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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.

7 May 2003: Blunkett's murder tariff challenge to judges
4 January 2003: Barristers urge MPs to preserve trial by jury
26 November 2002: Blunkett defiant after jail defeat
21 November 2002: Out of step, but not out of line
10 November 2002: Blair faces revolt over Bill for trials without juries
18 July 2002: Abolition of trial by jury would let judges rule on cases

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External links  
Criminal Justice Bill - House of Commons
Sentencing and justice - Home Office
Criminal Justice System