David Lammy clearly spotted that he had set the cat among the pigeons when his plans to cut back on jury trials were leaked last week. Realising how many noses he had put out of joint by proposing to go further even than Sir Brian Leveson’s ideas of last July, in his speech to the Commons today he essentially returned to the Leveson scheme.
Under the new rules, fraud trials will largely become judge-only. In addition, the aim is for anything with a likely sentence of three years or less to be tried by a judge alone in a new crown court bench division. For offences currently triable either way, where currently the defendant has an absolute right to a jury trial – even for (say) the theft of a Snickers bar from Aldi, they will now be decided by a judge alone.
Whatever David Lammy said about preserving the best of our legal tradition, it’s clear that his proposals have a much more mundane end: saving money for a desperately cash-strapped government and time for the system generally. This is something it could do with: some crown court trials being currently booked for 2029 or even 2030. This they will probably succeed in doing, though not by as much as might appear: judges, for example, will have to deliver reasoned findings, and these may take a good deal longer to write than a jury takes to deliver its verdict.
Is there any justification for using a jury in a super-complex six-month fraud trial?
How should we react? We could – like certain Tory MPs and the Bar – just say we’re against it, adding a reference to Labour’s liking for trashing tradition, disenfranchising the citizen and suppressing a fundamental right dating back to Magna Carta, etc. (which may be accurate). But we should think twice. Even if the reasons are bad, not all Lammy’s proposals are.
Be honest: is there any justification for using a jury in a super-complex six-month fraud trial? Again, it’s not obvious that there’s any real principle involved in guaranteeing jury trial for petty theft, destruction of property or blows laid in late-night punch-ups. Indeed there may be arguments against such a right. The mob that forcibly tore down the Bristol statue of Edward Colston, or the climate activists who vandalised Stonehenge, both of whom calmly persuaded juries to acquit, would, one suspects, have got short shrift from a judge alone. Many would say, quite right too.
Instead of blank opposition, conservatives need to focus their fire. However good the arguments for suppressing juries in some cases, we need to press hard to keep them where there is a principled argument in their favour.
And there often is one. In a surprising number of cases, for example, the traditional pro-jury argument, namely the need to protect against an over-mighty state and an overbearing executive sorely tempted to weaponise the criminal law against its opponents, remains not only relevant but vital. Think, for example, all offences against the state; all offences concerning the leaking of official information; and offences such as misfeasance in public office. In all these cases there are few better protections than a need for the state to have to persuade twelve ordinary men and women to agree that a defendant needs punishing.
Secondly, there are cases involving speech, ranging from insulting words causing distress under the Public Order Act up to incitement to racial or religious hatred. All these crimes have in common a fairly loose style of drafting and a fairly open-ended distinction between what it is acceptable and unacceptable to say. Too often we have seen ill-advised prosecutions brought for speech offences to appease complainants and tell those with awkward opinions to shut up; encouragingly often juries have stymied these by refusing to convict.
It’s actually quite worrying that many of these offences would be taken out of jury trial by Lammy’s proposals. They must not be: indeed there is even a case for extending it to cover some offences not presently covered, such as the catch-all crime of posting grossly offensive material online under the Communications Act 2003. So long as this provision remains unrepealed, a right to jury trial would do wonders in preventing its heavy-handed over-use.
Thirdly, there is a strong case for continuing to allow jury trial as of right where self-defence or defence of property is pleaded to a charge of causing harm: think, for example, the householder using force against an intruder. There is a strong establishment instinct to discourage this kind of behaviour: we cannot allow this to prevail by insisting that cases of this sort be tried by judge alone.
The Lammy proposals have serious defects. But to attack them we need not the blunderbuss of outdated medievalism coupled with ritual mentions of Magna Carta, but the Armalite rifle of directed and principled argument. With it, we can defend juries where necessary, much to the benefit of our own – and David Lammy’s – freedom.
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