Who needs 12 when one will do?

Trial by jury was once described as "the lamp that shows that freedom lives". But now, reveals Nick

The citizens of banana republics can guess their masters' plans when soldiers in black leather storm the radio stations and broadcast martial music. The British learn that their freedoms are going when civil servants in ill-fitting suits go to the pub and get sloshed. At the end of October, a drinking school met at the Home Office's local: the Adam and Eve, on the south side of St James's Park, London. The booze had its customary amnesiac effect, and one man toddled home without his briefcase. Copies of its contents have been circulating among MPs, civil libertarians and journalists. There are 300 largely tedious pages of printed-out e-mails and reminders of the "messages" to be parroted at all Home Office events. Half-buried in the gossip and spin is a timetable for the devastation of the right to trial by jury.

There is no older civic duty than public participation in the law. As juror or magistrate, the citizen can compete briefly with the power of a professional judge or politician. Popular control is intolerable to a Prime Minister who boasts he is on the side of the people in the battle against the "elite"; it is dismissed as a brake on efficiency by a Home Secretary who says he is in politics to revive civic life. Together, they will cut the number of jury trials by two-thirds.

The estimate comes from an appendix compiled by Ian Chisholm, the head of the Criminal Justice Reform Unit at the Home Office, for a meeting of the cabinet's criminal justice committee on 25 October. It was bounced round Whitehall mailboxes and printed out by the forgetful civil servant (who wasn't Chisholm, I am told).

The leak showed that the government was preparing a vast bill of 525 clauses. It will transform into authoritarian law a report from Sir Robin Auld, an Appeal Court judge, who was instructed by the Lord Chancellor to examine the future of the criminal courts, and a review of sentencing by John Halliday, a former Home Office civil servant.

In the privacy of their "restricted" documents, the civil servants did not trouble themselves with the principles of justice. The sole concern of Chisholm and his colleagues was the "potential controversy" that each measure may raise. Juries get the highest rating.

Auld proposed the creation of a new intermediate district court where a judge, whose appointment and chances of promotion to the higher judiciary depend on the Lord Chancellor, will replace juries answerable to no one. The judge will sit with two magistrates, but will be in charge. The court will be "highly controversial because of the link with jury trial", notes the Home Office. "Magistrates will resist change."

Many of the defendants before the district judges will be the type of suspects whose cases are currently classified as "either-way". These are trials for quite serious offences, such as theft, burglary, drug use, minor frauds and sexual assaults. They may not make the national news, but carry prison sentences, and can destroy reputations and careers. The defendants' right to opt for either trial by magistrates without a jury or trial in front of a judge and jury at the Crown Court will go, the cabinet committee was told. Its removal, the appendix noted, is "likely to be highly controversial". Next to the bad publicity alert someone has scrawled: "Two-thirds of jury trials disappear."

The government isn't stopping there. Auld wants to ban juries from all cases that would attract a sentence of less than two years, and the government will oblige him. It will also accept his recommendations that fraud cases and nearly all trials of children aged 16 and 17 should be jury-free zones. (For good measure, prosecutions of teenagers will be held in camera.)

The Bar Council said the Home Office estimate of two-thirds of jury trials disappearing is right. Harry Fletcher, spokesman for the probation officers' union, Napo, put it slightly higher. Approximately 50,000 cases a year are heard by juries at the Crown Court, he said. If you add up the consequences of the measures the cabinet is discussing, you find that somewhere between 70 and 75 per cent of jury trials will be lost - that's around 35,000 cases.

The First Division Association of senior civil servants and the Association of Magisterial Officers agree broadly with Fletcher. They estimate that a cut in jury trials by between 70 and 80 per cent is on the way.

One of the best definitions of this country used to be that the English were innocent until found guilty beyond reasonable doubt by a jury of their peers. Not any more. In America, Australia or any other common-law democracy, it would need a coup d'etat to implement the government's programme.

The ushering of the public from the courtroom will be accompanied by a bogus public consultation. Auld's report was released in October. The deadline for responses is 31 January 2002. Chisholm wrote that final decisions on what measures will become law will be taken by the cabinet committee "in February/March 2002", which in theory gives ministers a few weeks to take account of the public's views.

The chances of them listening at all are non-existent. The memo to cabinet says work has already begun on 400 of the 525 legislative clauses, which scarcely suggests an open mind. In April, six months before Auld reported, the Lord Chancellor's Department advertised for a head of courts reorganisation. Whitehall somehow knew that Auld would call for judges to replace juries before he had written a word. Auld was "considering the possibility of establishing an intermediate tier of courts, in which cases would be tried by a stipendiary magistrate [district judge] supported by two lay magistrates", the ad read. As soon as Auld said what Whitehall wanted him to say, "rapid action is envisaged". Sweeping out the safeguards of English law "will clearly be one of the highest priorities of both ministers within the department and collectively".

Indeed it will be, and it won't be only juries that disappear. The presumption of innocence ensures that a court hears only direct evidence that a suspect has committed a crime. The list of his past convictions is hidden, so it does not prejudice the court. Meanwhile, the rules against hearsay prevent the repetition of rumours and speculation. Witnesses must confine their testimony to what they know for certain.

The papers for cabinet show the government will allow a suspect's previous convictions to be broadcast to one and all. (The measure will be "highly controversial", Chisholm admits.)

On 24 September, with talk of the war against terrorism at its height, the Prime Minister found the time to tell the Home Office that he absolutely agreed with Auld's modest proposal to admit hearsay evidence. It is impossible to escape the conclusion that Auld has provided legal cover for what the government was going to do anyway.

In private, no one in Whitehall pretends that prejudicing fair trials will catch the Napoleons of crime. In one of the many round-robin e-mails, Chisholm worried that the Association of Chief Police Officers had told him its members had little time for Auld, because of "the lack of proposals to tackle organised, international crime".

Nor does the Home Office believe its measures will catch the hard core of minor offenders who commit the majority of crimes. Tony Blair and David Blunkett say they are determined to apprehend them. They have hired Lord Birt, a man who is as ignorant of crime as they are of liberty, to translate their wishes into public policy. The crackdown isn't going too well. The Observer reported that the pub documents showed that the Home Office had failed spectacularly to hit its target for convicting repeat offenders. Rather than examine their faults, civil servants wrote that they were "going to review the definition of 'brought to justice' " and spin their way out of bureaucratic failure.

The underlying bias of the leaked documents, the Auld report and everything this government has said about juries since it was elected is a technocratic suspicion of the public. Auld notes that all previous examinations of jury trials, from 1953 onwards, had pronounced themselves satisfied with jurors' work. What could justify overturning accumulated wisdom?

Auld scratches like an elderly hen clawing through dirt to find a reason until, with a triumphant squawk, he declares that "judges have been more fundamental than juries in declaring and protecting the rights of citizens. Sadly, juries did not prevent the miscarriages of justice uncovered in the late 1980s and early 1990s arising, in the main, from falsification or concealment of evidence that so shook public confidence."

It is a little frightening to think that a judge whose reasoning is so sloppy can sit in the Court of Appeal. The Birmingham Six and the Guildford and Bridgewater Fours were convicted, as Auld admits without a blush for the paucity of his argument, because details of the forced confessions and rigged forensic tests were kept from the jurors. The judges of the Court of Appeal then refused for years to accept the overwhelming evidence that the accused were innocent. The Birmingham, Bridgewater and Guildford cases were, in any event, murder trials. Since Auld proposes to keep juries for murder, the only point of raising the disgrace of the legal system is to shift the blame from learned judges to plebeian juries.

His anti-democratic thinking is equally well revealed in his proposal to remove the power of jurors to deliver "perverse" verdicts that put justice before the letter of the law. The modern equivalent of the 18th-century juries that refused to convict children clearly guilty of sheep-stealing, because they did not want them to be executed, will be taught not to get ideas above their station. They must follow the instructions of Auld's colleagues on the Bench, or have their verdicts overturned.

New Labour is just as supercilious. The John Major government first proposed removing juries for either-way offences. Jack Straw led the opposition, only to make a U-turn when he became Home Secretary. His Mode of Trial bill would have abolished 18,000 jury trials a year - half the new target. It was thrown out by the House of Lords, but not before Lord Lipsey, a government supporter, had said that black and Asian jurors conspired to acquit defendants with black or brown faces, and Lord Williams, then the attorney general, accused citizens who asked for what they had always assumed to be theirs by right of being little Hitlers exercising a "diktat".

As the bill was torn apart in the Lords, all the arguments for cutting back on juries were savaged except one: the "reform" will undoubtedly save money. Harry Fletcher says court costs will fall by about £250m a year. We have heard a lot about the price of freedom since 11 September. Now we have the exact figure.

It is a price well worth paying, as better lawyers and democrats than Auld and Blair knew. In Auld's review of the royal commissions and legal authorities that had supported trial by jury over the centuries, he quoted and then dismissed the declaration of the late law lord Lord Devlin, that the jury was the "lamp that shows that freedom lives".

Auld could not bring himself to give the full passage, so here it is: "The first object of any tyrant in Whitehall would be to make parliament utterly subservient to his will, and the next to overthrow or diminish trial by jury. [It] is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives." Our present tyranny has a subservient parliament already. Now it's after trial by jury.

Nick Cohen is an author, columnist and signatory of the Euston Manifesto. As well as writing for the New Statesman he contributes to the Observer and other publications including the New Humanist. His books include Pretty Straight Guys – a history of Britain under Tony Blair.

This article first appeared in the 03 December 2001 issue of the New Statesman, Who needs 12 when one will do?