Before Covid-19 struck, there were 37,500 cases waiting to be dealt with by the crown courts. Since the pandemic halted jury trials in March, that backlog has risen to more than 41,000. Restricting the right to trial by jury could be the last resort of the government to reduce the growing backlog of cases.
A limited number of jury trials have started again, but the need for social distancing means that many courtrooms are not large enough for jury trials to be conducted safely. The lord chancellor, Robert Buckland QC, and the lord chief justice, Lord Burnett of Maldon, have both indicated their willingness to temporarily replace jury trials with trial by a judge and two lay magistrates, for defendants charged with either-way offences (those that can be heard in a magistrates or crown court).
Some, including prominent human rights lawyer Geoffrey Robertson QC, have suggested that defendants should be given the choice to be tried by a judge alone – as happens in some Commonwealth jurisdictions, including Australia and Canada. Others see the idea of restricting the right to trial by jury as an attack on one of the cornerstones of British criminal justice.
Although only available to those whose cases are heard in the crown court, trial by jury has been a long-held tradition of British criminal justice for centuries, going back to Anglo-Saxon times when an accused could be acquitted if he found enough people to swear his innocence. The right was enshrined in law by Magna Carta, which in 1215 stated that no freeman should be imprisoned without the “lawful judgment of his peers”, and firmly established following the trial of William Penn and William Mead in 1670.
The two men, who were Quakers, were arrested for preaching in Gracechurch Street, London. The recently passed Conventicle Act forbade gatherings of more than five to worship other than for services of the Church of England. But the jury of 12 men refused to convict the pair of “leading a dissident form of worship”, despite being directed to by the judge and imprisoned without food or water. They found the men “guilty of speaking” in Gracechurch Street”, and then modified their verdict to “guilty of speaking to an assembly in Gracechurch Street”.
The judge declared that the jury “shall not be dismissed until we have a verdict that the court will accept” and ordered Penn to be bound and gagged. Penn shouted to the jury: “You are Englishmen, mind your privilege, give not away your right.” The foreman, Edward Bushel, replied bravely: “Nor shall we ever do.”
After two days, the jury returned a not guilty verdict, prompting the furious judge to send them to prison for contempt of court until they paid a fine.
Those lawyers who oppose any move, even for a limit time, to permit judge-only trials believe it would set a dangerous precedent. They hold up the case of Penn and Mead to demonstrate the importance of being judged by a jury of 12 randomly selected members of the public.
Nigel Pascoe QC, a criminal barrister who has written a play about the trial, says: “It is impossible to overstate the importance of the case. It is the difference between an administrative judicial mindset which would exclude emotional factors and the instinctive judgement of our peers.”
In an action brought by Bushel, who refused to pay a fine, the chief justice of the Court of Common Pleas, Sir John Vaughan, said: “The jury must be independently and indisputably responsible for its verdicts, free from any threats from the court.”
It is that independence that underlines one of the key reasons for maintaining trial by jury, rather than having cases decided by professional judges.
Sarah Vine, a barrister at Doughty Street Chambers, says: “It is tempting to think that, because the behaviour of the judge in [Penn and Mead’s case] was so very outrageous, because the actions of both the defendants and the jury were so very brave, it can have no relevance today.”
But, she says, although judges may believe what they were doing is legally and morally right, that does not make them “invulnerable to prejudice, case-hardened cynicism or unconscious bias”. Judges, she suggests, are good at the law, but “singularly ill-placed to make the decisions entrusted to juries”.
Twelve ordinary citizens, on the other hand bring their collective life experience to the case. According to barrister Emma Fenn that is a “far greater shared experience than a single judge could possess” – and which in Bushell’s case allowed them to stand up to the pressure they faced.
Juries can arrive at decisions that judges and the public do not like. “The prospect of criminal trials conducted with an eye to public opinion and decided by a single, case-hardened judge is one which should be resisted at every turn,” says Vine. The near-anonymity of a jury also means that jurors are able to make decisions without fear of public opprobrium or retribution.
A judge alone, says Vine, can “never be regarded as a defendant’s peer” – for example, around 90% of the crown court judges in England and Wales are white.
Even more importantly, as Fenn notes, jury verdicts are the only stage in the criminal justice system where black or other ethnic minority defendants do not suffer adverse outcomes due to discrimination – findings supported by research by Professor Cheryl Thomas in 2010 and a review by David Lammy, now shadow justice minister, in 2017.
Although they were 350 years ago, Penn’s famous words are just as relevant today. “They should act as a sharp reminder that we should jealously guard our rights, however ancient,” says Vine. “Because there will always be those who want to remove, reduce or suspend them.”
