A Filter For Prejudice

Kim Johnson MP writes:

In 2017, David Lammy received deserved praise for his landmark review into the criminal justice system, which shone a light on the unequal treatment of minorities. One striking revelation was that jury trials were found to be one of the few parts of the system consistently free from racial bias, overall treating defendants equally, regardless of their ethnicity. In contrast, judges have been found to be significantly more likely to give jail sentences to Black, Asian and mixed ethnicity offenders than to white offenders for comparable crimes. As the then Shadow Justice Secretary concluded, juries were shown to “act as a filter for prejudice”.

Nine years on, Lammy now holds the government role he once aspired to, with the power to address many of the issues he previously highlighted. Yet instead of protecting juries, the Justice Secretary appears determined to sideline them. Under pressure to cut the courts backlog, the Ministry of Justice (MoJ) is proposing to almost halve the number of jury trials in England and Wales, giving magistrates and lone judges the power to decide the outcome of thousands more cases. Unlike juries, they do not reflect the diversity of modern Britain.

Given the findings of Lammy’s own review, these reforms are highly likely to increase the risk of racial bias, leaving ethnic minority defendants more vulnerable to miscarriages of justice. That is why I have coordinated a letter to the Justice Secretary, signed by ten Black Labour MPs, urging him to remove the plans for jury reform from the Courts and Tribunals Bill.

Frustratingly, the government has already acknowledged the risk of increased racial bias, but this serious concern is being treated as an afterthought. Last month, courts minister Sarah Sackman revealed the MoJ intends to review the impact of judge-only trials on minorities, but only after the reforms take effect. This is a backwards approach: roll out the change nationally, then investigate its harm later. The problems identified in 2017 have not disappeared – if anything, the resurgence of racism makes the lessons of the Lammy Review more relevant than ever.

Ministers keep insisting that these reforms are necessary to tackle the Crown Court crisis. The backlog – now more than 80,000 cases and projected to rise to 100,000 by 2028 – is extremely serious. But, as expert legal charity JUSTICE sets out, juries are not the cause of these delays and cutting juries will make no significant dent in this backlog – rather, it will create a host of new problems.

The true source of the delays lies in brutal justice budget cuts from the 2010s, and successive governments’ failure to repair this gutting of the system. Sitting days have been capped, legal aid decimated, and buildings left to crumble. I welcome the additional resources the government has promised as part of the package of measures to address the backlog, but this is just a first step.

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I’ve seen in my own constituency how trial backlogs can be driven down without curtailing juries. Through pioneering fast-tracks trials and other practical measures, Liverpool crown court has cut the average wait from charge to trial to 206 days, compared to a national average of 321. Undermining the right to jury trial is not a solution to this crisis, it is a diversion from addressing its real causes.

Everyone deserves a fair trial, free from discrimination. Juries remain one of the most important mechanisms we have to protect that right. Any move to remove or restrict them – particularly in the face of persistent racial disparities – risks eroding trust and confidence in our public institutions and damaging the very legitimacy of the justice system.

I urge the government to withdraw these proposals and commit unequivocally to protecting one of our fundamental democratic rights.

Dr Neil Shastri-Hurst MP writes:

Few features of the British constitution command as much quiet respect as trial by jury. It is not merely a legal mechanism, nor simply a tradition preserved for its own sake. It is a living expression of a constitutional principle.

When the state accuses a citizen of a serious crime, guilt must be established not only before officials of the state, but before ordinary members of the public.

That principle deserves careful consideration in the debate now unfolding around the Courts and Tribunals Bill. Amongst its provisions are proposals that would, in certain circumstances, limit the availability of jury trials in order to address the severe backlog within the criminal justice system.

No responsible parliamentarian should deny the scale of that challenge. Victims are waiting too long for justice. Defendants are waiting too long for their cases to be resolved. Confidence in the system is inevitably strained when delay becomes the norm rather than the exception.

However, acknowledging the problem does not absolve us of the responsibility to ensure that the solutions we adopt are the right ones.

Before entering parliament, I practised as a barrister. Whilst I was not a criminal practitioner, I did appear in the Coronial Courts, where juries still sit in certain inquests. Through that experience I saw first-hand how seriously jurors approach their task: listening carefully to the evidence, reflecting on the arguments presented to them, and appreciating the gravity of the conclusions they are being asked to reach.

It is a powerful reminder that justice in this country is not administered solely by the state, but with the participation of the public.

For that reason, proposals to curtail jury trial cannot be regarded simply as matters of efficiency or case management. When the state reduces the circumstances in which it must persuade twelve citizens before securing a conviction, it fundamentally alters the balance between the individual and the power of the state.

Those who propose such a change therefore carry a significant burden. They must demonstrate not only that reform is necessary, but that the particular reform proposed will genuinely address the problem it seeks to solve.

At present, that case has not yet been made.

The government has placed considerable reliance on the recent review conducted by Sir Brian Leveson. Sir Brian is a jurist of immense experience and his work deserves careful attention. However, a review, even one conducted with great care and expertise, cannot substitute for the broader evidential base that a reform of this constitutional significance requires.

In particular, there is a striking absence of clear modelling demonstrating that limiting jury trials will materially reduce delays.

In response to a question in the House of Commons on 3 February this year, the lord chancellor indicated that the government would publish modelling supporting the assumption that these proposals would reduce trial times by around 20%. Yet the impact assessment accompanying the legislation contains no such modelling. Instead, it adopts Sir Brian’s analysis as the basis for its projections.

Analysis is valuable, but analysis is not modelling. When parliament is being asked to scale back a centuries-old safeguard, it is reasonable to expect robust evidence showing that doing so will deliver the promised benefits.

Moreover, the causes of delay in the criminal justice system are neither obscure nor controversial.

The first is judicial capacity. Courts cannot hear cases without judges, yet judicial sitting days have for years been tightly constrained. Courtrooms sometimes sit unused not because juries are unavailable, but because there is no judge available to preside.

The second is the state of the court estate. Across the country many criminal courts operate in buildings that are outdated and poorly equipped. Trials are frequently disrupted by unreliable technology and inadequate facilities. These are not problems created by jury trial, and they cannot be solved by limiting it.

Thirdly, there are continuing operational problems with prisoner transport and custody arrangements. It is now far from unusual for proceedings to be disrupted because defendants arrive late, or occasionally not at all. Juries are left waiting, witnesses are sent home, and valuable court time is lost.

Finally, there is the growing strain on the criminal bar. The system increasingly struggles to secure suitably experienced advocates to prosecute and defend serious cases. Delays arise not from inefficiency but from the gradual erosion of the professional capacity on which the system depends.

Taken together, these factors suggest the backlog is primarily a problem of capacity. In that context, curtailing jury trials risks treating the symptom rather than the cause.

There are also questions about the practical implications of the proposals themselves. Sir Brian Leveson envisaged alternative tribunals including lay magistrates as 'wing members', preserving an element of public participation. The government’s proposals do not adopt that aspect of his recommendation. At a time when magistrate recruitment itself presents challenges, it is legitimate to ask how the system will absorb the additional caseload these reforms envisage.

Trial by jury has endured for centuries not simply because it is ancient, but because it commands public trust. It ensures that the immense coercive power of the criminal law is exercised not only by the state, but with the participation and consent of the community.

If we are to change that balance, we must be confident that the change will genuinely strengthen the justice system rather than merely rearrange its pressures.

Efficiency is essential in any modern justice system. However, efficiency must never come at the expense of the constitutional principles that give that system its legitimacy.

Dominic Casciani writes:

More than 3,200 lawyers including 300 top barristers and retired judges have called on the government to drop a plan to abolish some jury trials.

The letter to Prime Minister Sir Keir Starmer, a former director of public prosecutions, says there is no evidence the "unpopular" plan will solve unprecedented delays in criminal courts.

The proposals, which return to Parliament on Tuesday, would replace juries in England and Wales with a single judge in cases where a convicted defendant would be jailed for up to three years.

Justice Secretary David Lammy says changes to jury trials and other reforms can help turn around the Crown Court backlog, which has reached record levels of 80,000 cases.

The delays mean some defendants charged today may not face trial until 2030.

Labour MP Karl Turner, who is opposed to the plan, has told the BBC he held a "constructive" meeting with Lammy in which the deputy prime minister promised a "meaningful" review period to scrutinise how the reforms are working if approved by Parliament.

MPs will debate and vote on the overall principles of the measures in the Courts and Tribunals Bill during its second reading on Tuesday.

While some MPs have voiced concerns, potential Labour rebels may choose to abstain rather than vote against the bill as a whole - seeking to make changes when the bill returns for further debate in the House of Commons on specific amendments.

The bill will still have to clear the House of Lords before it can become law.

The right to jury trial - in which ordinary people decide on the guilt or innocence of defendants brought before Crown Courts - is a cornerstone of the constitution dating back more than 800 years.

The letter organised by the Bar Council, which represents all barristers in England and Wales, says the plan is an attempt "to force through an unpopular, untested and poorly evidenced change to our jury system".

The signatories include:

• Three hundred KCs - top barristers who act in the most complex cases
• Twenty two retired Crown Court judges with first-hand knowledge of the backlogs and their causes
• Former Director of Public Prosecutions Sir David Calvert-Smith
• TV lawyers Rob Rinder, Shuan Wallace from The Chase and two barristers who have featured in The Traitors 

'Bulldozing' jury trials claim

"We have long warned that the criminal justice system is in crisis.... Juries have not caused this crisis," says the letter.

It urges ministers to focus on delivering reforms and steps to modernise criminal justice, set out in a major independent review by former senior judge Sir Brian Leveson.

Sir Brian also called for jury trials to be restricted - but his proposal included volunteer magistrates deciding affected cases alongside a professional judge in order to keep a link to communities.

Kirsty Brimelow KC, the senior criminal lawyer who heads the Bar Council, said: "This letter and its more than 3,000 signatories demonstrate the unequivocal principled and practical opposition to the restriction of jury trials from not only the Bar, but the legal profession as a whole.

"There is very little evidence to support even basic rationality of the government's decision to rush through this legislation which unnecessarily removes jury trials from thousands of people.

"It's not too late for the government to listen to us as experts and as a profession and stop before bulldozing our jury system."

Shadow justice secretary Nick Timothy has urged Labour MPs to join the Conservatives in voting against the changes, adding that juries provide a "safeguard between the citizen and the state".

He said: "Parliament has a clear choice. It can stand up for one of the oldest rights in our justice system or let Labour take a sledgehammer to our constitution."

Speaking to BBC Breakfast on Tuesday, Justice Minister Sarah Sackman said "jury trials will remain a cornerstone of British justice" but argued that there was "no point in having a jury trial if it takes years to get there".

"We have to have all three levers - the reforms, modernisation and investment," she added.

"Only all three will bring down the backlog in our courts."

Study casts doubt on plan

A study of the court backlogs by the Institute of Government, a think tank, projected that cutting jury trials would save less than 2% of court time, assuming that the cases would be dealt with more quickly.

Research carried out by Lammy in 2017, before he was a minister, revealed that juries were particularly trusted by ethnic minority defendants. 

He says many comparable criminal justice systems, including Canada's, have introduced similar reforms to speed up justice with no loss of confidence in the courts.

The Ministry of Justice said that more than 90% of criminal cases were already heard fairly without a jury. 

A spokesman said: "With victims facing unacceptably long waits for justice after years of delays in our courts, we make no apologies for pressing ahead with our plans to reform the system based on Sir Brian Leveson's independent review, alongside modernising it for the 21st Century with record investment."

Sonia Sodha writes:

Later today the House of Commons will have its first opportunity to vote on the government’s plans to cut access to trial by jury. In order to browbeat sceptical backbenchers into toeing the government line, justice secretary David Lammy has entreated us to think of the victims of crime, such as the women who’ve experienced sexual assault. How could we deny them the speedier justice that would supposedly result if we charged a judge rather than jury with deciding on the accused’s guilt? His deputy Sarah Sackman has invoked the career criminals who she says “game the system” by electing for jury trial to delay their reckoning with justice. Meanwhile, the government says removing the right of some defendants to elect for a jury trial will “bring the courts more into line with other public services - where it is the experts… who do that triage.” As if a defendant wrongly accused of a crime is in the same boat as someone who goes to their GP expecting to be referred to the right specialist.

It is a deeply cynical attempt to ram through a rollback of civil liberty safeguards. We are supposed to believe this is at once an incremental reduction in rights for those who stand accused of committing a crime, and that it will also deliver a transformation in outcomes for victims. This is an insult to voters’ intelligence.

Justice needs juries

Trial by jury is the fairest way of determining the criminal liability of defendants whose liberty is at stake. Unlike in civil cases, in which the facts of a case are usually decided on the balance of probability - what is more likely than not to have happened - the criminal standard of proof requires juries to be sure that a defendant is guilty of a crime in order to convict them. Almost certain isn’t enough. This standard means we quite rightly let probably-guilty people walk free. That is the price of minimising the number of innocent people locked up for a crime they didn’t commit.

Putting the decision about whether or not someone is guilty into the hands of one judge increases the risks of miscarriages of justice, because it requires just one person to be “sure” of someone’s guilt rather than twelve (or in the case of majority verdicts, ten). That feels like a significant watering down in how we practically apply the criminal standard of proof. Judges are learned individuals highly expert in the law. But when it comes to deciding the facts of a case, they are as human as the rest of us: there is no such thing as an unbiased individual.

Juries provide a triple safeguard. Ten to twelve fellow citizens, not a single judge, must agree someone is guilty based on the evidence. The process of deliberation helps iron out human bias as jurors can challenge each other’s understanding of the facts. And jurors have not seen case after case in the criminal courts, heard the same defence run over and over, and sentenced countless criminals to prison, like judges have. This helps them put themselves in the shoes of the defendant as well as the victim, and to appreciate just how much is at stake on all sides.

The government’s proposals

Not everyone charged with a crime has the right to a jury trial. The vast majority of criminal charges brought are for minor, “summary” offences that are tried by three volunteer lay magistrates, or a single legally-trained magistrate. For mid-tier “either way” offences such as burglary or intent to supply drugs, defendants pleading not guilty have the right to choose a jury trial or to be tried in the magistrates’ court. The most serious indictable offences, are always tried in the crown court by a jury. Until relatively recently, magistrates were only able to sentence individuals to up to six months in prison; back in 2022, the government extended this to 12 months.

The government is proposing three radical shifts. First, it wants to dramatically increase the sentencing power of volunteer magistrates so they will now be able to send someone to prison for up to two years, a quadrupling of the maximum sentence in just four years. Second, it wants to remove the right of those accused of “either way” offences to choose a jury trial. Instead, a single judge will charged with deciding whether or not to convict someone of a crime that comes with a prison sentence of up to three years. Only individuals charged with crimes that carry sentences of more than three years will have the right to trial by jury. The government estimates that as a result, the number of jury trials in England will halve from 15,000 to 7,000 a year. 

Third, it is planning to remove the automatic right of appeal for people convicted by magistrates, at the same time as extending their sentencing powers. Volunteer magistrates are unrepresentative of the population at large and often have limited experience of the chaotic lives of those before them. More than 40% of appeals against magistrate verdicts and 47% of appeals against magistrate sentences are successful. And while juries are no more likely to convict ethnic minority than white defendants, black women are 22% more likely to be found guilty by magistrates than white women.

Why mess with our civil liberties in this way?

The government has put increasing the efficiency of the courts system, and reducing the backlog of cases that has steadily grown as a result of fifteen years’ of underfunding, front and centre of its arguments for reform. 

The court backlog is indeed terrible for justice: years-long delays in cases coming to trial mean it is less likely to be served, harming not just victims but innocent defendants. But the Institute for Government has assessed the impact of these reforms on court delays, and its verdict is that they would only result in “extremely marginal gains”. It concludes the government would do better to focus on their other, uncontroversial reform proposals, such as increasing the number of court sitting days.

But ministers have also implied that even if there wasn’t a major backlog, they would still be considering these reforms. Sackman has claimed the reforms are “ideological” and part of a “modern justice system”. Lammy seems to intimate trial by jury is somehow antiquated, writing “in Canada, I felt like a visitor from the past as I toured their modern justice system, where judge-alone trials are an everyday occurrence”.

“Old-fashioned civil liberties!” might seem like an odd strapline for a government led by none other than a human rights lawyer. But it hints at a couple of unattractive traits in Starmer’s politics.

The first is about vantage. On a range of issues, Starmer seems to understand the concept of “human rights” from the perspective of those who have more power in society, who are more easily heard, and whom the system is less likely to envelope in Kafkaesque nightmare. We see this not just in his approach to jury trial, but to assisted dying, where the rights of affluent campaigners with excellent social support who want the right to state assistance to end their own lives matter more than the rights of those who are vulnerable to being coerced into asking their doctor to prescribe them lethal drugs. Or in his inexplicable reluctance to make clear before 2023 that allowing men to self-identify into women’s spaces, services and sports would undermine their privacy, dignity and safety.

The second relates to how he sees ordinary citizens. Voters are not especially keen on politicians who they sense looking down on them. It is a bit of a tell when ministers move from promoting judge-only trials on the basis they reduce the backlog, to notions of modernity. It suggests Starmer actively prefers the idea of justice done by the learned judges in his social network over the little people who sit on juries. That plays straight into the anti-elitist rhetoric of populist politicians like Nigel Farage and Zack Polanski.

This is not a government generally characterised by a reforming zeal or a passion for change. It is remarkable to me that two of the most radical - and ill-conceived - shifts backed by Starmer are the risky legalisation of medically-assisted suicide, and curtailing citizens’ rights to jury trial. Are they really what he wants his premiership to be remembered for?

And Matt Dathan writes:

A wrongly convicted sub-postmaster has warned David Lammy there will be “many more miscarriages of justice” if he goes ahead with his plans to curb jury trials./ Jo Hamilton has written to the deputy prime minister, urging him to rethink the controversial change in the law that would replace jury trials in England and Wales with a single judge in cases where the defendant is likely to face up to three years in jail.

She warned that without the “safety net of a jury”, the changes will further erode trust in the establishment and the justice system.

Hamilton, whose story featured prominently in the ITV drama Mr Bates vs The Post Office, has urged wavering MPs to vote against the government in the House of Commons on Tuesday night, when they will debate and vote on the proposals for the first time in parliament.

Hamilton was one of more than 900 sub-postmasters prosecuted between 1999 and 2015 for offences including theft, fraud and false accounting. This occurred as a result of incorrect information from the Post Office’s faulty Horizon accounting system, built and run by the Japanese firm Fujitsu. More than 230 sub-postmasters were sent to prison and 2,800 were asked to pay back money to escape prosecution.

Hamilton said she was coerced into pleading guilty to 14 cases of false accounting in order to avoid the more serious charge of theft and was sentenced in 2008 at Winchester crown court. Her conviction was finally quashed in 2021 by the Court of Appeal after years of torment and campaigning.

In her letter to Lammy, Hamilton, who won an OBE for services to justice last year, wrote: “As one of 900 sub-postmasters wrongly prosecuted by an arm of the state, I feel compelled to write to you about restricting jury trials for criminal cases with a likely sentence of less than three years.

“I was coerced into pleading guilty and was sentenced in 2008 at Winchester crown court. I did not have a jury but having experienced the might of the criminal justice system I can see how this could go horribly wrong.

“There is no trust in the establishment and the justice system, and this will erode things even further. Crimes that would carry a three-year sentence will be serious ones (like mine) and I can see many more miscarriages of justice (like mine).”

She added: “Almost nobody has access to legal aid any more and as such vulnerable people could find themselves in court without the safety net of a jury.

“As somebody who has received an OBE for services to justice, I cannot let this go without telling you how strongly I feel and there are thousands more who feel the same way. I urge you to rethink this and share my letter with anyone who is undecided.”

The government is confident of winning the vote but Sarah Sackman, the courts minister responsible for the reforms, accepted that a significant number of Labour MPs would rebel.

The plans to abolish some jury trials form part of Courts and Tribunals Bill, and the wider provisions have widespread support.

However, Karl Turner, the veteran Labour MP who has led efforts to defeat the changes to juries, said he would attempt to force the government to dilute or scrap the proposals altogether at a later stage of the bill, when it returns to the Commons for its report stage, which is when MPs debate and vote on specific parts of the legislation.

He has told The Times that he already has 67 Labour MPs willing to back his amendments. He would need at least 80 Labour MPs in order to defeat the government’s majority in the Commons.

In a sign of the concern among ministers about the size of the rebellion, Lammy met Turner for last-minute talks in an attempt to quell dissent.

Turner said he would abstain in Tuesday’s vote because Lammy had promised to publish an assessment of the impact the curb on jury trials is having on reducing the court backlogs after a “meaningful review period”, and also offered to give a Labour MP opposed to the reforms a seat on the committee of MPs that will scrutinise the legislation line-by-line.

Turner said he was likely to offer the seat to a female critic as it would be more powerful to have a female voice on the bill committee. However, despite the concessions offered by Lammy in the meeting on Monday night, Turner still intends to table amendments to the legislation when it returns to the Commons in order to protect jury trials.

Sackman said the government was confident of avoiding a defeat in Tuesday’s vote. She told Times Radio: “I know that there will be some MPs that will vote against this, but I also know, as we saw from a letter yesterday containing the signatures of 40 women MPs from the parliamentary Labour Party, that there is strong support. Their message was clear. The changes in this bill cannot come soon enough for women and girls in the criminal justice system. And I’m listening to their voices as we go through the lobbies tonight.”

There is also widespread opposition to the jury curbs in the legal sector. More than 3,200 lawyers, including 300 top barristers and retired judges, wrote a letter to Sir Keir Starmer urging him to scrap the proposals. They argued there was no evidence that the “unpopular” plan would deliver the government’s goal of reducing the crown courts backlog, which stands at 80,000 and is on course to hit 200,000 by 2025, according to Ministry of Justice modelling.