Royal Commission on Criminal Justice: Defence lawyers attack call to: Critics fear proposal would erode fundamental safeguards lying at heart of judicial system end right to choose trial by jury

OF THE commission's 352 proposals, the call to end the ancient right for defendants to choose whether they are tried by a jury or by magistrates will prompt the most profound and anguished debate.

Defence lawyers believe that such a step would erode fundamental safeguards that lie at the heart of the justice system in England and Wales. They say the recommendation stems from a desire to save money rather than improve the legal process.

The same criticism will be levelled, although with less vehemence, at the commission's call for a formal system of sentence discounts, attacked by some observers as a form of plea bargaining. Yesterday, however, Lord Runciman emphasised that he had not been motivated by the need to cut costs. Both proposals were aimed at rationalising a system that contained long-standing anomalies.

The commission says that about a third of the 100,000 cases heard in crown courts every year would be transferred to magistrates' courts under its proposals, enabling judges and juries to concentrate on the most serious offences.

At present, only a few minor cases are automatically heard by magistrates, with most defendants able to choose where they stand trial. The gravest offences, such as murder, are always tried before a jury at the crown court.

In its report, the commission says that most defendants who opt for a jury trial do so because they believe they have a better chance of being acquitted. Many suspects think that magistrates are 'on the side of the police'.

Yet, the commission goes on: 'Magistrates' courts conduct over 93 per cent of criminal cases and should be trusted to try cases fairly.'

Prosecution and defence teams would try to agree whether the case should be heard before a jury or a magistrates' bench, the report says. The commission recommends that if agreement could not be reached, the final say would lie with the bench.

The report goes on to lay down some of the criteria to be used by magistrates when assessing whether they should hear a case. These include the gravity of the offence, the complexity of the trial and, most controversially, the 'likely effect on the defendant'. This last recommendation is certain to attract criticism from those who say that middle-class suspects with no previous convictions will be able to go before juries, while unemployed defendants with criminal records will be denied this right.

Legal reformers, such the group Justice, are certain to mount a vigorous campaign against this proposal. Equally, they will attack the recommendation that defendants should be encouraged to plead guilty, with lower sentences given the earlier that they admit to their crime.

The proposal has been prompted by criticism that there already exists a shadowy and informal system of plea bargaining, with defendants usually receiving a 25 per cent discount on their sentences if they plead guilty.

However, there is little incentive for suspects to make such an admission until just before their trial is due to start, by which time lawyers have wasted vast amounts of time and money preparing the case. These 'cracked trials' represent 26 per cent of crown court cases, according to the commission.

In its report it calls for a statutory and open system of discounts to persuade defendants to admit their guilt - if, indeed, they are guilty - as early as possible. The commission also wants defendants to be able to ask the trial judge what sort of sentence they would be likely to receive for an admission of guilt.

It is one of a series of proposals designed to improve a system which has been described by many lawyers as costly, cumbersome and inefficient.

These also include:

A recommendation for pre-trial committal hearings to be abolished unless defendants claim that there is no case to answer;

Time-limits within which lawyers must discuss and prepare the case;

A requirement for judges to curb prolix barristers and prevent trials from running on too long.

Yesterday, Lord Runciman was adamant that his proposals for sentence discounts would not lead to American-style plea bargaining where suspects are encouraged to admit their guilt in behind-closed-doors meetings with their attorneys.

But Justice said that the innocent would nevertheless come under pressure to plead guilty as a result of the commission's plans. The proposal would 'subtly undermine the presumption of innocence in the criminal justice system', Justice said.

It added: 'It can rapidly lead to a system which becomes accustomed to looking for guilt and penalises those who opt for jury trial.'

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