Over 100 lawyers sign open letter slamming decision to scrap Lammy’s right to trial by jury

Over 100 lawyers, including 24 King’s Council, have written an open letter to David Lammy to express “deep concern” in response to the Leveson Review of the criminal courts.

Leveson proposed a Crown Court Bench Division (CCBD) and judge-only trials. The review formed the basis for Lammy’s subsequent proposal to scrap jury trials in all but the most serious cases. However, the open letter urges the lord chancellor to reject these recommendations.

Lammy shuffling problems around

The CCBD would involve a judge sitting beside two lay magistrates. It would deal with “either-way offences” (one which could go to Magistrates or Crown Court) with sentences of three years or less. However, the lawyers argue that this wouldn’t improve the backlog of criminal trials, but would “move the problem into a new arena”.

Leveson made several recommendations to reduce the backlog that might be worth consideration. However, the CCBD and judge-only trials “would be an irremediable error” argue the lawyers. It would erase a longstanding right to fair trial for no actual benefit, and at great monetary cost. Instead, the letter states unambiguously that:

The simplest solution is more court sitting days in existing courts, and judges and lawyers to staff them.

It also goes on to sing the praises of the right to trial-by-jury:

The right to trial by jury has existed since the concept of criminal trial. It is a fundamental feature of the common law. It is the basis upon which the state can legitimately condemn a person to punishment for committing a criminal offence.[…] The community sits in collective judgment over its peers, reviewing the case according to the evidence, law and social norms. This is acknowledged in our nation to be the best way of ensuring confidence in the justice system.

The (many) issues of the CCBD

The letter listed many compelling reasons that the CCBD would be unworkable. It would require significant recruitment of magistrates – a judge and two lay magistrates for most offences. However, the magistracy has been in decline, and there’s serious doubt over whether enough could actually be recruited at all. As such, magistrates and support staff would likely be drawn from the pool staffing Crown Court and magistrates’ courts.

Diverting judges from sitting Crown Court jury trials would not reduce the backlog. Likewise, if there’s money to pay new judges, it should be going to the Crown Court as it currently exists. Similarly, the CCBD need deliberation rooms, office space, waiting rooms, cells and docks. If there’s money for these new facilities, it should go towards reducing the backlog of the existing Crown Court.

Furthermore, jury trials don’t take so long that scrapping them would save significant amounts of time. In fact, because lay magistrates aren’t actually judges, trials would still need many of the most time-consuming elements – speeches, evidence, deliberation etc. The letter also pointed out that juries are often made to wait whilst lawyers argue, which wouldn’t be solved by getting rid of juries. Likewise, Leveson’s time estimates don’t account for a good deal of the time needed for CCBD cases – missing things like the pre-trial legal arguments, which could actually get longer.

And, importantly, the whole plan hinges on Crown Court judges actually wanting to work as “arbiters of fact rather than law”. Laying the burden of passing judgement onto a jury lifts a great deal of weight from the shoulders of judges. Without the jury, the judge would be left to impose weighty sentences alone, which isn’t a job they originally signed up for.

Judge-only trials: disaster in the making

The law actually already allows for judge-only trials in rare and limited circumstances. Likewise, there’s been a long and ongoing debate about whether juries can actually understand particularly complex trials. The letter gave several compelling reasons not to scrap juries on these grounds, too:

1. In 2016, the government’s Justice UK produced a report on complex and lengthy criminal trials. It concluded that juries are more than capable of following the evidence and passing verdicts.
2. Jury trials tend to use time-consuming typed-up tools, such as summaries of evidence and directions regarding different laws. These would still be necessary for judge-only trials.
3. Rather than juries taking up time, the letter suggests that it’s the prosecution’s presentations that have ballooned in recent years. As such, it suggests that more efficient ways be devised to present evidence.
4. The idea of an expert panel sitting alongside the judge raises questions of how they’d be chosen. The letter stated that the idea also gives “uncomfortable reminders of a time when only noblemen could sit on a jury”.
5. Lengthy trials can have a massive impact on juries. However, many jurors surveyed have indicated that they understand their service is an important civic duty. Likewise, in the most upsetting cases with the longest sentences, juries would still be present anyway.
6. There’s no evidence that long trials reduce diversity among jurors, but replacing them with a single judge would definitely be less diverse.

Bias in the judiciary

Regarding that last point, the statistics on the lack of diversity among judges are stark. 84% of magistrates are over 50. The 2022 Racial Bias and the Bench report also found – you guessed it – institutional racism in the judiciary. No matter what steps are taken to try to fix this, a single judge can never reflect the range of background present in a jury.

And, because it would be foolish to leave out Lammy’s own arguments against his ridiculous plan, the letter states:

As you will clearly recall, the Lammy Review found concerning disparity in outcomes in magistrates’ courts for Black women and Chinese/other women, which required further understanding. The Lammy Review concluded that a jury’s deliberation as a group deters and exposes prejudice and unintended bias.

Finally, the lawyers’ letter highlighted the fact that the UK has already tried to weaken the right to jury trials, and rightly failed. The Fraud Trials Bill of 2006 would have allowed trials without a jury, but never actually passed into law. Likewise, Section 43 of the Criminal Justice Act 2003 permitted judge-only trials in complex fraud cases was actually repealed.

It’s fully evident that the backlog is straining the right to a fair trial to it’s limit. However, the lawyers urged Lammy to consider more direct methods to reduce that backlog, rather than removing the right to trial by jury – which would come at a massive cost both in terms of public money and civic rights.

Featured image via the Canary