Should England and Wales Reduce Jury Use?

David Lammy has proposed that jury trials be abolished in England and Wales for offences where the anticipated sentence would be under three years’ imprisonment. Instead, in the proposed “Swift Courts”, cases would be heard by a judge alone. This follows a review by Brian Leveson, which recommended, among other things, a reduction in the use of juries.[1] While some have welcomed this, others have reacted with animosity, with some describing it as a “democratic outrage”. The Criminal Bar Association opposes the move and has created a template email so that concerned citizens can encourage their MPs to resist the change.

I have previously argued that juries are not fit for purpose for certain offences, so you might expect that I would welcome this proposal. However, matters are more complicated. In what follows, I describe some of the most important relevant factors, and why I am apprehensive about the proposal.

Benefits of Juries

While I think juries aren’t always suitable, there are distinct advantages to using them. I group these benefits into three categories:

1. Epistemic

A jury made up of a sample of the public may be well-suited for finding out what happened. On Lammy’s proposals, for a large number of cases, the judge would be solely responsible for ascertaining what has been proven (beyond a reasonable doubt). But judges, who typically come from a very privileged background, may not have had the kinds of experiences that put them in a good position to make an assessment. They may have had a very different kind of life to the defendant (and victims/witnesses). Pooling together the knowledge of twelve people thought to constitute a representative sample can allow a jury, in theory, to each benefit from each other’s experiences. Having multiple people also makes it less likely that crucial details will be forgotten or misunderstood, as others can help to remind or explain. Because of this, juries might have a better chance of really knowing what the right verdict is.

2. Procedural

A verdict in criminal law can be a life-changing experience. Given what’s at stake, it is crucial – if the verdict is to be seen as legitimate – that the source is respected. Rather than a single unknown figure, if this decision is made by a group, this may carry more authority. And when it is a random sample of the people, the verdict might be seen as delivered by the people.[2] This is one of the reasons juries are seen as democratic. That the public generally perceives jury verdicts to be legitimate is an extra reason for their use, in addition to any actual effects on legitimacy; if people distrust a system, public unrest is far more likely.

3. Moral

The jury gives a final safeguard against injustice. This could be an injustice due to corruption (e.g., a judge who has taken a bribe) or because a law seems inappropriate; perhaps because it was written by law-makers with an agenda, or perhaps because of an oversight in writing. If something like this happens, a judge must follow the law, even if they disagree with it. A jury, however, can simply decide not to convict if they believe it would be unjust. This power – for a jury to acquit a defendant despite believing the defendant has committed the offence – is known as jury nullification.

When Not to Use Juries

Each of these strikes me as a significant, but defeasible, consideration in favour of juries. I say defeasible because these reasons can be outweighed in certain circumstances. Imagine if you lived in a community with a significant proportion of virulent racists, such that jury trials would never result in convictions for defendants who lynch members of marginalised groups. Yet it’s possible that judges would be less racist, so a trial with a judge (or panel of judges) would deliver a just verdict.

I take it that we should not want to use juries when we would expect them to result in that kind of situation. Where jurors would do a bad job (because of biases or lack of competence), we won’t get the advantages, but we may have a lot of problems as a result.[3] But we probably think situations like that are pretty rare.

A Compromise?

Outside of situations like that – where juries are expected to systematically give objectionable verdicts – should we definitely always have a jury? I don’t think so. After all, many countries around the world, including most in Europe, do not use juries.[4] These countries are not, in virtue of this, seen as bastions of injustice.

Even in England and Wales now, the majority of trials do not use juries. Around 95% of criminal court cases are completed in magistrates’ courts which involve either one professional judge or a panel of two or three magistrates, who are trained part-time volunteers. Only the most severe offences, which carry longer (over 12-month) sentences, must be sent to Crown Courts with a judge and jury.

Given that the majority of cases now don’t use juries, the crude accusation that jury-less trials are an affront to democracy, or a failure of justice, seems misplaced. If it were, we should surely be more concerned by the majority of trials in England and Wales now, and be aghast at the lack of jury use in other countries. More plausibly, I think, we might suggest that there are costs and benefits to jury use, and what we decide is a compromise of different values.

While juries have the benefits I mentioned above, there are real costs. Perhaps most notably, it is a huge inconvenience for the jurors (and potential jurors who are called up but don’t serve) who are forced to participate in this process. Even having this role may be deeply unpleasant, being vested with a hugely significant responsibility which may have life-changing consequences. Jurors may need to take time off work, and even if not, they may need to devote considerable time they would rather spend on other activities. It’s almost a cliché to complain about jury duty. If there are more jury trials, more people have to experience this more often. Jurors may also need to be compensated for lost income and expenses. In 2023/24, juror costs came to £36 million. Jury trials may also be more time-consuming: jurors need to be selected, complicated legal matters may need to be carefully explained to jurors (which judges would not need), and jury deliberation.

So, we can see the status quo as a compromise position. We don’t require juries on every trial, but for trials where the most is at stake, i.e., offences which could carry a high prison sentence, we use juries. Lammy’s proposal is also a compromise proposal, but with the line drawn in a different place. In many editorials about this, this nuance is unfortunately lost. So, let’s look at the specifics.

Weighing Options

In Leveson’s report, the primary problem to be addressed is the lengthy delays. There is currently a backlog of approximately 80,000 Crown Court cases, which is rising. Longer delays are stressful for victims, witnesses and defendants. Some of those who have been charged may be on remand (held in prison until their trial), and others may be out on bail, in which case they may be unable to work or apply for jobs. Lengthy delays in the process may also diminish public confidence in the justice system. Leveson regarded this as a crisis which necessitates “radical action” (2025: 47).

Based on Leveson’s proposal,[5] Lammy recommends that magistrates’ courts be able to sentence people to up to 18 months' imprisonment, reducing work for Crown Courts. Furthermore, and most controversially, Crown Court cases carrying sentences up to three years would be heard by a single judge. It is estimated that this change would mean a “quarter of cases that would otherwise have to wait to be heard by a jury will be fast-tracked to go before a judge”.

Given that the rationale for the proposals is to reduce the enormous backlog of cases, we can ask two questions:

1. Is it true that the proposal would speed up the process?

2. If it is true, would that be a sufficient justification?

The first of these questions is an empirical matter. While Leveson does provide some of his rationale for thinking that cutting jury use would make things quicker, the Criminal Bar Association say there is no evidence for this claim. If the answer is no, the motivation for the reform is undermined. I cannot properly assess the claim here, but for the sake of argument, let’s tentatively accept it, and move on to question 2.

Whether or not the justification is sufficient must depend on how we value the goods involved. At some point, delays are so severe that they undermine the criminal justice system. Because of that, if there were no alternative options that could help reduce the backlog, I would be in favour of it. Delays can mean that victims withdraw from proceedings, witnesses’ memories fade, or even that parties involved die, all of which are detrimental to just outcomes. This can become intolerable. And I don’t see a difference in kind between cases that could be sentenced to 12 months imprisonment, like harassment, assault and assault of a police officer (which could be heard by a District Judge at magistrates’ court now), and those that could be sentenced to three years, like actual bodily harm, assault of an emergency worker or possession of drugs (which could be sentenced by a single judge on Lammy’s proposal). We have to draw a line somewhere, based on weighing up what we care about. For some decisions like this, there might not be a single correct answer; multiple options may be acceptable to us. One thing that does matter, in cases like that, is that the solution we adopt seems to do a decent job of representing our values.

However, the previous caveat – if there are no alternative options – is contentious. Several experts, such as Cassia Rowland, have suggested there would be quicker ways to reduce the backlog, such as by addressing productivity issues. Others have pointed to the lack of investment in the justice system, citing years of underinvestment as the root cause of the current plight. The Institute for Fiscal Studies estimates that the Ministry of Justice now spends 24% less per person than in 2008. The backlog of cases is the result of years of underinvestment. That is the main motivation behind this reform.

And this, I think, is the objectionable feature of the proposals. Whether we should have a certain case tried by a single judge, by magistrates, by multiple judges, or by judges with a jury is something that should depend on the genuine merits of each option. We shouldn’t change systems, from ones we might find attractive, because we’re unwilling to pay a bit more.

I think we should be willing to consider how different alternatives embody our values. I’d like us to consider even more radical options for legal reform. Some philosophers have suggested that we shouldn’t let jurors discuss when deciding (Hedden 2016). Another suggestion is that we might use multiple juries (possibly of smaller sizes) for every case.[6] Even more radical departures from the status quo include having different standards of proof for different offences (Ross 2023) or having multiple verdicts depending on how sure a jury is that a defendant is guilty (Fisher 2021). There are principled reasons for and against these proposals. Just as there may be good principled arguments for the kinds of proposals Lammy advocates. But opting for this sort of change because of a reluctance to invest properly (trying to get justice “on the cheap”) is distasteful. Moreover, it’s anathema to good judicial reform.

Joe Slater is a lecturer in moral and political philosophy at the University of Glasgow. He completed a PhD at the University of St Andrews on the topic of demandingness objections in ethics.  His research is primarily within ethics, but he has recently been working on issues in philosophy of technology.    

Notes  

[1] Leveson’s full report (part one) is available here: https://assets.publishing.service.gov.uk/media/686be85d81dd8f70f5de3c1f/35.49_MOJ_Ind_Review_Criminal_Courts_v8b_FINAL_WEB.pdf

An “easy read” version is also available here: https://assets.publishing.service.gov.uk/media/686e382f2557debd867cbe57/ISL135_25_ER_IRRC_Report_Final_web_acc.pdf  

[2] Sir Patrick Devlin explicitly accepted this link. He said:

“Each jury is a little parliament. The jury sense is the parliamentary sense. I cannot see the one dying and

the other surviving” (1956: 164).

[3] I previously argued that there’s reason to think that, because of biases, juries should be abolished for sexual assault offences (Slater 2023).

[4] About 56 countries in the world use juries, though about two-thirds have some form of lay participation (non-legal experts) who have some role in the legal decision-making (Ivković, Sanja, and Hans 2021).

[5] Lammy’s proposal actually differs significantly from Leveson’s recommendations. Notably, Lammy endorses judge-alone trials in situations where Leveson would have magistrates and a judge. Some critics have criticised Lammy’s changes.

[6] Richard Dawkins considers this suggestion in A Devil’s Chaplain (2003, 39).

References

Dawkins, Richard (2003): A Devil’s Chaplain, Boston: Houghton Mifflin.

Devlin, Sir Patrick. (1956). Trial By Jury (London: Steven and Sons).

Fisher, Talia (2021): ‘Half the Guilt’, Theoretical Inquiries in Law, 22, no. 1: 87–109.

Hedden, Brian (2016): ‘Should Juries Deliberate?’, Social Epistemology, 31(4): 368-386.

Ivković, Sanja, and Hans, Valerie (2021): ‘A Worldwide Perspective on Lay Participation’, in: Ivković SK, Diamond SS, Hans VP, Marder NS, eds. Juries, Lay Judges, and Mixed Courts: A Global Perspective. ASCL Studies in Comparative Law. Cambridge University Press; 323-345.

Leveson, Sir Brian (2025): Independent Review of the Criminal Courts, https://www.gov.uk/government/publications/independent-review-of-the-criminal-courts-part-1

Ross, Lewis (2023): ‘Criminal Proof: Fixed or Flexible?’, Philosophical Quarterly, 73(4), 1077-1099.

Slater, Joe (2023): ‘Just Judge: The Jury on Trial’ (2023), American Philosophical Quarterly, 60(2), 169-186.

Disclaimer: Any views or opinions expressed on The Public Ethics Blog are solely those of the post author(s) and not The Stockholm Centre for the Ethics of War and Peace, Stockholm University, the Wallenberg Foundation, or the staff of those organisations.