British Justice Secretary’s proposal to halve jury trials has implications for delivery of justice
Leveson is the man who persuaded Lammy it was a good idea to wind back the use of juries in criminal justice – a proposal which has triggered a wave of outrage across Britain and all the way to our shores.
Just this week, former Law Council president Arthur Moses, SC, described the British plan as misguided because jury trials promote public confidence in the administration of justice.
This view is shared by prominent silk Margaret Cunneen, SC, president of the Rule of Law Education Centre, who has produced a video for schools explaining the benefits of trial by jury.
“It allows those 12 disparate people drawn from our community to really give a decision about what our society wants, what sort of behaviour our society will tolerate in terms of criminal or alleged criminal behaviour,” Cunneen says.
“We have to defend juries forever because no judge, no panel of judges, can ever bring the (depth of) justice that a jury can bring to any case.
“I thought that as a prosecutor and I believe it as a defence counsel,” Cunneen says in that video.
In Britain, Lammy is paying a terrible price for listening to Leveson.
He has alienated not just the legal profession, but parts of Labour’s own backbench.
If the rumblings out of London are correct, the Justice Secretary is at risk of a backbench revolt that could see the government defeated on the floor of parliament.
If that happens, Labour backbencher Karl Turner, a former barrister, has warned that he will demand Lammy’s resignation.
The most gratifying aspect of this affair is that it has confirmed that trial by jury is still widely recognised in this country and in Britain as one of the best ways of preserving public confidence in the justice system.
It has also exposed Lammy to accusations of hypocrisy. By siding with Leveson he has walked away from his previous strong support for the jury system.
Eight years ago, Lammy wrote a report on the treatment of racial minorities by the criminal justice system that says: “Juries are a success story of our justice system.”
“Our justice system is built on the principle that the law will be applied impartially,” he wrote.
“In the cases that involve the greatest harm to victims and the longest sentences for offenders, juries are the guardians of this principle.
“Our jury system may be centuries old, but it is still fit for purpose.”
Lammy’s 2017 report was all about fairness and maintaining trust in British justice. By contrast, the report produced by Leveson in June was about cutting backlogs.
Leveson is no stranger to controversy. More than a decade ago, he ran a sensational inquiry into the practices of the British media.
He is, however, not entirely responsible for the backlash that has engulfed Lammy.
Keir Starmer’s government gave Leveson terms of reference that required him to suggest ways of sending more cases to lower courts – where they would be decided without juries.
Leveson responded to his riding instructions but ultimate responsibility for the proposal to downgrade juries rests with the government.
Lammy had originally planned to go beyond Leveson’s recommendations but has scaled back his proposed cuts in response to the growing backlash.
He still hopes to cut the number of jury trials by half from 15,000 to about 7500 annually, in order to address a backlog of about 80,000 trials.
Those cases will be tried by magistrates or before judges sitting alone.
The great irony is that some of the most persuasive arguments against Lammy’s current plan are outlined in his own report of eight years ago on the way the justice system deals with racial minorities. He made the point in 2017 that while magistrates in Britain deal with 90 per cent of criminal court cases they “do not require legal training or qualifications”.
He concluded that racial prejudice was still present in the justice system but he cited several studies that found that “on average, jury verdicts are not affected by ethnicity”.
“Juries deliberate as a group through open discussion,” Lammy wrote.
“This both deters and exposes prejudice or unintended bias: judgments must be justified to others.”
Lammy, who is black, wrote that many defendants from racial minorities “do not believe they will receive a fair hearing from magistrates”.
“In some cases, this means defendants pleading not guilty and then electing for a jury trial at the Crown Court, rather than be tried in a Magistrate’s Court, despite the higher sentencing powers available at the Crown Court,” Lammy wrote.
That means the fear of racial prejudice from magistrates who are not legally qualified was one of the factors contributing to the backlogs that Lammy is now seeking to address.
Instead of focusing on that problem, Leveson – at the insistence of Starmer’s government – focused on winding back the very thing that Lammy found was a source of confidence in British justice: the jury system.
Lammy’s tragedy is that he was right in 2017 and wrong now.
He should have ignored Leveson and stuck to his guns, even if that meant disavowing a report commissioned by his own government.
Chris Merritt is vice-president of the Rule of Law Institute of Australia and the Rule of Law Education Centre.
Margaret Cunneen’s video in defence of the jury system is available on the centre’s website.
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Years from now, when David Lammy takes stock of his tenure as Britain’s Justice Secretary, his decision to listen to former judge Brian Leveson is unlikely to be among the high points.