‘Is there an ancient right to jury trial?’

Trial by jury is a cornerstone of our justice system. But is it an ancient right, as some MPs have claimed in Parliament? Has it been embedded in our constitution since Magna Carta? With the government proposing changes to jury trials, arguments about the history of justice have intensified.

In his landmark review of the courts published last July, Sir Brian Leveson concluded that there is “no constitutional or common law right to a jury trial”. He drew on Lord Justice Auld’s 2001 review of the criminal courts, which confirmed that while a free man historically had the right to the lawful judgement of his peers, this did not amount to a right to trial by jury.

That conclusion has been echoed by senior figures across the justice system. In evidence to the Justice Select Committee earlier this year, David Ford, chair of the Magistrates Association, pointed out that more than 11,000 volunteer magistrates pass lawful judgement in over 90 per cent of all criminal cases in England and Wales. In the same session, Kirsty Brimelow, chair of the Bar Council, agreed that there is no legal right to jury trial, though she acknowledged a widespread public belief that there is.

READ MORE: Almost half of Labour members oppose plans to restrict jury trials, poll finds

Brimelow speaks from experience. She defended Glenn Cameron in the first judge-alone criminal trial conducted under the Criminal Justice Act 2003, after a jury was discharged due to concerns about intimidation. Cameron was convicted and appealed all the way to the European Court of Human Rights. The court ruled that the conviction was lawful. Judge-alone trials, where justified, are compatible with the rule of law.

Brimelow is right about the public misunderstanding. The idea of an ‘ancient right’ to jury trial is being deployed to obstruct necessary reform. A closer look at legal history tells a different story.

Juries emerged after Magna Carta with an investigative role, helping to determine facts before formal policing or prosecution existed. Over time, that function disappeared and juries became adjudicators of guilt. They were used in both civil and criminal cases for centuries, until the nineteenth century, when juries were removed from many civil trials. That reform was driven by necessity. Industrialisation and commercial growth produced a surge in civil disputes, and a judge-led system was better able to deliver justice at scale. Today, our civil courts are internationally respected for their fairness and efficiency.

The composition and remit of criminal juries have also changed dramatically. Historically, juries were drawn from a narrow class of male property owners and heard a wide range of offences. By the twentieth century, jury service had widened to include women and working people, while the number of offences requiring jury trial had narrowed. This was the result of deliberate parliamentary action, including the Summary Jurisdiction Act of 1879, passed in response to a justice system under strain. That Act expanded the role of magistrates’ courts, improving access to justice and reducing delay. Further reforms throughout the twentieth century continued to rebalance the system.

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The defendant’s right to elect for a jury trial has evolved too. Critics of reform often describe this as ‘ancient’, but it is not. In the mid nineteenth century, defendants charged with lesser offences in higher courts could choose summary trial only if they pleaded guilty, often to secure a faster resolution and lighter sentence. In effect, they were opting out of jury trial. Many took that option. The modern right to elect for a jury trial, as it exists today, dates from court reforms of the 1970s.

It is this relatively recent right that reformers now seek to amend as part of Leveson’s wider proposals to tackle the backlog paralysing the criminal courts. At present, there are two routes by which a case can be sent from the magistrates’ court to the Crown Court. The first is where prosecutors and magistrates agree that the seriousness of the case requires it. This will remain unchanged. The second is where the defendant demands a jury trial, regardless of the views of prosecutors or magistrates.

Last year, more than 4,000 defendants exercised that option. As Ford told the Select Committee, some will have done so in the hope that delay would weaken the prosecution or deter victims from continuing. With a Crown Court backlog of around 80,000 cases, that right to elect is compounding delays for everyone involved.

Justice delayed is justice denied. Reformers today are grappling with the same problem faced by their predecessors: how to deliver timely justice while preserving fairness. The proposals now before Parliament preserve jury trials for the most serious cases while reducing unnecessary delay elsewhere. In my view, they strengthen rather than diminish our long-standing commitment to lawful judgement by our peers. That is why I will support them.

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