David Lammy’s plans to prune the right to trial by jury are certainly drastic. Juries would remain only for murder, manslaughter, rape and cases deemed to be in the public interest, with other offences carrying sentences up to five years tried by judge alone. Lawyers are predictably unhappy at these proposals. They see them as seriously compromising the traditional rights of defendants to be tried by their peers, not to mention revealing the hypocrisy of the man who, under the Tories, robustly defended the right to trial by one’s peers. They also think, rightly, that Lammy is now acting not so much from principle as from a desperate need to find a way to clear the backlog of criminal cases (up to five years in some cases) without much money to do so.
The lawyers are right to be unhappy about Lammy’s jury shake-up
The lawyers are right to be critical. But, while there is a lot wrong with the plans and the reasons for them, we should be careful before rejecting them entirely. There are indeed some crimes where we must fight relentlessly to keep jury trials. This isn’t only about serious offences like murder or robbery but, more importantly, cases where state overreach needs to be prevented. Any charge involving spying, terrorism, incitement to disaffection or leaking or receiving official information is a case in point: a government will always be banefully tempted to use charges like these to dispose of tiresome thorns in its flesh. The need for the prosecution to convince twelve ordinary people is a vital antidote.
To these should be added three other offences. Charges against police (or the military) for using excessive force are rightly difficult to prove to a jury – and should remain so. The same goes for charges against householders and others seeking to deal with intruders and criminals who then plead self-defence: too many have been prosecuted essentially because officialdom disapproves of self-defence outside official channels. The need to satisfy a representative group of ordinary people gives a vital shield for other ordinary people suffering, in many cases, from the police’s inability to deal with lawlessness.
The third is offences concerning speech, such as the Public Order Act provisions concerning racial or religious hatred offences. Here it is vital that the boundary between free and criminal speech be left not to the establishment to decide, but filtered through a jury of a defendant’s peers. There are already too many flimsy prosecutions for such crimes, and the possibility of a jury acquitting in such cases needs to be kept.
In other cases, however, Lammy’s proposals may make some sense. Complex frauds or webs of theft or insider dealing, for instance, can take months, require extensive instruction to the twelve citizens chosen to try them, and unrealistically require those citizens to give up disproportionately long parts of their life. Much the same may apply to convoluted trials of, say, major drug kingpins or gangland bosses, with here the added need to commit scarce police resources to protecting the jury itself from being nobbled.
There is another area where we should perhaps not fight too hard. Members of Just Stop Oil, and other organisations with an unsavoury habit of forcing their views on an unwilling public by disruption or attacks on property, have recently made a point of choosing jury trials for offences like criminal damage or public nuisance. They then seek, sometimes successfully, to tell juries that they were acting out of necessity, to protect the environment or to engage in free expression.
The Colston statue defendants in Bristol three years ago were a high-profile example of this, but they are not alone. Last month the climate activists who openly vandalised Stonehenge persuaded a sympathetic Salisbury jury that it was quite all right because they were simply exercising their right to protest. Implausible defences like these would, one suspects, gain shorter shrift from judges than juries: if they can be largely eliminated, then all the better.
There is also one other Leveson proposal that is hard to fault, namely the right for any crown court defendant, with suitable safeguards, to elect for trial by judge alone. It’s unclear whether Lammy has gone along with this; but even if he hasn’t it’s a no-brainer. Whatever you think of taking away a defendant’s right to demand a jury, there is no case whatsoever for foisting an expensive jury trial on a defendant who does not want it.
Opposition parties will rightly take advantage of Lammy being wrong-footed after these ideas were judiciously leaked. He presumably will have hoped to float them discreetly just before the Christmas recess gave us something else to think about. But the arguments of Lammy’s critics will be much more convincing if they concentrate on what is seriously wrong with these ideas, such as the possible removal of trial by jury in cases of information offences, speech and self-defence. There may be a time for blunt bombast about the rights Englishmen have enjoyed since time immemorial, but for sensible politicians this isn’t it.
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