The Rt Hon David Lammy MP (the Deputy Prime Minister, Lord Chancellor and Secretary of State for Justice for the United Kingdom), whose work is often admirable, has made a fatal misjudgement with his proposed reforms to the UK’s jury system.
His reforms aim to remove juries from all trials except those carrying a custodial sentence of more than three years, in order to reduce the backlog in UK courts.
A key principle of trial by jury is that you cannot be punished “except by the lawful judgement of his equals”. This principle of our justice system originates from Clause thirty-nine of the Magna Carta. There are multiple reasons for this concept to exist. Firstly, it limits arbitrary abuse of power from the state. Judges aren’t meant to decide guilt, their job is to explain the law to the jury, oversee the case and sentence once a verdict is given. Secondly, a twelve-person jury is intended to represent a cross-section of society, helping to ensure fair verdicts.
Removing the jury in every case except for those deemed to be the most serious removes the check on state power that juries provide. It removes that extra democratic process.
Another risk is that the state could abuse its power if it were able to influence or control judges. Extra safeguards for this (not just the Security of Tenure from the Constitutional Reform Act 2005 that protects judges from fears of government dismissal) would have to be put in place for this.
The case of R v Ponting (where the defendant released documents about the sinking of ARA General Belgrano) is an example of a case where the defendant was guilty by the letter of the law, but he was acquitted. The strict application of the law was rejected on grounds of morality and the public interest. This choice would disappear under the proposed reforms.
It could be argued that most criminal trials already have no jury. Magistrates’ Courts hear most criminal cases (every criminal case starts there, before being sent to the Crown Court for indictable offences and triable either-way cases where the defendant exercises their right to be tried by their peers). However, there are two obvious distinctions.
The first is that magistrates aren’t legal professionals. While they undoubtedly have experience in hearing cases, they still represent members of society – one of the key principles of trial by jury. This is something that would be lost under trials heard just by judges. These new cases are proposed to be heard by one judge; this leaves no room for discussion. There is something intrinsically troubling about one person determining both the facts of the case and the application of the law.
The second is that these trials are only for summary offences (or the triable either-way cases) which are minor, so the use of a jury cannot be justified for something that can be viewed as less serious. Under Lammy’s proposed reforms, the most serious of cases will still have juries sitting on them. Although, there is something uncomfortable about raising the limit on cases that we don’t consider important enough to have a jury just to cut waiting lists. Are these offences no longer serious? While it may only be for cases with sentences of under three years (or complex financial crimes), there is something unnerving about altering this limit. These will not be quasi-criminal offences that he is no longer deeming important enough to have a jury. Someone facing up to three years in prison could lose a right that has existed since the thirteenth century: the right to be tried by their peers.
Now, it has been cited that this is to cut waiting times for cases. Victims shouldn’t wait years to get justice. From my own experience in the gallery of my local crown court, I have listened to cases where the alleged offences have taken place four years ago. There is certainly a problem. Despite this, there are many experts within the legal sector who completely reject these proposals on the basis that they won’t help the issue of long waiting times. An example of this is The Bar Council – a policy organisation representing barristers in England and Wales – that has outlined the perspective that juries are not the issue. The simplistic assumption that removing jury trials will reduce waiting times is misguided. While jury trials can take longer, the real issues causing the backlog are: significant underfunding, which is unavoidable due to economic pressures facing the UK; a lack of available judges, which wouldn’t increase if juries were used less frequently; and a limited court capacity, which once again won’t increase without direct changes being made to it. These issues have come about as previous governments have slowly gutted our court system. It would be amiss to not mention COVID-19 as being another significant factor. It has certainly increased the backlog, but this is simply something that couldn’t have been managed any other way. The changes proposed to juries wouldn’t go far enough in the right direction (if they’re even in the right direction) to reduce the backlog.
The obvious alternative to these reforms is to increase the number of judges. With more available judges, more cases can be heard. This isn’t as straightforward as it sounds. Judges don’t grow on trees and there isn’t the funding to significantly make a difference. Incremental changes to the administrative processes would chip away at the backlog – but not solve it. The Leveson Review, published last year, offers more cautious proposals rather than broader cuts but it could be argued that these changes would still not go far enough.
Truthfully, Lammy has a near-impossible problem with no clear, easy solution. I cannot provide a quick-fix – no one can. Reform is essential, but I do think that Lammy is going down the wrong path.
To conclude, while fourteen years of neglect from the Conservatives has pushed the UK’s court system to the breaking point, Lammy’s proposed jury reforms are a step in the wrong direction. However, they are a step along a path for which there are no easy answers.