Clear the courts… but not at the expense of trial by jury

Shabana Mahmood, the justice secretary, needs to be careful in trying to speed up the criminal justice system, says John Rentoul. The right to be tried by one’s peers should not be given up so lightly

The most surprising thing that Shabana Mahmood, the justice secretary, said during her media round this morning was that demand for prison places is “still rising faster than any supply could possibly catch up with”.

In other words, she has had to release prisoners early as an emergency measure, she has stepped up the prison-building programme, adding more temporary cells and refurbishing unusable ones, and yet “we will still run out of prison places” in three years’ time.

What she appeared to be saying, therefore, is that something else will have to be done. She was clear about what that should not be – but she was strangely unforthcoming about what it might be.

Mahmood insisted that she was in favour of imprisonment, both as a punishment and to protect people from dangerous criminals. She was not in favour of another early release scheme – that was something that she had been forced into by the disastrous overcrowding inherited from the Conservatives.

But then she admitted that “building alone is not enough”. As Sarah Sackman, her junior minister, said in the Commons yesterday, “we must, therefore, go further”. Yet neither of them would say how.

One obvious route is to contract out a drive for fewer custodial sentences, or shorter sentences, to David Gauke, one of Mahmood’s predecessors as justice secretary. Gauke has been charged with reviewing sentencing policy and will report back next year.

If he suggests greater use of alternatives to prison, such as using technology to monitor and restrict convicts’ movements, that will give Mahmood some cover to cut prison numbers without appearing soft. Even so, Gauke’s reputation as a liberal Tory means that he is likely to be dismissed by Robert Jenrick, Kemi Badenoch’s shadow justice secretary, as a sellout to Labour. (Gauke was thrown out of the party by Boris Johnson for voting against a no-deal Brexit, so in the eyes of many Tories, he is at best some kind of social democrat.)

My starting point in the sentencing debate is to point out that Britain imprisons more than twice as many people, as a proportion of our population, than the Netherlands and Germany. I do not believe that this is because the Dutch and the Germans allow criminals who are an apparent danger to others to roam the streets. We must be locking up, at great expense, large numbers of people who should not be in jail. If Gauke can do something about that, it would be an invaluable public service.

But there are other ideas for “fundamental reform” of the criminal justice system, in Sackman’s words, and they are more worrying. One way of cutting the prison population is to speed up justice so that fewer people are held on remand, awaiting trial. Nearly one-fifth of the prison population is remand prisoners, and not all of them are going to go back to jail when tried.

One plan would be to restrict the right to jury trial, which takes longer, for lesser offences. A “source close to” Mahmood said she had not ruled out the idea, which was proposed by Lord Auld in a review ordered by Tony Blair in 2001.

I am all for speeding up justice but taking away the right to jury trial would be the wrong way to do it.

Not because juries are an inherently superior form of justice. I know of many people who have done jury service and who, as a result of witnessing at first hand the ignorance and prejudice of their fellow jurors, would never opt for a jury trial if they could help it.

However, the right to a jury trial is an essential protection against the authoritarian state. One of the early experiences of my career in journalism was civil service whistleblower Clive Ponting’s acquittal by a jury on Official Secrets Act charges over his leaking of information about the sinking of the Belgrano in the Falklands war. He was mistaken about the sinking, which the Argentine ship’s commander later admitted was justified, and the jury had to ignore the plain meaning of the law in letting him go – but the right of a jury to return a perverse verdict is one of the guarantees of a free society. It should not be given up lightly.

Cut the numbers in prison by all means, but Mahmood does not need to curtail the right to a jury trial to do it.