To paraphrase GK Chesterton, jury trial in the Crown Court has not been tried and found wanting, it has been found to require funding and thus has to be curtailed.
Keen observers of the Ministry of Justice will not have been surprised by the demise of the Leveson Review’s proposal for a judge sitting with two magistrates to try less serious cases in the Crown Court. The cost of recruiting thousands of additional magistrates will have alarmed the ministry, even if volunteers ready and willing to sit for several days at a time could be easily found. The conclusion that judges should be required to try the majority of Crown Court cases alone is dismaying, but they clearly believe it will be cheaper.
This plan is forged by the team that has already delivered closure of Magistrates and Crown Courts, leading to a national shortage of courtrooms. Their campaign to slash legal aid expenditure drove so many barristers and solicitors away from criminal practice that cases are increasingly adjourned because no one can be found to prosecute or defend. Meanwhile, cutting the maintenance of court buildings and recruitment of judges and recorders left the system under-resourced. Surely, however, this time they have it right? A single judge is surely capable of presiding over a fair trial, and how else are we to address the backlog?
In fact, the time saving is unlikely to be that great. Leveson in his review estimated a 20% saving for a case tried by the Bench Division compared with jury trial. Even if a slightly greater time saving might be possible for a judge alone, remember that the court will be empty while the judge considers and writes their reasoned decision. At the moment, when a jury goes into retirement, judges embark on a new case. Further, this change would do nothing to deal with the existing backlog.
We can argue about whether the right to elect trial by jury is as ancient or firmly rooted as its proponents claim. If you had to invent a system for determining an accused person’s guilt, you might not decide to rely on 12 randomly selected citizens. However, juries have served us well, keeping judges above the argument and providing a unique way of involving the citizenry in important decisions. It is not jury trial that has caused the backlog, and administrative convenience seems a poor excuse for its abolition in so many cases.
The better solution starts with removing from the Crown Court a series of offences that, ironically, successive governments have insisted can be tried there just as they have been reducing the capacity of the courts. Offences might include assaults on emergency workers, minor cases of racially aggravated harassment and dangerous dog offences. All these recently created cases have no longstanding right to jury trial, and in all of them the magistrates court should have the power to determine venue.
Next, let me give one illustration of what a strong judicial team can do. The backlog at Woolwich Crown Court – where I sat from 2013 to 2024 – had risen to just under 1,200 cases by October 2022. By using intense case management and a system of rigorous pre-trial reviews, some cases were resolved and others were identified as not trial ready. We managed to knock 200 cases off our backlog in the next 8 months and were heading towards the acceptable level required to ensure a full calendar of work. However, the campaign demanded huge effort from judges, staff and from the advocates on both sides. The failure to replace departing judges and cuts to sitting days put paid to any further progress. By the time of my retirement a year ago, the backlog was creeping up again and I suspect it has climbed further since.
Crown Courts have energetic and industrious resident judges and dedicated staff. They are the teams that got the courts moving when the then Lord Chief Justice called for the courts to stay open during the pandemic. There was no template to follow and no one to tell them what to do. Judges and staff worked out how to conduct socially distanced trials in available spaces supported by prosecution and defence advocates. It is frankly condescending for them all to be told they cannot cope with the present situation, even if they were allowed to operate at full capacity.
