David Lammy’s plans to drop juries for all except the most serious cases will create “further unfairness and miscarriages of justice” for Black, Asian and minority ethnic defendants, critics have said.
A leading barrister and pressure groups have cited the justice secretary’s own 2017 review into prejudice in the criminal justice system as evidence that juries help to root out racism.
A leaked letter from Lammy on Tuesday outlined radical proposals that will mean juries will pass judgment only on public interest offences with possible prison sentences of more than five years such as murder, rape and manslaughter.
Judges will preside alone over trials of other serious offences meriting prison sentences of up to five years. Magistrates’ powers are also to be increased, by extending their remit from offences carrying a maximum sentence of one year to two years, further eroding the right to a jury trial.
But a review conducted by Lammy, commissioned by David Cameron when he was prime minister, concluded that juries remained “fit for purpose” and “act as a filter for prejudice”.
The review concluded that of those convicted at magistrates courts for sexual offences, 208 Black men and 193 Asian men received custodial sentences for every 100 white men.
“Of those women tried at magistrates court, Black women, Asian women, mixed ethnic women and Chinese/other women were all more likely to be convicted than white women,” Lammy wrote.
Keir Monteith KC, the criminal barrister who has raised issues of institutional racism to help quash the convictions of young Black men, said:
“Lammy’s 180 degree U-turn to replace juries with judges is not only unconstitutional and politically naive but it will create further unfairness and miscarriages of justice for Black and minority ethnic defendants.”
Fiona Rutherford, the chief executive of the legal reform charity Justice, said the move was unlikely to improve the backlog and would create new problems for racialised groups.
“Juries represent the diversity of society and deliver more equal outcomes – for example, as the Lammy review found, Black and Chinese women are found guilty at much higher rates than white women by magistrates but not by juries,” she said.
Matt Foot, the co-director of the legal charity Appeal, said removing the right to be tried by peers for the vast majority of cases would “inevitably” lead to more miscarriages of justice, especially for people of colour.
“The judiciary tends to be privately educated and white, a long way away from the makeup of juries. Not long ago David Lammy understood this and made exactly this point,” he said.
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Shami Chakrabarti, a Labour peer and human rights lawyer, said: “Twelve minds are often safer than one, not least and according to the Lammy report, for minority ethnic defendants, public legitimacy and protecting judges from opprobrium.
“And acquittals without reasons can be a precious safeguard against populist governments and unjust laws.”
The Lammy report, commissioned to investigate racial bias in the criminal justice system, praised juries and questioned an over-reliance on magistrates and judges.
“Our jury system may be centuries old, but it is still fit for purpose today … When a jury retires to make a decision, its members must consider the evidence, discuss the case and seek to persuade one another if necessary. This debate and deliberation acts as a filter for prejudice,” Lammy wrote. “This positive story about the jury system is not matched by such a clear cut story for magistrates’ verdicts.”
It also emerged on Wednesday that Keir Starmer had previously said that all criminal cases including those at magistrates courts should be heard before a jury.
In an article published in Socialist Lawyer magazine in spring 1992, Starmer, who was then reportedly the secretary of the Haldane Society of Socialist Lawyers, wrote: “The right to trial by jury is an important factor in the delicate balance between the power of the state and the freedom of the individual. The further it is restricted, the greater the imbalance.”
A Ministry of Justice spokesperson said: “No final decision has been taken by government. We have been clear there is a crisis in the courts, causing pain and anguish to victims – with 78,000 cases in the backlog and rising – which will require bold action to put right.”
