The Most Dangerous Feature of This Plan

The Assisted Suicide Bill will be lost at the end of this parliamentary session because a Private Member’s Bill cannot be carried over. But into my politically active lifetime, nor could a Government Bill, thereby compelling Governments to make concessions to Parliament. That is one of numerous liberties to be restored as the process initiated by the defeat of the measure of which The Secret Barrister writes:

This week, MPs will vote on the second reading of the Courts and Tribunals Bill. Don’t let the anodyne name fool you – this is one of the most revolutionary pieces of legislation in our country’s history.

The government intends to radically curtail the right we all hold to be tried by a jury when accused of a serious criminal offence. Around half of cases that would currently be tried by a jury will not be, if this law passes.

If you are accused of a crime – and, as a criminal barrister, let me assure you that nobody is immune from finding the state mistakenly point the finger of guilt in your direction – you will no longer automatically be entitled to be tried by your peers. Currently, for any criminal offence carrying a maximum sentence of more than six months’ imprisonment, you can insist on your right to trial by jury. This means that twelve independent members of the public are randomly drawn from your local community, listen to the evidence at your trial, are directed by the judge on how the law applies to your particular case, and then return a verdict based on their combined knowledge, life experience and understanding of human behaviour. But no more.

Instead, for offences carrying prison sentences of up to two years, the government intends to force you to be tried and sentenced by three magistrates – unqualified, unpaid volunteers whose demographic overwhelmingly leans white, middle-aged and middle class (Sarah Pochin MP was a magistrate, for reference, before she became professionally offended at the presence of black people on television). Readers of my first book will be familiar with the Wild West chaos in which the magistrates’ court operates. More of that, is what the government thinks we should have. (Oh, and they also want to remove your existing automatic right of appeal against magistrates’ court decisions. Making it more likely that your wrongful conviction by the magistrates will not be overturned.)

For criminal cases where a prison sentences of between two and three years would be likely upon conviction, trial will be in front of a single Crown Court judge. Again, there is something of a type. White, male, middle-aged, privately-educated. Not necessarily a reflection of the people – defendants, witnesses or victims – who often find themselves before the criminal courts. There is also a risk – quite a large one, you may think – of such people becoming ‘case-hardened’. Somewhat jaded and cynical when confronted with the hundredth alleged fraudster claiming that “it’s not how it looks”. An unacceptable risk, you may also think, if it is you, wrongly accused of stealing from work, insisting that it is not, Your Honour, how it looks. Because again, we know that such wrongful accusations occur. And lives are devastated when the system fails to spot them.

But these are the reforms that the government are pressing ahead with. It may come as a surprise. None of this was in Labour’s manifesto (indeed, Labour’s manifesto was embarrassingly silent on how it intended to address the longstanding crisis in the criminal justice system, as some of us observed at the last election). It has been paraded by the government as the only way to tackle the record backlogs and delays in the Crown Courts – caused by years of chronic underfunding and political mismanagement – yet the government has produced not a shred of credible evidence to support this claim, nor is it interested in discovering any, forcing the legislation through Parliament at breakneck speed in the apparent hope of avoiding inconvenient scrutiny. Much has been said about David Lammy – Justice Secretary and chief advocate of these plans – and his previous comments about the inviolability of trial by jury, not least as, according to Mr Lammy’s own 2017 review, juries are the only part of the criminal justice system that do not produce disproportionate outcomes based on race.

But amid all the many valid criticisms, there has been relatively little attention paid to the most dangerous feature of this plan. And, in advancing this point, I have to credit one man in particular: Robert Jenrick MP.

Prior to his recent sacking and subsequent defection, Robert Jenrick MP was Shadow Justice Secretary and Lord Chancellor. He was the man who, in the event His Majesty’s Opposition entered government, would become Lord Chancellor, required to swear an oath to uphold the rule of law and to defend the independence of the judiciary. However, from the day he inherited his brief, he appeared to consider that the best way to defend the independent judiciary was to launch a series of personal and misinformed attacks on judges. He was not only an early mainstream adopter of the far-right myth of “two-tier justice” – a label given to the phenomenon of serious racially aggravated criminal offending receiving the expected treatment by the courts for serious racially aggravated criminal offending – but expanded the myth by spreading untruths about judges sitting on the Sentencing Council, hounding its chair, Sir William Davis, right up until his untimely death. A popular use of his time involved posting lengthy social media threads about immigration judges with whose independent decisions Mr Jenrick disagreed, in which he alleged bias on the basis of things said or done in these judges’ professional and personal lives prior to becoming judges. The decisions that he was criticising were not accurately represented by Mr Jenrick, doubtless because a factual explanation of those decisions would have undermined his claims of “activist” judges. Those attacks resulted in threats to life and judges having to flee their homes. The apotheosis of his campaign saw him at the Conservative Party Conference holding up a judge’s wig like a glove puppet, as he announced his plans to abolish the independent Judicial Appointments Commission and imbue sole power to appoint judges in the hands of the Lord Chancellor. Who, under a Conservative government, would have been Robert Jenrick.

Now, despite what the Labour government’s media campaign has pretended – that criminal justice is only about guilty baddies and innocent victims – the truth is a little different. It turns out that not everybody accused of a crime is guilty of it. A history book – even a glance at Wikipedia – might disabuse you of the idea that criminal justice is a procession of charging guilty crims, getting a jury to convict them and then locking them up. You don’t have to be a Mastermind contestant to grasp the point.

And if it were you, facing trial for a crime that you had not committed, would you be comfortable having your liberty – your entire life – entrusted exclusively to the hands of a Jenrick Judge? If you were a young black man wrongly accused of a crime, how confident would you feel in a fair trial knowing that your judge – the person who would determine your guilt and then sentence you – had only been appointed because he had met the political approval of a party which welcomed as guest of honour at its conference somebody convicted of stirring up racial hatred?

Even a non-Jenrick appointed judge would be making decisions on people’s guilt knowing that if their verdict did not meet with Honest Bob’s approval, he would be straight on Twitter accusing them of bias and threatening to remove them. We know that this would be so, because we see something similar already, when verdicts in contentious criminal cases don’t satisfy the prejudices of politicians or pressure groups. When Labour councillor Ricky Jones was acquitted of encouraging violent disorder last August, Shadow Home Secretary Chris Philp decried the verdict as “astonishing” and “alarming”. Mr Philp was at it again last month, condemning the “shocking” jury verdicts (a mixture of acquittals and no verdicts, meaning they could not reach agreement) at the trial of Palestine Action protestors, which he declared gave “the green light to mob violence”.

BUT.

Here’s the thing. Juries don’t care about Robert Jenrick. They don’t give a fuck about Chris Philp. Politicians can fulminate and scream and tantrum and condemn, and do you know what jurors do? They slip back into their ordinary lives, having done their duty. No juror-in-waiting trudging to their nearest Crown Court on Monday is worried about what Chris Philp is going to think about the verdicts they return, or what glove puppetry Bob Jenrick is going to ask the teenagers running his X account to try and memeify. No juror is going to face tabloid campaigns calling for them to be sacked. They are not going to be named and shamed and forced to flee their homes through partisan accusations of bias. And no defendant, no witness and no victim attends court fearing that the most important decision of their lives is going to be taken by somebody with an eye on how that decision might affect their job security.

Jurors are truly, uniquely independent. They rock up and do their jobs quietly and diligently, not seeking advancement or political approval, not dependent on the whims of politicians or fearful of scapegoating by the media. And, despite the best efforts of populists – on both ends of the political spectrum – to suggest otherwise, the public recognise and respect this. Trial by jury may well be the one part of our ailing, failing criminal justice system which retains widespread public faith.

Our country has a hard road ahead. Once Labour abolishes juries and places responsibility for determining verdicts upon judges – responsibility that, by the way, no Crown Court judge in the country signed up for – the independence of our system is inextricably linked to the independence of those judges, and the good faith of the politicians who ultimately decide how much that independence they will permit.

By removing trial by jury, Keir Starmer and David Lammy are abolishing the ultimate guarantee of independence in our criminal justice system, and are placing extraordinary, unprecedented and untrammelled power into the hands of whichever politicians come after them.

At last, someone else who understands that politicians who empowered themselves empowered their successors, known for the time being as their opponents.