Changes to the criminal justice system threaten to erode both our legal inheritance and the chance for a fair trial by jury, argues David Corker

This century may only be five years old, but it is a dangerous one for the rule of law. Our culture of constitutionalism and due process epitomised within our criminal justice system by trial by jury is in grave threat from an ideology that sees law and legal processes as simply another instrument for an unmitigated and uncompromising attack on crime.


As the last hopes and illusions of building a better world in the aftermath of the Cold War fade and are supplanted by a seemingly never-ending war on terrorism, those of us who believe that the law is more than a tool become open to the charge of sentimentalism, even self-indulgence. Public concern about rising crime must, we are told, be reflected by expedients intended to 'rebalance' our criminal justice system away from the criminal and in favour of the victim.


Under this rubric, our system of criminal justice has been transformed by a myriad of new laws and processes over the past 15 years. From youth crime to organised crime, political and parliamentary rhetoric - when considering yet another bill designed to transfer chunks of power and advantage to the police or prosecution - is permeated by a sense of crisis.


An important fragment of this prolonged strategy is the ever less-concealed official desire to rid the system of its most treasured form and greatest export, trial by jury. Sections 17-23 of the Domestic Violence, Crime Victims Act 2004, which are shortly to be implemented, constitute the most significant erosion yet of a defendant's right in a serious case to jury trial.


Any debate about whether to preserve or throw away juries is a debate about law in which lawyers should actively participate. Juries are a fundamental aspect of our legal inheritance, which is in danger of being discarded. The end of the relentless war on crime and terrorism is not just beyond the horizon with a quick return thereafter to traditional norms.


Those who look forward to the gradual disappearance of juries do not base their case on efficiency, still less the need to convict more defendants. They are sufficiently astute to realise that such an assault on the citadel would rouse significant opposition.


Instead we are told, in an era of entrenched judicial independence and the advent into UK law of the European Convention on Human Rights, the abolition of juries poses no threat to freedom.


I disagree. While juries - like judges - were, and are, open to manipulation, and may have a sense of justice that is humbug, it is plain that, once established, the system of juries became essential to the popular legitimacy of a legal system otherwise often disfigured by oppression. Juries - unlike judges - were not the imposition of law from above. They were able on occasion to inhibit power and offer protection to the powerless.


Many lawyers, especially those on the bench, are fond of pointing to the common law as our supreme legal achievement. Surely an exper-ience of a flexible and unprincipled development of law, in contrast to a codified Romanesque alternative, is something worthy of pride, but the rule of law, except as an empty myth, means more than this.


People are not stupid; legalism depends on fairness more than logic, and our experience has been that juries in our country have been an inescapable contributor to the struggle for the ascendancy of law over arbitrary power.


Lawyers must resist the further erosion of an institution that, through time and circumstance, has proved itself able to defend the citizen and contribute to an unqualified good - the rule of law.


David Corker is a partner at London-based law firm Corker Binning