Are Defendants Losing the Right to Choose Trial by Jury?

There has been a significant amount of coverage in the news over the last six months relating to the government’s Courts and Tribunals Bill which is currently making its way through Parliament. In recent days in particular, the Justice Secretary’s announcement that the government intend to scrap the widely criticised plan to introduce “judge-only” trials in the Crown Court, thus restricting jury trials, has caught the public’s attention.

As a criminal defence advocate, I am pleased to see that the concerns of criminal practitioners and the wider legal community appear to have been taken on board in relation to this particular point, and the news of this legislative U-turn is happily received.

That being said, the Bill contains a number of other clauses which, if enacted in their current form, would have, in my view, an equally significant impact on a defendant’s right to trial by jury. In particular, the amendments proposed under Clauses 1 and 6 of the Bill as currently drafted would fundamentally alter a defendant's right to choose trial by jury in many cases, whilst simultaneously significantly expanding the sentencing powers of magistrates' courts.

The Current Position

Criminal offences are divided into three broad categories, generally distinguished by the seriousness of the offence, which dictates whether each offence can be dealt with by the Magistrates’ Court or the Crown Court. The least serious offences are called summary-only offences, and may ordinarily be tried only in the Magistrates’ Court. At the other end of the spectrum, the most serious offences are called indictable-only offences, and must be sent to the Crown Court where, if a defendant pleads not guilty, their trial will take place before a judge and jury. The middle category of offences are known as either-way offences and these offences may be tried in either the Magistrates’ Court or the Crown Court.

Either-way offences represent a wide range of offences, including most offences against the person (assaults), sexual offences, offences involving theft or criminal damage and public order offences.

At present, when a person charged with an either-way offence comes before the Magistrates’ Court, the magistrates first decide whether the case is suitable for summary trial. If the magistrates feel that the case is too complex or that they would not have sufficient sentencing powers to deal with that particular defendant if they were to be convicted, they will send the case up to the Crown Court. If the magistrates do accept jurisdiction, under the current law, an adult defendant still has the right to choose to have their case sent to the Crown Court for trial. The process of choosing for your trial to take place in the Crown Court, in front of a judge and jury, is known as election and the right to elect is contained within s.20 of the Magistrates’ Courts Act 1980.  

The Proposed Abolition of the Right to Elect Jury Trial

Clause 1 of the draft Bill would remove this longstanding right.

The Bill amends section 20 of the Magistrates’ Courts Act 1980 by removing the provision that currently requires the court to ask the accused whether they consent to be tried summarily or wish to be tried on indictment.

Instead, the Bill provides that, if the magistrates decide that a case is suitable for summary trial, it shall proceed to summary trial.

In practical terms, this means that where magistrates conclude that they have sufficient sentencing powers to deal with a case, and that the case is not too complex to be dealt with in the Magistrates’ Court, the defendant would no longer have the right to insist upon a jury trial.

Defendants would still be entitled to make representations regarding venue. Defence solicitors would continue to be able to argue that a case is too serious, too complex, or otherwise unsuitable for summary trial.

However, the final decision would rest with the court.

Expansion of Magistrates’ Sentencing Powers

The removal of the right to elect contained in clause 1 of the Bill becomes even more significant when considered alongside clause 6 of the Bill, which proposes substantial changes to magistrates' sentencing powers.

The Bill would amend the Sentencing Act 2020 to permit future increases in the maximum custodial sentence available to magistrates. Specifically, the legislation would allow the Secretary of State to increase the maximum custodial sentence that magistrates are able to impose for one offence to up to 24 months.

The Bill itself, if enacted, would not automatically increase magistrates' sentencing powers to two years. However, it creates a statutory mechanism that would permit such an increase through future regulations.

If the Secretary of State did then increase the maximum sentence the magistrates are able to impose for one offence up to 24 months in custody, this would effectively double their current sentencing powers, significantly increasing the number of cases which are likely to be deemed suitable for summary trial.

Why These Changes Matter

Taken together, these reforms would represent a profound shift in the criminal justice system. Jury trials would become less accessible for defendants charged with either-way offences, mode of trial proceedings at the first Magistrates’ Court hearing would become increasingly important, making early legal advice more valuable than ever, and the consequences of remaining in the Magistrates’ Court could become more significant if sentencing powers are increased

Ultimately, the proposed reform could result in a situation where anyone charged with an offence for which the sentence would be two years’ imprisonment or less would no longer have the right to choose trial by jury.

The Bill remains before Parliament and may be amended further before becoming law. As matters stand, however, anyone charged with an either-way offence could face a very different decision-making process tha exists today.

How We Can Help

Being charged with a criminal offence can be daunting, particularly when proposed reforms may alter where and how your case is heard.

Our criminal defence solicitors regularly advise clients on:

· Magistrates’ Court proceedings;

· Crown Court proceedings;

· mode of trial proceedings;

· sentencing issues; and

· appeals.

If you have been charged with a criminal offence or are concerned about how these proposed reforms could affect you, please contact our specialise Defence Team for advice tailored to your circumstances.