Chambers’ Response to Government’s Proposals to Reduce Right to Trial by Jury

We are astonished at the government’s policy, formally announced today, to reduce the use of juries in criminal trials. We are firmly opposed to any such move for a number of reasons. Reducing the use of juries would erode the fundamental feature of our criminal justice system which was, at one time, a shining example to the world.

At Nexus Chambers, the Chambers of Michael Mansfield KC, we pride ourselves on access to justice, human rights, liberty, and standing up for those who are often downtrodden, misunderstood, or left behind in one way or another by society.

We appear, usually to defend, in the full range of serious criminal trials including protest, sex offences, murder, drugs, etc.

The jury system is the bedrock of our liberal society. Juries are essential for many reasons – not least that they facilitate participation in the Criminal Justice System by a wide range of people drawn from the local community – “trial by a jury of one’s peers”.

The jury system is a bulwark against discrimination and state over-reach; this can be seen in the concept of “jury equity” – where juries will sometimes acquit people out of conscience – this happens often in protest and civil disobedience cases.

At a time when our society already feels like it is fracturing and people are disconnected from each other and the state – reducing the use of jury trials would significantly aggravate that problem. Criminal justice would become aloof and distant – dispensed by judges who are, by and large, completely unrepresentative of the people over whom they preside.

Juries bring common sense and real-world experience. The fact that there are twelve jurors balances any prejudice or bias – those jurors who do seek to bring any bias would have to justify it in front of 11 of their peers. Criminal justice is dispensed in the open, in front of a representative cross-section of local society. It is democracy at its best.

Jury service – like voting – is a civic duty. But unlike voting (which is optional), jury service is one of the few positive obligations imposed on us by the state. Juries are a central aspect of our liberal society and must be retained.

We also believe that the proposal to reduce the use of juries would not achieve the stated aim of reducing the Crown Court backlog. It would not save any time and would not lead to efficiency savings in the criminal courts.

The Crown Court backlog has been caused by all manner of things unconnected to the use of juries:

• the court closures during the pandemic lockdowns;
• population growth without a concomitant increase in criminal justice system capacity;
• an increase in charging of some offences;
• an increase in the number of defendants being held on remand, which makes trials more logistically complex;
• logistical difficulties in trials often caused by contractors such as Serco (custody transport) and interpreters;
• increased complexity of criminal procedure and the law of evidence; and most importantly
• the government’s ongoing and wrongheaded policy of restricting the number of Crown Court sitting days.

If the courts were permitted to sit at full capacity and really crack through the backlog, it could be reduced rapidly we think. Of course that would require some imagination with sentencing – because it is not possible to send offenders to prison at the same rate if we chose to really get the backlog down. But there are many ways to punish people that are more effective than simply locking them up. This would in turn reduce the number of remand prisoners (currently said to be 17,000 – or nearly one fifth of the total prison population) – freeing up space for convicted defendants in prisons.

Judge alone trials would not, in our view, save a significant amount of court time nor free up sitting days:

• Firstly, we would lose the benefit of separating the tribunals of law (the judge) and fact (the jury). Lots of procedural law is based on that separation – how will judges in reality rule on admissibility of bad character evidence and then exclude it from their consideration. That is an artificial exercise which would undermine the fairness of trials.

• Secondly, juries do not give reasons for the decisions and accordingly their findings are not subject to appeal per se. Criminal appeals almost exclusively focus on the judge’s rulings and whether the trial was fair and the conviction safe. If we move to judge-only trials the judges will have to give reasoned judgments on the ultimate questions of fact and that will take time for the judges to prepare – and will open up a significant increase in costly and complex appeals.

• Thirdly, we completely reject Sarah Sackman KC MP’s suggestion that some defendants are electing trial on indictment simply to delay trials. In our experience defendants are just as eager as everyone else for their trials to proceed quickly. Defendants do not want to spend 1-2 years on remand waiting for trials that now routinely cannot take place within the custody time limits.

When advising defendants on election, the reasons for electing trial on indictment are usually: (1) the fairness of a jury trial with proper procedural and evidential safeguards – as opposed to a summary trial with magistrates alone who tend to be very pro-prosecution; and

(2) the lower conviction rate with juries compared to magistrates alone. It is inevitable that convictions rates would go up with non-jury trials – that is worrying and unfair.

We are very surprised and concerned that Labour has proposed this radical policy without any consultation and when there was no word of it in the party’s election manifesto. Furthermore, David Lammy has spoken so powerfully, whilst in opposition, against the policy he inexplicably now proposes.

Various governments over the decades have tried to get rid of juries – perhaps it is because juries stand up to governments? Protest cases, Bushel, Ponting, Blake etc.

Lewis Carroll had the problem in a nutshell in 1865. As The Queen of Hearts said during the trial of the Knave of Hearts: “Sentence first – verdict afterwards”.

We implore David Lammy, Sarah Sackman, and Kier Starmer to abandon this very wrong policy. The right and proper way to reduce the backlog is to remove the cap on “sitting days” and increase funding for the criminal justice system.

Michael Mansfield KC and all at Nexus Chambers