We Cannot Have Justice Without Juries

To have it done before he faced a Leadership challenge, Keir Starmer wants to abolish half of jury trials before the local elections, so see here:

We, the undersigned representative groups of criminal practitioners in England and Wales, are united in our rejection of David Lammy MP’s proposals to curtail the right to jury trial and the automatic right to appeal from the magistrates’ court to the crown court. These are fundamental rights that stand to be stripped from the public. As practitioners in the field, it is our duty to sound the alarm and, with the support of the general public, resist these plans. We call on the other representative organisations which make up the criminal justice sector to join us in our united opposition. The speed with which the government is seeking to advance these reforms requires a swift response. We will soon be calling a day of action to protest the proposals outside the Old Bailey and coordinating our members to take further measures to challenge the reforms.

London Criminal Courts Solicitors’ Association 

Criminal Bar Association

Criminal Law Solicitors’ Association

As Monidipa Fouzder writes:

Criminal law practitioner groups have united to declare war on the government’s plans to curb jury trials at a meeting in which it emerged that a Labour MP vociferously opposed to the reforms is contemplating meeting justice secretary David Lammy halfway by suggesting a pilot.

Representatives for the London Criminal Courts Solicitors’ Association, Criminal Law Solicitors’ Association and Criminal Bar Association confirmed their opposition to Lammy's controversial plan to cut the Crown court backlog at a meeting in London last night.

LCCSA president Jason Lartey told the meeting that Lammy will reportedly be addressing parliament next Tuesday.

Lartey said a meeting took place yesterday at the Law Society with Labour MP Karl Turner, a former shadow justice minister. Solicitors heard that Turner, who has criticised the government’s ‘utterly ludicrous, unworkable policy’ in parliament, might put forward ‘as a last resort’ the idea of piloting a Crown court bench division. He would mention to Lammy whether the Law Society and Bar Council support or oppose a pilot. 

However, University of Exeter’s Rebecca Helm, author of How Juries Work, told the meeting that any benefits from the pilot would be difficult to measure and pilots are expensive to set up.

Helm said juries play an important role democratically by interpreting legal terms in line with societal standards, and bring their collective expertise to make assessments of plausibility. With judge-alone trials, ‘there is a risk you end up holding people to standards that are not the standards of society but a particular person whose experience is detached from society more broadly’. 

CLSA chair Katy Hanson highlighted the importance that justice is seen to be done and said defendants will feel they got a fair hearing if their case is heard by people from their community. Hanson fears the government will try to introduce the reforms quickly ‘because they are aware of the feeling against it’. 

Andrew Thomas KC, vice-chair of the Criminal Bar Association, said the CBA also opposes the removal of the automatic right of appeal from the magistrates’ court to the Crown court. Describing the right as an ‘important safeguard’, Thomas said more than 40% of appeals succeed ‘and they are not a great burden on the Crown court’.

Lammy’s proposals would see jury trials axed for crimes with sentences of less than three years. However, former CBA chair Chris Henley KC said: ‘The idea that receiving a three-year sentence is not a big deal and can be done differently, then why have juries at all? When you’re facing a sentence of imprisonment that can change your life, will end your job prospects, end your marriage, change your relationship with your children, that is something we need to carefully think about.’

During the highly-charged meeting, solicitors raised strike action, declining to take instructions, lobbying MPs and contacting Law Society Council members to voice concern about supporting any compromise. It was also suggested lawyers protest outside the Old Bailey, where there is a plaque commemorating jurors in Bushell’s case. Jurors in the 1670 case refused to give a verdict against the defendants despite being locked up without food for two nights and were fined for their final ‘not guilty’ verdict.

As Matt Foot writes:

Dear Keir,

When you were a criminal defence barrister you were held in high regard as an educator on the importance of human rights. There seemed to be no end to your training sessions and practitioner manuals.

It was a little surprising therefore seeing you travel to China, where according to the latest Amnesty International report: “Human rights defenders were arrested, prosecuted and sentenced to long prison terms”. That you took the opportunity on that trip to announce your support for the removal of the right to a trial by jury was, I suppose, befitting with the setting and the proposal not being in your manifesto.

Your dispatch impelled me to remind you of the compelling arguments you yourself made back in 1992 defending jury rights. You may recall that you even urged their expansion:

“The right to trial by jury is an important factor in the delicate balance between the power of the state and the freedom of the individual. The further it is restricted, the greater the imbalance. Despite the inevitable increase in costs, the Haldane Society urges that there be a right of trial by jury in all criminal cases.”

No doubt your approach back then would have been impacted by your experience, as a budding lawyer venturing out to the magistrates’ court, of its arbitrary nature.

No doubt you represented clients before District Judge Roger Davies at Horseferry Road Magistrates, who had a penchant for bullying young male advocates. Until, of course, he had to resign in 2012 after The People exposed that he had been paying for sex with “rent boys”.

Or there was “Custody Cooper” at Greenwich, a district judge whose moniker needs no explanation as to what was likely to happen in his court, with a smile.

You understood only too well why it was so important to promote jury rights because:

“There is a genuine and deep-rooted feeling by defendants and lawyers alike that discrimination and institutional bias operate throughout the magistrates court system. Certainly, neither stipendiary nor lay magistrates properly reflect or represent the communities over which they preside.”

I suspect you still have JAG Griffith’s book The Politics of the Judiciary on your shelf, which makes clear that the makeup of the judiciary has not improved. And yet now you wish to bestow more power to magistrates.

The argument you put forward today for removing jury rights is that you have a commitment to victims who you rightly identify are stuck in appalling court delays, as are defendants. There is a very straightforward cause of the delays. Between 2010 and 2019 over half the courts across England and Wales were closed.

I will tell you a secret. If you close a court, it can no longer hear cases and an insufferable burden is placed upon those courts who still remain. The PSC union led an excellent campaign against the closures, but it was ignored. I would imagine you too were opposed to the closures of important London courts that you practised in, such as Bow Street, Clerkenwell, and Blackfriars.

Here’s an idea as part of your commitment to victims, alongside or instead of building new prisons, why not reopen the criminal courts that were closed? That would immediately help to reduce the backlog of trials. 

While you’re at it you could reduce the conveyor belt of overcharged defendants in joint enterprise murder cases, clogging up the courts.

The recent court watch report by APPEAL, Joint Enterprise on Trial, looking at 17 trials at the Old Bailey, found 7,000 days (19 years) spent on remand by defendants who were subsequently either acquitted or given a non-custodial sentence.

Finally why not, on your travels abroad, promote with pride the long British tradition of the right to a trial by jury? You could provide them with the argument in your first book, Miscarriages of Justice – Justice in Error written in 1993, made by the contributor John Jackson:

“One advantage of jury trial is that jurors are not privy to inadmissible evidence which may prejudice any tribunal of fact. Another is that the principle of random selection appears to be a better foundation for impartiality and independence than the principle of selection by unaccountable advisory committees appointed by the Lord Chancellor.”

I hope you don’t mind me setting all this out for you. It’s just you seem to have forgotten all that you learnt in your legal practice, and the unique character of the jury in protecting the freedom of the individual. 

Yours sincerely,

Matt Foot 

P.S. On a separate matter, can your government please make progress on scrapping the appalling 2014 law which denies miscarriage of justice victims, like Sam Hallam (alongside 93 per cent of other applicants) any compensation?

Despite being found innocent, they cannot meet a virtually insurmountable test that they must then prove their innocence beyond reasonable doubt and so are left destitute. They too are victims who I’m sure you would also wish to support.

And as Chris Henley KC writes:

Just imagine spending the next three years in a small cold room, with a lidless steel toilet, the meagre furniture secured to the floor or wall, an hour of ‘fresh’ air in a shared high-walled yard with no view, communal showers with randomly violent people, many of them suffering from serious mental health problems. If you ever see your family and children, it will be a humiliating experience, under intrusive observation, with limited if any touching, around small plastic tables with constant menace in the air, and every meal tasteless, tepid and insufficient. Every single day for three years. Imagine enduring this even for a week. The deprivation of liberty is the most significant power the State can exercise.

If we are to do this to our fellow citizens does anyone seriously disagree that this should only happen after a fair, open-minded trial process?

Jury trial gives us confidence that there has been a fair process. Judge-only trials will not. The judges who will replace juries are, much more often than not, privately educated, white men, in late middle age, of very narrow social background and experience. I could be describing myself. This proposed set up is as far away from trial by a balanced cross-section of society as it would be possible to contrive. Judges sentence non-white defendants more harshly and deny bail to non-white defendants more often. Whether the bias is conscious or unconscious, the bias is incontrovertible. A recent example of this was the disproportionately harsher sentences handed out by judges across the country to Asian sub postmasters and sub postmistresses compared to their white colleagues. Seema Misra, innocent and pregnant, who was persuaded to plead guilty in an attempt to avoid prison, was not spared by the judge.

The Church Times has pithily identified the problem:

‘No matter how fair and independent a judge might be, the abstract image alone is devastating. Furthermore, it is likely that judges will gain reputations (deservedly or not) for being hard-line and austere, or for being tolerant and genial, or for being bigoted and prejudiced; and so verdicts and sentences will come down with a patina of scepticism already on them.’

All of us who practise in the criminal courts know this to be true. Three recent trials I have been involved in would not have delivered the same fair outcomes had the judge alone been effectively the jury too. I know this because the judges consistently betrayed their views – in the absence of the jury, of course. In one, the judge even commended the pathologist about the guilty verdicts obtained in a previous trial, using language along the lines of ‘did you hear, we got them’.

I’m afraid that as a judge you very quickly become a creature of the establishment. You instinctively assume the best and sympathise, other than in the clearest cases, with the arms of the state which underpin the prosecution. Judges almost never instinctively empathise with the individual on trial. All the pre-trial information, which a jury is not exposed to, points unerringly one way. Some judges are more benign than others, but it affects almost everyone. This is to be expected and is a pattern of behaviour repeated in so many areas of life.

I have biases, conscious and unconscious. Of course I do. I see the world through my very particular eyes as a result of the life I have lived. The world has served me well. I expect that I will be treated fairly, will be believed, listened to not judged, because that is my narrow, privileged experience. While I might sometimes think I do, I have no special insight into why people behave as they do, particularly young people (although I have children), or people of colour, or the economically disadvantaged, what might be in their minds, or their experience of the world, their frustrations, their perceptions of what might happen in certain situations, based on visceral previous experience, or the impact of peer pressure or social deprivation. But I could easily end up sitting in judgment of them, in a judge-only court.

Some judges are better than others at masking their prejudices, but all of us who practise in the criminal courts know that day in day out they hang heavy in the air. Those barristers who both prosecute and defend will routinely contrast judicial behaviour when prosecuting as ‘like having the wind behind you’. Advocates who defend in the Magistrates’ Courts know how strong the wind blows the other way, for similar reasons. David Lammy, now Lord Chancellor, recognised all of this in his careful and compelling Lammy Review in 2017; judges and magistrates racially discriminate in their treatment of defendants at every stage, when they have the key decisions to make. Reports from this year have reaffirmed this finding. The Children’s Commissioner, for example, reported that ‘there are evident ethnic disparities across the justice system… 56% of children remanded were from an Asian, black, mixed or other ethnic group’. All of this is what David Lammy described in his Review.

The Court of Appeal provides precious little protection when things go wrong. It has a very poor record of correctly identifying miscarriages of justice, effectively a judicial fact-finding exercise. Obvious miscarriages have had to return to that court multiple times before they are finally put right. Andrew Malkinson’s case is an example of this; the Court of Appeal dismissed his first appeal describing the evidence against him as ‘compelling’. This reluctance to acknowledge the mistakes our system is bound on occasion to make, is an establishment default setting in favour of the status quo. This instinct runs very deep. Lord Thomas, then Lord Chief Justice, exemplified this approach in his notorious judgment in Johnson and others [2016] EWCA Crim 1613, in which he did all he could to limit the practical effect of the Supreme Court decision in Jogee a few months earlier. The case of R v Ordu [2017] EWCA Crim 4 is another shocking example of the Court of Appeal refusing to quash a conviction. Leave to appeal out of time was refused even though the prosecution had made it clear they would not oppose the appeal. Imagine if it was a member of one of those judges’ families.

The Supreme Court in the Libor appeal, R v Hayes and R v Palumbo [2025] UKSC 29, an appeal rejected three times by the Court of Appeal, opened its judgment with this first line:

‘The history of these two cases raises concerns about the effectiveness of the criminal appeal system in England and Wales in confronting legal error.’

The trial judges had misdirected their respective juries in August 2015 and March 2019. The jury in each trial had done its job, but the trial judges and the appeal court judges had failed, properly, to do theirs.

This is why we all need the protection of a fair trial, which only a jury can consistently provide. Lammy used to be a passionate advocate of trial by jury. In his Review he examined the consistency of the outcomes, as between ethnic groups. His conclusion was that trial by jury was the shining success of our system. He was not so positive about outcomes in Magistrates’ Courts or decisions by judges; both displayed clear bias.

This is not very surprising, but it is fundamental to the confidence the public has in our system of trial by jury. We are all familiar with the concept of the ‘wisdom of crowds’. There is no concept of the ‘wisdom of one’, for obvious reasons. Trial by jury is the ‘wisdom of crowds’ in practical action. Organisations and businesses do the same. They assemble a panel or refer to a committee when making significant decisions, bringing a range of voices and experiences to the table to ensure that everything relevant is considered and tested. The collective decision is understood to be more robust, and wise, than a decision made by a single person. A single person won’t always get it wrong, but a decision produced and supported by a range of people commands more confidence and will be the result of greater challenge and testing. Just like a jury’s verdict.

Replacing trial by jury with trial by judge alone will change outcomes. It will cause harm to some defendants of different ethnic and socio-economic backgrounds, and some younger defendants, whose truthful accounts will be dismissed by a case-hardened judge but would not be by a jury of greater ‘wisdom’. Any judge will be able to explain, with little difficulty, in a written judgment why they came to the conclusion that they did, highlighting whatever aspects of a witness’s testimony they need to accept or reject to justify their verdict. Any such conclusion will always be subjective; it cannot be anything else. That is the root of the problem. But for certain defendants the dice will have been loaded against them from the start.

The government points, in particular, to Canada and New Zealand to justify the abolition of the right of defendants to elect jury trial, a new judge-only court and the significant expansion of the sentencing power of magistrates. What they fail to mention is that in both Canada and New Zealand lay magistrates have been abolished altogether, such was the lack of confidence in the quality of their decision-making, and the right to elect jury trial has not been abolished as will happen here.

We need judges to do their very important job, which they have been trained to do: to be the legal experts, to apply the law properly, to rule correctly on the admissibility of evidence, to manage trials efficiently and to pass the correct sentence after careful expert reflection. We cannot have trials without judges, but we cannot have justice without juries.