Rooted In The Lived Experience

One could almost forgive Robert Buckland for being Hatfield:

During the Covid crisis in 2020, when the Lord Chief Justice and I had to suspend jury trials for several months due to the lockdown and initial difficulties in achieving safe social distancing in courts, some consideration was given to whether jury trials should be temporarily ended. Ideas such as “wartime” juries of only seven members were considered, and the use of judges and magistrates to try some “either-way” offences that could be heard either in the Magistrates or Crown court was also considered. I rejected those ideas as a disproportionate response to the problem. Instead, I ensured that legislation allowing the future use of remote juries was placed on the statute book, to help “futureproof” the system as technology continues to improve.

Since that time, we have understandably continued to hear a lot about the growing backlog of cases being heard by the Crown Court. In my view, there’s been far too little discussion about the surge in online and digital content, mainly from social media, that lawyers and judges have had to address in cases over the past decade or so. This has added substantially to delays in the investigation and prosecution of offences in ways that could not have been foreseen at the turn of the century. In my strong view, it is this phenomenon, not the use of juries, that is the cause of backlogs and delays, as the criminal justice system itself has not kept pace with technology.

The positives and negatives of the Government’s plans

The Government’s announcement last month of significant changes to the jury system came as something of a thunderclap. Although the former President of the then Queen’s Bench Division, Sir Brian Leveson, had been working on a lengthy review of the system and had issued Part One of his report earlier this year, the second part of his deliberations, with all-important technological recommendations, was still being awaited. The surprise came via a leak to the Times newspaper that the Lord Chancellor and Justice Secretary, David Lammy, was in fact planning to limit jury trials to all but the most serious of criminal cases.

His actual announcement, however, made to Parliament in late November, fell short of that but still went way beyond the recommendations in Leveson Part One. Lammy’s statement, plus a press release on the gov.uk website, seem to be the basis for this dramatic policy change. There has been no White Paper process, let alone a wider Green Paper consultation of a kind that seems to be increasingly rare in modern government policymaking, and whose increased absence should be regretted.

Firstly, the positives. The Justice Secretary announced up to £34 million per year in additional funding for criminal legal aid advocates, and accepted Leveson’s recommendation to match-fund a number of pupillages in criminal law. It seems that a three-year settlement as to the number of Crown Court sitting days will also be sought by agreement with the judiciary, which is a sensible way forward.

Then to what I regard as the less positive aspects of the announcement. Using the projected Crown Court back log of 100,000 cases by 2028, Lammy has made this the reason for an end to jury trials in a whole swathe of criminal cases, creating instead what he calls “Swift Courts” within the Crown Court, with a judge alone deciding verdicts in triable either-way cases with a likely sentence of three years or less. Lammy made it clear that whilst juries’ deliberations remain confidential, judges will provide reasoning for their verdicts in open court. I expect this aspect of the changes to be particularly complex and another illustration of the law of unintended consequences.

The right of defendants to elect for a jury trial will be removed, with the decision being made instead by judges and magistrates. Appeals from the magistrates’ courts will be limited to points of law only, ending the “de novo” Crown Court appeal hearing by a judge and two magistrates. Judges will be permitted to sit without a jury in exceptionally technical and lengthy fraud and financial trials, which is a return to the reform introduced by the Blair government but scrapped after 2010. Magistrates’ court sentencing powers will be increased to 18 months, with a power to extend that to two years, should it become necessary. It doesn’t seem that Lammy is deterred by recent experience of an increase to Magistrates’ powers of sentencing, which contributed to an increase in prison numbers! I resisted such change, precisely for those reasons. All of this will require legislative change, so we can expect a new Bill in 2026.

The historical roots and democratic significance of jury trial

The jury’s importance is rooted in a history that has shaped not merely legal doctrine, but the very character of liberty in this jurisdiction. The right to be judged by one’s peers has symbolised the idea that coercive state power is tempered by the collective conscience of the community. That principle is well-illustrated in Bushell’s Case of 1670, in the John Wilkes litigation of the 1760s.

Bushell’s Case arose from the trial of the Quakers William Penn and William Mead, whose jurors refused to return the guilty verdict the court demanded. When fined and imprisoned for their refusal, the jurors sought habeas corpus. Vaughan CJ held that a jury could not be sanctioned for its verdict: the independence of the jury was a constitutional requirement, because the truth of a verdict arises from the jurors’ honest assessment of the evidence, not judicial direction or executive pressure. The case entrenched the principle that the State must accept the risk of civilian disagreement.

A century later, John Wilkes, prosecuted for seditious libel and repeatedly elected to Parliament in defiance of the government, became a symbol of the tension between Crown power and popular will. Juries repeatedly refused to convict him despite doctrinal authority supporting conviction. They acted as a constitutional mediator, reflecting the community’s belief that the enforcement of seditious libel laws was inconsistent with emerging notions of political liberty. In doing so, juries helped set the trajectory towards modern democratic speech protections. The episodes demonstrate that the jury can serve as a safety valve in times when the law lags behind constitutional values.

Bushell and Wilkes, taken together, articulate a central principle: the jury is a democratic check on state authority, rooted in the lived experience of its citizens.

The jury performs three constitutionally significant functions. First, it provides diverse reasoning, where evidence is tested and viewed through multiple perspectives. Second, it ensures democratic legitimacy, making the decision to convict or acquit one for ordinary citizens, not a professional authority. Third, it operates as a control mechanism on the punitive power of the State.

The potential consequences of the proposed reforms

Removing juries from a large category of offences risks narrowing the channels through which public values flow into criminal law. Many either-way offences, including lower-level dishonesty, assaults involving credibility disputes, and certain sexual offences, involve contested narratives and social standards that a jury is uniquely placed to interpret. These are precisely the issues where the community’s conscience is often central to the achievement of just outcomes.

On capacity, there is a practical concern: judge-alone trials on a large scale require more judges, more courtrooms, and more specialist training. Without significant investment, the reform may simply move the source of delay rather than eliminate it. The giving of reasons by judges will expand their work significantly and create more points of appeal. It does not seem that any assessment as to the impact on the Court of Appeal Criminal Division has been made. The Government will have to produce Impact Assessments as part of its pre-legislative preparation. I urge the Ministry of Justice to start being fully transparent about this process and share it with interested and expert third parties as soon as possible.

Yet some reform is clearly necessary. My argument is that reform should seek to deal with the real causes of delay, namely an analogue court system that should be using assistive technology and agentic AI to perform many administrative tasks and to help with the assessment of digital material. Technology should be brought forward urgently, not as a replacement for juries, but as an assistive tool deployed to help both them and judges do their jobs as efficiently as possible. That would be effective and purposeful change, not these ill-thought out proposals.