Where We Draw The Line

Alex Deane writes:

I agree with David Lammy.

The trouble is, I agree with 2020 David Lammy, who said this:

A jury trial gives people the final say on the guilt or innocence of their fellow citizens. It entrusts the public to make life-changing decisions, rather than merely leaving it in the hands of lawyers. This is a civic duty – developed over centuries – which ensures fairness and representation in the criminal justice system and forms part of the bedrock of our democracy.

I think that was right, and – charitably, perhaps – I don’t think that even David Lammy really believes the David Lammy of 2025, who now proposes to do away with juries in the majority of cases they presently hear.

Let us not pretend for a moment that this plan is about addressing the backlog of cases waiting to be heard. There are three reasons for this.

First, juries aren’t slowing the system down, in any case. This second reason is because any change would not be retrospective, so all cases in the backlog would still be heard by a jury. These two points mean that the mechanism the Government has proposed won’t do anything to address the problem they have identified. But thirdly, if this were really about the backlog, the Government would be telling us that its proposed changes would be temporary, to revert to the historic norm after it has gone. That is quite clearly not the basis upon which they are proceeding. While the Government is certainly exploiting the present temporary difficulty to justify its changes, it don’t even pretend to claim that the solution it has identified will sunset when it is resolved. No, these changes are permanent. Again, as one David Lammy said in 2020 – ‘it would be wrong of the government to abandon this valuable tradition for short term benefit’. 

Nor do these proposals reflect the conclusions of Brian Leveson, whose report made recommendations that went nowhere near as far as Lammy now wishes us to go. We should be clear: no matter how much he claims to be following Leveson’s conclusions in his vandalism, this isn’t what Leveson concluded. We have a rash; the doctor recommended some ointment; Lammy doesn’t get to say that he is following the doctor’s orders when he produces the guillotine.

I declare a historic interest. In the earlier part of this century, I practised at the criminal Bar – not for that long, and not at all illustriously. But still, I put in my years and I saw my fair share of juries. They uniformly took their responsibilities seriously. And while losing is never the desired result, looking back, I don’t think that I ever saw a jury go wrong.

Still, some will say that it’s just a question of organisation. We already have trials without juries for less serious offences (Lord knows, as a junior advocate I saw many more of those). It’s just a question of where we draw the line. Bluntly: does it really matter?

It absolutely does. Trial by a jury of one’s peers, while codified in Magna Carta in 1215, predates even that. A form of such a process was present in this land in the time of Æthelred, whose reign began in 968. It takes someone with David Lammy’s chutzpah to think that you’re the person to blithely sweep away over 1,000 years of established practice, and demonstrate a remarkable contempt for the people you govern. Involving the people in the judgment of the guilt or innocence of their peers rather than the state is a bulwark against an over-mighty government.

This protection was not conceived in some recent burst of ‘human rights’ legislation – conjured up in one parliament, only to be taken away in another – but rather an innate part of our constitutional guarantee of liberty. It is a birthright we inherited, and one we should safeguard and pass to the next generation lucky enough to be born into its protections.

It is this fundamental principle that our present Lord Chancellor seems to fail to understand, or to pretend to fail to understand. In his document to other departments, David Lammy wrote that ‘there is no right to trial by jury’. Which is wrong. There absolutely is.

In many ways, the respected legal system embodied by jury trials is our most successful export. It finds itself replicated in courts around the world in the jurisdictions of our friends in the United States, Canada, Australia, New Zealand and elsewhere.

On a basic level, what right does the Government have to do this, anyway? Up to this point, with the exception of the Chagos Islands giveaway, the Labour Government’s positions have been broadly defensible. I disagree with pretty much all of them, but I’m a Tory and that was inevitable. The point is that they secured a huge majority in the House of Commons and have a clear mandate to do all manner of left-wing things I don’t like. That’s democracy.

But this policy is utterly out of – no pun intended – left field. It wasn’t in their manifesto, and surely such a significant constitutional change requires that? It has not been offered as a choice to the people, neither by election nor referendum.

Abolishing most jury trials is about the most authoritarian thing mooted by any government in our lifetimes. And yet the same people who shrieked at the prospect of Britain leaving the really quite new European Convention on Human Rights, which offers no protection in this regard, are now oddly dumb.

It is true that there is a multi-year delay in cases being heard, and it is a powerful point in favour of changing the status quo. Behind the (accurate) maxim ‘justice delayed is justice denied’ sit serious and systemic issues prompted by the passage of time. When delays of this length occur, victims do not see justice done. Witnesses also naturally forget details or more about the events in question and despite doing their best are reduced to ‘if that’s what I said in my statement, then that’s what I saw’. Lawyers and case officers are promoted, retire, become sick, have parental leave or are reassigned, disrupting the continuity of management. As for the accused – presumed innocent until proven guilty, remember – they often can’t work, suspended by employers for the duration and an unattractive proposition for new work with the allegations hanging over them; and some faced with delay measured in years will say ‘sod it’ and plead guilty in order to be able to move on with their lives, the antithesis of justice.

But the answer to this is to properly maintain the justice system financially and ensure that courts don’t sit empty, rather than taking a pickaxe to our long-established exemplar of legal process. Our court system has been damaged by governments of all stripes – Labour, Coalition, Conservative and Labour again. Courts up and down the land have been closed. Those remaining have been systematically neglected. Advocates have been underpaid – or not paid – year on year.

Government should do few things and do them well. Defending the realm from external threats and maintaining order and the law internally are two of those basic functions. Instead, we have preferred government to do many, many things, and most of them badly.

Regardless of party, the approach of recent governments to the justice system has been akin to a man starving someone for a long time, then saying he’s the absolutely right person to make decisions on their care – and, in their parlous state, the kindest thing to do is invoke the new, coincidentally proposed assisted dying measures.

We certainly should not allow our present challenge to be used as the pretext for fundamentally changing our justice system.