the jury is out
Our criminal courts are massively backlogged, dangerously close to collapse and the Government is proposing to limit the use of juries in England and Wales. Is the plan justified?
Not that I was there but down the road in Runnymede, in 1215, Magna Carta enshrined the right of every free man not to be “seized or imprisoned, or stripped of his rights or possessions except by the lawful judgement of his peers”. By the 15th century, the jury had become the established form for both criminal and civil cases, supplanting trial by ordeal. Juries remained ’12 men good and true’ until 1920 when, thankfully, women were allowed to serve. The current three-tier system was first codified by the Criminal Law Act 1977, dividing offences into the most serious (encompassing murder, aggravated burglary, people trafficking and GBH) that are triable by a jury in a Crown Court; less serious offences that are tried by magistrates and ‘either way’ offences where defendants can usually choose.
With over 80,000 cases waiting to be heard, there are record backlogs and the criminal justice system is in obvious crisis. This has built up for various reasons including reductions in funding, staff shortages, inefficiency in court systems and more complexity due to the use of DNA and digital evidence. Furthermore, all these problems were greatly exacerbated during the pandemic. Jury trials now take more than twice as long as they did in 2000 and trials are now being scheduled for as late as 2030. As the legal maxim has it, justice delayed is justice denied.
In much of the free world, juries are not used and under the reforms proposed, jury trials are expected to be cut by half. Jury trials will still be guaranteed for the most serious offences mentioned above but ‘either way’ offences with likely sentences of three years or less will either be ‘judge-only’ in new swift, or ‘blitz’ courts, or heard by magistrates. Similarly, complex fraud and financial crimes will be rightly diverted to judge-only.
Sir Brian Leveson estimated that judge-only trials would be 20% faster, significantly cheaper and request far fewer jurors to serve. In addition, contrary to the belief that juries ensure diverse perspectives and a higher degree of common sense, judges are accountable whereas juries are not. Jurors may have twelve different reasons for making a particular decision but they are prevented, by law, from revealing them. This makes appeals difficult and miscarriages of justice (Guildford Four, Birmingham Six, Stephen Downing et al) hard to correct.
However, whilst all this sounds both sensible and an overdue move in the right direction, the bad news is that jury trials make up only 3% of criminal cases and they are not the real problem within the court system, everything else is! The backlogs in our courts need to be tackled urgently with additional funding, investment and increasing staff resources together with dramatically raising the number of sitting days of all courts and lifting the current caps and restrictions. Sadly, the system is not fit for purpose, it is guilty as charged and tinkering at the edges will achieve nothing of note.
