Criminal trials without juries are a bad idea,” tweeted David Lammy in 2020, after Tory justice secretary Robert Buckland had suggested restricting the right to jury trials as a means of reducing a huge backlog of court cases. “You don’t fix the backlog with trials that are widely perceived as unfair.”
Except, it would seem, when you gain power. Lammy, the current justice secretary, is set, according to reports last week, to abolish the right to jury trial in most cases, aside from those involving murder, manslaughter and rape. The backlog today – just shy of 80,000 – is almost double that in 2020.
Last December, the government appointed retired senior judge Brian Leveson to review the crisis. The first part of his report, published in June, suggested, among other measures, the creation of a judge-only division of the crown court to try many cases that today would be heard by a jury. Lammy’s draft proposals go even further in denying the right to a jury trial.
They are, though, unlikely to have much impact on the backlog. Leveson acknowledged that the primary causes were “long-term constraints and reductions in funding and investment in criminal justice” exacerbated by “the disconnect between different agencies” and “the increasing complexity of criminal law”. Such issues will not be addressed by cutting down the jury system.
“No free man shall be seized, imprisoned, dispossessed … except by the lawful judgement of his peers and the law of the land,” insisted the Magna Carta. This presumption lies at the heart of jury trials and is a fundamental element of our democratic settlement.
For much of the past millennium, the governing classes have sought to constrain the meaning of “the lawful judgement of his peers” by keeping a tight leash on who constituted one’s “peers”. Until half a century ago, jury service was restricted by property qualification. Only by the Criminal Justice Act in 1972 was the last property requirement – the payment of rates – removed and ordinary working-class people deemed fit to serve on juries. Women had been barred from juries until 1919, and even after that there were disproportionately few female jurors, partly because of the property qualification.
EP Thompson, an advocate of the jury system, saw it as an issue of liberty and class
As the notion of a “jury of peers” finally became a reality, a new battle emerged – over the removal of various categories of offence from the purview of jury trials. Most civil cases are now heard without juries, a development that reaches back to the 19th century. From the 1970s, the process of restriction accelerated as many crimes – from most driving infractions to less serious cases of criminal damage, from certain drugs violations to common assault and battery – were turned into “summary” offences that could be considered by magistrates. Lammy’s proposals lie at the end of this long process but constitute also a far graver threat to the jury system than seen before.
The reason trial by jury is so important is also the reason the authorities seek to restrict them: juries can think independently, an independence that imbues interpretation of evidence with a moral force. The case often viewed as a foundation stone of that independence was the trial in 1670 of the radical Quakers William Penn and William Meade, charged with unlawfully preaching to a “tumultuous assembly”. The jury accepted that Penn had preached but not to a “tumultuous assembly”.
The judge, demanding that they convict the men, imprisoned the jurors “without meat, drink, fire, and tobacco” and warned them they would remain there “till we have a verdict that the court will accept”. Still the jurors refused to convict.
The judge fined them for their disobedience. The three who refused to pay were kept in jail until Chief Justice Vaughan finally released them, ruling that jurors could not be punished for a verdict unwelcome to the judge, even if they were driven by a moral sense of the correct outcome or moral outrage over an unjust law. That moral quality of being a juror is central to the significance of jury trials.
The judiciary, the former judge Stephen Sedley has observed, tends to have “homogenous” values and attitudes because “they are socially and educationally inbred”. The “practice of law does not necessarily equip a person to distinguish fact from fiction” because it is so “profoundly culture-based and culture-biased”. Juries are important not just because of their diverse backgrounds but also because they “demystify fact-finding”, showing how “twelve people from anywhere … can carry out a critical judicial function”.
Defending the jury trial is particularly important today, both because of the erosion in recent years of democratic processes through more technocratic forms of rule and the depth of popular disaffection with social institutions, not least the perception of “two-tier justice”. Cutting ordinary people out of the judicial system, weakening the scope of jury trials, and leaning even more upon magistrates and judges, will reinforce a more technocratic system and only deepen public mistrust.
The historian EP Thompson, one of the great advocates of the jury system, saw it as an issue both of liberty and of class. The jury trial was where ordinary people made the kinds of decisions from which they are usually shut out. The jury, he suggested, “is perhaps the last place in our social organisation where any person, any citizen, may be called upon to perform a fully adult role.” Thompson wrote that 40 years ago. How much truer is it today.
Photograph by Alamy