If black lives matter, now is not the time to abandon the jury system

A few decades ago, I was lucky enough (or depending how you see it, unlucky enough) to perform jury service. It was at times a rather surreal experience – one that taught me as much about our social order as it did about our justice system – and how they influence each other. It felt a bit like a university group project but with random strangers instead of a group of like-minded colleagues.

The random people in my 12 included: a super-assertive white male investment banker, a born-again Christian Nigerian woman who at the start of deliberations tearfully remembered the biblical requirement not to judge (“lest thee be judged” she reliably informed us), a morally upstanding white hippie who would go outside to smoke weed during the breaks, three rather quiet women, multiple 50-something “my football team is better than yours, let’s go argue about it over beer” types, a somewhat menacingly observant accountant, and me.

We convicted on a majority decision (as the born-again Christian Nigerian lady was in no mood to go to hell). Interestingly, the deliberations were led by the person highest on the social ladder: the white male investment banker (he was elected lead juror). His personality, assertiveness and pattern of speech (which loudly hinted towards a private education) were more than strong enough to dominate the room. It felt like this was a natural environment and role for him – as if he could have become a judge had he not chosen a career in investment banking.

He was after all in that narrow class of Britons who make it into such professions – 65 per cent of senior judges in England and Wales are privately educated, compared to just 7 per cent of the general population, while 71 per cent of senior British judges went to either Oxford or Cambridge. A report by the Sutton Trust found that, by proportion of privately educated staff, being a judge is the single most elite profession in Britain.

Tragically the people most likely to stand before a judge on a criminal matter are their social and economic polar opposites: the poor and the poorly educated. Which means that they, the judges, are often presiding over the lives and livelihoods of people they are least likely to understand, relate to or know.

As is usually the case when ethnicity and gender are thrown into the mix things get alarmingly worse. The judiciary remains a largely white male playground.

Judges are truly not your peers. Juries, at least theoretically, are. Hence why the “suggestion” by the Lord Chief Justice, Ian Burnett, that ministers should consider limiting the availability of jury trials for some offences if court delays become unmanageable, should be of grave concern to everyone.

Lord Burnett’s suggestion obviously didn’t come out of a nefarious clear blue sky but is, on the face of it, due to the difficulties and social distancing requirements created by Covid-19.

It should be noted that his suggestion is only related to “either way” offences, meaning criminal offences that can be heard in the magistrates’ or Crown Court. “Either way” offences include: theft, burglary, possession of drugs, possession with intent to supply drugs, affray, assault (occasioning actual bodily harm), etc.

Well, the suggestion by the (privately educated white male) Lord Chief Justice is now being taken forward as legislation by the (privately educated white male) Lord Chancellor Robert Buckland QC. Which means that in a matter of weeks jury trials for “either way” offences could be temporarily suspended. This is very concerning, and especially so for black and other non-white people.

By virtue of the fact that they are composed of humans likely to be raised in our very imperfect and at times systematically racist society, juries are by no means perfect or non-racist, let alone anti-racist.

However, juries exist for a very good reason: they are much more representative of wider society than the tiny pool of people who become judges. Therefore juries are in theory likely to arrive at fair and sound decisions. Juries are the flawed bedrock of much needed diversity in our justice system.

In sentencing, which is where judges are left to their biases, we find large disparities for non-white people committing the same offence as white people. Asian people are 1.5 times more likely to go to prison for a drug offence (many of which would qualify as “either-way” offenses) than white people. Black people are roughly 1.4 times more likely to be jailed for drug offences than our white brothers and sisters. Non-white people make up 14 per cent of the population yet they represent 25 per cent of prisoners and over 40 per cent of young people in custody. England and Wales incarcerates a higher portion of its black population than even the United States of America, the home of mass incarceration, private prisons and prison slave labour.

From stop and search to arrest, to being charged, to facing a trial, to taking a matter to a tribunal – any interaction black people and other non-white people have with the criminal justice system is a flirt with disaster. In fact, it often goes much deeper than a flirt. The justice system far too often criminalises, over-imprisons and under-protects us. Removing juries, even on a temporary basis, could prove disastrous, especially for black and other non-white people. The jury is the one remaining backstop against institutionalised abuse of power and removal of freedoms for ethnic minorities and working-class people in the system. They help enshrine some degree of notional fairness.

Additionally, removing juries would certainly lead to an even greater loss of confidence in the system. We desperately need to boost confidence in the justice system, not eradicate it further.

Yes, justice delayed is justice denied. But is justice without a jury (where there should be one) really justice? Perhaps justice delayed to ensure a jury is in place is justice… delivered.

Nels Abbey is a writer and media executive based in London. His debut book, Think Like A White Man, will be out in paperback on the 16 July 2020.