The defendant's right to trial by jury: A neighbour's view

Criminal Law Review

Volumn , Issue FEB., 2000, Pages 85-93

  Duff, Peter ^a  

^a UNIVERSITY OF ABERDEEN   (United Kingdom)

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EID: 25844506643     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (53)

1. For a comprehensive discussion of this debate, see A. Ashworth, The Criminal Process: An Evaluative Study (2nd ed., 1998), Chap. 8.
2. It is not my purpose to discuss this paradox. For further discussion, see D. McBarnet, Conviction (1979);
3. P. Duff and M. Findlay, "The Jury in England; Practice and Ideology" (1982) 10 International Journal of the Sociology of Law 253;
4. P. Darbyshire, "The Lamp that Shows that Freedom Lives - Is it Worth the Candle?" [1991] Crim.L.R. 740.
5. For the English figures, see: Home Office, Digest 3 - Information on the Criminal Justice System in England and Wales (1995), pp. 29-33;
6. Lord Chancellor's Department, Judicial Statistics 1996 (1997), Table 6.11.
7. For the Scottish figures, see Crown Office and Procurator Fiscal Service, Annual Reports 1997-1998 (1998), Annex 2.
8. Written Answer, May 19, 1999, Hansard, Vol. 331, col. 374.
9. I am indebted to Professor C. Gane for this metaphor.
10. N. Vidmar, "Foreword" (1999) 62 Law and Contemporary Problems (Special Issue on The Common Law Jury) 1, at p.5.
11. See Renton and Brown, Criminal Procedure (6th ed., 1996) for a full account of the Scottish criminal justice system.
12. Sentencing and Appeals, Scottish Office, 1994, Chap. 3. The sentencing power of the Sheriff Solemn Court was also increased - from three to five years.
13. Firm and Fair, Scottish Office, 1994, Cmnd. 2600, paras 4.4-5. This objection ignores the fact that most accused "waive" their right to jury trial by pleading guilty (see below). It might be replied that at least the possibility of jury trial existed for all those likely to be sentenced to more than six months. On the other hand, six months is no less an entirely arbitrary cut-off point than 12 months.
14. See Blackstone's Criminal Practice (9th ed., 1999).
15. See Ashworth, Blackstone's Criminal Practice 9th ed., op. cit., pp.259-262.
16. James Committee, The Distribution of Criminal Business between the Crown Court and the Magistrates' Courts, Cm. 6323 (1975), para. 78.
17. N. Blake, "The Case for the Jury", in M. Findlay and P. Duff, The Jury Under Attack (1988) 140, pp.145-6;
18. P. Duff and M. Findlay, "The Politics of Jury Reform", in The Jury Under Attack ibid., pp. 211-212.
19. See Ashworth, The Jury Under Attack op. cit., p.259, who notes that this reduced the Crown Court workload by 6%.
20. Royal Commission on Criminal Justice, Cm. 2263 (1993), para. 6.17;
21. Review of Delay in the Criminal Justice System ("Narey Report") (1997), p.33.
22. Home Office, 1998, Determining Mode of Trial in Either Way Cases, paras 21-24.
23. Determining Mode of Trial in Either Way Cases, ibid., paras 32-34. This concern about the defendant's reputation has run through all discussion on this subject since the James Committee.
24. Boyle v. HMA [1976] J.C. 32, per Lord Cameron at p.37. For a brief description of the Scottish system of prosecution see P. Duff, "The Prosecution Service: Independence and Accountability", in P. Duff and N. Hutton (eds.), Criminal Justice in Scotland (1999), p.115.
25. P. Duff, Criminal Justice in Scotland op. cit., para. 48. See also paras. 183-186.
26. P. Duff, Criminal Justice in Scotland op. cit., para. 6.12.
27. P. Duff, Criminal Justice in Scotland op. cit., p.258.
28. P. Duff, Criminal Justice in Scotland op. cit., p.33.
29. P. Duff, Criminal Justice in Scotland op. cit.33.
30. For a discussion of "under-charging" to avoid jury trial, see Ashworth, Criminal Justice in Scotland op. cit. pp.251-255.
31. For recent contributions to the English discussion, see: Ashworth, Criminal Justice in Scotland op. cit., Chap. 9;
32. M. McConville, "Plea Bargaining: Ethics and Politics" (1998) 25 Journal of Law and Society 562;
33. and for an American view, see F. Remington, "The Decision to Charge, the Decision to Convict on a Plea of Guilty, and the Impact of Sentence Structures on Prosecution Practices", in L. Ohlin and F. Remington (eds.), Discretion in Criminal Justice (1993), p.73.
34. Concern that the charge to which the offender agrees to plead guilty does not adequately represent the seriousness of the offence is one of the major objections to the practice of plea bargaining: see F. Remington, The Decision to Charge, the Decision to Convict on a Plea of Guilty, and the Impact of Sentence Structures on Prosecution Practices Discretion in Criminal Justice ibid. (1993), 73.
35. For a discussion of "over-charging" (despite it being forbidden by the Code for Crown Prosecutors), see Ashworth, Discretion in Criminal Justice op. cit., p.274
36. Magistrates' Court Act 1980, s.19.
37. National Mode of Trial Guidelines. These can be found in Blackstone's Criminal Practice (1999), at p.1051.
38. Blackstone's Criminal Practice op. cit., para. 50.
39. Blackstone's Criminal Practice ibid., para. 59.
40. Blackstone's Criminal Practice op. cit., para 13.
41. Blackstone's Criminal Practice ibid., para. 18.
42. Blackstone's Criminal Practice op. cit., pp.33-34.
43. "The Government's Response to the Recommendations of the Review of Delay in the Criminal Justice System", 1997, Comment on Recommendation 20.
44. "The Government's Response to the Recommendations of the Review of Delay in the Criminal Justice System" op. cit., paras 25-31.
45. In this section, I am only going to discuss the defendant's right to elect jury trial for "either way" offences. I am not going to consider the mechanism adopted in some jurisdictions whereby the defendant can waive the right to jury trial for indictable offences and opt for trial by judge alone. This latter device is not relevant here because it plays no part in either the English or Scottish jury systems.
46. "The Government's Response to the Recommendations of the Review of Delay in the Criminal Justice System" op. cit., paras 60-61.
47. "The Government's Response to the Recommendations of the Review of Delay in the Criminal Justice System" op. cit., paras 13, 17-18.
48. "The Government's Response to the Recommendations of the Review of Delay in the Criminal Justice System" op. cit., pp.31-35.
49. At one point (p.35), the Narey Report refers to "improper manipulation of the justice system".
50. "The Government's Response to the Recommendations of the Review of Delay in the Criminal Justice System" op. cit., paras 25-31.
51. "The Government's Response to the Recommendations of the Review of Delay in the Criminal Justice System" ibid., paras 7-8.
52. The Narey Committee cited similar figures: "The Government's Response to the Recommendations of the Review of Delay in the Criminal Justice System" op. cit., pp.32, 34. See also fn.3, above.
53. Written Answer, May 19, 1999, Hansard, Vol. 331, col. 374.