The indication by the Lord Chancellor last week that the government is considering removing the right to trial by jury for certain offences, in a bid to reduce the Crown Court backlog caused by Covid-19, has been met with almost unanimous rejection by criminal lawyers.
The right to trial by jury is undoubtably a corner stone of the English justice system. Famously described as “the lamp that shows that freedom lives”, it is not surprising that there has been a forcible push back from the legal community to the suggestion that this 800-year-old right be varied in any substantial way. But, what are the changes that are being considered, who would be affected by them and is it really a big deal?
The English legal system operates on a three-tiered structure in relation to seriousness of offences. Trials for the most serious offences, such as rape and murder, can only be heard by a Judge and Jury in the Crown Court. Trials for the least serious offences can only be heard by three magistrates in the Magistrates Court. The middle tier consists of offences which are “triable either-way”, such as Theft or Assault occasioning Actual Bodily Harm. A person charged with an either-way offence currently has the right to elect trial by jury, even if the magistrates consider they have enough sentencing power to deal with their case.
The proposal is that the right of defendants to elect a trial by jury for either-way offences be removed for a period of time and the trials be heard instead by a Judge and two magistrates.
One issue with this suggestion is that this removes the public’s involvement in an area of criminal justice, involvement which has always been seen as extremely important in retaining public confidence in law and order.
The Lord Chief Justice has suggested that as Magistrates are lay people we would be retaining the lay public’s involvement in these cases. However, whilst Magistrates are not legally qualified individuals, they are undoubtably more case hardened than your average juror and this is a point of contention for many.
However, more importantly, a person’s right to be tried by a jury, particularly when they risk losing their liberty, equates to the right to be tried by a representative cross-section of their community. A jury will be made up of twelve randomly selected people of different ages, ethnicities, educational backgrounds and with different philosophies, all of which they bring to the court room. Despite efforts to diversify the backgrounds of judges and magistrates, it is argued that the same degree of diversity does not exist. This makes the proposal currently under consideration a point of serious concern for many and, therefore, a very big deal.