Why the government is wrong to consider limiting jury trials

Robert Buckland has confirmed that the government is actively considering reducing the right for individuals to be tried by a jury. Trials could instead be decided by a judge and two magistrates sitting alone. His argument to the justice select committee was that the pandemic had caused such a backlog in criminal cases that drastic measures were required as otherwise trials would be delayed for years. Responding to suggestions from the Lord Chief Justice, he stated that suspending jury trials for certain offences may need to take place due to the “unprecedented” situation.

Unfortunately for the Justice Secretary, his position does not stand up to the most basic scrutiny. He is attempting to suggest Covid-19 is the cause of a problem that on any inspection developed over the last ten years of Conservative government. The backlog is not the result of a global pandemic, but a political failure to reform and invest in our legal infrastructure – the courts, the CPS, the judiciary and legal aid. Before the pandemic there was a backlog of 39,000 cases in the Crown Court, and now the number is 41,000. The lockdown has led to only a slight exacerbation of a structural problem in the criminal justice system that is a result of political decisions. Far from the situation being ‘unprecedented’, the backlog was at 50,000 cases in 2014 – and this reform was never seriously considered then.

Buckland stated that such a change would be “a last resort”. He argued that behind each number “was an individual”, a defendant or complainant waiting for their day in court to seek justice – and this meant he must consider radical reform. The human cost of a broken justice system appears to be a revelation to the Justice Secretary. Where was the concern previously, as courts were closed, spending was cut, and cases were waiting years to be heard?

The proposed solution will not even solve the problem. As set out by Sarah Vine, a Barrister at Doughty Street Chambers, none of the cases currently delayed and awaiting trial would be dealt with under the reformed regime in any event (or be subject to severe legal challenge if the government attempted to implement a retrospective change). There is also a distinct lack of magistrates to sit with a judge to undertake these trials – there is currently a 400,000-case backlog in the magistrates’ court. Where will these new judges appear from? The government is finding it increasingly difficult to retain and recruit sufficient numbers of judges – many have retired, exasperated at a broken system.

The change may also lead to disastrous unintended consequences. As has been pointed out by criminal practitioners, no lawyer worth their salt would advise their client to elect to the new form of crown court trial, but would elect for a magistrates’ trial and if convicted then appeal to the Crown Court. In reality, the change would likely lead to more cases and appeals, clogging up the system further.

Instead of weakening a key constitutional right, the government should do the hard work. They should begin by working with local authorities to use other public buildings for jury trials. County courts – most of which are currently empty with remote hearings generally working well in the civil sphere – should be utilised for criminal trials. The Ministry of Justice should reconsider spending £3.5bn on new prisons, and instead invest some of that money in our country’s legal infrastructure.

Some may wonder why Labour’s shadow justice team is being so insistent in their protection of jury trials. The notion of a jury trial, developed over hundreds of years since the Magna Carta in 1215, is a cornerstone of our democracy. It acts as a last protective measure from unfair interference by the state to the most important individual right – our liberty. More broadly, it forms part of the contract of citizenship. We all have the right to be judged by our peers when the prospect of imprisonment from society is before us. To take that right away would be a wholly draconian act.

It would also lead to unfairness. Whilst juries are randomly selected from the population, a judge and lay magistrates are not. They are far from representative. As the barrister Joanna Hardy has set out, only 3 circuit judges in the whole jurisdiction said they were black in a recent survey (4% were from ‘BAME backgrounds’). 84% of magistrates are over the age of 50, when the vast majority of the defendants will be under that age. And there is a socio-economic divide: judges often earn over £100,000 per year, and magistrates’ are individuals who are able to work for free, and accordingly are often assumed to have a financial security not available to many individuals who are before them. This reform would represent a regressive step in our justice system.

The government’s position is disingenuous. Robert Buckland, a former criminal barrister, must know that any argument for reforming jury trials is weak – and would be struck out in court. It is time for him to stand up and take responsibility, and bring forward real methods of supporting the criminal justice system, not those that will fundamentally undermine it.