Our right to a jury trial is our right to justice

The Petty Officer was accused of an utterly trivial theft. If convicted, he faced disgrace, discharge and loss of pension. The evidence was strong. "Right," said the foreman of the jury at an initial vote. "Hands up those who think he did it." Eleven hands rose as one. "Fair enough. Now, hands up those of you who are going to convict." No one moved and after a few minutes for the sake of decency, they returned to acquit.

It is my favourite jury story and one bound to infuriate the critics of trial by jury. It illustrates perfectly the innate common sense of non-lawyers, prepared to examine the burden of proof without abandoning fairness. It explains those occasional high-profile acquittals, where, deep in the privacy of their retiring rooms, men and women revolt against high-minded oppressive prosecution, bringing a notion of justice neither defined by statute or captured by precedent.

The precise origins are uncertain, but we have had a form of trial by jury since at least 1215, when trial by battle and by ordeal were condemned in Rome by the Lateran Council. Lord Denning called it the bulwark of our liberties. It still commands widespread popular support, as people conscientiously strive to put aside their prejudices to return a true verdict. Time and again they achieve the right result.

So, if it works, why interfere? That question is not undermined by high- profile, terrible miscarriages of justice. A judge and assessors, a bench of justices or any other alternative tribunal depends ultimately on the reliability of the evidence canvassed. They cannot second-guess forensic trickery or always detect oppression. Twelve people, drawn from a wide cross-section of society, are no less likely to return a just verdict than a professional tribunal. They may not have the experience born of hours interpreting antecedent histories, but a desire to do justice is more valuable. Trial by jury has public credibility precisely because the decision is not made by professionals.

So I oppose any attempt to weaken a defendant's absolute right to trial by his peers, even if it is limited at present to "either-way" offences, which allow a defendant to choose between magistrates and Crown Court jury trial. In 1993, the Royal Commission reasoned that this procedure should be changed "in order to secure a more rational division" of such cases between the courts. The decision should not be left to the defendant, "though he should have a voice in the matter". But, argued the Commission, defendants should not be allowed to choose their mode of trial based on which court they felt would be likely to offer a better chance of acquittal, any more than they should be allowed to choose a lenient judge.

I do not accept that reasoning. Certainly the research cited by the Commission cast doubt on a defendant's belief in a better chance of acquittal before a jury and demonstrated that the ultimate sentence by a judge would be longer. But those are risks which should not affect the principle - the continuing unfettered right to judgment by one's peers.

The Royal Commission recommended that the decision should be made by consensus if both defence and prosecution agreed on the form of trial. Where the two sides could not agree, magistrates should make the decision based on statutory guidelines. They pointed out that magistrates already carried out a similar exercise under Section 19 of the Magistrates Courts Act 1980, namely whether the offence alleged appears more suitable for summary trial or for trial on indictment. In that procedure, both the prosecutor and the accused have an opportunity to make representations. The changes made administration easier but did not frustrate the absolute right of choice in the way the proposed reform would.

Sweet reason continued. The Royal Commission recognised loss of reputation as a continuing factor in support of jury trial but qualified it as often relevant "only to first offenders". That, as Lord Taylor pointed out, would be unfair to those with a criminal record. Some of the most worrying cases, as most advocates know, involve minor cases which result in colossal personal consequences far beyond the monetary penalty. So-called shoplifters, even more vulnerable than the petty officer, can suffer years of misery from the public exposure. Why hamper in any way their right to trial by jury? For them everything is at stake. Understandably, they might feel that the magistrates have heard it all before.

In any event, some of the reasoning now seems outdated. The picture of dramatic delays in the Crown Courts has changed sharply, both in London and on the regional Circuit. Bail, properly operated, must in time reduce the numbers of those remanded in custody unnecessarily.Nor should the inevitability of some "cracked trials" - pleas of guilty entered on the morning of trial - affect the fundamental right of choice. Defendants change their mind at the last moment for reasons that cannot be boxed neatly. This cannot be eliminated. A defendant simply may be unable to face up to the reality of his position until compelled to do so by imminent trial and challenge.

The cynic will see all this as special pleading for fat lawyers to earn fatter fees, by keeping the system going for their own exclusive benefit. As a game of criminal cricket, pursued cynically without regard to the public purse. They forget the reality - the mass of small cases with no great financial reward conducted in unexciting court rooms for frightened and intimidated people. Here their advocates seek, in an unsensational way, to do justice, justice for the defendant who has misinterpreted a minor sexual signal, or the confused pensioner who forgot to pay.

It is a second-rate lawyer who conducts cases with no other obligation than letting the meter run. The rest of us can value the client's gratitude, sometimes independent of the result, which gives a sense of worth to the pursuit of their case as keenly as the rules permit. Silks who operate in alternative arenas, outside court, may not understand the value of jury trial, but they interfere with it at their political peril. We must reject overwhelmingly this arbitrary exercise of power which has been dressed up as financial reform. You cannot put a price on justice.

Call me suspicious, but behind these limited proposals, I see a far more dangerous scenario - a subtle move to replace lay justices altogether with a professional stipendiary bench. How else would magistrates be able to cope with such a huge increase in their workload? More trials, less time and much more difficult to continue to have adjourned hearings. So, a neat end to the good balance that exists at present between the professional and lay bench. Not, of course, overnight. But gradually, in the face of financial discipline and compelling statistics. Suddenly, another well- respected institution bites the dust, the victim of political thuggery and populist propaganda. But it will not end there. The next step will be trial by clamour. And so easy to achieve.

Suddenly an imperfect system becomes a nightmare and trial by jury an inevitable casualty. "Always the angry crowd, very angry very loud - Law is WE". Auden was right. "WE", the voice of simple solutions, untrammelled by the inconvenient process of trial. Revenge and retribution in equal measure. Trial by newspaper headline: "Murderers!"

A better world already exists and we threaten it at our peril. The sober presentation of evidence, with minimal interference from a professional judge. Cross-examination of ordinary and expert witnesses in front of 12 people, looking beyond the words to demeanour and mood. A proper judicial restraint in the admission of relevant evidence and the ability to identify issues and essential facts, with the decision left to the representatives of the community.

William Penn on trial in 1670 at the Old Bailey, cried out to his jury - "You are Englishmen. Mind your privilege. Give not away your right". "Nor will we ever do it," replied Edward Bushell, the brave juror whose stubborn independence kept alight the lamp that showed that freedom lives. Nor should we.

The writer is chairman of the Bar Public Affairs Committee.