See also:
Is it a crime to have a guilty past? - an article on plans to reveal defendants' past convictions to juries
Second time unlucky? - an article on the subject of double jeopardy

While government ministers will embrace Lord Justice Auld's central recommendations to set up a new unified court and try again to restrict the right of the defendant to elect to jury trial, they look set to "cherry pick" many of his other proposals.

His idea of allowing an appeal against a perverse jury verdict is regarded as a non-starter by ministers, and so is his idea to ensure that there are black or Asian jurors in cases where race is likely to be an important factor.

But there are areas, such as the introduction of night courts in high crime areas and the introduction of specialist courts dealing only in drugs or domestic violence, which the government is keen to see introduced even though the Auld review fails to back them.

The idea is that the government will now consult on its response and publish a white paper in the new year, which will bring together this radical reform of the courts and the planned overhaul in sentencing into one criminal justice bill in the autumn next year.

The original timetable was to introduce this flagship legislation this autumn. The year long delay so that the three emergency anti-terrorism bills can be put through parliament makes this measure the first legislative casualty of the present war.

The home secretary, David Blunkett, claimed yesterday that Auld's proposal for an intermediate tier of courts offers a possible way forward on the issue of restricting the right to jury trials as "might overcome some of the objections that were raised" in the two previous failed attempts to push such legislation through parliament.

"There would no longer be a choice between the magistrates' court and the full panoply of a crown court trial. Instead cases would be allocated to one of the three divisions according to their seriousness, with clear rights of appeal on the matter."

The government said yesterday that the new district court would deal with cases which attracted possible sentences of between six months and two years.

Ministers are also keen on changes to end what has been termed the "middle class boycott" of jury service, and in future those who get themselves excused jury service on the grounds of holidays or other commitments will find themselves asked to come back a few months later.

But Auld's proposal to alter the ethnic composition of juries in race cases is to be rejected on the grounds that the principle of random selection should not be abandoned.

Ministers appear to be coming a step closer to a final decision on abandoning the use of juries in complex fraud cases altogether.

The government has already made clear that it will reform the double jeopardy rule as far as murder is concerned but ministers are believed to have strong reservations that it could be used for other "grave offences".

Ministers are likely to back the recommended changes in the rules of evidence, including that of allowing police officers to refer to their previous notes and statements in court.

But although the review recommends that greater use should be made of fixed penalty fines for offences such as not paying a television licence and some categories of motoring offences, it is believed that ministers do not now support such a move.

Main points of the report:

Trial by jury
Defendants would lose the right to jury trial in "either way" cases where at present they have a choice.

Instead cases would be sent to one of three tiers in a unified criminal court - a crown division with a judge and jury to try the most serious offences; a district division with a district judge or recorder and two lay magistrates for cases likely to attract a maximum of up to two years in jail; a magistrates division to pick up the less serious offences.

Defendants would be able to opt for trial by judge alone for serious cases. In complex or serious fraud cases, the judge would be able to opt to try the case himself. A youth court composed of a judge and two experienced youth panel magistrates would hear all grave cases against young defendants.

Plea bargaining
A "graduated scheme" of discounts is suggested so the earlier a guilty plea is made the lighter the sentence. The judge would be able to indicate in advance the sentence for a guilty plea.

Reforming juries
Juries should be more representative of their communities. There should be wider eligibility to sit on juries and those excused on one occasion should have to serve later. More ethnic minority jurors should sit in cases with a racial element

In court, judges should present a case summary to juries at the beginning of the trial and "filter out" the law in the summing up, instead posing factual questions, which, where appropriate, the jury may be asked to answer in reaching the verdict.

Jurors' duty not to go against the law or the evidence in delivering their verdicts should be spelled out in law. There should be a right for the prosecution and defence to appeal against perverse jury verdicts.

Appeals
Reform of the court of appeal so it can deal more efficiently with "straightforward" appeals and those involving matters of general public importance.

Disclosure
The scheme of mutual disclosure between prosecution and defence should remain but be subject to reforms, giving prosecutors, not police, the responsibility of identifying all potentially disclosable material.

Sweeping changes to the way courts operate have been recommended in a report on the criminal justice system in England and Wales. One suggestion in the study, by Lord Justice Auld, says juries should be required to explain their decisions to trial judges so "perverse" verdicts can be filtered out.

The most extensive review of the criminal courts system for 30 years also proposes a restriction on the right to be tried by a jury. Civil liberties campaigners argue that the right to a trial by one's peers is an ancient liberty, and fear that its curtailment could lead to miscarriages of justice.

The government will seek the views of the public, political parties, and those working in the criminal justice system until the end of January, and then publish a White Paper on the reforms.

The Lord Chancellor, Lord Irvine of Lairg, asked senior appeal court judge Sir Robin Auld to conduct the independent review in 1999.

The report recommends trial judges "fashion factual questions" when summing up a case to the jury. It says that where appropriate, the judge should ask the jury publicly to answer question and declare a verdict "in accordance with those answers".

This would mean juries could no longer "acquit defendants in defiance of the law or in disregard of the evidence", it adds. The report also says the defence and the prosecution should be allowed to appeal against "perverse" verdicts.

Sir Robin also suggests restricting the right to a jury trial. Under Sir Robin's proposals, juries would still try the most serious cases, such as murder, rape and armed robbery. But offences carrying up to two years' imprisonment would instead be heard by a hybrid court led by a District Judge and two Justices of the Peace.

The Bar Council condemned Sir Robin's report as "a major assault on jury trial" that "places little trust in ordinary citizens". The Bar chairman, Roy Amlot QC, said: "In dangerous times, our basic freedoms need protection more than ever before, and ministers would be well advised to steer clear of such controversy."

The Liberal Democrat shadow home secretary Simon Hughes said the fundamental right to a fair trial must be maintained at all costs. "Proposals for change must be judged on whether they improve the quality and consistency of our justice system, not whether they save money for the Treasury."

The director of civil rights group Liberty, John Wadham, condemned Sir Robin's report as "a huge attack on fairness in the criminal justice system - particularly trial by jury, which is its cornerstone. There should be no right of appeal when a jury of 12 ordinary people has found a person innocent."

Una Padel, of the Centre for Crime and Justice Studies at King's College, London, said: "It seems unfair that the best quality justice is reserved for the most serious offences. Relatively minor offences can have a devastating impact on someone's life - by losing them their job, for example."

Other proposals include scrapping the exemption from jury duty for MPs, police officers, lawyers, dentists, doctors, vets, nurses and members of the clergy and the military. Only criminals and the mentally ill should be automatically disqualified, the report states.

Main proposals of the report:

Ask juries to explain verdicts

Restrict right to jury trial

Restrict jury duty exemption

Unify magistrates and crown courts

Remove minor offences from court system

Create appraisal system for judges

Include ethnic minorities on relevant juries

• Minor offences such as non-payment of television licences and certain driving offences should be removed from the court system.
• Appraisal systems should be brought in for part-time judges, and a similar system should be considered for full-time judges.
• The systems of charges, summonses and indictments in public prosecutions should be replaced by a single form of charge issued by the prosecutor.
• The law should "move away" from technical rules for inadmissibility of evidence and trust judges and new lay "fact finders" should attach weight to evidence.
• Creation of a Criminal Justice Board to keep the criminal justice system under review and oversee creation of new criminal law.
• Introduction of an integrated computer system for the whole criminal justice system.

The so-called right of a jury to return a "perverse" verdict would be abolished under plans included in the most radical shake-up of the criminal justice system for more than 100 years.

Instead, judges should be able to order juries to give reasons for their verdicts and the defence and prosecution allowed to appeal decisions which fly in the face of the facts or the law, Lord Justice Auld recommended yesterday.

If the Government accepts the changes, lawyers acting in cases like that of Barry George, the man convicted on circumstantial evidence of murdering Jill Dando, would be able to appeal on the grounds the jury simply got it wrong.

To end perverse verdicts, Lord Justice Auld said a judge should "fashion factual questions" when summing up a case to the jury and "where he considers it appropriate, he should require the jury publicly to answer each of the questions and to declare a verdict in accordance with those answers".

A law should also be enacted, said Lord Justice Auld, so that juries know they can no longer "acquit defendants in defiance of the law or in disregard of the evidence".

Sir Robin Auld, the Court of Appeal judge entrusted by the Lord Chancellor, Lord Irvine of Lairg, with thinking the unthinkable in the reform of criminal courts, also wants juries to become more democratic.

No one, said Sir Robin, other than criminals or the mentally ill, should be excused from jury service by right. Such a move would open up juries to thousands of people, including judges, the clergy, lawyers, nurses, police officers and prison officers, who, under the current law, are barred from service.

Recent research published by the Home Office showed that two-thirds of those called for jury service found a reason to excuse themselves.

Sir Robin said that all excusals or deferrals should be at the discretion of the court. In trials where ethnicity is an issue, juries should be more representative of minorities.

The proposals include the abolition of magistrates' courts and crown courts in favour of a new three-tier unified court system. Only serious offences would be tried by a jury and the defendant would lose the right to elect for jury trial for crimes that attract sentences of less than two years' imprisonment.

Yesterday, lawyers and civil liberties groups said this proposal represented a greater restriction to the right to jury trial than that included in the Government's own Mode of Trial Bill, which has twice been rejected by the House of Lords.

John Wadham, director of the human rights organisation Liberty, said: "Taken together, these measures would comprise a huge attack on fairness in the criminal justice system – particularly trial by jury, which is its cornerstone."

The Bar chairman, Roy Amlot QC, said proposals to sweep away jury trial for a range of offences including assault, drugs and theft had marred an excellent report. He said: "We strongly oppose the attack on the jury system implicit in the plan to remove the right-to-jury trial in all cases except indictable-only offences and a narrow upper band of either-way offences."

But the Home Secretary, David Blunkett, said the idea of an intermediate tier of courts offered "a possible way forward on the issue of jury trials which might overcome some of the objections that were raised".

Sir Robin's 300 recommendations will form the basis of a public consultation exercise.

The key recommendations

Improving Court of Appeal procedures

Defendants to be able to choose trial by judge alone

In fraud cases, the judge to direct a trial by himself with two lay members

Sentencing "discounts" for early guilty pleas

Minor offences removed from the court system

Appraisal system for part-time and perhaps also full-time judges

Criminal Justice Board to keep system under review

Criminal justice in England and Wales can never be the same again. The staggering 328 recommendations for reform of the criminal courts contained in Sir Robin Auld's seminal report, published last week, go to the very heart of how a society should put its citizens on trial.

Lord Irvine, who first asked the Court of Appeal judge to begin his mammoth task in 1999, has described the 700-page work as the most far-reaching reform programme in 30 years. Other lawyers say that if the report is implemented in full, it will mark the greatest change to criminal justice in more than 100 years. Given that Lord Irvine is responsible for making law out of Sir Robin's proposals, the Lord Chancellor's assessment of their potential impact is the one most likely to win the day.

For the Government, the Auld report offers a far more radical blueprint for change than it is willing to introduce. And ministers have wasted no time knocking down what they know they don't want. Accompanying the publication of the report, the Lord Chancellor, the Home Secretary and the Attorney-General issued a joint statement making it clear there were "difficulties" with some of the recommendations.

But on the key reform of ending a defendant's right to be tried by a jury for a whole raft of middle-ranking offences, Sir Robin has already delivered for New Labour. His proposal for an intermediate court, comprising a judge and two lay magistrates, goes further than anything the Government has suggested in this area.

Lord Justice Auld's reforms have now attracted all the flak that had been aimed at Labour's two ill-fated mode of trial bills, which were thrown out by the House of Lords. Over the weekend, this attack intensified as the legal profession rallied its forces at the annual Bar Conference in London. The Bar chairman Roy Amlot, QC, opened the assault by telling the audience of judges, barristers, politicians and reformers that public confidence in the justice system would be undermined by the abolition of jury trials in a broad swathe of criminal cases.

He added: "By all means strengthen the jury system. By all means widen the franchise and trust juries with wider areas of evidence, but please do not sacrifice them on the altars of cost and efficiency. They are too important for that. When it comes to criminal justice in this country, we want jury-made justice, not judge-made justice; otherwise we alienate communities and risk a fundamental lack of confidence in the whole process. People trust juries. We must trust the people."

Later, Lord Justice Kay, a Court of Appeal judge, set out his opposition to this part of the reform. He voiced concerns about the constitution of a new intermediate court which he said was "superficially attractive". He also took issue with his fellow judge over the proposal to allow appeals on the basis of a "perverse" verdict and the requirement that, in some cases, juries should give reasons for their verdicts.

Earlier in the week, Lord Woolf, the Lord Chief Justice, had been the first member of the higher ranks of the judiciary to raise objections to Sir Robin's planned restriction on trial by jury by suggesting it had gone too far.

On the day the report was published, John Wadham, director of the civil rights organisation Liberty, said: "Taken together, these measures would comprise a huge attack on fairness in the criminal justice system – particularly trial by jury, which is its cornerstone."

The Law Society also voiced its opposition. Its chief executive, Janet Paraskeva, said: "Whilst we welcome the proposals to streamline the criminal justice system, we are opposed to the abolition of the existing right to elect jury trial for either- way offences... we are concerned that an intermediate court would add an unnecessary level of bureaucracy. It may be that increasing sentencing powers of magistrates and leaving the right to elect trial by jury would bring about the same end and result, without taking away the fundamental right to trial by jury."

Probation officers also got in on the act. Harry Fletcher, of probation officers' union Napo, said: "Proposals to reduce trial by jury and the role of the magistracy will sharply increase the prison population."

None of this prevented the Home Secretary David Blunkett from giving his tacit approval to the plan, when he said Sir Robin's intermediate tier of courts offered "a possible way forward on the issue of jury trials, which might overcome some of the objections that were raised in relation to the Mode of Trial Bill".

Many other parts of Sir Robin's report will not have been so readily appreciated in Whitehall. One can only imagine the irritation caused by his merciless criticism of the graduated fee system, which Lord Irvine had taken so much trouble to extend early this year in an effort to rein in legal aid payments to barristers. Sir Robin says in his report that although the "scope for savings and improvement in the efficiency of trial preparation is enormous", the fixed-fee system "perversely discourages rather than encourages efficient preparation". The use of such abrasive language suggests Sir Robin was unwilling to save the blushes of the Government by moderating any of his proposals.

Ministers got an early hint of what to expect from Auld when the Court of Appeal judge went public on his irritation at Jack Straw's announcement for a 10-year crime plan, which contained many ideas impinging on his own work. One solicitor consultant to the report suggested that the increasingly difficult relationship between Auld and the former Home Secretary Jack Straw might explain why Sir Robin was 3,000 miles away in America on the day his proposals were made public.

In his report, Sir Robin devotes a number of paragraphs to the political landscape in which his proposed reforms will be tested. He acknowledges that it would be naive to suggest that politics should be "removed from the forces driving change in the criminal justice system". But then he warns Government of the dangers of rushing through "insufficiently considered legislative reforms... for quick political advantage".

By talking up the proposals which fit in with the Government's manifesto pledge to be tough on crime and talking down those which give the opposite impression, Labour is in danger of simply carrying out a cherry-picking exercise. In an attempt to head off any such approach, Sir Robin says: "I take it as a legitimate starting point that there should be some mechanism of objective and informed assessment between the rawness of political enthusiasms of the moment and the transformation of their products into law."

The full impact of the Auld report will not be felt in the courts for at least another two years. There must first be a public consultation exercise, which will not be completed until the end next year. Then the Government will publish its white paper. But whatever form the final legislation takes, Sir Robin Auld knows he has single-handedly dragged our criminal justice system into the 21st century.

Last week Lord Woolf, despite his own reservations about some of Auld's conclusions, summed up what many lawyers and social reformers now believe: "In my judgment, the question is not can we afford to implement the Auld report, but can we afford not to implement the Auld report? To which I would answer, 'No'."

In the face of persistent violent crime, governments are naturally under pressure to maximise police power and reduce traditional safeguards for suspects. Hence the removal by the Tories of the right to remain silent in response to police questioning and a raft of tough Labour measures and proposals: including reducing the option to elect for jury trial, allowing retrial after acquittal (double jeopardy) and admitting evidence of previous convictions. All these measures are aimed at increasing the number of convictions of criminals who might otherwise go free - though, of course, by the same token, the chance of convicting the innocent must also increase.

Concern at the steady erosion of civil liberty should be allayed by the Human Rights Act which is a constant reminder to the Government that it does not always know best. The Act seeks to ensure that the fundamental rights of individuals defy and trump political expediency. Ministers introducing legislation must certify that it complies with the Act. So may we all breathe easily then?

There are two problems. First, the Act protects us only incompletely. Though the judges can declare that a law passed by Parliament violates our rights, they cannot strike it down. The parliamentary majority still has the last word and even an appeal to the Court of Human Rights in Strasbourg may not help. Secondly, the Act was intended to impose a minimum level of human rights, not to define their outer limits; it was to be a floor, not a ceiling. A law may not offend the Act, yet still be an unacceptable violation of human rights.

One reason is that European standards of justice applied by the Court of Human Rights do not mesh easily with the common law structures that have moulded our law. This is particularly notable in the criminal law. Thus, as can be seen by examining two of the Government's proposed changes, compliance with the Human Rights Act cannot be relied on as the sole yardstick of what human rights standards require in a British domestic context.

The Government's proposal to modify the rule which prohibits double jeopardy has a recent origin in the Macpherson report on the Stephen Lawrence case. It was referred to the Law Commission, then it appeared in the Labour manifesto at the recent election.

For centuries it has been the law that an acquitted defendant cannot be tried again for the same offence. It is striking that the first thing the Law Commission considered in reviewing the rule was the position under the European Convention, and its conclusions mirror the European approach, which, in general, is to deny retrial of an acquitted person but to allow the case to be reopened by order of a superior court. Careful judicial deliberation is thus required before any new trial. But knowing that this has taken place could any fresh jury fail to convict?

Of course the issue does not arise in other European jurisdictions which do not have jury trial. As the Government's proposals are so careful and so narrowly confined (to murder cases) many may find them unobjectionable, but the crucial point is that their acceptability should be judged by reference to our own hard-fought history and legal framework of civil liberty, not merely to the fact that the proposal may be compatible with the European Human Rights Convention.

The proposals to limit jury trial expose even more clearly the inadequacy of the European Convention as a guide to what domestic human rights observance demands. Juries could be abolished totally and the Convention would not be infringed. The same might well be true of other rules of our criminal law which differ widely from those in other European states. The Court of Human Rights has developed a doctrine of "margin of appreciation" to avoid imposing common standards where such differences exist. Yet jury trial lies at the heart of any English definition of our liberties.

The plans revealed last week from the Auld review and also suggested in the Labour manifesto will, if implemented, lead to the creation of a "middle tier" court to try cases currently heard in Crown Courts. Instead of a judge and jury, an accused would face trial by some combination of judge and magistrate. Though consistent with the Human Rights Act, this outcome would be deeply repugnant to many. For jury trial brings humanity to the law. It is democratic, because it brings citizens who suffer from crime, and pay for its consequences, directly into the administration of the system. Above all it keeps the law both intelligible and compatible with public morality: juries can refuse to convict when they are persuaded that conviction would be a greater evil than the crime itself.

The abstention of the Strasbourg court from much of our criminal law gives the Government latitude to shift the balance against the suspect and whittle away the presumption of innocence. While this may encourage the idea that the Government is free to be as tough on crime as possible, without regard to long-entrenched safeguards, it cannot justify measures whose value in bringing criminals to book is unproven and may at best be marginal. Our liberties are too precious to be surrendered while Strasbourg's back is turned.

Geoffrey Bindman is a solicitor and chairman of the Society of Labour Lawyers; Joel Bennathan is a barrister and chairs the society's criminal law group.

Did Barry George kill Jill Dando? The jury who convicted the eccentric loner of gunning down one of the nation's favourite TV presenters on her west London doorstep certainly thought so. But Britain's top woman prosecutor believes that George, now serving life for Dando's murder, was convicted on evidence so weak that he would have escaped conviction had he been tried by a judge without a jury.

Rosalind Wright, head of the Serious Fraud Office (SFO) and a former assistant director in the office of the director of public prosecutions, says: "I think the evidence was very weak. There is an element with juries that they are influenced by the nature of the crime rather than the evidence." Of course George had no way of waiving his right to trial by jury. The law lays down that all serious crimes, including murder, are tried by judge and jury in the crown court.

As early as next year, however, defendants charged with murder, rape, child abuse, fraud or any other serious offence could be given the right to opt out of jury trial and put themselves in the hands of a judge instead. The proposal is one of the less controversial in Sir Robin Auld's blueprint for reform of the criminal courts, unveiled last week. Legal and civil liberties groups, which are rallying their troops to try to kill off proposals to curb defendants' right to elect jury trial for a range of middle-ranking offences, see no objection to allowing free choice to dispense with the jury if defendants want a judge instead.

The SFO handles prosecutions for the largest and most complex frauds, leaving the less serious cases to the Crown Prosecution Service, the main prosecuting authority for England and Wales. That makes Wright the country's chief prosecutor for fraud. For years she has been pressing for another, much more controversial, reform - to allow judges in fraud cases to opt to try a case with two financial specialists but without a jury. She's highly pleased that Auld has given his seal of approval to that recommendation, which is certain to encounter strenuous opposition from lawyers if the government takes it up

Some frauds, she reveals, never reach the courts, because QCs advise the facts are too complex to put before a jury. Wright mentions some Lloyd's cases she encountered in her previous job with the DPP's office, the forerunner of the CPS. "We didn't take them before the court because advice from counsel was that they were too difficult to put to the jury. They were dealt with as regulatory offences."

If a judge could try the most difficult cases with two lay people, drawn from a panel with financial and legal expertise, she argues "more cases which never see the light of day in a criminal court would be tried as crime rather than as regulatory offences, or not tried at all". Wright also believes the change would encourage more companies and other bodies that are victims of fraud to report it to the authorities. "We know there's a lot of fraud never reported which ought to be, because institutional victims have no faith in the jury system."

It would also shorten trials substantially because the judge and the two panel members would be able to take the papers home and read them before the trial started. "A lot of material laid before juries just to explain the commercial aspects of the case would not be necessary. You wouldn't have to explain what a company is, or the difference between a company and its officers. It would take out a whole swathe of argument and submission, and the presiding judge would be able to be firmer with advocates."

In a recent Old Bailey fraud case the jurors were occupied for 11 months, unable to get on with their normal lives. The average length of SFO trials in which a defendant pleads not guilty is six months, which limits the numbers of the gainfully employed who can serve on a fraud jury. Jury supporters say no matter how complex the fraud, the essential issue is whether the defendants were dishonest - a common-sense question which jurors are well-equipped to answer. Wright agrees: "But with a jury who are not familiar with commercial matters, they really don't understand what's happened, so you don't even get to the question of dishonesty. You have defence barristers saying 'members of the jury, it's not half as simple as Mr A of the prosecution is telling you'. It's in their clients' interest to make it as opaque as possible."

She doubts that the jury who acquitted Kevin and Ian Maxwell of fraud after the collapse of their late father's empire comprehended the steps that were taken to try to keep the crumbling structure going. "I don't think the Maxwell jury understood what happened. I think they just blamed it all on Robert." That case, she believes, would have been a suitable one for trial without a jury. "Personalities played a significant part, particularly the personality of the missing Maxwell - Robert. If there's a missing defendant, of course juries always blame the missing one."

The Maxwell defendants would have been unlikely to opt for trial by judge alone, but Ernest Saunders and his co-defendants in the Guinness case might have done so, Wright thinks. Their defence was that the allegedly illegal share support operation they mounted to drive up the price of Guinness shares during a takeover battle was the sort of thing that went on in the City all the time. "A jury coming to it completely fresh might be scandalised at these terrible City practices they'd never heard of before," she says, "whereas a judge, being a man of the world, might be more blasé."

She supports Auld's proposal for juries to be asked to answer publicly a series of questions, leading them to deliver a reasoned verdict. "As there is no research and we don't know why juries reach the verdicts they do, you don't know whether they decided on the evidence or just didn't like the look of the defendant."

But Auld's recommendation for a prosecution right to appeal against perverse jury acquittals is a step too far, she believes. "There's a deeply rooted belief that one reason to have a jury is to attack the establishment and say we don't like the law. I can see judicial fury at that, and I can hear Robin Auld's anger in what he says about the jury."

In 1985 Wright was in the DPP's office when a jury refused, against the evidence and the judge's summing up, to convict the former MOD official Clive Ponting of breaching the Official Secrets Act. To the great embarrassment of the Thatcher government, Ponting had leaked an internal memo revealing that the Argentine warship General Belgrano was heading out of the exclusion zone when British forces sank it during the Falklands War.

"If you're going to retain the jury, they should be able to make that statement," insists Wright. "If you don't like it, I would say 'too bad'."