Justice reform risks targeting the wrong fix

Many years before the COVID-19 pandemic, legal professionals were issuing warnings about how our chronically under-funded, under-resourced justice system was not far from collapse. Five years after that cataclysmic event the backlog in cases has only grown, and not in a way that the pandemic alone can explain.  

Since that time, we have had the latest round of reviews capped by those of Sir Brian Leveson KC, which recommended a whole battery of new measures met with varying degrees of enthusiasm by members of the profession. And now, we have the Lord Chancellor’s proposals.

The government, citing the growing backlog in the criminal system, has produced a series of blueprints for what it calls ‘Swift and Fair Justice’. They contain a range of ideas: some welcome, like the promise to increase sitting days; others distinctly less so. Chief among them, the proposal to restrict the right to trial by jury to only those cases which are likely to receive sentences of more than three years on conviction.

The initial leaked proposals from the Ministry of Justice went far beyond even this, initially seeming to propose that only murder, manslaughter or rape matters should receive jury trials. More troublingly, they appear to have been floated without any consultation with the wider legal profession. 

Jury trials are not responsible for our current backlog - they make up only 1% of the trials in England and Wales. Any attempt to recoup sitting days by removing them, rather than by increasing sitting days, recruiting more Judges and court staff or rebuilding our crumbling court estate (as lawyers have been entreating successive governments to do for years), would be tackling the problem from the wrong end.

There are, of course, other recommendations arising from Leveson’s report that would have a range of beneficial effects not only on the justice system, but on the wider society at whose edges it touches. Diversion from the criminal courts for minor matters and a great emphasis on Out Of Court Resolutions, or increasing credit for early guilty pleas to 40%, could be implemented right now and relieve a considerable portion of the burden. 

Even more so, removing the cap on sitting days, the re-opening of mothballed courts and an urgent review of our prisoner transport system would have a transformative effect on a system that is currently working substantially under its full capacity, and would be welcomed by the professionals who staff it. And yet the government seems determined to press ahead with the most controversial and least substantial component of its changes, come hell or high water. 

It is right that jury trials should excite passions in those who discuss them. In our jurisdiction they are a vital means for the public to see criminal justice done, and represent one of the few opportunities for ordinary citizens to take part in a process that could otherwise look opaque, remote and unaccountable. A justice system, and a society, that loses them will be the worse for it.

I have not always been of this view. And certainly there are times when everyone’s patience is tested. Anyone who has found themselves, as I did just before Christmas this year, facing the prospect of a 4-day jury trial on a common assault matter involving no injury to the Complainant may well find themselves wondering if all this is really worth powder and shot. The question was certainly invited by the Judge for the parties to consider, and when considering their case management duties this was an entirely proper question to ask. 

As it transpired, there were a raft of other issues arising in advance of the trial, particularly that old nemesis of Prosecutors everywhere that is disclosure, which ended up throwing sand in the gears of that matter for several sitting days, at public expense, before it finally resolved. These were symptoms of a range of problems with the system, with various means of solving them. Denying the Defendant a jury trial would have done absolutely nothing.

Indeed, the prospect of being tried by a jury was one of the few aspects of their situation from which my Defendant drew some comfort, as they explained to me during our time spent sitting outside court awaiting developments. Nervous at the prospect of a trial as they were, it was made somewhat more bearable by the thought that they would face a tribunal of ordinary people very much like them, able to apply their common sense to the case before them.

It is worth being reminded that these are very meaningful matters indeed to users of the criminal justice system. When so many other more popular and effective solutions are ready to hand, the government should think long and hard about whether this is a battle it wishes to fight in the court of public opinion as it looks to the year ahead.