A More Constructive Jumping-Off Point

The Secret Barrister writes:

Today, the government has confirmed that it intends to remove the right to trial by jury in the vast majority of cases in the Crown Courts. Serious criminal allegations, carrying up to three years in prison, will, under David Lammy’s proposals, no longer be tried by juries, returning verdicts based on their assessments of the facts, having been directed on the law by a judge. Instead, judges alone will decide the law, direct themselves on the law, make their own findings of fact, decide whether an accused person is guilty or not guilty, and then pass sentence. Literally judge, jury and sentencer.

This, we are told, is necessary – unavoidable, even – to address the record backlog of cases in the Crown Court, and the years of delays that are now built into the system.

The proposals follow the publication of a report of the Independent Review of the Criminal Courts, chaired by Sir Brian Leveson, in which, at the government’s behest, he offered suggestions for “radical reform”, which included reducing the use of jury trials in certain cases. However whereas Sir Brian proposed a new, intermediate court where judges would sit with two lay magistrates to try cases carrying prison sentences of up to 3 years, the government seeks to go much, much further, vesting the power in judges alone, and removing a defendant’s right to object.

The rationale, put simply, is that jury trials take longer, and are thus more expensive, than trial by judge alone. Drastically reduce the use of juries, and you’ll free up plenty of time for more trials to take place.

The argument in principle for or against juries is something I’ll address another day. The fact that both Keir Starmer and David Lammy have each passionately defended jury trial as an essential cornerstone of our democracy in past lives – with Mr Lammy going as far in his eponymous 2017 report to suggest that jury trial is the only part of the criminal justice system that does not produce disproportionate outcomes based on race – we can deal with all of that in a later blogpost. The idea that, without any manifesto being put to the electorate, a government can embark upon a fundamental reconfiguration of the entire criminal justice system, overturning centuries of settled practice and removing what is widely considered to be an essential democratic safeguard, simply for reasons of cost, with no regard to principle – we’ll come to that.

But for now, I want to look at something that the government, for unclear reasons, seem determined to ignore.

I am supposed to be in a trial today. The allegations are serious, involving sexual offending against children. They date back to 2022. Dozens of lives all put on hold, waiting for the wheels of justice to slowly grind to a jury trial date three years later in 2025.

But there is no jury trial three years later. Instead, the trial has been kicked off to 2027, and I am sitting at home writing a blogpost.

The reason?

It has nothing to do with juries. It is because the Witness Care Unit – the body responsible for keeping in touch with witnesses and notifying them of important court dates – forgot to keep in touch with one of the key witnesses. She – the witness – was only told about the trial date a few days before the trial was due to begin. And she’s not available. So the trial cannot go ahead. It forlornly takes its place back in the queue.

This, you may be depressed to hear, is not actually unusual. The prosecution agencies losing track of witnesses happens far more often than anybody outside the system can probably imagine. And it is far from an isolated instance of gross systemic incompetence and inefficiency. The examples are legion and widespread. Whether it is the private contractors paid enormous sums of public money to bring prisoners to court failing to bring prisoners to court, or technology procured at vast public expense simply not working, or entire court buildings being shut down because the roof is falling in, the Crown Courts every single day endure absurd, entirely-fixable inefficiencies which contribute significantly to the backlog of work.

I emphasise the word ‘efficiency’, because if you were a politician wanting to fix the problems in the criminal justice system, with a keen eye on addressing the record backlog and years of delays, you might identify some fairly easy wins. Small, simple fixes which together could swiftly make a dent in the backlog. With a relatively tiny increase in resources – long overdue after more than a decade of chronic underfunding – and a bit of political courage, you could also spot other ways of improving the way that we do justice. Spending a bit of money to save more money, progressing cases more quickly without impinging upon – even improving – the quality of justice. Again, what might be termed efficiency. I’ve listed a few such ideas below.

But efficiency is, it seems, not an idea that our government wishes to prioritise. You will not have heard David Lammy or Keir Starmer or anybody connected to the jury abolition campaign talk on the radio or in Parliament about the way in which court efficiency might be improved. Indeed, when it commissioned Sir Brian Leveson to chair his review into the criminal courts, and come up with proposals to tackle the problem of delay, its terms of reference required first that he consider “longer-term options for criminal court reform”, including radical “structural changes”, with a specific brief to consider the removal of jury trial. Efficiency was, quite literally, the second consideration. It is “Part 2”. That limb of the Leveson review is still being written.

And this, it seems to me, is about as mad an approach as it is possible to conceive. The Leveson report is full of all sorts of modelling, estimating how much court time could be freed up by removing juries from swathes of cases, which is being paraded as the justification. That modelling has itself been questioned by the Criminal Bar Association as lacking a sound evidential basis, but even assuming it is accurate, it is against a baseline of our current, wildly inefficient system. We have no idea – because Sir Brian has not yet considered it – how much time could be saved by addressing the inefficiencies. We have no idea whether “radical structural reform” is even necessary. Because those questions have not been asked.

It is akin to having a freezing cold house, with the windows and doors wide open, the radiators leaking and the boiler on the brink. And your first port of call being to summon a bulldozer. And only then, standing amid the wreckage of your home, to ring for a plumber.

Below are a few examples of common inefficiencies in the Crown Courts. Many of these should be easy to fix. Others may be more involved, or the solution may be politically unpopular. Some might involve spending money to save money. But all, you may think, should at least be countenanced before embarking upon the dismantling of trial by jury:

• Those private contractors, mentioned above, who routinely fail to bring prisoners to court, causing enormous delays on a daily basis? There is no sanction for their failure. No meaningful penalty built into the contracts negotiated by government. Let’s fix that.
• Court “sitting days” – you may think that if a courtroom is useable and a judge is available, then that court and judge will be used. Sadly not. The last government, and this one, cling to “court sitting days” as a mechanism to artificially restrict how many courtroom are allowed to be used each year. The result is that we have empty courtrooms and judges twiddling thumbs every day. The rationale is to save insultingly small sums of money on utilities and court staff. Court sitting days should not be a thing. We don’t have A&E sitting days – if there’s a building, an available professional and a person in need, they get treatment. The concept of court “sitting days” should be abolished.
• Some defendants – not all, as the government keep telling the press, but some – undoubtedly use the delays to their advantage, hoping that the case will somehow collapse, or that vital witnesses will disengage. Incentivise guilty people to admit guilt by increasing the credit (discount) on their sentence for pleading guilty early. Currently the maximum for an early guilty plea is one-third off. Increase that to 50%. Or, if you prefer a tougher framing of the same thing, make the sentence for running a trial and losing twice as long as if you admitted guilt early.
• Interpreters are frequently not booked by the court, or are booked but fail to attend. This should be a once-in-a-year error. Not daily. If the problem is with the contract, it needs to be renegotiated.
• The IT infrastructure in the Crown Courts does not work as it should. All cases are digitised and stored online, yet functional WiFi is still a bonus, not a staple. The systems themselves are prone to constant disruption, crashing and freezing at random (and the primary system, the over-budget and overdue ‘Common Platform’, is still in Beta and functionally useless). When the IT fails, literally no work can be achieved by anybody. It is infuriating.
• The Crown Prosecution Service is still beset by problems. Lawyers and caseworkers are drowning beneath the weight of hundreds of serious cases allocated to them, and every single day important evidence is not served, or a case is not properly prepared, or vital disclosure (material that may assist the Defence) is not provided. Unnecessary hearings are therefore required to sort out the mess, adding to the workload of the courts. Partly the problem is training and retention (many good CPS lawyers flee the chaos of the system), but largely it is resources. The rot set in when Keir Starmer was Director of Public Prosecutions, and the CPS lost nearly a third of its workforce. Recent recruitment drives have been insufficient – the CPS simply does not have the staff it needs to do its job.
• Ditto the police. We have not replaced the thousands of years of policing experience lost under the last government. A lack of resources, lack of training and lack of experience all impact upon the progress of cases in court. Errors mean prolonged pre-charge investigation, unnecessary court hearings, ineffective trials and years of extra delay in cases.
• Poor performance is indulged. The prosecution and police failing to comply with court directions to provide evidence and/or disclosure is usually met with a ticking off and the grant of an extension. Introduce meaningful sanctions for non-compliance. If the prosecution don’t serve evidence on time, don’t let them rely on it. If defence solicitors haven’t taken a defendant’s instructions and supplied them to the barrister in time for the first hearing, then unless there’s a good reason for the failure, issue wasted costs against the firm. Whether or not you subscribe to the ‘broken windows’ theory, there is evidence to support it in the way that a climate of decline breeds bad habits.
• Prosecutorial decisions take too long. Too often, the defence will make an offer to resolve a case, and the CPS and police will take several weeks to consider it. And then there will be another hearing at which they will ask for more time. And then another hearing once the decision has been made. It is all avoidable. CPS lawyers are – you may be astonished to learn – never at court. They are required to be at their computers all day, every day. So if as a barrister, you need to speak to the lawyer running the case, you have to get hold of them on the phone (or, God forbid, Teams). Which is not always possible. Have a CPS lawyer stationed at court, empowered to make decisions about cases.
• There are perverse incentives in the way that defence solicitors are paid, which effectively penalise firms who do their job thoroughly and advise clients properly, and rewards inefficiency. All of us in the system recognise this. It’s easily fixable, simply by tweaking the fee structure.
• The court buildings are collapsing. Fixing them will cost money. But we routinely lose days and days of court time due to leaking roofs, broken toilets, failed heating, broken lifts (meaning that disabled witnesses, jurors and defendants cannot get into court), a lack of running water, frozen pipes, overheated courtrooms in summer, freezing courtrooms in winter, falling tiles, broken panic alarms in the cells, and infestations.
• One of the most common causes of delays in charging cases is examination of digital devices, such as mobile phones. The queue in police Digital Investigation Units is usually at least twelve months, so unless the case is a priority, there is immediately a year of delay built in to the investigation. This affects not only drug cases, which almost always require reviews of mobile phones, but rape cases and those involving allegations of domestic abuse, where communications between the defendant and complainant are likely to need reviewing. DIUs have not received anything like the funding needed to keep pace with the explosion in digital evidence. Fund this properly, and you can cut out a year of delay straight away.
• Material held by third parties, such as Social Services records or medical records, is often needed. Due to the anachronistic systems used by the public sector, it can take months and months, which creates delay in the investigation, and during the court process when further material is identified as relevant. Streamlining the processes so that this material can be supplied to the police and CPS – wholesale, without unnecessary and confusing redactions made by people who do not understand GDPR – could again cut out months of delay, and save days and days of court hearings with barristers complaining that they are still, six months on, awaiting Social Services records.
• Criminal sentencing, and the threat of prison, dictates much of the behaviour of guilty defendants. Presently, any custodial sentence of 2 years or less can be suspended, meaning the defendant does not go to prison as long as they comply with Probation requirements and stay out of trouble. Other countries allow sentences of a much greater length to be suspended. If we doubled the period, say to 4 years, for non-violent offences, we would immediately open the possibility of Class A street dealers and white collar criminals becoming eligible for suspended sentences, where presently they would not, increasing the likelihood of guilty defendants pleading guilty. It’s not attractive – any offence carrying four years’ custody is by definition a serious crime – but as an alternative to abolishing trial by jury, might it be worth trying, even for just a short period?
• All cases presently in the Crown Court should be reviewed, to ensure that there remains a public interest in continuing to prosecute in the current climate, and to consider whether an out-of-court disposal might be more appropriate. That 17-year-old who allegedly grew a few cannabis plants in his bedroom, and is now in his early twenties awaiting his third trial date – is that really the best use of our limited resources? Again, not always politically straightforward – but if, as we have been told, this is an unprecedented emergency calling for radical measures, many might consider it the lesser evil to what the government is proposing.

Of some interest is this report, Review of Efficiency in Criminal Proceedings. It was published in 2015 by one Sir Brian Leveson. It contained many recommendations on how to improve court efficiency, a large number of which (as Sir Brian has pointed out) have yet to be implemented. One wonders if revisiting those proposals might have offered a more constructive jumping-off point.