HAMLYN - College of Social Sciences and International Studies ...

Criminal Justice
defendant's livelihood or reputation. In considering the potential
effect on the defendant's reputation the court can be told of
any prior convictions but magistrates who receive such information
will not then be permitted to take part in a subsequent trial.
In a gesture to the critics, there will be a right of appeal to the
Crown Court against the decision that the trial be heard
summarily. This will add to cost and delay but I imagine the
Home Office calculate that it will not be used by many
defendants.
One criticism made is that it will lead to two classes of
justice—one for the defendant with prior convictions, the other
for those who have none. The Royal Commission's view was
that the presence or absence of prior convictions is a legitimate
issue when it comes to consideration of the appropriateness of
jury trial as a means for protecting someone's reputation. A
person with prior convictions, at least if they are for similar
offences to the current charge, has less of a reputation and to
that extent—though only to that extent—has less of a claim for
jury trial than someone who has no record. (Nine out of 10 of
those who elect jury trial after the magistrates have said they
could try the case have previous convictions.)
There is also opposition to the proposal on the ground that it
will impact especially on the ethnic minorities because, it is said,
they disproportionately distrust trial in the magistrates' courts.
But in the absence of any evidence that magistrates are disproportionately
likely to convict ethnic minority as compared to
white defendants, I personally do not find the ethnic minority's
alleged lack of confidence in the system sufficient reason for
rejecting this reform. (The empirical evidence to date shows that
both in Crown Courts and in magistrates' courts black defendants
are actually more likely to be acquitted than white
defendants. 29 )
A great deal more will be heard of these arguments in the
coming weeks. 30 Whilst the row rages in England it is worth
29 For a survey of the evidence see David J. Smith, "Ethnic Origins, Crime, and
Criminal Justice" in The Oxford Handbook of Criminology, (Maguire, Morgan
and Reiner ed. 2nd ed., Clarendon, Oxford, 1997), pp. 704, 742-745. See also
now B. Mhlangha, Race and Crown Prosecution Service Decisions (HMSO,
October 1999), pp.18-19, a study of 6,000 cases in 22 CPS areas involving
defendants under 22.
30 For a powerful statement of the case against the proposal see for instance,
V. Chapman, "Either way: the wrong way?", Legal Action (July 1999), p. 6. See
also D. Wolchover and A. Heaton-Armstrong, "New Labour's attack on trial
by jury", New Law Journal (October 30,1998), p. 1613.
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