The Doughty Street Chambers founder sets out his argument in his paper ‘For mercy’s sake’, written pro bono for the Bar Council and published this week as the Courts and Tribunals Bill reached committee stage.
He argued plans to remove jury trial unless the potential sentence is at least three years in prison ‘bodes ill for court timetables, which will be clogged by preliminary hearings of considerable length—mini trials, in effect, to predetermine the likely sentence’. He questioned how the courts could know the likely sentence without first hearing the evidence.
He warned of increased delays if the government goes ahead with its plan to make all complex or lengthy cases judge-only ‘if the court considers this appropriate, unless to do so would not be in the public interest’. He argued: ‘These are not questions which courts have previously considered: they will, over many prehearing days, have to hear the evidence and argument on both sides in each case and deliver judgments which will take time to write and are likely to be appealed (the draft Bill wrongly attempts to block any appeal, but this may not be acceptable to MPs and probably not to the House of Lords).
‘In every such case there will be pre-hearings, and further time allocated for judgement writing. The Bill does not even indicate what amounts to a “lengthy” case or a case that is “complex”. It will require no doubt lengthy pre-trial hearings to decide whether cases lasting more than a week are “lengthy” and whether all fraud cases are “complex”.’
Moreover, judges would need to write a judgment in every case tried without a jury, using up more judicial time, Robertson said.
