THE JURY IS OUT ON LABOUR

The right to be judged by our peers is a cornerstone of British
justice. Now Jack Straw plans to remove that right for many
defendants, writes

Earlier this month I was having lunch in the Runnymede hotel, sitting
among the blue rinses and the blazers and looking out at the site
where a reluctant King John was compelled to agree to trial by our
peers. A few days later, another not so reluctant John tore up an
important section of the Magna Carta and sent it floating down the
river. A government that has loudly championed human rights in every
other part of the world is cheerfully selling them off in the English
courts of justice.

The view of the Home Office seems to be that the presumption of
innocence is a time-wasting luxury, and it is being supplanted by a
presumption of guilt. Any man accused of rape is presumed to be
guilty, so his right to cross-examine his accuser is thought to be an
unnecessary embarrassment. He must be compelled to employ a lawyer,
and the right to self-defence will not be available to him as it is in
all other cases.

The same line of thought is responsible for the present disastrous
innovation. Anyone accused of a (less serious) crime is clearly
guilty, and the process of their conviction must not be delayed by
anything as extensive and old-fashioned as a jury trial. Forget the
saying that trial by jury is "the light that shows that the lamp of
freedom burns". Ignore the words of the great jurist Sir William
Blackstone who begged them to remember that "delays and inconveniences
in the forms of justice are the price that all free nations must pay
for their liberty in more substantial matters. And that these inroads
upon this sacred bulwark of the nation [trial by jury] are
fundamentally opposite to the spirit of our constitution, and that,
though begun in trifles, the precedent may gradually increase in
spirit, to the utter disuse of juries in cases of the most momentous
concern."

Apparently not of momentous concern to the Home Office are thefts,
drug offences and assaults. Approximately 18,500 defendants a year are
to be deprived of their time-honoured constitutional rights. So the
dotty cleric falsely accused of stealing books, the sports star
mistakenly accused of assault, the police inspector accused of a drug
offence, all characters whose careers might be ruined by conviction,
are to be left in the hands of over-worked, world-weary and often
prosecution-minded stipendiary magistrates or local worthies who rely
for legal direction on their clerks.

Their trials will have to take their turn among the careless drivers,
drunks and kerb-crawlers and may be heard in bits and pieces, subject
to long adjournments. Such trials may only give satisfaction to civil
servants and politicians who can't, when it comes to the
administration of the legal system, see further than the end of a
(GBP)5 note.

So is trial by jury nothing but an old-fashioned luxury? I remember an
usher, clearing out a jury-box after a criminal trial, who found a
note from the foreman of the jury to his colleagues. It read: "Do we
all agree that: 1. The judge is a complete bastard; 2. The judge wants
this man convicted; 3. We therefore acquit?" This approach may be
shocking to civil servants and anathema to politicians who haven't
appeared for the defence in a criminal trial. They have never been up
against a judge who can't resist weighing in as an extra counsel for
the prosecution. There may be fewer such judges nowadays, but they
still exist. They put down the defence with a weary cynicism and
recite the mantra: "Of course, members of the jury, it's a matter for
you. But can you really believe it . . ."One Australian judge was
known to hold his nose and pull an imaginary lavatory chain after
having repeated the defence evidence. The constitutional principle
that will hold dear is not to have guilt or innocence decided by
experts, by officials, whether fair-minded or not, paid by the state.
The British were born into a society in which they are innocent until
12 ordinary citizens return to court and pronounce them guilty.

Although a criminal conviction may be more serious for some defendants
than others, it will be quite wrong to confine jury trials to
headline-grabbing movie stars or wayward clerics. If they deserve
trial by jury, everyone does. And if people from ethnic minorities
want to see those of their own race in the jury-box, we're all
entitled to put our fate in the hands of people like us and not be
left to the mercy of lawyers.

The prejudice that undoubtedly exists among politicians against juries
also comes from a lack of experience of criminal trials. Decades of
knocking around the Old Bailey have convinced me that, on the whole,
juries take their duties extremely seriously. They listen carefully to
the evidence and come to decisions, even on a number of complicated
charges, which I may not, as a defender, have liked but that all made
logical sense.

It was always easier to get a jury to see themselves in the tradition
of participants in a violent fight in the Bricklayers' Arms, or at a
dubious duel in a garage forecourt, than it was to explain
contemporary life to an Old Wykehamist, Fellow of All Souls, on the
bench. And it was always a pleasure to speak to human beings whose
minds were untarnished by legal precedents and who could listen to the
voice of humanity.

Juries have one undoubted advantage over lesser tribunals. They can
acquit someone who is technically guilty of an offence that they think
trivial or founded on an unjust law. In the course of history, heroic
juries have refused to convict Quakers and religious non-conformists
although they had broken oppressive laws. Such juries have disobeyed
judges although they were bullied, starved and threatened with jail.
As recently as 1971, a jury refused to convict on a case that was
founded on a ludicrous tradition of the Official Secrets Act. The
power of a jury to acquit in a case that they think should never have
been brought is now to be denied to huge numbers of citizens.

What is sad is the unnecessary disgust politicians seem to feel for
all legal practitioners. Lawyers aren't simply fat cats hungry for
legal aid. Many of them, like Rumpole, trudge round some pretty
unsympathetic courts for very little money. But it is they who keep an
eye on the great traditions of our constitution, the fine principle
that the burden of proof is on the prosecution, that we are entitled
to be judged by our peers and that the police should not invent more
of the evidence than is strictly necessary.

The former Tory home secretary, Michael Howard, diminished the burden
of proof when he abolished the right to silence. The present
government has followed his example and restricted judgment by our
peers. A reason given is that England is the only country that
preserves such rights so fully. That source of pride is now denied the
people.