The jury's out

A government paper does nothing to defend the liberty offered by the jury system, writes Bruce Houlder QC. Bruce Houlder QC is the vice chairman of the public affairs committee at the Bar Council.

The Government consultation paper regarding mode of trial in either-way cases picks and chooses material gleaned from the Narey Report of February 1997 to make its case.

If adopted, the proposals could see up to 22,000 defendants a year lose their right to a jury trial. Abolition of right to trial could affect more than 20 per cent of crown court cases with a bench of magistrates replacing the jury.

The paper suggests a new way of retaining a case in the crown court without the consent of the person principally affected by the decision - the unconvicted defendant.

It dismisses many arguments for retention of the "status quo" jury system, and suggests that they have nothing to say of the merits of jury trial at all. It is regrettable that such a shallow approach is taken. To limit choice would be cheaper - but at the cost of a wider perception of justice and the power of people to influence and participate in a vital democratic process.

Reclassification of certain crimes to make them summary offences has not done enormous damage as yet - but if extended could create the potential for prosecutors to manipulate charges to deny a person a trial by jury.

The main argument in favour of allowing magistrates to decide mode of trial is said to be that they are the best qualified.

But why? Most accused are represented on either-way cases, and their lawyers, unlike the magistrates, will be in possession of information about what the presentation of their case might involve - and they probably know more about its cost than the magistrate can ever be expected to.

Steps have already been taken to reduce the unnecessary use of juries. The plea before venue procedure discounts for early pleas proposed by the Seabrook Committee, and the National Mode of Trial Guidelines have done much to avoid unnecessary elections for trial. Custody time limits have also speeded up the process. Some of these comparatively new procedures are working. The squeezing of the system further may upset the balance between the right to trial by jury and administrative convenience.

The delay argument really is a non-starter, and contains old-fashioned prejudice about why defendants elect trial. Today, some major crown court centres have courts that are unused because the process is as up to date as it can be.

It is the serious indictable cases that cause delay, but these are not the cases that this paper is about. Many cases could not be made trial-ready in less time. The process of transfer from the magistrates court to trial is not a stop/start procedure for either side but part of the background administration to a continuing process of getting prepared for trial.

The statistics provided by the Bar to Michael Howard on this issue made the point. Jack Straw then opposed him - recognising then that this proposal did in fact have a lot to do with the merits of jury trial. The Bar Council believes he is still listening.

The profession should be unhappy about the suggestion to deny those with previous convictions the right of choice. The approach would be contrary to the spirit of the Rehabilitation of Offenders Act and create a feeling of "second class justice". It may be that such legislation could be declared incompatible with the European Convention.

The Narey Report addressed cost and delay. Much is being done to streamline the process of trial preparation. As judges have come to realise, justice sometimes requires a light and subtle hand. The goodwill and co-operation of the people requires changes to our process to be motivated by higher ideals than money.

Once the existing new procedures for disclosure and defence statements are running smoothly, they could be transferred to the magistrates, and fully prepared cases sent to the crown court at the first available date. The custody time limits for smaller cases could be sharpened to accelerate the process.

The profession should not forget that either-way offences cover many burglaries, indecent assault and crimes that affect quality of life. Quality of justice and our participation in it is now a real issue.