Is it right that somebody accused of stealing a bottle of whisky should be ahead of the queue of the rape victim waiting for her jury trial?
That is the question at the centre of the government’s controversial plans to restrict the right to a jury trial to all but those accused the most serious offences. A Ministry of Justice memo which leaked this week detailed justice secretary David Lammy’s plans to introduce a new “lower-tier of the Crown Court which hears cases likely to receive a sentence of up to five years by a judge alone”.
The idea is not new. This July, it was recommended in a report by Brian Leveson, the retired judge tasked with overhauling our justice system. The Conservatives also floated the restriction during the pandemic, when Covid exacerbated a courts backlog already in the tens of thousands thanks to a decade of underfunding.
The story was overshadowed somewhat by frenzied coverage around the Budget, but this is not the kind of thing the opposition will let the government slip through. Shadow justice secretary Robert Jenrick was in the House of Commons bright and early on Thursday morning with an urgent question about the plans. The task of defending them fell not to Lammy but to courts minister Sarah Sackman.
“Jury trials will always be a cornerstone of British justice,” Sackman insisted, framing the proposed changes as necessary to “protect the fundamental right to a fair trial”. The argument goes that the present backlog is its own threat to justice. The queue comprises nearly 80,000 Crown Court cases and victims and defendants are waiting up to four years for trials. Shifting most cases currently eligible for a jury trial onto a judge-only system will make space for the most serious cases – murder, manslaughter, rape – to be heard. “We are on the side,” Sackman declared, with an icy look at the Conservative benches, “of swifter justice for victims, while they’re prepared to watch the system rot.”
It goes without saying that the shadow justice secretary was unimpressed. “Jury trials are fundamental to the justice system, they are fundamental to democracy and we must protect them,” Jenrick said, before helpfully pointing out that he was actually quoting the past words of David Lammy in 2020. He accused the government of taking a “lawyers know best” approach to the courts backlog as they have (he argued) with the handover of the Chagos Islands and commitment to remaining within the ECHR. Restricting jury trials, according to Jenrick, “casually casts aside centuries of English liberty”.
This is interesting politics. Jenrick, as Sackman furiously highlighted in her response, has somewhat of a patchwork history when it comes to defending British legal traditions such as not denigrating our judiciary. His Conservative Party Conference speech this year saw him rage against “activist judges” while holding up wig, arguing that the Judicial Appointments Commission should be scrapped and the Justice Secretary should have the right to appoint judges. His claim that restricting jury trials is for the benefit of lawyers doesn’t hold up either. A poll of criminal barristers from July found that almost 90 per cent oppose the change. The chair of the Criminal Bar Association has warned the proposals would “destroy a criminal justice system that has been the pride of this country for centuries, and to destroy justice as we know it”. In other words, exactly what Jenrick said.
In other circumstances, the restriction might have been seen as Tory-coded. One can imagine a hardline law-and-order Conservative justice secretary (of the type Jenrick likes to channel in his interventions) robustly decrying the right of shoplifters and muggers to demand a time-consuming jury trial at ten times the cost of the alternative. Appeals about “centuries of English liberty” would fall on deaf ears.
This is not how Labour is framing the proposals. Sackman’s case was that this is about modernisation, fairness, and “finally putting victims first”. Behind each of the tens of thousands of cases in the backlog was, she reminded the house, an actual victim whose life is on hold. They deserve swifter justice – either by the defendant being tried in a lower-tier judge-led court, or for more serious cases by moving to the front of the queue when the system is less overstretched.
It helps the government that Leveson’s proposals have received cross-party support, including from five former Lord Chancellors. It also helps that jury trials are not particularly popular. A YouGov poll this week found 41 per cent of people would support the restriction for crimes with sentences of five years or left, compared to 36 per cent who oppose it. Around 90 per cent of criminal cases are already heard by magistrates courts, making this an extension of existing policy rather than a radical change. And while Magna Carta might enshrine the right to trial by jury, it has just as much to say about justice not being delayed.
What doesn’t help the government is the fact that anyone who really wants to fix the courts system needs to start with money. The MoJ lost over a quarter of its funding during the austerity years. A third of courtrooms were sold off, and those that remain (in many cases falling to pieces) often stand empty due to staffing shortages. The existing backlog is the result of a decade and a half of Conservatives choosing to underfund the justice system. But, though Labour may not like to admit it, this decision is also a political choice, albeit one that chimes with public sentiment about spending priorities. Rachel Reeves this week raised taxes by £20bn more than was needed to meet her fiscal rules: some of that cash could have been put in the justice system rather than restricting jury trials. Lammy and his team will have to work hard to sell this as the best way to get victims – and, indeed, defendants – the justice they deserve within a time frame that doesn’t make a mockery of the courts system.
Still, as unintended consequences go, there’s a sense of surrealism about hardline Tories like Jenrick (not to mention Nigel Farage) taking the side of the legal establishment, Britain’s liberal traditions and individuals charged with some quite serious crimes.
[Further reading: Rachel Reeves hits young graduates with a double stealth tax]
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