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JURIST's UK Correspondent is Alisdair A. Gillespie, Barrister (Middle Temple), Lecturer at the Centre for Police Research and Education, University of Teesside, Middlesborough.
[Middlesborough; Special to JURIST] Greetings from the UK. One of the more controversial legal debates going on here at the moment is the proposed change to the way a defendant is tried in England and Wales. Before explaining why this is so controversial, I will give you some background to the problem.

The United Kingdom is made up of four countries; Scotland, England, Wales and Northern Ireland. England and Wales have the same legal system, but Scotland and Northern Ireland have their own systems which are different from those in England and Wales (although in some matters the systems are the same). In England and Wales offences are broken down into three categories:

  • summary offences which can only be tried in a Magistrates' Court;
  • either-way offences which can be tried in either the Magistrates' Court or the Crown Court; and
  • indictment-only offences which can only be tried in the Crown Court.

The Magistrates' Court is our lowest court. It is staffed primarily by lay magistrates, i.e. members of the public with no specialist knowledge of the law. They sit in a panel, usually of 3, and receive legal advice (when necessary) from the clerk to the court, who is a professional lawyer. There is also a species known as the stipendiary magistrate who sits alone - he or she is a professional lawyer, and so is similar to a judge. The Magistrates' Court hears most offences but its powers are limited to imposing a custodial sentence of no more than 6 months, or a fine of up to 5,000 pounds.

The Crown Court is the court most people here think of when they talk about a criminal court. It is presided over by a judge, and a jury of twelve is empanelled to decide guilt or innocence. The powers of the Crown Court are limited only by the statute creating the offence, i.e. the Crown Court can impose the maximum sentence for that offence.

The "mode of trial" controversy exists because of the either-way offences. At present a defendant has the right to decide where he or she wishes to be tried for an either-way offence: the matter can only be tried in the Magistrates' Court if he or she consents to this. What the government wishes to do is to take this decision away from the defendant put it in the hands of the Magistrates. Some people argue that this is taking away the right to be tried by jury. There is some nonsense in this: people allege that this right dates back to the Magna Carta, but although the Magna Carta did say something akin to the right to be tried by one's peers, this applied only to the nobility and so it is worse than useless. That said, senior judges have commented that the right is perceived by the public as fundamental and this should be enough to ensure its preservation. However, even at this, the right is not necessarily being taken away, it is just removing the right of a defendant to demand such a trial. The reasons for wishing to limit the right is that a Crown Court trial is significantly slower and more expensive than a Magistrates' Court trial. The argument is that lots of cases go to the Crown Court unnecessarily, which costs the taxpayer and delays more important cases in the Crown Court. The counter-argument is that the Crown Court is fairer than the Magistrates Court. There is evidence to suggest that the acquittal rate is lower in the Crown Court than it is at the Magistrates' Court but, of course, more acquittals does not necessarily mean more fair because the guilty getting off is as unfair as the innocent being convicted.

The government is particularly concerned about abuse of choice. They argue that a considerable number of defendants elect Crown Court trial but then plead guilty when they arrive at the Crown Court. The government notes that had these defendants pleaded guilty at the Magistrates' Court, considerable time would have been saved as they could have been dealt with then. The government argues that the reason why they do this is to put off the inevitable moment when a custodial sentence will be imposed: i.e. they get an extra few months freedom. The trouble is this doesn't really stand up. A person has the risk of getting a longer sentence at the Crown Court, and even if they don't they will still end up serving n months, it is just that they will start it later. Also, it fails to take into account the statutory discount scheme. Under a statute, if a person pleads guilty at the first available opportunity, he or she is entitled to a discounted sentence. This discount is usually between one-quarter and one-third, so would anyone really want to pass up a shorter sentence just for a small delay?

Another problem with the argument is that for either-way offences, the Magistrates can, after finding a person guilty, decide that their sentencing powers are too low and send the defendant to the Crown Court to be sentenced. Those who oppose the government's plans note that this will mean that a person will be subject to all the negative qualities of the Crown Court (ie sentence) but without any of the positive qualities (which include greater access to prosecution papers and a jury). This is an important point because the government consistently asserts that in Scotland the defendant does not have the right to choose the trial location, but there are two principal distinctions. Firstly, the majority of cases in Scotland are heard by a professional judge (known as a Sherrif) and secondly, the lower court does not have this ability to send a defendant to a higher court for sentencing.

The real controversy exists because of the potential difficulties this proposal will cause. No one doubts that there may be some cases which should be heard in the Magistrates' Court, but should someone be denied the right to go to the higher court if his or her reputation is on the line? The original Bill stated that the Magistrates' making the decision would have to take into account the impact a conviction would have on a person's life and career, and if it was serious then the matter should be heard at Crown Court. However the second Bill (see below) does not have this duty in it and this has led to Michael Zander QC, Emeritus Professor Law at the London School of Economics, and a member of a Royal Commission which initially made this proposal, to withdraw his support for the Bill claiming that it had become unfair. Others suggest that given that there are statistics which appear to show that black defendants are treated more harshly in the Magistrates' Courts, that this proposal will increase racial tensions. But it should be noted that the statistics are not conclusive, as other studies have showed that other factors are more relevant.

The government tried at the beginning of the year to get this proposal onto the statute books but it was blocked in the House of Lords and so the government was forced to re-introduce the proposal in a new Bill. The government has threatened to use a special procedure to force the Lords to accept this Bill, but it is not clear whether they will stick to this threat. There was considerable opposition to the Bill in the House of Commons, and it is likely that the Lords will put up a fight again. It is certainly going to be an interesting fight, as the government and its opponents are both making this one of their principal political battles.

For more on the mode of trial controversy, see:

Alisdair A. Gillespie
JURIST UK Correspondent

University of Teesside
Middlesborough, UNITED KINGDOM

May 11, 2000


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