Is jury trial at risk?
Justice minister explains why it should be enshrined in legislation
Why does the government believe “there may be scope to recognise trial by jury” in the bill of rights that the justice secretary wants to introduce?
No explanation was offered in the consultation paper that Dominic Raab published in December. Because he no longer holds media briefings in the way that previous justice secretaries did, we had no way of finding out.
Until, yesterday, that is, when Raab’s junior minister, Lord Wolfson of Tredegar QC, appeared before parliament’s joint committee on human rights.
This was the pithy question he was asked by Lord Singh of Wimbledon:
Does the government intend to make any changes to the existing rights to jury trial? Or will it remain exactly the same? If it remains exactly the same, what’s the point of including it within the bill of rights?
Wolfson began by confirming that the government was not proposing any change to jury trial in any part of the United Kingdom.1 What, then was the point?
There had been challenges to jury trial in Strasbourg,2 Wolfson explained. They had failed — so far. But, he added, the concept of jury trial was “somewhat unusual” in many of the 47 states that had signed the European convention on human rights:
A lot of lawyers in other convention states would find it unusual that people without legal qualifications decide on guilt or innocence; that they do so secretly; that they do not provide reasons.
What the minister seemed to be saying was that the human rights court might be asked to rule on the lawfulness of jury trial at some point in the future. In the meantime, the government wanted to give it statutory protection.
There is obviously nothing in the human rights convention that bans jury trial as such. Article 6 of the convention merely requires “an independent and impartial tribunal”. To suppose that the Strasbourg court would overturn a system that has been used in the UK for centuries strikes me as more than a little paranoid.
On the other hand, I can’t see any harm in putting it into legislation in its current form. Though it couldn’t prevent an adverse finding, it might make Strasbourg think twice. I just wish the government had explained this in its consultation paper.
Some of Wolfson’s answers were less persuasive. The government wants to encourage UK judges to take what I described as an originalist or literal interpretation of the European human rights convention, trying to work out from the travaux préparatoires what the framers intended it to mean more than 70 years ago.
Angela Richardson, Conservative MP for Guildford, asked how the government would avoid a “regression in human rights protection” if it adopted an originalist approach to convention rights.
It took Wolfson a moment to pick up the point, perhaps because “originalist” is a slightly pejorative term that the government would prefer not to use. Was she referring, he wondered, to the “living instrument” doctrine, that — in the government’s words — allows the Strasbourg court to keep up with changes in society?
This doctrine was, he accepted, at the heart of Strasbourg jurisprudence — though it was not mentioned in the convention itself. He insisted that there would be no regression in human rights protection.
Richardson, like most members of the human rights committee, was not in a position to explain her question and so it was left to Joanna Cherry QC MP, who chaired the meeting,3 to ask all the unscripted follow-ups.
The SNP MP also picked up on the comments made to the Commons justice committee on Tuesday by Sir Peter Gross, who chaired the recent independent Human Rights Act review.
The former appeal judge was asked directly whether Raab’s consultation paper had been a “response” to his report.
“No,” Gross had told MPs. “We knew that the current lord chancellor intended to go wider than our report… What we didn’t know was that it wasn’t going to be what I would call a responsive document.”
As Gross explained, his review had made a significant number of recommendations that were simply not addressed by the government. “Those are quite significant.”
Wolfson rejected that criticism:
The consultation we’ve put out takes full account of the recommendations of the review. Sometimes we’ve consulted on things which go beyond their terms of reference. Sometimes, we’ve added options to options they’ve suggested. But I think when you read our consultation against the backdrop of the review you'll see that we’ve considered everything they’ve said, extremely carefully.
They may have done so. But it’s certainly not obvious from reading the government’s paper. Ministers are entitled to reject Gross’s recommendations, ideally by giving reasons. But to ignore many of his proposals was the height of discourtesy. As Gross pointed out, Raab’s predecessor Sir Robert Buckland had replied point-by-point to an earlier report on judicial review by Lord Faulks QC.
All in all, though, it was a good-natured session. We have a better idea of what the government is trying to do, even if we don’t agree with it. And Wolfson seemed genuinely keen to know how people would respond to the proposals.
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Jury trials are a long-standing feature of Scottish criminal procedure, but there is no right to a trial by jury as such. Whether a trial will take place before a jury will generally depend on statutory provisions and the decision of the prosecutor.
Harriet Harman QC MP, the committee’s chair, had been in the chamber an hour earlier to respond to tributes from other members to late husband, Jack Dromey MP.