Is the jury system overrated?

0:02Lewis Goodall:This is a Global Player original podcast. Runnymede, the 15th of June 1215. King John seals the Magna Carta. In it, no free man will be imprisoned except by the lawful judgment of his peers. The 2nd of December 2025. David Lammy tears it up. We've had jury trials for over 800 years. They are, as David Lammy himself once proudly asserted, fundamental to our justice system, fundamental to our democracy. They're a bulwark against tyranny.

0:37Emma Burnell:Twelve ordinary citizens pooling their collective wisdom. That is Robert Jenrick, Shadow Justice Secretary, taking us back to 1215 to start his assessment of David Lammy's plan to scrap juries for many cases in England and Wales. That is the year of the Magna Carta. And Jenrick's argument is that Lammy is tearing up history.

1:03Lewis Goodall:But is that right? I mean, 90 % of cases are heard in this country by magistrates. So what is Mr Jenrick getting so exercised about? Welcome to the News Agents.

1:21Lewis Goodall:The News Agents. It's John. It's Emily. It's Lewis. And that was a video from Robert Jenrick where he's seen walking across a muddy field in white trainers with his dog. I mean, that's just the wrong look.

1:33Emma Burnell:Runnymede, maybe. Was he in Runnymede? Do you think?

1:36Lewis Goodall:It may have been Runnymede.

1:37Emma Burnell:I think so. I don't think it was just any old field.

1:40Lewis Goodall:But surely it should have been wellies if you're going across a field. I also love the idea that we reached a fundamentally sound and just legal system in 1215. Yeah. There was definitely no wrongful imprisonment after that for the next eight years. years no rack no torture no indeed but this is all related to the announcement that david lammy the deputy prime minister and justice secretary has made today which is controversial because however comically generic has expressed it is true to say that the jury system has been at the heart of the english scottish legal system for centuries unlike many other european countries but he's announced david lammy that jury trials in england and wales for crimes that carry a likely sentence of less than three years will be scrapped.

2:23Lewis Goodall:These are reforms to the justice system, including creating so-called swift courts, and that will include serious offences, including murder, robbery and rape. We'll still go before a jury, but anything less than that will go either before magistrates or individual judges. And the context for this, Lammy argues, is the fact that, frankly, at the moment, our justice system is not working. A fundamental feature of any state or a fundamental responsibility of any state is the efficient and swift operation of justice. And it is not working. Indeed, at the moment, there are current projections that Crown Court case backlogs will reach 100 ,000 by 2028.

3:06Lewis Goodall:That's against a current backlog of almost 78 ,000. And this means that currently a suspect being charged with an offence today may not reach trial until 2030.

3:18Emma Burnell:What he says, what Jenrick says anyway, is that Lammy and indeed the prime minister have gone back on previous positions that they held and indeed that they articulated. He quotes the prime minister's having said a few years ago there should be a right to trial by jury in all criminal cases and quoted Lammy saying jury's act as a filter for prejudice. In other words, Jenrick's accusation is he's scrapping the very justice system that he once lauded and trying to make it look like this was never in a manifesto, was never an idea that they had before they came to power. Now they've come into power.

3:52Emma Burnell:They've seen how slow the system is. The diagnosis is right, but the solution is wrong.

3:57Lewis Goodall:Well, why don't we just listen to a bit of David Lammy in the Commons making his announcement today? Today I can announce up to£34 million per year in additional funding for criminal legal aid advocates to recognise the vital support that they give to those navigating the system. I will also accept Sir Brian's recommendation to match fund a number of pupillages in the criminal area to open a career at the criminal bar to more young people from across society. I will also negotiate sitting days with the senior judiciary through the usual Concord Act process, aiming to give an unprecedented three-year certainty to the system.

4:40Lewis Goodall:I'm clear that sitting days in the Crown Court and Magistrates' Court must continue to rise, and my ambition is to continue breaking records by the end of this Parliament. But as Sir Brian has made clear, investment is not enough. The caseload is projected to reach 100 ,000 by 2028 and without fundamental change could keep rising, meaning justice will be denied to more victims and trust in the system will collapse. Mr Speaker to avoid that disaster I will follow Sir Brian's bold blueprint for change. First I will create new swift courts within the Crown Court with a judge alone deciding verdicts in triable either way cases with a likely sentence of three years or less.

5:28Lewis Goodall:So that is the Justice Secretary the Lord Chancellor David Lammy and the Sir Brian he's talking about is Sir Brian Leveson who more famously led the Leveson inquiry into the phone hacking scandal and kind of the way the press was behaving in this country. Look I think when people talk about broken Britain they sort of have the justice system in mind where nothing seems to be working and the wrong prisoners are being let out early and there are all sorts of cock-ups and mistakes. The justice system is certainly creaking but the point about sort of justice delayed is justice denied there's someone i know who has been the victim of a stalker the person who had been stalking her has now been charged with attempted rape and the police came around to see this woman a young woman and said look he's going to plead not guilty it means that the case will go to the you know crown just as thinking will be, if we delay this long enough, there is every possibility that the person who is accusing him will just think, I want to get on with my life.

6:38Lewis Goodall:I don't want this hanging over me. And the case will drop. And if that is a legal tactic now, that just play it long, because the case will go away, then surely that has to be addressed. And for that reason, I kind of think that people will get hooked on King John, Magna Carta. but I think there is a practical thing about our justice system now that needs addressing.

7:00Emma Burnell:I mean, no one, I don't think you'll find anyone who says we need to lengthen the period of the weight between, you know, the resolution of a crime and the crime taking place. The question is whether getting rid of a jury's, I don't think jury selection takes that long. I don't think that is what's hollied up. As they've said to us, it's about the number of days that they're not even sitting. It's about the delays to the process. It's about things kind of stopping in a recess and having to be reexamined and sending everyone home. That's the time consuming stuff. I don't think it takes very long to get a jury together.

7:30Lewis Goodall:What this is an example of is the government almost trying to put any lever to lessen this problem. Because, John, you are right. I mean, this is this is a profoundly, profoundly serious crisis in the British state. One of the reasons it's been allowed to get this bad is because most people, thankfully, for one reason or another, do not have, do not encounter the justice system very much. It's a bit like the border force or something like that. Generally speaking, unlike, you know, frontline public services in that day-to-day way, like the NHS and so on, we don't encounter. I mean, we talk about NHS waiting lists.

8:01Lewis Goodall:God, if we had operation waiting lists or elective waiting lists that were anything like this, I mean, the political crisis for this government in terms of health, which is already bad, would be on a whole nother level, right? But the fact is, is that for individuals who are caught up in it, it is life destroying potentially either if you're a victim or someone who has been accused wrongly or correctly of a crime it is basically destroys your life because it just hangs over your life for years the question therefore becomes as we're discussing whether the changes to the jury system will be the sort of silver bullet to try and arrest it or to try and make it better and i think what you can probably say is that it might make some differences around the edges but if you look at the actual stats in terms of what's happened to the justice system.

8:45Lewis Goodall:And the truth is, as the IFG Institute for Government pointed out, justice system is now employing fewer criminal lawyers, pretty much than ever before on a per capita basis. The number of judges working in courts remains 7 % smaller compared to 15 years ago. We're spending 10 % less in real terms on the court system than we were 15 years ago. I mean, we're expecting magistrates to try and pick up more of this slack. Actually, you know, the number of judges has gone down a bit, but there's been an absolute collapse in the number of magistrates since 2010 so if you're generally trying to funnel people away or cases away from the jury part of the system where are they going to go so you know i think that what is i mean you know generic can talk about magna carta as much as he likes the truth is is that you know we can have a debate about the jury system there is a debate about the jury system you know we've changed it in the past in the 1930s as lemme has pointed out we used to have jury systems for civil trials we don't anymore until the tories themselves change it in defamation cases.

9:40Lewis Goodall:We had it till 2013. You can pick and choose without fundamentally changing our nature of a democracy where you employ a jury system. The question is whether it will make much of a material difference in terms of lessening the problem in the justice system overall.

9:53Emma Burnell:I guess in my head, I'm trying to work out what is practical and what is theoretical in this whole question. I went to a few barristers to sort of gauge their response to Lammy's changes. And one sent me to his blog, Secret Barrister, and he said juries are the worst way of determining criminal liability, except for all the others. In other words, it's the old Churchill quote about democracy. And I think this is the most fundamentally easy way of understanding it, that juries are important, not for the powers they have, as for the powers they prevent others from having. In other words, this is a theoretical argument.

10:30Emma Burnell:And I sort of stand back from that, and I'm just kind of looking at it. But the point of having a jury is that it means that prosecution can't simply be nodded through by a court. The evidence has to be impartial, it has to be evidential. It's taken out of the hands of career and legal professionals. In other words, just having that body of your peers is what gives you distance from, as it were, the legal system itself. So something that seems very obvious if you're a career barrister, if you're a career professional, if you're a lawyer, suddenly has to go through another check and balance. And I think that's the argument that the generics of this world, the Michael Gohs of this world make.

11:08Emma Burnell:I'm not pretending that I'm totally convinced by that because I think we probably do need to modernise. And I think 1215 is probably not, as you said, the right starting point for whatever the system has given us. But I do understand that there is a sort of gut reaction to this because people, you know, I hate the slippery slope argument, But people see it as a way of giving more power to a smaller number of people and a more closed system than it currently has. And that's a worry.

11:36Lewis Goodall:And of course, if you look at, you know, the sort of temples where the judges and the barristers gather, you know, in London, representative kind of up to a point. It's got better. I thought you were going to say up to a point, my lord. Up to a point, my lord. I was waiting for that. But you can see that, you know, overwhelmingly it is white, it is male, it is middle class, it is drawn from the private schools. But on the other hand, you know, if you have got legal professionals adjudicating, do you want 12 good men and women true to be, you know, the jury of your peers to be judged by them when there are all sorts of cases where they've gone on gut feeling but not on the law?

12:21Emma Burnell:Almost every major miscarriage of justice has come from a jury trial. But that is probably because juries are involved in all the major trials. Exactly.

12:30Lewis Goodall:And in other countries, you know, as I say, this is very much a sort of English common law tradition to have juries. Most other European countries don't have them apart from maybe some specific cases. And I'm sure they have their miscarriages of justice as well. I mean, I think the problem is, John, is that like, you know, at least my sort of overall point here is this is systemic. Right. In the sense that, you know, at least we can be guaranteed to get jurors. You have to do it. It's one of the only parts of our... We're free. Yeah, we're only parts... You, I think, are waiting to be called up as we speak.

12:58Lewis Goodall:I've been called for jury service. Oh, I didn't know. This isn't just a theoretical discussion. No, no, no. You're going to be one of the 12 good men and women true. I have been called for jury service. One angry man. John's wondering if they didn't scrap it next week, quite frankly. Well, no, but exactly. The state can compel us to do it. It's one of the only things in our democracy we have to do. We don't have to vote. It's not conscription. No, we're not conscripted. We have to do it unless you've got a very, very good excuse. So we are a plentiful resource. Actually, within the criminal justice system right now, if you can't afford your own barrister, try and get a criminal defence lawyer.

13:31Lewis Goodall:You know, the legal aid situation is so bad that actually now the remuneration is so poor that actually the system itself is struggling to even get enough criminal events lawyers to come in. Most solicitors in the country, criminal solicitors, are now over 55. It is an ailing, creaking system. And in that respect as well, a big part of the story here is that the justice system mirrors the rest of the public sector in not recovering or not getting close to recovering even pre-pandemic productivity levels. We see that in the NHS. I mean, for example, the IFS said the other day that the average number of cases resolved per sitting day in a Crown Court in 2019-20 was 1.16.

14:10Lewis Goodall:So that's good because if it's above one, then you're getting through the backlog. But now it's 0.97. Now, you can work that out. If you're not above one, then the backlog just keeps growing and growing and growing. And the jury system in particular, or changes to the jury system now, won't help that backlog in particular because it would have to be retrospective, which would get everyone up in arms. legal profession won't tolerate that because a lot of these processes in these cases have already started and you can't go back and say well we started with a jury type system and now we're

14:36Emma Burnell:changing moving the goalposts halfway through to be fair to lammy this is the bit of his announcement that has got you know all the focus because it's a big constitutional question but he is also and he told us stay in the commons 34 million pounds of additional funding for criminal legal aid advocates and he wants to match funding pupillages in other words make it more possible for people to studies barristers and increase the number of sitting days so it's not that he is ignoring all the other stuff which is holding up the system and shows a lack of funding i think he's trying to do them side by side but obviously the question about juries is the one that gets our attention because it feels like a massive change it feels like something slipping out of our grasp even though as you say in the eu we are the only country that routinely has juries oh yeah when did that happen?

15:27Emma Burnell:why didn't nobody tell me? I don't understand we're going to have to tell her about the last 10 years not 12-15 at least that's something yeah but I mean in Europe yeah exactly we are the only country because of the common law system we share that with the US with Canada I guess Australia we gave it to them

15:44Lewis Goodall:I suppose

15:45Emma Burnell:we give them a bit

15:46Lewis Goodall:I suppose where I come down on this is if this speeds things up then it's good but is it dealing with the fundamentals of what is wrong with the criminal justice system and Lewis you've kind of outlined you know some of the problems that are there then no it doesn't I mean yeah okay a 37 million here and a you know extra pupillages and whatever else funding I mean that's all good no that's boring but it is important yes it is boring but it is important but is it going to deal with kind of the crisis that we've got in our prisons in in the way our criminal justice system works in the court backlog in you know all of that if you listen to barristers or indeed people involved in in trials they'll say that one of the most just frustrating things about being involved in a case is just how analog the system is i mean how so much of it appears to be done on sort of pen and paper you know it's sort of banking hours isn't it it's like yeah it feels you know and and having you know from all the super injunction stuff we did having had that for two years i had some experience of that and it is extraordinary you sort of sat there and you get there and everybody's waited been waiting for this particular hearing, they've been waiting for weeks and weeks and weeks, and you get there and it turns out that one, in this case, the government side, oh, haven't sent all the right paperwork in, it's promised.

16:56Lewis Goodall:And then you're sat there going, oh, right, well, I suppose we'll have to go and get those. How long is that going to take? Oh, at least three hours, my lord. Right, well, we'll have to adjourn for lunch there. And, you know, before you know where you are, everything's been deferred and delayed, and then you get to the end of the day, and they say, right, we haven't really progressed, have we? That is a bit like 12.15, isn't it? Yeah, when can we come back? Oh, we haven't got another court hearing availability until for three weeks. And so you can just see this stuff just kind of like augments and gets bigger and bigger.

17:21Lewis Goodall:And that, you know, that's one case. And then you multiply that by hundreds and hundreds and thousands and thousands. And then you have a back up.

17:26Emma Burnell:So the question is whether this is, I mean, exactly to your point, is this a something must be done knee jerk or is it a clever way of actually starting to speed up the system? I don't think we know.

17:38Lewis Goodall:I just think what would be nice. I mean, I think clearly it's going to make some difference. I think that it's all very well for the defenders of the jury system to come out and start talking about the idea that sort of, you know, lamps of liberties are going to be extinguished and whatever. But you can't do that if you're the same people who have been in charge for the previous 14 years who have allowed the system to go to rack and ruin because that is what has happened. It is. What has happened to our justice system is a national scandal. I mean, let's end with Jenrick because one of the things he said in the comments today is you've had 17 months to do this.

18:11Lewis Goodall:Why haven't you done it before? You think you had 14 years, mate. and you didn't do it. This is that backlog. It's not a backlog that has accrued principally over the last 14 months, 17 months is a backlog that has accrued certainly since the pandemic and before that as well. And austerity.