In a speech last week, the Lord Chief Justice suggested scrapping the right to trial by jury for minor offences and complex frauds. It was not the first time, and will not be the last time, that this proposal - or a variation of it - has been or will be proposed. Juries are hard to manage, unpredictable, and disrupt the trial process. So is Lord Thomas right to suggest their role should be diminished further?
There is precedent, of course, for trials without jury in the UK. 'Diplock' courts have been used in Northern Ireland since the 1970s for hearing, without juries, certain terrorism related trials, where there are concerns about jury intimidation. The same risk was recognized by section 44 of the Criminal Justice Act 2003 (CJA 2003), which came into force in 2007, which allows a judge-only trial where there is a "real and present danger" of jury tampering. In 2009 the first (and to date only) trial without jury under this provision took place. Interestingly, section 43 of the same Act, which allows trial without jury for certain fraud cases, has never been brought into force. This is indicative of the unease with which many view the notion.
The difference with Lord Thomas' proposals is that they have nothing to do with the protection of juries or the good administration of justice, and everything to do, by his own admission, with saving money. This has been something of a theme lately. The last few years have seen a range of cost saving measures in which the defendant has been the principal loser. Legal aid has been cut and made available to fewer people; the right to recover the costs of a self-funded defence on acquittal, has been all but removed; various attempts have been made to limit the right to examine material held by the prosecution; and the Criminal Procedure Rules require the defence to give ever increasing disclosure of its case in advance of trial. All these changes have a cost saving motive, either as their principal justification or in the thought process that lay behind them. Lord Thomas made the point that no matter how sacrosanct justice may be, the system must live within its means. If only this rule was applied to other areas of public spending: it was recently reported that the MoD overspent its budget by £3.1billion this year; by contrast the cuts recently announced to legal aid amount to just over £200million.
Juries matter partly because society thinks they matter. Polls routinely find that the vast majority of people think jurors are fairer than judges in deciding whether a person is guilty. It is easy to understand why. Juries don't operate in a rarified world where the principal participants wear strange outfits and use obtuse language. Their independence from the state and also the judiciary is enormously comforting. This matters because trust lies at the heart of the criminal justice system. Society trusts the courts to be fair and juries help to maintain that trust.
Actually, juries are pretty good at getting to the heart of the matter. In the majority of trials the question is not what happened but why - what was the motivation of the defendant? Was he acting dishonestly? Was his self-defence reasonable? These questions turn on how a reasonable person would behave. And who better to determine the answer than 12 reasonable people?
Sadly, the public shows little interest in the wider effects of spending cuts in criminal justice, yet proposals for fundamental change to the jury process seem to spark a wider debate. Without personal experience of the criminal justice system it is hard appreciate how significant the spending cuts have been and will continue to be. By contrast, the fundamental role of the jury is understood and well respected. Juries are hard to manage, unpredictable, and disrupt the trial process. That's the point.