the ‘Constitutional’ Right to Jury Trial – UK Constitutional Law Association

The ‘Executive Summary’ of the report of Brian Leveson’s Independent Review of the Criminal Courts: Part 1 opens with a description of a crisis.

Criminal justice is in crisis. The open caseload in the Crown Court has now reached a record high. As of December 2024, there were over 75,000 outstanding cases in the Crown Court. That is more than double the numbers in 2019, and trials are being listed as far ahead as 2029. The aphorism “justice delayed is justice denied” is entirely apt (paragraph 1).

This ‘crisis’ acts as the underlying justification for the 45 recommendations that the report identifies. Over nearly 400 pages, it recommends a number of changes, including several that would affect trial by jury. For some offences and for some serious, complex cases, trial by jury would be removed entirely.

The report raises a vast number of issues. Other commentators and stakeholders—including a committee of the Criminal Bar Association and barristers specialising in financial crime—have considered the efficiency and practicality of the proposals. In this blog post, I focus on a different aspect: Leveson’s rejection of the ‘constitutional’ status of trial by jury. I argue that: (1) trial by jury is likely a ‘constitutional’ feature of the legal system or, at least, a fundamental or very important one; (2) the ‘crisis’ on which Leveson relies does not justify his recommendations in this respect; and (3) a ‘crisis’ must come to an end and, when it does, important features that have been removed should return.

Overview

Leveson’s report makes a variety of recommendations, which relate to a range of matters, from case management and audio-recording of magistrates’ court proceedings to how much credit defendants should get for pleading guilty. As with most reviews of this kind, many of the recommendations are overdue and compelling. However, those that directly affect trial by jury are contentious. The main proposals are that:

(a). the right to elect trial by jury should be removed for certain offences with a maximum sentence of two years or lower (though this could be expanded in a statutory list by amendment);

(b). a Crown Court Bench Division should be created, made up of a judge and lay magistrates trying cases, with a presumption that it be used for any case with a likely sentence of three years or lower;

(c). defendants should be allowed to elect to be tried by judge alone, subject to the trial judge’s consent; and

(d). serious and complex fraud cases, as well as cases of anticipated exceptional length or complexity, should be tried by judge alone.

A ‘Constitutional’ Right to Trial by Jury

How Leveson Rejects the Right

In coming to these recommendations, Leveson rejects the idea that trial by jury is a constitutional right or entitlement. While recognising that it is common to hear arguments that ‘a defendant has a constitutional “right” to a jury’, he asserts that ‘there exists no such constitutional or common law right to a trial by jury, with the result that there is no basis for this to limit any approach to necessary reform’ (Chapter 5, paragraph 42). Indeed, Leveson even seems to go further than this when, in paragraph 48, he moves from rejecting the ‘constitutional right’ to a jury trial to rejecting entirely ‘a “right” to a jury trial’ at all. This is stark: it follows that, on Leveson’s reading, there would be no such obstacle to legislative reform to stop a person being tried for murder in England and Wales without a jury.

It is worth unpicking how Leveson reaches this conclusion. His analysis has three notable features. First, it is one-sided. At the start, the report makes clear that it is not an ‘academic treatise’, so there will not be full footnoting. For example, when the report notes that ‘[s]ome have claimed that there is a constitutional right derived from Magna Carta’, there is no footnoting to indicate the sources for those claims. When it comes to the view that the report endorses, however, footnotes appear. Paragraph 43 of Chapter 5, for instance, cites the remark by another former judge, Robin Auld, in his 2001 review of the criminal justice system that there is ‘no legal basis for regarding the claimed “right” to jury trial as a constitutional entitlement, that is an entrenched right overriding all other legal instruments … or as a right at all’ (paragraph 8). Leveson does not describe the arguments against his position with similar precision or detail.

Second, Leveson misreads two central sources that he does cite. Paragraph 44 of Chapter 5 cites William Holdsworth’s argument that clause 39 of Magna Carta had been misinterpreted and ‘trial by jury developed as a common law tradition not as a constitutional right’. Yet the first citation in the accompanying footnote is actually of page 108 of William Forsyth’s 1852 work, History of Trial by Jury. Page 108 of the digitised copy of the same edition of Forsyth’s book contains two lines discussing Magna Carta; pages 109 to 114 continue the discussion in the context of the origins of trial by jury in the Anglo-Norman period. In those pages, Forsyth makes no argument about whether his interpretation of Magna Carta means that there is no ‘constitutional’ right to a jury trial. Cited next by Leveson in the same footnote, William Holdsworth’s 1903 work, A History of English Law (Vol 1) also contains no such argument. Holdsworth describes the development of juries from members of a community, summoned to provide information by the Norman dukes, to ‘a body of neighbours called in, either by express law, or by the consent of the parties, to decide disputed questions of fact’ (page 317). Holdsworth distinguishes ‘grand juries’ (called together to decide if suspicion should be cast on a person) from ‘petty juries’ (available on appeal by payment to try a person already convicted of a crime), the latter of which came to be drawn from the country at large (pages 321 to 323). Holdsworth does not make a claim that ‘the common law tradition’ is distinct from ‘a constitutional right’; he simply describes that common law tradition.

Third, Leveson adopts a strikingly narrow idea of what is ‘constitutional’. He treats the common law and the constitution disjunctively: ‘as common law tradition not as a constitutional right’ (Chapter 5, paragraph 44). Should we accept this separation between the common law and constitutional rights? Those of us familiar with the major debates in constitutional law know of the possibility of common law constitutional rights (which I discuss below), as well as obiter remarks made in the highest courts that there may be some ‘constitutional fundamental[s]’ guarded by the common law, such as judicial review or the ordinary role of the courts, which even Parliament could not abolish: e.g. AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46 at [50]-[51] (Lord Hope). Such fundamentals have not been recognised in an express, codified context, such as in Magna Carta or the US Constitution. However, when Leveson cites Auld’s earlier report, he does not query Auld’s definition of ‘constitutional’ as ‘an entrenched right overriding all other legal instruments’ or Auld’s reliance on the US Constitution. This approach is too narrow for England and Wales. There is no codified or singular constitutional document of a similar kind. Instead, there are various written and unwritten sources (see, e.g., The Constitution Society, ‘The UK Constitution’).

In this context, we might use the word ‘constitutional’ because a feature reflects fundamental values of a legal system (and society) and the distribution of power among our central institutions, which should be protected unless that feature comes into irreconcilable conflict with those of similar importance. If we were to understand the term ‘constitutional’ in this sense, we might note the fact that trial by jury has one of highest pedigrees of any feature of the legal system of England and Wales. Historical jurists including Coke, Blackstone, Hale, Stephen and De Tocqueville all emphasised the various dimensions of its importance, from its symbolic function to its protection of ordinary people’s liberty. Famous cases have been decided about the importance of jurors’ impartiality and independence from the judiciary, such as Bushel’s Case of 1670 on the impermissibility of fining or imprisoning jurors who acquit defendants. Paragraph 10 of Auld’s own review concedes this ‘aura’.

Taking all this together, Leveson’s sense of ‘constitutional’ seems both (i) acontextual, given the nature of the constitution of England and Wales, and (ii) under-inclusive, so far as it fails to capture the importance long attached to trial by jury.

The Other View: Constitutional or, at least, Important

Leveson does not refer to the discussion of common law constitutional rights by judges and scholars. Mark Elliott and Kirsty Hughes’ book, Common Law Constitutional Rights (Hart, 2020), addresses the meaning, range and uncertainties of such rights, with contributing authors considering rights including access to justice, free expression and equality. In her chapter, Se-shauna Wheatle discusses access to justice—one of the most developed—in the light of R (Unison) v Lord Chancellor [2017] UKSC 51. Although Wheatle notes the room for further development, she identifies the importance of access to justice in the common law and its role in protecting various values, including judicial independence and the enforcement of individual rights and obligations.

In the light of common law constitutional rights, even with their uncertainties, there is at least a reasonable argument in favour of my looser, less formal sense of the word ‘constitutional’. While there is no specific statutory provision or judicial decision enshrining the ‘right’ to a jury in criminal proceedings, this does not necessarily detract from its importance as a feature in the legal system. Trial by jury has a variety of virtues, including the symbolism and practice of public participation in the legal process, fairness to defendants, and its role in maintaining the independence and impartiality of judges when it comes to verdicts returned. I have referred to the historical jurists who have, over centuries, recognised these virtues. Auld’s 2001 review itself cites Blackstone’s Commentaries, Patrick Devlin’s Hamlyn lectures and a body of scholarly literature (paragraphs 9-10). Yet Leveson does not consider the scope for common law constitutional rights at all.

Perhaps, though, this discussion becomes too wrapped up in the questions of what is ‘constitutional’ and what makes a ‘right’. It seems to be common ground that trial by jury is a fundamental or, at least, very important feature of our legal system for many reasons, ranging from symbolism to fairness to public participation. Therefore, the cautious position is this: even if not ‘constitutional’, trial by jury is still very important.

 ‘Crisis’ as Justification

Pause the debate about categorisation, whether ‘constitutional’ or merely ‘very important’. Whichever side we take in the debate, are we justified in removing trial by jury in a range of contexts in the face of a ‘crisis’? As I noted at the start, the report repeatedly emphasises this ‘crisis’. Chapter 2 deals with it in full. Paragraph 9 of the ‘Executive Summary’ makes clear that ‘greater financial investment on its own, without systemic reform, cannot solve this crisis’. The report cites statistics to support the existence of such a crisis. The backlog of cases in criminal courts is huge. There has been a pandemic. Funding has been very low.

The significance of a ‘crisis’ is that it gives us permission to act because we face an emergency. Sometimes, that is a justifiable approach: it forces us to engage with the severity of the problems and to reflect on our practices in order to solve them. At other times, it is unjustifiable: the assumption that everything is ultimately dispensable—including features we hold to be ‘constitutional’ or important—allows us to depart from values that should persist even in times of emergency.

Bernard Manin writes about this phenomenon in ‘The Emergency Paradigm and the New Terrorism’ (published in 2009). In the context of terrorism and habeas corpus, Manin suggests that ‘legal provisions cannot possibly determine the length of crises’. On the one hand, setting an abstract time-limit (e.g. emergency powers which are available for a year) would lead institutions to fail to pay attention to the circumstances of ‘protracted crises’. On the other hand, if renewed ‘emergency’ restrictions continue for long periods of time, governments would end up holding tremendous power, with rights attenuating and those in power becoming unaccountable. To minimise each type of danger, Manin argues that ‘emergency’ changes are justifiable if they exist in a time-limited way and with ‘clear and vivid lines [to] demarcate in reality the beginning and the end of the emergency circumstances’. In the case of the kind of ‘terrorism’ at the time that he was writing, for example, Manin suggests that those conditions were not met. I now consider the same points in relation to Leveson’s recommendations.

1. The Nature of ‘Crisis’

The ‘crisis’ to which Leveson refers is, centrally, about cost and inefficiency. Yes, it could seriously damage the criminal justice system. But it is not the kind of ‘crisis’ that Manin envisages when he gives historical examples, such as the French revolution. Leveson does not make a convincing case that the nature of the ‘crisis’ of criminal justice is enough to justify the removal of constitutional (or fundamental) features of legal proceedings. Trial by jury was not removed in England and Wales, for instance, during either World War or the Covid pandemic.

2. And When the Crisis Ends?

The idea of crisis means that there is a limit of time. This is why it sounds almost unnecessary to talk of a ‘temporary crisis’: it is just a crisis. It is possible to talk of an ‘eternal crisis’, yes, but we need the word ‘eternal’ to distinguish it from a ‘crisis’ alone. It seems beyond Leveson’s scope to decide when this ‘crisis’ of criminal justice will be deemed to have come to an end. Leveson does not offer the criteria that Manin identifies as necessary to ensure that such ‘crisis’-based proposals continue to have proper justification. In this respect, Leveson offers no ‘clear and vivid lines’.

Wrapped in the same failure to consider these criteria, Leveson proposes that his recommendations be adopted on a permanent basis. The report makes little suggestion that they would be time-limited. Nonetheless, if the crisis is the justification for the curtailment of trial by jury, what will happen when the crisis ends? Will we recover the lost jury trials?

Viewed in this way, the most pressing problem with Leveson’s report is not that he suggests the removal of jury trials in a considerable number of contexts. No: the most pressing is that he makes no recommendation about how jury trials would return. This is the type of problem that Manin identified around 20 years ago. The danger with the ‘emergency’ or ‘crisis’ paradigm as a justification to change or remove legal features is that, once they have gone, they rarely come back.

Conclusion

Trial by jury may or may not be ‘constitutional’, though there is a reasonable argument to suggest that it is protected by the common law. It might be that a ‘right’ or ‘entitlement’ to a jury has always been a restricted one or one that other very important considerations can legitimately qualify. But it seems unrealistic to argue that jury trial is insignificant or that it is ripe for restriction. This is something to remember. Leveson’s report contains many sensible recommendations, which scholars and practitioners will welcome with ease. However, we should expect this from a detailed report by a former judge. Against the background of a ‘crisis’, the danger is that the sensible and ultimately more peripheral recommendations will wash over, or distract from, the more damaging. In the sea of Leveson’s recommendations, trial by jury should not be left to drown.

Alex thanks Jake Rowbottom, Se-shauna Wheatle, Paul Scott and Tom Adams for their thoughtful comments on earlier drafts.

Alex Benn is a lecturer at University College and St Catherine’s College, Oxford, and a barrister at Red Lion Chambers.

(Suggested citation: A. Benn, ‘In Crisis: the ‘Constitutional’ Right to Jury Trial’, U.K. Const. L. Blog (18th July 2025) (available at https://ukconstitutionallaw.org/))