Jury reforms: three judges give their verdict

Before I come to the judges, a word about Geoffrey Robertson.

This week, the eminent KC had his say on the government's proposals to restrict the use of jury trials to cut backlogs in the Crown Courts: they are a "betrayal of Labour traditions and values", he said.

Robertson, who gave Sir Keir Starmer his first job at the Bar in a chambers known for its human rights cases, penned a 31-page treatise, titled, 'For Mercy's Sake - Why Labour should not axe trial by jury'. It has been widely, and uncritically, covered in the media, in keeping with the rather one-sided narrative about the issue since the plans were leaked five months ago.

Never mind that Labour has no plans to "axe" trial by jury, as Robertson misleadingly claims (the most serious cases, about half of the current number of jury trials, will still go before a jury), and putting to one side the mistake he makes, as others have, in suggesting that changes to jury trials are the government's "only solution" (they are one element of an approach that includes record levels of funding and more efficient practices) the main flaw in his piece is that he seriously underplays the severity of the crisis.

To spell it out: some trials in England and Wales are currently being listed for 2030. Imagine that. You're a defendant, a witness or a victim; charges have been brought in a case that may already be months or years old; it has moved from the magistrates' court to the Crown Court and the first available date is four years from today. Thousands of other cases are being scheduled for 2028 and 2029. And the delays are set to get worse.

The current number of outstanding cases, 80,000, is projected by the Ministry of Justice (MoJ) to rise to 100,000 in the next 12 months, 130,000 by 2030 and over 200,000 by 2035, based on current trends and without any remedial action. Robertson, 79, insists "there is no danger of collapse" of the criminal justice system, but the delays are a cancer eating away at it, so that in some parts the system is completely failing to deliver timely justice. That is a collapse in my book.

Juries and jury trials are not to blame for the ballooning backlog, as Robertson correctly points out. Government ministers and the former Court of Appeal judge Sir Brian Leveson, whose report their plans are based on, have never said they are, even though that has become another part of the distorted narrative. But if one answer to the crisis is to get Crown Courts to speed up the through-put of cases then the system of jury trials must be part of that change - because jury trials are, regrettably, more cumbersome, use up more resources and staffing and, critically, take longer than any other type of trial. Any review, any government, that didn't take that into account would not be doing its job properly.

Jury trial is precious and must be protected, but that does not mean that its use should not be subject to change, particularly given the current, acute, crisis. Robertson says "most" reforms of the jury system have "improved" the set-up, citing the introduction in 1967 of majority verdicts, as one example. He might also have mentioned the removal, a decade later, of the automatic right to trial by jury for theft, burglary, actual bodily harm and certain drugs offences, and in 1988, in relation to criminal damage. Those changes have proved to be uncontroversial, and trial by jury has survived. Jury trials, and the threshold for them, are not fixtures, never to be altered. Change must come when the situation demands it, as it does now.

But don't just take my word for it. Three of the country's most respected judges have also given their verdicts on the proposals to curb jury trials - and their conclusion? The government's approach is broadly right.

The evidence before Parliament of Lord Burnett of Maldon, who was Lord Chief Justice from 2017 to 2023, His Honour Clement Goldstone KC, resident judge and recorder of Liverpool until 2019, and the former High Court judge Sir Richard Henriques, has not been reported on by the media until now - but it should be examined closely by everyone with an interest in this subject. The trio were appearing at a marathon sitting last month of the committee of MPs that is scrutinising the Courts and Tribunals Bill, the legislative vehicle for the jury reforms.

Burnett told the committee that he had felt for many years there was a "need to rebalance the work between magistrates' courts and Crown Courts" with fewer cases heard by a jury. Under the government's plans, magistrates will take on extra cases with their powers to impose sentences raised from 12 to 18 months' imprisonment. Some middle-ranking cases, known as 'either-way' offences, will be tried by a Crown Court judge, instead of a jury, if the jail sentence is likely to be three years or less.

Burnett said he preferred Leveson's idea of a judge trying such cases alongside two magistrates, but he said the "phenomenon" of a judge sitting alone worked well in the lower courts where some trials are heard by a single district judge.

"District judges (magistrates’ court), formerly stipendiary magistrates, have been a feature of our system since the mid-19th century—I cannot remember precisely which year they were introduced. I have never been aware of any reasoned criticism of the way in which they conduct cases," he said.

The 68-year-old peer is by nature mild-mannered and quietly spoken, yet he was scathing about some of the claims put forward by barristers that restricting jury trials would not save much time. "To be perfectly blunt, I am rather astonished by some of what I have been reading from people who I do not think are necessarily focusing on the evidence of what happens," Burnett said.

"Either-way cases in the magistrates' court and the youth court...very rarely go beyond half a day. In the Crown Court...very few cases take less than a day and a half. That is not only because of the time-and-motion calculable time that having a jury involves, but because the way that advocates conduct cases in front of professional courts is completely different from the way they conduct cases in front of juries. It is much quicker, and a professional court can get the advocates to focus on the real issues," he said.

"I am convinced that the time saving will be enormous if the relatively low-level cases are tried by a new constitution."

Goldstone, who spent 31 years on the Bench, first as Assistant Recorder, spelled out in detail how time would be saved without having to empanel 12 jurors: "If there is no jury, there is no bar to the evidence starting within 10 or 15 minutes, because if there is to be an opening at all, it can be very brief—and I mean very brief. Half a day, at least, will be saved on every sex case that is heard in the Crown court. That is before you start with time lost as a result of jury sickness, or a juror being delayed because his train has been cancelled or her bus was delayed," said Goldstone.

"It is also easier to call a witness out of order if you are not trying to take a jury through in the order in which the evidence would otherwise be called. You do not need to worry about engaging with counsel to ensure that they stick to and get to the point. They will realise that they will not be playing to the gallery as, with the best will in the world, we have all been inclined to do in the past when we have had a jury to try to convince, particularly if we have a bad case."

Another "by-product" of the Government's plans to limit jury trial, said Goldstone, would be a reduction in re-trials, as well as flexibility to conduct other cases when a witness was unavailable. "At the moment, in the Crown Court, where there is a judge and a jury, when a witness is ill, very often there is an abortive trial. If a witness does not turn up and the witness cannot be found, a decision has to be taken whether to go on or to give a little limited time for the witness to be found," he said.

Goldstone added that he did "not accept" that in judge-only cases additional time would be spent writing judgments to accompany verdicts, as critics, including Robertson, have argued. "The vast majority of decisions will follow the conclusion of the defence speech: ex tempore judgments in the overwhelming majority of cases or, in those very rare cases where something needs to be put into detailed construction, a verdict followed by a decision in writing, before sentence if there has been a conviction, within the next seven days if there has been an acquittal."

The government has also proposed scrapping the (baffling and frankly hard-to-justify) rules that allow defendants charged with 'either way' offences to pick where their case is heard - by magistrates or in the Crown Court, by a jury. In future, a court will decide whether the case can be dealt with by magistrates, and if not, whether it crosses the three-year sentence threshold for a jury trial. Some in the legal profession have said that this will be a dreadfully convoluted process. Robertson wrote: "Court timetables...will be clogged by preliminary hearings of considerable length – mini trials, in effect, to predetermine the likely sentence."

But Burnett (speaking before Robertson's piece was published) said he was "slightly surprised"at such claims. "I imagine that most of these decisions would be done on the papers. It strikes me as rather extravagant to suppose that you list it for half an hour for argument to deal with something like that, so I think that one is a bit of a bogeyman," he said.

"I cannot help the old advocate in me thinking that lawyers are terribly good at finding nine reasons why you should not do something," said Burnett, who was at the Bar for 28 years, before being appointed a High Court judge.

He also dismissed an idea from the former Court of Appeal judge Sir Alan Moses (which was backed by Robertson in his article) to create a task force of retired judges to cut the backlog, saying a similar approach had been adopted during the pandemic. "To suggest that you can solve this problem by the click of a finger is just not right," said Burnett.

"People have been trying to solve the problems of backlogs and inefficiencies in the criminal courts for pretty well as long as there have been criminal courts. I really can assure you that if there were any simple answer it would have been found long ago."

Goldstone, however, acknowledged that there was scope to deal with cases more efficiently, as has been done at Liverpool Crown Court where he was the most senior judge until his retirement. There, judges and lawyers have helped to reduce delays by working closely together to encourage early guilty pleas and get cases ready for trial.

"Many of the efficiencies that Liverpool has created can be replicated across the country, because many efficiencies stem from positive leadership and proactive engagement," said Goldstone.

"In the larger courts I believe that there is far more room for efficiency than is perhaps readily assumed."

But despite that Goldstone still believes that jury reforms are needed.

"We are in a situation where something has to change. In fact, a lot of things have to change, because the restriction on the right to jury trial will not work alone, and let nobody think that it will."

Henriques, who was typically crisp and to the point in his exchanges, used the same phrase - "something has to change".

"I would have preferred a judge and two magistrates. But something has to be done, and if judge alone is the only option, I am 100 per cent in favour of it. I have no doubt that it will work and that it will save far more time than the Bar contends it will save. It will save a lot of time."

The proposal was a "pragmatic" step, said Henriques. "I think I speak for all of us present: given no backlog, we would not be here at all."

But however compelling the testimony from the three retired judges, it may not be enough to convince the government's detractors. It faces a battle in the Commons to win over the ten Labour backbenchers who voted against the measures at its second reading, and, crucially, the 90 who abstained. Even if it succeeds, ministers will then face a struggle in the House of Lords where former lawyers in particular are likely to oppose the plans.

Compromise must, therefore, be part of the strategy to get the bulk of the Bill over the line. There are various straightforward steps the Government should take. First, it should guarantee that defendants don't lose out on legal aid because of the new arrangements. The bar for accessing legal aid is higher in magistrates' courts than at the Crown Court, so there is a risk that defendants who would have accessed such support under the present system will no longer do so because more cases will be heard by magistrates.

Second, ministers should pledge to establish an independent panel to review the workings of the new system with a commitment that it will be revisited three years after implementation. Some have suggested a 'sunset clause', so that the most contentious of the Bill's provisions lapse after a certain period, but that has practical difficulties. It would be better for ministers to give an undertaking to act on the findings and recommendations of the panel's report.

Finally, the Government must give an assurance that once the new structure is in place defendants in 'either way' cases who had opted to be tried in the Crown Court before the Bill became law will still receive a jury trial, if they wish. Even if it is not unlawful for them to be denied jury trial (because their case would still be heard in the Crown Court albeit by a judge) it would be grossly unfair to do so.

Concessions may be a price the government has to pay to deliver the structural reforms to jury trial needed to reduce the backlog. The MoJ modelling, independently verified by outside consultants, clearly shows that it is only through a combination of investment, efficiencies and structural reform that the backlog can be brought down within a decade to a more manageable 50,000 cases. If MPs and peers don't take the opportunity now to re-shape the courts system so that it is better able to withstand the demands upon it, we will be having this debate again in three years' time when delays are longer and justice, for many thousands, stretches even further into the distance.