The British Need a Sixth Amendment, Badly

The justice minister wants to cut the backlog in pending legal cases before the crown court by watering down the idea of justice in England – he believes his new “swift courts” are the answer.

Lammy said the Labour government will place thousands of accused in front of a single legal counsel adorned with the wig of a judge and authority of a jury.

The push back has already begun. His opposite number, shadow justice secretary Robert Jenrick, reacted to the scheme admonishing that if it was allowed to proceed, it would be “the beginning of the end of jury trials.” He further criticized the Starmer government for being so solicitous of the rights of illegal migrants while dismissing 800 years of English jurisprudence and a check on state power.

Under the proposals, only the most serious offenses such as murder, robbery and rape would continue to be tried by a jury. Most other cases (which constitute the vast majority) would be heard by a single judge alone.

Yet, the evidence suggests that jury trials are not the primary cause of the current backlog. Crown court backlogs began rising sharply in 2017, driven by years of budget reductions, court closures, maintenance backlogs and limits on the number of days courts were permitted to sit. However, the backlog has not fallen below 35,000 since 2000.

There is currently a record backlog of over 78,000 crown court cases.

Addressing the House of Commons this past week, the justice minister announced, “I will create new “swift courts” within the crown courts with a judge alone deciding verdicts in triable either-way cases with a likely sentence of three years or less.” He claimed these would “deliver justice at least 20 per cent faster than jury trials.” More importantly, these changes would be “hardwired,” indicating these actions are not temporary fixes – they are intended to be permanent.

Lammy defended his sweeping change as absolutely necessary in the face of an “emergency” which threatens “a total collapse of trust in the justice system.”

The justice minister insisted, in fact that he commanded a greater understanding of Magna Carta than his critics. In speaking to The Times, he said that while much attention was given to article 39 -- no free man shall be imprisoned “except by the lawful judgment of his peers or by the law of the land” -- less consideration was given article 40, which states the government shall not “delay right or justice to anyone.”

The problem with such logic is that the government is obligated to do both; in placing his emphasis on article 40, is Lammy arguing that speed of justice is more important than the quality of justice?

Rising to address the changes proposed in Parliament, Conservative shadow justice secretary Robert Jenrick defended Magna Carta and brought to bear the historic circumstances of its creation on that of England today. He said abolishing trial by jury will not solve the problem with the justice system, noting that court rooms stand empty this very day. He said: “and why? Not because there are too many juries, but because the justice secretary won’t fund the sitting days.”

“Had he done so, the backlog would have shrunk by up to 10,000 cases, while it actually rose this year. The truth is scrapping juries is a choice. This government found the money to bear down on the backlog of asylum claims, it could find the money to spend more on benefits, just not to fund the courts…why does this justice secretary think he has a mandate to rip up centuries of jury trials…? In his twisted logic he says he’s scrapping juries to save them. But be in no doubt, if the justice secretary gets away with this, it’s the beginning of the end of jury trials.”

The Conservative shadow justice secretary rightly ended his critique of the government’s shameless scheme with his remarks about Britain’s migrant crisis. It seems the government has been able to find considerably more money for asylum seekers in its budget but not for opening more courts. Jenrick remarked: “he [Keir Starmer] defends [migrant’s] rights under the ECHR but not [Briton’s] rights under Magna Carta, and for what?”

“Rachel Reeves is able to find £16billion out of British taxes for benefits, and billions for illegal migrants who broke into the country on small boats - it's the wrong priorities,” Jenrick added.

The right to be tried by one’s peers has deep roots in the legal tradition of England and Wales. Its origins trace back to Magna Carta in 1215, which promised that no one would lose their liberty or property without “the lawful judgement of his peers and the law of the land”.

The judge and legal philosopher Lord Devlin described trial by jury as “the lamp that shows that freedom lives”. It is a symbolic cornerstone of justice in England and Wales.

Legal groups expressed concern about the right being undermined.

The Law Society of England and Wales said the proposals “go too far in eroding our fundamental right to be judged by a jury of our own peers.”

Riel Karmy-Jones, chairwoman of the Criminal Bar Association, said: “It is not juries that cause delays. Rather, it is all the consequences of the years of underfunding that look set to continue.”

I confess, I am a “Yank.” And the view from the other side of the Atlantic is this: The Labour government’s even partial abolition of trial by jury is not only unnecessary, it is a dangerous precedent to anyone who values what we of a more Conservative orientation in America cherish about the US Constitution – its Bill of Rights – among which is its Sixth Amendment: ..”the right to a speedy and public trial by an impartial jury of one’s peers."