The Labour-led British government is currently attempting to hollow out one of the most ancient pillars of English constitutionalism: trial by jury. Under the planned reforms, trial by jury would continue to exist in England and Wales for certain types of crimes, but its use would be significantly curtailed.
For example, according to a government press release issued earlier this month (https://www.gov.uk/government/news/swift-and-fair-plan-to-get-justice-for-victims), new “Swift Courts” will assign cases “with a likely sentence of three years or less” to be heard by “a Judge alone.”
Being an ancient institution that evolved gradually over the course of a millennium, a significant restriction of jury trials would have unpredictable effects on the justice system.
We simply do not know with any reasonable degree of confidence how, over the medium and long term, such a move would alter the incentives of prosecutors, change pattern of conviction for different offences, or affect public perceptions of the justice system.
What we do know is that it would constitute a dangerous and wholly unnecessary constitutional experiment, eroding one of the most time-honoured bulwarks of civil liberty. It is also worth noting that, according to an analysis published by the Free Speech Union drawing on Ministry of Justice data (https://freespeechunion.org/jury-trials-court-data-analysis/?v=7885444af42e), overall acquittal rates are much higher in jury trials than in magistrates’ courts (21.6 per cent versus 11.4 per cent), and that this difference also holds for speech-related offences in particular (27.6 per cent versus 15.9 per cent).
Assuming these figures are accurate, citizens are likely to be far more vulnerable to prosecution and conviction if trial by jury is substantially weakened or displaced.
Trial by jury has long been praised by generations of learned and respected scholars of law and democracy as a cornerstone of a free society. Alexis de Tocqueville, whose Democracy in America (1835–40) offers one of the most incisive reflections on the strengths and weaknesses of modern democracy, observed that “the jury… is the most energetic means of making the people rule, [and] is also the most effective means of teaching it how to rule well.”
The same view runs through the English legal tradition. The seventeenth-century jurist Sir Edward Coke insisted that no Englishman could be lawfully condemned “but by the lawful judgment of his peers.”
In the eighteenth century, Sir William Blackstone likewise described trial by jury as “the glory of the English law” and “the most transcendent privilege which any subject can enjoy,” emphasising its role as a vital shield between the individual and arbitrary power.
If marginal reductions in the length of trials are regarded as a sufficient justification for tinkering with this bastion of the legal order, then there is little reason not to subject the entire constitutional order to an “efficiency” test. If a few days or weeks can be shaved off this or that legal procedure, why not engage more broadly in constitutional engineering?
But this is a cheap and shallow argument. To begin with, we should not be so sure of our own understanding of the mechanics of such a complex and evolved order, nor should we be so confident that we can predict the short- and long-term impact of our well-intentioned meddling.
Equally importantly, those who take a revolutionary pickaxe to the constitutional edifice destabilise public expectations about the basic rules of the game. In doing so, they open the door to political opportunists who would happily overturn the rules and conventions that keep citizens free in order to advance their own careers or curry favour with party bosses or the fickle tides of public opinion.
The outcome of happy-go-lucky constitutional engineering is that citizens are perpetually vulnerable to political fanaticism. And not just any old fanaticism, but the sort that dismantles or radically alters fundamental constitutional rights such as privacy, freedom of speech, or the right to be tried before one’s peers.
Sadly, the move against jury trials is not an anomaly. Rather, it reflects a growing trend among modern governments and legislators – not only in the United Kingdom, but in many other places – to assert their own authority over the constitutional order in exaggerated and destructive ways.
Instead of recognising that they are standing on the shoulders of giants and acting as humble stewards of an ancient tradition of ordered liberty, whose inner workings have evolved gradually over countless generations, legislators and government ministers have gotten it into their heads that they are can stand majestically above the constitutional order and remake it at will, as one might re-arrange one’s bedroom.
In doing so, they appear to have forgotten that there is a law which binds the King and cannot be unmade by him, as the Magna Carta famously recognises.
Budding constitutional reformers would do well to pay heed to Lord Patrick Devlin’s warning that “the first object of any tyrant… would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for it is the lamp that shows that freedom lives.”