Subj: OPED: Objection, Mr Straw

Date: Aug 2, 1998

Source: Independent on Sunday

Opinion



Objection, Mr Straw

By Trevor Grove



The right to choose trial by jury is an integral part

of our democracy - or so Labour insisted when

the Conservatives proposed to curtail it. Now,

keen to cut costs, Blair's Government is reviving

the very same idea. 



TONY BLAIR never said "the jury system is safe

in our hands". He hardly needed to. Trial by jury

is the very essence of our democracy, or, as Lord

Devlin said, "Every jury is a little Parliament"; and

when the then Home Secretary, Michael Howard,

prompted by the recommendations of the 1993

Royal Commission on Criminal Justice, proposed

to curtail the right to choose trial by jury, Jack

Straw led the catcalls. The proposal was "unfair,

short-sighted and likely to prove ineffective", he

spluttered. 



As things stand, and have stood since Victorian

times, those accused of a wide range of lesser

offences, such as shoplifting or indecent assault,

can choosewhether to have their cases heard

summarily, in a magistrates' court, where

sentences tend to be lower, or before a jury in a

crown court, where acquittal rates are higher.

Under Home Office proposals published last

Tuesday, with the apparent approval of Mr

Straw, defendants would no longer have that

choice. The magistrates would take the decision. 



It is a breathtaking volte-face,and it is already

evident that Mr Straw will, like his predecessor,

meet with stubborn opposition Much of it on that

occasion came from the silkiest of trade unions,

the Bar Council, but certainly not all. 



This time round, the cries of "Objection!" were

instantaneous. It would be a back-door removal

of jury trial, said Bruce Houlder QC, speaking for

the Bar, "a further unfortunate inroad into

something which is being marginalised all the

time". The radical Legal Action Group was also

quick into the fray, reminding the Government that

"the defendant's right to elect a jury trial is one of

the most important rights in the criminal justice

system". 



No one should have been surprised at the

hubbub. Trial by jury is far from perfect - the

worst system in the world save for all the others,

it is often said. But our attachment to the jury

system in this country is an article of faith and

attempts to diminish its role raise hackles right

across the political spectrum. 



IT HAS to be said that there are good arguments

for reducing the large number of apparently

piffling cases that go before juries. The theft of a

bottle of milk from a doorstep could in theory

lead to a full crown court trial. The cost would be

at least five times greater than if the case were

heard by magistrates; estimates put the average

contested jury trial at UKP13,500, against UKP2,500 for

a magistrate's court case. The prospect of

massive savings has reawakened the Home

Office's zeal for reform and caused Mr Straw to

think again. 



It is also true that experienced crooks exploit the

system, banking on a jury's good-heartedness and

lack of experience to get them off. When I wrote

a book about the jury system last year I

encountered a widespread belief that this was so

- especially among the police. In such cases this

was not justice, they pointed out. Nor is it. 



By the same token, many wrongly charged

defendants also get the benefit of the doubt - a

benefit that might not be so readily available from

a trio of case-hardened JPs, whose conviction

rate is almost double that of juries. To be charged

with stealing a packet of prawns or goosing a

ballgirl at Wimbledon might seem of no great

moment to some, but it could spell the end of their

worlds if the accused were a schoolteacher or a

clergyman, people whose livelihoods depended

on their reputations. 



"If you were charged with shoplifting a box of

chocolates and you hadn't done it, what would

you do?" asks former judge Sir Stephen Tumim.

He has no doubt. He would rather be judged by a

jury than by magistrates, who have seen too much

of human nature always to think the best of it. 



For all its imperfections, the jury system is a

precious institution, a valuable ingredient in

national self-esteem. To tinker with it merely for

the sake of good housekeeping is to trifle with

history. Whereas the monarchy makes us

subjects, the jury system defines us as citizens. It

is a safeguard against oppressive and outdated

laws. It ensures that the accused hear their trials

conducted in language they understand. Above

all, it is a guarantee that no one in this country can

be deprived of his liberty for more than a few

months without 12 of his fellow-citizens agreeing

to it. 



About 22,000 cases a year would be affected by

the abolition of the right to choose jury trial in

"either-way" cases. To put that in a wider

perspective, the vast majority of criminal cases in

England and Wales, at least 93 per cent of them,

are heard in magistrates' courts. That leaves at

most 7 per cent of defendants to be tried by

juries. Of that 7 per cent, the 22,000 represent

less than a quarter. 



Nevertheless, it is not hard to imagine the kind of

misfortune that could lead to an otherwise

blameless person being one of those accused. As

an ex-juror, I would be alarmed at being refused

the option of a jury trial in such circumstances. I

have sat in the jury box on short trials at

Southwark and an immensely long one at the Old

Bailey. In each case I was impressed by how

such a random collection of involuntary volunteers

rose to the occasion and strove to reach a fair

verdict. 



My conclusion is that most juries treat their task

with remarkable conscientiousness. The newly

ennobled Helena Kennedy QC agrees. "Juries

use their sixth sense, their sense of smell. They

sniff the air and get a feeling about whether

people are truthful or reliable. They may go in

with a whole set of prejudices, but what always

impresses me is that they can filter them out. They

can make subtle distinctions. You can see the

effect in the verdict, when they find a defendant

guilty on some counts of the indictment but not on

others. Collectively this group of people is better

than the sum of its parts." 



IT IS TRUE that the acquittal rates are much

higher when juries and not magistrates are in the

seat of judgment. But that is what you would

expect. Members of the jury, you must decide "so

that you can be sure", says the judge. "Beyond

reasonable doubt," adjures the counsel. Those are

mighty obstacles in the path of a carelessly

considered conviction. 



In spite of the arguments for keeping the jury

system as it is, some form of change regarding

these "either-way" cases now seems unstoppable

- just as it seems clear that juries will one day be

removed from complicated fraud cases and be

replaced by tribunals. Mr Howard's Home Office

was forced to rein in on both these reforms. But

there are few checks on New Labour, especially

when Lord Irvine, the Lord Chancellor, is

cracking the whip. 



If it is to be left to magistrates to decide on the

form of trial in "either-way" cases, I would

recommend that in such instances the bench ought

to have before it the defendant's criminal record,

should he have one (as many do). Anyone

without a record - who therefore has a reputation

to defend - should automatically be allowed to

opt for trial by jury. That way the benefit of the

doubt which juries notoriously afford the man or

woman in the dock would apply where it was

most properly due. 



I am surprised to be writing about this subject

today. Less than a year ago, as I was finishing

The Juryman's Tale, I wrote this: "The present

government, needless to say, has no plans to

carry on where the reviled Howard left off - yet.

But the 'either-way' saga clearly shows that, for

all the lip service paid to it, the jury system in this

country is by no means invulnerable. The warning

words of the great 18th-century judge and jurist

Sir William Blackstone are sure to be invoked

again before the new millennium is very old. 



"He warned of the lure of new and arbitrary

methods of trial: 'However convenient these may

appear at first . let it again be remembered that

delays and inconvenience in the forms of justice

are the price that all free nations must pay for their

liberty in more substantial matters . and that,

though begun in trifles, the precedent may

gradually increase and spread, to the utter disuse

of juries in questions of the most momentous

concern." 



Though it hasn't waited for the new millennium to

re-survey the sacred bulwark, I don't think this is

what the Government has in mind. But great

edifices are eroded from the outside. It would be

ironic if, just as countries such as Russia, Spain

and Japan are turning to the jury system as a

better means of doing justice, New Labour

started knocking bits off it in order to save on the

upkeep bills. 



Trevor Grove is the author of 'The

Juryman's Tale' (Bloomsbury). 



A model for much of the world 



THE ENGLISH jury system has been exported

across the globe, writes Trevor Grove. It

flourishes in Ireland, Canada, Australia and New

Zealand. It is hanging on in Hong Kong. Many

Commonwealth countries abolished it for tribal or

dictatorial reasons but Malawi has brought it

back. 



Nowhere is it more highly revered than in the

United States, where Sidney Lumet's film Twelve

Angry Men virtually has the status of a sacred

text. 



France has its own jury system, as does Scotland.

Russia, Spain and Japan are all considering the

introduction of juries modelled on Britain's.

Scotland has 15-person juries and the

seldom-used option of the "not proven" verdict.

In France, serious cases are heard by three

judges and nine jurors. All 12 retire together to

consider both the verdict and the sentence (an

idea that might appeal to our own law-enforcers).



In other countries with jury systems, the English

model prevails, with variations. In New Zealand

and most states in Australia, verdicts must be

unanimous, although there are moves to introduce

majority verdicts, as here, because of the high

rate of hung juries. 



In the US, too, the majority of states insist on

unanimity - and not just for offences carrying the

death penalty - despite the numerous mis-trials

that result. 



In England and Wales, peremptory challenges of

potential jury members are no longer allowed. In

general, the jury you get is the jury you are stuck

with. But in the US, prosecution and defence

lawyers have a generous allowance of

peremptory challenges and employ high-earning

jury consultants to help them. The result is that

juries sometimes take months to pick, and often

end up looking "stacked" - as in the first O J

Simpson trial. 



In the US, juries also try big civil cases. Despite

plentiful evidence that jurors are often out of their

depth in the cross-currents of commercial law,

millions of dollars hang on their verdicts. On the

other hand defendants can be tried by a judge

alone, if they choose, which many do. 



Three US states - New York, Arizona and

Massachusetts - now insist that jury service

should be universal. Everyone must do it if

summoned, except in the direst circumstances.

That is something the UK would do well to

emulate. Far too many professional and

middle-class people find it easy to avoid their stint

in the jury box - and then complain that juries are

too ignorant to reach a reliable verdict.