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Why juries could soon be forced
to retire
(Filed: 22/05/2003)
The changes being introduced under David
Blunkett's Criminal Justice Bill threaten one of the pillars of our
legal system. Joshua Rozenberg reports
If we carry on tinkering with the criminal justice
system, the Eurovision song contest will be the only place you'll
see a jury by the end of the decade, said the Labour MP Vera Baird
this week.
Hyperbole this may have been, but it was a lot closer
to reality than David Blunkett's bland assurance that jury trial
would be abolished in "somewhat fewer than 100 cases a year".
That was because the Home Secretary was referring
only to plans to scrap juries in complex or lengthy commercial cases
and where there was a danger of jury tampering. Mrs Baird, a QC, was
referring to an entirely separate clause that would let defendants
insist on trial by judge alone.
That deceptively benign proposal was first identified
as a risk to justice on
this page last July. It allows defendants the dubious right to
opt for trial without a jury - unless there are "exceptional
circumstances" or a co-defendant objects.
"Nobody has ever asked for that right," Mrs Baird
told MPs discussing the Criminal Justice Bill. "No client has ever
said to me: 'When you get into Parliament, can you legislate to get
rid of those bigoted jurors and get me trial by judge, please?'
"
In any case, wasn't this Government saying just a
couple of years ago that it should no longer be up to defendants to
decide whether they should be tried by jury in middle-ranking cases?
Why is Mr Blunkett now offering that right to all defendants?
The changes will not reassure victims, Mrs Baird
pointed out: the black man who claims he has suffered a racial
assault and finds that the defendant has chosen to be tried by a
white judge, or the rape complainant who finds that no women will be
involved in deciding whether her alleged attacker is guilty. No
problem, said Mr Blunkett: such cases would be tried by specially
trained judges.
And what about forum shopping, where the defendant
will try to find out if the judge allocated to the case is regarded
a softie before deciding whether to stick with a jury? Mr Blunkett
was so worried by this risk that he introduced a new clause allowing
courts to insist that defendants make up their minds before they
knew who the judge would be.
But that would be unenforceable, Mrs Baird
maintained.
Meanwhile, there will always be pressure on courts to
grant an application for trial by judge alone, simply because these
cases can be heard more quickly. In time, there will probably even
be shorter sentences for those who save the court's time by not
insisting on a jury - just as defendants now receive a discount for
pleading guilty. And how long before we see restrictions on legal
aid for defendants who choose a two-week jury trial in preference to
a one-week trial by judge alone?
Or will the Home Secretary be back in a couple of
years - as Mrs Baird fears - proposing that the decision on mode of
trial should be for the judge rather than the defendant?
In my view, jury trial will simply atrophy. Anyone
with a good defence will quite reasonably prefer the greater
efficiency and predictability of trial by judge alone. Juries would
soon learn that those who chose to appear before them were hoping to
pull the wool over their eyes. That, in turn, would make juries so
reluctant to acquit that defendants would soon stop using them.
Unless, of course, Parliament puts a spanner in Mr
Blunkett's plans. The rebellion by Labour backbenchers was large
enough to give peers the democratic legitimacy they need for
rejecting the legislation once it reaches the Lords. With the Bill
bouncing back and forth between Commons and Lords at the end of the
Parliamentary session, the Government could simply jettison the jury
provisions - or at least accept a number of Tory compromises - in
order to push its legislation through.
Failing that, Oliver Letwin, the shadow Home
Secretary, says the Opposition is prepared to "crater" the Bill and
force Mr Blunkett to use the Parliament Acts to get the legislation
enacted without Lords consent, provided he is willing to wait the
necessary year.
On Tuesday, the Commons spent two and a half hours
discussing a raft of major changes, including new sentencing
arrangements for murderers, mandatory minimum sentences for
unauthorised possession of a prohibited firearms and heavier
penalties for driving offences causing death.
There is no reason why Mr Blunkett's detailed
proposals for murder sentences could not have been published and
discussed while the Bill was in its committee stage. It is a year
since the European Court of Human Rights ruled that setting a
prisoner's minimum term was a sentencing exercise, making changes
inevitable. And it is six months since Mr Blunkett outlined his new
policy in response to a
ruling from the Lords.
In the two weeks since he
confirmed his proposals, there has been no response from the
serving judiciary. Comments from retired judges may be safely
ignored - especially as these were not based on the detailed clauses
that Mr Blunkett held back.
Although Lord Woolf took part in a Lords debate
yesterday afternoon on "judicial participation in public
controversy", he decided not to make any comment on the murder
proposals until the Criminal Justice Bill reaches the Lords later in
the summer.
Under the clauses approved this week, judges need
only "have regard to" the sentencing guidelines for murder.
"Detailed consideration of aggravating factors may result in a
minimum term of any length," the schedule adds.
Does that mean judges can simply set the same tariffs
as before? Probably not, in my view, but I would prefer to know what
Lord Woolf thinks. Paul Goggins, the new Home Office minister, would
only say that the Government was "not attempting to straitjacket the
judges with regard to every case".
The Lord Chief Justice knows by now that anything he
says on sentencing will be distorted and misunderstood by
mischief-makers. But that does not justify his decision to allow MPs
to debate detailed sentencing proposals without knowing his
views.
We can see that the Home Secretary's guidelines are,
in some cases, virtually double the tariffs set by the Lord Chief
Justice a year ago. "I disagreed with the Lord Chief Justice's
practice guidance," said Mr Blunkett on Tuesday.
Really? Then why didn't he say so in April last year,
when he received the advice of the Sentencing Advisory Panel on
which the guidance was based? And it would have been extraordinary
if Lord Woolf had not shown his draft guidelines to Mr Blunkett
before issuing them a month later.
At that time, the Home Secretary still had the power
to set tariffs. There would have been little point in issuing
judicial guidelines that were going to be increased by the Home
Secretary in individual cases.
What was truly remarkable was to hear Mr Blunkett
saying that no Home Secretary would be sorry to see the tariff go.
He and his predecessors used to cling on to the power to set
sentences for murderers as if their political futures depended on
it. But, since the Home Secretary will still be able to amend the
new sentencing guidelines in future, he does not seem to have given
up much power after all.
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