Given the OBR’s dedication to making budget day the most shambolic in British history, you’d be forgiven for missing this week’s other great leak — David Lammy’s dramatic proposals to curtail the right to jury trial. Yet even Britain’s economic death-rattles can’t completely overshadow the justice secretary’s plans. Taken together, after all, they represent one of the most significant, and lamentable, plans for constitutional change in living memory, and which risk leaving everyone in this country less free and more exposed to an overbearing, overweaning state.
Startlingly, Lammy’s proposals go even further than the recommendations of Sir Brian Leveson in his controversial — and widely criticised — report on the future of the criminal courts. Where Leveson recommended removing the right to a jury trial for offences with sentences of less than three years, Lammy’s proposals would restrict that right only to cases of rape, murder and manslaughter, vaguely accompanied by so-called “public interest” cases. While Leveson proposed that Crown Court cases not tried by juries would still have a judge and two magistrates, meanwhile, the new proposals suggest cases could be tried by single judges.
But even if the Government, as seems increasingly likely, retreats from Lammy’s scheme a return to Leveson’s plans is no victory. Consider, first, the legal principle supposedly underpinning jury-free trials. Both Leveson and Lammy claim that there is no “right” to a jury trial. Yet this assertion has been expertly dismantled by the criminal barrister and academic Alex Benn. Leveson, for his part, takes an approach to the concept of “constitutional” rights that has no place in the English legal tradition: in uncritically adopting Lord Justice Auld’s definition of “an entrenched right overriding all other legal instruments”, he sets the bar far too high.
As Benn explains, in a common law system without a codified constitution, “constitutionality” must mean more than Leveson’s narrow approach. Rather, it also represents the “fundamental values” of a country’s legal and social system. By this measure, jury trials are undoubtedly constitutional, with a pedigree stretching back even before Magna Carta. Levison notes that there is no right to a jury trial under Article 6 of the ECHR. But that is tilting at a straw man: as even Leveson concedes, there could hardly be such a right in an international system covering disparate legal systems with no history of jury trial.
Not that the Government seems to care about venerable historical principles. It’s especially galling, here, that Lammy’s justification for dumping jury trials is something as banal as a lack of capacity in criminal courts. Yes, the system is in crisis — years of underfunding, and the crippling Covid backlog, has left it on the verge of collapse. But as Leveson himself notes, 2023-4 spending on jury costs was a mere £36 million, a fraction of the total court budget of £2.5 billion. There’s another issue here too. As Benn notes, the justification of crisis implies that jury restrictions might be undone once the worst has passed. But there is no indication of that in Lammy’s proposals, and little realistic hope that a future government would devote the cash and inconvenience of bringing back juries.
More fundamentally, and as Leveson’s focus on the ECHR implies, the Government’s proposals give a depressing insight into what it actually thinks about the law — preferring to obsess over the dry, narrow letter above its spirit. When, for instance, the question involves surrendering British territory at the whim of a hostile court? Downing Street cheerfully hands over billions to smooth the deal. When it’s being asked to accept urgently needed recommendations on nuclear power, changes that might just stop us from tipping into a full-blown energy crisis? The government is far too worried about its international obligations.
Yet when it comes to abrogating cherished British rights — polled in 2011, the public ranked jury trials only second to (of course) the NHS as top choices for protection in a Bill of Rights — Starmer and his ministers are utterly insouciant. The unfortunate impression is of ministers far more concerned with the niceties of internationalism and bien-pensant progressive causes than ancient and vital traditions.
“When it comes to abrogating cherished British rights, Starmer and his ministers are utterly insouciant.”
And they really are vital. Contrary to what some (often well-heeled) lawyers argue, the ability of juries to reach inconsistent verdicts is a feature, not a bug, of the system. It is the epitome of a model that prioritises acquitting the innocent over condemning the guilty, where the very point of the process is to provide a safety valve for when things just feel wrong. As Leveson noted from Lammy’s own review into the treatment of minorities by the criminal justice system, jury verdicts are one area apparently unaffected by ethnicity. As any civil barrister will tell you, the identity and attitude of a particular judge can have a dramatic effect on the outcome of a case: the very fact that jury trials involve 12 random people avoids that precise problem.
The point is not — as sometimes argued — that judges from one background cannot sympathise with another. Nor is it that jury trials always reach the right verdict; there are undoubtedly cases where they don’t. Any jury system like our own will be prone to perverse outcomes, like the acquittal of the Colston protestors in Bristol. It is, rather, that it provides not only a vital safeguard against state power and dubious prosecutions, but also a superb mechanism for ensuring broad acceptance of an outcome across society. It isn’t some bewigged and distant judge descending from his chambers to condemn you, but 12 of your peers, plucked from obscurity to reach a verdict before returning to their workaday lives. It is, in a very real sense, society’s verdict — not the system’s.
It’s here, especially, that you might wonder if the Government has thought its plans through. We live in an age of judicial politicisation, with the increasingly judiciary dragged into political matters — dragged, more often than not, by politicians reluctant to actually make decisions themselves. And yet this government, nominally so committed to the protection of the judiciary, led by a former director of prosecutions, sees no issue with individual judges being required to give their reasoned verdicts for acquittal or conviction. Nor is the carve out for “public interest” cases any answer. Who, for example, will decide what qualifies, and how will the Government answer the inevitable charges of two-tier justice when certain cases are granted a jury while comparable ones aren’t?
Either way, restricting juries represents a shift towards an increasingly technocratic and legalistic state, taking one of the fundamental questions in society — who gets to decide innocence and guilt — ever more out of the hands of the general population. It’s all too easy, here, to see the problems that might arise from removing, in the words of the judge and legal philosopher Lord Devlin, the “protection against laws which the ordinary man may regard as harsh and oppressive”. For Devlin, the “little parliament” that each jury represented was central to British democracy: he could not “see the one dying and the other surviving”.
And certainly, if, as Devlin states, the first objective of any would-be dictator would be to neuter Parliament, the next would be to diminish trial by jury. “For no tyrant,” as Devlin warned, “could afford to leave a subject’s freedom in the hands of twelve of his countrymen.” Indeed, the justifiable outrage at certain overzealous hate-speech prosecutions only shows that we can’t simply rely on the law being just. Juries, for close to 1,000 years, provide a key protection against the excesses of a state that will, by its nature, rarely be primarily concerned about the law’s effect on an individual. The security of a jury trial can be the difference between ruin and redemption. And one day, you might need 12 of your peers to judge you too.
