Viewpoint: Hard work ahead to fill in this framework

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The Independent Online
FROM ancient times an English man could claim trial by jury, when accused of theft. Indeed, jury trial was until recent times the only mode of trial for serious offences, and justices of the peace, when they were established, were given minor charges to try in addition to their administrative duties.

Now all that may change. You will, if the recommendations are accepted, lose your right to jury trial for serious offences such as theft and fraud, serious assaults, affray, violence to children, indecent assault and supplying drugs. If the magistrates so decide, they will try the case.

There is nothing wrong with trial by magistrates. The point is that serious accusations should have jury trial.

The recommendation I have mentioned is in the Royal Commission on Criminal Justice which was established in a time when there was particular concern about miscarriages of justice. What this recommendation, abolishing jury trial, has to do with miscarriages of justice, I do not know. I can only think the reason is to save money. Cost is all very well, but when it impairs the public interest and justice, it should not be the standard.

Certainly the report does make a recommendation to deal with miscarriages. The review body is prepared to consider allegations of miscarriage. The Court of Appeal will have wider powers to deal with verdicts which are unsatisfactory, and to allow fresh evidence, and those points deal with miscarriages after they have happened.

There are wider powers for trial judges to dismiss a case when the case is unsatisfactory, and the suspect's right of silence in the police station is

maintained. At long last an independent forensic science service is to be available to defendants.

I am glad to see the reference to the need for the jury panel to reflect the ethnic content of the community, but I do not think a judge should have the power recommended by the report to interfere with random selection and cause the jury to have particular ethnic members.

The report criticises the standards of some barristers and I face the fact that the Commission has seen some poor advocacy and that is less than justice. Judges are encouraged by the report to take action against these barristers. That is good. For many years now, there has been a complaints procedure against barristers and a complaint cannot be dismissed unless the lay members on the Committee agree.

Justice delayed is justice denied, said Magna Carta; and the Commission propose steps to define the issues in a case before it reaches trial and to ensure that there is good preparation on the side of both the prosecution and the defence. This will lead to a shorter time before the case comes on for trial and a shorter time of hearing. So, less delay of justice, and no denial

of it. But did the Commission really work out why the miscarriages had occurred? In these cases the fault line started in the investigation of the case and in the disclosure stage when the prosecution tell the defence what they have by way of documents and material. The Bar suggested that the Crown Prosecution Service should supervise police investigation; this has not been taken up.

As to disclosure, the Commission seem to be saying that instead of full disclosure by the prosecution, it may make some initial disclosure, and then wait to see what the defence base is before making its second round of disclosure. But what if the defence do not know of a particular case available to it which is to be found only in the prosecution documents?

This has happened in at least one well-known miscarriage case recently. The defence did not know of facts showing the defendant could not have done it; they were to be found in prosecution documents which were not disclosed.

The Royal Commission has worked hard. But a great deal more work is required by the legal profession, barristers and solicitors to get it right.

Runciman profile 6

Reformers applaud 6

Loss of jury right attacked 7

Leading article 19

Chris Mullin 21

View from City Road 24

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