Tony Lenehan KC

Juryless trials are back in the news, after a UK government proposal to cut back on using juries in certain matters in courts in England and Wales. It made the proposal following a criminal courts review conducted by Sir Brian Leveson.

The proposal appears to be designed to save money by making the serious criminal trial process cheaper, at the expense of vulnerable accused people, and to avoid investing in the criminal justice sector to repair years of financial neglect, to the detriment of the accused and of witnesses.

The present jury trial position in England and Wales differs from that in Scotland, where jury trials are restricted to the more serious offences. The majority of charges in Scotland proceed without juries, in sheriff-only “summary trials”. This is an acceptable compromise struck in recognition of the limited effects of decisions in those cases – ordinarily not involving the risk of a jail sentence – set against the increased cost to taxpayers of a legal system dominated by jury trials.

Because of this, although trial waiting times in Scotland increased after Covid (now largely caught up thanks to investment and good management), we are literally years ahead of the situation down south. There is talk of trials being fixed there for 2030, four full years hence. Here, High Court trials are being fixed just into 2027 – 12 months away. In England and Wales, the present system allows jury trials more widely than do Scottish courts, but not substantially more. The current proposals in Westminster would remove trial by jury in cases in which the outcomes could be three years in prison – an enormous inroad into the system of criminal justice with a real impact on public faith in verdicts.

While jury trials are more expensive than judge-only summary trials, they have a value which judge-only trials cannot deliver.

A verdict reached by a jury has unimpeachable validity in the public mind, elevating it above that of any single judge. A jury’s verdict is trusted by the public because it is representative of the very public the justice system ultimately serves. Citizen jurors cannot be accused of institutional bias, because they are not part of any institution. They cannot be accused of political bias, because they are (in Scotland) 15 strangers, drawn at random from the electoral roll. They cannot be accused of being out of touch, because they represent a cross-section of modern society, young and old, just as varied by occupation, gender and ethnicity as any Scottish high street. There might be strong views among them, but their very multiplicity acts to moderate any extreme positions.

A joint statement by all four senior professional bodies – the Faculty of Advocates in Scotland, the Bar Council of England and Wales, the Bar of Northern Ireland, and the Bar of Ireland, states they are “deeply concerned that the UK government is planning to restrict the right to a jury trial in England and Wales”.

“Being tried by a jury of one’s peers is a fundamental cornerstone of the criminal justice system in our respective jurisdictions. As Lord Judge CJ said in R v Twomey [2009] EWCA Crim 1035; [2010] 1 WLR 630, ‘trial by jury is a hallowed principle of the administration of criminal justice’.”

Let us hope Westminster listens.