Courts and Tribunals Bill — Written evidence submitted by Sir Stephen Mitchell (CTB37)

Courts and Tribunals Bill (28th April 2026)

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Session 2021-22

Courts and Tribunals Bill

Written evidence submitted by Sir Stephen Mitchell (CTB37)

In July 2005, I thanked 12 Old Bailey jurors for their services during an eight-month murder trial. Topical then was a government move (which eventually failed), to exclude the use of jurors in ‘long and complex’ fraud trials. In order to emphasise the importance I attached to ‘trial by jury’, and in relation to the ‘long and complex fraud’ proposal, I said to this:
‘But once that thin end of the wedge is driven home, the erosion of the system will have been initiated

. T

he next short

,

and much easier

,

step will be to add another class of long trial to the list.’

20 years later, the government has announced vastly expanded proposals for restricting the use of jurors in many criminal trials – we have moved from the 2005 ‘limited cull’ to one, which, under these proposals will eventually become ‘wholesale slaughter. If these proposals pass into law – and as ‘the new’ gradually becomes ‘the normal’ – more and more cases will be quietly disqualified from jury trial.

I believe that the cost of jurors is a tiny fraction of the Ministry’s overall budget. The government claims that the justification for these proposals is the backlog of between 70-80,000 cases now awaiting trial. That justification was echoed in the united chorus of three former senior judicial figures who recently gave evidence before the Justice Committee. One observed:
‘I think I speak for all of us present: given no backlog, we would not be here at all’.

The backlog is truly scandalous. The only, but wholly inappropriate, key remedy put forward is to abandon the use of a jury in many criminal cases. Yet the jury is the only surviving jewel in what was once this country’s much prized system of criminal justice. The ‘backlog’ must rapidly be reduced – and this will require very radical action. But, not one of the many failings in the criminal justice system is attributed to the role of the jury – least of all the ‘backlog’.

The claim (for which there are no reliable indicators), is that much court time will be saved by using ‘judge alone’ courts to whittle down the grotesque length of this queue. However, views vary from ‘much time’ to ‘no time’ saved. If pre-trial litigation, encouraged by these virgin measures, takes root, there will be more paperwork, more pre-trial hearings and (when permitted) more appeals. The chances of coming up with even an approximately reliable prediction of ‘time actually saved’ are vanishingly slim.

Under these new proposals, a significant number and range of criminal offences (including ‘long’ and / or ‘complex’ cases – not, just as before, confined to fraud) are to be disqualified from jury trial. The judiciary will be saddled with novel and onerous responsibilities. The explanation for the continuing silence of the serving judges upon these proposals appears to have been an instruction not to express their views publicly. The Lady Chief Justice, giving evidence before the Justice Committee, declined to comment on the proposals because they concerned government ‘policy’. More recently, she has expressed real concern for the personal security of judges sitting alone in crime.

Given the radical and contentious consequences of the proposals, this judicial reticence on the ground of ‘government policy’, is an inadequate reaction and entirely contrary to the public interest. After all, the public, as jurors (and therefore as judges who return the verdicts), plays a highly respected role in the criminal justice system. At the very least, the public should know the views of the serving judges, now required replace the jurors. The experience of these judges uniquely equips them to identify and assess the consequences of implementing these proposals. It is not only the scope of the jury’s major role in the system which is now at risk, the altered mechanics of a ‘judge alone’ trial in relation to the admissibility of evidence, has an obvious potential to jeopardise the
fairness
of the trial – a fundamental requirement. Yet only those best qualified to assess, explain, justify or oppose, namely – the independent serving judiciary of England and Wales – remain either silent or silenced.

Trial by jury has been embedded in our constitution for centuries. The proposals constitute a damaging and unwarranted dismantling (a form of legislative vandalism) of a system which has withstood the test of time

and undoubtedly retains full public confidence. This is important, because it is the public, as jurors, who constitute the one intact cornerstone of the criminal justice system which the government now plans partially to dismantle.

It is not generally recognized that behind the smoky veil of the current proposals lurks an entirely different concept of a criminal trial. In ‘judge alone’ trials we will move away from the familiar ‘adversarial’ jury trial into something akin to continental-style ‘inquisitorial’ proceedings – a very different beast; the very person responsible for reaching the verdict is also to preside over the trial. In the majority of eligible cases we will have two but entirely different forms of trial operating in parallel. Two factors will determine under which form many of these cases are to be tried –
first
: the category of offence must qualify for ‘judge alone’ trial; and
second
: a judge must decide whether the sentence for the actual offence charged, if committed by the named alleged offender is likely to attract a prison sentence of three years or less, if so – trial by ‘judge alone’; but If the likely sentence is over three years, then – trial by jury. To identify the
likely
sentence before a trial has even started, when a conviction is not even certain, let alone already recorded, is a time wasting and futile exercise.

A major influence on the sentence will be the defendant’s criminal record – or lack of one. Past convictions for similar offences where custodial sentences were passed may mean a likely sentence of over three years – therefore, jury trial. But, an alleged dwelling-house burglar of good character (no previous convictions and in work) who may be innocent and anxious to preserve his good character must, almost certainly, be a tried by a ‘judge-alone.’ Now, and for the first time, if you are to be tried in the Crown Court your ‘good character’ may well cost you the opportunity of trial by jury. This is bizarre.

Nor should the sort of pressures, threats and dangers to which participating judges may now be exposed, be ignored. Contrast the position of the judge who now has to determine the verdict, with that of the shared anonymity and responsibility of 12 jurors, who, having returned their verdict, return to the privacy of their daily lives. Individual judges may also become the subjects of statistics and predictions worthy of a betting shop– which judge(s) to have, and which to avoid. Why should these ramifications, and the views of serving judges who are to be subject to them, be concealed from the public?

The presence, independence, functions and responsibilities of 12 jurors combine to provide a vital dimension to the overall fairness required of every trial. Over 40 years in the criminal courts, I became ever more convinced that the one untouchable component is the jury.

A government wishing significantly to restrict ‘trial by jury’ should state publicly, and precisely the exact reason(s) for its proposals, demonstrate that it understands, and can cater for, all the identifiable ramifications, and encourage the serving judiciary, former judges, the relevant professional bodies, and indeed the multiple ranks of other ‘judges’ – the general public – to express their views. Here, there has been no manifesto commitment and no consultation. Thus far, the quality of this lawyer-led government’s proposals (and their presentation) on ‘judge alone’ trials has been worse than poor – it has been pitiful and inexcusable.

24 April 2026

Prepared 28th April 2026

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