Under the proposal, soon to be enacted into law, professional judges will hear many of the trials currently heard by Juries.  A single Judge will hear the evidence and determine an Accused’s guilt or innocence alone.

Why should this be cause for concern?  A professional judge will know the law relevant to the charge and the rules of evidence far better than a jury comprised of non-lawyers.  A professional judge will have far more experience of assessing the credibility of witnesses from whom he or she hears at trial.  The process will be much shorter and far more efficient.  Why isn’t this a great idea?

Why not indeed?  Especially as there is currently a back log of nearly 80,000 cases in the English and Welsh jurisdiction awaiting trial.  The delay is as profoundly distressing and frustrating for victims as for those accused of crimes.  Justice delayed is justice denied.

Put aside for one moment the cause of such a monumental backlog for present purposes and avoid the temptation to point to years and years of under investment in the basic administration of justice by this and other governments over the last two decades.  Let’s put it all down to Covid.

A Crown court judge or a paid magistrate (a District court judge) is a government employee.  A civil servant.  They are appointed and paid by the government.  In truth they have little scope for exercising personal discretion.  Parliament dictates the content of relevant legislation which sets out what they can and cannot say in court.  They pass sentences according to a rigid regime of tabulated factors applicable to the circumstances of the offending.  They are functionaries pressing labelled buttons in a prescribed sequence.  A good thing perhaps because it lends a necessary objectivity and parity to the concept of justice.  The same justice for all.  So far so good.

However, we now come to the determination of guilt or innocence. 

The core function of the process of criminal justice.  Twelve jurors will inevitably represent a range of outlook and human experience.  Humans from different social, political, educational, ethnic, employment and cultural backgrounds.  Men and women, old and young and in between.  Conservative or radical in outlook or perhaps moderate.  Twelve people who may well bring a huge range of different viewpoints to bear upon a set of circumstances with which they are unfamiliar.

Surely therefore a jury will be unequipped to deal with legal problem solving and the application of a set of rules to facts once they have determined them?  A trained judge must be much better at this.

Take a step back and consider the nature of the circumstances that may require consideration and resolution.  Not just disputes about money or contracts or collisions.  But circumstances of a very human making, riven, often, with ambiguity.

For the present, more serious allegations will still be tried by juries so the issue of consent in a rape trial, the issue of self-defence in a murder trial will, for example, remain their concern. But defences of self-defence, mistake, provocation or accident in assault trials or considerations of knowledge and possession in allegations of quite serious drug possession or dealing will fall to judges sitting alone to determine.  Issues about which equally well informed, equally honest minds might form widely different conclusions.  There is an inherent subjectivity about the operation of the criminal law as it is invariably circumstance and person specific.  It reflects the breadth of lived human experience.

It also begs the question: why are juries still to determine the more serious allegations if they are somehow inferior decision makers?

Twelve jurors once they have heard the evidence and retire to determine their verdicts can challenge error and preconception.  They can and do weed out bias and prejudice and sympathy and collectively have the capacity to show it for what it is: unhelpful and irrelevant.  A jury can draw upon a pool of varied human experience and apply it according to the rules of court as explained to them by the trial judge.

A professional judge sitting alone?  Where is he or she likely to be from?  A privileged and somewhat closeted background steeped in law and lacking perhaps in a breadth of human experience.  They have no opportunity to engage in a dialogue to correct bias and preconception.  There is additionally, the very real and tangible possibility of cynicism based upon dismissive personal judgment and jaded repetitive human experience of the worst of human nature.  A temptation not to give the Accused person the benefit of the doubt.

Presumably a judge sitting alone in a criminal trial will have to provide comprehensive and lengthy written reasons for their verdict.  This happens when Judges hear trials sitting alone in Western Australia.

Writing a lengthy judgment takes a long time and a judge cannot delay doing so.  They cannot hear another trial and write an outstanding judgment simultaneously obviously.  This will lead to delays in hearing the next trial or the necessary appointment of many new judges or magistrates by the government.

A written judgment will also be more susceptible to an appeal as it’s rationale and possible errors and mistakes can be raked over more easily than a jury’s verdicts.  Inevitably the number of appeals will increase, and a course of justice will not conclude until an appeal is dismissed.  More delay and more frustration for victim and perpetrator.

Finally, consider the danger of the increased power of the government with judge only trials.  A government can enact laws that a judge has no power but to enforce.  Laws to proscribe how people must speak, what they must not protest against, when they must go to prison and how long they must go to prison for.  Human mercy and human understanding play increasingly less role in the determination of human affairs.  The political becomes the orthodox and the operation of discretion and judgment vanishes to nothing.

As democracy recedes in the face of an increasing authoritarianism even in the West, or especially in the West, the restriction of the right to trial by jury will accelerate this process.  Legal functionaries will be permitted and required to do the governments bidding.  A ruling party with a significant parliamentary majority can act with impunity against the very individuals they were elected to serve.

Do not look to the judges to protect you.  They are paid to do the governments bidding whatever their personal views may be.  Their livelihoods depend upon it after all.  Then finally why bother employing an expensive human being to judge at all?  Just feed the facts into an algorithm and press enter.  Is this really what we want justice to look like?