Don’t let Lord Devlin’s lamp of freedom be extinguished under cover of Covid-19

As Lord Devlin famously said in his book Trial by Jury: “The first object of any tyrant in Whitehall would be to make parliament utterly subservient to his will; and the next to overthrow or diminish the right to trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of 12 of his countrymen.”

In tomorrow afternoon’s session of the House of Commons Justice Committee the Lord Chancellor gives evidence on “Coronavirus: The impact on prison, probation and court systems”. It should be required viewing for all of us.

Given recent statements by the Lord Chief Justice, the Lord Chancellor and others, the evidence to be given tomorrow merits the closest of attention. For make no mistake, the future of trial by jury as we know it hangs in the balance. The huge backlog of over 40,000 cases in the Crown Courts is an enormous threat to our system of criminal justice. Delaying cases by years is no solution for victims, defendants, witnesses and the public. The existing socially distanced courts are not enough to cut the growing backlog.

The answer for some is to implement the previously unthinkable and politically unsayable solution but right now is a convenient time. To suspend jury trial for all less serious criminal cases and reserve it for the most serious like murder and rape. The spectre of trial by judges with two magistrates now looms large; a pragmatic response it may be, but one which is surely unacceptable when other solutions are on the table. It will also prove hugely problematic in itself with shortages of magistrates willing to travel and sit long hours in court and a mountain to climb in terms of public confidence in trial by largely white, male, middle class tribunals. As it is there are very few magistrates now; 43% fewer than in 2012. Recruiting a lot more magistrates to perform unpaid service as lay members of a criminal court is not going to be easy and will take a long time.

Ahead of its time it may be but the law reform group JUSTICE recently conducted its fourth successful virtual jury trial with a platform developed by AVMI the court technology provider. The jury were all in a south London polling station and the pilot was supported by Her Majesty’s Court Service using real court staff, local jury members, a judge, advocates and a live link to a defendant in a real prison. It all worked and the academic evaluation is here for all to see.

This innovative solution deserves full government and opposition support. The professions must step up and back it as well. It can only form one part of the response to the backlog but it does work and can be rolled out nationally in a cost effective way in short order. If the Commercial Court can hold major trials using video technology as it is now doing, the criminal courts can adapt as well. Let’s hope that everyone with an interest in keeping Lord Devlin’s lamp of freedom alight is watching the Lord Chancellor tomorrow and hoping that he steps back from suggesting that even a temporary suspension of jury trial is acceptable. We all know where such a change will lead.