“I honestly think if I hadn’t had those normal people to basically say, ‘You gotta be joking, no way did this guy do anything wrong’, I’d be finished” (recent defendant Jamie Michael, commenting on his jury acquittal).

The Justice Secretary’s proposal to restrict the use of jury trials has been met with furious opposition from all sides. So far, the debate has focused on his dubious claim that it will allow us to get a grip on the backlog of cases in the Crown Court, with critics arguing that funding the justice system properly after fifteen years of cuts is a better solution. But this debate shouldn’t be framed in purely managerial terms. We need to pay more attention to the anti-democratic consequences of the government’s plan.

Why do we have juries at all? They’ve always been an expensive alternative to judge-only trials, and the UK has been much poorer than it is today. But we’ve protected them through thick and thin because they constitute “a fundamental part of our democratic settlement,” to quote a previous incarnation of David Lammy. The jury system means ordinary people, rather than the state and its employees, decide whether the evidence is strong enough to justify using the most serious power that a community has over an individual: the power to deprive them of their liberty. Jurors are fairer than judges and magistrates because they’re less case-hardened, more representative, and there are twelve of them. But also because of something called jury equity. 
Jury equity (or nullification, as it’s called in America) is the idea that jurors sometimes decide cases based on what their consciences tell them rather than the strict letter of the law, if those two things are in conflict. The most famous example from recent history is the 1985 trial of Clive Ponting, a civil servant who leaked information about the sinking of an Argentine ship during the Falklands War. Tried under the Official Secrets Act, Ponting argued that he had acted in the public interest because the government had misled Parliament on the subject. The judge directed the jury to convict, stating that the “public interest is what the government of the day says it is.” The jury, representatives of the public itself, took a different view and acquitted Ponting. A string of environmental and anti-war activists have been acquitted by juries in similar circumstances. The prosecution persuasively demonstrates the elements of the offence, and the judge tells the jury that the defendant has no legal defence, but the jury decline to convict, presumably – although we cannot be entirely sure how juries come to verdicts – because they consider a conviction unjust in the circumstances. 

This special power of juries has helped the courts move ahead of the legislature on occasion. In the 18^th and 19^th centuries, juries routinely refused to find defendants guilty of minor offences like theft where it would have resulted in the death penalty, compelling Parliament to reduce the number of capital offences. In several trials in the 1990s, juries acquitted defendants who had been charged with drug offences because they had grown cannabis to help relieve their chronic pain or that of their loved ones. Medical marijuana was not legal then, but it is now. In 2010, Kay Gilderdale gave an overdose of morphine to her severely ill daughter, who had asked for help to die. Gilderdale pled guilty to the lesser charge of assisting suicide, but the prosecution pushed for an attempted murder conviction, and the jury acquitted her. The judge in the case, who would have been required to apply the law and convict, had they been tasked with the verdict, praised the jurors for their “common sense, decency and humanity.” 

To some, these examples epitomise the problem with jury trials: amateurs determining guilt based on their personal feelings about the defendant. But in fact, these occasional instances of jurors voting their conscience over the law demonstrate the democratic legitimacy of our justice system. We get to elect our lawmakers but that doesn’t give us ongoing control over the way the immense coercive power of the state is exercised in individual cases. Through Parliament, the police, the CPS, and the judiciary, the state decides what is criminal, who is a criminal, and what should happen to them. Through the jury system, the public gets a chance, right at the end of the criminal justice process, to say yes or no. Clive Ponting’s acquittal proves that we, the people, are an active participant in a trial and can object to what the state proposes to do to an individual it has charged with breaching the law. And that’s as it should be, because the verdicts of major criminal trials carry such profound consequences – for defendants, victims, and the wider community.

That’s not to say you can’t have a democracy without our version of the jury trial. The democratic label is highly flexible – what Claude Lévi-Strauss called a ‘floating signifier.’ If modern Western democracy has any immutable features, they are the separation of powers, the rule of law, regular and competitive elections, and near-universal adult suffrage. Beyond those, democratic systems vary widely in how they distribute authority between institutions and citizens, and many operate with a much more limited form of public participation in the adjudication of criminal trials (although very few have none at all). The argument is therefore not that the Justice Secretary’s proposals would erode something essential to democracy but something essential to our democracy, to the way we in this jurisdiction have tethered the activities of the state to the consent of the governed. Jury trials are a miraculous concession to the people, emerging from the murk of England’s legal pre-history. They are part of our “democratic settlement,” in Lammy’s phrasing, or the “law codes of Alfred the Great,” in Robert Jenrick’s. Other states have struck other democratic settlements. France and Germany, for example, have written constitutions, entrenched rights, and courts which citizens can petition to strike down illegitimate laws. We don’t have those means of reinforcing the democratic legitimacy of the law in England and Wales. We have juries. 

But they don’t only serve the public; having juries make decisions is in the interests of the institutional powers. If the judiciary is already vulnerable to claims of politicisation, what if judges had to decide on the guilt of pro-Palestine protestors charged with public nuisance offences, of far-right online commentators charged with stirring racial hatred, or of a police officer prosecuted for using excessive force in a high-profile arrest? Jamie Michael, a Royal Marine veteran of the Iraq War, was charged under the Malicious Communications Act for posting an inflammatory video about immigrants in the aftermath of the 2024 Southport stabbings. The case raised sensitive questions about how far the criminal law should be used to police speech at a moment of heightened public emotion. It’s not hard to imagine the media storm had a judge been obliged to decide the case, whereas the jury that acquitted him was able to produce an outcome that the public could accept, because it had been made by a random selection of the public itself. Attacks on judges perceived to be biased is a major problem for criminal justice in jurisdictions which don’t use juries, as discovered recently by the French judges who convicted Marine Le Pen for embezzlement and banned her from running for political office.

And we don’t want attacks on judges. We want a criminal justice system that works, and that depends on the public trust. People follow laws and accept the outcomes of trials not just because they are afraid of punishment but because they believe that the procedures of determining guilt are fair and legitimate. And, at a time of ever-dwindling confidence in institutions, trust in the jury trial system over a judge-only one remains high. Polling conducted to assess what the British public would want included in a possible Bill of Rights has found consistently strong support for a right to trial by jury, with one survey revealing more popularity for juries than for a right to free assembly and a right to timely NHS hospital treatment. The government appears to be alone in thinking juries are expendable. 

The government defends the proposals to restrict jury trials by 50% with the assurance that juries will continue to be used for the most serious cases, those with a likely sentence of over three years. Magistrates already handle minor criminal cases, so why not move the goalposts a bit to cut the backlog? But it is for some of the cases in between the most and the least serious that we dearly need juries: prosecutions for protest-related criminal damage, for speech-related offences, for lower-level drug and violence offences. Charges which, even when proven, leave the public divided over whether imprisonment is appropriate in particular cases, reflected to some degree in the fact that convictions do not attract lengthy prison sentences. We may not all agree about whether someone deserves to be behind bars, and sometimes a jury’s decision will be wrong (as would a judge’s), but a verdict reached by the public carries a democratic credibility in England and Wales that one reached by the state alone would not. Denying juries to all defendants facing likely sentences of three years or less would remove this credibility from our courts for the trials where it really counts.  

In his plans to erode the jury system, the Justice Secretary is seeking to address the unconscionable delays faced by victims in obtaining justice; he is probably not embarking on an authoritarian project to loosen the grip of the people over the levers of power, as some critics have suggested. But the sinister history of tyrannical regimes removing juries from criminal courts should give our government pause for thought. From Soviet Russia and Franco’s Spain to the Chinese Communist Party’s recent consolidation of control in Hong Kong, repressive states have discarded or restricted juries on the logic that requiring the permission of the people to convict defendants obstructs the executive’s objectives. If curtailing jury trial has so often appealed to these regimes as a means of reducing their people’s civil liberties, shouldn’t a prime minister committed to human rights want to protect juries? Weimar Germany, facing severe economic pressures in the aftermath of the First World War, cut its juries for the same reasons that David Lammy has put forward to cut ours: court efficiency and economising. With that democratic backstop removed, the Nazi administration found it easier, a decade later, to persecute ‘enemies of the state’ with unjust convictions. Is Keir Starmer’s government confident that none of its successors will do the same thing? 
 
Hal McNulty is a paralegal at Corker Binning and a future pupil barrister at 25 Bedford Row.

(Suggested citation: H. McNulty, ‘Forgetting Our Democratic Settlement: Lammy’s Plan to Curb Jury Trials’, U.K. Const. L. Blog (13th January 2026) (available at https://ukconstitutionallaw.org/))