The sale of English justice.

• Author: Page, Kimberly Ann
• Position: Jury system

The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.(1)

1. INTRODUCTION

   The jury system is a cherished fundamental right of English common law laid out in the Magna Carta in the thirteenth century.(2) The jury system was so enshrined in English heritage that while America wished to rid itself of English rule in 1776, America did not shed itself of this English tradition, thus, James Madison adopted the defendant's right to a jury trial in the United States Constitution(3). An important distinction between the Magna Carta and the US Constitution should be noted, the Magna Carta grants a man judgement by his peers, but not the right to elect a trial by jury trial over a bench trial. Not until 1855 were English defendants given the option of either a summary trial or trial by jury in cases of petty larcenies.(4) By the 1870's, Parliament passed various statutes listing other offences to allow trials either by judge or jury, but the magistrate had the prerogative to overrule the defendant's wishes for a jury trial.(5) The Criminal Justice Act of 1925 included an exhaustive list of triable either way (hereinafter TEW) offences including serious theft, assault and forgery.(6)

   Today, the English have a three-tier system of justice where indictment cases of serious crimes such as death, rape, blackmail, robbery, assault and theft, are heard in Crown Courts with a jury; summary cases, where there is no threat to life, are heard in magistrates' court before three judges(7); and a third tier of TEW crimes like burglary, unlawful wounding, assault without actual bodily harm, and petty theft, which can be tried either in Crown Court or magistrates' court depending on the defendant's discretion and the seriousness of the crimes.(8) Over the last twenty-five years, the number of third tier offences has been slowly defused and thus the defendant's right to elect a jury trial has narrowed. The current government suggests eliminating all TEW offenses so that only a magistrate judge determines if a defendant has a judge or jury trial.

   The sole arbitrator of a defendant's fate would rest in the hands of three magistrate judges, who may have no legal background,(9) but can sentence defendants up to six months in prison and a 5,000 [pounds sterling] fine.(10) In contrast, a legally trained judge in Crown Court regulates a case before a jury.(11) Professionalism comes at a price, however; as a case going through the Crown Courts can cost the government 3,100 [pounds sterling], whereas a case directed to magistrates' court can cost a mere 295 [pounds sterling].(12) The number of TEW cases as well as the summary offences rose last year by 1.8%.(13)

   The United Kingdom(14) is a country where a balanced budget is not just a campaign pledge from a politician's mouth, but a necessity. The British live on an island with a relatively narrow tax base given their commitment to a socialist system of healthcare and welfare. Every section of the government must carefully account for the money they spend, and the Criminal Justice System is no exception. Therefore, in 1997, when the figures showed a rise in TEW cases possibly going to expensive Crown Court, the Conservative Home Secretary(15) proposed changing certain TEW cases to summary cases, thus eliminating the jury trial option for a defendant.(16) At that time the Shadow Home Secretary, Mr. Jack Straw, stated that abolishing the jury trial was "not only wrong, but shortsighted, and likely to prove ineffective."(17)

   This past year Mr. Straw reversed himself and proposed the Criminal Justice (Mode of Trial) Bill to Parliament's House of Commons(18) by which TEW cases would to be examined and determined by a magistrate as to whether they could be heard in Crown Court or magistrates' court, rather than by the choice of the defendant.(19) Two versions of this bill(20) have failed to pass the House of Lords.(21) However under special Parliament Acts, any bill that passes two successive sessions of the House of Commons, can be presented for the Queen's signature without the agreement of the House of Lords.(22)

   The removal of the defendant's right to choose a jury trial for crimes like theft and assault seems inevitable. This article will, in Section II, briefly explain the structure of the English law system discussing the differences between magistrates' court and Crown Court.(23) Section III will examine the viewpoints of the Home Office for restricting jury trials as well as the opposition's opinions. There will be a review of various evaluative studies that have explored how elimination of the jury trial will affect the justice system, with a special look at the Diplock Trials in Northern Ireland where since 1973, criminal cases have been tried by a judge rather than a jury. Section IV will investigate the budgetary savings of dispensing with the jury system to determine whether the cost savings is worth the elimination of the ancient tradition of being judged by ones peers. This article concludes that despite the cost savings of eliminating the defendant's right to choose a jury trial, the alternative of a summary trial is not blind justice, but rather a perfunctory means of granting a guilty verdict.

2. AN OVERVIEW OF ENGLISH CRIMINAL LAW

   A trial by jury "keeps the administration of law in accord with the wishes and feelings of the community." Oliver Wendall Holmes(24)

   The English Criminal Justice system is adversarial, meaning the defendant must be proved guilty beyond a reasonable doubt.(25) This was not originally the case in 12th-century England when justice was sought through trial by ordeal, such as putting one hand into boiling water or holding a red-hot poker. If the defendant's hand healed quickly, innocence was proclaimed because God intervened on the defendant's behalf. A person who sank when thrown in the water was considered not guilty, whereas a floating defendant was unnatural and therefore guilty. The biggest problem was the "innocent" usually drowned.(26)

   In June 1215, trial by ordeal was put to an end when King John signed the Magna Carta at Runnymede. His grandson, King Edward I confirmed the veracity of the promised charter by signing it into statute in 1297, so that no freeman would be condemned without lawful judgment of his peers.(27)

   In the early days of the jury, being a member was not a popular pastime. Jurors were sequestered (meaning no food or drink) until they reached a unanimous verdict.(28) In one libel case, the largest man refused to find a landowner libel against a very influential brewer who wanted the jurors held until they found the landowner libel. The stout juryman reminded his fellow jurors he was the biggest and strongest thus starvation could take the rest before he would vote for libel. The brewer finally ordered their release and accepted their contrary verdict.(29)

   English jurors were often punished in Tudor(30) times if they did not return verdicts in deference to the Crown. It was not until 1670 that jurors' independence was firmly established with the trial of Quakers William Penn and William Mead.(31) Despite the overwhelming guilty evidence, the jury refused to convict the men of seditious assembly and the judge furiously locked up the jury for two nights without food, drink, fire, tobacco or chamber pot.(32) The judge then fined each juror 40 marks(33) and imprisoned them until the fine was paid. After months of imprisonment, a writ of habeas corpus garnered their release. The jurors' verdict was then accepted, despite the judge's persuasion.(34) Thus England moved into the modern acceptance of jury verdicts as we know today.

   1. The Steps From Crime to Trial

      A trial "seeks not to establish the truth, but provides a process for the conviction or acquittal of the accused which affects the kind of evidence the police must secure."(35)

      The English police have far more "sentencing" discretion than an American police officer. After a crime is committed, the police, or bobby,(36) may arrest a suspect or request a person report to the police station for questioning.(37) After questioning, the police decide whether to charge the suspect. If charged, the suspect can be given bail or kept in custody.(38) The defendant is then brought before a magistrates' court to decide the mode of trial(39) that determines, "length of delay before the trial, the probability and duration of remand in custody, the anxiety for defendants, the probability of acquittal, the severity of sentence if convicted, [and] the cost to the public." The mode of trial is not determined solely by the magistrate's whim, but by statute. Offences are divided into three categories: (1) Offences triable by indictment are sent to Crown Court, (2) Offences triable by summary trial are heard only in magistrates' court, and (3) TEW offences which are dependant upon whether the defendant wishes a trial in Crown Court or magistrates' court.(4) Before the mode of trial process is discussed, an explanation of the magistrates' courts is necessary.

   2. Magistrates' Court

      I will do right to all manner of people after the laws and usages of the realm, without fear or favour, affection or ill will.(41) Magistrates, or Justices of the Peace, came about in 1264 when Simon de Montfort appointed a keeper of the peace.(42) The Justices of the Peace Act of 1341 gave magistrates power to investigate and arrest suspects.(43) Until 1905 the magistrates had to be men owning a certain amount of property.(44) Today, about 95% of all criminal cases have some dealing with the magistrates' court.(45) Therefore, it is almost certain that defendants will deal...