Jury’s out

New calculations suggest that, unless reforms are implemented in the meantime, the backlog of “open cases” in the Crown Court will reach 104,500 in four years’ time — up by a third from the current figure of almost 77,000.

Since hearings are currently being scheduled for 2029, some of these cases would involve defendants who are already awaiting trial.

So there is no doubt that the justice secretary will try to implement at least some of the jury reforms recommended yesterday by Sir Brian Leveson. But there are different views on how far Shabana Mahmood should go.

The barristers’ leader Barbara Mills KC said:

Changing the fundamental structure of delivering criminal justice is not a principled response to a crisis which was not caused by that structure in the first place. As Sir Brian recognises, it is the failure to invest properly in the justice system over decades that has led to the crisis we see in the criminal courts today.

We recognise the pressures facing the criminal justice system and the need for reform to tackle the backlogs. We very much welcome the report’s focus on out-of-court disposals and greater investment in rehabilitation programmes to reduce the number of cases going into the Crown Court…

However, we continue to argue that there is no need to curtail the right to trial by jury — from both a principled and practical position.

Juries represent society and are a fundamental part of our system. And on a practical level, it remains unclear how the current resources in the system — magistrates, judges, court staff and courtroom capacity — will be able to meet the demands of the proposed new Crown Court bench division.

Yanthé Richardson, president of the Chartered Institute of Legal Executives, said:

Removing the right to elect to have a Crown Court trial for certain offences will simply shift many of the issues we are currently seeing in the Crown Court to the magistrates’ courts, putting them under significant strain and overloading them with cases they are not fully equipped to deal with.

This will be exacerbated by the creation of a new division of the Crown Court which will take magistrates away from the lower courts at a time of increased workload.

Giving the new intermediate courts the same sentencing powers at the Crown Court is likely to result in sentence inflation, while removing the automatic right to appeal from magistrates threatens access to justice. We could see defendants prevented from appealing due to the cost of applying for permission unless fee relief is made available for this purpose.

These are not the only unintended consequences likely to come from these reforms. While a greater willingness from the judiciary to provide sentencing indications would be welcome, we do not want to see them become mandatory as this would inevitably prompt a large number of guilty pleas for lower sentences, even in cases of innocence.

Out-of-court resolutions are also a positive step but we must ensure defendants have access to suitable legal advice to counter the risk of individuals taking lesser sentences without an understanding of how this might impact them in the future.

Solicitors’ representatives took a nuanced approach. For the latest episode of A Lawyer Talks, I discussed Leveson’s recommendations in detail with Richard Atkinson, a solicitor-advocate specialising in serious crime who is currently president of the Law Society.

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