Jury trial is part of English identity. Of course it’s under attack

England is an old country and, like most old countries long unafflicted by civil war or revolution, has a settled way of life that relies heavily on centuries of custom and practice. Sometimes, those customs and practices have been regulated by statute to conserve them. Thus it is with trial by jury, an ancient custom and practice that, in one form or another, dates back over a millennium, to the era of the Danish invasions.

England has exported this system around the world. When the hyenas of the fascist Left denounce the British Empire, pretending it was an exercise in relentless wickedness, the idea of trial by jury is one of the benefits of it they conveniently forget. The Danes brought it to England in the 9th or 10th centuries, with 12 significant men in each district being asked to investigate any breach of the law and rule upon it. A century or so after the Norman Conquest, Henry II introduced juries similar to today’s, first to decide on disputes over land, and later on alleged crimes.

In 1215, the Church repudiated the hitherto predominant form of trial by ordeal. Later that year, the right to trial by jury was established unequivocally in Article 39 of the Magna Carta: “No free man shall be captured or imprisoned or disseised of his freehold or of his liberties, or of his free customs, or be outlawed or exiled or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers or by the law of the land.” 

By the middle of the 14th century, in the time of Edward III, it had become the custom and practice of England to operate the law of the land – or as it had become, the process of law – through juries of 12 men.

There are great differences between those juries and those of modern times – women have sat on juries since 1920, and the 1974 Juries Act abolished the property qualification for jurors, making anyone on the electoral register liable to serve instead of just ratepayers. But perhaps most significantly, in medieval times, jurors had to investigate the cases before them. Now, we have the police and the Crown Prosecution Service to do that, though neither appears entirely fit for purpose, creating deficiencies in the criminal justice system far more serious than those presented by juries.

Another landmark came in 1670, when an Old Bailey judge locked up a jury indefinitely, without food or water, for delivering what he considered to be the wrong verdict in a case of unlawful assembly involving William Penn, the founder of Pennsylvania. The Lord Chief Justice of the day acted wisely to save the integrity and independence of the jury system – he ruled that all a judge could do was “try to open the eyes of jurors, not lead them by the nose”. From then on, the jury system seemed safe.

Most criminal cases do not come before a Crown Court, and therefore a jury. Those deemed lesser offences – by Parliament, by legal precedent, but also, because we live in a democracy, by popular consent – are tried by magistrates. Ninety per cent of criminal cases in England are dealt with in this way. The other 10 per cent – offences of greater gravity – can, if a plea of “not guilty” is entered, go before a jury. However, only 3 per cent of trials are contested. 

There remains a right for alleged lesser offenders to seek a jury trial, too. That right can be, and sometimes is, manipulated by those seeking publicity for a cause (climate change agitators have done this after illegal protests), but to stop that would risk throwing the baby out with the bathwater.

The present controversy about limiting trial by jury concerns the lower end of the range of offences currently requiring it. Last month, a leak from the Ministry of Justice suggested restrictions on this supposedly hallowed aspect of our justice system. Only the most serious crimes, such as murder and rape, would merit juries. This was subsequently toned down to restricting jury trial to offences carrying a probable sentence of three years or more.

Also, offences that can currently be tried in either a magistrates’ court or a Crown Court would be confined to the former or to a newly created judge-only Crown Court. Magistrates may currently award a maximum custodial sentence of one year – the proposal is that they should be allowed to impose up to two years.

Decidedly un-English proposals

This is where the consent of the public, and the consequent respect for the rule of law, kicks in.

To many of us, even those who sincerely deplore the criminal classes, allowing a magistrate to imprison someone for two years begins to sound decidedly un-English. Give him, or her, two years by all means, but on the back of a decision by a jury of his or her peers, not on the decision of magistrates, however well-advised and however well-considered. It is just not how we do things, especially when the liberty of the subject is at issue. Some neighbouring countries dispensed with juries long ago, but their traditions and sometimes their values are not ours.

David Lammy, the Justice Secretary, justified this challenge to 1,000 years of history by saying it would ease the burden on the English criminal justice system, which many judges and lawyers regard as being careering towards collapse. The case of someone charged with crimes today might not come to court until 2029. By then, the backlog of cases, currently around 70,000, could be over 100,000. Lammy contends that denying a jury trial to many who previously would have had one would speed the system up and cut the backlog.

Many in the legal profession, and outside it, disagree.

The Criminal Bar Association and the Bar Council (which called the proposals “draconian”) have objected. In the House of Commons, Lammy’s colleague, Diane Abbott, attacked him. Interestingly, Lammy – whose perceived lack of grip has provoked numerous disobliging remarks during his undistinguished 17 months in the Cabinet – actually disagrees with himself. 

In 2020, when it was suggested during the pandemic that jury trials might be scrapped (and much of the current backlog stems from the closure of many courts in that period), he said such a course would “damage democracy”, and that juries were “fundamental” to justice. His fears were, it seems, that judges might suffer from unconscious bias and racism. Manifestly, such fears have been allayed, though the logic behind both his change of mind and this radical proposal has not been elaborated.

Equally, many jurists doubt the initiative was Lammy’s. His reputation for failing to master his brief precedes him. He is assumed to be the puppet of his civil servants, who are acting on the findings of Sir Brian Leveson’s recent independent review of the criminal courts. Sir Brian suggested three ways of reducing jury trials: by limiting the eligibility of trial by jury to certain cases; by having a new form of court – an intermediate stage between the magistrates and the Crown Court – established in which a judge and two magistrates would try a case; and in the most complex cases, such as fraud, a judge would sit alone.

Proposals will only minimally reduce the backlog

At present, Crown Courts sit for around 110,000 days a year. Sir Brian estimated that limiting trial by jury would save between 4,000 and 5,000 days – a meagre percentage of the total sitting time. Therefore, compromising long-standing custom and practice would, even according to this authoritative survey, only minimally reduce the backlog. Indeed, given the projected increase in that backlog, the delay might not be reduced at all.

Crown Court cases in which a not guilty plea is entered currently require juries. They generally take longer than magistrates’ cases, but not necessarily because they include a jury. They are usually more serious cases and, therefore, often contain more complicated legal issues and a more detailed consideration of extensive evidence. In rare instances, a judge can already suspend a jury trial and try the case himself. This happens when there are attempts to interfere with or intimidate a jury, but such cases are extremely rare.

In recent years, the number of cases requiring trial by jury has risen because governments, often for political reasons, have increased penalties for certain offences, and have made them too serious to be tried by magistrates. One example is the offence of assaulting a member of the emergency services, which now carries a maximum prison sentence of two years instead of 12 months. The last government brought this in partly under pressure from the Police Federation, but also from MPs of all parties because of a substantial increase in assaults on paramedics during the pandemic.

However, the main reason the Government is contemplating restricting jury trials to deal with the backlog is its reluctance to spend money improving the courts system. We need more courts, more judges, more lawyers and more court staff. Sir Brian called for more pupillage funding for young barristers, as well as more rapid payment of lawyers. However, as criminal lawyers maintain, it is the low earnings – “crime doesn’t pay” – that results in too few lawyers in the system, causing delays.

The pandemic closures certainly aggravated the backlog, but part of the problem, too, is the police’s utter failure to prevent crime, and society’s failure to prevent criminals. The Government chooses not to confront what Sir Keir Starmer, before backing down on reform this summer, has called the moral question of excessive welfare. This is why it cannot spare the resources for more courts, more judges and more lawyers. Restricting jury trials, and compromising liberties in the process, is simply tinkering at the margins of this vast and under-appreciated problem.

Sir Brian, jurists argue, has failed to make a case in principle for restricting jury trials. He has taken no account of the system’s place in the traditions of our criminal justice system, or its role in supporting public confidence in the rule of law. His objection to juries is entirely technocratic – for example, citing that one factor making Crown Court trials last much longer is the abundance in some cases of evidence harvested from mobile telephones and other digital devices. Why judges and magistrates are guaranteed to absorb, analyse and compute such evidence any more quickly than 12 men and women on a jury is not specified.

The problem is far deeper than this, and limiting jury trials would not solve it.

Data compiled by the Institute for Government (IfG) shows that 227,157 hours were spent on jury trials in 2024. Far from being an unmanageable increase, this compares with 293,595 hours in 2016. The problem is nothing to do with juries, but with what the IfG calls a “productivity crisis”. Courts are dealing with 10 per cent fewer cases than in 2016. Fewer trials are being scheduled, and more trials are subject to last-minute cancellations, not least because the police and the CPS are so incompetent in correctly handling matters of disclosure.

The IfG did find that cases are now slower to conclude – on average taking 12 per cent longer than in 2016 – but it is not clear that that was the fault of juries. The most alarming statistic is that if Crown Courts were getting through as many trials per sitting day as they were nine years ago, there would be 6,000 more trials per year than there are now, or 40 per cent more – 19,534 trials compared with an actual 13,332.

Wider problems left unaddressed

The IfG concluded that other problems must be addressed: “Not having enough lawyers, poor physical and technological infrastructure in courts, problems with moving prisoners both to and around court buildings, inexperienced and/or insufficient court staff.” 

Lawyers testify that there are hundreds of unused courtrooms around England, either because of the shortage of judges to sit in them or because they are in a poor state of repair. All of this costs money that the Government prefers to spend on its clientele, as Chancellor Rachel Reeves showed in last month’s welfare-boosting Budget. There is not the slightest sign that the Ministry of Justice is even contemplating such a programme to improve productivity. Instead, the easy option is for Lammy to simply swallow what his civil servants tell him without apparently questioning it, and to dilute one of the fundamental aspects of our tottering criminal justice system.

It may be inconvenient that defendants can insist on a jury trial, even just to be deliberately disruptive. But the risk of limiting trial by jury in cases where it has been the custom to have it is that public confidence in the rule of law, fairness and justice will be undermined, something a democratic and free society cannot afford. The defendants in such cases, and the public, may not have confidence that a judge alone, or a judge and two magistrates, will come to the same conclusions about guilt or innocence as a jury of 12 of the accused’s fellow citizens might. There is a danger that they, and others, will interpret the justice that is done as class justice, dispensed by an elite.

Lammy should remember two profound considerations. Firstly, that without the rule of law, the options are anarchy or dictatorship, and the English people would not relish either. Also, the jury is, as one eminent KC puts it, “the only democratic instrument in our justice system”. It requires citizens to participate in a vital aspect of English life – it involves them seriously in civic matters, and it ensures that the dispensing of justice is not confined to an elite. Does Lammy believe in diversity, or is that just all talk?

Juries are not perfect. Much of the way in which we order our lives in England is not, but it works better than any alternative, and we stick with it. If perfection were a requirement, we should long ago have discarded general elections, Parliament, the monarchy and other institutions that define our way of life and, more important still, what we consider to be our values. 

We have confidence in such things despite their flaws, and so it is with the jury system. It is bureaucrats, manipulating an unintelligent cabinet minister and following the lead of a technocratic judge, who want to remove jury trial from many cases in which it has operated since time immemorial. Those advocating this change regard affection for, or belief in, such an ancient system as mere sentimentality.

But we are not a technocracy – we are an old country, with all that that entails. The jury system, as we understand it, is part of our established social fabric. We have confidence in it and prefer no other way of dispensing justice in serious criminal cases. Never mind all the lawyers who abhor these proposals – the people of England instinctively reject this threatened interference with their ancient liberties. So must Parliament.

[Source: Daily Telegraph]