The proposal is the most eye-catching of Sir Brian’s Independent Review of the Criminal Courts: Part 1, published this week—he points out that jury trials now take twice as long as in 2000. He also recommends more ‘out of court resolution’, investment in rehabilitation and drug and alcohol misuse programmes, and a 40% reduction in sentence if a guilty plea is entered at the first opportunity.
David Corker, consultant at Corker Binning, said: ‘The accused gains a speedy trial and a reasoned judgment at the end.
‘A solution to the travesty of swathes of accused waiting for years for their trial while held in prison is finally possible. Canada and most of Australia introduced this reform over a decade ago and a large proportion of defendants when given that choice have opted for a judge-alone.
‘Privately many defence lawyers in those jurisdictions believe that in complex or emotionally charged cases like sexual assault, their client is more likely to obtain a fairer trial.’
However, Lloyd Firth, partner at WilmerHale, said: ‘What seems odd… is that trial by jury appears to have been identified as a root cause of the horrendous backlog of cases in the criminal courts and of the problems affecting a number of high-profile fraud trials—when neither proposition is true.
‘Rather, the backlog reflects the systemic underfunding of our entire criminal justice system, which has declined by more than 22% in real terms since 2010. The biggest single issue affecting the progress and outcome of fraud trials in England is prosecution disclosure failures. Redrawing the boundaries of when a defendant is able to elect trial by jury is the answer to a different problem.’
Sir Brian also tackled the appeals system, contending the current process for appeals from the magistrates' courts to the Crown Court ‘is not proportionate in the burden it places on the courts, relative to the gravity of the offences involved,’ and should be ‘streamlined’. Moreover, ‘an automatic right to a full rehearing impacts adversely on victims and witnesses... and permits frivolous and unmeritorious attempts at a second identical run through of the evidence,’ he said.
He recommended the automatic right to appeal be replaced with a requirement for permission to appeal, with grounds to appeal similar to those available from the Crown Court to the Court of Appeal (Criminal Division).
He recommends the creation of a new division of the Crown Court, the Crown Court Bench Division, where a judge and two magistrates hear ‘either way’ offences (the defendant chooses between magistrate or Crown Court jury). Defendants would lose the right to a Crown Court trial where offences carry a maximum two years or less. Juries would also be dispensed with for serious and complex fraud cases, which would be trial by judge alone.
Sir Brian calculates that diverting cases to the Crown Court Bench Division or the magistrates’ courts would save about 9,000 Crown Court sitting days per year.
However, Mark Jones, partner at Payne Hicks Beach, said: ‘Removing the right to a jury trial is deeply concerning.
‘The principal reason for the current backlogs is a lack of funding and investment. That should therefore be a significant part of the solution, rather than eroding a defendant's right to a fair trial by losing the right to be judged by his peers.’
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