“Criminal trials without juries are a bad idea. You don’t fix the backlog with trials that are widely perceived as unfair,” tweeted David Lammy in 2020, in protest at the Tory government’s proposal to restrict the right to trial by jury.

Five years later, Lammy, now at the helm as Justice Secretary, has done a volte-face. He will be overseeing the partial scrapping of trial by jury for criminal trials except for the most “serious crimes” (murder, rape, and manslaughter). This wasn’t in the Labour manifesto. The public did not vote for them with this in mind nor was parliament asked to debate or vote on it. Yet, the British government is openly vandalising the palladium of English liberty.

This has been coming for some time. In July, the government commissioned an Independent Review of the Criminal Courts. The review, chaired by Brian Leveson, made some recommendations as to how to deal with the ever-growing backlog of cases in the Crown Court. These proposals include reclassifying some “either way” offences as “summary only” offences, meaning they will be heard in a magistrates’ court with no jury present. For other either way offences, where defendants previously had the option of choosing trial by jury, all juries will be replaced by a judge and two magistrates. Serious and complex fraud cases will also be assigned to judges only.

There is a contradiction at the heart of the revised justice system that is about to come into being. If trial by jury remains our method of trying the most serious crimes, this implies that it is the best way of litigating criminal cases. If so, then we are accepting that “non-serious” cases are going to be tried using an inferior form of litigation. That will create a two-tier legal system.

The irony is that, over the past year, public discourse has been obsessed with what some are calling a crisis of national identity. Does “Englishness” exist? If so, is it good? What are its ethnic boundaries?. Yet, jury trial, something that is very important to English history, identity, and our understanding of ourselves—something that has been an ancient, even ancestral, English right, is facing a wrecking ball. People outside the Anglosphere may not understand why this is such a big deal. But you cannot understand the English psyche without understanding the symbolic value of this practice, which has deep roots in English history.

The origins of trial by jury go as far back as the reign of the Æthelred the Unready in England’s infancy as a unified kingdom. The Wantage Code, which he issued in 997 AD, stated that each local district was required to assemble a body of twelve thegns (minor nobles), who had to swear an oath that they would investigate crimes without bias. They differed from modern juries in a key respect—besides being socially exclusionary. They were self-informing; instead of getting information through a trial, they were expected to investigate crimes themselves.

Trial by jury first became formally encoded in law in the 12^th century, during the reign of Henry II, as an alternative to trial by ordeal. The 1166 Assize of Clarendon established a national legal system for England, replacing local feudal courts controlled by barons, which were based on divergent customs, with an expanded royal court as the primary venue for resolving serious disputes. In eyre (on the judicial circuit), justices were sent across the country to hear cases in the King’s name and to ensure the same laws and procedures were used everywhere. Because these royal judges travelled and worked together, they began to record their decisions, later to be compared with each other and reused to guide future rulings. In practice, this meant the growth of a cohesive body of law that was common to all the subjects of the island realm. This is why Henry II is remembered as the Father of the Common Law.

Furthermore, Henry created the “jury presentment”—the ancestor of the grand jury, an institution that still exists in the United States—composed of twelve local men who were sworn to investigate crimes and present to the royal justices the names of those they believed were the perpetrators. He also created the petit jury, which heard the evidence at the trial and decided on the guilt or innocence of the accused.

The Magna Carta, which was forced on King John by the rebellious barons in 1215, did not establish—let alone guarantee—trial by jury as a civil right. But it planted the seed by establishing the principle that the law is sovereign. This laid the groundwork for future generations, who reinterpreted the Magna Carta as an ancient constitution affirming the liberties of freeborn Englishmen. Nothing sums up the political mythology of English liberty better than Article 39 of this famous charter:  

No free man shall be captured, and or imprisoned, or disseised of his liberties... nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land.  

Jury trial as we understand it today emerged in England during the revolutionary tumult of the mid-17^th century, when it was seen as a guarantor of civil liberty. The Leveller John Lilburne, one of England’s greatest revolutionaries and patriots, was tried for high treason in 1649, after breaking with Oliver Cromwell. At the trial, Lilburne proclaimed that judges were only interpreters of the laws; it was the jury that held the ultimate power—a radical remark that infuriated the bench. His acquittal was greeted by riotous public celebrations. Public horror at the persecution Lilburne had endured at the hands of the state was to lead to the establishment of the rights to remain silent and to avoid self-incrimination. His case was a landmark in the development of English liberty: he was judged by a jury of his peers on the basis of their interpretation of the facts and the law—irrespective of the state’s wish to prosecute him.  

In 1670, the Quakers William Penn (who later founded Pennsylvania) and William Mead were charged with unlawful assembly and disturbance of the peace for preaching their faith in a public street after their meeting house had been locked up. During this, the Bushell Trial, a judge imprisoned and starved all twelve jurors for refusing to pronounce the guilty verdict the state wanted. Outrage at this helped cement the principle of the independence of juries from the Crown.  

This independence was further bolstered by the Trial of the Seven Bishops in 1688, a watershed moment in English history. A London jury defied the wishes of King James II, who wanted to imprison seven Anglican bishops for the crime of “seditious libel” because they petitioned against his Declaration of Indulgence as illegal and a ruse for reestablishing Catholic supremacy. In Thomas Macauley’s whiggish account of the trial, when the Crown’s Solicitor General demanded witness Francis Pemberton’s statements be “recorded” in a way that could be used against him, Pemberton retorted, “Record what you will. I am not afraid of you, Mr Solicitor.”

This was England, after all. Not even the King could intimidate the defence. Without trial by jury, the Stuart monarch would have got his way, and England would have relapsed back into absolutism. Instead, we had the Glorious Revolution of 1688: England became a constitutional monarchy (or a royal republic) with Parliamentary sovereignty. The 1689 English Bill of Rights (a document of whose existence many British people are ignorant) further reinforced the importance of trial by jury.   

In the centuries since, trial by jury—together with having a (mostly) unarmed police force, no national ID cards, and a belief that the law, as George Orwell once put it, is “above the state and above the individual”—has provided generations of Britons with a marked sense of national distinction. To quote the Hamlyn Trust, such things are among “the privileges of the common people of the United Kingdom.” Perhaps, less fortunate nations were not in a position to trust their people to participate in the grave matters of law and justice; perhaps they needed a gendarmerie armed with guns to enforce order and civil peace; perhaps, being volatile societies, they required law to be imposed from on high in order to coerce their populations to submit and obey.   

But we were different. For years, many English people who had spent time abroad quietly rejoiced at this marked difference between their homeland and foreign lands. English law was once a source of authentic pride for British people, especially when contrasted with the overweening statism of continental civil law. To see English law flourish wherever English settlers had gone—in North America, Australia, New Zealand and elsewhere—served as further proof of the greatness of English civilisation. For in England, the law is our law. It is not an alien imposition by the state; it belongs to us.  

As the American conservative thinker Russell Kirk observed when examining the “British roots” of American order: “The English people looked upon common law as their law, the product of their historical experience; it was not something imposed upon them from above.” He further speculated that “representative government” arose in England first because juries taught “free men to assert a share in public concerns.” 

The English Marxist E.P Thompson put it differently. Trial by jury, he explained, “rests upon a total view of the relation between the legislature, judiciary and the people; upon a notion of justice in which the law must be made to seem rational and even humane to lay jurors... and upon a particular national history of contests between ‘the people’ and the Crown or state.” 

Whether you accept Kirk’s Burkean organicism or Thompson’s Muggletonian Marxism, both were right to stress that civil liberty depends on involving the people in the judicial process. Juries are a popular restraint on arbitrary power. The legitimacy of the law comes from its embeddedness in our social relations, and the rule of law is the institutionalisation of the general will of civil society.  

One danger of having had trial by jury for as long as England has, is that people come to take it for granted and forget that it must be zealously guarded. Many people value it purely out of a sense of tradition—because “we’ve always had it”—or due to teary patriotic mawkishness, without understanding why it exists and what its purpose is. One can only hope that the government’s proposed erosion of jury trial will lead people to understand why it matters, and why it should be preserved. 

Put simply, without a jury, a trial is nothing more than a process whereby the state ratifies to itself that it has got the right man. In such a system, you are not judged by your peers but by an overclass of state servants, who are not likely to represent a cross-section of society. With a jury, the state can take no comfort in the certainty of the outcome but must prove its case. This gives the presumption of innocence teeth; it is what turns it from a mere slogan into a powerful principle.  

In this sense, as Alexis de Tocqueville noted, juries are not just a judicial institution, but a political one too. England may still be a monarchy, but the jury is a republican institution. It is a concrete instantiation of self-government, of the subordination of the state to civil society. This is why what used to be called “perverse verdicts”—or jury nullification—are crucial. Juries have the right to acquit defendants even if they are technically guilty of the crime of which they are accused if they feel the law is unjust or repressive or that the state is persecuting an individual or group. This is how, as Lysander Spooner writes in his brilliant essay on jury trial, “the people determine their own liberties against the government” and avoid being “mere puppets” of the state.  

The Acquittal of the Colston Four

Both the right to freedom of expression and the institution of trial by jury came under intense scrutiny just three weeks after Raab’s article, when a Bristol jury acquitted four young people of criminal damage, even though they had all admitted tearing down a city centre statue.

QuilletteMatthew Scott

The degradation of jury trial did not start with David Lammy. It goes as far back as the 1967 Criminal Justice Act, which introduced majority verdicts, replacing the centuries-old unanimity rule. This lowered standards of certainty and shifted the courtroom balance of power in favour of the state. And since 2013, libel trials have increasingly been juryless.   

Apologists for Labour’s judicial reforms will point to the fact that they will only bring Britain in line with most of continental Europe, which is hardly a totalitarian hellhole. Moreover, some might say, aren’t juries made up of dolts who don’t have the brains to understand logical reasoning—let alone any complex technical knowledge that may be relevant—who are swayed by their prejudices, whether against the defendant or the accuser; who perversely refuse to believe police evidence even when it’s undeniable; and who just want to get it over with so that they can go home and watch the football?   

Some people believe that if you put the word “European” next to something that it makes it sophisticated and therefore good. And nothing in the European Convention on Human Rights guarantees right to a trial by jury —only a “fair trial”—unlike the Sixth Amendment to the US Constitution, which does. But why is copying the hyper-statism of continental Europe, especially in matters of law, automatically assumed to be a good thing? Perhaps they could learn something from us for a change.  

It is certainly true, that being ordinary people, jurors will have their prejudices. But judges are people with prejudices and biases—both conscious and unconscious—too. They are also vulnerable to what is known as case hardening. After seeing similar cases over and over again, a judge can become jaded and desensitised, and cease to consider all the contributory factors at stake. Having a dozen sets of fresh eyes, a dozen people with a variety of life experiences, can help illuminate something about a case that even the most experienced judge would never have noticed. 

The point about juries is not that they are infallible or never make outrageous mistakes. But jury service is a schooling in the exercise of self-government. The people can only be responsible if they also hold responsibility; they can only self-govern if they have a chance to experience what self-government entails. If you cannot trust ordinary people in the courtroom, you have no basis to trust them at the ballot box.  

Making Sense of Britain’s Immigration Debate

In a country struggling to come to terms with violent acts by recent immigrants, the dark mistruths of bigots have been replaced with the cheerful mistruths of multiculturalists.

QuilletteBen Sixsmith

The British justice system is clearly in crisis. The backlog of criminal cases now tops 80,000—almost double what it was in 2020—and is forecast to grow to as many as 100,000 by 2028. Some defendants on bail are being given court dates in 2029 and 2030. Victims and defendants are in limbo: the guilty think they’ve got away with it. Meanwhile, witnesses’ memories fade and some become so frustrated at waiting that they are no longer willing to engage with the process. The number of defendants remanded in custody pending trial almost doubled between 2018 and 2024, from less than 9,000 to 17,000, adding pressure to the already overcrowded and crumbling prison system. Meanwhile, on multiple occasions violent prisoners have been accidentally released and cases of young, female prison officers engaging in coitus with male prisoners have become an almost regular occurrence. 

But why should we be denied our liberty because of the government’s own failed policies? If they really wanted to clear the backlog, they could easily lease more buildings and create nightingale courts to increase capacity. They could provide better legal aid to enable barristers to improve bureaucratic efficiency by methods like early case management so that trials don’t collapse on Day One. All these things could easily be achieved and would help reduce the backlog—without touching trial by jury.  

It’s not a coincidence that other attacks on civil liberty have overlapped with the undermining of jury trial. The Labour government wishes to institute a digital ID scheme—another policy that wasn’t in their manifesto and which no one voted for. Then there is the disgraceful assault on free speech and the right to peaceful protest here in Britain, a country where it has become normal for police to arrest people for their tweets. All these developments taken together fundamentally subvert the relationship between the citizen and the state. Your ability to participate in society, to earn your own living, becomes dependent on you being identifiable and visible to the state on demand—rather than the state having to identify itself to you on your demand. Without digital ID, you won’t be able to get a job. You are presumed guilty until proven innocent. You become a subject of the state, rather than the state being your servant. And if you say or tweet something “offensive” you are likely to be summarily hauled before a case-hardened judge with no jury and either fined or imprisoned. This is not a free society. 

Trial by jury, habeus corpus, double jeopardy, the presumption of innocence, the right to remain silent; all these rights exist for the benefit of the accused against the state—and rightly so. The state and its police force exist not to protect victims but to enforce the law. Prosecutors are there to win cases on behalf of the state they serve, not to achieve truth and justice. They will reach for every tactic, use every trick in the book to achieve this objective. This is why juries matter: they are the civic shield against the Damoclean sword of state power.   

As an Englishman by birth, blood, and rearing, I may be biased in my idealised notion of the jury as the palladium of liberties, in England especially. I know that juries are often more noble in theory than in practice. There’s little that is inspiring about the sight of twelve strangers crammed into a dusty room deliberating on whether or not to ruin a person’s life. The high-stakes theatre of the adversarial Anglo-American criminal trial may seem like something that only exists in reruns of Law and Order or in Hollywood classics like Twelve Angry Men. But so long as these deliberative committees exist, people are freer than they would otherwise be and the state has less power than it otherwise would. They safeguard the rights and sovereignty of the people. The struggle for civil liberty always has peaks and troughs. We’re in one of the down periods. Perhaps people only appreciate their liberty the moment they realise it might be taken away.  

May the day never come when the state will be able to deprive me of my rights—without first allowing me to be judged by my peers, according to the law to which we are subject and on the basis of principles we have all agreed to uphold.