Just, For A Start

Marcel Berlins writes:

A strange kind of criminal trial begins in the royal courts of justice in London this Tuesday. For one thing, it takes place there rather than at a crown court. But more importantly, looking around the courtroom, something is wrong. Where is the jury box? Where will the jurors sit? Indeed, where are they?

For the first time in about 400 years, a trial on very serious criminal charges, for which the accused, if found guilty, will spend years in prison, is to be held without a jury. At the end, the verdict will be pronounced not by a representative of the 12 citizens, but by one judge of the high court.

The trial raises an issue of importance to the future of our criminal justice system. Opinion in the world of law and civil liberties is divided. Is it a watershed case, a model that will be frequently followed, a slippery slope creating a fundamental attack on an accused's centuries-old right to choose trial by jury? Or should it be treated as a very exceptional case, unlikely to be imitated in more than a few cases, and posing no threat to our rights?

In the makeshift dock four men will be tried on charges arising from the robbery of £1.75m from a warehouse near Heathrow in 2004. The accused have already had three inconclusive trials for the same offences (wasting more than £20m). Their third trial was stopped amid allegations of jury tampering.

Enter the Criminal Justice Act 2003. It gives a judge the power to order a no-jury trial where "there is evidence of a real and present danger that jury tampering would take place" and where any steps taken to prevent it, such as police protection for jurors, would not be effective.

In theory there should not be many cases meeting those tests. But there are worrying aspects nevertheless. The lord chief justice, Lord Judge, who last June declared this trial should be by judge alone, took into account the likely £6m cost of protection for jurors, which would have occupied 82 police officers – an ¬unreasonable drain on resources.

I am a little concerned to see money being a factor in a case in which an accused's liberty is at stake. But that is the way the government thinks now. Why is it so keen to abolish the right to trial by jury for certain fraud trials? Not because it serves justice but because it saves money. Why is it pleased about the Heathrow Four's trial by judge alone? Because it many take only two or three months instead of six. Think of the ¬lawyers' fees saved.

I am not necessarily opposed to the decision to hold this trial without a jury. I do not believe the accused will be denied a fair trial. But they will be denied a choice, and that should be worrying, especially when the suspicion exists that the right to jury trial will, in future, be increasingly affected by the cost of justice and not its content.

It is very high time for the abandonment the existing erosions of trial by jury and of the right to silence, of the existing reversals of the burden of proof, of the provision for conviction by majority verdict (which, by definition, provide for conviction even where there is reasonable doubt), of the admission of anonymous evidence other than from undercover Police Officers, of the provision for conviction on anonymous evidence alone, of both pre-trial convictions and pre-trial acquittals by the Crown Prosecution Service, of the secrecy of the family courts (although that is improving), and of the anonymity of adult accusers in rape cases, of the scheme for identity cards, of control orders, of the provision for Police confiscation of assets without a conviction, of stipendiary magistrates, of Thatcher's Police and Criminal Evidence Act, of the Civil Contingencies Act, of the Legislative and Regulatory Reform Act, and of the Official Secrets Acts. Just for a start.

It is very high time for the minimum age for jurors to be raised at least to 21. For a return to preventative policing based on foot patrols, with budgetary sanctions against recalcitrant Chief Constables who failed to implement this. For Police Forces at least no larger than at present, and subject to local democratic accountability, most obviously though Police Authorities, but if appropriate by means of elected sheriffs. For the pre-1968 committal powers of the magistracy, and the pre-1985 prosecution powers of the Police, to be restored. For each offence to carry a minimum sentence of one third of its maximum sentence, or of 15 years' imprisonment where that maximum sentence is life imprisonment. For a single category of illegal drug, with a crackdown on the possession of drugs, including a mandatory sentence of three months for a second offence, six months for a third offence, one year for a fourth offence, and so on. And for a return to the situation whereby a Bill which ran out of parliamentary time was lost at the end of that session. Just for a start.

And it is very high time to get over the Human Rights Act, an incorporation into our domestic law of a Convention which rules out both trial by jury and magistrates' courts. We don't need it. We have our own tradition of open justice. We should stick to it. And we should get back to it. Not least, by requiring a resolution of the House of Commons (itself elected so as better to represent the breadth and depth of public opinion, and accordingly from candidates selected by means better involving the general electorate) before any ruling of the European Court of Justice, or of the European Court of Human Rights, or of the "Supreme Court", or pursuant to the Human Rights Act, can have any effect in the United Kingdom. Just for a start.