Tuesday 30 June 2020

Is the criminal trial jury under threat ?

"Our justice system is built on the principle that the law will be applied impartially. In the cases that involve the greatest harm to victims and the longest sentences for offenders, juries are the guardians of this principle. Our jury system may be centuries old, but it is still fit for purpose today" - Report by David Lammy (2017).  

I suspect that many people within the criminal justice system and elsewhere fully expected calls for removal of jury trial as a means of dealing with the backlog of criminal cases which actually developed long before coronavirus (Covid-19) arrived.

The Law Society Gazette (27 March 2020) commented- "The backlog of Crown court cases in England and Wales has reached its highest level in
two years as lawyers fear coronavirus will be a ‘car crash’ for the criminal justice system. According to figures for October-December 2019, the number of outstanding Crown court cases increased by 13% year-on-year, from 33,113 in 2018 to 37,434. This has caused the biggest backlog of criminal cases since 2017." Figures for January to March 2020 show a further increase to 40,173 cases. The backlog is a further consequence of the cuts to services endured over recent years including court closures and not using the remaining courts to full capacity.

Coronavirus has had a major impact on the criminal justice system and in particular, with the jury system in the Crown Court.

On 23 June, the Secretary of State for Justice and Lord Chancellor (Mr Robert Buckland QC MP) gave evidence to the House of Commons Justice Committee and outlined the efforts already made and those being made to address the backlog of cases. Significantly, Buckland did not rule out the possibility that jury trial may have to be restricted. He emphasised that, as a last resort, he would support trial by a Judge sitting with two magistrates for some (perhaps not all) either-way offences (i.e. those which are triable either by the Magistrates' Court or the Crown Court).

This would be a major change to the legal system but, on a more profound level, a major alteration of the long-standing right of the citizen charged with a more serious offence to be tried by a jury. Primary legislation will be required to make such changes. As far as Buckland was concerned the change would be subject to a "sunset provision" with no power for Ministers to extend it. The legislation would need to be in place within weeks so that the backlog could be fully addressed by around Easter 2021.

An alternative idea mentioned at the committee hearing was the possibility of smaller juries - 7 members - along the lines of juries during World War 2 when the Administration of Justice (Emergency Provisions) Act 1939 authorised trials with only 7 jurors, except for treason or murder.

Even for the most serious offences, a trial by jury is not an absolute requirement of English law. There are some statutory provisions permitting trial by a judge alone - Criminal Justice Act 2003 Part 7 and Domestic Violence, Crime and Disorder Act 2004 section 17 and appeals against conviction by the Magistrates' Court are heard in the Crown Court by a Judge sitting with two Magistrates.

Having noted these exceptions, the fact remains that the jury enjoys the general confidence of the public and, as the Lammy Report (2017) pointed out - "Our jury system may be centuries old, but it is still fit for purpose today. Successive studies have shown that, on average, jury verdicts are not affected by ethnicity.  A detailed study of verdicts across England and Wales, published in 2010, found that BAME and White defendants were convicted at very similar rates, including in cases with all white juries. It concluded that ‘one stage in the criminal justice system where B[A]ME groups do not face persistent disproportionality is when a jury reaches a verdict.’

Thomas, C. Criminal Law Review, number 9. Ethnicity and Fairness of Jury Trials in England and Wales 2006-2014 (2017)

During June 2020, the Criminal Bar Association conducted a survey of its membership and the outcome is an overwhelming endorsement by the legal profession of trial by jury and of the need to address the backlog by methods other than restricting rights to jury trial - e.g. acquiring and using additional buildings. In its Monday Message (29 June 2020) the Chairman of the Association (Caroline Goodwin QC) commented -

"We salute the Criminal Bar; We applaud its resolve; We recognise its self-less approach. In a time of huge uncertainty where barristers have had no income for three months, have received no government bail-out and have difficult choices ahead, it would have been so easy to capitulate and say “oh go on then, it doesn’t really matter” and that is precisely what you have not done.

The Criminal Bar Association ballot results are a testament to the unity of the profession against the scrapping of jury trials, where the dismantling of the criminal justice system was far easier than confronting the government created problem, where regime after regime has taken an axe to the budget. It beggar’s belief that the removal of 800 years of quality justice for the public and delivered by the public is contemplated as “inconvenient” and might be removed at the click of someone’s fingers."

Without any reservation I endorse that view. Rights must not be sacrificed on the altar of responding to coronavirus. History shows that rights once removed are difficult if not impossible to recover. "Sunset provisions" - however well-intentioned - ought to be treated with the greatest of suspicion and, when enacting them, reason can always be found to insert provisions allowing Ministers to extend the provisions.

Coronavirus has done enough damage: don't let it wreck what remains good in our justice system.


The Guardian 2 July - MoJ prefers 'nightingale' Crown Courts to tackle huge backlog of cases

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