In Defence of Juries
Juries are not infallible, but they remain one of the few components of British criminal justice in which it is possible to take pride. Now, ostensibly because of the difficulties caused by the Covid-19 pandemic, they are under threat. The justice secretary, Robert Buckland, recently floated a plan to suspend the right to trial by jury for a large number of ‘either way offences’ – those that can be tried by magistrates or by judge and jury at the defendant’s or the prosecution’s choice. The lord chief justice appeared to signal that the plan had his support. The legal profession disagrees: in a survey of criminal barristers, 93 per cent of us rejected it, even though it would allow our work to resume after the courts have not been holding trials for months.
The change would require parliamentary time for legislation and a large investment of political capital in the face of vigorous opposition. The Labour Party is against it and the House of Lords would not wear it. The minister may have been flying a kite, with a view to reviving the plan when (or if) the government launches its royal commission on criminal justice, as they seem to have backed off the idea for the moment.
The alleged purpose of introducing juryless trials was to clear the backlog of more than 40,000 cases in the crown court (not all of which will be contested: over two-thirds of defendants plead guilty). The problem will get worse while Covid-19 continues to restrict court capacity, but removing juries is not the answer. There were 39,000 cases in the system before lockdown, and even more in 2014: no one suggested getting rid of juries then. The cause of the backlog is not Covid-19, but ten years or more of reckless budget cuts. The government reduced the capacity of courts to hear cases by cutting the annual number of ‘sitting days’ available, relying on inaccurate predictions of case volumes. Judges were sent home and courtrooms stood empty. Buildings have been sold, including Blackfriars Crown Court, one of the newest and best equipped. Then came Covid-19, with non-trial hearings conducted remotely, but no jury trials.
During the emergency, the judiciary and the legal profession, with support from the Ministry of Justice, have sweated the courts’ out-of-date IT assets, with variable results. Skype and a purpose-built communication system have worked reasonably well for non-contentious hearings, but trials cannot be done this way. Too many people need to be in close proximity: few court buildings can meet the conditions for social distancing. Since May, some courts have managed to run trials using two or three courtrooms per case, so the jury can spread out when they retire to consider verdicts. The number is well below pre-pandemic levels, limited as they were. The professions, the judges and the government have been working behind the scenes, but in the four months of lockdown, not a single substitute court in suitable premises has been used. Until 1 July, there was no plan: when it came, it offered money for maintaining buildings, upgrading IT, and ten potential sites for ‘Nightingale’ courts – all welcome, but small beer compared to the damage done by a decade of neglect. There was no mention of ‘suspending’ jury trials.
The proposition that a judge flanked by two magistrates can replicate a jury is fanciful. Unlike juries, they are not representative of the public at large, for whose sake criminal justice is done. They are overwhelmingly white and ageing: in 2019, five per cent were under 40, and 52 per cent over 60. David Lammy’s 2017 report on inequality in criminal justice found that the jury was the one part of the system with adequate ethnic diversity. Even the best judges and magistrates get case-hardened to defendants’ stories. They think they’ve heard it all before. But there’s always chance that what they’ve heard before may be the truth this time, if they still have ears to hear. Judges also have to worry about targets and budgets and getting through the list. The jury only has to worry about giving the right verdict.
‘A good jury turns into a little community,’ Baroness Hale has said, ‘working together in the interests of justice.’ As a jury advocate for over thirty years, I have always been impressed, and often humbled, by the care and dedication they give to their work. Academic research supports the experience of criminal lawyers that juries are fair, and do their utmost to bring in the right result. In every case, it isn’t just the defendant on trial: the state itself is on trial, too, in public, before its citizens. Can it prove its case to the high standard the law requires? Has it used its coercive powers wisely and lawfully? Have its operatives in the courtroom – the judge and the lawyers – conducted themselves properly?
The jury has always had its critics. Judges (mostly retired ones who have never come within a mile of a criminal case) have complained that members of the public are too dim to understand fraud or complex scientific evidence, while other types of case are considered too petty for the greater cost of a jury trial. What gets overlooked is that trial by one’s peers is the foundation of criminal justice, almost its definition. It’s disappointing that the justice secretary can bring himself to praise the jury only with faint damnation (misapplying Churchill’s definition of democracy, Buckland described trial by jury as the ‘least worst’ way of doing criminal justice). Maybe the lord chief justice was playing politics with his intervention, to flush out opposition to the proposal. If so, it’s a dangerous game. The next time juries are under threat, his words may come back to haunt him.