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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 trial".

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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