The Living Democratic Element

Chris Daw KC writes:

I first went to watch jury trials in the at Liverpool Crown Court after a rudimentary 1980s computer careers test informed me, with the kind of brutal confidence only primitive technology can muster, that I was fit for only two possible futures: the Bar, or stage and screen. Despite having no clue what it really entailed, I chose the first, though I can see the overlap. Criminal advocacy, at its best, is performance with a moral purpose. It is theatre, yes, but theatre with consequences measured in liberty, reputation and sometimes life itself.

I was hooked immediately. I spent most of my 17-year-old summer sitting in the public gallery in wonder: at the skill of the advocates, at the concentration of the juries, and at the extraordinary outcomes in cases where jurors disbelieved the police and believed defendants who, on paper, did not look especially promising. Many had difficult backgrounds. Some had defences which, at first glance, seemed improbable. Yet the jury listened. Really listened. And I realised, very early, how vital it is that some decisions are made not by the state, not by professionals who inhabit the system every day, but by ordinary citizens with no skin in the game, no axe to grind and no preconceptions about what they are about to decide.

That lesson has never left me. Thirty-nine years and hundreds of jury trials later, I have seen the same thing in every kind of case: the tiny, quiet case nobody reports and the huge, headline-making case with cameras outside; allegations of child sexual abuse, murder, serious organised crime, multi-million-pound fraud, money laundering and international drug trafficking on an industrial scale — think cocaine concealed in industrial equipment and wholesale quantities, straight off the ship from South America.

My trials have included a £533 million conspiracy to import high-purity cocaine, a £30 million money-laundering operation, and countless cases of commercial and tax fraud of every kind. I also defended in the Ryan Giggs case, in which a Manchester Crown Court jury could not reach verdicts. A retrial was later abandoned and not guilty verdicts were entered. I acted in the Hillsborough fresh inquests and subsequent criminal proceedings, widely portrayed as a “cover-up” case, where the inquests ran before a jury for over two years and my client in the later criminal trial was cleared on the judge’s direction. 

Few in the current debate have noted that, by removing the jury, not only does the system change the ultimate decision-maker but it removes an entire layer of protection from the defendant. At present, judges can filter out cases, which are unsustainable in law, with juries left to return verdicts on cases only where the judge declares a case to answer. A vital safeguard will be gone.

What all of those cases have in common is this: the jury is not a decorative flourish. It is not a quaint relic. It is the living democratic element in criminal justice. A jury brings not legal expertise but something just as important — collective judgment, common sense, life experience, scepticism, mercy, independence and the ability to test the state’s case against the reality of human behaviour. David Lammy’s own Lammy Review stressed that trust in impartial decisions rests not only on judicial independence but on the connection between courts and the communities they serve, and it cited research finding very similar jury conviction rates across ethnic groups, concluding that jury verdicts were one stage of the system where Black, Asian and minority ethnic groups did not face persistent disproportionality. 

That is why the present attack on jury trial matters so much. At the time of writing, the Courts and Tribunals Bill is in committee stage in the House of Commons. The Bill would remove the defendant’s right to elect Crown Court trial for all triable-either-way offences where magistrates accept jurisdiction; remove the need for a defendant’s consent before a Crown Court case is sent back down to the magistrates’ court; create a new Crown Court Bench Division in which triable-either-way cases likely to attract up to three years’ custody would be tried by a judge alone; introduce judge-only trials for certain lengthy and technical fraud cases; and replace the automatic right of appeal from the magistrates’ court to the Crown Court with a permission stage and issue-based appeal.

The government’s explanation is by now tediously familiar. It says the reforms are necessary to deliver “faster and fairer justice for victims”. It points to a Crown Court backlog of around 80,000 cases, with nearly 20,000 waiting over a year, including around 2,000 rape cases. It says this is a pragmatic response to rising demand, that investment alone is not enough, that jury trial will be “reserved” for the most serious cases, and that judges rather than defendants should “triage” where cases are heard — much as “experts” do in other public services. David Lammy told the Commons that juries would remain “the cornerstone” of the system, that only the threshold was changing, and that after the reforms about three quarters of Crown Court trials would still be heard by a jury.

I regard that explanation as lame because it is lame. The jury did not cause this crisis. The jury did not close courtrooms, allow buildings to rot, leave cells broken, fail to provide enough judges and staff, or produce endless delays in transporting prisoners to court. Even Sir Brian Leveson’s own overview says the most significant cause of the present mess is chronic underfunding at every step. The Bar Council says bluntly that juries have not caused the crisis and that the language of “modernisation” is a Trojan horse to hack away at a constitutional principle. An open letter to the Prime Minister, signed by a remarkable range of lawyers — including me — points instead to unused courtrooms, PECS failures, crumbling buildings and shortages of staff, judges and counsel. I have said the same thing publicly myself: the current chaos has “nothing to do with the 1000 year-old jury system”. 

Then there is the small matter of the evidence. The government’s own impact assessment says the measures begin to come into force only from the end of March 2028. It estimates that around 5,500 cases which would currently receive a jury trial will instead be kept in the magistrates’ courts, and around 4,000 further Crown Court cases will be heard by a judge alone, while about 10,000 cases will still be heard by a jury. The Institute for Government says the reforms would almost halve the number of jury trials while reducing total Crown Court time by less than 10%, and that judge-only trials themselves would save less than 2% of total court time if they are 20% quicker. The Bar Council’s written evidence says these are not “low-level” offences, that the change would affect under 2% of cases, and that even on the government’s own estimate it will make no difference to the backlog for many years, if at all. That is a ruinous constitutional price for a marginal and delayed managerial gain. 

And make no mistake: this is the thin end of the wedge. I have said publicly that once the government gets away with cutting jury trial by 50%, it will be on a “short and greasy slope” to the 95% cut originally contemplated. That is not paranoia. It is how constitutional retreat works. First, jury trial ceases to be a right and becomes a rationed resource. Then it becomes a question of administrative convenience. Then some future minister moves the threshold again. Leveson’s own earlier recommendation was to remove the right to elect only for offences carrying less than two years’ custody, yet the government has already gone further. Sir Geoffrey Cox put it perfectly in the Commons: once you say three years, why not four or five? Little by little, a hole is driven through the principle itself. 

There is also a deeper human point, and this matters every bit as much as the constitutional one. Some decisions simply require the judgment of the whole community. Cases involving allegations of violence, sexual behaviour, coercion, dishonesty or corrupt police conduct are rarely mechanical exercises. They turn on nuance, tone, context, class, culture, language, psychology and credibility. They involve the question not only “what happened?” but “what do we, as a society, make of what happened?” 

A single judge may be wise, diligent and fair. Many are. But one mind is still one mind. Twelve citizens bring twelve lives into the room. That plurality is not a weakness in the system; it is the safeguard. And at a time when wider research continues to find ethnic disparities elsewhere in criminal justice outcomes, it is perverse to weaken one part of the system where Lammy found no persistent disproportionality in verdicts.

I have said on LinkedIn that “we must fight for jury trials with everything we have got”, and I meant it. I have argued publicly that no human-designed system produces fairer or more respected verdicts than an English jury. I have likened the government’s plans to bulldozing Piccadilly Circus to build a bus station, and I stand by the point even if the metaphor is mischievous. Barristers should not be neutral about this. We are not hired merely to process cases through a state machine. We are part of the constitutional architecture of criminal justice. If we will not speak when the right to jury trial is being cut down in the name of efficiency, modernisation and victim-care rhetoric, then we will have failed not only our clients but the system itself. 

I still think about that 17-year-old in Liverpool Crown Court, watching jurors lean forward as a witness gave evidence, watching advocates fight over facts that would change somebody’s life, watching ordinary people perform their public duty with seriousness and care. What struck me then still strikes me now: juries are not an inconvenience to be managed out of existence. They are one of the few places where the public does not merely watch justice being done, but does it. Once you understand that, the present proposals do not look like reform. They look like surrender. 

Barristers need to take a stand on jury trials because, if we do not stand for them now, we may soon find that this ancient, historic and constitutional right has been whittled away to a memory — and that some of the most important decisions in a free society are no longer being made in the name of the public at all. A final thought – can you think of another public institution which commands near universal respect and confidence, amongst the voting public, as trial by jury? No, neither can I.