09:27, June 16 196 0 theguardian.com

2020-06-16 09:27:03
Drop juries for less serious crimes in England and Wales, judges say

Less serious crimes should be tried in crown courts before a judge sitting alone without a jury in order to tackle the massive backlog of cases building up during the pandemic crisis, judges have suggested.

The proposal has emerged as the justice secretary, Robert Buckland, has told MPs that the backlog in the criminal justice system in England and Wales has grown to around 41,000 cases.

There have been various suggestions to deal with the accumulation of untried criminal cases. Only a small proportion of crown courts are currently sitting, with jurors and court staff often spread out over three courts and linked by video in order to observe physical distancing requirements.

On Tuesday the lord chief justice, Lord Burnett of Maldon, told BBC Radio 4’s Law in Action programme that less serious crimes – categorised as “either way offences” – could be heard by a judge sitting with two magistrates (instead of a jury) if the backlogs continues to accumulate.

The Ministry of Justice is considering whether to hire larger venues to create special “Nightingale” emergency courts. Other suggestions include: smaller juries as were used during the second world war, allowing defendants to opt for judge-only trial or making all trials judge-only for a period.

The suggestion of a judge sitting alone on either way cases is supported by some members of the judiciary and lawyers. It is a permutation that would involve changes to only a portion of cases.

Criminal cases normally fall into one of three categories: the most serious, which are triable only on indictment in the crown court; the least serious that can be tried summarily in magistrates courts; and those triable either in magistrates or crown court.

Either way offences include the bulk of middle-ranking criminality such as theft. Such cases are usually sent to the crown court because magistrates consider their sentencing powers to be insufficient or a defendant thinks his chances would improve before a jury.

About two-thirds of cases sent to the crown court are for either-way offences. Allowing trial-by-judge alone in these cases would significantly shorten the backlog – because such trials would be much speedier affairs than jury trials and, mostly, only one courtroom would be required.

Described as a partial relaxation of the normal rules, the proposal anticipates that the number of appeal applications to the court of appeal might increase. Judges assessing applications, however, would have the trial judge’s explicit reasoning to help in deciding whether an error has been made.

Because either-way offences are generally less serious than indictable-only offences, greater use could be made of recorders – part-time judges. That would release permanent judges to try the most serious cases with juries. Many recorders have lost income while most court work has been suspended.