UK: Limiting the right to jury trial - half truths and falseassumptions
01 January 2000
In January the newly-reformed House of Lords overwhelmingly defeated the Government's plan to restrict the right of accused persons in many criminal cases to elect to be tried in the Crown Court. In what can only be described as a 'knee jerk' reaction, the Government immediately announced its intention to re-introduce the Bill in the House of Commons and, if necessary, to use its majority there to override Lords' opposition. Home Secretary Jack Straw claimed that the measure (which he previously opposed and wasn't even mentioned in Labour's 1997 manifesto) was central to the Government's plans to modernise criminal justice. The Prime Minister himself weighed in, trumpeting the over £100m saving it is claimed the measure will generate, enough money to pay for many thousands of new nurses or teachers.
One is left wondering what sort of crude majoritarian theory of democracy Tony Blair and Jack Straw subscribe to, that they would be willing to invoke the Parliament Act to take away a vital legal protection from citizens charged with serious criminal offences by the state. Even more worryingly, their new-found enthusiasm for this measure, and apparent belief that it will save so much money, indicates a triumph of narrow, civil service thinking over political judgement on the part of the New Labour administration.
Forcing the issue onto the agenda
Taking away a defendant's right to jury trial has long been on the agenda of criminal justice professionals and Home Office bureaucrats. In 1989, the Home Office Research and Planning Unit carried out a key research study on the subject, which even today is the primary source of many of the half-truths and false assumptions deployed in favour of the Government's plan. That research was, in turn, fed into the Royal Commission on Criminal Justice, whose 1993 report recommended abolishing defendants' right to elect jury trial.
Fortunately, successive Tory Home Secretaries - Kenneth Clarke and even Michael Howard - had the political sense to sideline this particular recommendation in the face of widespread criticism, not only from the then Labour opposition but also such prominent legal spokesmen as the Lord Chief Justice, Lord Bingham, and Gareth Williams QC, now Lord Williams of Mostyn and Labour Attorney General. The latter describe the proposal when it was put forward by the Royal Commission as nothing short of "madness".
Not to be deterred, the recommendation was subsequently revived by a senior Home Office civil servant, Martin Narey, in a 1996 report on reducing delay in the criminal justice system. It was from this source that the plan found its way, via another consultation exercise, into the current Government's legislative programme.
The Home Office's 1989 research, by Carol Hedderman and David Moxon, has certainly had a shelf life extending well beyond its sell-by date. For example, since it was carried out, the number of defendants electing jury trial has gone down by nearly half. The study involved a survey of over 5,000 court records relating to defendants in either way cases convicted at five (out of nearly 100) Crown Court centres and seven (out of over 400) magistrates' courts in the country. A sample of 666 defendants convicted at Crown Court were also selected for interview, although in the event only 282 (42 per cent) were tracked down.
Tackling delay
The study has been repeatedly misquoted, not least by the Royal Commission and various Government spokesmen, as showing that a large majority of defendants who elect for jury trial eventually plead guilty. This has formed the basis for the Government's argument that the right of election is being widely abused. In fact, as Hedderman and Moxon themselves noted in their original study, no such conclusion can be drawn from it, since their sample excluded those who elected and were eventually acquitted in the Crown Court.
But this has not prevent