appeal judge, set out his opposition to this part of the reform. He voiced concerns about the constitution of a new intermediate court which he said was "superficially attractive". He also took issue with his fellow judge over the proposal to allow appeals on the basis of a "perverse" verdict and the requirement that, in some cases, juries should give reasons for their verdicts.

Earlier in the week, Lord Woolf, the Lord Chief Justice, had been the first member of the higher ranks of the judiciary to raise objections to Sir Robin's planned restriction on trial by jury by suggesting it had gone too far.

On the day the report was published, John Wadham, director of the civil rights organisation Liberty, said: "Taken together, these measures would comprise a huge attack on fairness in the criminal justice system – particularly trial by jury, which is its cornerstone."

The Law Society also voiced its opposition. Its chief executive, Janet Paraskeva, said: "Whilst we welcome the proposals to streamline the criminal justice system, we are opposed to the abolition of the existing right to elect jury trial for either- way offences... we are concerned that an intermediate court would add an unnecessary level of bureaucracy. It may be that increasing sentencing powers of magistrates and leaving the right to elect trial by jury would bring about the same end and result, without taking away the fundamental right to trial by jury."

Probation officers also got in on the act. Harry Fletcher, of probation officers' union Napo, said: "Proposals to reduce trial by jury and the role of the magistracy will sharply increase the prison population."

None of this prevented the Home Secretary David Blunkett from giving his tacit approval to the plan, when he said Sir Robin's intermediate tier of courts offered "a possible way forward on the issue of jury trials, which might overcome some of the objections that were raised in relation to the Mode of Trial Bill".

Many other parts of Sir Robin's report will not have been so readily appreciated in Whitehall. One can only imagine the irritation caused by his merciless criticism of the graduated fee system, which Lord Irvine had taken so much trouble to extend early this year in an effort to rein in legal aid payments to barristers. Sir Robin says in his report that although the "scope for savings and improvement in the efficiency of trial preparation is enormous", the fixed-fee system "perversely discourages rather than encourages efficient preparation". The use of such abrasive language suggests Sir Robin was unwilling to save the blushes of the Government by moderating any of his proposals.

Ministers got an early hint of what to expect from Auld when the Court of Appeal judge went public on his irritation at Jack Straw's announcement for a 10-year crime plan, which contained many ideas impinging on his own work. One solicitor consultant to the report suggested that the increasingly difficult relationship between Auld and the former Home Secretary Jack Straw might explain why Sir Robin was 3,000 miles away in America on the day his proposals were made public.

In his report, Sir Robin devotes a number of paragraphs to the political landscape in which his proposed reforms will be tested. He acknowledges that it would be naive to suggest that politics should be "removed from the forces driving change in the criminal justice system". But then he warns Government of the dangers of rushing through "insufficiently considered legislative reforms... for quick political advantage".

By talking up the proposals which fit in with the Government's manifesto pledge to be tough on crime and talking down those which give the opposite impression, Labour is in danger of simply carrying out a cherry-picking exercise. In an attempt to head off any such approach, Sir Robin says: "I take it as a legitimate starting point that there should be some mechanism of objective and informed assessment between the rawness of political enthusiasms of the moment and the transformation of their products into law."

The full impact of the Auld report will not be felt in the courts for at least another two years. There must first be a public consultation exercise, which will not be completed until the end next year. Then the Government will publish its white paper. But whatever form the final legislation takes, Sir Robin Auld knows he has single-handedly dragged our criminal justice system into the 21st century.

Last week Lord Woolf, despite his own reservations about some of Auld's conclusions, summed up what many lawyers and social reformers now believe: "In my judgment, the question is not can we afford to implement the Auld report, but can we afford not to implement the Auld report? To which I would answer, 'No'."