CAN ENGLAND STILL BE ENGLISH WITHOUT TRIAL BY JURY?

The effective classifying of Palestine Action as a terrorist organisation has caused stirring amongst many in the legal profession and been amplified by some unexpected sources. The Times earlier this week had a leader opposing the legislation now applied to PA.  Simultaneously the mooted addition to the courts system whereby an intermediate court over which a District Judge [MC] would preside assisted by two magistrates has those same legal eagles in a spin.  Trial by jury is considered one of the inalienable rights of being an English person.  It ranks with Our NHS as a virtual totem created with wisdom and to be venerated by all. Millions, probably billions, of words on the topic are available for anyone with a functioning keyboard. Is it immutable?

Jury trial is a mainstay of predominantly societies deriving from the British era of colonisation; USA, Canada, Australia etc although some such nations notably India have dispensed with the format.  The proscribing of PA has raised an interesting question touched upon here last week when a spokesperson of said group was quoted as saying,  "The public is on our side. Remember that being acquitted can happen and we’re seeing it happen now."  Last Friday, Huda Ammori, the co-founder of Palestine Action, told a public meeting of more than 1,000 supporters that campaigns of civil disobedience, "will make the ban unenforceable."  

 In England and Wales peremptory challenges which allow defendants to dismiss a certain number of potential jurors without giving a reason were abolished by the Criminal Justice Act 1988, specifically under section 118.

Now both the prosecution and defence may only challenge a juror "for cause". This means they must provide a specific, valid reason for objecting to a juror’s inclusion, such as:

• The juror is personally known to a party or a witness.

• The juror has a conflict of interest or bias.

• The juror is disqualified, e.g., due to a criminal conviction.

Challenges for cause are rare and are scrutinized by the trial judge who decides whether the juror should be excluded. Although peremptory challenges no longer exist, the judge can still stand jurors by for consideration (effectively sidelining them) in certain cases, particularly if concerns about fairness or impartiality arise. Additionally, the jury vetting process allows for some background checks in limited circumstances (usually national security or high-profile cases), but this is strictly regulated.

At the time of my appointment I had to state on the application which party I had voted for in the previous general election.  That requirement was abolished some years later.  I suppose in the minds of the "great and the good" who drafted such questions a politically balanced magistracy was an enhancement to the concept of all people being  equal under the law. In today`s England the great and the good are more interested in whether you consider yourself  white Welsh or brown Indian or perhaps black African.  Three incubating disturbing trends  which are likely in my opinion to be major factors in our society by 2030 are the disillusionment with the two main political parties, the rise of a minority although vociferous Muslim minority seeking protection for Islam as a religion under the law and a corresponding rise in ouvert antisemitism camouflaged as anti Zionism precipitated by the reaction to the Hamas massacre of October 7th 2023 in Israel such racism having been shown historically to be a prelude to underlying societal breakdown or worse. 

How likely or unlikely would it be for the verdicts of controversial trials to be determined on the political bias of jurors as quoted above by PA?  It is my opinion that that alone is an argument for dispensing with jury trials at least in such cases as happened in Northern Ireland during the Troubles when Diplock Courts were  established.  The alternative would be adopting the American system where jurors can be excluded .

As with so much of everything that is British, changes will be made only when the powers that be have been hurtled into a situation either unforeseen or facing problems that have been swept under the carpet for them and the rest of us to forget. 

PERVERSE ACQUITTALS AND THE WEAPONISATION OF JURIES

 
One of the great fictions clung to by our legal establishment is the untouchable wisdom of the English jury. Twelve men and women, good and true, convened to determine guilt beyond reasonable doubt. Except of course when they don't. And occasionally, spectacularly so.

From time to time there are assault cases reported where despite video, multiple corroborating witnesses and visible injury or similar evidence, unmoved by the forensic and testimonial parade a jury has returned a majority not guilty verdict. Court reports would mention "sympathy for his circumstances"; he’d lost his job, the victim had a prior caution etc. The facts apparently irrelevant in such cases being secondary to other factors .

We’ve seen it before. Climate activists gluing themselves to roads  acquitted despite clear breaches of the law because juries “understand their cause.” For many decades there have been instances where protesters trespassing at military bases have walked free. It’s not the legality being judged but the politics and in some cases perhaps the charisma of the defendant.
 

These aren’t just quirks; they’re known quantities. Litigants in person can ask juries to ignore the law; barristers can`t. Barristers sometimes count on jury “common sense” to ignore the law when it doesn’t suit. It’s supposedly the unwritten safety valve of our system. The formal word is “jury equity”; the informal reality is selective application of justice.
 
 
To be clear, most jurors do their best. But unlike magistrates who are trained, appraised, and generally held to some level of consistency, juries operate as legal mayflies: brief,  unaccountable and gone before the consequences have landed.

Perhaps it is time we considered more transparency: not full public disclosures of deliberations; no one wants mob-judged justice but at least a recognition that jury trials are not infallible. A verdict isn't necessarily right simply because it came from twelve people in a room with a foreman and a checklist, an appeal being rejected by the Court of Appeal  and has been dismissed by the The Criminal Cases Review Commission.

 

The problem of course is that criticising juries is something of a taboo. It's a bit like that totem, OUR NHS, our national treasure. If we are to have an honest conversation about justice in 21st century Britain we must be prepared to acknowledge that not all verdicts are wise, just or even comprehensible. To pretend otherwise is to indulge in comforting fiction and fiction has never been much of a foundation for justice.
 
 

It takes a certain type of chutzpah to boast about acquittals before a trial has even begun. Yet that is precisely what a member of Palestine Action recently did remarking, "The public is on our side. Remember that being acquitted can happen and we’re seeing it happen now." One might imagine such a statement would raise eyebrows among those concerned with the rule of law. After all, if verdicts are anticipated not on the basis of evidence or law but on the perceived sympathy of a jury what does that say about the state of our justice system? The message is clear enough: The law might say one thing but juries will say another because they like us. In other words conviction or acquittal is not necessarily tethered to legal merit but to public sentiment. That’s not justice; that’s a popularity contest. The courts are not supposed to be arenas for ideology. Yet in recent years certain activist groups, Palestine Action among them, have learned that the courtroom can double as a stage. They’re not just seeking to defend their actions but to put the system on trial. And juries in their secretive deliberations sometimes oblige. Today activist groups are increasingly calculating jury psychology as part of their tactical toolkit. Legal guilt is almost secondary.

There’s a disturbing logic to this: break the law, make the right noise and rely on a jury’s reluctance to punish those who claim moral high ground. The more emotive the issue; war, climate, colonialism the better the odds. It’s not just courtroom drama; it’s calculated legal theatre. Since some suggest that being a barrister is akin to treading the boards we should not be surprised that even some members of the legal profession agree that there are colleagues who are willing participants in this charade. And the consequences are far-reaching. When certain causes are seen to receive jury indulgence public faith in even-handed justice begins to erode: one rule for activists another for everyone else. Ask the man convicted of criminal damage for scratching a neighbour’s car if he had the luxury of moral justification that the hooded trespassing paint sprayer of military jets claims.

Juries are a cornerstone of our criminal justice system. But they are not infallible nor immune to influence. When defendants begin campaigning to jurors, not before the judge, the balance has already shifted.
 

One might have hoped that those charged with criminal offences would meet their day in court with humility, not hubris. But humility is in short supply when you’ve discovered how to turn the jury system into a political loophole. Consider that open boast above from a Palestine Action member, made with the confidence of someone not fearing justice but anticipating a sympathetic audience.  Will we have to follow the Americans in extending the right to exclude would be jurors?

Translation? Break the law, wrap yourself in a fashionable cause, and let the jury do the rest. Legal guilt is negotiable when ideology is your shield.
 

This isn’t brave resistance; it’s cynical manipulation. It’s trial by politics not trial by evidence. What these defendants are really banking on is not the strength of their case but the predictable failure of jurors to apply the law when feelings get in the way. And they’re not wrong. Recent acquittals of activist vandals some caught red-handed have shown that for certain juries a cause deemed righteous excuses criminal damage. Smash up a weapons factory or spray paint government buildings and if you cry “human rights” loud enough, you might just walk free. The more performative the better. Hence the accusation at the investigative stage against police and CPS of two tier justice.

 
  
For those of us who sat for decades on the bench striving for consistency, fairness and fidelity to the law this is not just frustrating. It is corrosive. It mocks the entire foundation of the criminal justice system: that the law applies equally, regardless of politics, passions, or protest signs. Worse still, this selective indulgence sends a message to the public: some offenders are more forgivable than others not because of what they did but because of why they say they did it. That’s not rule of law; it’s rule by narrative.

 

Let’s be clear: jury trial is a cornerstone of English justice. But when it’s treated as a get-out-of-jail-free card for the ideologically aligned it risks becoming a constitutional liability. If the law bends only for those who shout the loudest we don’t have justice: we have judicial theatre with a pre-approved script.
 

Perhaps a modernised version of the system witch finders employed for centuries in determining a woman`s guilt or innocence to a charge of practising witchcraft is a sub conscious underlying feature of facts being abandoned: the woman was tied to a stool which was immersed by a wooden beam in a lake or river.  After one or several immersions if she survived she was considered guilty and punished and if she drowned her innocence had been established. 

It`s increasingly obvious that it`s only after they retire that the most senior judges voice their often critical comments on the legal system.  Of course their conversations with government whilst they are active are top secret.  I suppose that process succeeds depending on which side of the judicial fence one is standing to view it.  

And those of us who actually believe in equal justice? We're expected to sit quietly and clap from the gallery.
 

No thanks.

 

 

 

 

 

AND SO IT CONTINUES

 

HINDSIGHT AND FORESIGHT

Recent public awareness has prompted more articles and social media comments on the appalling delays facing defendants awaiting trial or even in some cases hearings at magistrates courts.  Perhaps I`ve got the cart before the horse and it is the media which has prompted that awareness.  With some cases being adjourned for 12 months or more our lower court system resembles that of a third world nation.  With that in mind I have copied below some tiny proportion of the interesting matters which came my way in the last year or two of my magisterial career......those were the days......................

 

 

 

 

Ministry of Justice

RtHon

Damian Green MP Minister of State for Policing and Criminal  Justice

102 Petty France London. SW1H 9AJ

 

E  general.queries@justice.gsi.gov.uk www.justice.gov.uk

 

 

 

 

3 0 AUG 2013

 

 

 

 

 

I am pleased to be writing to all 23,500 magistrates in the country about a new piece of work I have launched which I hope will strengthen and widen your role.

 

When we began to think about the role of magistrates, as part of our wider reforms of the criminal justice system, I was adamant that we should involve magistrates themselves as early as possible in shaping our reforms.  I want your thoughts and ideas to be at the heart of our policy.

 

Last week I launched the work at an event in London which will be the first of a series of engagement events where we will be speaking to magistrates directly to get their ideas about what the role of magistrates should be in the 2151 Century.      I asked delegates to consider and discuss three key questions:

 

1.      How do we ensure that magistrates deal with the right cases in court?

2.  How can magistrates play a stronger role in the community?

3.  How can we ensure that Magistrates are in the driving seat of improving performance of the justice system in their communities?

 

I was extremely pleased that the event was so well attended by magistrates and to hear their very constructive engagement and discussion.

 

The rate at which places on these events were taken shows to me that there is a huge appetite among you to engage in this process, and that is why it is

important that we engage in as many different ways as possible, to capture your

views.  I want you to have discussions in your local courts about this work, and talk through some of the questions and ideas with your colleagues.  You can feed your ideas back through HMCTS.

Also, as part of this process, I have also launched, for the first time, an exciting online tool that will allow you to put forward ideas on how magistrates can become more involved in your communities to make them safer.  Crucially the tool will allow you to collaborate and develop these ideas so we can come up with a shared solution.  You can access the tool at the following link: http://775.dialogue-app.com/xkvzd0v27c.

 

The results of the sessions, your discussions, and the ideas we have received online will be fed in to a public consultation later in the year, where you will get a further opportunity to comment.

 

A copy of the speech is available for you to view at: https://www.gov.uk/governmenUspeeches/the-role-of-magistrates

 

I look forward to seeing your contributions.

 

 

 

Rt Hon Damian Green MP

 

 ........................................................................................................................................................................................................

 

			xxxxxxxxxxxxxx www.justice.gov.uk
	Confidential
	To: All Justices assigned to the Justice Area
			12 May 2014

 

Dear Justice,

 

Low-value shoplifting cases- changes made by the Anti-social Behaviour, Crime and Policing Act 2014

 

The Anti-social Behaviour, Crime and Policing Act 2014 has made changes to the way that courts deal with low-value shoplifting cases, which come into force on the 13 May 2014 and will apply to offences committed on, or after that day.

 

In short the change introduces a new category of theft (low value-shoplifting) which is triable only summarily, except where a defendant chooses to be tried by a jury

 

The attached guidance seeks to provide an outline of the changes.

 

Members of the legal team have been briefed on the changes.

 

 

Yours sincerely,

xxxxxxxxxxx

 .................................................................................................................................................................... 

			xxxxxxxxxxxxxxxxx www.justice.gov.uk
	Confidential
	To: All Justices assigned to the Justice Area
			7 May 2014

 

  

Dear Justice,

 

There are a number of matters that I would like to draw to your attention.

 

Applications Court at the xxxxxxxxx courthouse from the 6 May 2014

 

The Judicial Leadership Group has agreed to the establishment of an Applications Court each day of the week at xxxxxxx from the 6 May from 9.30am until 10am in court number 1.

 

The court will deal with statutory declarations, s.142’s, utilities warrants and search warrants. Its aim is to provide a better service to court users and reduce the time taken to deal with such applications at 10am in the trial courts.

 

The procedure will be that a legal adviser will attend the second floor retiring room and ask a magistrate to deal with the applications; where there are utilities warrant applications the legal adviser will ask more than one magistrate to consider the applications.   

 

Revised case management form

 

A revised case management form has been approved by the Lord Chief Justice and is now in use. It is called a preparation for effective trial form (copy attached), copies have been placed in the courtrooms. I have also outlined a summary of the changes which I have attached. One of the changes allows sufficient space to timetable and record the time directed by the court for evidence in chief and re-examination (complying with the case of Drinkwater).

 

Sexual Offence Guideline

 

The Sentencing Council has issued a definitive guideline on Sexual Offences, which came into effect on the 6 April 2014 and applies to offenders aged 18 and above. Hard copies of the guideline have been left in the second floor retiring room at xxxxxxx and copies are in the courtrooms. Alternately copies may be downloaded from the Judicial College website:-www.sentencingcouncil.org.uk.

 

Environmental offences sentencing guidelines

 

The definitive guideline on sentencing environmental offences has also been published and comes into force on the 1 July 2014.It is applicable to all offenders aged 18 and older and organisations. I will ask the BST to advise the bench when hard copies are sent to us by the Judicial College(there is also a Definitive Guideline-Environmental Offences on the Judicial College website).I have also attached an outline of the guidance.

 

Domestic Violence Protection Notices and Domestic Violence Protection Orders

 

In November the Home Secretary announced her intention to roll out nationally Domestic Violence Protection Orders across England and Wales from 8 March 2014.

 

Domestic Violence Protection Orders(DVPOs’) are a new power introduced by the Crime and Security Act 2010, and enable the police to put in place protection for a

victim in the immediate aftermath of a domestic violence incident. Under DVPOs, the person concerned can be prevented from returning to a residence and from having contact with the victim for up to 28 days, allowing the victim a level of breathing space to consider their options, with the help of a support agency. This provides the victim with immediate protection. Where appropriate, the process can be run in tandem with criminal proceedings.

 

DVPOs’ are civil matters, the CPS will not be involved and the matter will be dealt with either by a police officer/member of police staff, or a lawyer instructed by them. Hearsay evidence will be admissible. In order to make an order the court must be satisfied on the balance of probabilities. Where there is a breach of an order the criminal standard will be applicable and if proved the respondent may be fined up to £50 for every day he/she is in breach, or a sum exceeding £5,000,or committed to custody for not more than 2 months.

 

We have been advised that police forces will have processes in place no later than June 2014.Part of the bench meeting on the 10 June will be devoted to a domestic violence update, which will cover DVPOs’.

Sentencing for theft offences – consultation launched on sentencing guidelines

As mentioned in the bench newsletter the Sentencing Council has launched a 12-week consultation on its proposed guidelines for judges and magistrates to use when sentencing people for theft offences. To find out more about the consultation exercise please go to the Sentencing Council website. The consultation on the draft guideline is open from 3 April 2014 to 26 June 2014.

BTDC Local Training Programme 2014/2015

 

The BTDC has agreed, in conjunction with the Bench Chairman and panel chairmen, to produce an annual xxxxxx Local Training Programme (attached) it seeks to incorporate training needs that have been identified by it/brought to its attention.

 

The BTDC chairman would welcome feedback on the programme.  

 

 

Yours sincerely,

xxxxxxxxxxx

 

 .....................................................................................................................................................................................................

 

DJC guidance note-1/2014:-Use of I.T in magistrates courts

Guidance to magistrates on accessing information relevant to court proceedings and the use of personal technology in magistrates’ courts

 

In June 2011 and May 2012 the Senior Presiding Judge issued guidance to magistrates on accessing information relevant to court proceedings and using internet social networks.

The guidance provides that:-

·         The accessibility of information can put at risk the fairness of the judicial process in the crown and magistrates courts;

 

·         It is appropriate to use personal technology(laptops,netbooks,mobile phones,e-readers and tablet computers) to access public and non-sensitive material in court ,for example Sentencing Council publications,protocols,guidance documents and the Judicial College Bench Books;

 

·         It is not appropriate for magistrates to conduct internet, or other research into cases they are to hear, on issues arising within cases, or into people involved in cases, so for example accessing Google to find out supplementary information not presented by the parties would be inappropriate. This applies whether a magistrate is at court, or elsewhere, as to undertake private research could compromise judicial impartiality;

 

·         Magistrates may not make notes of cases on personal technology. Even if everything is typed and is deleted ,the information is still accessible for some time and presents a security risk;

 

·         Magistrates may make use of laptops,Blackberries,I-phones,or other IT devices to communicate with others when out of the courtroom when no court related business is being conducted, or is due to be conducted. Magistrates may use personal IT devices during the lunch period, during significant breaks in proceedings, or at the end of the court session;

 

·          It is not appropriate to use portable devices to communicate with others when sitting in court (texting/accessing emails/taking and making calls in court is forbidden), or when conducting any court business, which includes a pre-court briefing and post-sitting review. Professional perceptions of the bench in court are so important and magistrates should be seen to be focusing on the issues before the court;

 

·         Magistrates should also take care if using social networking sites and should consider whether to allow open access to personal information, or their Facebook “wall”.

 

xxxxxxxxxx

 3 April 2014

....................................................................................................................................................

 

The letter and comments from one of literally dozens of Secretaries and Ministers at the Ministry of Justice 2010-2024 could probably have been sent any year of that Tory/Coalition rule. The wordsmiths at Petty France have first class expertise in cut and paste. The document from 7th May is of a more serious nature. I have copied below a relevant extract from above.

Applications Court at the xxxxxxxxx courthouse from the 6 May 2014

 

The Judicial Leadership Group has agreed to the establishment of an Applications Court each day of the week at xxxxxxx from the 6 May from 9.30am until 10am in court number 1.

 

The court will deal with statutory declarations, s.142’s, utilities warrants and search warrants. Its aim is to provide a better service to court users and reduce the time taken to deal with such applications at 10am in the trial courts.

Note the time to be allocated to the Applications Court; 30 minutes and the various applications to be considered in that time frame. Some readers might recollect the scandal of utility companies` harsh and perhaps illegal treatment of customers who had become in debt to their energy supplier.  The scandal was a direct result of applicants` requirement for sincere judicial involvement being sacrificed for time limited allocations.  To those who want to fully appreciate the iniquities of this policy please type "utilities" in the search box.

It`s an interesting speculation that having established the principle of a single magistrate presiding at the applications court that a single magistrate could preside at low level cases many being those where strict liability applies.  And so the idea of the Single Justice Procedure was likely to have been born; an idea now in its tenth year of operation and which has proved to be as contrary to the concept of justice as the utilities fiasco.  

Domestic Violence Protection Notices I would argue look better in print than in the future practice we have seen over the last decade or so.  

 

The DJC guidance note-1/2014:-Use of I.T. in magistrates courts [above] has much to commend it and is the basis for the updates since 2014. However there is a simple or apparently simple aspect or anomaly which could also be applied to juries:- namely if a magistrate or juror expert in his/her own field eg medical, anthropological, geographical etc etc is 100% certain of lies or misinformation spoken or presented by a witness or defendant is s/he not obliged to inform his/her colleagues?  Indeed I followed my own advice on one occasion and told my two colleagues that a defendant's statement was totally untrue based on the fact that my colleagues knew the area and depth of my expertise.  If that information had been gained by investigating a  3rd party source it would have been clearly in breach of the guidance but personal exchanges.........??

There are visions for the future or foresight and there is hindsight. A wise person or organisation uses the latter better to inform the former. 

 
 ADDENDUM  24TH JUNE 2025

 

Blogging by Judicial Office Holders

 

 

Introduction

This guidance is issued on behalf of the Senior Presiding Judge and the Senior President of Tribunals. It applies to all courts and tribunal judicial office holders in England and Wales, and is effective immediately.

 

Definitions

A “blog” (derived from the term “web log”) is a personal journal published on the internet.  “Blogging” describes the maintaining of, or adding content to, a blog.  Blogs tend to be interactive, allowing visitors to leave comments. They may also contain links to other blogs and websites. For the purpose of this guidance blogging includes publishing material on micro-blogging sites such as Twitter.

 

Guidance

Judicial office holders should be acutely aware of the need to conduct themselves, both in and out of court, in such a way as to maintain public confidence in the impartiality of the judiciary. 

Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary.  They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.  

The above guidance also applies to blogs which purport to be anonymous. This is because it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered.

Judicial office holders who maintain blogs must adhere to this guidance and should remove any existing content which conflicts with it forthwith. Failure to do so could ultimately result in disciplinary action. It is also recommended that all judicial office holders familiarise themselves with the new IT and Information Security Guidance which will be available shortly. 

 

Any queries about this guidance should be directed to Simon Parsons at Judicial Office - Tel: 0207 073 4811 Email: simon.parsons@judiciary.gsi.gov.uk   

 

ADDENDUM 25TH JUNE 2025

In the light of proposals for a new tier of courts between magistrates and crown courts this document from 2013  might of interest.

Senior Presiding Judge’s Magistrates’ Liaison Group, January 2013

Judges sitting with Magistrates

1. There are, occasionally, advantages to a DJ (MC) sitting with Magistrates in a bench of three.

2. Without being unduly proscriptive, such occasions include the following:

(i) The improvement of Magistrates’ case management skills;

(ii) Fostering a culture of collegiality;

(iii) Dealing with the situation which has arisen where a DJ (MC’s) list has collapsed, so avoiding all three Magistrates (perhaps already at Court) being deprived of sittings.

3. With regard to 2(iii) above, sitting as a Bench of three can do much to obviate the frustration the disappointed Magistrates might otherwise feel and should serve to improve relations between the DJ (MC) and the local Magistracy.

4. It is not to be anticipated that there will be many sittings of a Bench of three. Such sittings require local agreement of those concerned (the DJ, magistrates and Justices’ Clerk).

5. The following principles apply to sittings of a Bench of three:

 The District Judge (Magistrates’ Courts) chairs the bench.

 Joint decision making applies; even if the DJ (MC) is in the minority, the majority view prevails.