When it was “leaked” last week that David Lammy planned to abolish jury trials “for all but the most serious offences” in an attempt to reduce the backlog of around 80,000 crown court cases, outrage amongst criminal lawyers was tempered by the fact no one actually believed it.
We’d read the report commissioned by the Ministry of Justice from retired Court of Appeal judge Sir Brian Leveson to find costneutral solutions. And we suspected this was a market trader haggle where one starts ridiculously high so the inevitable compromise reflects the starting point all along. An unworthy tactic for someone with the title of Lord Chancellor maybe, but one we see all too often in the Only Fools and Horses version of modern British politics.
It was no surprise then to read Tuesday’s formal announcement and find that Lammy has diluted the plans – “retreating from the most radical reforms”, as the BBC put it.
Even now, there is scant detail – perhaps indicative of the scant thought that has gone into these proposals – but they can be summarised thus: jury trials in England and Wales for crimes that carry a likely sentence of less than three years (down from five in the leak) will be scrapped; defendants will lose the right to ask for a jury trial where a case can be dealt with by either magistrates or a new form of judge-only crown court; and defendants facing fraud and complex financial crime accusations will no longer get a jury trial.
Magistrates will also have increased powers to impose sentences of up to two years from the current maximum of six months (or 12 months for multiple offences). Whilst devoid of helpful detail, the one thing that can be commended is the announcement’s clarity. The proposals seem, at this stage, to speak for themselves. But a clear idea is not necessarily a good one.
Statistics show magistrates use custodial sentences ahead of the alternative at a far greater rate than the crown courts. At the moment they can only do so to a multiple offence maximum of 12 months. If we increase that court’s sentencing powers to cover far more cases, the trend suggests we will see far more offenders sent to prison.
Some might say “so be it”, but we don’t live in a world where “so be it” is simple. We live in a world where our prisons are already so overpopulated that thousands of prisoners are being released early. Without a prison rebuilding programme to counter the effects, where is the benefit to anyone of this proposal?
Clearly the most controversial issue is the automatic removal of the right to trial by jury – a cornerstone of English justice since the 12th century.
As Lord Devlin wrote in 1956: “Trial by jury is more than an instrument of justice and more than a wheel of the constitution – it is the lamp that shows that freedom lives.” So I have a simple question: will the destruction of the millennia-old right to trial by jury assist in reducing the crown court backlog? And my answer is no, it will not assist at all.
The crown court backlog has many causes, all stemming from the systemic underfunding of criminal justice that began in the 1990s. Primary amongst causes is the fact the Government will not pay to operate existing courtrooms; and that their unwillingness to pay criminal lawyers even a measly percentage of the rates they could charge commercially in other areas of law – alongside conditions that have made the job a punishment – has seen an exodus from the profession. In short, there are no longer enough barristers or judges.
Now guess what has not contributed to that backlog? A lack of jurors. In fact, we have an abundance, way more than we can accommodate with the reduced number of lawyers and all those locked courtrooms. This being so, how will removing juries help? Well, we still won’t have enough lawyers or judges.
The Government still won’t pay to open those 20% to 25% of courtrooms they keep locked. In other words, we will still lack all the essential elements needed to hold a trial. Jury trials did not cause this backlog. Nor will their abolition cure it. Instead it will strip us of a fundamental right so Lammy and his cohorts can say they did “something”. Even if it was never going to work. It’s time to show we see their actions for what they are. It’s time to fight back.
Tony Kent is an author and lead associate counsel, Ewing Law
