The jury’s out? The verdict on Lammy’s justice reforms

0:00Dr Rebecca Helm:Coming up, the Justice Secretary announces plans to cut back on jury trials to deal with the backlog in the courts. But should we be limiting the right to be tried by your peers? And will it even work? Thumbtack presents Uncertainty Strikes. I was surrounded. The aisle and the options were closing in. There were paint rollers, satin and matte finish, angle brushes and natural bristles. There were too many choices. What if I never got my living room painted? What if I couldn't figure out what type of paint to use? What if I just used Thumbtack? I can hire a top-rated pro that knows everything about interior paint, easily compare prices, and read reviews.

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0:42Dr Rebecca Helm:How does a banana trigger a CIA-backed coup? Do AirPods herald the arrival of a new global order? What do LED lights say about the future of humanity? I'm Ed Conway and in each episode of my new podcast Stuff Matters I take an object, crack it open and reveal the world-shaping forces hidden inside. This is economics told through the things we think we understand. Search Stuff Matters on your podcast app to listen and follow. For more than 800 years the right to trial by jury has been a feature of English law. In fact, it's much more than that. It's been a fundamental principle of the criminal justice system from the year 1215 and the signing of Magna Carta.

1:27Dr Rebecca Helm:But fast forward to the present day and we find courts that are frankly unfit for purpose. A backlog of the best part of 100 ,000 cases is clogging up the system, meaning people are waiting years for justice. Which is why Justice Secretary David Lammy, himself a barrister, is proposing a seismic shift in how they operate. His focus is on so-called either-way offences, ones which can be heard either by magistrates or the Crown Courts. If the sentence is likely to be less than three years, in future they'll only be tried by magistrates or judges. All of which does sound pretty dramatic, though originally Mr Lammy wanted to be far more bold and get rid of juries for pretty much everything bar the most serious charges of murder, manslaughter and rape.

2:13Dr Rebecca Helm:Worth bearing in mind as well that jury trials only make up 3 % of cases. So is this as radical as it first seems? And will it actually work? We'll be speaking to a law professor on that in just a moment. But we'll start with Sky's Dan Whitehead. He's down in Bristol, outside the magistrate's court. Dan, just explain what the Justice Secretary is proposing.

2:32Dan Whitehead:So what we're going to see is that offences that would likely carry a sentence of up to three years will no longer have a jury. and they'll be dealt in different ways. So let me just break it down. Every single criminal case starts its journey at a magistrate's court. Even the most serious of cases like murder, they're held initially by magistrates and then they get swiftly moved up the chain of courts. Most serious indictable cases like murder, rape, terrorism, they go to Crown Court and they still will. Summary cases, low-level offences, will still be held by magistrate's court. What the big change is today is something that we call either way offences.

3:13Dan Whitehead:So these are crimes such as theft, burglary, fraud, things like assaulting an emergency at work, a financial crime that sometimes can be heard in a magistrate's court. Sometimes a magistrate may say, no, it's too serious. That needs to go up to the Crown Court. Now, part of David Lammy's reforms is that they're going to create a new swift court within the Crown Court. And so rather than a jury hearing those cases, it'll be a single judge that makes those decisions. And David Lammy believes that that reform will be 20 % quicker than having a jury formed case and try and ease this backlog, which looks like it could get to 100 ,000 cases by 2028.

3:54Dr Rebecca Helm:That is ultimately the reason that David Lammy is, for some in the legal profession, thinking the unthinkable, that there is this massive backlog. What are the problems with that?

4:02Dan Whitehead:I've been covering courts for nearly two decades and you can see the problem getting worse. I've been inside court in the last few months where you get defendants being brought in late, travelling from prisons two, three, four, five hours away, staffing issues inside the courts. There's simply not staff to be able to receive the prisoners in. There are limitations on judges' sitting hours. There are limitations on the number of staff inside courts. All of this is what is causing the backlog. There are many who believe that scrapping jury cases in some of these criminal cases won't actually solve the problem.

4:42Dan Whitehead:It won't ease the backlog. It actually comes down to money. It comes down to properly funding the justice system. And that is what is needed. You know, the impact of having these delays in the justice system is that you get many of the most serious cases. let's look at rape cases, you get many victims having to wait so long. For them, it's simply too painful. So they withdraw their case. This morning, I was with a victim of sexual abuse. Now, he was abused when he was 15 years old. He went to the police years later in 2016. It was eight and a half years later that his attacker was convicted in November last year.

5:20Dan Whitehead:He had to wait for eight and a half years. He told me about times that he was on the trade in his suit going to court for the start of the trial. And then the case, a completely separate case that was in the court being heard, overran. And he thought, OK, day or two delay. No, they said it's going back to the back of the queue. It will be 12 months. And that is a sexual abuse victim on their way to court on the first day of their trial. So the psychological toll for victims like that is absolutely huge and has a massive impact. Now, the Justice Secretary has said that he wants these reforms to put those sorts of victims front and centre.

5:53Dan Whitehead:And it's for them that we need to speed this up, because the pain that they're feeling in these very long waits simply can't be justified. And the reforms need to come.

6:02Dr Rebecca Helm:Daniel, you mentioned sexual abuse there. I mean, there are crimes of a sexual nature for which a sentence of above three years would not be handed down that would be seen without juries. there are crimes such as burglary, which might not carry that more than three-year sentence, which again would be seen just by a magistrate. For David Lamy to describe those as not as serious offences is something, but I mean, if you're the victim of either of those crimes, I suspect you wouldn't feel the same.

6:26Dan Whitehead:Yeah, and of course, that is the big debate following these proposals and this announcement. There are victims to every single crime, and of course that crime against that person is the most serious thing that has probably happened to them, and they want their day in court, and they want justice. So there are plenty of people who are very vocal against this. And there are also concerns as well about the judges in question. I was speaking to a senior partner at a law firm in Bristol in the last hour or so, who was saying that he's aware of judges who are quite fearful of these reforms because they're worried about intimidation against them.

7:00Dan Whitehead:He said that nobody knows who is going to be on a jury. You know, when you're in court and a jury is selected, they bring in a big pool of people and they select those jury members and you don't know right up until the last minute who's going to be on the jury there are judges who are concerned about this because judges are known in the community they're known that they're a judge and they fear that there could be intimidation let's say now that there are more serious cases that are simply going to be decided by a single judge who's to say that they won't be approached and intimidated by people connected and the defendants in that case.

7:35Dan Whitehead:So that is a real concern for some of the lawyers and the judges in the legal system.

7:41Dr Rebecca Helm:Dan, as you've outlined, there have been a range of responses to the Lammy plan, from outright support to downright criticism. I suppose the one thing that everyone can agree on, though, is that something needs to be done, because right now the system isn't working.

7:55Dan Whitehead:I mean, it really is buckling. So as a reporter who spends time in court, I see this, on a day-to-day basis. I'm dealing with criminal cases at the moment that we're reporting on on Sky News and you could be shocked about the next case dates and the next dates put in the diary to the lawyers and the barristers in court. In some cases if the problem persists we're hearing that it could be 2030 before some cases are heard. So something absolutely has to be done. The critics of the Justice Secretary's plan will say that removing juries may slightly speed up some of those cases but actually juries are not the problem actually it comes down to money it comes down to putting more money into the system Bristol Crown Court less than 500 meters away from here at least one or two courtrooms aren't in use each day there are courtrooms that across the country not just of course here in Bristol that are in disrepair there are staffing issues there are time restrictions all of that lawyers say could be sorted with significant financial investment in the courts, in the judiciary.

9:02Dan Whitehead:And look at the prison system. We've heard from the Justice Secretary today since his announcement three weeks ago about a crackdown on prisoners being released by mistake. Another 12 have been released and two are still at large. It is all interconnected because lots of these prisoners who are mistakenly released have gone through the court system. There are brief court hearings, not full trials, that link to their release. And as the Justice Secretary said on Sky News this morning, this is a paper-based system which is in a completely digital age. And so you can sort of understand no wonder there are mistakes like this which happen.

9:40Dan Whitehead:But absolutely, something has to be done. Many believe that scrapping juries is not the silver bullet.

9:47Dr Rebecca Helm:Thanks, Dan. Now, as you might expect, and Dan actually alluded to, there has been a big pushback from many within the legal profession, even if they do concede that currently the courts just aren't working. So is reducing trial by jury the best or even the only way to solve those systemic issues? Rebecca Helm is Professor of Law and Empirical Legal Studies at the University of Exeter. She's also the author of How Juries Work and How They Could Work Better. Rebecca, thanks so much for your time today. What are your first thoughts on that which you've heard from David Lammy? Do you think this is a workable solution to the problems that exist within the legal process?

10:26I do think that to some extent it's probably necessary to start reducing the number of jury trials, only because we do have these 78 ,000 cases waiting to be heard. We've had the Leveson review, which has said it would be very hard to tackle that backlog without taking some cases away from the jury. I do have some concerns about the types of case that are being taken away from the jury and the number of cases that are being taken away from the jury, which are both significantly more under David Lammy's proposals than they were under the recommendations from Leveson.

10:55Dr Rebecca Helm:But as things stand, currently within the judicial process, isn't the vast majority, the overwhelming majority of cases that pass through that process seen without jury? Yes. So currently, a lot of cases are heard in the magistrates' courts, either by lay magistrates or by judges, but these tend to be very low-level offences at the moment, called summary-only offences. And then for slightly more serious offences, defendants able to elect whether they would like to have their case heard by a jury or whether they're happy to have it heard in the magistrate's court. What is the utility then of a jury trial to be ruled upon by 12 of your peers?

11:28The fact that they're 12 random people is one of the big advantages of the jury system for a number of reasons. The most obvious one is that people trust the jury, they trust their peers, and particularly certain groups in society trust their peers more than they would trust a judge. But there are also advantages that jurors have as fact finders over a judge. Jurors are quite good at judging whether other people are being honest, whether other people's accounts are plausible, because jurors have experience in society that judges just don't consistently have. In certain types of case, they're also making quite complicated judgments about whether a person is dishonest or whether a person has behaved reasonably.

12:05And those are the kind of judgments which are intended to be made by a group of peers. What do people in society generally think is honest? What do people in society generally think is reasonable? rather than having those judgments imposed by a judge who might have different moral, ethical standards and expectations.

12:21Dr Rebecca Helm:But given the deliberations in the jury room are private and remain private, how much do we actually know about how a jury arrives at its decisions? There are ways that we can get insight into the jury process. People conduct mock jury research, where you look at how people reason about these kinds of issues. People examine the outcomes of legal cases. People also look at interviews with jurors in other jurisdictions. So in some jurisdictions like the United States, you can interview jurors about their deliberations. So we get some insight there. And we also have this basic underlying psychological knowledge about decision making and about judgments that we can draw on to try and understand what's likely to be going on in the jury room.

13:01Dr Rebecca Helm:We do, though, in this country have evidence on the other end of that argument, not empirical evidence, anecdotal evidence. but you speak to any police officer up and down England and ask them what they think about juries and whether or not in their experience they've got it wrong at some point. Every one of them will point to a case in their experience where juries made the wrong decision. I think judges make the wrong decision sometimes too and we can see that in the statistics on things like miscarriages of justice. If we look at the post office scandal, a lot of those people pleaded guilty.

13:31Some of them were convicted by juries, some of them were convicted by judges. So everyone makes mistakes, unfortunately. Sometimes that's the product of the decision maker. Sometimes that's because the wrong evidence has been put in front of them. And it's interesting because you mentioned police officers. But when you talk to defence lawyers and people who are appearing in the courts every day with their clients, they say the opposite and they really defend the right to a jury, both because they believe in that right. They think the jury is a good decision maker and because they know that many of their clients feel most comfortable with cases being heard in that way.

14:03Dr Rebecca Helm:Rebecca, why would it be preferable to have 12 lay individuals with no experience of the law interpreting that law differently from someone who has spent their entire professional career studying, practicing and sitting in judgment on the law? So what the jury does at the moment, they don't really make legal judgments. Even in jury trials, the judge will make determinations about what the law is and they will explain to the jury what the law is. What the jury are doing is they're making determinations of fact. So in relation to what happened and in relation to how the defendant's actions should be interpreted given what happened.

14:38So they're not interpreting the law. They're making findings of fact that they can then apply to the law, which is given to them by a judge.

14:45Dr Rebecca Helm:Backlog is the problem here. That is the one that has been identified by David Lammy. And look, there are many, many reasons why justice delayed is justice not served. if restricting the number of jury trials is not the answer to dealing with the judicial backlog, what is short of throwing billions at the problem? Yes, Leveson made the case very compellingly that it's too expensive to try and solve this problem by just putting more money into the justice system. So I think there's a number of things that can be done. I think the proposal to restrict jury trial in complex cases, cases involving complex financial crime that are long trials and that juries don't understand anyway is a really good one.

15:23I myself have seen cases involving financial crime that I'm sure jurors don't understand. I've seen jurors fall asleep, this kind of thing. So there are certain cases we can take away from them. I don't know that doing it based purely on sentence length is the sensible way to do it. There's also other proposals which can have the potential to reduce the backlog. So things like increased use of out-of-court disposals, where we say someone may have committed an offence, but we're not going to charge them. they're going to accept some kind of out-of-court remedy, a caution, some kind of engagement in a community program, which means that we don't have to go through the court process.

16:00And currently, they're used relatively sparingly in some places, and they could be used more. But if we can restrict the number of cases ever getting to court, that's one way to help tackle the backlog, which could be quite effective. So I think there's lots of ways of doing it, but I wonder if just taking three years is an oversimplification that lacks principle behind it.

16:21Dr Rebecca Helm:If we say that one offence merits trial by jury, isn't there a strong kind of logical argument that every offence should receive the same treatment? I think that's part of the problem here, where we have the balancing of principle and efficiency and where do we draw the line. If we look somewhere like the United States, where they do have a right to jury trial in almost every case, what we end up with is a situation in which if you want to process all the cases that you need to, you have to essentially force people to plead guilty by offering huge, huge discounts, meaning the innocent are convicted and meaning the guilty don't get the sentence they actually deserve.

16:58So there's got to be some way of processing these cases.

17:01Dr Rebecca Helm:If we're going to be talking about reform of the legal system of this kind of nature, isn't there merit in having some form of pilot scheme where we do look inside the jury rooms and we make sure that everything in there is working as it's supposed to. I think that's really important and I know that a lot of people have been advocating for the ability to get inside the jury system and better understand what the jury are doing and I know actually in Scotland they are starting to allow researchers to talk to real jurors in order to understand better what's going on particularly in cases involving sexual offences and so there's some precedent for it there even within the UK.

17:35I do think we have to be very careful. I think it's probably a step too far to say we're going to put cameras in the deliberation room, because we know that if you put cameras in the deliberation room, the presence of that camera is going to impact what people are willing to say. It's going to change the dynamics. It's going to change the ultimate outcomes. But I think a really promising place to start that makes a lot of sense to me is speaking to jurors after deliberations and saying, how did you come to this decision? What was important to you? And barring people being extremely dishonest, I think we can get a lot of insight that way without compromising what actually goes on in the deliberation room.

18:11Dr Rebecca Helm:My thanks to Rebecca and Dan, and of course to you for listening. The Sky News Daily is back again tomorrow.

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19:04Dr Rebecca Helm:I'm Ed Conway and in each episode of my new podcast Stuff Matters I take an object crack it open and reveal the world-shaping forces hidden inside This is economics told through the things we think we understand Search Stuff Matters on your podcast app to listen and follow