In a bold move he calls ‘swift and fair’, Deputy Prime Minister David Lammy has announced a plan to cut jury trials down by a quarter. The proposal seeks to impose judge-only trials for cases that carry a likely sentence of three years or less, and reserve juries for more serious and violent offences. Since then, the response has been entirely negative from across the political spectrum.
The reason for Lammy’s proposal? The Leveson report and its headline item of restricting what are called “either way” offences: cases where the defendant can opt between the Crown Court or Magistrates’ Court. Lammy suggests that defendants are exploiting this option, choosing jury trials to delay proceedings in the hope that a good lawyer might get them off. This ignores the fact that they could be remanded in custody so there would be little advantage in delay, and a good lawyer might get them off anyway.
Lammy’s actions show that there are some in government who favour cheapness and convenience over dispensing justice. Leveson’s recommendations are an attempt to meet the inadequate budget funding the court system, rather than the inefficiency of staging jury trials.
The problem with judge-only trials
There is much to say about the types of individuals who are appointed magistrates. According to statistics, they tend to be middle aged and middle class and this applies even more so to judges.
Francis FitzGibbon highlights in his article Short Cuts: Why Juries Matter that judges tend to be recruited from exclusive backgrounds (white, male, and privately educated) so rather than being tried by our peers, we might end up in an 18th-century system of an educated, wealthy elite passing down judgement on the proletariat. A jury drawn at random from the population at large does not suffer the problem of an elite handing down justice to the rest of society.
Another danger is that judges dealing with sensitive cases, such as those involving sexual abuse, are at risk of receiving a barrage of complaints from certain media outlets, who already label them “traitors” or “out of touch” when outcomes or sentences have not met certain expectations. Apart from not being congruent with public opinions on justice, it may well harm the judiciary in general.
We could find ourselves in the situation of having insufficient judges to try cases at any level, because of barracking from the media. With jury trials, no one knows how jurors decide if a case has met the “beyond all reasonable doubt” standard expected in a criminal case.
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Perverting the course of justice
Lammy’s case is that jury trials uphold justice but the backlog of cases is so severe, the number will reach 100,000 by 2028.
He suggests judge-only trials will allow the criminal system to focus on more serious crimes, such as sexual offences. However, jury trials only make up 1 to 3% of all cases currently, and the attrition in rape cases is most extreme during the investigative stages due to police delays, often resulting in complainants dropping out. If Lammy is truly concerned about justice for victims, perhaps he should concentrate his criticism elsewhere.
Leverson himself, in a state of almost despair, is suggesting cutting out jury trials because of the 20-year policy of austerity that has hollowed out the justice system.
If we look at the data provided by the Ministry of Justice, you will find that most of us are handled by the robot-like ‘single justice procedure’ which is “secretive and unfair”. The Law Society says this system punishes people for mistakes made ‘due to illness or disability’. Thousands of cases are rubber stamped and if you miss out on responding, in part to the parlous state of the postal system, you are branded a criminal and fined accordingly.
Is this just a plaster on a bullet wound?
The present state of affairs is a justice system in crisis, with dysfunctional IT systems, poor rewards for criminal barristers, and a court system under pressure because it is grossly underfunded, while sending more people into a prison system which is bursting at the seams, and regularly loses tracks of a minority of prisoners. At the same time, we have a single justice system, which is more system than just.
This is not good, and Lammy’s tinkering at the edges of the problem is the usual civil service response to a crisis. Find an Aunt Sally, in this case jury trials, pin the blame on them, and suggest this is the reason why rapists are escaping the long arm of the law, leaving victims bereft in their wake. It’s bad administration, poor policy making, and bad politically for a government in the doldrums.
Lammy is a former barrister and knows the score, so why he thinks adopting a report in such a controversial way would not blow back on him is anyone’s guess. At best it is maladroit, and at worse it is putting yet more weapons in the hands of those who want this administration out of office.
It does seem odd that the very people who want the UK to leave the European Court of Human Rights (ECHR) are now holding forth about the loss of rights dating back to Magna Carta, the proud traditions of English Justice based on a trial by jury. It is going to be very difficult for the Starmer government to defend staying within the ECHR while altering its interpretation of human rights law, while simultaneously diminishing the right to a jury trial in either way cases.
What’s next for Labour and the UK?
So what’s to be done? Lammy has created an unholy alliance of the opposition, most lawyers, public opinion (which has a generally positive view of jury service) and his own party against his proposal, and by his actions, endangered his own government.
This government is unpopular and policies like this, which don’t stand up to scrutiny, only makes them seem out of touch and floundering with half-baked ideas, dreamt up by the civil service or political advisors.
In part we are the authors of our misfortune, in that we expect the law to dish out vengeance, not justice, whether it be an incident in an NHS hospital changing room, or or the illegal felling of a tree. The first case being a failure of empathy and understanding on both sides, and the second resulted in a long prison sentence where restorative justice would have been better for public interest, and unfair compared to other cases such as the Toby Carvery oak tree felling, which is unlikely to result in a prison sentence for those responsible.
I can understand the need for condign punishment for the most egregious cases, applying Voltaire’s Admiral Byng principle ( ‘In this country, it is good to kill an admiral from time to time to encourage the others.’) to maintain law and order, but not constantly. In the UK we warehouse 87,000 people in our prisons. In the Netherlands, more than 20 prisons have closed over the last decade. What are we doing wrong and how can we change things?
