Criminal Court Reform

Lord Marks of Henley-on-Thames Excerpts

Tuesday 2nd December 2025 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, I am obliged to the Minister for repeating the Statement from the other place. I thank the Secretary of State for Justice for his Statement on jury trial, although I wonder whether he understood many of its implications before delivering it to the press and then to Parliament. The Government’s troubling habit of engaging in legislation by leakage, of which their recent Budget is another precedent, should, however, not distract us from the content of this Statement.

In 2017, while leading the review of racial bias in the criminal justice system, the now Secretary of State for Justice declared that juries were the only stage of the criminal justice system without racial bias. In 2020, he declared:

“Jury trials are a fundamental part of our democratic settlement”.


Now, the Secretary of State for Justice declares that, in order to preserve jury trials, he must abolish most jury trials. This has echoes of the logic of the lunatic asylum. Herod declares that to preserve the family unit, he must strike down the firstborn. Or, more recently, there was Gordon Brown’s decision to preserve Britain’s wealth by selling off half of our gold reserves at near the bottom of the market. That decision left the country poorer; this decision will leave the justice system weaker.

This is the Government dismantling the institutions they claim to defend, then insisting that destruction is somehow salvation. A judge sitting alone in a Crown Court trial will have to provide not just a verdict but reasons for the verdict. Does the Minister agree? Such reasoning is bound to be the subject of scrutiny and then potential appeal. If so, are the Government planning to abolish such a right of appeal on the merits of the decision? In that event, parties with no right of appeal may have recourse to judicial review. Or do the Government also plan to abolish the right to judicial review in such circumstances?

Just how deep do the Government plan to cut into the body of the justice system, and do they actually believe that our system of criminal justice can survive such radical surgery? The Secretary of State for Justice tells us that this radical surgery is required to deal with the enormous backlog of cases in the Crown Court, estimated at almost 80,000 cases. So will the Minister tell us whether this proposed legislation is going to be retrospective? That would be an unprecedented and unconscionable attack on an accused’s rights. If in an each-way case, for example, an accused has already decided upon trial by jury and is now preparing for and awaiting that jury trial, are the Government going to retrospectively remove that fundamental right? If so, can the Minister cite a precedent for such retrospective changes to our system of criminal law?

However, if these changes are not to be retrospective, then the tens of thousands of cases that the Secretary of State for Justice refers to as justification for this exceptional measure remain untouched. The backlog will not be cut. Victims and accused will be no closer to justice. In stripping away a centuries-old right, the Government will sacrifice principle but fail to fix the problem. To significantly dismantle the right to trial by jury and gain virtually no benefit is not just an exercise in incompetence but an act of constitutional vandalism. We are being reminded of a problem, but we are not being presented with a solution.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, at the heart of this Statement is a wholesale attack on the jury system. The Government intend first doing away with jury trials in all but indictable-only offences or offences where the likely sentence is three years or less and, secondly, doing away with the defendant’s right to elect for jury trial altogether.

On the first, a radical restriction of jury trials, do the Government accept that they propose going far further than the Leveson report suggested, both on which cases would be tried by a jury and on the make-up of the new courts? Two fundamental questions arise. Importantly, since, apart from robbery and some other offences generally involving violence, offences under the Theft Act are not indictable only, would not all but the most serious cases of dishonesty be triable by judge alone?

Do the Government really think that the likely length of a prison sentence is the only true measure of severity? Is that not a fundamental mistake? Let us take the Horizon scandal. Almost no postmasters received a sentence of more than three years. Harjinder Butoy received the longest sentence—three and a quarter years—only to be released after 18 months when his conviction was overturned, leaving his life in ruins. Most sentences were between six and 18 months, yet those cases destroyed hundreds of lives, driving many to a breakdown or suicide. Those defendants would have no right to a jury trial.

What about the public servant or the professional who stands to lose career, income, reputation and family when charged with minor shoplifting, and who wants the defence of honest mistake or absent-mindedness determined by a jury? What about the teacher or health worker charged with indecent exposure, who will never work with children again if convicted but who is denied the right to a jury trial to decide on a defence of false identity?

The proposal is for judges or magistrates to decide on the likely length of the sentence and the mode of trial, apparently to prevent the defendants gaming the system. In the Statement, the word “gaming” is in bold. Does that give a clue to the Lord Chancellor’s thinking? That is an absurd preconception. Do not many defendants elect jury trial precisely because they want a trial by their peers, with no preconceptions or predetermination of their guilt? The public believe that jury trials are fairer. They recognise that 12 heads are better than one. They know instinctively, as advocates know from experience, that judges vary, one from another, in their prejudices and judgment. Does the Minister not agree? The public trust juries, and public trust in the fairness of our justice system is severely threatened by these proposals.

How are judges or magistrates to assess the likely sentence before a case has even started or any evidence been heard? Does the Minister believe that that would be either possible or fair? At the very least, should defendants not be entitled to a proper hearing to put their arguments for having a jury trial before the court? Should not these measures be temporary or provisional until waiting lists are reduced? In the Commons, Kim Johnson, a Labour MP, suggested a sunset clause, but the Lord Chancellor rejected that.

Jury trial has been a fundamental right of citizens in this country for more than 800 years. Lord Devlin described it as

“the lamp that shows that freedom lives”.

The Statement mentions Magna Carta and it prioritises ending delays over jury trials. But Magna Carta does not do that. King John was not asked to take his pick between Article 39 on jury trials and Article 40 on justice delayed or denied—the Barons insisted on the right to receive both jury trial and timely justice, and we should do that now.

Will the Government not take further steps to reduce delays? Steps should and could be taken, including having many more court sitting days, repairing the courts, having more efficient listing, and using more and smarter technology. Do the Government really insist that the delays could not be cut over time with greater investment? Possibly in some long, technical fraud trials—where the points taken are genuinely not jury points, such as dishonest intent or who knew what and when—the mode of trial might be changed. More generally, do the Government really want to sacrifice the right to jury trial because they admit defeat on cutting delays?

I have a final but entirely unrelated question on the Statement. The Lord Chancellor said that £550 million extra was to be spent on victim support services over three years, but said not a word on how it was to be spent. Can the Minister give us more detail, either now or in writing later?

[Baroness Levitt (Lab)]

I thank the noble and learned Lord, Lord Keen of Elie, and the noble Lord, Lord Marks, for the points they made on these reforms. I have a great deal of respect for the insight that both bring and their observations about the Statement.

I begin with the remarks of the noble and learned Lord. Many people may think that it a bit rich of the party opposite to complain about this, when everybody knows that this is a situation created by them due to the consistent cuts in the criminal justice system over many years. Victims are now reaping what the party opposite sowed. We on these Benches have to try to put this right.

Many matters were raised by the noble Lord, Lord Marks; I hope he will forgive me if I do not respond to them all in my short response now. However, there are answers to almost all of them. For example, he asked how we estimate the likely sentence. That it is done using the sentencing guidelines. It is done all the time at the moment; magistrates do it day in, day out in the magistrates’ courts, when they decide where someone should be tried. It is a task that can be undertaken.

One of the things I want to say from the Dispatch Box is that I have changed my mind. I have been a criminal barrister for many decades. When I practised as a criminal barrister, I too felt that any attempt to touch what happens with jury trials was fundamentally wrong. However, I then became a judge in the Crown Court and saw what was actually happening. Every judge in the Crown Court up and down this country will have experienced sitting with other judges at lunchtime and saying, “I cannot believe that this case I am trying here and now is actually in the Crown Court. It shouldn’t be here”.

We are not sacrificing jury trials—of course we are not. It has never been that every criminal case was tried by a jury; 90% are currently tried in the magistrates’ courts. The question is, where do we draw the line? That is why this Government asked Sir Brian Leveson to conduct an independent review, and we will accept his conclusions. It would be frankly irresponsible not to do so; we cannot ignore what he is saying. We are not going far further, as the noble Lord, Lord Marks, implied; we are doing exactly what Sir Brian suggested: having a Crown Court Bench Division to deal with cases where the likely sentence is three years or less.

This is a package to deal with the problems we face with the criminal justice system; it is not about cutting jury trials. There are three limbs to it. The first is about investment: record investment is being made in the criminal justice system in sitting days and legal aid payments to the criminal Bar and criminal solicitors, whose fees went down for ages. The second is about structural reform, which is what we are discussing now; that includes the removal of the right to elect, the reform of appeals in the magistrates’ courts, the Crown Court Bench Division and some reforms to fraud trials. The third is about efficiency, and that is what Sir Brian is considering in the second part of his report.

Gaming the system is a real problem. I am afraid that there are rumours out there that some people are less than scrupulous once they get arrested by the police. Some of those people know that the delays are such in the Crown Court that, if they elect trial by jury and decide to sit around and wait, particularly if they are on bail, they will have not just one Christmas at home, but at least two or maybe three. They will probably be tagged, and when they come back to the Crown Court when their trial date finally arrives, many of them plead guilty there and then. That means that the time they spent on the tag then has to be taken into account and offset against any available sentence, so they walk away with time served. I have seen that, and that is gaming the system. We cannot have it. It cannot be right that victims of serious offences wait for years for their cases to be heard—possibly dropping out—meaning that unscrupulous defendants can do that. These are real people’s real lives. If tradition is going to survive, it has to adapt.

Timeliness is an essential ingredient of fairness. Sir Brian estimates that juryless trials would be at least 20% faster than those conducted with a jury. It makes sense—of course it does—because you do not have to swear in a jury; such things take time.

Governments must make sure that public services are able to meet the demands of the day and to deliver for the public and the most vulnerable. This means that every generation may well face the prospect of significant reform in order to make things better.

One of the things that the Crown Court is having to contend with is that trials have become more complicated. There is good news: the police are arresting more people, and more of them are coming through the courts. That is what we want to see. But things such as advances in science, such as DNA, advances in techniques, such as the prevalence of CCTV evidence, and social media make proving a case, and, indeed, defending a case, much more complicated than it was. That is why we simply have to move the line to a slightly different place.

For the courts, there is no single thing government can do to resolve this crisis that would not require the system to deal with some change. The delays to justice faced by thousands of victims across the country are unacceptable. They cannot be allowed to grow unchecked. There is no quick fix. The changes we are proposing to make will require legislation. We are intending to fix the system so that it is good for the next generation. That is why we are not intending to impose a sunset clause here. These are meant to be lasting reforms, not an unstable system where nobody is quite sure what is happening. These are lasting reforms to make the system fit for purpose.