‘This is not just crisis management,’ the courts minister told me. ‘This is also about fundamental modernisation of our criminal justice system from top to bottom.’
I had asked Sarah Sackman MP about one of the more arcane reforms announced by the Ministry of Justice this week. Under the government’s proposals, there will no longer be an automatic right of appeal from magistrates’ courts to the Crown court. Instead, there will be ‘a permission stage limited to points of law’.
For that to work, I suggested, all magistrates’ hearings will have to be audio-recorded. That is not currently needed because the Crown court holds a rehearing. But surely introducing automatic recording in every magistrates’ courtroom would take time and money?
‘Yes, and we are going to do it,’ Sackman told me. ‘We’ve not had a major reform of the criminal justice system since 1971, when the Crown court was established. This has given us an opportunity to think how we would want to modernise our criminal justice system if we were starting from scratch.’
Recording all proceedings in the magistrates’ courts was clearly necessary for the appeal proposals to work, she added, but it was also a modernisation that would increase transparency.
I now began to understand why David Lammy had told MPs on Tuesday that we would have to wait until the next general election, due in 2029, before we saw a fall in the number of people awaiting trial.
‘We need the investment both in our people, in our physical courts and in the equipment that sits within those courts,’ Sackman said, ‘and we’re beginning to make that investment.’
Court time was constantly being lost because, for example, an interpreter failed to show up, a prisoner was delivered late or documents were missing. Improving efficiency was essential – but so were jury reforms.
The least controversial of these must be removing a defendant’s right to choose a jury trial in cases that can currently be tried by magistrates. Instead, courts would decide the mode of trial.
A new bench division will be established in the Crown court for triable-either-way cases with likely sentences of three years or less, the government said in a written ministerial statement on Tuesday. Sir Brian Leveson had recommended this to the justice secretary in July – except that his bench division would have comprised a judge sitting with two magistrates. Had they been dropped from the government’s plans because there were not enough magistrates available to sit for several days at a time?
‘I have no doubt that the magistracy is going to have its hands full under these proposals,’ Sackman acknowledged. But it was not just a question of resources. She wondered what the magistrates’ role would be beyond bringing a lay element to proceedings that could be managed effectively by a judge sitting alone.
Such as district judges who sit in the magistrates’ courts? Or more senior judges? No decisions had yet been taken on those details, Sackman told me.
The minister had been frustrated to read reports last week claiming that murder, manslaughter, rape and other ‘public interest’ cases would be the only ones to be tried by juries. In fact, she said, ‘a whole range of cases which have a jury trial today will have a jury trial after these reforms are implemented’. Lammy’s written ministerial statement says ‘jury trials will remain for indictable-only offences and cases with likely sentences over three years’.
But there would be an exception for a ‘small number of serious but particularly technical and lengthy fraud and financial cases’ that the government says may be tried in the Crown court without a jury. The court would rule on whether a case was suitable, she explained. And could that decision be challenged? Wait for the bill, I was told.
We can all agree that public involvement in the criminal justice system is a valuable safeguard against state tyranny. But it should not be regarded as an immutable absolute. The right to be tried either by lay magistrates or by juries was lost in the mid-18th century when stipendiary magistrates – paid judges, sitting alone – were introduced in London, largely to replace the corrupt Middlesex justices of the peace.
Juries give no reasons for their verdicts and their deliberations cannot be examined. A retired judge told me this week that if he were innocent of a crime, he would prefer to be tried by a judge who would have to give reasons. ‘If I were guilty,’ he added, ‘I would prefer a jury who could acquit me if they thought it was daft to apply the law.’
If he really was guilty, I would prefer him to be tried by a trained judge, sworn to deliver justice. And as ministers have been repeating constantly this week, justice delayed is justice denied.
joshua@rozenberg.net
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