If one were of a cynical disposition one would not be surprised that at the Public Bill Committee stage of the Courts and Tribunals Bill David Lammy Lord Chancellor stated, "I absolutely retain the right hon. Gentleman's view that juries are a cornerstone of our system. They are fundamental. This Bill is about protecting them." In 2017 Lammy was a reviewer arguing for jury protection on racial justice grounds and was quoted in favour of juries acting as "as a filter for prejudice"
In 2020 he was a politician arguing against removing juries for efficiency reasons. In 2026 he is a Lord Chancellor doing precisely what his 2020 self called "a bad idea" while insisting in the same breath that juries remain "fundamental." Tailoring his opinion to fit the moment Lammy is as genuine as a £3 note.
Many people will have little idea of what is actually being proposed. To understand the situation it is helpful to know what offences currently termed either way offences are being changed from the current position where defendants can choose trial by jury or summary trial by magistrates [or a single District Judge {MC}].
Against the Person
Assault occasioning actual bodily harm (s.47 Offences Against the Person Act 1861)
Unlawful wounding / inflicting grievous bodily harm (s.20 OAPA 1861)
Harassment (Protection from Harassment Act 1997)
Stalking
Kidnapping (in less serious cases)
Dangerous driving
Causing death by careless driving
Dishonesty / Property Offences
Theft (Theft Act 1968) — the value of items stolen is an important determining factor
Fraud and obtaining property by deception
Burglary where violence was used, an indictable offence was committed during it, or the defendant has two or more previous domestic burglary convictions)
Handling stolen goods
Making off without payment
Going equipped for theft
Obtaining services dishonestly
Forgery
Money laundering (lower-value cases)
Criminal damage (where value exceeds £5,000 — below that it is summary only)
Drug Offences
Possession of a controlled drug (Classes A, B and C)
Possession with intent to supply (lower-level cases)
Cultivation of cannabis
Sexual Offences
Sexual assault (Sexual Offences Act 2003)
Exposure
Voyeurism
Certain child sexual offences at the lower end of the sentencing range
Public Order / Miscellaneous
Affray
Threatening behaviour / violent disorder (lower-level)
Racially or religiously aggravated common assault
Carrying a bladed article / offensive weapon
Perverting the course of justice (lower-level)
Witness intimidation
Low-value shoplifting (goods under £200) — treated as summary only for allocation purposes, but the defendant retains the right to elect Crown Court trial
The Bill introduces a new Crown Court Bench Division to hear triable either way cases likely to receive a custodial sentence of three years or less to be tried by judge alone. The trigger is the likely sentence not directly the defendant's criminal history. However the two are linked in practice: a defendant with previous convictions is likely to receive a heavier sentence upon conviction, potentially pushing them above the three year threshold and therefore into jury trial territory. Conversely, a first-time offender facing the same charge may be assessed as likely to receive under three years, routing them to the judge alone Bench Division.
The Bill`s supporters have made some cogent arguments. They would argue that the principle is proportionality not discrimination. Differential treatment based on criminal history is not unequal treatment in the impermissible sense; it is simply proportionate justice. A first-time offender and a repeat offender are not in identical situations before the law and treating them differently reflects that reality. Equality before the law does not require identical procedures; it requires that like cases be treated alike. In addition unlike juries, judges will provide reasoned judgments for their decisions to convict or acquit. On the other hand the argument on the basis of reducing the crown court log jam by an appreciable amount has been mocked by those using live statistical analyses.
The core objection to the Bill in its present form is that equality before the law would be fundamentally compromised. If two defendants face identical charges eg theft of identical value or the same class of assault but one receives a jury trial and the other does not solely because of past conduct unrelated to the current charge, the law is being applied unequally to the present accusation. The principle that every person is innocent until proven guilty of the charge before the court is undermined if prior history determines the mode of trial for a new, separate allegation. In addition, previous convictions might prejudice the allocation decision itself. A judge assessing likely sentence at the pre trial stage to determine which court will hear the case will inevitably be aware of the defendant's record. Because a defendant's right to a jury trial will depend on the likely custodial sentence a judge will, for the first time, need to conduct a hearing to determine the likely sentence. Such pre trial hearings are long established but prejudicial information before guilt has been proved might be placed in the public arena. Jury retention has long been argued as a constitutional safeguard not a privilege. However as recent posts here have explained, the situation of perverse verdicts presents a challenge to that ancient concept. A common argument amongst opponents of the Bill is the possibility of a disproportionate impact on vulnerable groups. Defendants from ethnic minorities might feel that they should be tried by peers from their community and not a judge alone. That, however, is an opinion likely to open a can of worms.
The iniquity of mode of trial choice was apparent in the case of the 25p banana. In the case of R v James Gallagher — Birmingham Crown Court, August 2008. The defendant, James Gallagher, aged 23, of Linwood Road, Handsworth, Birmingham, was tried at Birmingham Crown Court having elected trial by jury. He was acquitted of burglary and the theft of a banana worth 25p from Birmingham's Bullring shopping centre. It had been alleged that he had entered an Italian restaurant before it had opened and stolen the piece of fruit.
The district crown prosecutor for Birmingham, Martin Putar, stated that the CPS felt there was sufficient evidence and it was in the public interest for the prosecution to proceed. It is almost a perfect illustration of both sides of the argument simultaneously. The Bill`s proponents would argue that a jury of twelve was empanelled, Crown Court resources deployed, and a full trial conducted for the theft of a 25p piece of fruit; an obvious disproportionate use of public resources. Those against reform argue that Gallagher's own stated reason for electing, that he feared the magistrates would convict him, but the jury acquitted him. Under the Courts and Tribunals Bill 2026 that option would no longer be available to him and on his own assessment he would have been wrongly convicted. Of course his own apprehensions are just those; they are not facts. It is perhaps the single most vivid real world example of the tension at the heart of the entire debate and has been quoted in parliament on a few occasions.
Some jurisdictions based on common law allow with restrictions a defendant to choose mode of trial: Canada, USA, Australia and new Zealand. The current proposal is the English right of election to be removed rather than qualified. In Canada and most US states the defendant in limited offences retains the right with certain conditions to choose either mode; the Bill proposes to eliminate that choice entirely for either way offences with maximum custody three years, replacing election with administrative allocation by a judge. No major common law jurisdiction with a comparable tradition has gone quite that far in one legislative step.
It is reasonable to conclude that if there were a different Lord Chancellor at the dispatch box, a cabinet minister without the political baggage of the current incumbent, the Bill would perhaps be having a less divisive route through parliamentary procedures. But perhaps it`s no bad thing that such an incompetent hostage to fortune as David Lammy is the proponent. The debate has exposed serious divisions on a matter of constitutional principle and that, surely, is exactly what has been lacking in recent times when Left and Right are both targeting the great British middle.
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