Bashing trial by jury is pathetically predictable, by Michael Mansfield


Source: The Guardian

They, the politicians, must think we all live in caves and have very short memories. Just how many politicians does it take to change the same perfectly satisfactory lightbulb decade after decade? Just how many pirouettes have to be performed before the prancing politicos disappear through the floor?
Here we are again bashing jury trial. The same moth-eaten arguments that have surfaced regularly over my working lifetime are back on track. In large measure they have been roundly defeated each time but, of course, that makes little or no difference to governments in need of a facelift.

The pattern is pathetically predictable. As home secretary, Michael Howard wanted to curtail the right to jury trial in hybrid cases, which could be heard in other magistrates or crown court, and was opposed by Jack Straw. Once in power the Labour government, with Straw as home secretary, fought interminably to get similar measures through the Commons and the Lords. Faced with overwhelming opposition and failure, resort was had to the threat of using the Parliament Act. All a trifle bemusing when it is remembered that the newly elected Tony Blair and his entourage were trailing the joys of the English system of trial by jury on a formal visit to China, even re-enacting a mock trial for one of those minor hybrid offences.

Worse is to follow. After the last election the Conservatives and the Liberal Democrats forged what they described as an historic document: the coalition agreement. Unlike the platitudes and pretentious pledges of the pre-election manifesto, this was to be a plan of agreed action. This was not aimed at pulling in votes but a declaration of principle and purpose for the world to see.

Under the general heading of freedom, fairness and responsibility there is a specific chapter devoted to civil liberties. It emphasises how they will be "strong in defence of freedom" and especially "restore the rights of the individual". Their principal propositions are enumerated, one of which reads: "We will protect historic freedoms through the defence of trial by jury."

Well that does not appear to have been written in tablets of stone, let alone enduring paper. In less than two years it has become sand through the hand. Small wonder we are faced with democratic bankruptcy.

Under the guise of tough action on rioters it is being suggested that the forthcoming white paper includes proposals to curtail the right to jury trial in hybrid or either-way offences (where defendants have a right to choose). The number of cases affected is estimated to be 70,000. It is claimed this will save time, money and relieve the workload on crown courts. Precisely the rationale that has been discredited before.

The raft of offences covered is substantial: assault, burglary, criminal damage, driving, drugs, theft. A conviction for any one of these can have serious repercussions.

The context for this is important. The justice secretary, Ken Clarke, has mounted a massive attack on the civil legal aid budget of 40%. He is persevering but has been forced to delay the project by six months. The people most concerned are not lawyers but ordinary citizens who will be unable to protect themselves effectively in critical areas such as debt, housing, medical negligence, employment, welfare, immigration and matrimonial. This is at a time when the vulnerable and disadvantaged are most at risk through unemployment, eviction, benefit capping and withdrawal and indebtedness. Criminal legal aid is next. Not much point in talking about the importance of fundamental rights and responsibilities if they cannot be enforced or accessed.

The Bar Council highlighted research 10 years ago that demonstrated that the jury trial restrictions would add to the cost and time delay, because crown courts could deal with short trials twice as quickly as magistrates courts. In any event, well over 90% of criminal cases are already heard in the lower courts, so it is only those that entail the risk of serious consequences that remain. Quite how any of this fits with the policy of cutting the court service as well is incomprehensible. Originally the coalition proposed closing 103 magistrates courts (one third of the total) and 54 county courts. Since then the figure for magistrates has been slightly reduced to 93.

Once more we fight the double speak of quick-fix supermarket justice, which discards the inconvenience of hard-won heritage and fundamental principle.

  • Geographical area: United Kingdom
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