30 July 1998
Eroding Defendants' Rights
Daniel Lloyd, from the legal group Freedom and Law, reveals what's behind
moves in the UK to deny some suspects the right to a trial by jury
The home office has announced its intention to remove the right of
defendants to elect for trial by jury for what are known as 'triable either
way' offences. If the proposal passes the consultation process - and there
is no reason to think that it won't - it will make the criminal justice
system even less democratic than it already is.
There are three types of offence: 'summary' offences are the least serious
and are exclusively adjudicated upon in magistrates' courts without a jury;
'indictable only' offences are the most serious and may only be tried in a
crown court. The group of offences in between, known as 'triable either
way' offences, include indecent assault, theft and handling stolen goods.
They are deemed to have a potentially adverse impact on the defendant's
reputation if he or she is found guilty and for this reason defendants have
been granted the right to elect for a trial by jury in a crown court.
The move to deny the right to a trial by jury by the home office may well
be driven, in the first instance, by a certain level of embarrassment over
a massively increasing crime rate, but with no shift in the conviction
rate. As legal author David Rose, has pointed out:
"... as the crime figure began their steepest increase in history in 1989,
committals faltered, then began to decline. There were 98 000 committals in
1989; 103 000 in 1990; 104 000 in 1992 and just 87 000 in 1993 - about the
same as in 1986. Over the period 1986-93, recorded crime soared from a
total of 3.8 million to 5.5 million offences."
Most would interpret this as a failure of the courts to convict. In fact it
represents the inflation of the crime statistics. Note that convictions
have remained fairly steady, and all the increase is in recorded crime (due
to the changed methods of recording crime). As Rose goes on to explain,
shifting trials to magistrates' courts is very likely to increase the
numbers of people being convicted.
"In Magistrates' Courts, where nine-tenths of the annual million or so
non-motoring offences are heard, well over 80 per cent of defendants plead
guilty. A Crown Prosecution Service survey of all cases heard by
magistrates in March 1992- April 1993 found a staggering 97.6 per cent
ended in conviction. The minority that do enter a 'not guilty' plea still
have a more than 70 per cent chance of being convicted."
The home office may wish see a way to increase conviction statistics by
trying more people in magistrates' courts. Being "tough on crime and tough
on the causes of crime", as home secretary Jack Straw is fond of saying,
from now on will include a desire to be "tough on anybody who wants a fair
Another reason put forward is that 90 per cent of defendants electing trial
by jury already have previous convictions and therefore have no reputation
to defend. Or so the home office argues. However, this has been advanced as
an argument to justify the decision to remove from all defendants charged
with such offences the right to elect trial by jury. So the home office is
not going to remove that right only for defendants with previous
convictions. It is going to remove it for all defendants because most of
them have previous convictions.
Ignoring the important inequality this will introduce, this is in any case
a spurious argument. A defendant's previous convictions are irrelevant to
the question of whether or not he is guilty of the offence in question.
Previous convictions can have no evidential bearing on whether or not he
actually committed the offence for which he now stands trial. Denying him
the right to trial by jury altogether is therefore barbaric. If previous
convictions are irrelevant to the issue of guilt why should they become
relevant to the question of the mode of trial? Either we live in a society
where the presumption of innocence holds good for all or we don't. Denying
somebody the right to a trial by jury because of their previous
convictions, as is being done here, is one sure step towards a more
barbaric system where individuals are not treated equally before the law.
The other justification put forward is one of cost. Magistrates' courts are
cheaper than crown courts, by approximately UKP10,000 per trial. So it
makes financial sense to try more cases in magistrates' courts. The fact
that this is even mentioned as a consideration by the home office
illustrates the low price it now puts on individual rights. A government
that is prepared to treat our rights with such contempt in the name of
public finances deserves our contempt in turn.
The proposed reform does however sit well with many of the other reforms
now being implemented by New Labour. Eroding the right to elect for a trial
by jury will make the criminal justice system less democratic than it
already is, which in the context of recent reforms was considered to be
rather difficult. Already only 1 per cent of criminal cases are currently
tried before a jury. The proportion of cases tried in the crown court as a
result of the defendant's choice has already declined from 53 per cent in
1987 to 22 per cent last year. It is estimated that a further 22,000+
defendants will lose out on their right to trial by jury as a result of
this particular change. Alternatively it means that 22,000 juries will not
have the opportunity to try their peers for criminal offences. It is this
last statistic which is the most revealing. 22,000 juries equates to
264,000 individual jurors who will now be excluded altogether from the
criminal justice system.
Magistrates are by their very nature infinitely more pliable than juries.
Invariably drawn from the more 'worthy' parts of the community, their
conviction rate is much higher than the jury conviction rate. Allied to
that, in February 1996, Jack Straw expressed concern that too many middle
class professionals were avoiding jury service, leaving juries to be
"dominated by the unskilled, the unemployed and other groups more
instinctively hostile to the police". Underneath Jack Straw's apparent
concern with defendants' rights lies a far more dubious concern at the high
number of 'thugs' getting off in jury trials. And there lies the nub of the
argument. Being judged by your peers is no longer good enough. According to
the home office, you must from now on be judged by those who will be most
likely to convict you.
Additional research by Charlotte Reynolds.
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