Has jury justice been sold off?

Trial by jury is “the lamp that shows that freedom lives.” But what happens when freedom is sacrificed?

June 29, 2020
Lord Chancellor and Secretary of State for Justice Robert Buckland. Photo: WIktor Szymanowicz/NurPhoto/PA Images
Lord Chancellor and Secretary of State for Justice Robert Buckland. Photo: WIktor Szymanowicz/NurPhoto/PA Images

On the 19th of June the Lord Chancellor, Robert Buckland, announced that he is considering the introduction of trials without juries for “either way” offences with a maximum sentence of two years’ imprisonment. “Either way” refers to the current right for those in moderately serious cases to elect a jury rather than be tried in the magistrates’ court. It may be replaced by the right to elect a judge and two magistrates. The lord chancellor stresses that this would be a “last resort.”

The justification is that there is a backlog of cases due to the lockdown. But this is a fallacy, or what government lawyers are fond of calling a “strawman.” According to recent evidence before the House of Commons Justice Committee, figures published on 24th May show that there were 39,214 cases waiting to be heard by a Crown Court before the coronavirus crisis.  There now are 40,526. This amounts to an additional 3 per cent. The 39,214 cases bearing on the lives of defendants, complainants, witnesses and police had already been shovelled high in the Ministry of Justice’s legal rights warehouse.

The majority of the backlog is not caused by the coronavirus pandemic but by government funding cuts. As court centres were being sold off, and legal aid slashed, for good measure the number of court sitting days also was reduced. Since 2018 alone, these have been cut from 97,400 to 82,300.

Coronavirus may have exposed a gutted criminal justice system but it certainly did not cause it. The solution is to spend money on the courts and legal resources; not now to move to crudely hacking their constitutional underpinnings.

The legal history of juries inspire deeply-felt emotions, with roots in Magna Carta and more tangibly in the Habeas Corpus Act of 1640, which abolished the Star Chamber. But it was the willingness of Edward Bushel and his fellow jurors to be locked up, rather than obey the judge and convict Quakers Penn and Mead of unlawful assembly, that sealed the importance of juries in criminal justice. This act of defiance in 1670 was an extraordinary stance by disinterested property owners who refused to return a verdict contrary to their consciences.

From my experience , clients and complainants trust juries and are more able to accept a jury verdict than that of a judge. In part, trust is engendered by diversity that pulses through juries; a diversity that continues to only lightly touch our judiciary. This also increases the confidence of minority communities often poorly served by our criminal justice system.

A jury trial is part of a liberal democracy; it places members of the public in a central role in the administration of criminal justice. And there are enough people to balance the prejudices and biases that may be absorbed from life. I have seen a jury sense of justice at work in a positive way many times over my career.

Of course, juries are not perfect and I would prefer there to be more academic studies of them, with lifting of restrictions on communications with jurors after the completion of cases. But the essence of a jury is the essence of people judging their peers. It is the essence of humanity.

The plan is to introduce a new law by September. It would be another law which would impact most upon the vulnerable. We may have become numb to the government’s posting of emergency laws restricting movement, worship, business and family life but their inherent illogicality and unfairness illustrates the danger of rushed lawmaking. Whilst the jury scrapping would be under primary legislation, enforcement in September means that it would be devoid of anything beyond cursory consultation.

There are practical alternatives. There are empty buildings, including those built for the NHS, that can be utilised to reduce the backlog, even if sold courts cannot be repurchased.

Before Article 6 of the European Convention on Human Rights, guaranteeing a right to fair trial, was in existence, William Blackstone said:

“the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. Great as this eulogium may seem, it is no more than this admirable constitution, when traced to its principles, will be found in sober reason to deserve. The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society.”

Lord Devlin famously described trial by jury as “the lamp that shows that freedom lives.”

Freedom encompasses human dignity, whilst law strives for universality and certainty and justice reaches for fairness. But Lord Devlin’s lamp may now pick out cheap price tags on all three.