Equality by lot

Editor note: This post has been substantially revised following a note from James Kierstead.

The UK government is aiming to reduce the use of trial juries in the UK, claiming this is useful in order to “modernise the criminal courts” and “save victims from pain and anguish of delays”. Under the proposal “cases with a likely sentence of three years or less heard by a Judge alone – estimated to take 20% less time than a jury trial”.

James Kierstead, who has written before about sortition and its history, writing in spiked, makes several good points regarding juries and the attempt to reduce their purview, highlighting the hypocrisy and manipulation behind the government’s claims.

Labour’s attack on jury trials is an attack on democracy

Justice secretary David Lammy’s plans will take yet more power out of ordinary people’s hands.

A few weeks ago, I was lucky enough to attend In Defence of Trial by Jury, a panel event co-organised by spiked and the Free Speech Union. The event was a response to UK justice secretary David Lammy’s absurd plans to reduce the number of Crown Court cases that go before juries.

The panel members questioned Lammy’s assumption that jury trials were to blame for the Crown Court’s current backlog of almost 78,000 cases (rather than, say, a lack of funding or the number of spurious claims that now make it to court). And they emphasised the centrality of jury trials to our liberal institutions and to the common law, which has long been a bulwark of liberty in Britain, as in other English-speaking countries.

Yet one thing that struck me about the panellists’ excellent contributions is that they all centred on what philosopher Isaiah Berlin called ‘negative’ liberties – our freedom from coercion by the state – rather than on ‘positive’ liberties – our freedom to participate in decision-making with our fellow citizens. In other words, the contributions had more to say about liberalism than about democracy.

The threat to civil liberties posed by Lammy’s jury-trial plans is not to be underestimated. Especially at a time when Brits can be charged with ‘inciting racial hatred’ for expressing concern about illegal immigration on social media, as was the position of former Royal Marine Jamie Michael last year. Michael, as it happened, was cleared by a jury of his peers after only 17 minutes. It is understandable to wonder what might have happened had a judge from our current legal elite decided the verdict.

But if we are to understand the full extent of the trouble Lammy’s reforms would cause, we need to also start talking about how anti-democratic they are.

Jury trials were a central feature of the first recorded democracy in history, classical Athens. Like us, the ancient Athenians selected jurors randomly from the citizenry (though they excluded women, immigrants and slaves from the draw). These juries were massive, usually involving hundreds of people, and undoubtedly far more powerful than ours today. Their remit included not just determining guilt or innocence, but also sentencing.
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Of course, Athenian juries didn’t always get it right – Socrates infamously found himself condemned to death for impiety by a jury in 399 BC. But the Athenians rightly saw juries as the primary means of implementing the law that the people had voted on. They were part and parcel of a democratic system that randomly allotted citizens to other powerful bodies, such as the Council of 500, which handled daily governance. The idea was to ensure that ordinary people (or at least ordinary men) were active participants in the state’s most consequential decisions.

Modern English juries don’t descend directly from the mass juries of ancient Greece. Our system is largely a Norman import, though earlier Anglo-Saxon and Scandinavian customs may have helped lay the ground. English juries were initially selected by a sheriff, who would put together a group of local men who might know something about the case on trial. Over time, however, the expectation shifted toward jurors who were strangers to the facts and capable of impartial judgment.

Selection procedures gradually became more regulated in the 18th and 19th centuries, and were eventually standardised under modern statute. This makes our juries one of the few surviving institutions that still entrust ordinary citizens with direct participation in the administration of justice – a principle ancient democracies prized, but which many modern systems have limited.

After all, most modern democracies outside the Anglosphere don’t make use of juries often, if at all. So why stick with them? One answer might be that they provide a crucial channel for more public involvement in our increasingly out-of-touch, elitist politics. This is a principle that senior figures in Keir Starmer’s Labour Party claim to support. Indeed, in 2024, Starmer’s former chief of staff, Sue Gray, came out in favour of citizens’ assemblies: randomly selected groups convened to deliberate on public policy. Curiously, Lammy himself even expressed an interest in the idea in a select committee hearing in 2020.

But if randomly selected assemblies are a good thing, then why not randomly selected juries? If Labour truly believes ordinary people should have a say, why is it itching to remove one of the only institutions that guarantees they do?

Supporters of Lammy’s cuts to jury trials claim that the changes will be minor, with more than 20 per cent of Crown Court cases going before a jury as opposed to around 30 per cent now. But if we really care about democracy, surely we should be increasing the number of ways ordinary people can get involved in decision-making, not stripping them back.

It seems the only conclusion to be drawn here is a simple one: Labour doesn’t care very much about democracy at all.

Filed under: Juries, Participation, Press, Sortition |