David Lammy, the Justice Secretary, recently proposed changes to the criminal justice system to reduce the use of juries in criminal trials. The proposals have elicited strong condemnation from a range of different parties. They seem to have united a strange coalition of extremely liberal rights advocates and extremely conservative traditionalists. Some accused Lammy of mounting “an attack on democracy”, while Robert Jenrick, the Shadow Justice Secretary, accused Lammy of tearing up Magna Carta, despite King John beating him to that particular accolade by over 800 years. The responses reveal a sentimental, almost emotional, attachment to trial by jury in the UK. They speak to the centrality of the trial to the UK’s adversarial system of criminal justice and perhaps to a deeper cultural mistrust of state institutions within the UK. Trial by jury is often portrayed as a bulwark against tyranny and a safety valve in the legal system. Proponents of it point to instances where the law was broken, but juries nonetheless acquitted the defendants because they felt the charges brought against them were unjust as evidence of their necessity and virtue. The jury is presented as the last defence against a tyrannical state.
Yet, many of the responses reveal a misty-eyed nostalgia for a criminal justice system that does not exist in the UK, and probably never has. The UK has always had a diverse range of methods to determine criminal liability from trial by ordeal to an entire separate branch of church courts dispensing justice to (very loosely defined) members of the clergy. Reducing the use of jury trials can’t reasonably be characterised as some kind of profound shift, where justice is in the hands of the establishment and not the people. This is because the vast majority of criminal cases already never get anywhere near a jury and are instead dealt with by lay magistrates with no requirements of specialist knowledge of the law, let alone criminal law. Indeed, under Lammy’s proposals to reduce jury trials for either way offences (i.e. ones that can be tried either in Magistrates’ courts or the Crown Court) it is possible that none of the affected cases would ever have had a jury trial in the first place. By definition all of the cases could have elected to have their cases heard either way – by magistrates or in the crown court with a jury. If juries are meant to provide an integral safeguard against the biased power of the state, where is that safeguard for the thousands of people tried with summary offences in magistrates court every year? That does not seem to concern the advocates of trial by jury.
If one accepts that summary trials are a legitimate part of common law criminal justice systems, as even countries with written, entrenched constitutional protections of trial by jury do, then we are merely haggling over the point where the line should be drawn. The criticisms of Lammy’s proposals ring particularly hollow here considering proposals to move that line have been explored by governments of all stripes since the early 1990s, with restrictions on their use in fraud cases even making it into legislation, only to later be abandoned. Proponents could argue that a distinction can be made, that the right is only triggered for particularly severe offences with long custodial sentences, but that is also what the current proposals intend to do. As for the idea that it is an attack on democracy itself, such an argument is predicated on the idea that trial by jury is an integral part of democratic government, which is clearly disproven by the countless democratic states that do not have any trial by jury. Are they somehow less democratic because of it? I think not. As such, I don’t believe critiques of Lammy’s proposals based on the idea that it is somehow undemocratic to reduce trial by jury or that trial by jury in its specific current configuration is integral to the UK’s criminal justice process are sustainable. The real problem with Lammy’s proposals is that they are simultaneously wrong and dangerous.
It’s clear that the justice system is in a parlous state with a backlog of over 78000 cases pending in the Crown Court and trials taking many years to come before the courts. It is not fair on victims or defendants and clearly something has to be done about it. If we are truly motivated by a desire for fairness and justice, delay is a profound enemy of both. Lammy’s proposals to reduce jury trials are problematic because they are a kind of halfway house between a more traditional common law approach and a more continental-style criminal justice system. Lord Leveson originally proposed the creation of a ‘Crown Court (Bench Division)’ with a judge sitting alongside two magistrates and no jury that could hear all “either way” offences. Under Lammy’s current proposals, a single judge, with no accompanying magistrates, will hear a much broader range of cases with capacity to impose higher penalties. The risk of bias may increase significantly under this approach and it’s not offset in the proposals either by adopting a more continental-style panel of judges approach (akin to that proposed by Leveson) or retaining a jury for cases attracting a significant penalty.
The approach is also the wrong solution because jury trials do not appear to be the cause of the backlog of cases within the criminal justice system. The causes of the backlog lie elsewhere, in years of under-funding through austerity, archaic systems, legal aid cuts, Covid and a host of other factors. The solutions to the backlog appear much more prosaic and mundane: reclassifying offences, modernisation of procedures and technology and perhaps, dare one say it, a reduction in penalisation and criminal justice “solutions” to social problems in a country with the highest incarceration rate in Western Europe. While reducing jury trials might help at the margins and there might be some merit in the “every little helps” approach, it is clearly preferable to pursue other reforms before jumping to restrictions on rights.
While pinpointing fundamental constitutional rights in the UK can be challenging, a right to a trial by jury (in some form and at some level) is clearly identifiable. It is referred to in Magna Carta, The Act for the Abolition of the Court of Star Chamber 1641 and clearly runs through other common law jurisdictions under the influence of the UK’s legal norms. It is reflected in the US Constitution’s 6th amendment and Article 38 of the Irish Constitution among other sources. However, the protection of fundamental rights under the UK’s constitutional system differs significantly from those examples. As I have written elsewhere (in a recent article in Public Law), fundamental rights protections under the UK’s constitution are extremely vulnerable. Just because a right is long-standing in UK law, does not mean that it is immune from change or even repeal. Fundamental rights have shallow roots in the thin soil of the UK constitution. They must always yield to the supremacy of parliament in the UK’s constitutional settlement. Successive governments in the UK have sought to remove fundamental legal protections from marginalised people, such as refugees, victims of trafficking and prisoners. There have been several recent examples of this – the Safety of Rwanda Act, the Illegal Migration Act, the Victims and Prisoners Act and to which we can add the proposed changes to trial by jury.
The instinct of successive governments appears to be to reduce rights, even when doing so will not address the root causes of the problem they claim it will fix. Removing human rights protections from refugees was never going to fix a broken immigration system presided over by a dysfunctional Home Office. Reducing the right to trial by jury will not fix an under-resourced and overwhelmed justice system. And yet here we are, again. In the absence of the guardrails of a written constitution, locked in by obligations to consult the electorate before changes can be made to it, the path is always open for an executive-dominated parliament to overturn deeply engrained protections. There is no mention of any intention to change the right to trial by jury in Labour’s manifesto.
So rather than making high-minded claims about the sanctity of Magna Carta, opponents of these measures should focus on the real issues with them. They will not fix the problem. Beyond this, the government should have an electoral mandate, not to mention a damn good reason, before altering rights protections, regardless of whether this takes the form of nudging the line on jury trials, or reducing more fundamental constitutional protections. It has neither and for that reason the changes should not go ahead.
Stuart Wallace.
* I would like to thank Dr Laurene Soubise for her comments on an early draft of this post.
Stuart Wallace is an Associate Professor at the University of Leeds where he teaches constitutional law and international human rights law. He is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.