Removing the right to a jury trial “is not the answer” and risks making the crisis facing the criminal justice system worse, barristers have warned.

In its submission to the Leveson review of the criminal justice system, the Bar Council has set out its alternative recommendations, including a new model for diversion.

Changing the fundamental structure of delivering criminal justice is not a principled response to a crisis which was not caused by that structure in the first place, the Bar argues.

Introducing the courts would be an unnecessary distraction in a system that is already stretched and under-resourced. The Bar Council also warned that removing juries could have “some serious potential risks to public confidence in the administration of justice”.

Bar Council Chair Barbara Mills KC said: “The current system is capable of working if sufficiently resourced. Funding for justice should be in line with the demands made of the system. We recognise that the present economic landscape is challenging, but that is not a justification for a total change to how some cases should be tried.

“We have put forward alternative approaches to increase efficiency. All of them should be tried before making structural changes that remove the right to trial by jury in some cases. An intermediate court is simply not the answer.”

The problem identified in the Bar Council’s submission to the Leveson Review is that since the pandemic, receipts (cases coming in) have been greater than disposals (cases being concluded). Even where rates of disposal have been at their highest - and higher than they were even before the pandemic - rates of receipts have been higher still.

Inspired by effective measures already working within the system, the Bar Council has put forward a new model for diversion to reduce the number of receipts among its recommendations. Diversion measures elsewhere in the system have been found to result in greater victim satisfaction as well as improved rehabilitation prospects for offenders.

The Bar Council’s proposal would mean that some first-time, low-level offenders would - after admitting responsibility for what they’ve done – not face trial or prison. Instead, they will be ordered to do one or more of the following:

  • Pay compensation
  • Engage with a victim or representative body
  • Drug/alcohol rehabilitation
  • Behaviour management
  • Educational or vocational training  

The model would reduce trial receipts, which the Bar Council argues is the real cause of the record high Crown Court backlog.

Barbara Mills KC added: “The government’s primary focus should be identifying how the current situation has come to pass. Only that will lead to solutions that are able to make a difference, rather than making radical changes to the nature of our criminal justice system in the mistaken belief that radical means good.”

Michelle Heeley KC - a criminal barrister who led the Bar Council’s work on the Leveson review submission - said: “We welcome the opportunity to offer thoughts and ideas for reform of the criminal justice system but urge the Government to address inefficiencies that currently exist rather than trying to effect wholesale change. 

“All parties would like to see fewer cases come to court, that means we have to look at alternatives such as diversion and addressing long standing issues such as drug addiction or mental health issues, ensure that we prioritise our limited resources on keeping dangerous offenders off the streets.”

The Bar Council’s recommendations also include:

  • All judges, including judges who have retired (but are below 75 years old) should be allowed to sit as many days as they are available and the cap on sitting days should be removed
  • As a short-term measure, credit up to one third could be offered to any defendant who pleads guilty where their case has not reached trial
  • The sentencing powers of District Judges or Deputy District Judge in the magistrates’ court should be extended to two years’ imprisonment
  • For cases of insanity where all medical practitioners agree that a defendant is insane, a judge should be able to enter such a verdict and recommend the appropriate disposal
  • Greater use of cautions and conditional cautions for low-level offending by those of good character

Read more in the Bar Council's full submission.