You might have missed it in the outpouring of excitement over the reopening of pubs next weekend, but coronavirus could be about to claim a new victim: trial by jury.
On Tuesday, while the Prime Minister was unveiling a mass relaxation of lockdown restrictions, justice secretary Robert Buckland was informing MPs that legislation to dramatically alter and potentially abolish the jury trial would be brought before parliament in a matter of weeks.
This unprecedented assault on the cornerstone of the British justice system appears to have gone virtually unnoticed. Even Sir Keir Starmer, who spent decades as a barrister before becoming an MP, failed to mention the proposed changes to jury trials at PMQs this week.
The only real objection has come from legal professionals themselves, with the Criminal Bar Association warning that jury trials were under “imminent threat” and the author and lawyer known as the Secret Barrister fuming that “this seismic change to our constitution is not being given the attention it deserves”.
But don’t be deceived by the lack of political and media airtime. What is being proposed has implications not just for the criminal bar, but for everyone in this country who cares about access to justice and the rule of law.
Since lockdown was imposed, large parts of the criminal justice system have ground to a halt. New jury trials were suspended on day one, and did not begin again until 18 May, at which points a handful of courts were allowed to reopen.
True, like every other area of work and life, technology has proved a partial rescue. A significant proportion of tribunal hearings have been moved online, with judges and lawyers making use of the same apps that have become staples of lockdown life to the rest of us. The transition to tech-enabled remote working in a sector whose dress code dates back to seventeenth century norms has been impressive.
However, some things are too important to conduct via Zoom. And when it comes to hearing evidence and making life-defining decisions about a person’s basic liberty, face-to-face contact is a necessity.
At present, courts are facing the same challenges as schools and shops: making sure there is enough space for people to socially distance. The trials that have begun since May require an entirely different court room for the jury, and another for press and spectators, dramatically reducing capacity. The backlog for Crown Court cases stands at 40,500, and is estimated to grow by 1,000 a month with the current rules in place.
Hence Buckland’s proposal to abolish trials altogether for some criminal cases, replacing 12 members of the public with a judge and two magistrates.
Such a move would, the justice secretary has stressed, be a “temporary” measure, purely to address the Covid backlog. But a quick look at the figures calls both his justification and the insistence that the change will not be permanent into question.
Because the awkward fact the government just can’t get around is that the challenges to accessing justice today are not consequences of coronavirus. They are baked into the system — a system that has suffered cuts of 40 per cent since 2010, and which was creaking at the seams years before Covid-19 came to our shores.
Prior to March, the backlog of Crown Court cases stood at 37,400, with the average case taking 525 days —almost 18 months — to come to trial. Lawyers and officials routinely complained of court closures, last-minute postponements, staffing shortages, rooms left empty, and jaw-dropping delays to justice that could easily have been avoided.
All these issues have been exacerbated by coronavirus. But they are not new. And nor will they be miraculously resolved by a vaccine or cure. If abolishing jury trials is deemed an acceptable solution to tackle the backlog now, there is no guarantee that it will later be reversed.
In fact, given that trial by judge and magistrates is around 10 cheaper than trial by jury, there is a real danger that this “temporary” measure, slipped in under the radar at a time of crisis, becomes just another part of the “new normal” — never mind the catastrophic impact on individuals caught up in the system.
The assault on jury trials is neither justifiable or necessary. The government was able to build the first Nightingale Hospital in a mere 10 days, with five more following over the next few weeks. It is inconceivable that similar emergency provisions could not have been arranged for courts. Alas, it seems a well-running justice system was not deemed a high enough priority,
Now, rather than address the fundamental problems that caused the backlog in the first place — namely chronic underfunding and political disinterest — the government appears to be using Covid-19 as an excuse to scrap what the president of the Law Society has called “the bedrock of the criminal justice system”.
This government has promised to do “whatever it takes” to safeguard public health and the economy. The justice system deserves similar protection. A robust defence of jury trials should be drawing support from across the political spectrum — from Keir Starmer’s social progressives on the left, to Jacob Rees-Mogg’s staunch traditionalists on the right.
Let’s hope our MPs can resist the urge to play politics with a right set down in the Magna Carta. British justice hangs in the balance.
Main image credit: Getty