The Leveson review: Cutting jury trials is not the only option

The criminal courts in England and Wales are in dire straits. Sir Brian Leveson’s review of the criminal courts makes a number of very welcome recommendations, including keeping more cases out of the courts altogether by increasing use of out-of-court resolutions by the police, and encouraging recruitment and retention of criminal legal professionals by providing matched pupillage funding and changing payment schedules so lawyers aren’t waiting years to get paid.

But inevitably the most significant – and controversial – recommendations relate to restrictions on the use of jury trials. This is also where Leveson’s arguments fail to make his case.

Reducing trials by jury would probably reduce the backlog

All trials in the crown court currently involve a jury, and they take much longer on average than trials in magistrates’ courts. This is not just, or even principally, because of juries: crown court cases involve more serious offences, typically longer sentences and often more complex legal issues. Nonetheless, things like issuing legal instructions to juries or advising them on how they should interpret evidence, as well as juror sickness and so on, do mean that jury trials tend to take longer than judge-led trials.
Leveson proposes three means of reducing jury trials:

1. Keeping more trials in the magistrates’ courts by limiting eligibility for the crown court
2. Setting up a new branch of the crown court, the ‘Crown Court Bench Division’, where cases would be heard by a judge and two magistrates
3. Allowing judge-only trials in certain serious and complex cases, particularly for very complex fraud.

The review doesn’t provide an estimate of savings from 3), but he suggests 1) and 2) will save 4,000 and 5,000 sitting days in the crown court respectively (for reference, the crown court will sit for 110,000 days in 2025/26). These kinds of policy changes are very difficult to model and the data is often very poor, where it exists at all. We don’t even have data on how long the average trial in the magistrates’ courts takes. But these seem like broadly reasonable assumptions. The proposals would mean a significant majority of crown court cases would no longer involve a jury. If realised, they would help to reduce the case backlog. 

If the government wants to restrict jury trials, this is the right way to go about it…

When the review was first announced late last year, the main suggested reform was setting up an ‘intermediate’ court that would sit between the crown court and magistrates’ courts. Like Leveson’s proposed bench division, this court would have had a judge and two magistrates in place of a jury, and deal with a similar range of offences. Leveson’s proposed model is a much better choice, if this is something the government wants to pursue. By opting for a new division within the existing crown court structure, it greatly reduces the practical and logistical challenges of getting a new system off the ground. It avoids pesky details like negotiating a fee structure for lawyers, or which judges and lawyers have the right to sit or appear in the court. It will also be easier to set up using existing crown courtrooms and digital systems. Given the urgency of the situation in the courts, these are all major advantages.

…but Leveson fails to make the case that restricting jury trials is either desirable or necessary

But Leveson’s argument is ultimately pragmatic rather than principled. He doesn’t try to make the case for judge-led trials on their own merits, except in limited circumstances for serious and very complex cases. His focus is on the current dire state of the courts system and the need for reform to stave off system collapse. He attributes these problems chiefly to the growing complexity of criminal law and massive volumes of evidence, particularly digital evidence from phones and other devices, now coming before the courts. Given this, his view is reducing demand on the courts by cutting jury trials is the only option. The report argues that the analytical evidence for this is irrefutable – but there are alternative explanations, and alternative solutions. 

There have undoubtedly been big increases in the volumes of evidence in many criminal cases. But the data doesn’t suggest that total demand on the criminal courts is unprecedentedly high. The number of cases coming into the system has increased in recent years, but remains below levels in the early 2010s. Indeed, the total amount of court time spent on jury trials has decreased by almost a quarter since 2016. The biggest problem facing the courts is the growing productivity gap – what we’re getting out compared to what we’re putting in.

Fixing court productivity problems would reduce the backlog

The number of cases that the crown court is dealing with each day it is in session has declined substantially, down almost 10% since 2016. It’s worse still when it comes to trials: each day, fewer trials are being scheduled, but more are being cancelled last minute, even though there has only been a moderate increase in the average length of trials (12% since 2016). If courts were managing to get through as many trials per sitting day now as in 2016, there would have been over 5,000 – 40% – more trials.

Some of this difference probably is about case and evidence complexity. But the data doesn’t suggest this is at the heart of the problem It is likely to be due to a combination of several other factors: not having enough lawyers, poor physical and technological infrastructure in courts, problems with moving prisoners both to and around court buildings, inexperienced and/or insufficient court staff. Fixing these would not be quick or easy, and Leveson is right to point out that there is a limit to how quickly capacity in the system can be expanded, even if provided with additional investment. But restructuring the courts would not be quick or easy either, and is also likely to be politically costly. 

If the government can get to grips with the source of the productivity gap, it could improve the situation in the courts without dramatically restricting access to jury trials.