Who Will Miss Out on a Jury Trial? Almost Everyone
Citing concerns about the backlog in our courts, Deputy Prime Minister David Lammy has today outlined sweeping proposals to restrict the right to trial by jury.
Understanding the government's radical proposals to limit jury trials in England and Wales
Under the new framework, only cases likely to attract a sentence exceeding three years imprisonment would retain this constitutional right.
The proposals represent one of the most significant shifts in our criminal justice system in modern times. To understand their full impact, we need to examine both the scope of the changes and the practical implications for defendants.
The Three-Tier System
Under the reforms, all criminal cases would be channelled into one of three categories according to their likely sentence:
Cases up to 18 months (potentially rising to two years)
The Magistrates’ Court will get an increase in sentencing powers, so lay Magistrates will hold the trial and sentence all cases gauged at 18 months imprisonment, possibly rising to 2 years imprisonment.
Cases between 18 months and three years
These offences would be diverted to a newly created “Swift Court”, in which a Crown Court Judge sits alone, deciding both fact and law without a jury.
Cases over three years
Only these cases would retain the right to a jury trial.
This represents a profound re-draw of the boundaries between courts—and a major shift of responsibility away from juries and the Crown Court.
Why the Threshold Matters: The Role of the Magistrates’ Court
To grasp the sheer magnitude of these proposals, we must do two things:
- Understand that it will be the Magistrates Court, at the very start, deciding if the ‘likely sentence’ is going to be under three years – despite this court having no experience of sentencing at that level, and
- Review the Sentencing Guidelines for a wide range of offences, because the ‘maximum sentence’ often bears very little relation to the ‘likely sentence’.
Defence lawyers have seen these Sentencing Guidelines regularly reviewed by Magistrates when deciding whether to accept jurisdiction in either-way cases. That same process will apply here, but now the key border will be set at three years instead of six months.
Maximum sentences under three years
First, let’s take a sample of cases that would never lead to jury trial, simply because their maximum sentences are three years or less. This would include:
Affray (three years maximum)
Dangerous driving (two years maximum)
Racially aggravated common assault (two years maximum)
Racially aggravated harassment (two years maximum)
Assaulting an Emergency Worker (two years maximum)
Sexual communication with a child (two years maximum)
Disclosing an intimate image without consent (two years maximum)
Voyeurism (two years maximum)
Indecent Exposure (two years maximum)
Sexual penetration of a corpse (two years maximum)
Sex with adult relative (two years maximum)
Intercourse with an animal (two years maximum)
Possession of extreme pornography (two years maximum)
It is essential to understand that the Magistrates’ Court would be both the trial and sentencing Court in the vast majority of the above. Indeed, if Magistrates’ sentencing powers are increased to two years, no Crown Court Judge would ever see trials like this again, either with or without a jury.
On any view, this change alone is a monumental shift in responsibility from the Crown Court to the Magistrates. It also means that a person falsely accused of any of these offences will also be relying on their local Magistrates to reach the right verdict. This is particularly concerning where the case hinges on one person’s word against the other.
‘Likely Sentences’ under three years
In addition, a huge number of cases will be gauged as falling within three years imprisonment. This includes what are currently known as either-way offences, and even some indictable offences. Indeed, the Ministry of Justice press release confirms this as it promises to:
“- Guarantee jury trials for the most serious and almost all indictable offences” (italics added)
Having reviewed the Sentencing Guidelines, it is likely that very few of the following charges will be tried by a jury because only the most serious examples would attract more than three years:
Causing death by careless driving (five years maximum)
Assault occasioning ABH or s20 GBH (five years maximum)
Controlling and coercive behaviour (five years maximum. Guidelines suggest most examples attract under three years)
Sexual assault (seven years maximum. Guidelines suggest many examples under three years)
Perverting the course of justice (seven years maximum, indictable. Guidelines suggest many examples under three years)
Possession with intent to supply a Class B or Class C drug (14 years maximum. Guidelines suggest many examples under three years).
Once again, a falsely accused person would be relying on either the Magistrates Court, or a lone Judge, to reach the right verdict on the facts. Once again, our concern is where the case hinges on one person’s word against the other.
The Fraud Exception: Even Serious Cases Could Lose Jury Trials
The restriction of the right to jury trial goes even further. There is an exception to the three-year rule: complex fraud trials. Certain fraud trials would not be heard by a jury even where the likely sentence is over three years. This is because the recommendations of Sir Brian Leveson, Former President of the Queen’s Bench Division, are being adopted.
Sir Brian concluded that Lone Judges should try cases where:
- the alleged dishonesty is not obvious,
- the business area is not easily understood by the public, and
- the defendant’s expertise makes the issues especially technical.
It is very likely that cases in this category, particularly those of high value where vulnerable victims have been defrauded, might well attract well over three years imprisonment. Such cases will not be heard by a jury. They will include an alleged ‘foot solider’ defendant whose role might be very small compared to the other defendants. Such a person will lose his right to a jury trial because the trial into which he was dragged has been deemed complex.
A Sledgehammer to a Fragile System?
The magnitude of Mr Lammy’s changes is vast. There are huge implications for the workload, capacity, expertise and training within the Magistrates’ Court. There will also be Crown Court Judges within the Swift Court having to provide reasoned decisions of fact- whereas a jury only needed to deliver a verdict.
It is too early to digest the full implications of these changes. No doubt, they will be whittled down over time. In our criminal justice system, there are deep-seated problems which, arguably, have been exacerbated by the jury system. The reporting of crime, as well as the population itself, has rapidly increased over the last decade. It is reasonable to accept that reform is needed, and perhaps the current ambit of jury trials is too wide.
However, when we think through what these proposals will require in practice, the first word that comes to mind is ‘sledgehammer’.
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