- Trial by jury was once described as "the lamp that
shows that freedom lives". But now, reveals Nick Cohen, the government
plans to end two-thirds of all jury trials
-
- The citizens of banana republics can guess their masters'
plans when soldiers in black leather storm the radio stations and broadcast
martial music. The British learn that their freedoms are going when civil
servants in ill-fitting suits go to the pub and get sloshed.
-
- At the end of October, a drinking school met at the Home
Office's local: the Adam and Eve, on the south side of St James's Park,
London. The booze had its customary amnesiac effect, and one man toddled
home without his briefcase. Copies of its contents have been circulating
among MPs, civil libertarians and journalists. There are 300 largely tedious
pages of printed-out e-mails and reminders of the "messages"
to be parroted at all Home Office events. Half-buried in the gossip and
spin is a timetable for the devastation of the right to trial by jury.
-
- There is no older civic duty than public participation
in the law. As juror or magistrate, the citizen can compete briefly with
the power of a professional judge or politician. Popular control is intolerable
to a Prime Minister who boasts he is on the side of the people in the battle
against the "elite"; it is dismissed as a brake on efficiency
by a Home Secretary who says he is in politics to revive civic life. Together,
they will cut the number of jury trials by two-thirds.
-
- The estimate comes from an appendix compiled by Ian Chisholm,
the head of the Criminal Justice Reform Unit at the Home Office, for a
meeting of the cabinet's criminal justice committee on 25 October. It was
bounced round Whitehall mailboxes and printed out by the forgetful civil
servant (who wasn't Chisholm, I am told).
-
- The leak showed that the government was preparing a vast
bill of 525 clauses. It will transform into authoritarian law a report
from Sir Robin Auld, an Appeal Court judge, who was instructed by the Lord
Chancellor to examine the future of the criminal courts, and a review of
sentencing by John Halliday, a former Home Office civil servant.
-
- In the privacy of their "restricted" documents,
the civil servants did not trouble themselves with the principles of justice.
The sole concern of Chisholm and his colleagues was the "potential
controversy" that each measure may raise. Juries get the highest rating.
-
- Auld proposed the creation of a new intermediate district
court where a judge, whose appointment and chances of promotion to the
higher judiciary depend on the Lord Chancellor, will replace juries answerable
to no one. The judge will sit with two magistrates, but will be in charge.
The court will be "highly controversial because of the link with jury
trial", notes the Home Office. "Magistrates will resist change."
-
- Many of the defendants before the district judges will
be the type of suspects whose cases are currently classified as "either-way".
These are trials for quite serious offences, such as theft, burglary, drug
use, minor frauds and sexual assaults. They may not make the national news,
but carry prison sentences, and can destroy reputations and careers. The
defendants' right to opt for either trial by magistrates without a jury
or trial in front of a judge and jury at the Crown Court will go, the cabinet
committee was told. Its removal, the appendix noted, is "likely to
be highly controversial". Next to the bad publicity alert someone
has scrawled: "Two-thirds of jury trials disappear."
-
- The government isn't stopping there. Auld wants to ban
juries from all cases that would attract a sentence of less than two years,
and the government will oblige him. It will also accept his recommendations
that fraud cases and nearly all trials of children aged 16 and 17 should
be jury-free zones. (For good measure, prosecutions of teenagers will be
held in camera.)
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- The Bar Council said the Home Office estimate of two-thirds
of jury trials disappearing is right. Harry Fletcher, spokesman for the
probation officers' union, Napo, put it slightly higher. Approximately
50,000 cases a year are heard by juries at the Crown Court, he said. If
you add up the consequences of the measures the cabinet is discussing,
you find that somewhere between 70 and 75 per cent of jury trials will
be lost - that's around 35,000 cases.
-
- The First Division Association of senior civil servants
and the Association of Magisterial Officers agree broadly with Fletcher.
They estimate that a cut in jury trials by between 70 and 80 per cent is
on the way.
-
- One of the best definitions of this country used to be
that the English were innocent until found guilty beyond reasonable doubt
by a jury of their peers. Not any more. In America, Australia or any other
common-law democracy, it would need a coup d'etat to implement the government's
programme.
-
- The ushering of the public from the courtroom will be
accompanied by a bogus public consultation. Auld's report was released
in October. The deadline for responses is 31 January 2002. Chisholm wrote
that final decisions on what measures will become law will be taken by
the cabinet committee "in February/March 2002", which in theory
gives ministers a few weeks to take account of the public's views.
-
- The chances of them listening at all are non-existent.
The memo to cabinet says work has already begun on 400 of the 525 legislative
clauses, which scarcely suggests an open mind. In April, six months before
Auld reported, the Lord Chancellor's Department advertised for a head of
courts reorganisation. Whitehall somehow knew that Auld would call for
judges to replace juries before he had written a word. Auld was "considering
the possibility of establishing an intermediate tier of courts, in which
cases would be tried by a stipendiary magistrate [district judge] supported
by two lay magistrates", the ad read. As soon as Auld said what Whitehall
wanted him to say, "rapid action is envisaged". Sweeping out
the safeguards of English law "will clearly be one of the highest
priorities of both ministers within the department and collectively".
-
- Indeed it will be, and it won't be only juries that disappear.
The presumption of innocence ensures that a court hears only direct evidence
that a suspect has committed a crime. The list of his past convictions
is hidden, so it does not prejudice the court. Meanwhile, the rules against
hearsay prevent the repetition of rumours and speculation. Witnesses must
confine their testimony to what they know for certain.
-
- The papers for cabinet show the government will allow
a suspect's previous convictions to be broadcast to one and all. (The measure
will be "highly controversial", Chisholm admits.)
-
- On 24 September, with talk of the war against terrorism
at its height, the Prime Minister found the time to tell the Home Office
that he absolutely agreed with Auld's modest proposal to admit hearsay
evidence. It is impossible to escape the conclusion that Auld has provided
legal cover for what the government was going to do anyway.
-
- In private, no one in Whitehall pretends that prejudicing
fair trials will catch the Napoleons of crime. In one of the many round-robin
e-mails, Chisholm worried that the Association of Chief Police Officers
had told him its members had little time for Auld, because of "the
lack of proposals to tackle organised, international crime".
-
- Nor does the Home Office believe its measures will catch
the hard core of minor offenders who commit the majority of crimes. Tony
Blair and David Blunkett say they are determined to apprehend them. They
have hired Lord Birt, a man who is as ignorant of crime as they are of
liberty, to translate their wishes into public policy. The crackdown isn't
going too well. The Observer reported that the pub documents showed that
the Home Office had failed spectacularly to hit its target for convicting
repeat offenders. Rather than examine their faults, civil servants wrote
that they were "going to review the definition of 'brought to justice'
" and spin their way out of bureaucratic failure.
-
- The underlying bias of the leaked documents, the Auld
report and everything this government has said about juries since it was
elected is a technocratic suspicion of the public. Auld notes that all
previous examinations of jury trials, from 1953 onwards, had pronounced
themselves satisfied with jurors' work. What could justify overturning
accumulated wisdom?
-
- Auld scratches like an elderly hen clawing through dirt
to find a reason until, with a triumphant squawk, he declares that "judges
have been more fundamental than juries in declaring and protecting the
rights of citizens. Sadly, juries did not prevent the miscarriages of justice
uncovered in the late 1980s and early 1990s arising, in the main, from
falsification or concealment of evidence that so shook public confidence."
-
- It is a little frightening to think that a judge whose
reasoning is so sloppy can sit in the Court of Appeal. The Birmingham Six
and the Guildford and Bridgewater Fours were convicted, as Auld admits
without a blush for the paucity of his argument, because details of the
forced confessions and rigged forensic tests were kept from the jurors.
The judges of the Court of Appeal then refused for years to accept the
overwhelming evidence that the accused were innocent. The Birmingham, Bridgewater
and Guildford cases were, in any event, murder trials. Since Auld proposes
to keep juries for murder, the only point of raising the disgrace of the
legal system is to shift the blame from learned judges to plebeian juries.
-
- His anti-democratic thinking is equally well revealed
in his proposal to remove the power of jurors to deliver "perverse"
verdicts that put justice before the letter of the law. The modern equivalent
of the 18th-century juries that refused to convict children clearly guilty
of sheep-stealing, because they did not want them to be executed, will
be taught not to get ideas above their station. They must follow the instructions
of Auld's colleagues on the Bench, or have their verdicts overturned.
-
- New Labour is just as supercilious. The John Major government
first proposed removing juries for either-way offences. Jack Straw led
the opposition, only to make a U-turn when he became Home Secretary. His
Mode of Trial bill would have abolished 18,000 jury trials a year - half
the new target. It was thrown out by the House of Lords, but not before
Lord Lipsey, a government supporter, had said that black and Asian jurors
conspired to acquit defendants with black or brown faces, and Lord Williams,
then the attorney general, accused citizens who asked for what they had
always assumed to be theirs by right of being little Hitlers exercising
a "diktat".
-
- As the bill was torn apart in the Lords, all the arguments
for cutting back on juries were savaged except one: the "reform"
will undoubtedly save money. Harry Fletcher says court costs will fall
by about £250m a year. We have heard a lot about the price of freedom
since 11 September. Now we have the exact figure.
-
- It is a price well worth paying, as better lawyers and
democrats than Auld and Blair knew. In Auld's review of the royal commissions
and legal authorities that had supported trial by jury over the centuries,
he quoted and then dismissed the declaration of the late law lord Lord
Devlin, that the jury was the "lamp that shows that freedom lives".
-
- Auld could not bring himself to give the full passage,
so here it is: "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. [It] is more than an instrument of
justice and more than one wheel of the constitution: it is the lamp that
shows that freedom lives." Our present tyranny has a subservient parliament
already. Now it's after trial by jury.
-
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- © The Author © New Statesman Ltd. 2001. All
rights reserved. The New Statesman is registered as a newspaper in the
UK and the USA
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