One of the most famous and lauded articles of Magna Carta, generally (if perhaps a little inaccurately) considered to be a foundational document of rights in England and Wales and respected around the world, is Article 39. It reads, in translation from the Latin:

“No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, 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”

In this one sentence, an explicit right was established to trial by jury. It has survived, in varying forms and with various levels of adherence since the day it was first elucidated in Runnymede in 1215.

Two days ago, appearing before the justice select committee, the Lord Chancellor Robert Buckland QC declared that trials without juries are now being seriously considered as an option to deal with a backlog of cases working their way through the justice system, a backlog which has been further exacerbated by the coronavirus crisis. The proposed solution would have a judge sitting with two magistrates which, so the minister says, would increase capacity by 40%.

It would not be the first time that trial without jury has been suspended. In 1973, the Northern Ireland (Emergency Provisions) Act suspended jury trials for certain serious offences that were deemed to be terrorism or politically motivated during the Troubles in Northern Ireland. These courts, named ‘Diplock courts’ after their proposer, Lord Diplock have always been controversial as they render the judge the arbiter of both fact and law, as opposed to jury trials where the judge is the arbiter of law, and the jury the arbiter of fact.

For us, our interest is not so much that this decision is being considered (though it does raise interesting questions about the rule of law and the state of justice in the country), but more that it is being considered with barely any consultation. The magnitude of this change should not be underestimated- it would remove a key pillar of our constitution and a fundamental premise of our respected justice system. So what consultation has been done? Well, as with so many recent government policies, it seems very little.

The Bar of England and Wales is up in arms over the proposals, and clearly there has been little consultation with barristers who could be obligated to turn out to prosecute and defend in front of these courts. We know there has been some discussion with the judiciary, and the current Lord Chief Justice, Lord Burnett of Maldon has tentatively mooted that it may provide a solution. Other than that, consultation on the matter seems practically non-existent.

One of the things the Lord Chancellor was very keen to emphasise before the committee, was that changes would be ‘temporary’. One of the things we have been seeing throughout this crisis is temporary changes, which then turn out to have potential to become permanent. With a backlog of almost 39,214 cases even before lockdown (which has increased to 40,526 during), is there a risk of this change being extended under the pretext of trying to clear the backlog?

One thing is certain, changes with such great implications upon individual lives and our entire way of life should not be rushed through without significant consultation.