The Obsolesence of the Jury
Is English Liberty compatible with multi-racialism?
At the end of last year, after a government leak, the Justice Secretary David Lammy confirmed that many defendants would no longer have access to jury trials, with cases likely to result in sentences of three years or less to be heard by a judge alone. Under the plan, only the most serious offences, such as murder, rape and manslaughter, would continue to to be tried by a jury. This would contrast with mid-level and lower-level offences such as theft, burglary, lower-level assault or fraud (especially complex and/or technical financial cases), which would move to judge-only or ‘swift court’ procedures. Magistrates’ courts would also receive enhanced sentencing powers, and a new ‘bench division’ tier (sometimes referred to as the proposed Crown Court Bench Division) would handle many of these cases.
Such an unprecedented decision has, unsurprisingly, generated a substantial backlash. Many of those called to the bar, including those associated with the Criminal Bar Association, have warned that the proposals risk ‘destroying a criminal justice system that has been the pride of this country for centuries,’ arguing that jury trials are not the root cause of court delays. The Law Society of England and Wales likewise cautioned that the changes would erode a ‘fundamental right’ to be judged by a jury of one’s peers.
The decision is ripe for attack from Labour’s opponents: Reform has warned that replacing juries with judge-only trials risks ‘further politicisation of the judicial system,’ arguing that stripping away the lay-jury safeguard undermines trust in justice and hands too much power to state-appointed judges. Kemi Badenoch condemned the proposals, saying they would ‘shred this basic right,’ warning that stripping away jury trials was a short‑term decision that threatens fairness, undermines public trust, and erodes the very foundation of the justice system. Meanwhile, the Green Party has also condemned the proposals as ‘an assault on our rights’. Even within Lammy’s own party, backbenchers have expressed unease, with some warning that the reforms could undermine fairness and lead to miscarriages of justice.
Whilst it is natural for many to jump to the defence of jury trials, we should not be too hasty to defend the institution. Britain is not the homogenous country it once was. We are no longer a country in which it genuinely makes sense to describe a randomly selected cross-section of one’s local community as a ‘jury of your peers’. Britain — if not today, then certainly in the very near future — now more closely resembles other multiracial countries which have had to abolish juries to ensure justice can be done in the face of sticky ethnic loyalties. Regardless of one’s opinion of Labour’s decision, this fact renders jury trials — however sadly — outmoded.
That is not to critique jury trials in the abstract, or to suggest it was always the wrong approach for England in the past — rather, it is a frank and pragmatic approach to managing the process of law enforcement in a diverse country and to operating a justice system which will have to process disputes and offences between people who, whilst residing in the same state, share no common culture, history, or identity. A society which is based in common heritage can organise itself according to common cultural understandings of how it wants to live — but one such as we have built, with all its challenges, must simply pursue what is functional.
The jury — legitimisation by the community
A trial by one’s own peers is regarded as an extension of communal wisdom; the idea that ordinary local residents, rather than professional officials or judges, would decide cases, providing impartiality and fairness to court proceedings. A jury would not decide a certain way because it was expedient for the local King, Prince, or Duke, nor would it lean too heavily on some potentially ossified legal precedent constructed by a jurist. Instead, it would apply the common sense of justice and the law as actually practiced by the community.
The idea, however, that juries in England originated exclusively out of early English communal spirit has not always been the consensus among historians. The late-nineteenth-century German historian Heinrich Brunner argued that the introduction of the jury in post-1066 England was not born out of an exclusively communal freedom, but out of authoritarian necessity, arguing that the jury was ‘[training] the subjects for self-government’. That is to say, the collective was forced by the Norman Crown to gather or discern information on its behalf, with any communal character being an unintended consequence.
Other historians have attempted to show reliance on this communal-legal technique in other parts of Europe, and thereby refute its particularly English character. For example, the Belgian historian R.C. Van Caenegem noted the existence of similar institutions in Scandinavian countries. Beyond the regions of Europe which had a direct impact on Anglo-Saxon England, such as Normandy and Scandinavia, many jury-like elements can also be seen in ancient and early-medieval Europe, though they were not used in the exclusively court-context that we know them now: for instance, under Constantine the Great (272-337) the principle that the transfer of land, a practice known as corporalis traditio, had to occur on the property ‘in the presence of the neighbours’ became generally established. In simple terms, it was a procedural change intended to address concerns about tax liability and double conveyancing, ensuring that one’s neighbours became required witnesses to the transfer of title or ownership of land, to ensure the new landowner was known and legitimate.
Such assurances of legitimate property transfer circulated around the areas influenced by the Roman Empire. For example, the Visigothic Code of Alaric (dated 506), provided an explanation (interpretatio) stating that the neighbours of the property sold ‘must be witnesses and present’. This requirement extended even to minor items, ‘…in order that the property of others may not be sold.’ Furthermore, when there were no clear boundaries, the judge was required to seek out the most reliable local knowledge. The law directed the judge to ‘cause those whom he knows to be well informed to give oaths that they have shown the boundary without any fraud,’ often referring, as Macnair notes, to ‘the better informed, or elder’ members of the community.
Overall, the largely European (and not exclusively Norman) method of resolving disputes, determining facts, or confirming certain landownership was rooted in the collective wisdom of those local to where the dispute originated. With this this as our backdrop, we can understand the decree of Ethelred II (968-1016) that twelve thegns (a leading man or nobleman) must be present at each wapentake (a particular geographic administrative division) in 997 as an early step in the development of the jury system in England (or at least something that greatly resembles it) — thus predating the imposition of the practice by any Norman king.
We can rely on Van Caengem further to recognise a communal approach to land disputes akin those seen in Rome, the Frankish Kingdoms, or Scandinavia. An example he provides is the plea between Thorney Abbey and Ramsey Abbey (dating from 1053 to 1055) as a crucial piece of evidence to demonstrate the communal nature of the jury’s basis in Anglo-Saxon law. Two sources of documentation, ‘Cartularium Monasterii de Rameseia’ and ‘Red Book of Thorney’, together record a procedure involving ‘a free inquiry by a body of sworn neighbours to solve litigation on land’. This act of ‘popular recognition’ was vital because it showed that a sworn inquest procedure was in operation to settle land disputes in Anglo-Saxon times, before the Norman Conquest, and without relying on known royal writs for authorisation. Van Caenegem went so far as to describe this as a ‘popular jury’, highlighting the reliance on the collective knowledge of sworn neighbours.
This claim is further reinforced with the work of Naomi D. Hurnard and G.O. Sayles. Instead of arguing that Henry II (1154-1189) was the father of the jury system (as had previously been claimed), Hurnard finds numerous references to men called juratores during the reign of Henry I (1100-1135) in a pipe roll — the earliest of any pipe roll that survives — dated 1130. While this still postdates the Norman Conquest of 1066, this pipe roll confirms the existence of predecessors to Henry II’s presentment juries, which were themselves part of the machinery of the ‘old community courts continuing from Anglo-Saxon days’. Sayles offers further support for this view, arguing that the Anglo-Saxon as well as the Norman kings assigned duties to local communities that included an ‘obligation by the community “to voice suspicions, tell tales, inform against the criminal”’. Thus, Henry II’s establishment of the presenting jury in 1166 merely formalised a long-standing communal obligation to identify and accuse criminals, rather than imposing a completely new authoritarian police measure.
This is, of course, not to say that the jury system didn’t evolve greatly under the Norman kings, particularly Henry II. The Assize of Clarendon in 1166 is identified as the traceable origin of the modern grand jury; this enactment required an inquest by sworn men, twelve from every hundred (a small region) and four from every vill (village or town), to report all persons publicly suspected of serious crimes like robbery, murder, or theft. From this method of inquiry and presentment, Henry II reformed the regular system of communal presentment in his own courts, leading to the two-stage process of indictment and subsequent trial we now know. However, while Henry II did indeed join many elements of existing legal institutions in a standardised procedure, the jury’s communal legitimacy was not only paramount to its creation, but a pre-existing component of legal arbitration.
The jury and the multiracial state
Let us turn away from the Britain of medieval times, and look now at the modern, multiracial United Kingdom of today. How do juries live up to their intended purpose of delivering fair, blind justice to all?
There is little evidence to suggest that the modern British jury is discriminatory — or ‘racist’ — against non-whites. For instance, Are Juries Fair?, a 2010 study authored by Cheryl Thomas, provided the first large-scale analysis covering jury verdicts in the Crown Court over an eight-year period from 2006 to 2014. The study found that non-white defendants were not more likely to be convicted, suggesting that ‘…one stage in the criminal justice process where [non-white] groups do not face persistent disproportionality is when a jury reaches a verdict.’ Specifically, the overall conviction rate for such defendants was found to be 66%, whereas the white conviction rate was 64%, suggesting that being of non-white ethnicity was not a significant factor in being convicted.
Further investigation dividing trials into twelve different offence types, which together account for three-quarters of all jury verdicts (sexual offenses, theft, non-fatal offenses against the person, and public order offenses), showed that conviction rates for non-whites were not only on par with whites for some offences, but sometimes actually lower. For example, in the largest single group of offences that juries decide, sexual offences (34% of all jury verdicts), white defendants had a higher conviction rate (60%) than non-white defendants (55%). While non-white defendants had slightly higher conviction rates for drugs (82% vs. 78%) and deception-related offenses (81% vs. 77%), white defendants were convicted more often in homicide-related and administration of justice offenses.
When a defendant is non-white, an all-white jury will more often struggle to reach a decision the more diverse the area in which the crime was committed is, compared to an all-white jury in a supermajority white area. Thomas herself writes:
One difference did emerge between the verdicts of all-White juries at Nottingham and at Winchester. Nottingham juries had much more difficulty reaching a verdict when the case involved a BME defendant or victim compared to when the case only involved White participants. When both the defendant and victim were White, juries at Nottingham always reached a verdict. But they were only able to reach a verdict in 4 out of the 10 trials with BME defendants, and two-thirds of all cases with a BME victim resulted in a hung jury. No similar trend was found at Winchester.
One specific issue the study set out to examine was whether all-White juries in courts with different local ethnic profiles showed any differences in decision-making towards BME groups. The juror catchment area for Nottingham is predominantly White but includes a number of neighbourhoods with very large BME populations, while the Winchester juror catchment area is overwhelmingly White throughout. It may be that the more diverse local community in Nottingham is in some way related to all-White juries in Nottingham having difficulty reaching a decision when BME participants are involved in a case.
While the study does not offer a definitive or concrete reason for why a jury may act in this way, Thomas speculates this may be an ‘appeared [sensitivity] to cases involving inter-racial conflict’ on the part of the jury. To speculate on the implications of this rather vague language, white jurors may feel compelled to deliver a not-guilty verdict on a non-white defendant, either because of the reception they may otherwise receive from their non-white neighbours or because of social pressure from their white peers. It must be reiterated that the Winchester juries were not more incorrect in their decisions — these were all mock trials, where the evidence in both was equally as clear or ambiguous for the court to see. Whatever the reason, it appears that (at least for whites) the racial composition of the community one lives in will affect a jury’s decision, or at least it will when the defendant is not white and the jury entirely are.
We now shift our attention to non-white jurors. Drawing on both academic studies and anecdotal accounts, non-white jurors do have a tendency to vote in a non-white defendant’s favour. We can begin by looking at Lord Denning’s famous observation of the trials involving black rioters of Bristol in 1980. In his book, Denning reports the clear favouritism blacks hold when they serve as jurors for black defendants:
It was done so as to secure as many coloured people on the jury as possible - by objecting to whites. This meant that five of the jury were coloured and seven white. The evidence against two of the accused was so strong that you would think they would be found guilty. But there was a disagreement.
The underlying assumption is that all citizens are sufficiently qualified to serve on a jury. I do not agree. The English are no longer a homogenous race. They are white and black, coloured and brown. They no longer share the same standards of conduct. Some of them come from countries where bribery and graft are accepted as an integral part of life: and where stealing is a virtue so long as you are not found out… They will never accept the word of a policeman against one of their own.
Denning brings to our attention that, even as early as 1980, there was an apparent tendency for non-white jurors to demonstrate a leniency towards their own. Thomas herself acknowledges this ‘same race leniency’ and an ‘ability’ to ‘perceive racial inequalities in the criminal justice system’ — or, less charitably, a willingness to dismiss the accusations of law enforcement as racially biased out of ethnic solidarity — on the part of non-white jurors, which leads them to be softer on non-white defendants on the basis of their race. Much like Denning’s note that policemen are rarely seen as credible by black people, this distrust is demonstrated against the whole system of the state, with jury service being thought of as — whether consciously or unconsciously — an opportunity to work against that system.
Contrast this attitude with any of the historical examples of the communal nature of legal dispute resolution in ancient and medieval Europe. The state’s method of resolving such disagreements, and subsequently enforcing them, is given legitimacy by basing such judgements in a common understanding of the law. The ‘popular recognition’ recorded by the ‘Red Book of Thorney’ was not achieved by ensuring that subsets of the community could defend the interests of those with whom they shared a perceived identity, but instead by reference to near-universally shared conceptions of justice and the understanding that judgements resulted from the procedure of free and unbiased inquiry. Crucially, judgements were considered in an isolated manner, without reference to broader social questions (such as ‘sensitivity’ to ‘racial conflict’). Nor was serving on a jury seen by some subsection of the community as an opportunity to work against a system which they reject as illegitimate. Rather, it was an opportunity honestly, openly, and impartially to understand and resolve disputes amongst their own neighbours.
This finally brings us onto the demonstrable hostility that non-white jurors demonstrate when it comes to convicting white defendants. In her more well known 2007 study, Diversity and Fairness in the Jury System, Thomas finds that in case simulation studies using real jurors, non-white jurors were indeed found to be significantly more likely to vote to convict a white defendant compared to a non-white defendant in specific scenarios. This tendency towards higher conviction rates for white defendants was generally observed even when the case did not explicitly involve a racial issue. Specifically, in the mock trial scenario involving a charge of Actual Bodily Harm (ABH) where race was not a stated factor, non-white jurors had a high conviction rate of 71% for the white defendant, but only a very low conviction rate of 17% for the non-white defendant. This finding is attributed to a phenomenon described as same-race leniency among non-white jurors, suggesting they showed leniency towards defendants of their own racial group and were more likely to judge white defendants more harshly. Thomas herself states:
BME jurors were slightly more likely to vote to convict the defendant (41%) than White jurors (35%). When juror votes were examined in relation to the ethnicity of the defendant, there was some indication that jurors were more likely to vote to acquit a BME defendant (70%) than the White defendant (53%). However, when juror ethnicity and defendant ethnicity were considered together, more significant differences emerged. As Figure 6.4 and Table 6.2 below illustrate, jurors of different ethnic backgrounds reached significantly different verdicts depending on the race of the defendant. BME defendants were less likely to be found guilty than White defendants, while the White defendant was much more likely to be found guilty by BME jurors than White jurors.
This is not a phenomenon that is exclusive to the United Kingdom. We can gauge how non-whites vote in jury trials by relying on the American meta-study Racial Bias in Mock Juror Decision-Making: A Meta-Analytic Review of Defendant Treatment by Tara L. Mitchell et al., which found similar habits among African American jurors judging white defendants. The writers of the study admitted that they believed that the ‘common wisdom’ was that where there was racial bias in juror verdict decisions, it involved ‘black defendants being treated more harshly by jurors than white defendants’. However, the opposite was in fact true, with discrimination being ‘more prominent in black participants than in white participants’.
The overall research investigated the responses of 7,397 participants across 34 studies, but the moderator analysis isolated the findings specifically for black participants. This analysis found that when black mock jurors judged defendants of a different race (white defendants), their racial bias effect was statistically ‘more pronounced’ than the bias shown by white participants. Consequently, black participants demonstrated a significantly stronger tendency to render guilt judgments for other-race defendants (specifically white defendants) than for defendants of their own race. This result suggested that black participants were indeed more likely to demonstrate racial bias (favouring their in-group, the black defendant) in verdict decisions than their white counterparts.
Coupled with the findings of Thomas, we can assert that juries in multiracial societies are not only biased in favour of non-white defendants (think most infamously OJ Simpson), but are hostile to white defendants. In this respect, the jury’s complete liberty to decide a case gives non-whites the opportunity to punish white defendants for ‘injustices’ against single members of the overall group (most infamously in the case of Derek Chauvin who, based on the evidence presented, was clearly not guilty of murder ‘beyond reasonable doubt’). Frankly, this completely negates the entire original foundations of the jury system. The Visigothic decision to rely on the more informed elders of the community held legitimacy by the fact that they were the elders of that community; that is to say, the elders of the community internally were deciding a matter within the community itself, eliminating any conflict of interest, but relying on the most knowledgeable and most senior of the group — not the most knowledgeable and most senior of an outside faction.
In sum, the foundational principles of the European (and particularly the English) jury system are discordant with the actual reality that is the modern multiracial state. While arguments for juries can be made, whether it be a restriction of judicial power, bringing ‘common-sense’ judgement, or ‘democratic participation and legitimacy’, these appealing ideals in the abstract are hindered by the actual features of modern Britain, and hence in many areas of the country, trials — decided either by judge or jury — will not have these characteristics.
Following the beaten path
In other modern multiracial societies, two broad approaches to jury trials have been taken: intentional (though often unofficial) discrimination of membership, or absolute abolition. Of these two, however, only the latter has been proven sustainable.
In the American South, after explicit racial bars to jury service were deemed unconstitutional in Strauder v. West Virginia, Southern states initially abolished unanimous verdicts. This is because, at least according to Thomas Frampton, ‘…non-unanimity gained political traction as a mechanism for vitiating the veto power that the occasional minority juror might wield through his dissenting vote.’ Of course, with the evidence of positive racial discrimination on behalf of non-white or black jurors mentioned previously, we should not think that the black juror would have always been saving an innocent man. For instance, Frampton records an instance where ‘…the white jury foreman complained to the judge “that the [lone] coloured member of the jury had drawn the colour line” and was holding out for acquittal.’
The example of the American South is, of course, complicated by the discriminatory nature of the justice system and broader society of the time. Fears of partiality on the part of black jurors certainly played a role in these objections, but so did prejudices which were widely held. Indeed, these prejudices to a large extent justify the suspicion of authorities which motivates, in large part, black leniency towards black defendants. Nevertheless, the relevant question to our point is not whether the two black defendants in this particular case were guilty, nor whether the justice system of the American South as a whole was legitimate. Rather, regardless of whether the black juror was genuinely being lenient or merely perceived to be, the jury’s legitimacy was thought to be weakened by this racial ambiguity in the public mind.
Many Southern states subsequently implemented much more aggressively discriminatory practices to bar blacks from juries. This was primarily done by manipulating jury selection criteria and relying on the subjective discretion of court officials. As mentioned, while overt and explicitly racial exclusions were prohibited, states enacted laws that gave discretionary power to judges and jury commissioners to screen potential jurors based on perceived ‘key man’ characteristics such as ‘intelligence, good character, and fairness’. Even in states where statutes did not stipulate such traits, court officials used these subjective measures to define a ‘good’ juror and eliminate prospective black jurors at the earliest stage, the jury wheel. However, this approach was soon to be censured and curtailed: most notably, in Norris v Alabama, Scottsboro boy Clarence Norris’ trial and subsequent death sentence was seen as illegitimate due to the fact that Alabaman authorities had been implementing the aforementioned tactics in order to create all-white juries, and such discriminatory tactics were largely eliminated in the twentieth century.
The most well-known example of juries being outlawed entirely largely on the basis of ethnic conflict is Singapore. In a 1977 interview with the BBC, Lee Kuan Yew described the jury as being ‘…good for Anglo-Saxons or the descendants thereof. It never really worked for non-Anglo-Saxons.’ After independence in 1965, the Singaporean Government had the view (at least described by K. Shanmugam) that if a jury was composed of members of the Singaporean people, it would decide cases ‘by intuition and emotion, rather than logic and reason’, creating a risk of injustice. Indeed Lee, when still a barrister, had defended four Malay Muslims charged with the murder of a white RAF officer, his wife, and their child, using the ‘simple tricks of advocacy’ to work on the jury’s ‘biases, their prejudices, their reluctance really to find four Mussulmen guilty of killing’. After this experience, Lee regarded the jury as a ‘foolish [and], completely incongruous system’, his government abolishing jury trials in 1970.
The rationale behind the abolition was described in one source as being because the Singaporean people ‘…do not share a long history, a common ancestry, or a sense of unity born out of bloody revolution. In fact, we were a highly improbable nation.’ Therefore, to achieve the paramount ideal for Singapore, which Shanmugam asserts is ‘equal opportunity for all, regardless of economic background or social status, race, language, or religion’, the abolition of the jury was thought to be an unfortunate necessity.
While Singapore is the most well known, other examples can also be presented: anxieties concerning caste and communal differences were frequently cited for the eventual abolition of jury trials in India. The high-profile Nanavati case in 1959 highlighted how communal and class issues were perceived to influence outcomes. The defendant, Kawas Nanavati, was Parsi (a particularly affluent group), while the victim was Sindhi. Unsurprisingly, the media coverage and social support for the accused came from particular social circles. Within Indian legal circles, it is often cited how the clash of communities, and not the clash of legal arguments, can influence jury verdicts. An article that was used for the research on the Nanavati case, written in the India-based newspaper The Hindu, states (very matter-of-factly) that the ‘…jury system, which relies heavily on the ability to draw jurors from a largely homogeneous population, was beset with woes from the very outset in the multicultural, multilingual and multiethnic India.’
What is to be done?
The English jury system evolved and operated within a deeply communal environment. It encompassed both the parties of the case as well as the jury itself. In this environment, the jury indeed benefits the course of justice through collective judgement. A panel of citizens of the same area and of the same people judging a defendant or two parties also holding such characteristics will as a result be able to come to a decision on an individual, or case by case basis, as all other competing interests are eliminated. However, Britain in 2025 is not demographically in the same state that it has been for most of its history. It would be incorrect to state that Britain is a ‘homogenous’ or a ‘white’ country. While not (yet) to the same extent, Britain, like the American South, India, or Singapore, should now be regarded as multiracial and multiethnic state, regrettable as that may be.
Accordingly, it may be prudent to uphold Lammy’s decision to restrict the use of jury trials, even if for radically different reasons. As this article demonstrates, an argument against the use of juries in a multiracial society does not need to rely entirely on rhetoric — while white jurors (both in Britain and the United States) may still be capable of coming to decisions that are usually without prejudice or ‘racism’, vindicating Lee’s view of ‘Anglo-Saxons’, the available evidence suggests that non-white jurors have a tendency to be lenient on their own and vindictive against whites.
Britain would merely have to follow the path already traversed by other states, whose leaders have had to assess similar problems and come to similar conclusions — just as Lee utilised the prejudices of the jurors in a multiracial murder trial, similar patterns were noticed by Lord Denning, when the ‘English stopped being a homogenous race’. Therefore, when arguing for the merit of juries, one must consequently argue for the merit of homogenous societies as it is only in such societies that fruits of juries can be obtained.
This article was written by an anonymous Pimlico Journal contributor. Have a pitch? Send it to submissions@pimlicojournal.co.uk.
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