Jury's out: Lammy's proposals jeopardise justice

Why is a government led by a human rights lawyer proposing to cut access to jury trial?

Photo by Tingey Injury Law Firm on Unsplash

Later today the House of Commons will have its first opportunity to vote on the government’s plans to cut access to trial by jury. In order to browbeat sceptical backbenchers into toeing the government line, justice secretary David Lammy has entreated us to think of the victims of crime, such as the women who’ve experienced sexual assault. How could we deny them the speedier justice that would supposedly result if we charged a judge rather than jury with deciding on the accused’s guilt? His deputy Sarah Sackman has invoked the career criminals who she says “game the system” by electing for jury trial to delay their reckoning with justice. Meanwhile, the government says removing the right of some defendants to elect for a jury trial will “bring the courts more into line with other public services - where it is the experts… who do that triage.” As if a defendant wrongly accused of a crime is in the same boat as someone who goes to their GP expecting to be referred to the right specialist.

It is a deeply cynical attempt to ram through a rollback of civil liberty safeguards. We are supposed to believe this is at once an incremental reduction in rights for those who stand accused of committing a crime, and that it will also deliver a transformation in outcomes for victims. This is an insult to voters’ intelligence.

Justice needs juries

Trial by jury is the fairest way of determining the criminal liability of defendants whose liberty is at stake. Unlike in civil cases, in which the facts of a case are usually decided on the balance of probability - what is more likely than not to have happened - the criminal standard of proof requires juries to be sure that a defendant is guilty of a crime in order to convict them. Almost certain isn’t enough. This standard means we quite rightly let probably-guilty people walk free. That is the price of minimising the number of innocent people locked up for a crime they didn’t commit.

Putting the decision about whether or not someone is guilty into the hands of one judge increases the risks of miscarriages of justice, because it requires just one person to be “sure” of someone’s guilt rather than twelve (or in the case of majority verdicts, ten). That feels like a significant watering down in how we practically apply the criminal standard of proof. Judges are learned individuals highly expert in the law. But when it comes to deciding the facts of a case, they are as human as the rest of us: there is no such thing as an unbiased individual.

Juries provide a triple safeguard. Ten to twelve fellow citizens, not a single judge, must agree someone is guilty based on the evidence. The process of deliberation helps iron out human bias as jurors can challenge each other’s understanding of the facts. And jurors have not seen case after case in the criminal courts, heard the same defence run over and over, and sentenced countless criminals to prison, like judges have. This helps them put themselves in the shoes of the defendant as well as the victim, and to appreciate just how much is at stake on all sides.

The government’s proposals

Not everyone charged with a crime has the right to a jury trial. The vast majority of criminal charges brought are for minor, “summary” offences that are tried by three volunteer lay magistrates, or a single legally-trained magistrate. For mid-tier “either way” offences such as burglary or intent to supply drugs, defendants pleading not guilty have the right to choose a jury trial or to be tried in the magistrates’ court. The most serious indictable offences, are always tried in the crown court by a jury. Until relatively recently, magistrates were only able to sentence individuals to up to six months in prison; back in 2022, the government extended this to 12 months.

The government is proposing three radical shifts. First, it wants to dramatically increase the sentencing power of volunteer magistrates so they will now be able to send someone to prison for up to two years, a quadrupling of the maximum sentence in just four years. Second, it wants to remove the right of those accused of “either way” offences to choose a jury trial. Instead, a single judge will charged with deciding whether or not to convict someone of a crime that comes with a prison sentence of up to three years. Only individuals charged with crimes that carry sentences of more than three years will have the right to trial by jury. The government estimates that as a result, the number of jury trials in England will halve from 15,000 to 7,000 a year.

Third, it is planning to remove the automatic right of appeal for people convicted by magistrates, at the same time as extending their sentencing powers. Volunteer magistrates are unrepresentative of the population at large and often have limited experience of the chaotic lives of those before them. More than 40% of appeals against magistrate verdicts and 47% of appeals against magistrate sentences are successful. And while juries are no more likely to convict ethnic minority than white defendants, black women are 22% more likely to be found guilty by magistrates than white women.

Why mess with our civil liberties in this way?

The government has put increasing the efficiency of the courts system, and reducing the backlog of cases that has steadily grown as a result of fifteen years’ of underfunding, front and centre of its arguments for reform.

The court backlog is indeed terrible for justice: years-long delays in cases coming to trial mean it is less likely to be served, harming not just victims but innocent defendants. But the Institute for Government has assessed the impact of these reforms on court delays, and its verdict is that they would only result in “extremely marginal gains”. It concludes the government would do better to focus on their other, uncontroversial reform proposals, such as increasing the number of court sitting days.

But ministers have also implied that even if there wasn’t a major backlog, they would still be considering these reforms. Sackman has claimed the reforms are “ideological” and part of a “modern justice system”. Lammy seems to intimate trial by jury is somehow antiquated, writing “in Canada, I felt like a visitor from the past as I toured their modern justice system, where judge-alone trials are an everyday occurrence”.

“Old-fashioned civil liberties!” might seem like an odd strapline for a government led by none other than a human rights lawyer. But it hints at a couple of unattractive traits in Starmer’s politics.

The first is about vantage. On a range of issues, Starmer seems to understand the concept of “human rights” from the perspective of those who have more power in society, who are more easily heard, and whom the system is less likely to envelope in Kafkaesque nightmare. We see this not just in his approach to jury trial, but to assisted dying, where the rights of affluent campaigners with excellent social support who want the right to state assistance to end their own lives matter more than the rights of those who are vulnerable to being coerced into asking their doctor to prescribe them lethal drugs. Or in his inexplicable reluctance to make clear before 2023 that allowing men to self-identify into women’s spaces, services and sports would undermine their privacy, dignity and safety.

The second relates to how he sees ordinary citizens. Voters are not especially keen on politicians who they sense looking down on them. It is a bit of a tell when ministers move from promoting judge-only trials on the basis they reduce the backlog, to notions of modernity. It suggests Starmer actively prefers the idea of justice done by the learned judges in his social network over the little people who sit on juries. That plays straight into the anti-elitist rhetoric of populist politicians like Nigel Farage and Zack Polanski.

This is not a government generally characterised by a reforming zeal or a passion for change. It is remarkable to me that two of the most radical - and ill-conceived - shifts backed by Starmer are the risky legalisation of medically-assisted suicide, and curtailing citizens’ rights to jury trial. Are they really what he wants his premiership to be remembered for?