Trial by jury is just about the least efficient method of criminal justice imaginable. How can 12 untrained people, chosen at random, make decisions on the enormously complex subjects that now come before the criminal courts? What worked perfectly well in the 12th century isn't likely to be adequate for the 20th century. It is not just the crimes that are now more sophisticated (Maxwell-scale fraud, etc); so is the evidence brought to bear (DNA, etc). Far better surely to leave the whole thing to specially trained people, expert at sifting evidence and judging character.
The logic of that argument may seem hard to fault. But it is still complete nonsense. For one thing, trained expertise can often be applied in the most narrow-minded and unworldly fashion, as demonstrated repeatedly by the strange decisions and comments of judges and magistrates. Twelve randomly chosen people will no doubt labour under all manner of prejudices and misconceptions. Collectively, however, their individual quirks having cancelled one another out, they are more likely to reach a common-sense conclusion than the professionals. But all that is, in a sense, beside the point. Even if it could be demonstrated that juries usually get it wrong, the case for them would stand. To deprive a person of liberty is the most serious step (now that hanging is abolished) that our society can take. The onus must, therefore, be on the authorities to prove that they are right to take this exceptional step, and to do so to the satisfaction of the population at large, not just of a few middle-class worthies or ageing lawyers. The procedures are cumbersome, expensive and time-consuming (the same could be said of parliamentary and council elections), but that is precisely why they act as effective safeguards. Justice is not something to be provided on a conveyor-belt, according to principles of technocratic efficiency.
It is against this background that we should judge the proposals from Jack Straw, the Home Secretary, to limit the right to jury trial. He wants a drastic reduction in the category of "either-way" cases: those where defendants may be convicted in the magistrates court but may opt instead to go for trial by jury at a crown court. At present, the most serious offences for which this option is denied concern public order, with a maximum sentence of three months in prison. The significance is not just in the length of sentence: public order is a relatively simple matter, where witnesses are usually plentiful and only the defendants' actions are in question. The cases that Mr Straw proposes to remove from the "either-way" category involve, for example, theft, possession of cannabis, gross indecency and assault. In many of these, witnesses may be few and partial and the evidence open to considerable dispute. The questions concern defendants' intentions as well as their behaviour (did Mrs Smith really mean to walk out of the shop without paying for her plums?) and it is in precisely these cases that common-sense judgement of character, rather than specialist knowledge, is required.
There is a further point. Defendants in criminal cases are disproportionately poor, unemployed, young and black. Magistrates are overwhelmingly the opposite. Much of the justice system, under Mr Straw's plan, would become a matter of middle-aged, middle-class whites sitting in judgement on young, working-class (or unemployed) blacks. Mr Straw's "safeguards" inspire no confidence that he has understood this point: magistrates will be required, he told the Police Federation, "to consider the effect of conviction on a defendant's reputation and livelihood", thus apparently inviting them to give favourable treatment to any fellow Rotary Club members who happen to wind up in their courts.
Mr Straw understandably shares public frustration that criminal justice is too slow, and argues that defendants frequently opt to go to the crown court simply to spin things out (though this cannot always be an entirely frivolous exercise since, given the higher court's greater sentencing powers, they may risk 14 times as long in prison). He also thinks the £13,500 average cost of a jury trial (against £2,500 in the lower court) would be better spent elsewhere. But those are the costs of justice, which cannot be run as though it were a branch of Tesco. New Labour, it seems, has still to learn that the world is not technically perfectible: that, despite everyone's best efforts, benefit claimants will sometimes cheat, children skive off lessons, dictators defy bombing and criminals walk free. It would be a better government if it sometimes admitted that nothing (or not very much) can or should be done.
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