There is growing public concern that the government might restrict the right to trial by jury in light of the COVID-19 pandemic and the backlog of criminal cases. Sadly, the Lord Chancellor, the Lord Chief Justice and the former President of the Supreme Court have all intimated that the right to jury trial could be temporarily restricted in some criminal cases. While we recognise the huge problems created by the backlog for all who use and practice within the criminal justice system, Garden Court Chambers is implacably opposed to any dilution of the right to jury trial, whether temporary or permanent. Replacing a jury with a judge and two magistrates or reducing the number of jurors from twelve to seven is no solution to the problem and will inevitably reduce the quality and fairness of the criminal justice system.
Those who support restricting the right to jury trial talk as if COVID-19 is the only reason for the backlog. The reality is that the backlog has been caused by massive underfunding of the criminal justice system over many years, court closures, reduced sitting days, a lack of new criminal court centres, the reduction in retirement age for experienced judges, the lack of judges qualified to try the most serious cases, the extraordinary waste of court time caused by defendants not being brought to court on time, due to the privatisation of the prison system, and massive reduction in police budgets. These are but examples. There are many more.
It is also important to put the backlog into context. Pre-lockdown there were 39,214 untried cases in the Crown Court. As of the end of May this figure had increased to 40,526. This starkly demonstrates that restricting the right to jury trial is in fact being proposed to cope with a problem which has not been caused by COVID-19 but merely exacerbated by it. COVID-19 has added to the Crown Court backlog by only 1,312 cases. The reality is that if restricting the right to jury trial is introduced, it will likely never be reversed, because without substantial reinvestment in the criminal justice system, the backlog will become endemic.
In any event, restricting the right to jury trial will not cure the backlog, because what has been overlooked is that those remanded in custody pending trial are entitled to have proper consultations with their lawyers. At present, this is impossible. For example, HMP High Down, with a prison population of 1,200 is offering twelve video consultations a day. It has a log jam of six weeks. There is a similar picture at other prisons. Unless a safe infrastructure can be provided, which allows lawyers to take instructions from their clients and prepare cases, restricting the right to jury trial is pointless and will fail to reduce the backlog.
We make these points to underline why COVID-19 should not be allowed to limit the highly prized right to trial by jury. However, there is a far more fundamental point, even assuming that reducing the number of jury trials would achieve anything administratively.
It is a fact that our magistracy and judiciary are overwhelmingly white and largely mistrusted by our African, Caribbean and Asian communities. Extensive research, for example by the Lammy Review, has shown there is good reason for this mistrust. Disproportionate treatment and outcomes based on race and ethnicity continue to plague the criminal justice system. For example, African, Caribbean and Asian offenders are significantly more likely to receive custodial sentences from magistrates and judges than white offenders for comparable crimes. By contrast, the one public institution that is a notable anti-racist success story is the jury system. In an analysis of nearly 400,000 jury cases, the Lammy Review found that juries appeared consistently able to keep race and ethnicity out of their decision-making. To give more power and authority to magistrates and judges at the expenses of juries would inexorably lead to an increase in racially discriminatory decision-making in the criminal justice system.
In recent weeks following the murder of George Floyd, the Black Lives Matter movement in the UK has brought into acute focus the institutional racism within our society. We cannot take a step back from addressing this insidious problem. We need societal change and we need it now. In that context, restricting the right to trial by jury would do irreparable harm. It would further erode trust in state institutions, burn bridges between communities and exacerbate the racial injustices that already exist within the system. It would perpetuate and reinforce a system of predominantly white Crown Court judges, sitting in judgment upon diverse communities. This cannot be a price worth paying.
There are many options that can be deployed to preserve our jury system and in consequence a vital part of the democratic fabric of our society:
- Using underused civil courts for jury trials and other court buildings across the court estate;
- Using buildings outside the court estate for jury trials;
- Reinstating sitting days to full capacity;
- Halting the closure of courts;
- Using more part-time judges (recorders), many of whom have not been deployed for over a year, due to funding limitations imposed long before the outbreak of COVID-19.
The most important thing to understand is that any restrictions on the right to trial by jury, put forward to cure what is said to be a temporary problem, will do nothing of the sort. Once introduced, such restrictions are likely to become permanent. Meanwhile, they will hurl a wrecking ball at long overdue attempts to build trust between the criminal justice system and our African, Caribbean and Asian communities.
