In the name of the victim, the jury’s out

Trial by jury, which traces its roots back to the Magna Carta in 1215, has long been regarded as a key constitutional right. Yet the British jury trial system has also come under attack countless times. These days, the attacks usually come from case-weary judges, sick of the sight of plebs having the final say on trials in their courtrooms, or from government ministers keen to improve efficiency in the justice system.

Yet the latest proposal to undercut the fundamental democratic institution of the jury trial came from an unelected legal laywoman, the ‘victims’ champion’ Louise Casey. She has suggested that thousands of lesser offences in England and Wales could be tried without juries, in the interest of saving money.

Casey was appointed Commissioner for Victims of Crime in March by then prime minister Gordon Brown. She inherited the role from child protection campaigner Sara Payne, whose young daughter Sarah was murdered in 2000. Casey was tasked with ‘representing the views of the victims of crime’ to ‘impact directly upon government policy’.

Last week, Casey released the report Ending the Justice Waiting Game. It called for an end to the right to trial by jury for what are known as ‘either-way’ offences, which can be heard either by magistrates’ courts or be sent to trial at the crown court. She said the move would benefit victims of serious crime who suffer due to delays in ‘clogged up’ crown courts. Casey also argued for a limit to defendants’ right to change their plea, and for more incentives to encourage defendants to plead guilty early.

The report criticised the ‘administration of law that concerns itself with due process and the rights of offenders, leaving victims as a sideshow’. It claimed that ‘we need to stop the abuse of process which allows defendants and their solicitors to string out a case at the expense of the victims’.

These are strong words indeed from Casey, who is not a lawyer but has described herself as an ‘informed observer’ of the criminal justice system. She recognises no difference between ‘defendants’ and ‘offenders’ (she uses the terms interchangeably) and, in doing so, entirely ignores another foundation of the English legal system: the presumption of innocence. Her idea of justice is one in which retribution and therapeutic closure for the victim unquestionably take precedence over the rights of those in the dock.

The Ministry of Justice has described Casey’s proposals as ‘radical’, but they are in fact anything but. Over the past 20 years, arguing for the right to choose a jury trial to be sidelined in favour of greater efficiency and cost-saving has become all too common. In fact, today, the famous words of the late British judge, Lord Devlin, appear truly radical. He described trial by jury as being ‘more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives’. Today, the band of penny-pinchers and denigrators of justice wanting to switch off that light is growing.

Back in 1986, the Roskill Report on Fraud Trials recommended doing away with jury trials for complex fraud to allow for the ‘expeditious and economical disposal…of criminal proceedings’. In 1997, Martin Narey’s Review into Delay in the Criminal Justice System described crown court trials for either-way offences as ‘expensive manipulations’ of the system, whilst recommending an end to the right to choose trial by jury for any either-way offence. In 2003, proponents of the Criminal Justice (Mode of Trial) Bill attempted to abolish trial by jury for either-way offences on the basis that it caused ‘significant delay’ in cases coming to trial. The bill was defeated in the Commons.

Such proposals have insidious authoritarian implications. In a justice system driven by efficiency, the law is used to nudge defendants into rolling over and accepting their fate. Defendants are discouraged from asserting themselves and their interests and are accused of ‘abusing’ the system when they do. The right to trial by jury, along with all other rights that a defendant has in the courtroom, is seen as an irritating obstacle to the efficient dishing out of punishments.

There are good reasons why the jury trial is considered the cornerstone of our justice system. Juries provide a link between current social values and the black letter of the law. This is reflected in the fact that the jury can acquit in the face of overwhelming evidence of a defendant’s guilt if they think that the defendant does not deserve to be punished. The jury trial moves the court process beyond the realms of a simple fact-finding mission and places the defendant’s case under the scrutiny of the social values of the day.

This is not to say that justice cannot be done by any other means. Indeed, many defendants will prefer the forensic and efficient approach adopted by the magistrate. The decision of how to be tried will be made in careful consideration of the nature of the case. It will have a significant impact over trial tactics for the remainder of proceedings as well as defining the range of sentences that a defendant may face on conviction. It is not only the jury system in and of itself that is worth defending, but the freedom for defendants to control various important aspects of their trial.

As well as being important in the context of the rights of defendants, we also have an essential democratic right to sit as jurors. It is one of the few areas of public life in which we, as citizens, are trusted absolutely to make important decisions. It acknowledges that we all have an interest in maintaining the rule of law and in ensuring adherence to due process.

Removing the right to choose trial by jury not only limits the control that a defendant has over his or her trial; it also limits the control that we, as members of the public, have over how the law is administered.

In Casey’s black-and-white conception of the world, in which some of us are offenders and the rest of us are victims, there is no need for a jury. Criminal cases are straightforward administrative exercises where the bad guys are punished and the good guys get closure. In the real world, justice is more complex.

We should defend trial by jury – as a guarantor of defendant’s rights and as a mechanism for public participation in the administration of justice.

Luke Gittos is a paralegal at Hughmans solicitors and writes in a personal capacity. He will be chairing the debate Criminal cuts? The legal aid debate at the Free Word Centre in London on Wednesday 17 November.