If We Really Care About Democracy

James Kierstead writes:

A few weeks ago, I was lucky enough to attend In Defence of Trial by Jury, a panel event co-organised by spiked and the Free Speech Union. The event was a response to UK justice secretary David Lammy’s absurd plans to reduce the number of Crown Court cases that go before juries.

The panel members questioned Lammy’s assumption that jury trials were to blame for the Crown Court’s current backlog of almost 78,000 cases (rather than, say, a lack of funding or the number of spurious claims that now make it to court). And they emphasised the centrality of jury trials to our liberal institutions and to the common law, which has long been a bulwark of liberty in Britain, as in other English-speaking countries.

Yet one thing that struck me about the panellists’ excellent contributions is that they all centred on what philosopher Isaiah Berlin called ‘negative’ liberties – our freedom from coercion by the state – rather than on ‘positive’ liberties – our freedom to participate in decision-making with our fellow citizens. In other words, the contributions had more to say about liberalism than about democracy.

The threat to civil liberties posed by Lammy’s jury-trial plans is not to be underestimated. Especially at a time when Brits can be charged with ‘inciting racial hatred’ for expressing concern about illegal immigration on social media, as was the position of former Royal Marine Jamie Michael last year. Michael, as it happened, was cleared by a jury of his peers after only 17 minutes. It is understandable to wonder what might have happened had a judge from our current legal elite decided the verdict.

But if we are to understand the full extent of the trouble Lammy’s reforms would cause, we need to also start talking about how anti-democratic they are.

Jury trials were a central feature of the first recorded democracy in history, classical Athens. Like us, the ancient Athenians selected jurors randomly from the citizenry (though they excluded women, immigrants and slaves from the draw). These juries were massive, usually involving hundreds of people, and undoubtedly far more powerful than ours today. Their remit included not just determining guilt or innocence, but also sentencing.

Of course, Athenian juries didn’t always get it right – Socrates infamously found himself condemned to death for impiety by a jury in 399 BC. But the Athenians rightly saw juries as the primary means of implementing the law that the people had voted on. They were part and parcel of a democratic system that randomly allotted citizens to other powerful bodies, such as the Council of 500, which handled daily governance. The idea was to ensure that ordinary people (or at least ordinary men) were active participants in the state’s most consequential decisions.

Modern English juries don’t descend directly from the mass juries of ancient Greece. Our system is largely a Norman import, though earlier Anglo-Saxon and Scandinavian customs may have helped lay the ground. English juries were initially selected by a sheriff, who would put together a group of local men who might know something about the case on trial. Over time, however, the expectation shifted toward jurors who were strangers to the facts and capable of impartial judgment.

Selection procedures gradually became more regulated in the 18th and 19th centuries, and were eventually standardised under modern statute. This makes our juries one of the few surviving institutions that still entrust ordinary citizens with direct participation in the administration of justice – a principle ancient democracies prized, but which many modern systems have limited.

After all, most modern democracies outside the Anglosphere don’t make use of juries often, if at all. So why stick with them? One answer might be that they provide a crucial channel for more public involvement in our increasingly out-of-touch, elitist politics. This is a principle that senior figures in Keir Starmer’s Labour Party claim to support. Indeed, in 2024, Starmer’s former chief of staff, Sue Gray, came out in favour of citizens’ assemblies: randomly selected groups convened to deliberate on public policy. Curiously, Lammy himself even expressed an interest in the idea in a select committee hearing in 2020.

But if randomly selected assemblies are a good thing, then why not randomly selected juries? If Labour truly believes ordinary people should have a say, why is it itching to remove one of the only institutions that guarantees they do?

Supporters of Lammy’s cuts to jury trials claim that the changes will be minor, with more than 20 per cent of Crown Court cases going before a jury as opposed to around 30 per cent now. But if we really care about democracy, surely we should be increasing the number of ways ordinary people can get involved in decision-making, not stripping them back.

It seems the only conclusion to be drawn here is a simple one: Labour doesn’t care very much about democracy at all.

As Jonathan Black writes to his MP, Catherine West:

Dear Catherine,

I hope you are well.

Much has happened since that sunny Saturday afternoon in June 2024 when you and I were part of a canvassing team knocking on doors with and in support of Sarah Sackman’s election campaign.

What has not changed is the court backlog and aligned multiple pressures on the criminal justice system. On that day in June 2024 complainants in rape cases were expecting to wait months and years for their cases to conclude and defendants were couped up in cells not fit for human habitation waiting to be told that their trial was delayed largely due court capacity issues arising out to backlogs in the crown court. Whilst Haringey was served by a fully functioning Crown Court (albeit until the recent announcement not sitting at capacity), Barnet’s only court, Hendon Magistrates Court had been taken over as a Crown Court centre to host the overflow from Wood green and as of three years ago Harrow Crown Court which had to be closed for essential building repairs. This is still ongoing.

I did not expect that when knocking on those doors I would be indirectly campaigning for an end to the right to trial by jury, arguably a central element to our justice system as we know it.

I know that you are fully aware of the imperfections in our Criminal Justice System. No person navigating the system, whether on a daily basis as a professional or a party to a case should accept the delays. Pointing fingers at defendants gaming the system as justification for removing this fundamental right smacks of tabloid populism; Let’s stop suggesting that it’s the fault of those accused that complainants in sexual assault cases have to wait years; Let’s not ignore the delays in police investigations whereby cases take years from arrest to charge often due to cuts in police budgets. Let’s not ignore the structural failure of a Crown Prosecution Service unable review or at least communicate with counterparts to ensure cases either do not go to court or are truncated.

Last week my client, nearly 19 years old was sentenced for an incident that occurred in November 2024 when he was a17 year old juvenile. This is a relatively short turn around but he pleaded guilty and didn’t ask for the police to take over 12 months to decide to charge.

Yesterday my client who has been on bail since 2022 - on electronic tag - finally saw an end to a case that could have concluded 18 months ago when the representations made and sent to the CPS were drafted. Imagine how much court space could have been opened if they had been considered by someone willing to take hold of the case.

Three months ago, my client, a homeless man was stopped in 2022 with a knife in his rucksack, he told police he was on his way to leave it in a amnesty bin. His case ended after three years on bail awaiting trial when the CPS eventually decided that his defence was credible and that it was no longer in the public interest to prosecute.

I could come up with worse examples than the above but for a desire not to bore the reader and in my haste to ensure you read this before the matter is before parliament on 10th March.

The Government ministers appear almost quite excited in their determination to push these proposals through without assessing the impact of giving true consideration to alternatives.

It is disappointing that main parliamentary proponents of this bill, both of whom sandwich your constituency are two politicians that I have long admired.

They know that if does not need such a drastic step to ensure that complainants in rape serious sexual assault cases get justice. As does the victims’ commissioner Clare Waxman and author of the proposals Sir Brian Leveson. The Criminal Bar Association recently published a helpful fact sheet shows that the impact assessment would reduce workloads in the crown court by 3.5 % ( a wait time of one week less for rape cases).

When I first met you during 2015 election we had been involved in campaigns against the proposed cuts to legal aid and ironically one tied in with the 800 anniversary of the Magna Carta - a charter to ensure that no person should be have justice denied or delayed and that included the right to be by one’s peers.

During that election campaign you were prepared to acknowledge the importance of access to justice and the impact on cuts to legal aid. The current justice team have taken steps to address the issue relating to access to justice but with these proposals many more individuals who are denied jury trial will also suffer an adverse impact on their ability to access legal aid as the narrow means test changes for those facing proceedings in the Crown court. The full eligibility threshold for legal aid in the Magistrates’ court is £22,325 and £37,500 in the Crown court. The removal of cases to the Magistrates court, cuts out a huge swathe of accused individuals being able to access publicly funded legal representation.

This is an important issue not just for the legal profession and those involved in the justice system but for the wider community and that is why in urging you to speak and vote against the bill I am likely to this letter in the hope that others will seek to approach their members of parliament similarly.

Thank you for your time and I hope we can discuss on Monday.

Kind regards.

Yours sincerely,

Jonathan Black