It has frequently been observed that one of the most interesting things about jury trial is how infrequently it takes place given the enormous significance with which it is vested by the public, politicians and legal profession. For instance, in England, trial by jury takes place in just over 1% of criminal cases and in Scotland, the equivalent figure is just under 1%, yet the institution manages to maintain immense political and symbolic importance. It is not my purpose here to discuss this paradox. [1] Rather, I wish to outline the various mechanisms that are adopted in order to limit the number of jury trials. I shall illustrate my discussion primarily with examples from England and Wales and from Scotland, simply because these are the two jurisdictions with which I am most familiar. It is interesting to note in passing that, in the main, the devices used to restrict the number of jury trials are generally regarded as legitimate, despite the fact that in numerical terms their impact is obviously so drastic. It is only occasionally, usually in the context of a proposal further to limit the number of jury trials, that such mechanisms are challenged. Unfortunately, it is beyond the scope of this short paper to explore how it is possible to maintain the legitimacy of the rules which deny a jury hearing to the vast majority of those accused of crime against an ideological background which places such significance upon the benefits of trial before a jury.

In most jurisdictions, procedural criminal law dictates that only a small minority of serious crimes are eligible for trial by jury. Otherwise, the criminal justice process would simply not be able to cope with the volume of work and the expense would be inordinate. For instance, in Scotland, the common law crimes of murder, rape and one or two other much rarer serious offences, such as treason, must be tried before the High Court - the highest criminal court - where the judge always sits with a jury. There are then a wide variety of less serious common law offences, such as assault, house-breaking, theft, etc, which may be heard under either solemn procedure - in the High Court, or in the Sheriff Court before a sheriff sitting with a jury - or, alternatively, under summary procedure - in the Sheriff Court before a sheriff sitting without a jury, or in the District Court before one or more magistrates. As regards statutory offences, very few of these require prosecution under solemn procedure and thus guarantee trial by jury; some are triable ‘either-way’ - to adopt the English terminology, but the majority - for example, most road traffic offences - may only be prosecuted under summary procedure, thus avoiding the involvement of a jury. [2]

There are two principal ways in which the prosecutor may play a role in determining the proportion and number of jury trials.

In some jurisdictions, the court has a say in determining whether there should be the possibility of trial by jury. In Scotland, the court has no such right. As noted above, where the law leaves the issue open, it is solely the prosecution which decides whether the case should be prosecuted under summary or solemn procedure and the Scottish courts may not decline jurisdiction. In contrast, in England and Wales, all cases start in the Magistrates Court and as regards ‘either-way’ offences, initially the magistrates must determine whether to accept jurisdiction or to commit the case to Crown Court for trial before a jury. Both the prosecution and defence have the right to make representations as to the mode of trial. In making their decision, the magistrates will take into consideration the nature of the case, their sentencing powers, various other factors set out in the relevant legislation. [11] As the next section will explain, the English defendant has traditionally had the right to veto a decision by the Magistrates Court that it may appropriately hear a case.

Again, whether the accused has a say in determining the mode of trial varies from jurisdiction to jurisdiction, although to give the accused such a right is relatively uncommon. In this respect, Scotland is typical. As explained above, the venue is entirely in the hands of the prosecutor subject to the constraints imposed by the law. In contrast, in England, the accused has the final say in ‘either-way’ cases as to whether his trial will take place before a jury or not. If the Magistrates Court is prepared to accept jurisdiction, it is then up to the accused to decide whether he is content to be tried there or whether he wishes his case to be heard by a jury. Effectively, therefore, the accused can insist on trial by jury as regards a large number of relatively minor offences. Recent governments have been trying to curtail this right, again largely for reasons of resource but such attempts have met heavy resistance as an alleged attack on the civil liberties of defendants. [12]

Thus, for the purely practical reason of conserving resources, there are various ways in which the number of jury trials is limited to a very small minority of all criminal cases. Most jurisdictions adopt various combinations of these methods but the resulting mixtures vary widely. At risk of generalising, the present trend in the common law jurisdictions is towards further reducing the number of jury trials by increasing the scope of these limitations. Such attempts to cut costs are often very controversial and are frequently portrayed as an attack on the integrity of the institution of trial by jury. Each jurisdiction, almost inevitably, tends to assume that its present practice represents the natural or right way of determining which cases should go to trial by jury and that any change, albeit an adjustment which mirrors practice elsewhere, is illegitimate. This is illustrated by, for instance, the current debate in England over the proposal to abolish the ‘right’ of the defendant to elect jury trial (see above) despite the fact that this ‘right’ does not exist in most other jurisdictions. This and other similar controversies do, however, illustrate that the gap between jury practice and jury ideology can be difficult to manage because the legitimacy of the varying regimes that serve to limit trial by jury to such a small proportion of criminal cases are, for obvious reasons, always vulnerable to challenge.