IT`S TIME TO END DEFENDANTS` RIGHT TO CHOOSE

 26. Sep. 2010. @ 14:01:12 by TheJusticeofthePeace

On Nov 21st last year I commented that it was time to say goodbye to either way offences. It is not a view commonly held by lawyers. In no way of course am I suggesting that consideration of financial incentives by possibly extending the life of a hopeless case is in the minds of criminal practitioners. They are concerned with the inalienable right of trial by jury. Aside from practical objections the logic behind this assertion has always been misplaced. If the “right” is inalienable the offence should be indictable so that there is no doubt the defendant will be able to have his “right”. This is clearly nonsense and requires no further discussion. The unquestioning “right” logically should mean that summary trials are also against this “right”. And the most obvious reason to consign this so called “right” to the scrap heap is the fact that District Judges [MC] and their predecessors Stipendiary Magistrates have presided for decades as sole arbiters of fact finding and also as sentencers. Rarely is there a criminal lawyer who favours the abolition of either way offences. 

In not so many words that opinion is voiced by judges at crown courts more often than is reported. One such report in Carlisle last week sums up neatly the anomaly of either way offences. The defendant was charged with theft to the value of £30 and elected trial by jury instead of summary trial at magistrates` court. Doubtless his legally aided lawyer had given him his best advice throughout such that he changed his plea to guilty on the day of his trial. 

This time of deficit cutting must be the opportunity to pull the teeth of the Law Society and the Bar and end this anachronism of either way offences although with so many lawyers in parliament who regularly fail to oversee the passage of contentious or badly drafted legislation I have my doubts. At a minimum the mode of trial should be available solely to the bench or District Judge who can accept or reject jurisdiction. 

Cost cutting is often an excuse to fly in the face of good practice. In the case of either way offences being abolished or at least the defendants` choice being abolished the opposite would hold true……..good practice would force out bad.