OBJECTION, MR STRAW

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.