June 17: Less serious crimes should be tried in crown courts before a judge without a jury in order to tackle the thousands of cases building up during the pandemic crisis, UK’s judges have suggested.

The proposal emerged as the justice secretary, Robert Buckland, told MPs that the backlog in the criminal justice system in England and Wales had grown to around 41,000 cases, The Guardian reported.

There have been various suggestions to deal with the accumulation of untried criminal cases. Only a small proportion of crown courts are sitting, with jurors and court staff often spread out over three courts and linked by video in order to observe physical distancing requirements.

On Tuesday, the lord chief justice, Lord Burnett of Maldon, told BBC Radio 4’s Law in Action programme that one option was for less serious crimes – categorised as “either-way offences” – to be heard by a judge sitting with two magistrates (instead of a jury) if the backlog continues to accumulate.

Separately, the suggestion of a judge sitting alone on either-way cases is supported by some members of the judiciary and lawyers. It is a permutation that would involve changes to only a portion of cases.

The Ministry of Justice is considering whether to hire larger venues to create special “Nightingale” emergency courts. Other suggestions include: smaller juries as were used during the second world war; allowing defendants to opt for a judge-only trial; or making all trials judge-only for a period.

Criminal cases normally fall into one of three categories: the most serious, which are triable only on indictment in the crown court; the least serious that can be tried summarily in magistrates courts; and those triable either in a magistrates or crown court.

Either-way offences include the bulk of middle-ranking criminality, such as theft. These cases are usually sent to the crown court because magistrates consider their sentencing powers to be insufficient or a defendant thinks his chances would improve before a jury.

About two-thirds of cases sent to the crown court are for either-way offences. Allowing trial-by-judge alone in these cases would significantly shorten the backlog – because such trials would be much quicker than jury trials and, mostly, only one courtroom would be required.

Described as a partial relaxation of the normal rules, the proposal anticipates that the number of applications to the court of appeal might increase. Judges assessing applications, however, would have the trial judge’s explicit reasoning to help in deciding whether an error has been made.

Because either-way offences are generally less serious than indictable-only offences, greater use could be made of recorders – part-time judges. That would release permanent judges to try the most serious cases with juries. Many recorders have lost income while most court work has been suspended.


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