David Lammy is seeking to solve a shortage of resources in the justice system by fundamentally rewriting the legal and constitutional framework of England and Wales. That’s deeply wrong, argues Eliot Wilson
The headline in The Times last week was extraordinary: “Jury trials to be scrapped except for alleged rapists and killers”.
A memorandum from the ministry of justice, headed by deputy prime minister and lord high chancellor David Lammy, proposes that defendants in England and Wales should only have the right to trial by jury for charges of rape, murder, manslaughter or other offences passing a public interest test.
It would: “Introduce trial by judge alone for cases involving fraud and financial offences – if the judge considers the case to be suitably technical and lengthy. Exclusions for rape, murder, manslaughter and public interest.”
So unless you are accused of raping or killing someone, your guilt or innocence would now be determined entirely by a judge. Currently, anyone charged with an offence which could result in more than six months’ imprisonment has a right to a jury trial. The proposal is even more restrictive than Sir Brian Leveson’s already-contentious review of the criminal courts.
The ostensible motivation is an undeniable backlog in the criminal justice system. There are over 78,000 cases before the Crown Courts, and the numbers are rising. What Lammy seeks to do is solve a shortage of resources by fundamentally rewriting the legal and constitutional framework of England and Wales.
Magna Carta
Magna Carta, the settlement between King John and his barons in 1215, is often misunderstood and mis-cited. The charter was revised and reissued in 1216, 1217, 1225 and 1297, and of the 63 original clauses, only three remain in force. Two deal with the English Church and the City of London, but the third, Clause 29 of the 1297 version, goes to the heart of Lammy’s plans and represents over 800 years of legal history.
“NO Freeman shall be taken or imprisoned… We [will] not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We… will not deny or defer to any man either Justice or Right.”
This is the Crown, as the fountain of justice, promising the freemen of England that it will not judge or condemn anyone “but by lawful judgment of his Peers”. That has enshrined the right to trial by jury for eight centuries, but it was not an innovation: juries of a kind can be traced back to Æthelred’s Wantage Code of c. AD 997.
Darren Jones, the increasingly pleased-with-self cabinet office minister, argues that Magna Carta actually supports the MoJ’s case. (Jones was previously a solicitor specialising in data privacy and consumer law, rather than constitutional law or mediaeval history.) He told Sky News: “This all goes back to Magna Carta, if we were going to get into it. Magna Carta is very clear that you have the right to a trial that is timely.”
Yes… and no. He relies on the last words of Clause 29, “we will not deny or defer to any man either Justice or Right”. But there is no conceivable interpretation, save a desperate and partisan one, which would allow that to override or negate the rest of the provision.
It is true that the right to trial by jury is already limited. The Criminal Justice Act 2003 allowed judge-only trials to avoid jury-tampering and for complex fraud cases, though the latter provision was repealed by the Protection of Freedoms Act 2012. But these represent tiny numbers of cases. Lammy wants to clear a five-figure backlog.
Riel Karmy-Jones KC, Chair of the Criminal Bar Association, argues that the proposal will fail by its own metrics:
“Juries are not the cause of the backlog. The cause is the systematic underfunding and neglect that has been perpetrated by this government and its predecessors for years.”
It is certainly a topsy-turvy policy which abolishes a need for resources rather than meeting it, as if the RAF were to scrap its fighter aircraft to reduce its equipment budget
It is certainly a topsy-turvy policy which abolishes a need for resources rather than meeting it, as if the RAF were to scrap its fighter aircraft to reduce its equipment budget.
But it is much, much worse than that. For 1000 years, England’s common law system has relied on the everyman to judge innocence or guilt in criminal cases. Juries can get it wrong, but we have preferred the verdict of our peers to the untrammelled authority of the legal profession. Lammy, of course, like the Prime Minister, is a barrister, and six other cabinet ministers have legal backgrounds.
“A jury trial gives people the final say on the guilt or innocence of their fellow citizens. It entrusts the public to make life-changing decisions, rather than merely leaving it in the hands of lawyers… and forms part of the bedrock of our democracy.”
That was the trenchant view of the Shadow Justice Secretary in 2020. His name? David Lammy. He was right then. He is dreadfully, profoundly, historically wrong now. Judgement by our equals binds society together and connects us to the beginning of the nation. A politician who seeks to disregard that to make numbers tally is a fool; a lawyer who does the same is a knave.
Eliot Wilson is a writer