Saturday 9 April 2016

I have not yet had my mind changed on jury trials

My last piece on jury trial in dangerous driving cases has sparked some lively debate.  I have enjoyed some interesting discussion with well-informed people some of whom agree some do not, as of course is their unqualified right.
It is not a piece that has gone down well with all my colleagues practising at the criminal bar.  It is perhaps worth my making the following points by way of response.
We all have a right to a fair trial.  I agree that if we are at risk of going to prison for a long stretch we should all have the right to a jury.  However it is possible to have a fair trial without a jury.  In Scotland (for example) the Defendant has no right to insist on a jury in offences triable either way like dangerous driving.  One possible solution may be to leave the Magistrates with the option of determining mode of trial and selecting summary trial where they are satisfied their powers of punishment are sufficient.  International War Crimes are not tried by juries.  Lack of jury does not equate to lack of justice.
There has been a suggestion that as I am not a Criminal Lawyer I have no right to voice my opinion on criminal law and procedure.  I refute that.  I am a personal injury lawyer who often meets the spouses, parents and children of those killed on our roads as well as other victims of bad driving.  I have sufficient perspective to appreciate that dissatisfaction with the current system is close to universal amongst the victims of such crime.  I do not pretend to be sure about what the solutions are but looking at speedy, effective and affordable ways of parting dangerous drivers from their licences seems to me a valid start.  Clearly this is no laughing matter and some of the flippancy I have encountered is deeply inappropriate.  I have never claimed to be a criminal lawyer and in an open democratic society we are all entitled to express our views on crime and the criminal process.  I do not scoff at those who express views relating to the areas of law in which I practice.
Alongside complaining of my lack of experience in criminal law is the complaint that I have recent experience of prosecuting a dangerous driving case which led to an acquittal.   Again I have never hid that and I cheerfully concede that I think that the Magistrates’ Court would have been a more appropriate place to have had a trial in that case.  It would unquestionably have been faster and much cheaper (a relevant factor perhaps since by way of distraction complaint is made about my costs of so doing).  Incidentally I have been unfailingly polite to those who wish to see their own favoured change in the current law on the recoverability of such costs and even argue (unlike me) that their proposed changes should act retrospectively.
There has been innuendo that my private prosecution should never have been brought.  That too I refute.  There are numerous safeguards to prevent private prosecutions where the evidence is not strong, or the public interest not served, from going to a jury.   Criminal lawyers understand this but one or two persist in asserting that the fact that the police did not prosecute implies that I should not have done.  The fact is that acquittals against the strength of the evidence trickle down through the system to affect decisions to charge.
It has been suggested I have no evidence to support my arguments and/or that I have singled out driving for no good reason.  There have been plenty of cases involving motorists and vulnerable road victims where the results have been disquieting and I cover very many of them in my blog.  My article expressly explains that the ‘There but for the grace of God’ empathy applies peculiarly to driving cases.  Since writing the piece I have been contacted by many people engaged in the criminal justice process in just about every way whose experiences confirm there is a problem to be addressed.

I am very open to persuasion that my views are wrong but so far have seen far more heat than light expressed by those content with the status quo.  I think I have dealt with most of their arguments as I understand them.

Friday 8 April 2016

It is time to rethink a Defendant’s right to a jury in driving cases

It is time to rethink a Defendant’s right to a jury in driving cases
Trial by a jury of one’s peers when accused of serious crime is a bed rock of the English legal system.  Nonetheless in general you can incur a punishment of up to six months’ imprisonment following conviction by the Magistrates’ Court.  In the context of road traffic offences only the most egregious of offenders faces anything like six months in jail.  Most Defendants charged with a traffic offence like dangerous driving or causing death by careless driving which are triable ‘either way’ (that is, by magistrates or Judge and jury) will be advised, correctly, that they stand a much better chance of acquittal before a jury.  This is a massively expensive and rather slow way of determining whether or not a Defendant should lose his licence and face a non-custodial penalty.  In addition jury acquittals in the teeth of strong evidence particularly where the harm has been to a vulnerable cyclist or pedestrian do nothing to bolster confidence in the criminal justice system, let alone to improve actual and perceived safety on our roads.
In recent weeks juries have acquitted a lorry driver who ran down an elderly pedestrian couple crossing a road in a shopping centre car park (death by dangerous driving), a lorry driver who turned left at Ludgate Circus without ensuring there was no cyclist on his nearside (death by careless driving), a car driver who passed a group of cyclists colliding with one and then driving into him when he sought to remonstrate (dangerous driving and assault).  Often the juries acquit in under an hour in such cases heightening disquiet as to the result. 
Juries will of course sometimes convict particularly where a vehicle occupant is plainly endangered.  In a very recent case a jury convicted Melissa Berry of dangerous driving.  She had terrified her passengers with a sustained period of very high speed (up to 120 mph) driving in the lanes of Devon and hit a wall spinning her car onto its roof.   She was sentenced to 12 weeks’ imprisonment which was suspended and so was very comfortably indeed within the powers of a Magistrates’ Court.  There must be a serious question over whether she would have persisted with a ‘Non Guilty’ plea had she not had a jury trial.
The position has really not improved, arguably it has worsened, since the way in which the justice system dealt with the drivers who killed Rob Jefferies and destroyed the life of Mary Bowers caused such legitimate concerns to British Cycling and The Times Newspaper respectively.  Although some driving offence penalties have been increased, the vanishingly small prospect of conviction negates any real deterrent effect.
The problems with jury trial for motoring offences are as follows:
1.      1.  Motoring offences are far more likely than other serious crimes to invoke empathy and compassion from a jury.  “There but for the grace of God go I” is not a thought likely to cross many jurors’ minds in cases of murder, rape, terrorism or knife crime.  The law excludes people who have served significant prison sentences in the past 10 years from sitting on a jury.  It does not exclude the significant proportion of the population who have been (fairly or unfairly in their view) subject to minor penalties for road traffic infringements.  In addition we live in a motor centric society where the overwhelming majority of jurors can be expected to be drivers, many of whom will have been subject to lapses of concentration or worse whilst operating a motor vehicle.  Far fewer will have similar levels of empathy to a non-motoring (and particularly a cycling) victim.  Feelings of empathy with and compassion for an accused may confound justice in a hidden way that is far less likely where, as in a Magistrates’ Court, reasons for a decision are required.
2.       2. Juries have no influence over, and perhaps little understanding of, the sentence likely to be imposed if they return a guilty verdict.  They may be aware that on conviction the maximum sentence for dangerous driving is 2 years and feel that imprisonment would be disproportionate to the offence.  A disinclination to expose a person with whom they may have empathy to possible imprisonment may influence their verdict.
3.       3. The resources devoted to a jury trial for a motorist charged with dangerous driving are disproportionate.  A jury trial is expensive.  A trial that would take one day before Magistrates is likely to take three days before a jury.  This is not a wise allocation of limited state resources.
4.      4.  Delays in the Crown Court are unavoidable particularly where, as is overwhelmingly likely in driving cases, the Defendant is not remanded in custody.  Whatever the aspirations of the Criminal Procedure Rules it typically takes 6 months from the initial hearing in a Crown Court to a trial.  There is some research evidence that certainty and speed of punishment are more important factors in deterring crime than the severity of punishment.
5.       5. There are now separate offences for causing death by dangerous driving and for causing serious injury by dangerous driving.  A dangerous driving charge simpliciter will therefore only arise where there has been no death or serious injury.  Whatever the sentencing guidelines say, Judges are most unlikely to impose sentences beyond the powers of the Magistrates’ Court, following conviction on a dangerous driving charge where no death or serious injury has resulted.  There are strong arguments that the best form of punishment in such cases is a period of disqualification in respect of which the powers of the Magistrates and of the Crown Court are the same.
6.       6There is a very considerable temptation on the part of prosecutors to undercharge cases, or even not to charge, in order to avoid a trial by jury.  This is undesirable.  The offences of careless or inconsiderate driving (for which a Defendant cannot elect jury trial) are relatively minor offences designed to deal with momentary inattention, queue barging, middle lane hogging, splashing pedestrians and the like.  Dangerous driving that fits the statutory definition of driving far below the careful standard and in a manner in which danger should be obvious, should be charged as such.  According to the Crown Prosecution Service typical examples from court cases of dangerous driving include going too fast, driving aggressively, ignoring road signs, overtaking dangerously or being avoidably and dangerously distracted.  The CPS have just dropped a dangerous driving charge against a pop star accepting a guilty plea to drink driving instead.  The perceived difficulties in securing convictions in motoring offences have a knock on effect whereby the Police, who have the ability to decide on no further action in any case and who will perhaps even overestimate these difficulties, will often fail to take any action when they should.  The Transport Select Committee has, in its recent report on Road Traffic Law Enforcement, called on the Home Office to commission research into how complaints of collisions or near misses involving cyclists are handled by the Police and how this impacts upon the proportion of people who believe it to be too dangerous to cycle.  
    It is suggested that there is a clear case for removing the right to a jury trial from those charged with dangerous driving.  This could be at the discretion of the Magistrates as proposed by Jack Straw in respect of triable either way offences in 2000.  It should be noted that in Scotland the mode of trial in either way offences is already not (solely) up to the Defendant as it is in England. 
    Many of the same arguments could apply also to causing death by careless driving where again the likely punishment if convicted falls within the competence of a Magistrates Court.  Causing serious injury by dangerous driving and causing death by dangerous driving are much more serious offences although it should be borne in mind that the most serious of these could, and perhaps should, be charged as cases of assault occasioning grievous bodily harm and manslaughter respectively.  If reforming dangerous driving proves to be successful in terms of better deterring the crime then extensions to other driving offences could well be considered.  It would, of course, be essential to take full account of the views of victims and their representatives before extending any reform to the offences which involve causing death or serious injury.
    We must certainly do something.  A whole generation of citizens is being brought up to be driven everywhere, particularly to school, on the grounds that active travel is perceived by their parents to be too dangerous.  This attitude then continues into adult life and into the jury box.  It is a small minority of bad drivers responsible for this perception and they must be tackled.

Martin Porter QC is a leading personal injury/clinical negligence lawyer practising at 2 Temple gardens, London.