Here is the column:
“Criminal trials without juries are a bad idea,” Labor MP David Lammy said in 2020 as he denounced calls to reduce jury trials in criminal cases to save money. Now secretary of state for justice and lord chancellor, Mr. Lammy is seeking a major rollback on the quintessential right secured more than 800 years ago in the Magna Carta.
According to media reports, the government previously sought to remove jury trials for all cases involving a maximum jail term of five years. Now the government is moving to allow jury trials for “indictable-only” offences such as murder and “either-way” offenses with likely sentences of more than three years in prison. Judge-only “swift” courts will hear cases ranging from burglary, theft, fraud, sexual assault to stalking. Judges will also sit without a jury in fraud and financial cases deemed too complex for jurors.
For some of us, the greatest concern lies in how these reforms will interact with the prosecution of speech offenses. In the last two decades, free speech protections in the U.K. have been eviscerated. The criminalization of speech has expanded exponentially as individuals and groups call the police to silence those who criticize them or advocate opposing views.
Even silent prayer or “toxic ideologies” can lead to arrest. Expressing concerns over Western cultural values is now treated as an admission of “right-wing ideology,” warranting investigation. In April, the Times reported that police are making around 12,000 arrests per year over online posts.
Under the new proposal, these cases would generally be heard without juries, which may represent the last hope for free-speech advocates seeking to blunt the government’s onslaught. Research by the Free Speech Union in Britain indicates that defendants in speech cases are twice as likely to be acquitted by a jury than by a judge.
We have already seen justice meted out by British judges in speech cases. A few years ago, a neo-Nazi living with his mother was found to have a room filled with hateful symbols and material.
Judge Peter Lodder dismissed free speech concerns over the defendant’s possessions with a truly Orwellian flourish: “I do not sentence you for your political views, but the extremity of those views informs the assessment of dangerousness.” Calling the defendant “a right-wing extremist,” Mr. Lodder said the contents of his room were evidence of “enthusiasm for this repulsive and toxic ideology.”
Unlike Americans, the British tend to presume that government action is guided by benign motives. And the collapse of free speech in the U.K. has been, in part, due to the lack of American-style protections—like the First Amendment—for antigovernment or unpopular speech.
It is a crushingly ironic moment for both countries. Jury trials were a major catalyst in Americans’ early struggle against British abuses, as I discuss in my forthcoming book, “Rage and the Republic: The Unfinished Story of the American Revolution.”
We are, in fact, approaching the 300th anniversary of one of the most important speech trials in American history, that of John Peter Zenger, editor of the New-York Weekly Journal. Zenger was arrested for exposing the corruption of colonial Governor William Cosby. After replacing the original judge and disqualifying Zenger’s counsel, the Crown lost its case when it was defied by a jury, which acquitted Zenger, even though under existing laws the paper’s writings were, indeed, libelous. One of the earliest examples of jury nullification in North America, this case influenced the Founders as they moved to guarantee public trials by jury in the Constitution and the Bill of Rights.
Back in 2020, Mr. Lammy stressed that jury trials were a bulwark against government abuse and a guarantor of justice, that they acted as “a filter for prejudice.” Now, as justice secretary, he finds jury trials to be too expensive and unnecessary.
Chairman of the Criminal Bar Association Riel Karmy-Jones has said the anti-jury proposal sends “a wrecking ball” through the British system of justice. She is right.
If London doesn’t listen, we’ll see the U.K. regress closer to an earlier, more oppressive state in which citizens are subjects, not the source, of British justice.
Mr. Turley is a law professor at George Washington University and author of “Rage and the Republic: The Unfinished Story of the American Revolution,” forthcoming in February.