Vicki Chapman explains why plans to remove defendants' rights to choose jury trial are both unjust and impractical.
The Home Secretary has announced plans to remove the right of defendants to choose jury trial for a range of "either-way" offences. He has suggested the majority of defendants who elect Crown Court trial intend to plead guilty from the outset, and are engaged in a cynical manipulation of the criminal justice system. This is not borne out by the evidence.
Although there is a lack of up-to-date empirical research on the system, it is clear most defendants elect trial because they intend to plead not guilty and see their chances of acquittal in the Crown Court as higher. In 1997, 62 per cent who pleaded not guilty in the Crown Court to some or all counts were acquitted, compared with 24 per cent in the magistrates' court. Many of those who do ultimately plead guilty do so to only some of the charges or to reduced charges. Home Office research shows that where defendants pleaded guilty to some of the charges and not guilty to others, these pleas were accepted by the prosecution in 70 per cent of cases.
The act of electing jury trial also brings in safeguards, including further independent review of the strength of the case and greater disclosure of the prosecution case. New procedures in the Criminal Procedure and Investigations Act 1996 mean that less of the prosecution case will be disclosed early on. It is only after committal to Crown Court trial or entering a plea of not guilty before the magistrates that defendants get access to certain material. Thus a defendant wishing to have a Crown Court trial would have to argue the case to the magistrates without all the facts.
Removing the safeguards associated with election would disadvantage black defendants. A Home Office study shows that black people are more likely to be arrested than expected by their representation in the population, are more likely to be charged rather than cautioned, and less likely to be bailed. Black defendants more frequently opt for Crown Court trial and early indications from a research study on this issue are that this results in more being acquitted or having charges reduced.
The Home Secretary has suggested that people elect jury trial for "no good reason other than to delay proceedings". In practice, the removal of the right to elect is likely to result in further delays, with mini trials about venue, and lawyers put in the invidious position of having to submit to the justices that they lack the qualities to reach a fair decision. Any defendant anxious to secure a jury trial would challenge the justices' decision, causing further delay and expense.
While cases in which defendants elect for jury trial tend to be at the minor end of matters dealt with in the Crown Court, they are likely to be the most serious cases in magistrates' courts. Magistrates' courts already face difficulties in arranging trials likely to last more than a day or even half a day, given the infrequency with which some magistrates sit. A likely consequence of the removal of the right of election will be that more trials in magistrates' courts will have to be adjourned part-heard, which not only increases the unfairness to the defendant but also causes serious disruption and inconvenience to all other parties.
Two years ago the previous Home Secretary proposed abolishing defendants' right to elect jury trial. At that time Jack Straw said the idea was "not only wrong but short sighted, and likely to prove ineffective". That analysis was correct. The right to trial by jury is a fundamental safeguard, not just for the protection of the accused, but also for upholding the legitimacy of the whole criminal justice system.
Vicki Chapman is policy director at the Legal Action Group