The recent bout of soul searching with regard to jury trials has come as a result of a Court of Appeal decision in the Menzies World Cargo trial, which has allowed the first non-jury criminal trial to proceed in England and Wales. While the facts in this case appear at first instance to be exceptional, this is a remarkable judgment with potentially profound implications for the criminal justice system.

The Criminal Justice Act 2003 opened the way for the Crown to apply for a non-jury trial where there was a real and present danger of jury-tampering. In the Menzies case there had been three previous trials, the last of which had collapsed over allegations of jury tampering. The appeal court subsequently ruled that the test for a non-jury trial had been passed.

This raises a number of concerns. First, it appeared acceptable that part of the equation in coming to this decision was the cost of jury protection. It seems remarkable that the prosecuting authorities can now simply plead lack of resources to avoid a fundamental principle of English law. What price a right that dates from the Magna Carta? It is often easy for criminal lawyers to use the ‘slippery slope’ argument – that is, once one case has been decided, others will follow. Though I do think this scenario will be relatively rare, what happens when there is a trial of alleged international terrorists? Will the state say that this type of trial must be before a judge alone as there is a real and present danger of jury-tampering?

To understand the dangers of this type of scenario, we need to go back and understand why jury trials are important. These are remarkable institutions, in that 12 lay people are given a huge amount of leeway to decide factual issues in a case and need give no reasons for their decision. I have no doubt that many judges are well equipped for adjudicating on facts and do so in numerous different tribunals. However, criminal trials where liberty is at stake have always been looked at differently from other fact-finding tribunals. Moreover, a decision in criminal trials is often not so much a straightforward fact, but concerns whether a particular course of action was reasonable (say in self-defence) or dishonest in any of its actions (in any fraud offence, for example).

Rose-tinted spectaclesIn these areas, what is reasonable to the lord chief justice may not be reasonable to the 21-year-old in Brixton. It is for these reasons that juries are so fundamental to our system. We should remember that the judiciary is still overwhelmingly white, male and Oxbridge-educated, and that their life experiences will differ from most defendants who come before them.

This is not to say that we should view jury trials with rose-tinted spectacles. Just because we have had an institution for 1,000 years, it does not mean that we should always continue to have it. It was, after all, jury trials that helped wrongly to convict the Birmingham Six and the Guildford Four, and indeed acquit OJ Simpson.

There is also a degree of hypocrisy from defence lawyers, who talk about the importance of jury trials then battle to keep as much information with regard to a case from a jury for fear of ‘prejudicing’ them, or are content for the vast majority of cases to proceed in the non-jury magistrates’ court.

It is not the jury system that needs addressing but the whole criminal justice system. It is without doubt the public service that commands the least support among the public, as well as being one of the most expensive institutions in Europe. In high-profile cases it still regularly convicts the wrong people, and offers no solace to victims or confidence to defendants.

The attack on juries is simply an easy attack to make on a failing system. However, it is time that the system as a whole began to look at itself. It is too often run for the benefit of lawyers, politicians and the judiciary rather than the public it seeks to serve.

Raj Chada is a partner in the criminal department at Hodge Jones & Allen