United Kingdom Journals

		[2000] 1 Web JCLI

Mode of Trial: Lessons from a Small Island

John Hodgson, MA LLM, Solicitor

Principal Lecturer Nottingham Law School
Nottingham Trent University

<john.hodgson@ntu.ac.uk>

Copyright © 2000 John Hodgson.

First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

The Criminal Justice (Mode of Trial) Bill has been introduced to remove the right of election for trial by jury from those charged with either way offences. It is not commonly known that in one of the Crown dependencies, the Isle of Man, a jurisdiction where criminal law and procedure is in general closely similar to English law and procedure (Edge 1997), the right of election ceased to exist on January 1^st 1992. This article aims to explore the effects of this change to the law, and to indicate potential implications for England.

Contents

Reform of Mode of Trial: The Issues
The Manx Precedent

Experience of the Manx Procedure

Applying the Procedure: A Case Study
Views of the Manx Profession

Conclusions

Bibliography

Reform of Mode of Trial: The Issues

The Criminal Justice (Mode of Trial) Bill has been introduced to remove the right of election for trial by jury from those charged with either way offences. This fulfills a commitment by the Home Secretary made in a Parliamentary written answer (Straw 1999, col 374) and in a speech to the Police Federation on 19^th May 1999 (Home Office 1999) following a consultation paper (Home Office 1998a) in which abolition of the right of election was the preferred option. Both the Home Secretary and the earlier paper relied on two principal arguments, which have been restated (with some new, rather selective, statistical material) in a recent Home Office Briefing Note (Home Office 2000). The first is that, while the right to trial by jury is firmly established as an emblem of our justice system and a key guarantee of the rights of the subject, the right of election is not an essential part of this right. Election as such dates back only to the nineteenth century, as prior to then all offences were either indictable only or purely summary. The second is that election is inefficient, in that most of those who elect eventually plead guilty, and many receive sentences which the magistrates could have imposed, but at much greater public expense.

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The Manx Precedent

In the Isle of Man, the right of election ceased to exist on January 1^st 1992. This article aims to explore the effects of this change to the law, and to indicate potential implications for England.

In order to understand the context in which the removal of the right of election has operated on the Island, it is necessary to explain briefly the relevant aspects of the Manx legal system. There are two courts with original criminal jurisdiction. The first is the court of summary jurisdiction. This may take two forms. It may be comprised of two or more lay justices, or may be constituted by the High Bailiff or Deputy High Bailiff (Summary Jurisdiction (T) Act 1989, s 3).⁽¹⁾ The latter are, in effect, stipendiary magistrates. The post of High Bailiff has existed since the eighteenth century (Edge 1997, pp 134 and 217), and in recent years the High Bailiff and his Deputy have in practice dealt with all the criminal business of the courts of summary jurisdiction. The second court is the Court of General Gaol Delivery where cases are tried on information (the Manx equivalent to indictment) before a jury of seven (twelve in cases of murder or other particularly serious offences) (Jury Act (T) 1980, s 24). The Court is presided over by a Deemster. There are two permanent Deemsters, who constitute, with the Judge of Appeal, the Manx judiciary (High Court Act (T) 1991, s 3). For practical purposes, leaving aside differences of detail and nomenclature, the court of summary jurisdiction equates to a Magistrates Court, albeit one presided over by a stipendiary, and the Court of General Gaol Delivery to the Crown Court. There is the same general distinction between summary only, indictable only and `either way' offences, although Manx law retains the various categories of the latter which were rationalised in England by the Criminal Law Act 1977.

Two reasons for removal of the right of election have been given to the writer on different occasions by different members of the Manx judiciary. The first is concern over delay in trials before the Court of General Gaol Delivery and the second was concern that potential jurors were being summoned unnecessarily for `cracked' trials.⁽²⁾ It should of course be stressed that the defendant retains the right to jury trial for matters triable only on information and for those either way matters which are committed for trial.

The Consultation paper (Home Office 1998a) is based on the Runciman Report (Runciman Report 1993) and the Narey Report (Narey Report 1997). The essential argument is that election leads to cases unjustifiably and, crucially, uneconomically, going to the Crown Court. Three reasons for electing are identified, although all rely on research data which is seriously out of date (Bridges 1999):

1. To delay matters, either simply to defer the evil day, or to put pressure on the CPS or witnesses (Hedderman & Moxon 1992).

2. To get a better result. According to Hedderman and Moxon (Hedderman and Moxon 1992), 50 % of those who elected did so in the belief that they would receive a more lenient sentence. The reality is very different.⁽³⁾

3. Better prospects of acquittal. This reason is well founded. The Runciman Report (Runciman Report 1993) cites Vennard's research which found 57% acquittals in the Crown Court to 30% in the Magistrates Court in contested cases (Vennard 1985). The Home Office Consultation Paper 1998 gives figures of 40% and 25% (Home Office 1998a, para 9). This phenomenon can be explained in a number of ways, none of which can be positively proved. There may well be a bandwagon effect, such that all those wishing to plead not guilty elect simply because Crown Court is perceived as the better option. Juries may be excessively gullible, or magistrates case hardened. It may well be that the Crown Court offers a superior procedure, with separation of function between judge and jury and greater legal expertise.⁽⁴⁾

Categories 1 and 2 are clearly tactical, and there is no obvious and compelling legitimate interest in election being available in those circumstances. Category 3 does raise issues of principle. It is unclear how many elections are solely or mainly for this reason. Only a small proportion of those who elect eventually plead not guilty, although none of the research data yet takes account of the plea before venue procedure under s 38A Magistrates Courts Act 1980 (inserted by the Crime (Sentences) Act 1997), which concentrates the mind of defendant and defence advocate on plea at an early stage, or the statutory discount for an early guilty plea under s 48 Criminal Justice and Public Order Act 1994. Both can be expected to reduce tactical elections. It is also unclear exactly how many defendants plead guilty to the charges originally preferred.

The Manx experience is relevant largely to the question of whether removal of the election will result in a more rational distribution of business,⁽⁵⁾ i.e. whether magistrates will retain and commit the right cases in terms of seriousness. The comparison is slightly distorted by three factors peculiar to the Island:

1. The Isle of Man is a small, relatively prosperous community, with no `inner cities' and little, if any, organised crime, apart from drug trafficking.

2. In practice criminal cases in the court of summary jurisdiction are heard by the High Bailiff, or his Deputy, who are equivalent to stipendiary magistrates, and not by lay justices.

3. The Manx court of summary jurisdiction has in some cases greater sentencing powers than a Magistrates Court.

The principal procedure is contained in s 16 Summary Jurisdiction Act (T) 1989 as amended by the Criminal Justice Act (T) 1991 with effect from 1^st January 1992:

(1) Where a person who has attained the age of 17 is charged before a court of summary jurisdiction with an offence triable on information, being an offence specified in Schedule 2,⁽⁶⁾ then, if at any time it appears to the court, having regard to any representations made by the prosecutor in the presence of the accused or by the accused, and to the nature of the case, that -

(a) the punishment that the court has power to inflict under this section would be adequate, and

(b) the circumstances do not make the offence one of a serious character and do not for other reasons require trial on information.

The court may proceed to try the case summarily.⁽⁷⁾

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Experience of the Manx Procedure

The Manx Probation Service has kindly made available statistics covering all cases in the Court of General Gaol Delivery from January 1990 to September 1998.⁽⁸⁾ There are no available statistics for the court of summary jurisdiction. The statistics provided indicate neither offence date nor date of first appearance in court. Consequently those cases referred in the period March to September 1992 inclusive have been excluded from analysis, because they may be subject to either the old or the new régime. There is therefore data for approximately two years prior to the change and six years thereafter.

Some caveats apply to this data:

• The description of offences is not always precise.
• It is not possible to be sure whether the charges listed remained constant.
• It is possible that lesser or amended charges may have been preferred, and some charges dismissed or not proceeded with.
• Sentencing data is general. Usually only a total sentence is given, and in the case of suspended sentences of imprisonment (which are relatively common),⁽⁹⁾ the term is often not specified. Where there are multiple offences of different kinds it is not always clear which was regarded as the primary offence, and whether offences attracted consecutive rather than concurrent sentences.
• In the earlier period there is nothing to indicate which of the either way cases were directed to be tried on information and which, if any, involved an election for trial.
• There is no indication of plea, so it is impossible to allow for discounts for pleas of guilty.

Broadly, practice on the Island as to concurrent and consecutive sentences, the totality principle and discounting for guilty pleas, reflects English practice.

For the earlier period there were approximately 23 either way cases per annum, and for the later period an average of 46. The increase is due to a substantial increase in drug related offences and offences against the person. Drugs offences were running at 4 per year and 17.5% of the total cases in the earlier period, and 14 per year and 33% of the total in the later period. Offences against the person were running at 3 per year and 13% of the total in the earlier period and at 12 per year and 27.5% of the total in the later period. By contrast offences of dishonesty have remained fairly constant, accounting for 10 cases per year and 43.5% of the total in the earlier period, and 12 cases per year and 30% of the total in the later period.⁽¹⁰⁾ There are no official statistics for all cases in the court of summary jurisdiction. One of the leading criminal practices on the Island estimates that it handles about 250 cases per year where the defendant faces either way matters, and in about 10% of these cases trial is before the Court of General Gaol Delivery. According to the Manx Law Bulletin (Manx Law Bulletin 1994-1999), members of this firm are recorded as acting in 43% of the 84 criminal cases reported for the period from January 1994 to March 1999,⁽¹¹⁾ and this is consistent with their apparent share of about 25 of the 46 either way cases actually heard in the Court of General Gaol Delivery. The best estimate we can therefore make is that there are in the region of 500 defendants per year to whom the procedure applies, and that of these 450 or so are dealt with summarily, and 50 or so on information. It is not entirely clear whether the increase in cases committed for trial reflects a similar growth in the overall number of cases or a greater proportion being committed. The change in pattern suggests the former. In addition the court dealt with 9 cases triable only on information committed during 1990 and 1991, and 76 from October 1992 to September 1998. This is an annual rate of 4.5 and 12.67 respectively. These are very small numbers but they tend to support the suggestion that there has been an increase in the volume of crime.

The overall sentencing outcomes for cases disposed of in the Court of General Gaol Delivery are as follows:

1990-91	Total Cases	Custody	Non-Custodial	Custody/Non-Custodial Percentages
Either Way	46	27	19	59/41
Information only	9	7	2	78/22
All Cases	55	34	21	62/38

1992-98	Total Cases	Custody	Non-Custodial	Custody/Non-Custodial Percentages
Either Way	257	223	34	87/13
Information only	76	60	16	79/21
All Cases	333	283	50	85/15

Several interesting points emerge from these figures:

(1) The use of custody remains constant in percentage terms across both periods for offences triable only on information. This suggests that there has been no major change in sentencing policy in the period under review.

(2) The overall use of custody has increased substantially in percentage terms, and this is due entirely to an increase in the use of custody for either way matters. In England in 1997 approximately 60% of those sentenced at the Crown Court for indictable offences received an immediate custodial sentence (Home Office 1998b, fig 1). This is very close to the 62% recorded on the Isle of Man in the period when the mode of trial régime was the same,⁽¹²⁾ although the rate of custody in England has in fact risen steadily from 40-45% in 1992 to 60% in 1997 (Home Office 1998b, fig 5). It may be seen however that the Manx court now uses immediate custody in a much higher proportion of cases. Indeed the percentage rate of custody for either way matters is now higher than for cases triable on information only. However there were three or four cases of causing death by reckless driving in 1993 and 1994 which attracted non-custodial sentences although triable only on information. These alone would have resulted in the custody rate rising to 84% if, as is currently the practice on the Island as well as in England, a custodial sentence had been imposed. The data does not allow conclusions to be drawn as to whether the greater use of custody is accounted for by greater offence seriousness.

(3) In England 18% of offenders charged with indictable offences were committed for trial in 1997.⁽¹³⁾ 72% of these committals in either way cases were directed by the bench (Home Office 1998b, para 9). The recent Home Office Briefing Note indicates that there were 47,000 directed committals in either way cases in 1998 and 18,500 elections, a similar percentage rate (Home Office 2000). Ignoring indictable only cases this gives a maximum figure of 13% overall⁽¹⁴⁾ for cases so directed. This compares with the tentative figure of 10% directed in the Isle of Man, and suggests that similar approaches are likely to be in use.

(4) There is a very low rate of acquittals reported for the Isle of Man. All that are reported are for the period 1994-8. 18 defendants facing either way matters and 4 facing offences triable only on information were acquitted. This is an acquittal rate of 6% over the entire period, or 7% for the period 1994-8, as it is possible that this reflects a change in reporting, since it seems unlikely that no defendant was in fact acquitted during the earlier period of four years. Clearly there are many factors at work here, including the prosecution policy of the police and Chief Prosecutor, and no direct comparison with England can be attempted. It is however noteworthy that the overall acquittal rate in the Crown Court in 1997 was 18% (Home Office 1998b, para 14).

While the overall figure for custodial sentences is some indication of whether or not cases are being properly committed, it is necessary to consider whether these sentences are within or outside the sentencing powers of the High Bailiff. The cases have been analysed to establish how many attracted a sentence exceeding 12 months immediate custody. This is the maximum sentence available in the court of summary jurisdiction where there are two or more offences tried summarily under s 16 Summary Jurisdiction Act 1989 by virtue of Summary Jurisdiction Act (T) 1989, s 24 (2). The normal limit is 6 months (s 24 (1)).

In some cases the offence itself carries a 12 months sentence.⁽¹⁵⁾ Those cases attracting 12 months, or 6 months for a single offence,⁽¹⁶⁾ were also isolated. There may well be cases which in the event do not attract a sentence beyond the powers of the lower court, but where this could not be reliably forecast. The lower court will not discount for a guilty plea; charges may be reduced; there may be substantial mitigation. These two groups of cases are those which, it can be said, are most probably ones which were rightly committed simply on grounds of gravity. Other cases which attracted lesser sentences may have involved co-accused with a lesser involvement or features justifying committal other than offence gravity.

Prior to the change there were 46 either way cases. 15 attracted a custodial sentence greater than the maximum in the court of summary jurisdiction, none attracted a sentence equal to the maximum, 12 attracted a shorter custodial sentence and 19 a non-custodial sentence.

1992-98	Sentence beyond powers of Summary Court	Sentence Equal to Summary Court Maximum	Shorter Custodial Sentence	Non-Custodial sentence(17)	Total
Drugs	58 (71%)	7 (9%)	12 (15%)	4 (5%)	81
Violence	40 (57%)	12 (17%)	11 (16%)	7 (10%)	70
Dishonesty	32 (42%)	12 (16%)	13 (17%)	19 (25%)	76
Others	15 (50%)	6 (20%)	5 (17%)	4 (13%)	30
Totals	145 (56%)	37 (14%)	41 (17%)	34 (13%)	257

It therefore seems that, on these figures, 70% of all directed committals resulting in conviction can be justified purely on the basis of offence gravity, and this rises to 80% for drugs offences. Only offences of dishonesty deviate from this pattern, with 42% of sentences apparently well within the powers of the lower court. These apparently unnecessary committals may of course be explicable on other grounds, as suggested above. This compares to 33% of committals justified purely on offence gravity in the earlier period.

There has since at least 1995 been a distinctive Manx sentencing policy in relation to drug offences, especially production and supply, and deterrent sentences are imposed (Todd v R [1993-5] MLR 330). The High Bailiff and his deputy will take account of this in mode of trial decisions in this field but there is no other evidence of any specific sentencing policies or any change in the type or seriousness of offences of other types which might account for the changes in the balance of sentences.

The statistics do therefore suggest that giving the lower court responsibility for mode of trial decisions significantly reduces the proportion of cases committed which could have been sentenced in the lower court. This lends support to the efficiency arguments being advanced by the Home Secretary. This does not however address the counter argument of principle. Here again Manx developments are instructive.

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Applying the Procedure: A Case Study

There is no Manx equivalent of the National Mode of Trial Guidelines Practice Direction (Mode of Trial: Guidelines [1990] 1 WLR 1439; [1990] 3 All ER 979, as amended in 1995) and therefore the High Bailiff is constrained only by the statutory words in deciding whether to accept jurisdiction.

There is however now a decision of the Manx High Court (Deemster Cain QC) on the interpretation of these provisions by way of a Petition of Doleance.⁽¹⁸⁾ The case is Petition of Hill ((1998) 30 Manx Law Bulletin 48).⁽¹⁹⁾ Mr Hill was an Incorporated Accountant who was charged with six offences of dishonesty. The total amount involved was about £4,700, and the alleged offences were committed against a client in the course of the defendant's profession. On 23^rd January 1998 the prosecutor requested summary trial. The defendant sought trial on information. The application is recorded in the High Bailiff's note produced for the purposes of the petition. The note is reproduced below:

Halsall (for the defendant): I seek trial by jury. A professional man. 40 years old. No previous convictions. Very serious matter. Serious breach of trust if convicted - proper sentence may exceed 12 months - R v Barrick ((1985) 7 Cr App R (S) 142).⁽²⁰⁾

High Bailiff: Barrick is authority for saying that sums under £10,000 may be dealt with by imprisonment varying from extremely short up to about 18 months.⁽²¹⁾ This is clearly well within that.

Halsall: See too s 16 (reads) - "if the circumstances do not make the case⁽²²⁾ of serious character". Implications for defendant are serious if he is convicted.

High Bailiff: I accept what you say, but I've dealt with many like matters summarily and I feel able to deal with this one. I accept jurisdiction.

The specific complaint was:

"That the High Bailiff having thus accepted Mr Halsall's submission that the circumstances made the offences ones of a serious character, was in breach of Section 16 (1) of the Summary Jurisdiction Act 1989 and he exceeded his powers in accepting jurisdiction and in the alternative acted in an unreasonable manner in refusing the application."

In an Affidavit filed for the purposes of the Petition the High Bailiff amplified his reasoning in the following terms:

"(I) I did not accept that the circumstances made the offences ones of a serious character within the meaning of s 16 (1) of the Summary Jurisdiction Act 1989. Nor do I accept that I have exceeded my powers nor that I have misdirected myself as to the relevant section of the said Act.

(II) I accept that the consequences for the petitioner if convicted could be serious and I accept that a serious breach of trust is alleged. Those matters do not to my mind make the offences of a serious character such as to justify trial on information. The only circumstance which it may be suggested takes the allegations away from a norm is that the petitioner is a professional person. A very high proportion of the persons convicted before me of offences, not only of dishonesty, suffer as to their business, professional (or occupational or vocational) status, reputation and liberty."

In his judgment Deemster Cain summarised the argument for the petitioner as having three limbs, all recognisable from English judicial review case law: firstly, if the High Bailiff was wrong in law; secondly, if the High Bailiff did not take into account matters which he should have considered in arriving at his decision, or alternatively took into account matters which were irrelevant; and thirdly if this Court considers that the decision of the High Bailiff was not a decision which a reasonable High Bailiff could have made or, put another way, it was a decision which was `truly astonishing'.

The first of these was not tenable; the law was correctly identified and the powers exercised clearly existed in law. So far as the second was concerned the Deemster concluded that the High Bailiff had considered the matter as set out in the affidavit. That is, he was accepting that the personal consequences were serious, but not that those personal consequences were something which would make the offences ones of a serious character. He had nevertheless applied his mind to, and only to the statutory criteria. The second limb also fell. This left the third limb, in effect that the decision to discount personal circumstances was `Wednesbury unreasonable'.

In addressing this issue the Deemster considered section 19 of the Magistrates Courts Act and also the English National Mode of Trial Guidelines Practice Direction (Mode of Trial: Guidelines) [1990] 1 WLR 1439; [1990] 3 All ER 979. The relevant parts of s 19 and of the guidelines are set out below:

"(1) The court shall consider whether, having regard to the matters mentioned in subsection (3) below and any representations made by the prosecutor or the accused, the offence appears to the court more suitable for summary trial or for trial on indictment.

(2) The matters to which the court is to have regard under subsection (1) above are the nature of the case; whether the circumstances make the offence one of serious character; whether the punishment which a magistrates' court would have power to inflict for it would be adequate; and any other circumstances which appear to the court to make it more suitable for the offence to be tried in one way rather than the other."

The Guidelines are in two parts, those matters which are generally relevant and factors relating to specific offences. The general factors are as follows:

"Certain general observations can be made: (a) the court should never make its decision on the grounds of convenience or expedition; (b) the court should assume for the purpose of deciding mode of trial that the prosecution version of the facts is correct; (c) the defendant's antecedents and personal mitigating circumstances are irrelevant for the purpose of deciding mode of trial; (d) the fact that the offences are alleged to be specimens is a relevant consideration; the fact that the defendant will be asking for other offences to be taken into consideration, if convicted, is not; (e) where cases involve complex questions of fact or difficult questions of law, the court should consider committal for trial; [Joint charges]; (f) in general, except where otherwise stated, either way offences should be tried summarily unless the court considers that the particular case has one or more of the features set out in the following pages and that its sentencing powers are insufficient."

The specific factors listed for theft are:

"(1) Breach of trust by a person in a position of substantial authority, or in whom a high degree of trust is placed; (2) theft or fraud which has been committed or disguised in a sophisticated manner; (3) theft or fraud committed by an organised gang; (4) the victim is particularly vulnerable to theft or fraud, e.g. the elderly or infirm; (5) the unrecovered property is of high value."

It should of course be noted that these provisions relate to the traditional mode of trial decision. They predate the plea before venue procedure, and certainly are predicated on the defendant having a right of election. They are therefore concerned only with indicating to magistrates those cases not suitable for summary trial in any event, even on a guilty plea. The judgment does not make this point explicitly, although Deemster Cain has personally confirmed to the author that he had this point firmly in mind.

Reliance is placed on five decisions of the Divisional Court: R v McLean, ex p. Metropolitan Police Commissioner [1975] Crim LR 289; R v Northampton MC, ex p. Commissioners of Customs and Excise [1994] Crim LR 598; R v Flax Bourton MC, ex p. Commissioners for Customs and Excise [1996] Crim LR 907; R v Horseferry Road MC, ex p. DPP [1997] C.O.D. 89 and R v Stamford MC, ex p. DPP [1998] C.O.D. 10, all of which were prosecution applications for judicial review of decisions to accept jurisdiction. In each case the basis of the application was that the magistrates had seriously underestimated the seriousness of the matters and their sentencing powers were inadequate. This was not the position in Hill. While the guidelines in Barrick indicated a custodial sentence, they did not indicate one of over 12 months. As Deemster Cain observed:

"However it is significant that paragraph (f) indicates that offences should be tried summarily unless, for example, there has been a breach of trust by a person in a position of substantial authority or in whom a degree of trust is placed, and that the sentencing powers of the court are insufficient".

The crucial question is whether these are indeed the sole matters to which the High Bailiff should have regard. One difficulty is that the Mode of Trial guidelines in relation to theft are tautologous. Absence of adequate sentencing powers is a specific ground for refusing jurisdiction both under s 16 and s 19, and in each case the offence being of a serious character appears separately as another specific ground. This implies that it is distinct, but in reality it appears to be a subsidiary aspect of seriousness. The factors listed are aggravating features which will tend to increase the sentence and may therefore alter the decision. This having been said, there is a crucial distinction between s 16 and the Guidelines which went unremarked. The latter say that the offence should be tried summarily unless sentencing powers are inadequate and aggravating features are present. The former gives jurisdiction to try summarily only where both sentencing powers are adequate and the other circumstances do not require trial on information. In other words there are two independent limbs in Manx law, or, to put it another way, the default position under the guidelines is summary trial, while in Manx law it is trial on information.

The guidelines and these cases do not consider when trial by jury is appropriate in the interests of the defendant. In England the interests of the Defendant who desires a jury trial are fully protected. If he pleads not guilty or reserves his plea mode of trial will be considered. If the magistrates decline jurisdiction jury trial is automatic, and if they accept jurisdiction the defendant may elect.

The judgment concentrates on the first limb of s. 16 (1) (b) namely "the circumstances do not make the offence one of a serious character" to the exclusion of the second "and do not for other reasons require trial on information". It is certainly arguable, as the High Bailiff and Deemster both held, that "offence ... of a serious character" requires an objective appraisal of the features of the offence, so the mere fact that the defendant would suffer particular embarrassment or humiliation if convicted is irrelevant. Thus a clergyman charged with affray after a drunken brawl cannot argue that his calling makes the offence more serious. The precise nature of the offences in Hill arguably constituted an aggravating feature: `theft in breach of trust', and made them objectively `of a serious character'. The judgment does not consider what is covered by "other reasons". In England it has always been argued that the need to allow those of good character trial by jury is the essential justification for election. The point was first made by the James Committee:

"A professional person of good character, if convicted of a minor offence of dishonesty for example, will suffer in reputation and may lose his livelihood, whereas for a person with a long record of similar offences the only penalty will probably be the sentence actually imposed."

This is cited by the Runciman Report, the Narey Report and by the Home Office in the Consultation Paper (Home Office 1998a). In his written Parliamentary reply, the Home Secretary stated (Straw 1999):

"But there will be safeguards. In determining where the case should be tried, magistrates will be required to have regard not only to any defence representations, but also to such factors as the gravity of the offence, the complexity of the case and the effect of conviction (as legislation already requires) and the likely sentence on the defendant's livelihood and reputation. Defendants will also be given an interlocutory right of appeal to the Crown Court against the Magistrates' decision on mode of trial."

The words in brackets should probably be before `the effect of conviction' as this is not a statutory consideration under s 19 (or mentioned in the Mode of Trial guidelines) precisely because it is at present a matter for the defendant to consider this when opting to elect or not.

The right of trial by jury is as deep rooted in Manx law as it is in English law. The Criminal Law Act (T) 1736 provides:

"That no Court, Judge, or magistrate within this Isle whatsoever shall have Power or Authority for the future to impose or inflict any Fines or Punishments upon any Person or Persons within the said Isle, for or on account of any criminal Cause whatsoever, until he, she or they be first convicted by the Verdict or Presentment of four, six or more men, as the Case shall require, upon some Statute Law in force in the said Island".

It was not until the mid-nineteenth century that Manx law acquired a significant summary criminal jurisdiction (Edge 1997, p 199). It cannot therefore be suggested that Manx law has a different understanding of the significance of trial by jury for the liberty of the subject.

Although, as is generally accepted, it is more the myth than the reality of Magna Carta which lies at the root of the reverence accorded to the jury, the reverence itself is by no means mythical. Blackstone stated (Bl. Comm. III 379.):

"Our law has therefore wisely placed this strong and twofold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogative of the Crown.... So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate."

Trial by jury is a constitutional right in the United States for both criminal and civil cases,⁽²³⁾ and this reflects the devotion of the Founding Fathers to the principles they believed enshrined in Magna Carta (Youngstown Sheet & Tube Co. v Sawyer (1952) 343 US 579; Currie 1988, pp 35-6, 50). In modern times the jury has been defended by, among others, Lord Devlin (Devlin 1966). Cases such as R v Ponting [1985] Crim LR 318 clearly indicate the continuing value of the jury (see also Allan 1992, pp 118-20). The James Report considered whether to allocate the decision on venue to the magistrates court, but decided not to do so, for the reasons cited above (James Report 1975).

These issues are not discussed in Hill. They were not seen as relevant. The decision of the High Bailiff was upheld.⁽²⁴⁾ This appears to send a very specific message about the nature of the discretion vested in the lower court when determining mode of trial. It is strongly arguable that the decision is wrong in considering only offence gravity and not expressly considering whether the effect on the defendant was capable of being `[an]other reason'. It appears implicit from both the judgment and the High Bailiff's affidavit that the impact on the defendant was tacitly considered but not held to be a relevant consideration. The wording of the English legislation will be crucial. It is likely that the presumption will be in favour of summary trial, and it is therefore essential that if the interests of the defendant and of justice generally remain relevant, they must be explicitly stated as criteria and clearly distinguished from issues of offence gravity.

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Views of the Manx Profession

A number of Manx practitioners were asked to comment on the acceptability of their system to themselves and, so far as they were aware, to their clients.⁽²⁵⁾ All expressed concerns about the operation of the mode of trial decision. One important feature was that the High Bailiff and Deputy High Bailiff knew the recidivist defendants, who accordingly feared that they would not receive a fair trial.⁽²⁶⁾ Another was that summary trial lacked the procedural safeguards of jury trial. There was some evidence that potential disputes on venue were resolved informally with the police and prosecutors by way of discussion and plea-bargaining. There was no consensus on whether the changes had achieved the desired objective of speeding up the process, or on whether sentences overall were higher or lower.

Conclusions

There appear to be three overall conclusions which can be drawn from the Manx experience to date. First, it seems that statistically, allocation by the court, where this comprises a legally qualified magistrate, appears to result in rational distribution of cases on the basis of seriousness. Secondly, the Manx experience shows that the criteria for trial on indictment must be clearly articulated. Finally, that experience indicates that impartiality of the lower court will be a particular problem in smaller courts.

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Bibliography

Allan, T (1992) Law, Liberty and Justice (Oxford: Clarendon).

Bridges, L (1999) Letter to The Guardian, 22nd November 1999.

Currie, D (1988) The United States Constitution (Chicago: University of Chicago Press).

Devlin, P (1966) Trial by Jury Hamlyn Lectures (London: Sweet & Maxwell)

Edge, P (1997) Manx Public Law (Douglas IoM: Isle of Man Law Society).

Hedderman & Moxon (1992) Magistrates Court or Crown Court? Mode of Trial Decisions and Sentencing (London: HMSO).

Home Office (1998a) Home Office Consultation Paper (1998), Determining Mode of Trial in Either-way Cases (London HMSO).

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Footnotes

(1) The indication (T) is used to identify an Act of the Manx Parliament, Tynwald.

(2) The Court of General Gaol Delivery sits `as required'. There is one Deemster normally available to sit and a jury panel is assembled specially for each trial.

(3) Custody three times more common in the Crown Court and sentences two and a half times as long in comparable cases.

(4) It is not the purpose of this article to reopen the debate on the relative value of the jury and magistrates, on which see Darbyshire [1991] Crim LR 740, [1997] Crim LR 627, [1997] Crim LR 861 and [1997] Crim LR 911.

(5) The Home Secretary has recently claimed that abolition of the right of election "would save the taxpayer over £100 million" (sic. per annum). Home Office Press Release 363/99, 19.11.99.

(6) This includes the equivalent of most common either way offences, such as actual and grievous bodily harm, offences under the Theft Act (T) 1981 and the Criminal Damage Act (T) 1981.

(7) This mode of trial enquiry cannot be conducted by a single lay justice: Summary Jurisdiction Act (T) 1989, s 5 (2).

(8) Date of referral to the Probation Service.

(9) Throughout the period under consideration, these have been available without special prerequisites, other than the requirement that custody would otherwise have been appropriate. See now the Custody Act (T) 1995, Sched. 1.

(10) All figures are rounded. The balance is made up of damage to property, indecency, road traffic and offences against the administration of justice. In some cases defendants faced a variety of offences of different types. Such offenders have been classed in relation to the preponderance of offences listed.

(11) These include summary cases, appeals and cases triable only on information.

(12) In fact, the English régime changed on 1^st October 1997, when the plea before venue procedure was introduced. This eliminates committal for trial in all cases where the defendant pleads guilty before the magistrates. There was an increase of 83% in the number of committals for sentence in the fourth quarter of 1997 (Home Office 1998b, Para 10).

(13) This figure is reduced by the removal of guilty plea before venue cases. It is not clear how this figure is split between either way and indictable only cases.

(14) I.e. 72% of 18%.

(15) E.g. offences under the Misuse of Drugs Act 1976 (T). Cf. s 24 (3) Summary Jurisdiction Act 1989 (T).

(16) Except where it was clear from the offence description that the offence carried 12 months on summary trial, when that period was used.(17) Including all suspended sentences.

(18) Manx equivalent of judicial review.

(19) The decision will be reported fully in the Manx Law Reports in due course. The writer has had access to a transcript of the judgment, and also, by courtesy of Mr Richard Halsall, Counsel for the Defendant, to the original pleadings.

(20) The standard guideline case for sentencing for dishonesty in breach of trust.

(21) The learned High Bailiff did not seem to be aware of Clark (1997) The Times 4.12.97, in which the Barrick guidelines were updated to take account of, inter alia, inflation. Nothing of substance, however, turns on this.

(22) Sic: the actual words are `the offence one of a'.

(23) The Sixth and Seventh Amendments respectively to the Constitution. The Fifth Amendment, as well as guaranteeing the right to silence, also requires the presentment or indictment of a grand jury in `a capital or otherwise infamous crime'.

(24) Although when the matter came on for trial, the prosecution discontinued the case after a reassessment of the strength of the evidence.

(25) This was done by means of a questionnaire circulated to all criminal practitioners with the co-operation of the Convenor of the Duty Advocate scheme, supplemented in one case by a telephone discussion.

(26) This unease is compounded in the case of the present Deputy High Bailiff by the fact that he was formerly the chief prosecutor, and knew many defendants in this capacity.