While we were sleeping

By Ann Higgins

You would have to be a very sound sleeper indeed not to be aware of the controversy about the outcome of the case against Ricky Jones, one-time Labour Councillor and more recently a defendant at Snaresbrook Crown Court where he was tried and acquitted at the end of a five-day trial last week. Given what he was accused of doing (encouraging violent disorder contrary to S45 of the Serious Crime Act 2007) had it not been for the immense publicity surrounding the riots, it’s likely that such a case would have slipped beneath the radar. Fortunately, I do not have to explain the legal ins and outs of the case as, very helpfully, the Secret Barrister has done it for us, and in far greater detail and length than I could have done.

However, what I should like to discuss are the some pretty intemperate remarks online and from various politicians, many of whom seem to agree with Chris Philp, Shadow Home Secretary no less, who said on X: 

“It is astonishing that Labour councillor Ricky Jones, who was caught on video calling for throats to be slit, is let off scot-free – whereas Lucy Connolly got 31 months prison for posting something no worse. The development of two-tier justice is becoming increasingly alarming. It cannot have been a question of uncertain evidence as Jones was on video clearly calling for violence. The government must come forward with plans to ensure justice is handed out equally, regardless of the background or views of the perpetrator – but as far as I can see this Labour government seems to be quite happy with two-tier justice.” 

Quite what Mr Philp expects the government to do when a jury acquits someone he obviously thinks should have been convicted is not clear. That a Tory Home Secretary should say something so calculated to undermine the rule of law and respect for our criminal justice system is quite extraordinary and, interestingly, the normally voluble Robert Jenrick, presently Shadow Secretary of State for Justice and Shadow Lord Chancellor has been blessedly silent. Not so Messrs Johnson, Rees Mogg and Grieve (not necessarily people you would expect to agree with each other). Boris Johnson rightly pointed out that being acquitted is not being “let off scot-free” while Rees-Mogg said that it was self-evidently not a case of two-tier justice as “this Councillor was cleared by a jury and Lucy Connolly offered a guilty plea.” And former Conservative Attorney General Dominic Grieve on X said in reply to Chris Philp: 

“Your post is quite astonishing. You either believe in jury trial or you do not. For as long as I can remember, the Conservative Party has seen it as a key part of our freedom under law. If so, you have to accept the right of a jury to bring in a verdict with which you might disagree. You call it ‘two-tier justice’ and try to blame the Labour government for something that you know or ought to know has nothing to do with them. That is the hallmark of the rabble rouser, not a Shadow Home Secretary.”

That seems to me to sum up the position admirably: we are all entitled to our own opinions about the wisdom of Mr Jones’s remarks and whether we might or might not have acquitted him, but if you believe in the jury system you have to accept that juries will occasionally return a verdict with which you do not agree. We cannot second guess verdicts we do not like. Unlike the jury, we did not sit through four days of evidence and legal submissions, we did not hear him or his witnesses being cross-examined, and we did not hear the judge’s direction to the jury about the law. We did not take an oath “to faithfully try the defendant and deliver a true verdict according to the evidence”. More to the point, neither did the many keyboard warriors who are presently suggesting that the case was fixed, the jury subjected to undue influence in some way, or that Lucy Connolly was suborned into pleading guilty by not being allowed bail, while Ricky Jones got bail from the start. However, that isn’t true – following his arrest on 8 August he was held in custody until he entered a not guilty plea on 6 September with bail eventually being granted sometime in October. It seems that when people cannot find the facts to support their beliefs, they make them up.

Unfortunately, our jury system is also under threat from a different source – which may explain the government’s regrettable lack of official defence of the jury system in response to the attacks on the Ricky Jones verdict. Faced with a massive backlog of trials, with some cases being listed many months and sometimes years in advance, the Justice Secretary Shabana Mahmood commissioned former senior criminal judge Sir Brian Leveson to carry out an independent review of the criminal courts which was published on 9 July. In response, the Bar Council has produced a handy critique in which it rejects the proposals to curtail the right to jury trial. These include in cases in which the maximum sentence is two years or less, fraud trials, and what are called “either way offences” (where the defendant may elect either trial in the Magistrates’ Court or by jury) where they propose to create a new court which would comprise a judge sitting with two magistrates.

As the Chair of the Bar Council, Barbara Mills KC says:

“Changing the fundamental structure of delivering criminal justice is not a principled response to a crisis which was not caused by that structure in the first place. As Sir Brian recognises, it is the failure to invest properly in the justice system over decades that has led to the crisis we see in the criminal courts today. 

“We recognise the pressures facing the criminal justice system and the need for reform to tackle the backlogs. We very much welcome the report’s focus on out of court disposals and greater investment in rehabilitation programmes to reduce the number of cases going into the Crown Court – suggestions that we put forward in our submission to the review. These proposals must be considered alongside the recommendations of the Gauke review on sentencing. 

“However, we continue to argue that there is no need to curtail the right to trial by jury – from both a principle and practical position. Juries represent society and are a fundamental part of our system. And on a practical level, it remains unclear how the current resources in the system – magistrates, judges, court staff and courtroom capacity – will be able to meet the demands of the proposed new Crown Court Bench Division. 

“The report rightly identifies the importance of considering and addressing disproportionality in the criminal justice system. If the Ministry of Justice chooses to adopt the proposals to remove jury trials, we agree with Sir Brian that it must undertake detailed modelling of the recommendations before consulting on changes, as well as impact assessments on both equality and justice. At the very least, it should be piloted with a clear end date for review.”

While this is not a proposal to abolish juries entirely, it is not difficult to see how it could be salami-sliced so in the end it exists only for the most serious crimes, and not for those where the state attempts to suppress opposition, e.g. in the Colston Statue case where a jury acquitted in the face of the most obvious evidence of guilt. Once we lose the right to jury trial will we ever get it back?