Courtrooms are cramped. Physical distancing needs space. How is the lockdown-exacerbated backlog of jury trials to be reduced as, moving on from the Cummings, Primark and Cherry on the Cake phases of its failsafe national plan, the Westminster government finds it is also safe to relaunch justice?
After three months to consider the options, the lord chief justice of England and Wales, Lord Burnett, has shared with Radio 4 listeners a possible solution. Simply suspend the right to trial by jury! Just one judge, with two magistrates as sidekicks, could sort countless “either-way” cases, where the defendant currently has the option of a magistrate or jury trial.
What the idea lacks in principle, it surely makes up for in convenience: instead of 12 angry men, only one moderately narked one. Obviously women judges take up even less room, but they are in shorter supply. Lord Burnett says action, such as targets, to reform a dismayingly homogeneous judiciary could damage – how unlike juryless trials – “public confidence in the judiciary”. His colleague, Lord Sumption, the supreme court judge turned radio personality, has likewise demanded patience: “In the history of a society like ours, 50 years is a very short time.”
Consider, anyway, the savings on the temporary courtrooms needed if conventional trials persist and from leaving already vacant buildings – from Nightingale hospitals to theatres, concert rooms, sports halls and so forth – free for more valuable forms of repurposing. If this sounds worryingly reminiscent of the government’s approach to saving education – simply remove the children! – Burnett’s suggestion has the advantage that justice would not be abandoned so much as diminished. Nobody’s conscripting amateurs for homemade verdicts. The real damage would probably be sustained by a relatively small number of people, some with underlying criminal conditions. A number, probably, are destined for prison; they might even welcome the chance to get it over with.
The idea of ditching a citizen’s right to be tried by their peers has however disturbed many lawyers. Caroline Goodwin, QC, chair of the Bar, points out that a massive pre-Covid-19 backlog already demanded attention and investment: “Are we really serious when we say that the solution to what is financial obduracy is to get rid of juries?” There are suspicions, too, as with other restrictions introduced as Covid-19 emergency measures, that this resource-led removal of an established legal right will stay for good.
Perhaps anticipating a hostile response from English lawyers, a similar proposal having been seen off by Scottish ones, the lord chief justice told the BBC’s Law in Action that another option would be juries of seven, instead of 12. The adoption of this measure in the Second World War made it, to his forensic mind, a potential peacetime solution. “It seems to me that is a serious option that should be considered,” Burnett said. Evidently he is prepared to overlook the risks, cited in Counsel magazine, of reduced juror perspectives, of rogue members, of unrepresentative groups.
If Burnett’s is not quite the uncompromising support for legal standards that a layperson might expect from the country’s leading judge, maybe that’s the fault of the layperson. Plus in fairness, if it’s now the education secretary’s job to stop educating, the attorney general’s to endorse transgressions and the health secretary’s to expose vulnerable people to a lethal disease, perhaps it’s only consistent with this new order to find the country’s senior judge weighing up moves that could seriously impair trust in courts.
On the other hand, even a senior judge must be aware that now is possibly the most unfortunate moment in years to suggest replacing the public’s contribution to trials with an enhanced judicial role. And it’s not, although it may not be entirely irrelevant, because we haven’t forgotten the dismissals, not long ago, of three judges who viewed porn at work. Or the misogynistic contributions of judges Rudland and Hayden. Or the one who needed “advice” after falling asleep. “While concluding that this amounted to conduct which had the potential to undermine public confidence in the judiciary, the lord chancellor and the lord chief justice took into consideration that the judge fell asleep only momentarily and has expressed remorse for doing so.”
A special mention for Robert Jay, the thesaurus-raiding lawyer from Leveson, just rebuked for being what he thought he was allowed to be in court: non-momentarily offensive.