Jury trials no longer to decide the Truth, the Whole Truth and Nothing but the Truth

The Government has announced a raft of measures to end Jury trials for defendants in the Crown Court for more serious and complex cases such as fraud and for lower end cases with less significant length of imprisonment – 3 years or less. Such cases will determined as to guilt or innocence by a Judge, if these proposals go through.

Why The Right to a Fair Trial by Jury is being Denied: Criminals Gaming the System?

The Government suggest this is necessary to tackle the increasing backlog of cases in the Crown Court with David Lammy, our Deputy Prime Minister, Lord Chancellor and Secretary of State for Justice suggesting it will stop criminals from “gaming the system” by choosing trial by jury and thus taking advantage of the delay, now running into years, to reach a conclusion of their case.

What are the true causes of delay?

However, a detailed consideration of the causes of delay in the Crown Court dealing with its cases and the consequent increase in Crown Court backlog presents a totally different picture, one which  gives no support to justify the loss of the fundamental and centuries old enshrined right to Jury trial.

Lies, Damned Lies and Statistics

Some consideration of the Crown Court statistics from the past actually makes it clear that any proposition of it being the defendant’s fault, caused by “gaming the system” is a complete fallacy.

Crown Court statistics show an increase in Crown Court backlog from just under 41,000 cases in January 2020, at the start of the pandemic, to 74,000 cases in January 2025, thus, an increase of 33,000 cases outstanding.

However, during the pandemic the increase suffered accounted for circa 20,000 cases.  The cause of that increase, not gaming defendants, but the covid pandemic.

Barristers in 2022 took action in protest over the hugely underfunded fees in the legal aid defence scheme. This appears to have notched up the backlog by another 5,000 cases, thus 25,000 of the 41,000 increase was caused by the pandemic and industrial action.

Crown Court Sitting Days:
29% increase and Case Disposal Rates: only 17% increase.

What else has caused the problem? We need to consider Crown Court sitting days. Actually, there has been an increase in Crown Court sitting days by 29% from 2019 to 2024. However, the disposal rate was only 17% higher through this period. Why?

Cases are more complex because the Government makes them so.

One of the reasons identified for a disposal rate below sitting day rates in percentage terms is that cases are becoming more complex, a factor which clearly is not caused by the defendant. It is Government, through its instrument of state prosecution, that drives up case complexity by the way in which cases are being prosecuted. Defendants don’t decide how they should be prosecuted. It is estimated that one third of reduced disposal rate is caused by increased case complexity.

Alarming Rates of Ineffective Trials and Their Causes.

That now brings us to a consideration of “ineffective trials” which add to the backlog. National Audit Office reports identify key reasons for ineffective trials. So, in 2023 this shows:

·       Prosecution not ready (for various reasons) causing 41 % of ineffective trials

·       Court administration (for a variety of reasons) causing 26% of ineffective trials

Whilst there will always be good reasons why trials can not proceed is it really acceptable that 67% of ineffective trails are caused by the prosecution and the court administration. Against such a backdrop is it acceptable to take away the defendants right to Jury trial? 

It is actually quite discouraging to read of these reasons in such reports, for example “prosecution not ready”, “prosecution witness absent”, “over listing” by Court listing, “equipment and accommodation failure”. We can add to these percentages, interpreters not available 1%, defendant absent 21% (undoubtedly a large proportion caused by defendants not being produced from custody and defendants unfit to stand trial, no doubt through mental health difficulty and the simple fact that defendants like all of us get sick).

Investing in the Criminal Justice System: The Whipping Boy of Spending Cuts.

With so many years of cost cutting to the Criminal Justice System it must be understood that there is a price to pay one of which is an increased Crown Court backlog. Perhaps some spending on the CJ System would actually improve matters, on the Crown Court estate and equipment, on a realistic Court listing system and on a properly manged and run prosecution service. Whilst we are examining principles of fairness increased defence fees (not one only obtained by strikes) to encourage defence lawyers to work in the Criminal Justice system.

Parliament needs to Critically Examine Cause and Effect.

It is to be hoped when these proposals are scrutinised by Parliament there will be a deep dive into the true explanations for the increasing Crown Court backlog and not reliance on the political soundbites of “Criminals Gaming the System”, to reach a realisation that the answer simply does not lie in the removal of Jury trials.

Criminal Case Investigations: How long does it take?

One of the justifications for these proposed changes is the length of time a case takes to be concluded, but for this we need to consider the offence date to the final court hearing, particularly so in the more complex and difficult cases, a prime example being an allegation of rape.

Of course there should be concern felt by the public, the courts and government for victims and witnesses who face such long delays in offence resolution. Those who practice criminal law are also all too well aware that these things also weigh heavily on defendants and their families.

The problem here has to be split. How long does an investigation take from offence date to date of charging? To use that example of rape offences statistics show from offence to charge a staggering average of 423 days. An investigation on average of 423 days?

6 Months: A Realistic Time Limit for Criminal Investigations?

This side of the problem, the length of time an investigation can take is not limited in England and Wales. In Scotland the pre pandemic time allowed for an investigation was 6 months, now stretched to 12 months since the pandemic. The allegation, the offence, the charge fails currently if not prosecuted within 365 days in Scotland. 6 months was a more sensible time limit, only altered by covid impact and no doubt in due course such will be returned to.

Conclusion: The Cause lies elsewhere and not with Defendants exercising their Legal Right to Jury Trial.

So, if the government sensibly want to have a quick fix at no extra cost it should bring in an investigation time limit. It would be truly interesting to see what that would do to the delays in Criminal Justice system and Crown Court backlogs. As to our right to Jury trial which has existed in various form since the early Middle Ages this requires significant consideration through detailed and sensible analysis before this precious and long protected right is glibly thrown away by our no doubt short serving politicians of the day.  It is worth reminding ourselves that we have had 7 Ministers of Justice in the past 5 years which surely provides little us with confidence that they actually know what they are doing!