The British Right must be honest about the state of jury trials
200 years of decline and counting
“The right to trial by jury is an important factor in the delicate balance between the power of the state and the freedom of the individual.”
– Sir Keir Rodney Starmer, 1992[1]
From the relative safety of Beijing, the Prime Minister last week doubled down on his commitment to severely reduce the right to trial by jury in Britain.
Although he faces a growing rebellion among his own backbenches over the matter, opposition to these reforms has been led by the British Right. But while there has been much good intent, and more than a little grandstanding about Magna Carta, there has been far less discussion about both the modern realities of the system and how it has changed over not just the past few decades but the past two centuries.
For instance: although there is no polling on this question, if you asked the public what percentage of criminal cases they think are decided by jury, most would probably guess far higher than the reality: fewer than 10%, with only serious crimes falling within their remit. And there can be no denying that the system has undergone quite a shift over the past sixty years, both due to reform and wider social and political changes. After all, you don’t even have to be British to serve on a jury in Britain any more.
Although their principles are correct, and Labour’s motives highly questionable, the Right risk falling back into the habit of defending a “Rolls Royce” institution without looking at what it has actually become. If they cared to look under the bonnet, they would find a system that has been falling into disrepair for some time and is in need of serious intervention.
So, while the British Right should use this opportunity to defend this constitutional tradition, it should be forthright about the past and present state of jury trials. What’s more, if it is serious about retaining and reviving jury trials, it should also look to restore the discarded elements that have made jury trials the glory of the English law.
The 200-year decline of the jury trial
It would be disingenuous to claim that the Government is currently planning to abolish jury trials entirely—though you would be forgiven for thinking so, given the pushback they have received.
The Justice Secretary’s reforms to the jury system are informed by Sir Brian Leveson’s review into the state of the Criminal Courts which, like much of Britain’s criminal justice system, find themselves under immense strain.
Leveson put forward several recommendations for optimising court processes, reducing caseloads, increasing court sitting days, and so forth. His most provocative recommendation was the creation of a new division of the Crown Court, the Crown Bench Division, in which serious criminal cases with a likely sentence of three years or less would be heard by a judge and two magistrates without a jury.
David Lammy, the Justice Secretary, has accepted much of Leveson’s report and in some cases gone further. The Government has announced there will be new “swift courts”, establishing the new Bench Division to see cases with a likely sentence of three years or less. But they have guaranteed that jury trials will continue for the most serious offences, such as murder, rape, aggravated burglary etc. What the Government is proposing is not abolition, but that fewer cases should involve juries and instead be seen by magistrates’ courts or the new Bench Division.
Despite the uproar at Lammy’s proposals, there is significant precedent for them.
The role of the jury in Britain’s legal system is grounded in centuries of practice and can arguably trace its roots back to Magna Carta, if not further. Many have traced its emergence over the past thousand years of English history—Ed West has an excellent primer on his Substack.
Yet the system has already previously undergone major reform along the lines proposed by Lammy. At the start of the nineteenth century, trials for most criminal offences, including all felonies and serious misdemeanours, involved a trial on indictment before a jury.[2] The most common indictable offence at this time by far was larceny, with a court return from 1838 showing that of 23,094 persons committed for trial, a total of 15,915 or 69 per cent had been charged with some form of larceny.
However, growing case numbers were starting to put serious pressures on the justice system— a problem not too dissimilar from our contemporary woes. The preference for pre-trial detention over bail meant that more suspects were being detained for longer periods of time. The expense of criminal trials was also rising, with counties paying one-fifth of the country rate (a partial precursor to Council Tax) to the payment of prosecution expenses in 1834. By the late 1840s the Treasury, which had taken over covering these costs, was spending an eye-watering £400,000, roughly one percent of the total expenditure of the state.[3]
Unsurprisingly, pressure grew to transfer some of the burden from juries to judges in the Summary Courts. Yet despite the above defects being widely acknowledged, proposals to transfer jurisdiction met with stubborn opposition. The arguments were manifold. The quality of justices varied, with many qualifying by virtue of property ownership and having no legal training. There was also a perception that justices favoured harsher sentencing practices, known as the ‘Justices’ justice’. To address these concerns, reformers suggested that expanding summary jurisdiction include several safeguards, such as ensuring that the power of the Summary Courts should only be exercised by two or more magistrates, or that penalties imposed by justices could be limited to six months imprisonment.
Legislative reforms also contained provisions allowing a defendant to object to a summary trial. Provisions in the Criminal Justice Act 1855 required a justice to specifically ask a defendant whether they objected to a summary trial, a system which evolved into our modern category of ‘either-way’ cases (crimes triable in either magistrates’ or Crown Court).
Despite opposition, and the fear that, in William Blackstone’s words, “the new and arbitrary methods of trial… may in time imperceptibly undermine this best preservative of English liberty”, the Criminal Justice Act 1855 passed.[4] A year later, committals for trial by jury had dropped by 25%, with most of the decline being due to a drop in committals for larceny. Between 1855 and 1900, annual committals for trial more than halved.[5]
The legal scholar Douglas Hay noted that “from being the epitome of English criminal law in the eighteenth century, the jury trial became the little used symbol of it in the nineteenth”.[6] The decline in the use of jury trials has continued to present day, with around 90 per cent of all criminal cases now being handled by the magistrates’ courts.[7]
What should contemporary conservatives make of this historical precedent? The broad tone of opposition to the Justice Secretary’s proposed reforms today (proposals in step with frustrated party ambitions dating all the way back to the first Blair premiership) is that they are an unprecedented assault on ancient rights, and merely the next step in a thirty year project of Blairite constitutional vandalism. Yet this position is hard to sustain given that the biggest blow to the widespread use of trial by jury was struck not by David Lammy but by Lord Palmerston.
One is of course free to argue that the mid-nineteenth century criminal justice reforms were a reckless act of Whiggish innovation, and that we must turn the clock back to restore a judicial settlement which even most of our great-great-grandparents were not old enough to have known. Stranger reforms have happened. But no one is served by ignoring the fact that jury trials have not merely been in decline since 1997, but since the mid-1800s.
Juries and liberty
The greatest argument for the retention (or revival) of jury trials is that jurors are a check against tyranny. In William Blackstone’s view, the jury operates as an essential guardrail “between the liberties of the people, and the prerogative of the crown.”[8] Given that juries are not permitted to give reasons for their verdicts, they may also act as a counterweight to the supreme authority of Parliament, by offering perverse verdicts based on believing the law to be unjust. This is more commonly known as ‘jury equity’ and may explain a bizarre recent LBC clip which circulated in the wake of Parliament’s debate of the jury reforms, in which a former juror offers his own experience of delivering a questionable verdict as evidence for why normal members of the public should not be allowed on juries.
Jury equity has been practiced since the times of the Bloody Code, England’s unduly harsh legal system in the sixteenth to eighteenth centuries in which some minor offences were punishable by death. As such, juries often deliberately gave false verdicts to avoid capital sentences. Nowadays this seems more common in cases related to drugs or activist protests, where a jury may choose to acquit a defendant, despite obvious evidence of guilt, on the basis they believe the sentence is too harsh. This represents a modern sense of the ‘reasonableness’ that sustains confidence in the system, a way of protecting against the worst impulses an overbearing state or the tyranny of an officialdom that thinks it knows best.
Though imperfect, trial by jury remains a remarkable English mechanism for balancing liberty against justice, developed through centuries of practice. But the strengths of the mechanism rest on the virtues of its most important component: the jurors themselves.
The changing composition of the jury
Today, we imagine that a jury’s ability to safeguard against tyranny stems from an egalitarian approach to jury selection: twelve members of the public, chosen at random, is surely as good a chance at impartiality as one can imagine. 12 Angry Men has done a good deal to shape the public imagination here, on both sides of the Atlantic.
Yet this is not at all how the virtues of the jury were historically understood. Until surprisingly recently, significant restrictions on jury selection existed, and these restrictions were seen as safeguarding the efficacy of the jury system.
For Blackstone, a panel of jurors were “freeholders, without just exception, and of the visne or neighbourhood; which is interpreted to be of the country where the fact is committed.”[9] That is, they had to be local property-owners. The idea that participation in a jury was dependent on certain qualifications was important, stemming from the Glorious Revolution and the English Bill of Rights which, among other things, reaffirmed that jurors ought to be freeholders particularly in trials of high treason.
Today, in an egalitarian age, we balk at such restrictions; they seem to do precisely the opposite of safeguarding justice. Many write them off as the property-owning elite rigging the system in their favour, or as hurdles which had to be overcome on the long march toward true equality, much like suffrage gradually expanding through property-owning men, to property-owning women, and eventually to all adults. Yet this was not at all how English history saw the system, and it need not be how we see it either.
Restrictions were based on the belief that “partial corrupt and unqualified persons” were serving on juries, and that freeholders with a stake in their community (property or land ownership) would be less susceptible to the influence of the Crown. [10] Property ownership or similar was a guard against vested interests, not a temptation toward it. A stake in society was understood to incline one towards society’s just maintenance.
Curiously, during the same nineteenth-century period in which jury trials declined due to the professionalisation of the judiciary and a growing belief in its independence from the Crown, the pool of potential jurors massively increased due to the expansion of the franchise. The Juries Act 1825 permitted some leaseholders to sit on juries, though restricted service to natural born subjects of the Crown. Almost a century later, the Sex Disqualification (Removal) Act 1919 made women eligible. The Criminal Justice Act 1972 widened general eligibility for jury service to include virtually all registered voters, while the Juries Act 1974 consolidated the law regarding jury service and qualifications, whose provisions largely hold to this day.
Moreover (and to the surprise of many today), up until the introduction of the Criminal Justice Act 2003, several parts of society and professions were excluded from jury service, such as the clergy, professionals in the criminal justice system, medical professionals, members of the armed forces, staff of the Royal Household, and excise officers. The basis for this was that their relation to the Crown or professional expertise might unduly influence jury deliberations.
The composition of the modern jury is quite radically different from what it would have been only fifty years ago. In the words of legal philosopher and English High Court Judge Lord Devlin, writing in 1956, the English jury was “predominantly male, middle-aged, middle-minded and middle-class”.[11] This reflected the composition of a class of people who by virtue of their qualifications—a certain status and stake in society—could be trusted to deliver reasonable verdicts while acting as a bulwark against state overreach when necessary.
But times have changed, dramatically so. Even in Devlin’s day debates about juror eligibility concerned themselves with, like so many other facets of English life, the impact of the demographic changes precipitated by England’s post-war immigration boom.
Prior to the War, questions concerning the nationality and citizenship of jurors were basically moot due to the lack of foreigners residing in England, while the provisions in the Juries Act 1925 were satisfactory for the few imperial subjects that might find themselves on an English jury. However, the influx of foreign and Commonwealth citizens with the intention of taking up permanent residence in England raised questions over their suitability to participate in jury service.
In 1965, Harold Wilson ordered an inquiry into the jury service, focusing on the current practices in the system, qualifications of jurors, and exemptions. On the question of citizenship, the Morris Report recommended to exclude people who had not been residents of the United Kingdom for a continuous period of at least five years, and to exclude recent arrivals from the Commonwealth and Ireland. This was done on the basis that they were “considered as a class not to be satisfactory jurors because of their lack of contact with the English way of life”.[12] For ‘aliens’ (i.e. non-Commonwealth foreign citizens) the exclusion period was ten years.
The five-year residency requirement put forward by the Morris report forms the basis of contemporary jury requirements. But the large-scale demographic shifts facilitated by mass migration since then have both brought into question what the “English way of life” might be and self-evidently increased the number of people in the country who lack contact with it.
Previous generations understood the need to impose some level of qualification on who could sit on a jury—principally those with a stake in society, the most obvious manifestation of which is the ownership of property. Given this fact, and the widespread acceptance that juries do nullify verdicts when they believe a sentence may be too harsh, the idea that jurors might exhibit prejudice in their judgement is not altogether unsurprising. It stands to reason then, that jurors may also exhibit certain cultural, racial, or ethnic prejudices in their judgement. In the words of Lee Kwan Kuan Yew, “the Anglo-Saxon tradition of trial by jury may be good for Anglo-Saxons or the descendants thereof. It never really worked for non Anglo-Saxons.”[13]
David Coates has written about jury reliability and race, highlighting what little official data there is. Coates notes that in 2007 the Ministry of Justice published a report determining some evidence of a racial split in the likelihood of different jurors choosing to acquit or convict a defendant:
The huge gulf is between BME jurors when reviewing a white or a BME defendant, where the conviction rate ranges considerably (73% to 24%). When looking specifically at ABH (actual bodily harm) cases, the study discovered that white jurors had low conviction rates for both white and BME defendants (35% and 27% respectively). By contrast, BME jurors had a high conviction rate for the White defendant (71%) and a low conviction rate for the BME defendant (17%).
As mentioned earlier, Singapore chose to scrap the use of jury trials on the basis that they were seen to be unworkable in multicultural and multiethnic societies. The infamous differences in racial reactions to the OJ Simpson case in the USA are perhaps the most prominent example of this dynamic manifesting in the West.
As multiculturalism has considerably altered Britain’s own demography, it too must now contend with the question of how jurors might pass judgement based on a common understanding of an English (or British) way of life.
Lammy’s reforms
There can be no doubt, then, that the nature and role of jury service in the criminal courts have undergone a substantial transformation over the past two hundred years. However, bar the almost total relaxation of juror qualifications, reformers have been sensitive to the possibility of judicial overreach and strove to build safeguards into the system. These rested on:
The right of a defendant to opt for a jury trial for serious offences.
Ensuring that summary power rested with more than one justice.
Limiting the penalties that summary justices could impose.
Under Lammy’s reforms, even these safeguards will be eroded. The proposed new Crown Court Bench Division will enable cases to be heard by a single judge. Magistrates will have the power to hand down sentences of up to two years. The number of ‘either way’ cases will be curtailed, with the courts having greater powers to decide where cases are heard, rather than the defendant.
Given that Lammy has confirmed that jury trials will remain for the most serious offences (murder, rape, etc.), which offences are likely to caught up in these curtailment reforms? As noted, most ‘either-way’ offences will be covered, such as theft, fraud, actual bodily harm (ABH), possession or supply of drugs, possession of an offensive weapon, dangerous driving, and possession of indecent images. For these offences magistrates will handle simpler cases while more complex cases will be seen by the new Crown Court Bench Division. Lammy has also decided that judge-only trials will be used for “technical and lengthy fraud and financial offences”, on the justification that they take up significant amounts of court time.
Other offences that are likely to be caught up in the reforms are free speech related. Sending grossly offensive messages, using threatening or abusive language, harassment, and hate speech (largely stemming from the Public Order Act 1986, Malicious Communications Act 1988 and Communications Act 2003) will also shift to being magistrate only. The inclusion of these offences in Lammy’s reforms has caused particular concern on the right of British politics, due to the ongoing reality of the state’s two-tier approach to justice and its censoriousness toward free speech, particularly online. This is perhaps where the British Right would do well to target their energies as they oppose Lammy’s reforms.
In abrogating these safeguards, Lammy will expand the power of the ruler over the ruled in what can only be characterised as constitutional vandalism.
A bulwark of our liberties
It is worth reiterating the remarkable nature of the jury trial as a mechanism for balancing liberty against justice. In general, the system has worked because English subjects felt that jurors could act as a check against the potential tyranny of the Crown and the biases of elite judges but could also deliver reasonable verdicts given their duty as members with a stake in society.
But as it stands, the jury system is under attack from two sides. On the one hand, the Government is proposing to further curtail the type of cases that may be seen by a jury. On the other, the lack of qualifications on jurors compounded by rapid demographic shifts are undermining the very ‘reasonableness’ that engendered trust in the system in the first place.
If the British Right is to commit to defence of the jury system, it will have to address the challenge at both ends. Here is where it might start:
Jury trials
The loss of the right to opt for a jury trial in either-way cases undermines all previous safeguards and should be vigorously opposed. Opposition parties should pledge to reinstate them should the Government follow through with their changes.
There has been limited public debate on the specific types of offences that will be caught up in Lammy’s reforms. Opposition parties should push the Government to publicise these and ask the public whether they would be content for these offences to be prosecuted without the option of a jury trial.
Consequently, the Government should be forced, as often as possible, to make the case for each type of offence from which it would seek to remove access to a jury trial.
In the short term, opposition parties might push an amendment to retain either-way designation for ‘free speech’ related offences, given the significant discrepancies in acquittal rates between the Crown Court and the magistrates’ courts and the overwhelmingly subjective nature of the offence.
Juror qualification
Juror qualifications should be reintroduced to recapture the historic spirit of the system. This might be based on employment status and type of employment, property ownership, or other factors. Given the role of the jury in acting as a bulwark against the potential tyranny of the state, exclusions might be reintroduced for public sector employees in the criminal justice system or even the wider public sector. This may face opposition on human rights grounds, but, as detailed above, the total removal of qualifications is a very recent phenomenon.
The defining criteria for jury service should be citizenship rather than residency and electoral registration. British citizenship should be a mandatory requirement for jury service, with Commonwealth responsibility abolished.
The Ministry of Justice should undertake a modern jury decision-making study, in the same vein as the 1960s Morris Report, to better understand the impact of ethnicity on jury decision-making. If decision-making outcomes are starkly different, the Government should consider reintroducing peremptory challenges in jury selection.
It is worth noting, however bitterly, that the reforms to jury service are being driven at least in part by expediency, due to the overwhelming pressures on the entire criminal justice system. Lammy is an unsympathetic figure to the British Right, but the sheer level of backlog and dysfunction in the courts should perhaps cause us just a little pity for the Justice Secretary. Rishi Sunak arguably called the 2024 general election when he did as he knew there would have to be widespread early release of prisoners that summer and so decided to kick that can down the road to be an early PR disaster for the Labour government. The odds suggest that, if there is a right-wing British government in 2029, Labour will still have plenty of similar criminal justice cans to kick to their successors.
Will the political parties who now decry the Government’s reforms pledge to reverse them should they come to power? And if they succeed in coming to power, will they follow through when faced with the multiple crises affecting the courts, policing, and the prison system? We must look to address the problems facing the country as they are, not as we would wish them to be.
[1]Keir Starmer, “Keeping an eye on the ball”, Socialist Lawyer 16, CRIMINAL JUSTICE ISSUE (Spring 1992), 20. (link)
[2] Conor Hanly, “Summary Jurisdiction and the Decline of Criminal Jury Trial in Victorian England”, The Journal of Legal History, 42.3 (2021), 278-303. (link)
[3] Hanly, “Summary Jurisdiction”.
[4] William Blackstone, Commentaries on the Laws of England, Volume 5, Amendment VII, Document 2. (link)
[5] Hanly, “Summary Jurisdiction”.
[6] Douglas Hay, “The Criminal Prosecution in England and its Historians”, Modern Law Review, 47.1 (January 1984), 1-29. (link)
[7] UK Parliament, “Crown Court backlogs”, Twelfth Report of Session 2024-25, 5 March 2025. (link)
[8] Blackstone, Commentaries, Volume 5, Amendments V and VI, Document 14. (link)
[9] Blackstone, Commentaries, Book 4, Ch. 27. (link)
[10] English Bill of Rights 1689. (link).
[11] Quoted in W.R. Cornish, “Report of the Departmental Committee on Jury Service”, The Modern Law Review 28.5 (September 1965), 579. (link)
[12] Cornish, “Report on the Departmental Committee on Jury Service”, 579.
[13] Han Fook Wang, Warren Fernandez, Sumiko Tan, Lee Kuan Yew: The Man and His Ideas (Singapore: Marshall Cavendish, 1998). (link)
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This is an excellent and constructive article, Alexander.