If we are to at least keep the Magna Carta right to ‘judgement by peers’ we’ll need a lot more of them. Magistrate recruitment requires heavy commitment and is a tight process - only 894 got through the net last year out of 4112.
More are needed as it is.
A different net is needed. We need an ‘only for trials’ panel of magistrates. Jury criteria, trial training only, more flexible sitting arrangements, and a wider cross section. Fully trained presiding justice of course. And keep the right to appeal.
As a civil litigation practitioner for 36 years (until 2019), I regard as utterly facile the government/Ministry of Justice’s argument, in favour of judge only criminal trials, that (most) civil trials are judge only. It is a typical MoJ argument, based not on ‘justice’ but ‘efficiency’, such as resulted in the removal of the virtually unfettered right of appeal in civil cases.
Trial by a judge alone in civil trials is in many respects highly unsatisfactory, but, when it goes wrong or not well, it is someone’s money that is at stake, not their liberty - or where prison doesn’t loom, their unblemished reputation and job prospects.
The prospect of a civil case ending up before a single judge at trial, with little chance of an appeal being allowed, was a major reason why I and other practitioners would advise settlement. It was usually a lottery as to which judge would hear the case and how the judge allotted then tried it. Judges differed in approach, with some better at the job than others. The phrase ‘The Good, the Bad and the Ugly’ was often used by solicitors to explain the situation to clients. At one time in the Chancery Division, barristers would say, if they had a poor case, that at least there was the chance of a notoriously ‘rogue’ judge (now deceased) hearing the case.
Judges didn’t have to be bad to be unpredictable.
Whilst it has sometimes been doubted by lawyers, judges are human beings, fallible, with varying abilities and skills, with different outlooks and unconscious biases. Humans are not constant, varying from day to day according to their health, workload and pressures outside their work. At least one study has been done of judges’ decision making at different times of the day, the period before lunch when judges are getting hungry was identified as a bad time, as a convicted defendant, to be sentenced.
The disgraceful mess that the criminal justice system (in its wide meaning, encompassing court, prosecution and rules) made in the wrongful convictions of sub-postmasters shows that all is far from rosy in the present system, but it is hard to lay the blame for that on juries.
I have the utmost respect for Geoffrey Rivlin who I think I can count as a dear friend as well as a consummate criminal judge. However I do part company with him on the question of jury trials.
I agree with him that removing the right (and it is a right) to jury trial in the vast majority of criminal trials will make no impression on the enormous backlog of cases awaiting trial. That problem should be addressed from a different perspective: more courts, more judges and (much) more money from HMT for the criminal justice system.
I am firmly of the view that trial by jury as we currently have it, is unsuitable for the (relatively few) cases involving complex and difficult evidence or background, usually involving expert evidence . This could include serious and complex fraud but also cases of conflicting medical or scientific evidence which a lay jury will inevitably struggle with.
The complexity of the case could be considered at the case management hearing where arguments on all sides (including the alleged victim’s if Geoffrey’s arguments for more involvement of the victim are accepted) could be put before the trial judge.
Geoffrey Rivlin rightly refers to the lengthy trials he has presided over at Southwark (many of them
I suspect prosecuted by my old department). They are so lengthy because everything has to be explained from first principles to the jury and, as we know from unfortunate disclosures of jury deliberations, in the end, in not a few cases,the jury decides the case on grounds which have very little to do with the evidence.
Judges sitting alone or, my preference, with assessors, who could be JPs and/or include an expert in the field covered by the charges, would give a reasoned verdict which would give a clear basis for their decision.
He does not address the strain on a jury hearing a lengthy and I’m afraid often boring case. The Jubilee Line prosecution (CPS not SFO!) is a case in point, where the jury went on “strike” after 21 months’ hearing.
I agree entirely that trials should be shorter, plea bargains should be used more often (though Geoffrey will no doubt argue that this again disadvantages the victims) and this can be achieved by much more robust case management by the trial judge.
None of this is a reflection on the cases heard in front of Geoffrey Rivlin who was a superb judge.
(Incidentally, I am intrigued by his reference to the John Lewis option: is this “never knowingly undersold” or what? )
There is no doubt still, so many years after the Roskill report (if my memory serves me correctly), a debate to be had over dispensing with juries in fraud cases and other cases of high factual or expert complexity. But that is not what the current debate is about.
From what I have absorbed from the media (and NOT from AI, as it now seems necessary to disclaim!) Mr Lammy proposes to abolish trial by jury, in favour of a sole judge, for the sole - or highly predominant - purpose of cutting the backlog of criminal trials. He has doubled down, by not even accepting Lord(?) Leveson’s recommendation of a trial by judge with two lay magistrates. This is despite anyone with any experience of cutting court backlogs, including Lord Thomas of Cwmgydd, stating that the measure will not be of any effect and that the only way to cut backlogs is with more resources.
Having talked with lawyers with more knowledge than me of criminal justice, there are also efficiencies available such as by taking effective measures to reduce ‘cracked’ trials.
I am not unsympathetic to this government (I voted LibDem), but I really despair at the sheer incompetence they constantly show, except in international affairs for which I think Jonathan Powell is largely responsible. Their recidivism includes thinking of a policy and then choosing its most extreme form, from which they duly have to retreat, rather than adopting some moderation and common sense in the first place. It began with winter fuel and here is Lammy at it again, adopting a more extreme version of dispensing with juries than even Leveson proposed.
If we are to at least keep the Magna Carta right to ‘judgement by peers’ we’ll need a lot more of them. Magistrate recruitment requires heavy commitment and is a tight process - only 894 got through the net last year out of 4112.
More are needed as it is.
A different net is needed. We need an ‘only for trials’ panel of magistrates. Jury criteria, trial training only, more flexible sitting arrangements, and a wider cross section. Fully trained presiding justice of course. And keep the right to appeal.
As a civil litigation practitioner for 36 years (until 2019), I regard as utterly facile the government/Ministry of Justice’s argument, in favour of judge only criminal trials, that (most) civil trials are judge only. It is a typical MoJ argument, based not on ‘justice’ but ‘efficiency’, such as resulted in the removal of the virtually unfettered right of appeal in civil cases.
Trial by a judge alone in civil trials is in many respects highly unsatisfactory, but, when it goes wrong or not well, it is someone’s money that is at stake, not their liberty - or where prison doesn’t loom, their unblemished reputation and job prospects.
The prospect of a civil case ending up before a single judge at trial, with little chance of an appeal being allowed, was a major reason why I and other practitioners would advise settlement. It was usually a lottery as to which judge would hear the case and how the judge allotted then tried it. Judges differed in approach, with some better at the job than others. The phrase ‘The Good, the Bad and the Ugly’ was often used by solicitors to explain the situation to clients. At one time in the Chancery Division, barristers would say, if they had a poor case, that at least there was the chance of a notoriously ‘rogue’ judge (now deceased) hearing the case.
Judges didn’t have to be bad to be unpredictable.
Whilst it has sometimes been doubted by lawyers, judges are human beings, fallible, with varying abilities and skills, with different outlooks and unconscious biases. Humans are not constant, varying from day to day according to their health, workload and pressures outside their work. At least one study has been done of judges’ decision making at different times of the day, the period before lunch when judges are getting hungry was identified as a bad time, as a convicted defendant, to be sentenced.
The disgraceful mess that the criminal justice system (in its wide meaning, encompassing court, prosecution and rules) made in the wrongful convictions of sub-postmasters shows that all is far from rosy in the present system, but it is hard to lay the blame for that on juries.
I have the utmost respect for Geoffrey Rivlin who I think I can count as a dear friend as well as a consummate criminal judge. However I do part company with him on the question of jury trials.
I agree with him that removing the right (and it is a right) to jury trial in the vast majority of criminal trials will make no impression on the enormous backlog of cases awaiting trial. That problem should be addressed from a different perspective: more courts, more judges and (much) more money from HMT for the criminal justice system.
I am firmly of the view that trial by jury as we currently have it, is unsuitable for the (relatively few) cases involving complex and difficult evidence or background, usually involving expert evidence . This could include serious and complex fraud but also cases of conflicting medical or scientific evidence which a lay jury will inevitably struggle with.
The complexity of the case could be considered at the case management hearing where arguments on all sides (including the alleged victim’s if Geoffrey’s arguments for more involvement of the victim are accepted) could be put before the trial judge.
Geoffrey Rivlin rightly refers to the lengthy trials he has presided over at Southwark (many of them
I suspect prosecuted by my old department). They are so lengthy because everything has to be explained from first principles to the jury and, as we know from unfortunate disclosures of jury deliberations, in the end, in not a few cases,the jury decides the case on grounds which have very little to do with the evidence.
Judges sitting alone or, my preference, with assessors, who could be JPs and/or include an expert in the field covered by the charges, would give a reasoned verdict which would give a clear basis for their decision.
He does not address the strain on a jury hearing a lengthy and I’m afraid often boring case. The Jubilee Line prosecution (CPS not SFO!) is a case in point, where the jury went on “strike” after 21 months’ hearing.
I agree entirely that trials should be shorter, plea bargains should be used more often (though Geoffrey will no doubt argue that this again disadvantages the victims) and this can be achieved by much more robust case management by the trial judge.
None of this is a reflection on the cases heard in front of Geoffrey Rivlin who was a superb judge.
(Incidentally, I am intrigued by his reference to the John Lewis option: is this “never knowingly undersold” or what? )
There is no doubt still, so many years after the Roskill report (if my memory serves me correctly), a debate to be had over dispensing with juries in fraud cases and other cases of high factual or expert complexity. But that is not what the current debate is about.
From what I have absorbed from the media (and NOT from AI, as it now seems necessary to disclaim!) Mr Lammy proposes to abolish trial by jury, in favour of a sole judge, for the sole - or highly predominant - purpose of cutting the backlog of criminal trials. He has doubled down, by not even accepting Lord(?) Leveson’s recommendation of a trial by judge with two lay magistrates. This is despite anyone with any experience of cutting court backlogs, including Lord Thomas of Cwmgydd, stating that the measure will not be of any effect and that the only way to cut backlogs is with more resources.
Having talked with lawyers with more knowledge than me of criminal justice, there are also efficiencies available such as by taking effective measures to reduce ‘cracked’ trials.
I am not unsympathetic to this government (I voted LibDem), but I really despair at the sheer incompetence they constantly show, except in international affairs for which I think Jonathan Powell is largely responsible. Their recidivism includes thinking of a policy and then choosing its most extreme form, from which they duly have to retreat, rather than adopting some moderation and common sense in the first place. It began with winter fuel and here is Lammy at it again, adopting a more extreme version of dispensing with juries than even Leveson proposed.