Restricting jury trials: the wrong response to the criminal courts backlog
- 18 hours ago
- 7 min read
The Society is actively opposing the government's proposals to restrict jury trial. Evidence on behalf of the Society has been submitted to, and accepted by, the House of Commons Justice Select Committee. In an earlier personal blog article Oliver Sells KC, who is leading the Society's team, explained the principle of the value of jury trial. In this piece Nick Daly and William Crossman, who have undertaken considerable work in the jury trial team, develop why the government's plan is the wrong response to the Crown Court backlog
The government has recently introduced a Bill to Parliament that will (amongst other things) restrict the availability of jury trials to address the Crown Court backlog. In this article, we examine whether that is the right approach.
The criminal courts system is in a terrible state, with the current backlog in Crown Court trials estimated to be around 80,000 cases, with cases being listed many years after the alleged offences took place. Too many defendants are spending months on remand, bloating the prison population and in some cases being released immediately upon conviction. Worryingly, even post-Covid, the backlog is still rising. This plainly cannot go on.
The government therefore commissioned Sir Brian Leveson to conduct a review and to prepare recommendations to address the backlog. Sir Brian’s most controversial proposal was the creation of a new division of the Crown Court, the Crown Court Bench Division or “CCBD”, to hear certain either way offences. Sir Brian suggested a judge sitting with two magistrates in the CCBD. However, the Bill provides that this new mode of Crown Court trial will in fact be judge-only (this is probably due to there being insufficient magistrates, whose numbers have fallen by over 40% from 2010 to 2024).
The Bill otherwise broadly reflects Sir Brian’s recommended restriction of jury trials, with either way cases where the likely sentence is three years imprisonment or less being tried without a jury. It further provides for reconsideration of whether there should be a jury trial where there is a “relevant change of circumstances”, namely if the defendants or relevant offences have changed since the allocation decision was made, or if it appears to the Court that there is new evidence that would or might affect the likely sentence. Reallocation is not inevitable in such circumstances, including “where the court considers that it would not be appropriate to reallocate the trial” by reference to factors such as delay, cost and the wider impact on Crown Court business. Therefore, in reality, there will be cases where a judge, sitting alone, hears a case where the likely sentence (and the sentence ultimately passed) is more than three years imprisonment. When determining the likely sentence for the purposes of allocation, the Court must give the prosecution and defence an opportunity to make representations and the prosecution can also inform the Court of any previous convictions. There is, however, no right of appeal against the allocation decision, and the Court may make the determination without a hearing. In our view, these provisions (a) risk overburdening the Courts with disputes over venue, including at a late stage as further evidence emerges and (b) demonstrate that jury trials will ultimately be restricted even more than the government has previously suggested.
The government’s proposals have attracted opposition from the Bar (including the Bar Council and the Criminal Bar Association) and in Parliament. The Bill has not received a warm welcome either. In a recent Times article, Sir Brian suggested that those opposed to the proposed reform of jury trials “have still not grasped the scale of the problem and, perhaps, the detail of what I have recommended”, and posed the question “if not this, then what?”. He argued that only restricting jury trials (combined with his other proposals) would have the desired effect. We do not agree.
The causes of the Crown Court backlog are well known. Years of underfunding, failure to attract and train a new generation of criminal junior barristers or enough magistrates, court buildings that are not fit for purpose, failure to make proper use of court capacity and problems with prison transport have all contributed. The criminal barristers’ strike in 2022 and the Covid pandemic exacerbated the problems faced by an already creaking system. Advances in technology now mean that disclosure burdens are ever increasing, and trials are taking longer.
None of these problems have been caused by juries. Indeed, Sir Brian’s and the government’s own diagnosis of the backlog does not blame juries. Sir Brian has suggested in a recent letter to the Justice Select Committee that restricting jury trials as the government proposes would produce a time saving of as much as 50% on average per case. However, there is no empirical evidence for this, and the government has not produced any. The criminal practitioners that we have spoken to say that the 50% figure is wholly unrealistic. Indeed, the government’s own position is that restricting jury trials will not materially reduce the backlog before the end of the current Parliament.
The right to a trial by jury for an offence of appropriate seriousness is one of the most important in our democracy. The jury acts as a vital buffer between state and citizen to prevent arbitrary rule and is fundamental to the rule of law. Moreover, jury trials have been shown, time and again, to be the mode of trial which commands the most acceptance among British citizens; and people who have sat on juries tend to support their continued existence. A Judge sitting alone is simply not the best trier of fact for a serious affray, for example: 12 ordinary men and women are far better placed to decide the question of guilt in such cases. Restricting the right to a jury trial by altering the way in which more serious criminal cases are tried must therefore be a last resort and only if there are no alternatives. This brings us back to Sir Brian’s question: “if not this, then what?”.
The answer, ironically, is largely provided in Part 2 of his review. Sir Brian makes various sensible proposals for increased use of AI and other technology in the criminal courts (e.g. to address the proliferation of electronic disclosure), and improvements to listing and case management, which we hope that the government will drive through. The power of pro-active case management and listing to increase the efficiency of the criminal courts is starkly illustrated by the success of a scheme in Liverpool recently reported in The Times. The lesson of the Woolf reforms in the civil courts – themselves triggered by delays and inefficiencies in the civil court system – is that active case management and stricter procedural rules can have a transformative effect on the efficiency of a court system. Productivity gains have a central role to play in reducing the backlog.
We also agree with the proposed removal of the right to elect for either way offences, with allocation decisions resting with magistrates. This will prevent defendants being able to ‘game’ the system by electing for a Crown Court trial to buy time in the hope that the prosecution case collapses in the interim, and end the nonsense of (for example) low-level thefts being dealt with in the Crown Court. We accept that this may result, in practice, in a reduction in the number of jury trials (depending on the allocation decisions that are made); but in principle we see no reason why the defendant should ever have the final say over where their case is tried. This does not, however, detract from our view that judge-only trials in the Crown Court are a mistake.
We would add two other observations:
First, if the aim is to reduce the Crown Court backlog as soon as possible, one approach would be to introduce time-limited reforms to turbo-charge the productivity of the system in the short term. This could involve, for example, using buildings not currently in use as courts to hear cases (where cells are not needed), and employing barristers, including non-criminal practitioners, on short-term contracts to sit as Recorders (which would be excellent experience for them, as well as being a valuable public service). When faced with the Covid pandemic, the government was able to produce ‘Nightingale’ hospitals at very short notice, and it is unclear why a similar approach would not work for the criminal courts (indeed, there were some ‘Nightingale’ courts in use during Covid to keep the system going, but they are now being phased out). Another possibility is to increase Court sitting hours, and to sit at weekends, as was done in response to the riots in summer 2024 following the Southport murders (perhaps with increased ‘overtime’ pay for court staff, judges and advocates as an incentive).
Second, we suggest that there should be greater penalties for the failure of the prosecution to comply with its disclosure obligations and have the case ready for trial within a reasonable period of time. In civil cases, a failure to prosecute a case with due expedition can lead to the claim being struck out, and there are heavy costs and other sanctions for failing to comply with court orders and procedural deadlines. If the Crown Prosecution Service were, for example, at risk of being timed out if a case is not ready for trial within a certain period, this would be a powerful incentive for improving efficiency. There should also be greater powers to discipline and, if necessary and in extremis, remove judges who fail to manage their cases with due expedition.
Combined with the proposals contained in Part 2 of the Leveson Review, these measures would in our view materially reduce the Crown Court backlog without the creation of any new division of the Crown Court, or introduction of judge-only Crown Court trials. We as Conservatives must acknowledge what has gone wrong with the criminal justice system, and work constructively to repair it. However, as Conservatives we should also be deeply sceptical of restricting jury trials as the government has proposed. It is unnecessary, wrong in principle and we should oppose it.
Nick Daly and William Crossman
Nick Daly is a barrister at Fountain Court Chambers.
William Crossman is a Chartered Accountant who trained at KPMG in their Edinburgh office. He is converting to law and is currently studying an LLM at University College, London.
Society of Conservative Lawyers, an association of lawyers who support or are sympathetic to the aims of the Conservative Party. Members hold a range of different views within those parameters and the views expressed in its publications are only those of their authors, and not necessarily held by all members of the Society or by the Conservative Party. The views expressed in this post are those of the authors alone, who take sole responsibility for all errors and omissions.
