The right to jury trial is under imminent threat in England and Wales. As with all areas of life, Covid-19 has had a profound effect on the criminal justice system. Trials were suspended at the end of March. A limited number of socially distanced trials has resumed, but the backlog of cases continues to grow. On 23 June, Lord Chancellor Robert Buckland QC told the Justice Select Committee that that he is considering introducing legislation this month to allow trial by a panel of a judge and two lay magistrates for ‘either-way’ offences (‘middle-ranking’ offences that can be tried in either the magistrates’ court or Crown Court). Such trials would be quicker and cheaper than jury trials and enable the backlog to be reduced. The costs of losing juries may be harder to reckon on a spreadsheet but should concern us all – as citizens, potential suspects or victims of crime.
Many countries (including most of the rest of Europe) have fair trials without juries but their criminal justice systems are set up differently, and the training and recruitment of lawyers and judges is distinct. There are good arguments for both types of systems, but a pick and mix approach is potentially dangerous. The Lord Chancellor’s approach does not go as far as some of the proposals that have been floated by former judges for reviving the judge-only ‘Diplock’ system that operated in Northern Ireland during the ‘Troubles.’ Three people deliberating may be better than one and this is the arrangement already used in hearing appeals against conviction from the magistrates’ courts, but little is known about how this part of the system works.
Only 2% of criminal cases are dealt with by juries (the rest are determined by the magistrates’ courts or plead guilty) but they serve an important practical and symbolic role in society. The make-up of juries has changed since Magna Carta gave every Freeman the right to the "legal judgement of his peers", but the current position is that anyone aged between 18 and 75 who is on the electoral register and fulfils a residence requirement is eligible for jury service. (Even a judge struggled to get excused from one case until pointing out that he could not serve on a jury and judge the same case). As the Guide to Jury Summons states, "[j]ury service is one of the most important civic duties that anyone can be asked to perform."
The diversity of the jury is one of its strengths. It is an offence for jurors to reveal information about their discussions or for anybody to solicit such information but a study by Professor Cheryl Thomas found that juries are fair, effective and efficient and do not discriminate against Black defendants. The Lammy Review noted that juries were one of the few "success stories" of the criminal justice system where there was no difference in outcome for Black, Asian and Minority Ethnic (BAME) people and white defendants. Perceptions of fairness also matter. Magistrates are more representative (56% female; 12% BAME) than judges (32% of court judges are females; 7% BAME compared to around 15% of the general population) but there is less chance of representativeness on a panel of three rather than twelve. Unlike juries, judges and magistrates are likely to be much older than defendants (95% of magistrates are over forty), and from very different social backgrounds. This may affect how defendants, witnesses and victims feel about the fairness of proceedings. Those hearing cases regularly may become ‘case-hardened’ or cynical. Conviction rates are higher in the magistrates’ court (84.3%) than in the Crown Court (79.7%).
Juries are accountable to nobody. They simply return a verdict of guilty or not guilty without explanation. This is not always benign, but ‘perverse verdicts’ can provide an important safety valve against perceived injustice or an over-reaching government. One of the cases that a judge-magistrate panel may have to consider is that of the #BlackLivesMatter protesters filmed pushing the statue of the slave owner, Edward Colston, into Bristol Harbour. Legal blogger, Matthew Scott noted that, whilst the legal case for prosecution appears strong, it would be difficult to find a jury with at least 10 members willing to convict. It would be much harder for judges or magistrates to disregard the letter of the law.
Judges and magistrates may be subconsciously or otherwise influenced by the personal and professional implications of a controversial acquittal or conviction. If they are given their individual conviction rates and how these compare to other courts, they may feel under pressure to ‘improve’ their rates, which could have disastrous consequences for innocent defendants. Judges may be vulnerable to intimidation. Three judges were murdered during the conflict in Northern Ireland and the threats continued.
The suggestion is that the suspension of jury trials would be a temporary measure to reduce the backlog caused by the lockdown. 'Temporary' measures tend to have a much longer life than originally promised. The Belfast (“Good Friday”) Agreement was signed in 1997, but Diplock Courts introduced under the Northern Ireland (Emergency Provisions) Act 1973) were not abolished until 2007. The Director of Public Prosecutions for Northern Ireland still has the power to determine that a trial should be held without a jury and there were 42 such cases in the last year.
The backlog is currently about 40,500. It was 37,000 and rising before lockdown. Continuing judge-only trials would be a cost-free way to reduce that further. Once the principle of removing juries has been conceded, it would be easy for the government to raise the threshold for cases that could be considered without a jury. What is desperately needed is sustained investment in the criminal justice system. The Secret Barrister’s 'Stories of the Law and How it is Broken' brought some of these issues to public attention. Courts are in an appalling state of disrepair following years of neglect and underfunding. Court buildings have been sold off and the number of courtrooms being used has been cut. Covid -19 has just brought matters to a head.
These are extraordinary times and the government is faced with a difficult situation. There are other measures such as the creation of ‘Nightingale’ or ‘Blackstone’ courts that should be explored first. Introducing an untested, hybrid tribunal without consultation or research is taking risks with what former High Court judge Sir Richard Henriques called "the cornerstone of the British criminal justice system". Those who were arrested during lockdown were unlikely to have had a solicitor sitting with them in the police interview. At best, they would have been represented by telephone or video link. Those remanded in custody have been locked in their cells for up to 23 hours a day with no visits, work or education. If they are then denied a jury trial, they may, quite reasonably, feel they have not been treated fairly. These individuals and those close to them may feel aggrieved, but the state prosecutes on behalf of us all. There are reports that opposition to the plans mean that the Ministry of Justice is considering other options. The House of Commons rises for the summer on 21 July and legislation to curtail jury trial would need to be passed beforehand. Before then, please consider contacting your MP to tell them you care about the right to trial by a jury.