The Sale of English Justice

By Page, Kimberly Ann | Denver Journal of International Law and Policy, Winter 2000 | Go to article overview

The Sale of English Justice


Page, Kimberly Ann, Denver Journal of International Law and Policy


The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.(1)

I. INTRODUCTION

The jury system is a cherished fundamental right of English common law laid out in the Magna Carta in the thirteenth century.(2) The jury system was so enshrined in English heritage that while America wished to rid itself of English rule in 1776, America did not shed itself of this English tradition, thus, James Madison adopted the defendant's right to a jury trial in the United States Constitution(3). An important distinction between the Magna Carta and the US Constitution should be noted, the Magna Carta grants a man judgement by his peers, but not the right to elect a trial by jury trial over a bench trial. Not until 1855 were English defendants given the option of either a summary trial or trial by jury in cases of petty larcenies.(4) By the 1870's, Parliament passed various statutes listing other offences to allow trials either by judge or jury, but the magistrate had the prerogative to overrule the defendant's wishes for a jury trial.(5) The Criminal Justice Act of 1925 included an exhaustive list of triable either way (hereinafter TEW) offences including serious theft, assault and forgery.(6)

Today, the English have a three-tier system of justice where indictment cases of serious crimes such as death, rape, blackmail, robbery, assault and theft, are heard in Crown Courts with a jury; summary cases, where there is no threat to life, are heard in magistrates' court before three judges(7); and a third tier of TEW crimes like burglary, unlawful wounding, assault without actual bodily harm, and petty theft, which can be tried either in Crown Court or magistrates' court depending on the defendant's discretion and the seriousness of the crimes.(8) Over the last twenty-five years, the number of third tier offences has been slowly defused and thus the defendant's right to elect a jury trial has narrowed. The current government suggests eliminating all TEW offenses so that only a magistrate judge determines if a defendant has a judge or jury trial.

The sole arbitrator of a defendant's fate would rest in the hands of three magistrate judges, who may have no legal background,(9) but can sentence defendants up to six months in prison and a 5,000 [pounds sterling] fine.(10) In contrast, a legally trained judge in Crown Court regulates a case before a jury.(11) Professionalism comes at a price, however; as a case going through the Crown Courts can cost the government 3,100 [pounds sterling], whereas a case directed to magistrates' court can cost a mere 295 [pounds sterling].(12) The number of TEW cases as well as the summary offences rose last year by 1.8%.(13)

The United Kingdom(14) is a country where a balanced budget is not just a campaign pledge from a politician's mouth, but a necessity. The British live on an island with a relatively narrow tax base given their commitment to a socialist system of healthcare and welfare. Every section of the government must carefully account for the money they spend, and the Criminal Justice System is no exception. Therefore, in 1997, when the figures showed a rise in TEW cases possibly going to expensive Crown Court, the Conservative Home Secretary(15) proposed changing certain TEW cases to summary cases, thus eliminating the jury trial option for a defendant.(16) At that time the Shadow Home Secretary, Mr. Jack Straw, stated that abolishing the jury trial was "not only wrong, but shortsighted, and likely to prove ineffective."(17)

This past year Mr. Straw reversed himself and proposed the Criminal Justice (Mode of Trial) Bill to Parliament's House of Commons(18) by which TEW cases would to be examined and determined by a magistrate as to whether they could be heard in Crown Court or magistrates' court, rather than by the choice of the defendant. …

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