Why Juries Matter

Juries decide​ the outcome of about 1 per cent of criminal cases in England and Wales, and yet the jury system is permanently under threat. The latest threat comes in Sir Brian Leveson’s Independent Review of the Criminal Courts, which the government commissioned to deal with the ever growing backlog of cases in the Crown Court. Leveson suggests replacing the jury with a judge and two magistrates in a range of cases in which defendants can currently choose trial by jury rather than trial by magistrates; he also recommends that many offences become exclusively triable by magistrates alone. These offences include things like benefit fraud and possession of an indecent photograph of a child, conviction for which could have serious consequences: prison, a criminal record, loss of employment and an entry on the sex offenders register. Leveson also wants to remove serious fraud trials from juries because he thinks they are too complicated for randomly selected members of the public to understand. Instead, they would be tried by a judge and two financial experts. He would give defendants in any case that remains in the Crown Court the right to choose a trial by judge alone. And a judge would be able to decide to try any exceptionally long or complex case without a jury.

These are the headline-grabbers among the 45 recommendations in Leveson’s 388-page report – the first of two that he has promised (the second part will deal with improving the efficiency of the Crown Court). But we have been here before. In 1986, Lord Justice Roskill’s Fraud Trials Committee recommended removing serious and complex fraud cases from juries:

The public no longer believes that the legal system in England and Wales is capable of bringing the perpetrators of serious frauds expeditiously and effectively to book. The overwhelming weight of the evidence laid before us suggests that the public is right. In relation to such crimes, and to the skilful and determined criminals who commit them, the present legal system is archaic, cumbersome and unreliable.

It wasn’t clear why Roskill was so sure of the view of ‘the public’ on this. The members of the public who formed the jury that year in the Guinness share-trading fraud trial had not been bamboozled, and found all four of the skilful and determined defendants guilty of theft and false accounting. (The judges in the Court of Appeal released one of those defendants, Ernest Saunders, after ten months of his five-year prison sentence because he had been diagnosed with incurable Alzheimer’s. He later made medical history with a complete recovery. Who was bamboozled there?) Despite the support of heavyweight figures including the then lord chancellor, Lord Hailsham, Roskill’s proposal was not enacted.

In 2001, another senior judge, Lord Justice Auld, was asked by the then lord chancellor, Lord Irvine, to produce a Review of the Criminal Courts of England and Wales. He repeated Roskill’s suggestion that juries should be removed from serious fraud cases and also recommended ‘the establishment of a unified Criminal Court’ in which a judge and two magistrates would automatically deal with many cases that were triable by a jury. This is in substance what Leveson recommends, although he has a different name for the new court: Crown Court (Bench Division).

In 2015, Leveson was asked by the lord chief justice to produce a Review of Efficiency in Criminal Proceedings. He proposed a series of technical changes, many of which were wise and sensible; some of them were even enacted. He did not then advocate the creation of an Auldian ‘unified court’, although he noted the idea with approval. He felt that the then available IT systems weren’t powerful enough to unify the disparate elements of such a court. No one who has to deal with the courts’ IT today will feel any greater optimism on this point than Leveson did then.

If taking a raft of cases away from juries is as desirable as these three highly distinguished jurists believe it is, one wonders why the governments that commissioned these reports, both Conservative and Labour, have not made it happen. The reason is unlikely to have been a sentimental attachment to the jury. It’s much more likely that they came to the conclusion that the cost far outweighed any calculable benefit. The same is likely to be true today. But the backlog of criminal cases has topped 75,000 and is forecast to grow. Some defendants on bail are being given court dates in 2029. Victims and defendants are in limbo: the guilty ones may well think they’ve got away with it. Witnesses’ memories fade; some are no longer willing to engage with the process. It is an intolerable state of affairs. The number of defendants remanded in custody pending trial almost doubled between 2018 and 2024, from under nine thousand to seventeen thousand, adding pressure to the already overcrowded and crumbling prison system. The reduction in days on which the court sits was the main immediate reason for the delay in hearing cases, but Leveson correctly identifies twenty years of deliberate defunding by successive governments of all the parts of the criminal justice system as the underlying cause of the backlog. He makes the point that every part of the system – police, Crown Prosecution Service, defence lawyers, courts, prisons and the Probation Service – is mutually dependent on every other part. They all need to work together effectively if the system is to do what it is meant to do.

Leveson was a leading criminal QC. He prosecuted Rosemary West, Ken Dodd (beloved in Liverpool, acquitted of tax fraud by a Liverpool jury) and numerous other high-profile cases. He became a trial judge and rose to the Court of Appeal, ending as the president of the Queen’s Bench Division of the High Court. Along the way he chaired the 2011-12 public inquiry into the ‘culture, practices and ethics’ of the British press that followed the phone-hacking scandal. His devotion to public service borders on the masochistic. He would probably have been appointed lord chief justice, but was thwarted by a (subsequently revised) age limit. In this new review, Leveson refers wistfully to his valedictory judicial speech, in which he said he would love to feel that he was leaving the criminal justice system in a better place than it was when he started his career. He now sees a threat of ‘total system collapse’:

cases have little or no chance of being brought before the court, victims and witnesses disengage and if they do attend court that would be three or four years later, when they cannot recall specifics. Overall, the criminal justice system would stagnate, open caseloads would continue to increase, agencies would not be able to cope and inefficiency would be the norm. Little or no consequences for lawlessness could lead to a breakdown in law and order and society taking things into their own hands. Every submission and discussion with criminal justice agencies that I have had as part of this review has confirmed this reality.

Leveson does not believe that improvements to existing arrangements, such as an increase in sitting days, better court maintenance and more judges, will be ‘sufficient’ to avert total collapse: ‘less dramatic change will not alter the overall picture.’ Apart from his plans for jury trials, Leveson’s other proposals include a much greater use of diversion – treatment, rehabilitation programmes etc – and the resolution of minor offences outside the courts; improving and speeding up charging decisions by police and prosecutors; reinstating the magistrates’ court’s power to pass prison sentences of up to twelve months (it was extended to that period from May 2022 until March 2023, and again in October 2024); and reforming the procedure for appeals from the magistrates’ court.

His most important proposal, however, is the creation of the Crown Court (Bench Division). My view, which many people in the profession share, is that it is hard to justify in principle and unlikely to dent the backlog rapidly or at all – not to mention the cost and the disruption it is likely to cause. Although, numerically, juries play a small part in criminal justice, they nevertheless represent and embody it. Professional judges and self-selected magistrates will not command the same respect and legitimacy. Judges used to be venerated, but now they are vilified. Imagine if a judge-only trial of an alleged prolific sex-offender or child killer resulted in an acquittal. ‘Enemies of the people’ – the Daily Mail’s description of judges – would seem a mild criticism in comparison to the abuse the judge would get. There is no particular reason – let alone any empirical research – to think that a judge alone or with two magistrates will be any better at making factual decisions than twelve randomly chosen members of the public. As Stephen Sedley wrote in the LRB (7 April 1994),

the practice of law does not necessarily equip a person to distinguish fact from fiction, and … the profession’s received ways of distinguishing between the two are profoundly culture-based and culture-biased, learned in practice and carried forward into adjudication. This is why juries are such an important element in the system: by their existence they demystify fact-finding; they prove that twelve people from anywhere, in a well-structured environment, can carry out a critical judicial function.

And that is without reckoning on judges becoming case-hardened and cynical as a result of constant exposure to a diet of similar cases.

The judiciary is overwhelmingly white, male, and educated at private schools and Oxbridge. There is some diversity in backgrounds and personalities, but its members exhibit a degree of homogeneity, something the profession of law tends to foster. While the judiciary does not represent the diversity of the population at large, juries are the opposite. The franchise now includes everyone between the ages of 18 and 75 except prisoners, people detained under the Mental Health Act and senior members of the royal family. If you visit any Crown Court you can see that the jurors are representative of local demography. This is not ornamental. It matters. In the review written in 2017 by the current foreign secretary, David Lammy, ‘into the treatment of, and outcomes for, Black, Asian and minority ethnic individuals in the criminal justice system’, Lammy writes that ‘juries deliberate as a group through open discussion. This both deters and exposes prejudice or unintended bias: judgments must be justified to others. Successive studies have shown that juries deliver equitable results, regardless of the ethnic make-up of the jury, or of the defendant.’

Leveson gives short shrift to the idea that we have a constitutional right to trial by jury. He is absolutely correct as a matter of legal theory when he asserts that ‘there exists no constitutional or indeed any form of general common law right to trial by judge and jury. Neither Magna Carta nor the [European Convention on Human Rights] provides a legal basis to claim a right to a jury trial as a constitutional right.’ An Act of Parliament gives defendants the right to choose a jury trial in ‘either-way’ cases that can otherwise be heard by a magistrates’ court (such as assault occasioning actual bodily harm, possession of drugs with intent to supply, or thefts valued above £200). Parliament decides which cases can only be tried by a jury. What Parliament gives, Parliament can take away. Article 6 of the ECHR guarantees the right to a fair trial, not a jury trial. It would be difficult to argue that a trial by properly appointed and qualified judges is by its nature unfair. But this misses the point.

The point is the distinction between what is constitutional and what is constitutive. In this country, trial by jury is constitutive of a fair, credible, legitimate system of criminal justice. It is what gives legitimacy to the state’s extensive powers of coercion over wrongdoers. At some point in public consciousness, the constitutive merges with the constitutional, even if lawyers don’t see it that way. The jury also occasionally works as a safety valve, acquitting the factually guilty when jurors think the state has abused its powers, as in some recent protest cases.* Rather than helping to avert system collapse, further erosion of the jury may hasten it.

So much for the principle. As Leveson makes clear, any attempt to reduce the backlog and reform the system will require heavy investment in all areas, starting with buildings that are literally collapsing. He forecasts that his new arrangements would save nine thousand days a year of the court’s allocation of ‘sitting days’, but that is a finger in the air calculation. A similar number of days could be saved if the government agreed to pay for the courts to operate at their maximum capacity. The recent increase in sitting days follows deliberate cuts to the courts’ capacity to use its full resources – a major contributor to the backlog.

Judges in Leveson’s new court will have to provide a reasoned judgment in each case, setting out their factual findings and legal rulings. That will take time, especially in longer and more complex cases. That time will be taken away from other judicial work – presiding over the remaining jury trials and other Bench trials. There is already a national shortage of magistrates, who will be used to staff this new court, even if there are enough judges to cover the work. And although Leveson wants his new court to be part of the Crown Court, in its essentials it is really a glorified magistrates’ court. The 2024 Judicial Attitude Survey showed that a high proportion of judges are unhappy with their working conditions; many feel unsafe inside and outside their courtrooms; they think their workloads are too high and are not properly reflected in salaries and pensions. Adding to their burdens may not be the best way to improve the quality of justice.

Leveson’s suggestion for hearing fraud cases sounds more like a disciplinary tribunal than a criminal trial, staffed by knowledgeable peers of the defendant with full coercive, punitive powers. But serious fraud is serious because its impact goes beyond the misconduct of the fraudsters – it hurts the economy and the community at large. At its heart is dishonesty, a concept that any juror can grasp if the case is properly explained. The proposed specialist tribunal calls to mind the analysis of Magna Carta in 1066 and All That: ‘That the barons should not be tried except by a special jury of other barons who would understand.’

Leveson does not seek to abolish juries altogether. But his plan – taking away cases that are small, long or complicated – would push the jury further to the margins of criminal justice and make further erosion more likely. That would be a loss. It is not the jury’s fault that the system is in such a mess.