The government is due to introduce a new court reform bill which is set to include removing the right to jury trial for cases that carry a likely sentence of less than three years. The reforms are set to apply retrospectively to cases that are in the system.
This week, the government has also accepted some of the proposals put forward in Part 2 of Sir Brian Leveson’s review of criminal courts, including ‘Blitz Courts’, an intense approach to court scheduling which enable judges to deal with cases more swiftly.
The government has also announced that it will allow courts to run at maximum capacity next year which the Bar Council has also welcomed as it has long called for the limit on the number of days that courts can sit to be removed.
Bar Council Chair Kirsty Brimelow KC said: “Juries have not caused this crisis, and we have seen no evidence which validates curtailing them. That is why we fundamentally disagree with the restriction of jury trials. The objection is principled and pragmatic and the mantra of modernisation in relation to juries is a Trojan horse to hack at a deep-rooted constitutional principle.
“Indeed, we support modernisation of the criminal justice system - such as working in buildings that function and with technology that operates. We suggested moving the threshold of cases tried in the magistrates’ courts and we provided a list of offences which should not be in the Crown Court to Sir Brian Leveson's Review. We also recommended the tried and tested ‘Blitz Courts’ proposal which we are pleased to see the government is taking forward from part 2 of the Leveson Review.
“Practically, there is little evidence to support the government’s decision to rush through legislation which unnecessarily tampers with the right to be judged by one’s peers. The application of this proposal retrospectively inevitably will face a constitutional challenge. The Criminal Bar Association estimates that up to 30,000 cases will be affected. Not only is this extraordinarily unfair to those who have already elected the Crown Court, understanding that it is a jury trial, it interferes with legal certainty and runs the risk of tying the courts up in appeals, further increasing the backlogs.
“We give a voice to victims, complainants and defendants. We work on the frontline of the criminal justice system and are well aware of the detrimental impact delays are having so we will continue to champion reforms we know will work.
“We urge the government to give efficiency measures time to work rather than drain time and resource on a proposal that carries substantial risk for negligible gain.”
Monidipa Fouzder writes:
Justice secretary David Lammy’s proposed reforms to curb jury trials could see defendants facing prison who earn less than £37,500 priced out of free legal support, the government’s equalities statement has revealed.
Defendants whose cases are heard in the Crown court are currently eligible for legal aid if their annual salary is below £37,500. However under the Courts and Tribunals Bill more cases will be heard in the magistrates’ court, where defendants are entitled to legal aid only if they earn less than £22,325.
Lammy’s bill would lead to more cases being retained in the magistrates’ court because it removes the right of a defendant charged with a triable either-way offence to opt for a trial in the Crown court. It also removes the requirement for the defendant’s consent if the Crown court remits the case back to the magistrates’ court and increases magistrates’ sentencing powers to 18 or 24 months.
The £37,500 income threshold would apply to defendants whose cases are heard by judge alone in the new Crown Court Bench Division.
The equalities statement adds: ‘When considering the demographic makeup of legal aid clients who may be particularly affected by this policy change, there is a high proportion of unknown ethnicity data for legal aid clients. The data therefore does not allow us to draw conclusions as to whether any ethnic group is under or over-represented in the legal aid client population, and whether they will be more impacted by this change. We are working with partners across the [criminal justice system] to improve the availability of ethnicity data from underlying administrative systems to ensure that ongoing analysis is robust.’
Suzi Ring writes:
The UK government will review whether judge-only trials result in an increase in racial bias after jury trials in England and Wales are abolished for thousands of defendants.
David Lammy, deputy prime minister, will propose the review in an attempt to prevent any increase in racism from the biggest shake-up of courts in modern times, the courts minister Sarah Sackman told the FT.
The review is an attempt to appease some Labour backbench MPs who have been sceptical of the government’s decision to remove juries from thousands of criminal cases in England and Wales where the maximum sentence would be three years or less. The legislation will also increase the sentencing powers of magistrates.
“The deputy prime minister is intending to propose a review — it needs to be over a sensible length of time — but a review into if there are any differential impacts of the reforms on particular groups,” said Sackman, shortly before the bill was laid in parliament on Wednesday.
She added: “We know that racial bias is a feature of our justice system, as it is a feature of our society. Our job is to seek to address that.”
The government is seeking to push through the court reforms this year in an attempt to tackle the rising backlog of criminal cases, which stands at a record 80,000 cases and is set to rise to 100,000 in the next two years. The government is aiming to bring the reforms into effect from 2028.
However, one of the criticisms Lammy has faced over the proposals comes from his own conclusions in a 2017 review into the treatment of people from ethnic minority backgrounds in the criminal justice system.
In the review, Lammy said people from ethnic minority backgrounds were more likely than white defendants to receive prison sentences for drug offences and cited public comments that ethnic minorities “had more confidence in the fairness of juries than they had in the fairness of magistrates’ courts”.
Sackman said: “If a judge is demonstrating bias, that is quickly going to become apparent in their reasoning. They are going to know that they are, if you like, being watched by the public.”
The bill would also introduce audio recordings of magistrates’ courts for the first time for transparency, she added.
The legislation follows an independent review by retired High Court judge Sir Brian Leveson into the criminal justice system, the recommendations from which the government has largely adopted wholesale.
Line chart of UK caseload (000s) showing Investment and reform will be needed to get the caseload back to sustainable levels
Sackman said judges would be given training to support them with determining verdicts in the criminal court for the first time and that she had spoken to the Judicial College — the body responsible for training judges — about strengthening the training requirements around unconscious bias.
However, the proposals have been criticised by the Law Society and the Bar Council, which claim the jury reforms have over-reached.
“The government’s proposals go too far in eroding the longstanding right to be judged by a jury of our own peers,” Richard Atkinson, the former president of the Law Society, said this week.
“They allow a single judge to determine guilt in serious, life-changing cases which could significantly affect people’s liberty and reputations.”
Sonia Sodha writes:
It’s a grubby sleight of hand from a government headed by a human rights lawyer, designed to dupe us into cheering on this trampling of our civic rights. Ministers want us to think only of criminals and victims as they move to radically restrict access to jury trial. But there is a third group the criminal justice system is designed to serve that’s missing from the government’s analysis: the innocent. For those wrongfully accused by police and prosecutors — and it really could one day be any of us — jury trial is the key step that stands between them and wrongful conviction.
The justice secretary David Lammy claims his proposals are a marginal incursion into an ancient right that is desperately needed to save a creaking criminal justice system. The reverse is true: this is a full-frontal attack on our civil liberties that will deliver pathetically incremental efficiency gains.
It is the mark of a civilised society that we occasionally let the probably-guilty walk free to avoid locking up the innocent. In a criminal trial a defendant will only be convicted if a jury is sure they are guilty — although horrible mistakes happen: look at Andrew Malkinson, who served 17 years for a rape he didn’t commit. But there is comfort for a defendant knowing they can choose trial by 12 fellow citizens in a crown court for any offence carrying a prison sentence of more than six months.
That right has already been eroded a little: magistrates’ powers were recently extended to cover crimes with sentences up to 12 months. The government wants to extend them further: people facing sentences of up to two years if found guilty would be tried by three lay volunteers or a single legally trained magistrate. Individuals accused of “either way” offences such as burglary or intent to supply drugs (tried either in a magistrates’ court or a crown court) will no longer have the right to choose jury trial: a single judge will instead decide whether to send them down for up to three years. This is forecast to cut the number of jury trials in half.
If I were innocent and stood accused of a crime that came with a hefty prison sentence, I would always opt for trial by jury. The law might be the same either way but the people applying it to the facts of the case are very different. I would trust 12 peers to do this more fairly than a judge or magistrate.
That’s not because judges aren’t highly learned individuals who strive to be just. But while experts in the law they are hardly reflective of the nation; magistrates even less so. Like scientists and doctors, they are not above human bias or error. After all, cases get overturned on appeal because judges make mistakes. If you are innocent, would you risk your plight with them or 12 randomly selected people who more broadly reflect life in Britain today?
Jurors of course have their own biases but the whole point of the jury system is that the numbers involved and the process of deliberation work to filter them out. Juries are the only proper way to judge someone’s guilt in the context of society’s cultural norms, such as deciding whether someone charged with rape reasonably believed a complainant had consented.
Under the government’s reforms, people convicted by magistrates will no longer have an automatic right to appeal. This is extraordinary, given that more than 40 per cent of appeals against magistrate verdicts (and 47 per cent of appeals against magistrate sentences) are successful. Those most likely to volunteer for the bench may be well-intentioned but are far from infallible and often have limited experience of the lives of those over whom they pass judgment. While ethnic minority defendants experience similar conviction rates before juries, black women are 22 per cent more likely to be found guilty by magistrates than white women. Little wonder a much greater proportion of black than white defendants opt for jury trial. It is nonsensical for the government to reduce the checks and balances on magistrates at the same time as expanding their powers.
The Institute for Government says these reforms would bring only “extremely marginal gains” in cutting the courts backlog. It thinks the amount of time to hear cases would fall by less than 10 per cent, and that ministers would do better by simply lifting the cap on court sitting days. Which begs the question, why on earth is Starmer gambling with our freedoms like this — especially when populists are looking for any excuse to attack elites?
It is symptomatic of a desperate failure of imagination by successful people for whom the system has always worked, and who are used to being heard. Justice is better cleanly administered by the learned friends from their social group than messily doled out by the little people who serve on juries. It is a worldview that characterises much of Starmer’s politics and is evident in much of his positioning: pro-assisted dying, a lukewarm defender of protections for women’s services and sports, and ambivalent about jury trial. And I think it is this gilded outlook that explains why he so often appears out of touch with voters.
And as David Lammy seeks to hand the criminal courts over to Artificial Intelligence, Robert Booth and Mark Wilding write:
Police arrested a man for a burglary in a city he had never visited after face scanning software deployed across the UK confused him with another person of south Asian heritage.
Alvi Choudhury, 26, a software engineer, was working at the home he shares with his parents in Southampton in January when police knocked on his door, handcuffed him and held him in custody for nearly 10 hours before releasing him at 2am.
Thames Valley police had used automated facial recognition software which matched him with footage of a suspect of a £3,000 burglary 100 miles away in Milton Keynes, according to documents shared with The Guardian by Liberty Investigates.
But the CCTV footage showed a noticeably younger man with different features apart from similar curly hair, said Choudhury, who was left confused about why he had been arrested.
“I was very angry, because the kid looked about 10 years younger than me,” said Choudhury, who wears a beard. “Everything was different. Skin was lighter. Suspect looked 18 years old. His nose was bigger. He had no facial hair. His eyes were different. His lips were smaller than mine.
“I just assumed that the investigative officer saw that I was a brown person with curly hair and decided to arrest me.”
UK police forces use an algorithm procured by the Home Office from Cognitec, a German company. It runs about 25,000 monthly searches against around 19m police mugshots held on the UK-wide police national database. Facial matches should be treated as intelligence, not fact, according to the National Police Chiefs’ Council. Thames Valley police said the decision to arrest Choudhury was made after a human visual assessment as well.
But the technology was revealed in December to produce a far higher rate of false positives for black (5.5 %) and Asian (4.0 %) faces than for white faces (0.04 %) at certain settings, according to Home Office commissioned research. Police and crime commissioners warned of “concerning in-built bias”, and said that while “there is no evidence of adverse impact in any individual case, that is more by luck than design”.
Since December, Thames Valley police has also been deploying live facial recognition technology to scan the public in locations in Oxford, Slough, Reading, Wycombe and Milton Keynes. It has captured about 100,000 faces, leading to six arrests.
Given the differences between the man on the CCTV and his own face, Choudhury assumed he would be quickly freed. He offered evidence of work meetings in Southampton on the day of the crime but he was instead taken into custody.
Choudhury is claiming damages against Thames Valley police and Hampshire constabulary, which executed his arrest. His neighbours saw him being led away in handcuffs, his father was very anxious about him being held and he was unable to work the following day, he said. He is also calling for greater transparency about the number of wrongful arrests involving facial recognition technology.
Choudhury’s mugshot was held on the police system only because he had been wrongly arrested in 2021 when he had been attacked on a night out while at university in Portsmouth. The police released him with no further action. Now he has had a second mugshot taken he is afraid the automated system could trigger more wrongful arrests.
“In my head, if a brown person in Scotland robs a bank are they going to come and arrest me?” he said.
He sometimes needs security clearance to work for government clients and he is asked about arrests and said: “This makes me look dodgier and dodgier.”
Thames Valley police admitted to Choudhury the arrest “may have been the result of bias within facial recognition technology”. But an officer told him that “as the use of facial recognition is already subject to review at a strategic level, I do not feel the need to raise this issue as part of wider organisational learning”.
A Thames Valley police spokesperson denied the arrest was unlawful and said: “While we apologise for the distress caused to the complainant in this case, their arrest was based on the investigating officers’ own visual assessment that the individual matched the suspect in CCTV footage following a retrospective facial recognition match, and was not influenced by racial profiling.”
But Choudhury said officers at the Hampshire police station laughed when he asked: “Does this look anything like me?” And he said the Thames Valley police officers who arrived to interview him said “they knew I wasn’t the suspect after looking at footage of the suspect and looking at my picture”.
Warnings have been repeatedly raised about the use of automated facial recognition technology. In December 2024 the UK’s biometrics and surveillance camera commissioner, William Webster, voiced concern that police continued to retain and use images of people who, having been arrested, were never subsequently been charged or summonsed. Last month, South Wales police paid damages to a black man who was wrongfully arrested and held for 13 hours after facial recognition technology.
Choudhury’s lawyer, Iain Gould, a partner at DPP Law, said police “must ensure that artificial intelligence is not substituted for human intelligence and due diligence, but instead is used in careful partnership with it”.
The Home Office said guidance and training to minimise error and maintain public confidence in retrospective facial recognition was under review by the Police Inspectorate. It said a new national facial matching system is under development, with an improved, independently tested algorithm.
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