Desperate times call for desperate measures and desperate men make desperate decisions. If you had told me at the start of the year that there was a very real prospect that by the end of the year we would see jury trial facing an existential threat I would have thought you were crazy. You may think I am crazy envisaging such a melodramatic outcome but the fact is that jury trial is in greater jeopardy now than in my entire time in practice, than in my entire life in fact.
A backlog (created and sanctioned long before Covid) is overwhelming the Crown Court and completely stifling the proper administration of justice. There is no solution on the table. The trickle of trials that are now resuming with difficult and space consuming social distancing measures won't touch the sides. The vast majority of criminal lawyers are sitting at home with no incomes waiting for salvation or oblivion.
And so, astonishingly, we are confronted with the possibility of abandoning juries in Either Way cases (for non-lawyers these are criminal offences that are too serious to be tried only in the magistrates court but are not so serious that they can only be tried by a jury). They can be tried by magistrates or by a jury and the defendant can choose which, assuming the magistrates have not decided the case is too serious to be tried by them.
Burglary, dangerous driving, shoplifting are the sorts of cases that fall into this category. So too is sexual assault. They are not just victimless crimes and they are cases which can carry life changing consequences for victims and defendants. There is always a debate to be had as to whether every single one of these offences should provide a defendant an unfettered choice to be tried by a jury. Now is not the time for that debate.
For a criminal barrister to have to sit down and set out why he believes jury trial is important is as extraordinary an idea as a football fan having to explain what the game means to him. But it seems plain to me that if there is any chance of this being read by anyone indifferent to the concept of jury trial or even hostile to it that I must.
Jury trial is not perfect. It is expensive. It is bureaucratic and administratively cumbersome. It interferes in people's lives. It introduces complete amateurs into the courtroom. It's a lottery. It provides no reasons and no reasoning. It's susceptible to undue influence. It requires a jury summoning bureau, a jury lounge, jury retiring rooms, jury boxes, jury oaths, jury bailiffs, jury expenses.
Jurors get sick, they don't turn up, they're late, they Google things, they fall out, they develop passions for barristers in the case (!), they use ouija boards (!!), they ask what 'sure' means, they bring irrelevant prejudices to bear, they fall asleep. All of these things happen but only rarely and, thankfully, usually only very rarely.
Instead the vast majority of the time they answer their summons, they arrive punctually, they take their oaths and they take them solemnly, they listen intently, they take the defendant's case as seriously as if it were their own, they give both sides a fair hearing, they abide by the judge's directions of law, they retire determined to reach a just outcome, they give and take in the jury room and they bring to bear their life experiences and their common sense and they reach a verdict based on the evidence and only the evidence.
Then they go home, get on with their lives and almost certainly never come back.
In my opinion there is nothing more important about jury trial than the completing of it. The criminal courts are strange and sad places. Those that make their living there quickly become inured to that. The endless conveyor belt of wrongdoing and wretchedness can become, after so much time, a background noise, the individuals swallowed up by the great maw of the system. One of the hardest things to maintain as a barrister is the energy and will to treat every case as if it was your first. That is the only way to ensure that justice is done but it's exhausting and debilitating.
And so to judges. Some are excellent, some good, some middling, some indifferent and some terrible. Just like people are. On a good day a bad judge can be good and on a bad day a good judge can be bad. The bald fact remains that, as a whole, and despite some significant progress the judiciary does not look and sound like a lot of the population of England and Wales. You may think that does not matter, I think it does. The main difference between judges and juries other than that the judges are expected to know the law is the judges do have to come back. Every single day. And every single day they hear the same old excuses and a lot of the time they are just excuses but sometimes they are not.
What judges do not have to do (other than appeals from the magistrates court) is decide the facts. That enables them to focus on the law, making sure that the defendant gets a fair trial, and communicating to the jury what the law means and how to apply it to the case being tried. That is why trial by jury is actually a misnomer as it is trial by judge and a jury and while it is not a perfect system there is not, in my opinion, a fairer way of dispensing justice in criminal cases.
In normal times the proposed partial abandonment of jury trial would prompt howls of outrage from the legal professions and in the media too. Indeed at the start of lockdown the Scots tentatively floated such a course of action and it was immediately shot down. We are not now at the start of lockdown and, ominously, there has not been the outcry I would have expected and hoped for.
Here is a short list of reasons why I think abolishing jury trial in Either Way would be a dangerous mistake:
1. It will be proposed as a temporary measure. Lawyers work on precedent. Nothing can happen until it has happened and when it has happened it will always happen. When the MoJ calculate the savings on space, time and money the game will be up.
2. Judges (and magistrates sitting with them if that is what gets introduced) will need to provide reasoned verdicts. This means murders and rapes will not have reasoned verdicts but shoplifting trials will. Over time this discrepancy will grow into a vexatious distinction casting doubt on the legitimacy of juries' bald thumbs up or thumbs down in indictable only cases.
3. If juries conclude the law is an ass they are free to vote with their feet. Judges do not have that freedom.
4. If a jury, notwithstanding the decent likelihood of a group of 12 thrashing out a sensible outcome, actually ends up being no good they are disbanded at the end of the trial and pose no ongoing threat to justice. If a judge is no good or becomes no good justice is imperilled as long as that judge sits and if you've ever looked up how to sack a judge that is likely to be a very long time.
5. Justice by the citizen is justice for the citizen.
6. The Daily Mail has never published photographs of a jury with 'Enemies of the People' as a headline nor would it ever dare do so.
7. Justice requires the application of life experience to facts and circumstances and 12 lives' experiences is a lot better than 1.
8. Juries are the last bulwark against tyranny. They are the ultimate insurance policy.
If there was literally no alternative to trial by judge alone then, of course, it would be better than nothing. However there is an alternative that cries out for piloting and that is virtual trial (as I wrote here http://counselofperfection.blogspot.com/2020/06/video-thrilled-criminal-bar.html), it has been modelled and worked well and the time has come to give it an opportunity to prove its worth in real cases. The criticism that it renders the jury mere spectators is irreconcilable with the fact that evidence is already received often by live link and, in some courts, by pre-recorded cross-examination.
Desperation can quickly lead to disaster if a moment is not taken to consider what in fact are the options and I am certain that abandoning juries should be the option of last resort.