[ARCHIVED CONTENT] Consultation Paper

1. The purpose of this paper is to consider whether a defendant in an either-way case which the magistrates are willing to hear should continue to be able to decide where he should be tried; to consider whether some possible options for reform would be more consistent with the interests of justice and efficiency; and to invite comments on the alternatives. The paper is concerned not with the merits of jury trial, but only with the defendant's ability to choose it.

2. Whether an offence is triable in a magistrates’ court (‘summarily’) or in the Crown Court (‘on indictment’) depends on its classification in the Criminal Law Act 1977, which divides offences into summary offences, which are triable only by the magistrates, and indictable ones. The latter are subdivided into ‘indictable only’ offences (such as murder, manslaughter, or robbery) which must be tried on indictment, and the more numerous ‘either way’ offences, which may be tried either summarily or on indictment.

3. The decision where an either-way case should be heard is made at a hearing before the magistrates. Where the defendant indicates a guilty plea the magistrates will proceed to convict him, but otherwise they will go on to determine mode of trial. They may consider that it would be more appropriate for the case to be tried in the Crown Court; if so they will decline jurisdiction and direct it there. But if they consider that it would be more appropriate to try it themselves, the defendant has the right to refuse to be tried by them and to choose, or ‘elect’, to be tried at the Crown Court instead. He can thus be tried in the magistrates’ court only if he agrees.

HISTORY OF ELECTION FOR TRIAL
Magna Carta
4. It is widely believed that to remove the defendant's veto on the magistrates' decision that they should hear a case would erode fundamental individual liberties established in the Middle Ages, if not by Magna Carta itself. However, whilst trial by jury is indeed ancient, a defendant's right to choose to be tried by a jury rather than by the justices is no older than the mid-nineteenth century. Until then offences were either triable only on indictment, or only summarily; the defendant had no choice in the matter. It is also debatable whether Magna Carta can properly be regarded as establishing a right to be tried by a modern jury as opposed to a modern bench of magistrates. The reference in Magna Carta to the ‘lawful judgment of peers’ undoubtedly came to mean (whether or not it meant at the time) trial by jury; but the medieval jury was not a randomly-selected and independent tribunal, but a group of local people chosen because of their familiarity with the district and the accused.

Development of the present classification
5. The Administration of Justice Act 1855 made provision, in the interests of ‘diminishing expense and delay in the administration of criminal justice’, for certain offences triable on indictment to be tried summarily with the consent of the accused. (Magistrates were known at that time as police magistrates and were not regarded as independent of the police; nor was there any independent scrutiny of the decision to prosecute.) In the course of time the same arrangement was extended to some other indictable offences, and ‘hybrid’ offences (triable either summarily or on indictment) were created, some of which could be dealt with by magistrates without the defendant's consent. By 1975 the Inter-Departmental Committee on the Distribution of Criminal Business between the Crown Court and Magistrates’ Courts (the James Committee) found that, as a result of these largely unrelated developments in the summary jurisdiction of magistrates' courts, the categories of case had multiplied to include, in addition to cases triable only on indictment or only summarily, indictable cases triable summarily with the defendant's consent, hybrid cases with and without a right to elect trial by jury, and summary cases which in certain circumstances could be tried on indictment. The James Committee sought to simplify these arrangements, and its recommendations led to the present classification of offences as summary, either way and indictable only.

6. There has been a steady decrease over the last ten years in the percentage of either-way cases committed to the Crown Court for trial which arrive there by way of election, rather than because the magistrates decline jurisdiction. In 1987, elected cases accounted for 53 per cent of committals for trial; since then the proportion has gradually fallen to the present level of 28 per cent. Why the proportion of elected cases should have fallen is not clear. Indeed, efforts have been made to encourage magistrates to retain more cases, notably through advice published under the aegis of the Criminal Justice Consultative Council as the ‘National Mode of Trial Guidelines’, and it might therefore have been expected that directed cases would decrease and that elected cases would accordingly form a higher proportion of the total. A possible explanation is that some defendants have concluded that (as Home Office research has demonstrated) those who plead guilty having elected Crown Court trial are likely to receive a substantially heavier sentence than if they had pleaded guilty in the magistrates’ court.

7. Nevertheless, the number of defendants charged with either-way offences who elect to be tried in the Crown Court remains substantial; about 22,000 did so in 1997. The number of elected cases which proceed as contested trials in the Crown Court is much lower, because more often than not the defendant subsequently pleads guilty.

Plea rates and acquittal rates
8. Defendants in the Crown Court are more likely to plead not guilty than those who are tried in magistrates’ courts: around one-third of defendants who go to the Crown Court plead not guilty to some or all charges, compared with fewer than one in ten in magistrates’ courts. The percentage of defendants pleading not guilty in the Crown Court appears to be much the same whether they have elected to be tried there or have been directed there by the magistrates. At first sight this seems surprising since it might have been expected that defendants who elect would have a greater propensity to plead not guilty; but on the other hand, directed cases are likely to be relatively serious and possibly more likely to be contested for that reason.

9. Defendants in the Crown Court are also more likely to be acquitted: the chance of being acquitted on a contested charge is approximately 40 per cent in the Crown Court compared with 25 per cent in magistrates’ courts. It is unclear, however, whether this is because juries are more inclined to acquit - rightly or wrongly - than magistrates, or because defendants with a good defence are more likely to be tried in the Crown Court, either as a result of having elected or (conceivably) by direction of the magistrates.

10. This section sets out the arguments for and against the status quo and a number of options for reform. The possible reforms fall into two categories: adjustments to the boundary between summary and either-way offences (reclassification); or abolition, whether outright or selective, of the ability to elect Crown Court trial.

The status quo
The arguments in favour
11. The fundamental argument in favour of the present arrangement is that allowing defendants charged with any non-summary offence to have access to trial by jury (which is the mode of trial which is considered appropriate for all serious cases) helps to promote confidence in the criminal justice system.

12. The considerations to which magistrates must have regard in deciding whether a case is suitable to be tried by them or should be tried by a jury, which are set out in the National Mode of Trial Guidelines, are broadly concerned with the seriousness of the case. The effect that conviction would have on the defendant's reputation is not one of these considerations. But reputation is widely perceived, at least in certain sorts of case, as a justification for continuing to allow the defendant to elect Crown Court trial. As the James Committee put it,

A professional person of good character, if convicted of a minor offence of dishonesty for example, will suffer in reputation and may lose his livelihood, whereas for a person with a long record of similar offences the only penalty will probably be the sentence actually imposed.

When people who have never been accused of a criminal offence argue the case for the right to elect jury trial, it is usually on the basis that this is what they would want were they unfortunate enough to be charged with an offence which they had not committed.

14. Underlying the argument for allowing defendants to defend their reputation before a jury is the assumption that a jury is ‘fairer’ than a bench of magistrates. Home Office research has shown that defendants who elect Crown Court trial tend to do so mainly because they believe that their chances of acquittal are higher at the Crown Court than at magistrates’ courts. Indeed that belief is borne out by the statistics, although the case in favour of election depends more on the existence of these perceptions that jury trial is advantageous than on whether they are well founded.

15. Some other arguments which are adduced in favour of election for trial - for example, the fact that a jury can acquit in the face of evidence which legally establishes the offence (‘nullification’) - go to the merits of trial by jury rather than to whether a defendant should be able to choose to be tried in this way.

The arguments against
16. The fundamental argument against the present system is that it means that the additional delay and cost inseparable from Crown Court proceedings are incurred in cases which do not need to be tried there but which defendants have themselves chosen to take to the Crown Court because, rightly or wrongly, they see some advantage in doing so. Elected cases, by definition, are cases which the magistrates considered were suitable for them to deal with and which, but for the defendant's veto, they would have tried. The Royal Commission on Criminal Justice and the Review of Delay in the Criminal Justice System (the Narey report) both considered that the court, and not the defendant, is best qualified to make the final decision where a case should be heard. That decision should be based on an objective assessment by the court of the gravity of the case, and not on defendants’ own perception of what is advantageous for them (eg that there would be a better prospect of acquittal in the higher court).

17. It is open to question how many accused persons elect Crown Court trial out of a desire to defend their reputation. The Narey report quoted a senior and distinguished magistrate:

In considering elections for trial I cannot remember the last time someone elected for reasons of reputation. Inevitably, the ones who elect are experienced defendants, the ones who know how to play the system.

This assessment is borne out by Home Office research suggesting that only one in ten of the defendants who elect Crown Court trial are without previous convictions. Defendants who have a criminal record are less likely than those with none to be motivated primarily by a wish to clear their name. They may be attracted (especially where their previous record is such as to put them at risk, if convicted, of losing their liberty) by the better prospects for acquittal afforded by the Crown Court. But these prospects are insufficient to prevent two-thirds of defendants from eventually pleading guilty before the start of trial, and are irrelevant to the significant proportion of defendants who (according to the same research) intended to plead guilty from the outset.

19. For the great majority of defendants, the decision to elect Crown Court trial may be founded on a wish to delay the proceedings, for any of the following reasons:

i) to apply pressure on the Crown to accept a plea to a less serious charge;

ii) to make it more likely that prosecution witnesses will fail to attend the trial or, if they do attend, will be vague in their recollections;

iii) to put off the evil day. If it achieves nothing else, electing Crown Court trial will at least postpone conviction and sentence and the consequent removal from a local prison, where defendants are close to family and friends and enjoy the additional visits and other privileges available to unconvicted prisoners.

The majority of cases in which the defendant elects trial result, eventually, in guilty pleas, but only after significantly greater inconvenience and worry to victims and witnesses, and at considerable extra cost. This cost arises not only in court time and legal aid funds, but also in prison places, because defendants who are sentenced to imprisonment by the Crown Court having elected to be tried there tend to receive substantially longer terms than would have been imposed by the magistrates.

Reclassification
21. Reclassifying particular either-way offences as triable summarily only would remove the option of being tried in the Crown Court. This has been done in the past: offences of criminal damage (up to a certain value), common assault, driving while disqualified, and taking a conveyance without authority were reclassified as summary by the Criminal Justice Act 1988.

Arguments in favour
22. Reclassification would be straightforward, and would have the potential to divert some of the more obviously minor cases from the Crown Court. The James Committee recommended in 1975 that theft involving a small monetary value should be reclassified. They suggested a cut-off point of £20, which would be rather more than £90 now; if this were adopted, it is estimated that reclassification of minor theft would enable the magistrates to deal with some 2,000 cases in which defendants now elect Crown Court trial.

Arguments against
23. The problem with reclassification is that it is a blunt instrument: it would deprive magistrates of the power to send cases in the reclassified categories to the Crown Court even where they considered the particular offence to be such that Crown Court trial was appropriate. For example, theft of even a small sum may be a serious matter where the victim is an elderly or other vulnerable person, or where the culprit is in a position of trust, or where a conviction for dishonesty might lead to the defendant losing his job.

24. At the same time, because reclassification would be limited to specific offences, it would still leave the magistrates powerless to deal with the large majority of the elected cases which they could have disposed of themselves. It would thus affect far fewer cases than the options discussed below, with correspondingly smaller benefits in terms of efficiency.

Abolition of election for trial
25. There is no dispute as to the need to have an intermediate category of offences which are capable of being heard either by magistrates or by the Crown Court; nor has anyone questioned the arrangement whereby a magistrates’ court form a view whether they or the Crown Court should deal with a particular case. It is less obvious why the defendant should be allowed to insist on taking a case to the Crown Court which the magistrates have decided would be suitable for them to try. It is sometimes argued that no-one should be tried for a serious offence in a magistrates’ court unless he is content to be tried there, but (as the James Committee noted in 1975) few other jurisdictions allow the defendant such an element of personal choice.

Outright abolition
26. The Royal Commission on Criminal Justice recommended that venue in either-way cases should be decided by the parties where they were in agreement on the issue. Where they did not agree, it would be for the magistrates to decide where the case should be tried; they would have regard not only to any defence representations (as legislation already requires), but also to such factors as the gravity of the offence, the complexity of the case, the defendant's past record if any (which would be an innovation), and the effect of conviction (and the likely sentence) on the defendant's livelihood and reputation. These factors might be specified in legislation.

27. The Review of Delay in the Criminal Justice System recommended simply that the decision as to where either-way cases are heard should rest with the magistrates, having regard to recommendations as to venue from the prosecutor and from the defence, and that defendants should no longer be able to veto their decision.

Arguments in favour
28. The main argument for removing defendants’ ability to choose jury trial is that it is not they, but the court, which is best qualified to determine where a case should be tried. Abolition would not automatically rule out Crown Court trial for any defendant charged with particular either-way offences (as reclassification would). It would prevent what some regard as manipulation of the justice system by defendants demanding Crown Court trial for no good reason.

29. The proposal that magistrates should be required to take account of those factors (such as harm to a hitherto unblemished reputation) which might justify a defendant in seeking a Crown Court hearing would go some way towards meeting the concerns of those who see election for trial primarily as a safeguard for defendants with a reputation to lose. It would mean that some of the cases in which the defendant now elects jury trial would go to the Crown Court by direction of the magistrates. But even on the assumption that this might happen in as many as a quarter of elected cases, there would still be a fall of some 15,000 in the number of committals for trial. By way of comparison, the implementation of the plea before venue’ provision in s.49 of the Criminal Procedure and Investigations Act 1996 has led to a similar reduction in the number of cases committed to the Crown Court for trial.

Arguments against
30. The objection to the removal of election is essentially that it would result in defendants being tried summarily for indictable offences without their consent, and that the benefits of the present arrangement which are listed in paragraphs 11-14 above would be lost.

31. The system proposed by the Royal Commission is open to a particular objection in that it would admit of the possibility (albeit an unlikely one) that by agreeing on summary trial the Crown and the defence could together require magistrates to hear a case which they considered unsuitable for their jurisdiction.

Removal in certain cases
32. An alternative option which was canvassed in the wake of the Royal Commission’s report would be to remove the right of election where a defendant was prosecuted for an offence similar in nature to an earlier conviction, on the grounds that in those circumstances matters of reputation would not be paramount.

Arguments in favour
33. A defendant who has already been convicted of the same sort of offence can hardly be said to have as strong a reason for defending his reputation as a defendant with an unblemished record, and is arguably less likely to have a genuine intention of doing so when electing Crown Court trial. The clearest examples of manipulation are where defendants with long criminal records elect Crown Court trial and then plead guilty at the last moment or are convicted after a trial. This option would enable the magistrates to deal with such cases.

Arguments against
34. Not everyone would accept that those with criminal convictions should, for that reason alone, be denied a privilege accorded to other defendants. That a defendant has a criminal record does not imply that he or she is necessarily guilty of the offence charged; indeed it is arguable that it might be the existence of previous convictions which brought the defendant under suspicion. A defendant whose previous convictions were such as to put him at risk of a custodial sentence if convicted might even be regarded as having greater justification for seeking jury trial than those who were at no such risk.

35. The Government would welcome comments on this paper, and in particular on the following questions: