On the decision to suspend jury trials

I loved Latin at school. My award for Latin poetry recital is carefully preserved and I remain mildly hopeful that, one day, it might even prove useful. Poetry aside, it was then seen as necessary to become a lawyer. For the first few years of practice those Latin sayings encapsulating legal rules became firmly lodged in my head. Then they were no longer compulsory, plain clear English becoming the rule. Quite right. But one saying seems particularly apt these days: Ex turpi causa non oritur actio – no-one can make a claim based on their own dishonourable conduct. More widely, it expresses the idea – or, perhaps, the hope – that people, governments even, should not be able to take advantage of the damage caused by their failings to do that which they would not otherwise get away with.

There is now a very real danger of this happening with trial by jury, a practice which goes back – in its essence – to Magna Carta. 

Juries have not always been loved. Blair tried to curb jury trials in 2003 and had to back down, Tories opposing him, their then spokesman saying: “Jury trial is an essential safeguard to ensuring respect for the criminal justice system.” Juries are not always loved by the legal establishment either, including some judges, those who think that the law is far too important and complicated an issue for ordinary persons, who are simply not clever enough to understand. It uses the complexity beloved by lawyers to justify keeping the whole process within this charmed, closed circle, a legal elite. It is an argument often heard in relation to fraud trials, conveniently forgetting that sniffing out dishonesty does not need a degree, that it is often some of the apparently cleverest people – formally anyway – who fall for some of the biggest conmen around. Understanding people is not a profession but something that all can do. It is precisely the introduction of the ordinary person’s view, the wisdom of a small crowd, which is the jury’s great strength and its value. To adapt an infamous saying: when it comes to guilt and innocence, you can have too much of experts.

Lawyers and judges can become so inured to what they see and deal with every day that they risk becoming cynical and world weary. As Chesterton put it: “the horrible thing about all legal officials, even the best….all judges, magistrates, barristers, detectives, and policemen is ……simply that they have got used to it”. What is just another case for a lawyer or judge is a potentially frightening and life-changing experience for the individuals involved: defendants, victims and witnesses alike. Juries are one of the best ways, for all their faults, of making sure that ordinary people are truly involved in one of the most critical functions of the state. They provide legitimacy, credibility and finality. And that group of 12 disappears at the end of a case, never to reappear, whereas judges and magistrates are around for a long time and hard to remove, no matter how perverse they may be.

There are other benefits too: the ability to tell the authorities when they are being oppressive (Ponting) – a real life version of the small boy telling the Emperor he has no clothes – and, of particular value these days, the involvement of minority groups often ignored by other parts of the justice system. The 2017 Lammy Review found that, by contrast with practically every other part of the justice and prison system, juries were the one part where there was no evidence of unfair or discriminatory treatment by BAME juries or to BAME defendants. The way juries had to operate (see page 34) – debate, persuasion, a collective decision rather than by one person – was one of the key reasons for this.

The current problems are long-standing and lie elsewhere: a 25% cut in real terms funding since 2010 for the Ministry of Justice; other cuts to legal aid and police funding; restricting sitting days to save money so that between 25 – 40% of Crown courts are unused; 260 court buildings sold in recent years, for instance. This has led to a backlog of 37,400 Crown Court cases in December 2019 (rising to 40,500 by end May), with trials happening well over a year, in some cases, as much as three, after charges are brought. Justice is being delayed mightily. It is not quite as bad as in 2014 when the backlog was ca.50,000 cases. But still disgraceful. The situation is even worse for cases heard by magistrates: in March the backlog was 395,600 rising to 483,700 by mid-May. Justice – imprisonment: these are key functions of the state. For the state to preside over their degrading is for it to fail at one of its most fundamental duties. It is demolition by deliberate neglect. 

None of this backlog and the consequent harm to defendants, victims and witnesses has been caused by Covid-19. The latter has not helped, of course, but only trials longer than 3 days have been postponed during the lockdown. No – the vast backlog and delays are a direct consequence of years of under-funding by the government. So if the government wanted to resolve such problems, it knows what to do: increase funding, reopen closed courts, have them sitting 5 days a week, build Nightingale courts etc.

Why the concern then? When Nicola Sturgeon suggested in April that jury trials in Scotland be suspended for up to 18 months, there was a furious reaction and not just from the usual legal suspects. A former Lord Chancellor and famously no lover of experts, Michael Gove, described it as “deeply concerning” and asked “is it wise to take this position on jury trials.” A very good question indeed. The Scottish government retreated. On 4 May, the Justice Minister, Chris Philps, told the Justice Select Committee: “There is categorically no question at all, under any circumstances, of the right to jury trial being removed. It is a fundamental right. It goes back centuries in our history, and it will never be removed at all.”

That was then. Now we find the English Lord Chancellor suggesting just this. In order to create capacity, he is proposing either reducing juries to 7 or taking away the right to a jury trial for offences with a possible prison sentence of 2 years or more, replacing this with trial by a judge and 2 magistrates – the very same magistrates unable to deal with their current workload. (Apparently, hugely increasing their workload will increase capacity, which is why he favours this option.) Legislation is to be passed by 21 July and implemented by September.

• He says these are the only choices. This is a false choice. 

• He says such a change will be temporary only. Of course it will, like all those other “temporary” changes which become permanent when the immediate emergency has passed. When trial by jury is salami-sliced in this way, the pressure will be to continue further, not reverse the changes. 

• He claims that this is necessary to increase “capacity” without taking the obvious steps to do so and without explaining how an already overburdened magistracy can help.

• He provides no explanation of whether defendants will have an automatic right to appeal against convictions nor what the other effects of this change will be.

This is an old practice done by those who know the price of everything but the value of nothing: starve public services of what they need to operate effectively, then wield the axe by claiming they are no longer effective. It is being done dishonestly by pretending that the trauma of Covid-19 necessitates this. It is being done quickly and with little time for consultation, scrutiny or proper consideration of the implications.

Easy to think of this as special pleading by lawyers. It isn’t. Juries are one of the best, one of the oldest ways of involving ordinary people in one of the most important decisions there is: 12 life experiences, perspectives, opinions, voices able to assess the honesty, motives and actions of another, as we do every single day. Justice by the citizen is justice for the citizen. Trial by our peers is far too important for us all to be so casually dismissed out of expediency and to cover up the gross failings of the government itself.

It was Lenin who reportedly said: “Never let a serious crisis go to waste.” (Or, possibly, Macchiavelli.) A cynic or a revolutionary seem to be the guiding lights of this government. Is there anyone to ask: “Is this wise?”

Those who view justice with the eyes of a bean counter are using Covid to destroy one of the institutions that works, that really does value the opinions of real people rather than simply uses “the People” as a prop for politicians’ egos. We are seeing its slow demolition, first by neglect, then by malice. Dishonourable indeed.

Cyclefree

PS: “Men” in the title means women too, for any pedants here.