LORD Devlin, who sat in what is now the Supreme Court, famously said in his book Trial by Jury that “the first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.”

On December 12 2024, the Lord Chancellor Shabana Mahmood announced a Review of the Criminal Courts chaired by Sir Sir Brian Leveson, a former Head of Criminal Justice. The review is a response to unprecedented delays in hearing criminal cases.

On July 9, Sir Brian published a 378-page report. He declared that the system is broken; a “radical and essential package” of measures is required to prevent total collapse. He recommends removing the right to a jury trial for many offences, including possessing indecent or prohibited images of children; possessing obscene material; benefit fraud; abandoning a child aged under two; dangerous driving; public order offences; handling stolen goods; assault occasioning actual bodily harm; causing death by careless driving; sexual assault; child abduction; human trafficking for sexual exploitation; gross indecency with children; and incest.

A conviction for any of these offences will often have a devastating effect on the individual’s liberty, family life, reputation and employment. Consequently, this cannot be supported unless and until it is demonstrated that the savings and income generation measures suggested below are impractical or insufficient.

How worried should we be? The case for vigorously defending our existing rights to trial by jury — strictly speaking, trial by judge and jury — is a strong one that has a number of strands.

In the first place, it is an essential, fundamental safeguard against government oppression of the people. Underlying this belief is the fact that a jury can in effect set aside unjust laws and oppressive prosecutions. It is one way in which citizens stand up to official power.

A famous recent example is that of the civil servant Clive Ponting in 1985. He was charged under the Official Secrets Act with leaking classified documents about the sinking of the Argentine warship, General Belgrano, in the Falklands War.

The leaked document indicated that the cruiser had been sailing out of the Falklands exclusion zone when it was torpedoed. The prosecution was brought by the Thatcher government. It is therefore noteworthy that the judge allocated to hear the case, Sir Anthony McCowan, was a member of the Bow Group who had once been on the Conservative Party’s list of approved candidates.

McCowan held meetings in his chambers which resulted in potential jurors being vetted by Special Branch officers. Mr Ponting argued that disclosure had been in the public interest. McCowan directed the jury that the defence advanced was not a defence in law: “the public interest is what the government of the day says it is.” Much to his displeasure, the jury returned a verdict of not guilty.

This is highly topical because of the current prosecutions of Palestine Action members and supporters, and the arrest and charge of pro-Palestine protesters generally. One can anticipate that defence lawyers will remind juries that they may return a verdict of not guilty if they believe a conviction would be unjust.

Lord Devlin summed up the legal position by saying that if a jury is “asked to enforce law which it really feels is against its conscience, it says no and it acquits. And that’s to my mind our proudest constitutional achievement.”

Now, it may be said that the vast majority of trials do not involve government attempts to misuse their powers in order to suppress dissent or to prevent us knowing about their misconduct. What relevance then do Lord Devlin’s remarks have to a prosecution for theft in south London?

Quite a lot. The abuse of legislation and official powers is not confined to Whitehall. The Crown Prosecution Service, local authorities and regulatory bodies that have a power of prosecution are all capable of heavy-handedness. In a small minority of cases, police officers may single out a person for arrest or manufacture evidence. In other cases, the police or prosecutors cut corners for want of time; prosecute a highly vulnerable person or someone of good character when the public interest is negligible; influence witnesses; and so on.

A jury may refuse to convict in cases where a judge would find the prosecution evidence satisfactory because it affords the citizen a more generous margin of reasonable doubt, or because it concludes that the law or prosecution is tainted and unjust. They give weight to any sense that agents of the state have behaved unfairly, as well as to the evidence of prosecution witnesses.

Juries therefore ensure that the prosecution, judge and criminal process are also on trial and that the criminal process conforms to the ordinary person’s idea of what is fair and just. If it does not, the jury will not be a party to its enforcement.

Juries also offer insurance against local political pressures when officers police local demonstrations or deal with freedom of expression complaints concerning views considered hateful or unacceptable by a section of the public.

More prosaically, the jury majority verdict system means that conviction requires the agreement of ten citizens, not one judge or one or two magistrates. Consequently, the jury acquittal rate is higher.

There is still class and racial bias in our legal system, which reflects the makeup and culture of the judiciary. Juries are the best antidote. They are diverse, being both drawn randomly from the local population and independent of the judiciary. They are essential to strengthening the confidence of discriminated-against groups in our courts, and a safeguard against the partiality of judges.

Finally, juries are an important part of our democracy because they require participation by citizens in our system of justice, and foster a sense of civic duty.

The core of the Leveson Report is troubling. It is replete with recommendations that will create more bureaucracy. This replicates the errors of previous criminal law reform reports and programmes during the past 30 years.

The fundamental problem faced by courts today is unnecessary and damaging over-complication of the law and legal procedures. Judges and practitioners are drowning in policies, procedures, protocols, guidelines, rules, regulations, orders, practice directions, manuals, codes of practice, precedents and case law.

On the savings side, the first task is therefore not jury reform but to radically streamline criminal procedures so as to ensure proportionality and efficiency. In 1967, the average duration of a jury trial at the Assizes was 4.46 hours for simple trials and 8.44 for complex trials. Today, jury trials for indictable only offences take over 22 hours, which is double the duration in 2001, and the median length of trials is 11 hours.

Current delays means that the number of citizens in custody awaiting trial is at its highest in 50 years, standing at 17,000 in December 2024. The average annual cost of each prison place is £51,724 (£850 million for 17,000 places). Getting the figure back down, by simplifying procedures and reducing the duration and cost of incarceration, is imperative.

It was a mistake to transfer responsibility for prisons and prisoners from the Home Office to the Ministry of Justice in 2007. Expenditure on courts, tribunals and legal aid is squeezed to enable further departmental spending on prison capacity. This should be reversed.

Related to this, it is important to address sentence inflation by reducing the number of people imprisoned and to divert more people away from the criminal courts.

Finally, the Ministry of Justice must significantly reduce the number of and scope of regulatory quangos and policy experts, by transferring their functions to professional bodies.

That is the savings side. On the income side, a 5 per cent legal aid levy should be added to all private legal bills. To put this in context, in 2023 legal activities generated £47 billion in revenue.

Secondly, it makes sense for the legal aid body to fund personal injury and other civil litigation on a success fee basis, which would generate income for the Ministry of Justice. We had such a system in the past.

The case advanced by the Lord Chancellor and Sir Brian Leveson is primarily economic and pragmatic, not principled.

They would claim that it is principled because the available budget cannot support the current system, therefore trial delays are endemic and justice delayed is justice denied.

However, that assertion is based on and tainted by an unprincipled prior decision that the budget cannot and will not be increased, even if the interests of justice require it. A “money first, justice second” approach is a Queen of Hearts approach: “Sentence first — verdict afterwards.”

The Leveson Report is deeply unpersuasive. He has not demonstrated that other less intrusive reforms to our criminal justice system, such as simplifying procedures, saving on prison expenditure and generating additional income, cannot resolve the present difficulties and thereby avoid making dangerous inroads into the right to trial by jury.

Anselm Eldergill was a judge in the Court of Protection until 2024. He is a solicitor, an honorary professor of law and an academic associate at Doughty Street Chambers.