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Jury trials are crucial to criminal justice. We are judged by a diverse group of our peers with a range of different life experiences informed by, non-exhaustively, gender, ethnicity, birth nationality, education, socio-economic class, family and wide human experience. 1
The wider cross-section of society present in a jury provides legitimacy for a criminal justice system to judge guilt that may then impose long sentences on fellow citizens. 2
Juries provide better but not perfect fairness and a perception of fairness with a cohort of fellow citizens who may empathise more with that which a defendant has faced. The jury, in a caprice of 12 maybe, brings wider diversity to judging a defendant’s alleged conduct. 3
With a judiciary that is still dominated by people, like me, who are independent school educated, white and male the role of the jury is even more important in bringing the diversity to justice that the Judiciary do not. 4
The jury is “the lamp which shows that freedom lives”. A judge can’t direct that a jury must convict. She just can’t; she can direct that there is no legal defence which might ineluctably lead to one verdict, but the verdict of “Guilty“ is that of the jury alone. 5
Prior to Covid19 Lady Justice Macur described the decision to move from 97,400 days of Crown Court sitting to 82,300 days of Crown Court sitting as a “political one”. It saves money. Fewer days on which a a court is open = less money and, of course greater delay. 6
The police forces were 20k people down & were charging fewer Defendants. The backlog of cases did not reduce, but politicians exploited fewer charges by reducing the sitting days thereby being able to say the backlog had not changed but allowing them to pare the MoJ budget. 7
The Government caused the large backlog of 40,000 trials before Covid19. Saving money by cutting capacity, saving money by reducing trials, saving money and keeping the backlog high. 8
The backlog has increased due to Covid19, not by that much, but a bit. That isn’t the Government’s fault. Rightly, safety caused the suspension of trials as new methods of working were considered. 9
What has changed as a result of Covid19 is that many fewer courts can sit safely. There are 18-20 people involved in a simple Jury trial. A sensible way forward has been to use two courts for one trial; the second Court video-linked to the first to allow this distancing. 10
However, there are no stand-by trials listed (floaters) which used to be taken in any court and which substantially increased the throughput of work so that any trial ending meant that the Crown Court room could still sit. And many floaters pleaded guilty. 11
So - how to deal with the backlog of cases which has built up like water behind the dam, when the pipe that the water now has to flow through is so much smaller? 12
Justice delayed is justice denied: For the Defendant awaiting trial, particularly in custody - for the complainant fearful of cross-examination and the experience of having to speak in Court of their experience of crime. 13
For the justice system where events that happened one, two or three years ago will be the subject of detailed forensic challenge and the burden of shifting the burden of proof beyond reasonable doubt. 14
The easiest answer is simply to throw away the right to trial by jury: to douse the lamp of freedom. However, there are many many more steps to take before that should even be a consideration. 15
Firstly, Jury trials should take over the parts of the Justice Estate that is more able to distance socially, such as the Civil Courts - the Royal Courts, the Rolls’ Building, the County Courts, suitable Tribunal buildings. 16
The displaced civil courts can much more easily try cases remotely or in other offices. I don’t underestimate the difficulties but, for the most part, Civil Trials have one or up to 3 people making the decision and fewer other participants. 17
Secondly, the MoJ other buildings should provide capacity - challenges yes, in keeping the public, witnesses, juries, judges and defendants apart - these Nightingale Courts would particularly suit non-violent allegations which is a significant part of the caseload. 18
Once this has been assessed and if these measures would not impact delay then consideration to reducing the jury to 7 might be considered. That is what happened in World War II when Britain. The lamp was kept alight in our darkest days then as it must be kept alight today. 19
In an offence which is triable either way then a further option might be given to a Defendant to elect, if they are committed to the Crown Court, to be tried by a Judge and two magistrates. The Defendant chooses. No-one else. 20
The size of the backlog is mostly because of a political decision; the challenge to reduce the backlog is due to Covid19. However, we must use every option, such as those set out above, to increase the capacity before we restrict the right to jury trials. 21
Unless and until the Government spends money to increase jury trial capacity then any move to restrict the right to jury trial will be a political decision and not one brought about by the need to preserve the rule of law. 22
The Senior judiciary have a crucial role to play in defending the right to jury trial. I am sure that all judges would consider themselves fair. But cognitive dissonance might lead Judges to believe that they are equal to a jury. They are not. 23
Judges’ experiences of life are not the same & they don& #39;t reflect society as a jury does, Judges experiences of Courts and other Defendants can dull them to the question of reasonable doubt. We must all work to keep that lamp of freedom alight. END
