Law: The freedom of choice: Christopher Sallon and Anthony Burton argue in favour of retaining the defendant's right to trial by jury

'WE ARE public and we are a service but we are not serving people unless they know what we are doing.' This is how Barbara Mills QC, the Director of Public Prosecutions, has described the function of the Crown Prosecution Service.

This laudable emphasis on service and accountability may conflict with Mrs Mills' latest recommendation: calling for defendants to lose the right to choose trial by jury. Instead, she suggests, prosecutors or magistrates should decide whether a defendant may have jury trial. She complains about the cost when defendants opt for jury trial, only to plead guilty when they reach the Crown Court.

In cases triable either way - for those offences which allow the choice of Crown Court or magistrates' court trial - most defendants choose trial by jury. The chance of conviction by magistrates is far higher than by a jury, a view accepted by the Home Office.

The growing number of defendants who claim the right to jury trial is causing the Government concern, and serious attempts have been made to transfer a number of offences to the jurisdiction of the magistrates. This is done by reclassifying the maximum sentence for certain offences, or by ensuring that new offences, particularly those relating to public order, are triable only by magistrates.

A committee set up under the late Lord Justice James in 1974 was given the task of distributing business between the Crown and magistrates' courts. Although the judge's principal concerns were cost, delay and efficiency, he was worried too by 'the exercise of defendants of their right of election' to jury trial.

In the preceding 10 years, the numbers committed for trial had more than doubled, and this pattern was not entirely due to the increase in recorded crime. Some 22,000 people a year opted for jury trial on charges involving theft of property under the value of pounds 10.

James proposed the end of trial by jury for drink-driving cases, theft and related offences where the value of goods stolen was less than pounds 20, for criminal damage involving less than pounds 100, and for a number of public order offences. There was much opposition to the recommendation concerning small theft cases and ultimately the Government gave way. But most of the other recommendations in the James Report on restricting trial by jury were implemented.

The 1977 Criminal Law Act continued the trend by confining certain public order offences to the magistrates' court. As a result, political demonstrators and pickets in industrial disputes, who should have been entitled to trial by jury, were tried by magistrates and almost invariably convicted.

No doubt the DPP would defend her call for the abolition of the right to choose the mode of trial by pointing to statistics claiming that of the 35,000 cases each year where defendants have chosen committal to the Crown Court, 80 per cent then plead guilty.

Such figures, it is said, justify an attempt to limit the rights of an errant and unpredictable 80 per cent - but what of the rights of the remaining 20 per cent? In any event, the reasons for election to jury trial and a later guilty plea are various.

Firstly, weak evidence is often strengthened in the period between committal and hearing. The prosecution rarely begins to review the essential evidential issues until the matter has been sent to the Crown Court.

Secondly, this review often results in redefined, replaced or dropped charges. Limited or alternative pleas are accepted by prosecution barristers who have benefited from, or played a part in, the review procedure.

Finally, once the prosecution case has been defined and strengthened, defence lawyers are better able to advise on the merits of the proposed defence and its likelihood of success. Frequently, this leads to a change of heart and of instructions.

The administrative problems that arise from late guilty pleas in the Crown Court and the consequent cost implications are not solved by advocating the removal of the fundamental constitutional right to choose trial by jury. That is a knee-jerk response with profound civil liberties implications. A good criminal justice system costs money and the question of cost can never justify such a change as that proposed by the DPP. Efficiency and value for money, however, are entirely different issues.

This was recognised by the Bar's working party led by Robert Seabrook QC, which recommended a more intensive and sophisticated approach to preparation of a case from its inception by both sides. Early recognition of issues currently dealt with after committal enables the defendant and his lawyers to make an informed decision about the plea. This requires co-operation on both sides.

Seabrook recommended that the prosecution should be required to serve copies of the proposed draft indictment with the committal papers. It also called for the defendant's intended pleas to be noted at this stage, along with a note of any alternative pleas or defence objections to the form or content of the draft indictment. These proposals predicate a standard of preparation that can only be achieved by vastly improved case management. In our view, this will significantly reduce the number of cases going for trial and it is in this area that the Royal Commission should concentrate its thoughts, rather than acceding to the DPP's draconian proposal.

It is a sad irony that a DPP who places such value on providing a public service to the citizens of this country should recommend the abolition of one of their most cherished rights.

Christopher Sallon is a practising barrister and a member of the Bar Council. Anthony Burton is a solicitor and a partner with Simons Muirhead & Burton.

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