‘Scrapping Jury Trials Is an Attempt to Fix a Broken Justice System by Smashing It to Pieces’

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Anyone who has ever sat on a jury or taken part in a Crown Court trial as an advocate, witness, expert or Judge, knows that to dismiss them as no more than an exercise in administering the criminal law and determining guilt or innocence is a massive over-simplification. 

A Crown Court trial is first and foremost about people. Individuals who, because of poor luck, bad decision making, a particular predilection towards a criminality that sits in their characters or a combination of all three, have ended up accused of a crime, or as the victims of a crime. 

Their narratives and background often go way beyond the strict confines of the law and the legal process, and so, we as lawyers try to fit their behaviour and their characters into the process as best we can. Together with judges we strive for fairness, for objectivity and to ensure that the criminal justice system achieves the goal of protecting society from those individuals who commit crime and ensuring that the criminals in turn receive the correct sentence. 

As I leave Court every day, I do a roll-call, when I ask myself if the people I’ve dealt with that day, as either a prosecution or defence advocate are in the right place: is the kid who dealt drugs at school been given a chance to rehabilitate himself via a suspended sentence; are the men who fought in the street with bottles and sticks properly behind bars; is the young women who was raped content that the man who subjected her to her ordeal has been properly punished. Overwhelmingly, the answer will be yes – not because of any particular skill by me, but because of the collective efforts of the police, the court staff, the probation service, the CPS, defence lawyers and the Judiciary. 

And Juries play a pivotal role in that process. 

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Gareth Roberts

Twelve ordinary people, given the extraordinary role of judging the evidence and casting a verdict on strangers that will almost always be life-changing for them. 

They sit in the theatre of Court, twelve pairs of eyes, watching and listening, taking in every nuance of the evidence, recording in their minds every time a witness flinches or procrastinates and every tearful denial or assertion, and then at the end, they are given a law lecture by the Judge and go off to the sanctity of their room to consider what they’ve seen and to apportion guilt, if they can. I have never been in a jury room, or sat on a jury, but I can only imagine, that once they are discussing the evidence, and asking the questions they are directed to consider, the fact that you have 12 different people, with different experiences of life and different perspectives is invaluable as they take up the challenge of reaching a true verdict.

I say that with confidence, because, in my 26 years as a barrister, during which I have watched many hundreds of juries go through this process, I can think of only a handful of occasions where I thought that they’ve reached the wrong verdict. 

Labour’s announcement that they are considering replacing juries with judges for all but the most ‘serious offences’ is an attempt to mend a system by smashing it into tiny bits. 

The principle of being tried by your peers is an important one. The criminal law is not something that can be imposed upon us without our consent, it must be something that we all feel part of, that we all buy into and trust. The jury system is a vital part of that process, because it brings ordinary people into the system and gives them a role that brings it alive to them. 

And they do it to a consistently high standard.

The Government’s proposals for reform suggest that only a few cases including rape and murder are serious enough to merit a jury; all other cases will be tried by judges. It is a proposal that demonstrates a fundamental lack of empathy in or knowledge of the system, because, anyone who has ever been involved in the criminal justice system, knows that almost every case is ‘serious’ for those involved; for example, a person of impeccable character accused of punching someone in a pub, may have their life torn apart if the jury rejects their defence of self-defence or mistaken identity. Which is why those of us involved in the criminal justice system treat every case with the same care, compassion and professionalism whether it is a ‘simple’ shop-lifting, or a ‘serious’ murder.

Judges ensure that every case is treated with the same level of professionalism and  fairness and that the law is implemented properly. 

The proposal to replace juries with judges will place a huge burden on the judiciary in a way that most judges do not welcome. Most judges acknowledge that they are actually no better placed to make an objective determination about an individual’s honesty than an ordinary person. Indeed, the fact that a judge may have seen and heard every excuse and account over a career spanning decades, may make them the worst people to adjudicate on the evidence (and I speak as someone who has nothing but respect for our judiciary), not because they are inherently biased or lacking in the knowledge of the real world, but because, by virtue of their position and expertise, they are prevented from having a completely open mind about every case that they would be asked to consider.

For example, a judge will know about a defendant’s antecedent history, in a way that a jury will not; a judge will have an idea of unused material, that a jury will have been prevented from seeing because of unfairness or the rules of admissibility; a judge will also know the barristers involved, they will know the coded language that they use and, of course, the judge will know about the pressures being placed upon him and the system concerning the numbers of prisoners and the need for conviction rates – of course, consciously, a judge will put those matters out of their mind, but, sub-consciously a judge may make a ruling or reach a verdict that does take into account these matters. Most members of the judiciary are aware of this potential bias and it terrifies and appals them in equal measure, they do not want to spend their time listening to Court of Appeal judgements justifying or rejecting their verdicts. And that will happen. 

In addition, lawyers will know which judges might be more favourable to their case than others, and they will try to engineer matters because they owe a duty to their client to do so – as such, do not be surprised if certain defendants become ill on certain days and lawyers suddenly become aware of important matters that need to be disclosed that will derail a trial because a defendant knows that another judge on another day will be more helpful to them. The potential for the legal justice system to be reduced to farce is clear, the potential for clearing the backlog of cases is less clear. 

Of course the reason for the backlog in the criminal justice system is clear to all of us, and it has nothing to do with the centuries old right to be tried by your peers, but is the direct result of cost cutting by successive administrations.

In my 26 years, I’ve seen numerous courts closed down, never to be replaced. I’ve watched the number of sitting days that existing courts are given to cover their caseload reduced. I’ve seen the whole system strain and creak under the pressure of dealing with more cases with lesser resources, from the initial investigation by overworked police officers through to the inability to obtain expert evidence on time, CPS charging decisions on time and defence statements on time. We as counsel are expected to undertake work regarding mobile phone evidence, pre-recorded interviews and the drafting of defence statements, responsibilities that did not exist when I started; while the judiciary have to prepare thoroughly often dozens of cases every day.

None of this will end if a judge is suddenly made the arbiter of whether the evidence is enough to convict, instead, all that will happen is that we, as citizens, will lose the fundamental right to say, ‘okay, you’ve accused me of a crime, now prove it before my fellow men and women.’ And that right is absolutely precious.