The government’s proposals to curtail the right to a trial by jury have been found to diverge in key ways from the recommendations of how to reduce the massive Crown Court backlog on which they are based. Sir Brian Leveson was tasked with investigating the almost 80,000 case backlog which is causing extraordinarily long delays to victims and the accused, and in his June report recommended ways the government could urgently tackle this issue. However, the last announcements from the Ministry of Justice reveal their plans depart from Leveson’s recommendations in key ways which may hamper access to justice, and will certainly lock ordinary people out of the criminal justice system.
Leveson said that cases being heard by a judge sitting with magistrates would reduce Crown Court sitting time by 20% and that this was based on data analysis and modelling which looked at ‘the absence of judicial time spent managing the jury’. However this was couched in the reservation that this estimate could go up or down depending on each case.
There is no concrete evidence that cases being decided by a lone judge will actually reduce the backlog. Lawyers have expressed their concerns over the past few weeks that courts are currently sitting empty because there aren’t enough criminal barristers or judges to work in them. Judges working alone writing judgments will not necessarily dramatically reduce the number of cases waiting to be heard which would, ordinarily, go in front of a jury, and trials in front of a jury only comprise about 1% of all criminal cases.
In fact, Leveson’s analysis should be revised again considering the government has not adhered to his recommendation of a ‘mixed bench’ of magistrates and judges, going ahead instead with cases heard by a single judge. In a statement, the Bar Council said there was no evidence that curtailing jury trials would reduce the Crown Court backlog, and said the government’s proposals ‘hinge on Sir Brian Leveson’s recommendation which has not been piloted or thoroughly modelled.’ They added that criminal trials being decided by a single judge ‘goes further than the recommendation by Sir Brian which recognised the importance of judgement by peers.’
The government’s proposals also expand the threshold of cases that will be heard by a single judge, rather than receiving the choice of a trial by one’s peers. They recommend cases likely to carry a sentence of three years or less will be given this treatment, higher than the two-year sentence maximum recommended by Leveson.
Further questions have been raised about other recommendations that have been revised or ignored. Writing on LinkedIn this week the head of charity Transform Justice, Penelope Gibb, questioned what had happened to Leveson’s recommendation that ‘a whole raft of sentences should be reduced if the intermediate court were to be introduced’. ‘If the intermediate court had to happen’, she said, ‘down-tariffing was a good idea, the logic being that sentences for crimes such as assaulting an emergency worker is too high at two years imprisonment, and that if you deny people a jury you should reduce the potential sentence.’
Even if the reforms did clear the backlog of tens of thousands of cases, critics are sceptical that this would be a worthwhile trade off. Justice charity APPEAL said in response to the proposed changes: ‘Transforming our justice system under the guise of efficiency, without addressing the root causes, risks “fixing” a backlog at the expense of fairness and liberty. As articulated by major legal professional bodies, reforming court infrastructure and increasing resources would be a principled response, not stripping away a foundational democratic safeguard.’
