The UK justice minister, David Lammy, told parliament last Tuesday that the government is minded to remove the right to jury trial for all offences for which the sentence was likely to be less than three years.
In the world of practical justice, however, judges reign supreme and, as they are great supporters of jury trials, it ain’t gonna happen. Judges would rather not decide facts in criminal cases – for which they will have to give reasons. They prefer leaving 12 members of the public chosen at random to decide the guilt of accused persons.
Judges have a heavy workload without the added burden of having to give reasons for finding defendants guilty or not – juries do not have to give reasons. The workload includes a lot of pre-reading, conducting trials, ruling on issues of law and procedure, summing up the law and the evidence – with many directions given in writing – and passing sentence when defendants are convicted.
The strength of the jury system is the collective judgement of 12 people who have to be sure of guilt, which is superior to the judgement of a single judge. Truth to tell, judges become case-hardened, whereas jurors come to cases fresh without baggage.
The proposal to restrict jury trials put forward by the government is as wide-ranging as it is unnecessary. The less than three-year limit casts a much wider net than appears at first glance since it is not for offences for which the maximum is three years imprisonment, but for offences a judge rules are likely to attract a sentence of less than three years.
Interestingly, the fact that a judge rules that an offender is likely to be sentenced to less than three years will not bind the judge who tries the case to pass a sentence of less than three years. If the facts revealed after trial warrant a higher sentence, the trial judge will no doubt impose the sentence that fits the crime, but it would not seem fair if it is much higher than three years.
Lammy’s statement was inspired by a review of the administration of criminal justice by a retired criminal appeal court judge, Sir Brian Leveson, appointed in December 2024 by Lammy’s predecessor, Shabana Mahmood, to report and make recommendations on how to reduce a huge backlog of 80,000 jury trials that has accumulated in the criminal courts in England and Wales.
Cases entering the system now are unlikely to be heard until 2029 which would be in breach of the right to trial within a reasonable time required by the European Convention on Human Rights (ECHR).
Leveson reported in June 2025. He identified a number of reasons for the current pressures: underfunding and underinvestment in the criminal justice system; longer trials caused by high quality evidence from smart phones, computers and DNA analyses; and the closedown of the system during the Covid 19 pandemic 2020-21.
He made a number of recommendations to reduce the current backlog including restricting trial by jury, although he was aware this would not reduce delays directly. Defendants whose trials form the backlog cannot be deprived of their right to jury trial retrospectively. Such a course would be in breach of the rule against retrospection whereby under British constitutional practice citizens are not normally deprived of rights acquired prior to changes in the law.
As fewer jury trials would enter the system under the proposed restriction on trial by jury, they would reduce the rate at which the backlog is increasing but not the size of the backlog itself.
Leveson made a number of practical recommendations that unlike restricting trial by jury, address the backlog directly and could be implemented immediately without the need for legislation.
Opportunistically the government chose to restrict jury trials on the back of the impact of delays to victims of crime even though the other recommendations are more likely to reduce delays. For example, he recommended that the police, the prosecution service and the ministry of justice could identify cases in the backlog that lend themselves to out of court resolution.
Out of court resolution suits minor acquisitive offences like petty theft, minor drugs offences and anti-social behaviour that are best dealt with by other means than punishment after conviction – cautions, fixed penalties and community resolution including restorative justice and attendance at drugs rehabilitation centres are more successful in crime prevention and a lot more humane.
Another important recommendation he made that can be done immediately by a change in practice would be to make advance indication of sentence by judges automatic irrespective of a request from the defence. Provided this is done carefully, guilty defendants told they will not get a custodial sentence are likely to plead guilty and significantly reduce the backlog.
For the same purpose Leveson proposes the discount for guilty pleas to be increased from 30 per cent to 40 per cent that would also serve to reduce the backlog as it would tempt a significant number of defendants to plead guilty.
On the supply side of the problem, Leveson recommended an increase in the number of judges, court rooms and sitting days per year from 110,000 to 130,000, all of which would reduce the backlog.
Another recommendation that would help free up judicial time and courtroom space is to remove the automatic right of appeal by way of a rehearing to the higher criminal courts from decisions of magistrates by requiring such appeals to be brought after obtaining permission to appeal on specific grounds.
It was an embarrassing volte-face by Lammy as he had as recently as 2020 said the criminal trials without juries were a bad idea. Who would have thought that a Labour government led by a radical barrister and a black justice minister would propose to restrict jury trials in criminal cases in England?!
