You want to see Caesar? Sorry, we're saving cash

I HAVE only had two brushes with the magistrates' courts, once as defendant and once as a witness. The first was brought back vividly to mind by a news item last week in which a defendant was said to have met his barrister only five minutes before the hearing.

I thought to myself: I wonder if that was the same barrister who represented me, all those years ago? He had exactly that trick of leaving everything to the last split second. He got me off (it would have been hard not to, in the absence of any prosecution evidence), but I never understood why costs were awarded against me.

The experience of justice can be rather similar to the experience of a crime - everything happens so quickly. You go to the court. Suddenly your case is being heard and suddenly the magistrate has reached his decision. Later, you wish you had had a chance to say this or to point that out more forcefully. You run the case over and over in your mind. You regret at leisure.

Every year in England and Wales more than 35,000 people, the population of a small town, decide to have their cases heard in the Crown Court, with a jury, instead of at a magistrates' court. These are people whose cases could appropriately be heard in either kind of court.

The magistrates must inform the defendant of his right to go for a jury trial. No doubt it is something of an awesome moment, like Saint Paul electing to be tried in Rome, exercising his rights as a Roman citizen.

The right to a trial by jury goes back to Magna Carta. You would think that anyone who proposed to take it away would come furnished with very good arguments. But the strange thing about the report of the Royal Commission on Criminal Justice headed by Lord Runciman is that it does not. The report does talk about desirable consequences of removing the right, but that's another matter. It also points out that the right is not enjoyed in Scotland, and that nobody seems to complain very much about its absence. But it is not quite so impudent as to say that because the Scots don't have this right, the English shouldn't either.

The report states: 'We do not think that defendants should be able to choose their court of trial solely on the basis that they think they will get a fairer hearing at one level than the other.' One expects, after this very surprising opinion, some brilliant exposition of a better basis for choosing a court of trial. Instead, the next sentence reads: 'Magistrates' courts conduct over 93 per cent of all criminal cases and should be trusted to try cases fairly.'

One might ask, in that case, why magistrates should not be trusted with the remaining 7 per cent of criminal cases. Why bother with the silly old jury system at all?

The report continues by reminding us that there is, anyway, a right of appeal against a magistrate's decision, involving 'a complete re-hearing of the evidence by a judge and two magistrates at the Crown Court'. Terrific] I am entitled to appeal, but my chance of a jury trial is already forfeit.

Finally, the report says that defendants should not 'be entitled to choose the mode of trial which they think will offer them a better chance of acquittal any more than they should be able to choose the judge who they think will give them the most lenient sentence'.

But the motive of the citizen in exercising his rights is no business of the court. When Paul appealed to Caesar, the answer was: 'Thou hast appealed unto Caesar. Unto Caesar thou shalt go.' It was not: 'Oh yes, I see what your game is, you want to stage a martyrdom in Rome, and thereby spread the word of your sect throughout the Empire . . . no, we're not falling for that one.'

Nor was it: 'You know, it's very expensive to ship a prisoner all the way to Rome from these outposts of the empire. It's very inconvenient.' But expense and convenience seem to lie at the back of the minds of Lord Runciman and his colleagues.

The report tells us that 30 per cent of cases in the Crown Court are there because the defendants exercised their right, against the wishes of the magistrate. In one study, it says, a third of such defendants later regretted that they didn't stay with the magistrate's court. That's the way the report expresses it; another way of looking at the matter might be to say that two-thirds of them were glad they did as they did.

One motive for taking the Crown Court option is to put off the day of the trial. Time spent on remand counts against the eventual sentence, but remand conditions are relatively privileged, the report says. You get 'better access to lawyers, more visits, the right to wear (your) own clothes, and the ability to spend more money at the prison shop' than convicted prisoners.

I think the suffering nation can learn to put up with this scam.

But most defendants who opt for the higher level believe they will have a better trial and a better chance of acquittal. And on the second point they are apparently right. A study showed, in contested cases, a 57 per cent chance of acquittal in the Crown Court as opposed to 30 per cent with magistrates.

A curious fact is that when they decide to take up the Crown Court option, only 27 per cent intend to plead guilty, but by the day of the trial 70 per cent have pleaded guilty to all charges and a further 13 per cent to some. That leaves us with about 6,000 people a year exercising their option to plead innocent in the Crown Court, against the wishes of the magistrates.

So this right is not some quaint old custom, like the right to wear velvet hose in the High Street on Saint Frideswide's Day. It is a right regularly exerted by innocent - and guilty - pleaders alike. Many of those 27 per cent who know from the start that they will plead guilty must value the experience of the judge. Those who remain determined to plead innocent must feel a jury will take, for instance, a dispassionate view of the evidence offered by the police.

Lord Runciman's commission was set up after the quashing of the convictions of the Birmingham Six. The matter of jury trials is only one of its concerns. But how very odd it would be if we lost a treasured right because of the miscarriage of justice in the Birmingham Six case.