2DRJ Crime Team on why the right to jury trials should not be removed
“A jury attends in judgement not only upon the accused but also upon the justice and humanity of the law.” E.P. Thompson, ‘Writing by Candlelight’ (1980)[1]
This week the Deputy Prime Minister and Secretary of State for Justice, David Lammy, distributed a memo to Whitehall departments declaring that jury trials in England and Wales are set to be scrapped, except for the most serious crimes such as rape, murder and manslaughter and other trials deemed to be in the public interest (whatever that might mean). This ‘news’ set a cat amongst the pigeons, to say the least.
Whether releasing the memo is political kite flying by the government, while backstage ministers tighten up plans to enact the recommendations of the 2025 Leveson Review (Part 1), remains to be seen. What we do know is that Lammy’s plans are a total U-turn from tweets he posted in 2020 that ‘jury trials are a fundamental part of our democratic settlement. Criminal trials without juries are a bad idea’.[2] We also know that Lammy’s proposal to all but remove a defendant’s right to trial by jury far exceeds the recent Leveson Review recommendations, although it cannot be said that the Leveson recommendations themselves pale in comparison.
We are only too aware that the Criminal Justice System is on its knees, following more than twenty years of serious underfunding and neglect by successive governments, both Conservative and Labour. In July of this year, Sir Brian Leveson produced the first part of his government-commissioned report concerning the Criminal Justice System. Sir Brian’s proposals included limiting the right to trial by jury through the creation of a Crown Court Bench Division (trial by judge and two magistrates for certain cases) and the removal of the right to trial by jury in fraud and other complex cases.
Immediately following the release of Sir Brian’s report, the Criminal Bar Association carried out a survey of its members which showed that the overwhelming majority of criminal barristers are against these proposals. The Law Society echoed this response to the proposals. It is not only criminal lawyers who shudder at the thought of limiting the right to trial by jury in the name of purse pinching. There is no public mandate to give jurors the boot.
In 2006, when a written Bill of Rights was being considered by the then government, the Rowntree Foundation surveyed the public extensively as to what rights the public held dear and wished to be protected in their Bill of Rights.[3] Two things took the top spot. They were:
- The right to free medical care on the NHS; and
- The right to trial by jury.
Neither right has been entrenched into a Bill of Rights (because the proposal for a Bill of Rights was kicked into the long grass by the Conservative government of the time), but it does not mean that the British public do not value that right or wish to protect it. This remains the case today.
Juries are representative of the population. In our experience, the vast majority of them take their duties very seriously and, in David Lammy’s words in 2017, they are “a filter for prejudice.” [4] Access to, and public confidence in, a criminal justice system that is fair, open, and independent is not easy to maintain. Nor is it cheap.
Arguments in favour of the Leveson proposals go like this:
- “Of course, we’d love to keep jury trials, but we just can’t afford them”
- “Jury trials are slow – take too much time and money – they’re cumbersome”
- “Juries are not up to the complexities of fraud cases and the like”
- “Most criminal cases are already dealt with in the Magistrates’ without a jury, so what’s the fuss?”
- “Many either-way offences are petty crimes that clog up the Crown Courts”
It is not only lawyers who will spot the lack of evidence to back up these positions.
At the time of commissioning the Leveson report, the then Justice Secretary, Shabana Mahmood, said that: “Swifter justice requires bold reform, and that is what I asked Sir Brian Leveson to propose …”.[5]
To be fair to Sir Brian, a retired senior judge, His Honour Owen Davies KC, wrote just after the Leveson proposals were published in July that:
“Sir Brian Leveson was presented with a fait accompli. The court system is broken and prisons are overflowing. No wonder he has had to make recommendations that are not made on principle but purely as a matter of expediency. They are very radical. Two things need to happen to prevent a great injustice in the long term. First, the measures proposed, many of which require legislation, should come to an end when the backlog has been cleared. We could then debate whether any of them should be made permanent.” [6]
Leveson and Lammy’s proposals are the wrong solution to the wrong problem. The real problem is the lack of funding leading to a massive decline in productivity and efficiency. By way of example:
- There has been a 30% decline in court staff since 2010.
- Court rooms are closed because of a lack of judges.
- Court infrastructure is crumbling or is dangerous, leading to closed court houses (Harrow Crown Court has been shut for over two years now; all 8 court rooms are out of action).
- Prison transport of defendants to and from court centres, which is run by outsourced for-profit companies is at best erratic and often late – leading to trials being unable to proceed in a timely fashion or defendants not being produced at all.
- Low retention of criminal practitioners due to low remuneration weighed against high demands.
- The Crown Court jury trial backlog reached 78,329 in June 2025.[7]
- The Magistrates’ Court backlog, over four times bigger than the jury trial backlog, reached 361,027 cases in June 2025.[8]
The correct solution is increased funding across the board to fix these problems, rather than ditching 1,000 years of democratic history – jury trials. Although, is it really about protecting tradition?
Juries act as a filtering agent against government overbearance. If Lammy gets his way, most defendants will be:
- Charged by the state (police);
- Tried by the state (CPS);
- Adjudicated on by the state (lone judges appointed by the state);
- and, if found guilty:
- Sentenced by the state (the same lone judges).
As things currently stand, 12 individuals, totally randomly selected from the electoral rolls, provide the independence and impartiality that acts as a potent buffer against this state-controlled monopoly of the criminal justice system in each and every Crown Court trial. So, it is not really about simply protecting tradition. It is infinitely more than that.
It was a 17th century case that firmly established the power and independence of juries. Bushel’s case[9] concerned a jury who refused to return a guilty verdict when directed to do so by the judge. The judge had imprisoned the jury overnight without food or water but still they refused and stood by their verdict of not guilty. They were fined for contempt of court by the judge. One of the jurors, Edward Bushel, refused to pay the fine and sought a writ of habeas corpus in the Court of Common Pleas, which granted the writ, ruling that a jury could not be punished simply because of the verdict it returned.
It is this independence from the state which is at risk here.
In 1992, Keir Starmer, then criminal barrister now British Prime Minister, wrote: “The right to trial by jury is an important factor in the delicate balance between the power of the state and the freedom of the individual. The further it is restricted, the greater the imbalance.” [10]
In the 2017 Lammy Review (cited above), an independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System, Lammy prefaces his chapter on criminal courts with:
“Trust in impartial decisions rests not just on the constitutional independence of the judiciary, but also on the connection between the courts and the communities they serve. Magistrates, who deal with 90% of criminal court cases each year, do not require legal training or qualifications but are understood to be ‘representatives of the people’. Similarly, the centuries-old tradition of trial-by-jury is built on the idea that, in the most serious cases, defendants should be judged by a collection of their peers”.
Attempting a balancing exercise between fairness and finances is not the right approach to this criminal justice crisis. The government has no mandate to remove trial by jury. Whether Lammy’s memo was a trial balloon or a genuine attempt to undermine our right to trial by jury, there will be eagle-eyed lawyers watching how the evidence unfolds.
We are all jurors now.
By Peter Dahlsen and Olivia Chessell on behalf of the 2DRJ Crime Team
[1] E.P. Thompson, Writing by Candlelight (1980) – https://archive.org/details/writingbycandlel0000thom
[2] David Lammy Twitter Status, 20 June 2020 – https://x.com/DavidLammy/status/1274301160216805377
[3] The Joseph Rowntree Reform Trust State of the Nation Poll (2006) found that 89% of people thought the right to a trial by jury should be included and 88% supported including a right to hospital treatment on the NHS within a reasonable time.
[4] The 2017 Lammy Review – https://assets.publishing.service.gov.uk/media/5a82009040f0b62305b91f49/lammy-review-final-report.pdf
[5] Government Press Release – https://www.gov.uk/government/news/swifter-justice-for-victims-as-courts-sit-at-record-level#:~:text=Crown%20Court%20judges%20to%20oversee%20110%2C000%20days’,in%20the%20next%20financial%20year%20%2D%204%2C000
[6] The Guardian Letters, July 2025 – https://www.theguardian.com/law/2025/jul/14/restrictions-on-jury-trials-will-put-real-justice-at-risk
[8] Ibid
[9] Bushell’s case (1670) 124 E.R.1006
[10] Socialist Lawyer Magazine, Spring 1992 (when Kier Starmer was Secretary of the Haldane Society of Socialist Lawyers) – https://www.haldane.org/socialist-lawyer/2023/3/30/socialist-lawyer-90-91-ace2r-bhhbf
