The Government has done something novel as part of a consultation. It has actually released a draft bill for purposes of consultation. This allows people to give feedback on precise details. The bill is based on the criminal procedure simplification project, so will be controversial within the legal profession.
The bill divides offences up into five categories of seriousness. They are:
- punishable by fine only
- punishable by a maximum term of imprisonment not exceeding 3 years
- an offence punishable by a maximum term of imprisonment of more than 3 years that is not a category 4 or 5 offence
- an offence listed in Schedule 1 of the bill (rape, wounding, kidnapping, arson etc)
- an offence listed in Schedule 2 of the bill (murder, treason, MP corruption, slave dealing etc)
It is proposed that the first two categories be dealt with by way of judge only trial. No Right Turn is hotly against this, and says it is a breach of the Magna Carta. He concedes that minor offences do not currently have a right for jury trial, but says a punishment of three years is not minor.
The current law does not allow jury trials for charges where the maximum term is less than three months, so in effect the proposed change is to move the threshold from less than three months maximum, to a three year maximum.
I blogged back in May on this, and listed the offences I could find that would then be tried by a Judge only. They include indecent acts in public (two year max), aggravated assault (three years max), assault with intent to injure (three years max), assault on a child or female (two years max), and theft of less than $1,000 (1 year max).
I am comfortable with the threshold lifting from less than three months, but am not sure if three years is about right or too far. So I did some research.
First of all I thought, what do people actually charged with these offences end up serving. It is almost impossible to ever get the maximum sentence.
The percentage of convictions for an offence listed above, that even got a custodial sentence was very low – ranging from 3% for minor assaults to 15% for male assaults female. This is from Stats NZ 2008 stats.
Then we go to the Ministry of Justice conviction and sentencing report for 2006. Of the 15% who get a custodial sentence for male assaults female, the average prison term is six months. With parole it means out in three months. So 85% get no prison term, and 15% serve an average three months in jail (and these are probably people who have dozens of offences chalked up by then). Is that serious enough to need a jury trial, considering the delays that mean for the victim?
A minor assault has an average prison term of just 1.9 months, so on average out in 30 days.
For theft, only 6% of convictions get a custodial sentence, and the average sentence is 5.6 months so out in 90 days.
Only 2% of cannabis use convictions are custodial, and the average sentence is 0.9 of a month.
Now I have not checked every single offence with a maximum penalty of three years or less, so I am open to persuasion that a threshold of two years or even one year could be more appropriate, but for the most common offences, the resulting penalties are overwhelmingly non-custodial.
The Minister estimates this change would reduce the number of jury trials by around 1,000 a year. It would be useful to have that broken down by type of offence, so one could see what different it would make to have the threshold at say two years instead of three.
Finally, I was interested in what other OECD type countries do – where do they draw the line?
- France – jury trials reserved for most severe crimes only
- US – Supreme Court has interpreted the constitutional right to trial bu jury as only applying to offences with a maximum sentence of six months or more
- Australia and UK – no threshold as far as I can tell
- Austria – serious criminal cases only
- Belgium – grave crimes only
- Canada – only for crimes with a maximum sentence of five years or more
- Germany – no juries, but lay judges alongside professional judges
- Greece – a panel of three judges and four lay jurors
- Italy – only for serious crimes like murder, and a panel of 2 judges and 6 laymen
- Japan – From May 2009 jury trials resume but only for severe crimes
- Singapore – death penalty cases only
- Israel – no juries (as British did not trust the locals)
I find it interesting the countries with a jury made up of judges and lay people. Do teh Judges dominate the lay members of the jury?