THE Government is attempting to hollow out an ancient pillar of English constitutionalism, trial by jury. Under its planned reforms, trial by jury would survive in England and Wales for certain crimes but its use would be significantly curtailed. For example, according to a government press release issued this month, new ‘swift courts’ will assign cases ‘with a likely sentence of three years or less’ to be heard by ‘a judge alone’.
The campaign against jury trials, one of the most free-spirited and universally lauded institutions bequeathed to us by the common law tradition, would be baffling in a healthy constitutional regime. Sadly, it is predictable enough in a regime whose political leaders have developed the habit of tinkering with civil liberties as though they were trimming their lawn.
Being an ancient institution that evolved over a millennium, a significant restriction of jury trials would have unpredictable effects on the justice system. We simply do not know how, in the long run, such a move would alter the incentives of prosecutors, change the pattern of convictions for different crimes, or alter public perceptions of the justice system.
What we do know is that it would constitute a dangerous and completely unnecessary constitutional experiment, eroding one of the most time-honoured bulwarks of civil liberty. Furthermore, it is worth noting that according to an analysis published by the Free Speech Union, drawing on Ministry of Justice data, overall acquittal rates are much higher with juries than at magistrates’ courts (21.6 per cent compared with 11.4 per cent), and this difference holds specifically for speech-related offences (27.6 per cent compared with 15.9 per cent). Assuming these figures are accurate, citizens are likely to be much more vulnerable to prosecution and conviction if the use of jury trials is thrown out or significantly eroded.
Trial by jury has been lauded by generations of learned and respected scholars of law and democracy as a cornerstone of a free society. Alexis de Tocqueville, whose 1835-1840 volume Democracy in America offers one of the most incisive of reflections on the pros and cons of modern democracy, opined that ‘the jury . . . is the most energetic means of making the people rule, [and] is also the most effective means of teaching it how to rule well’.
The 17th century English jurist Sir Edward Coke insisted that no Englishman could be lawfully condemned ‘but by the lawful judgment of his peers’. The 18th century legal commentator Sir William Blackstone likewise described trial by jury as ‘the glory of the English law’ and ‘the most transcendent privilege which any subject can enjoy’, emphasising its role as a shield between the individual and arbitrary power.
Budding constitutional reformers would do well to heed Lord Patrick Devlin’s warning that ‘the first object of any tyrant . . . would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for it is the lamp that shows that freedom lives’.
If marginal gains in the duration of trials are deemed an adequate justification for tinkering with this bastion of the legal order, we might as well just go ahead and subject the whole constitutional order to an ‘efficiency’ test: if we can shave a few days or weeks off this or that legal procedure, why not engage in a bit of constitutional engineering?
But this is a cheap and shallow argument. To begin with, we should not be so sure of our own understanding of the mechanics of such a complex and evolved order, nor should we be so confident that we can predict the short- and long-term impact of our well-intentioned meddling.
Equally importantly, those who bring a revolutionary pick-axe to the constitutional edifice destabilise public expectations about the basic ‘rules of the game’. In doing so, they open the door to political opportunists who would happily overturn the rules and conventions that keep citizens free in order to advance their own careers or curry favour with party bosses or the fickle tides of public opinion.
These constitution-wreckers have bought into a reckless form of positivism that views the legal system as the handiwork of each new generation of human lawgivers rather than as a hallowed constitutional inheritance, and conceives the legislator as an ambitious constitutional reformer, ever poised to introduce ‘enlightened’ reforms in the longstanding customs of liberty, whether in the name of efficiency, progress, social justice or some other ostensibly noble end. While the seeds of positivism and its contempt for the common law have been in place for centuries, its bitter fruits are now on full display.
The outcome of happy-go-luckyconstitutional engineering is that citizens are perpetually vulnerable to political fanaticism. Not just any old fanaticism, but the sort that dismantles or radically alters fundamental constitutional rights such as privacy, freedom of speech, or the right to be tried before one’s peers.
Sadly, the move against jury trials is not an anomaly. Rather, it reflects a growing trend among modern governments and legislators – not only in the United Kingdom – to assert their own authority over the constitutional order in exaggerated and destructive ways.
Instead of recognising that they are standing on the shoulders of giants and acting as humble stewards of an ancient tradition of ordered liberty, legislators and government ministers have got it into their heads that they can stand majestically above the constitutional order and remake it at will, as one might re-arrange one’s bedroom.
Unfortunately, the citizenry of Western societies, or at least a large portion of it, is in a state of moral stupor and has become complacent about the risks of governmental tyranny. Many are no longer well equipped to distinguish between the arbitrary utterances of a legislator and the longstanding rules of humanity and decency.
The idolisation of positive law and the downgrading of the customary liberties of Western societies came to a head during the pandemic: people were happy to go along with laws that made life hell for their unvaccinated neighbours just because they were unvaccinated; large segments of the public acquiesced in, or actively supported, these measures, looking on approvingly while police suppressed public protests in the name of ‘public health’, and people reported their neighbours for the ‘offence’ of having social gatherings in their homes.
Legal systems are meant to set us free by providing a framework of public order and reasonable expectations within which we can get on with our lives. But they can do this only if they are beholden to a higher law, of the sort that is discovered rather than made by human fiat. This is the sort of law that binds the King and cannot be unmade by the King, as Magna Carta recognises.
Only if citizens believe passionately in a moral code superior to the say-so of legislators and politicians can they find a firm foothold for resisting egregiously unjust and tyrannical laws. But belief in a morality that transcends the will of the legislator is not easy in a culture saturated with moral relativism. We need to recover our confidence in a higher moral law if we are to reverse the drift toward legal and political authoritarianism.
This article appeared in The Freedom Blog and is republished by kind permission.
