Matthew Cavedon
World-famous activist Greta Thunberg was arrested by British police right before Christmas. Her alleged offense: holding a sign praising hunger strikers belonging to Palestine Action, a protest group that the United Kingdom’s government recently classified as a terrorist group. British law forbids displaying placards supporting such organizations on pain of being imprisoned for up to six months.
But Greta’s culpability will not be decided by a jury of her peers, in spite of ancient English legal norms—the United Kingdom has recently escalated its long campaign to force more and more criminal defendants to be tried by judges alone.
Unlike us rebellious and free colonists on the west side of the Atlantic, the United Kingdom lacks a written constitution. That made it possible for the government there to up and announce in late November that after eight centuries, the criminal jury trial has proven an undesirable impediment to government justice.
Many of America’s constitutional principles come from England, including the venerable and venerated right to a jury trial in criminal cases. Magna Carta proclaimed all the way back in 1215: “No free man shall be seized or imprisoned… except by the lawful judgment of his equals or by the law of the land.” By the 1760s, the legendary jurist William Blackstone deemed the right to a criminal jury trial the “most important guardian both of public and private liberty.”
Unfortunately, even in Blackstone’s day, the government was often inconvenienced by jury trials. He noted Parliament’s tendency to trim back the common law right to jury trials—but also warned that this trend could “threaten the disuse of our admirable and truly English trial by jury” in all but the most serious cases.
Two centuries later, the current justice minister, Sarah Sackman, is set to make good on that threat. On November 20, she sniffed that she’s had enough of defendants “laughing in the dock” as they look at years of court backlogs before they’ll face trial. “Do we think that someone who has stolen a bottle of whisky from a minimart should receive the right to trial by jury?” So, she’s decided that “vast numbers of cases will now be heard by judges and magistrates rather than juries.” Specifically, the government will push defendants facing sentences of three years in prison or less—including Thunberg—into judge-only courts.
Sackman’s royal “we,” who are supposedly tired of the jury system, doesn’t include 90 percent of the Criminal Bar Association, which condemned her proposal as “an unacceptable price to pay [that] undermines what was a fundamental principle for British justice” and contended that these changes “risked a loss of trust.” But if Prime Minister Keir Starmer’s government is determined to severely curtail the ancient right of trial by jury, which Blackstone deemed “the glory of the English law,” there’s little the British people can do other than hope to someday resurrect it.
Thanks to our ancestors, though, we Americans are supposed to have it better. Our national history began in 1776 with the declaration that we have the right to “provide new Guards” to secure our rights, including the right to trial by jury. The task of providing strong safeguards fell to people like Thomas Jefferson, who described the jury trial as “the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution,” and James Madison, who said it is “as essential to secur[ing] the liberty of the people as any one of the pre-existent rights of nature.” So the American Framers enacted a written Constitution, both protecting criminal defendants’ jury trial rights and requiring that all crimes be tried by jury.
That right has often been as unpopular with America’s bureaucrats as it is with Sackman. And they’ve often had things their way, convincing courts to make up classes of cases that are criminal in nature can be tried by judges alone, such as civil asset forfeitures and “petty offenses.” Indeed, under current American law, Greta Thunberg would not be entitled to a trial by jury here either because her maximum sentence would be less than six months’ imprisonment. Prosecutors have also used coercive plea bargaining to remove jury trials as a serious option for all but a minuscule number of defendants.
Still, as the Supreme Court has eloquently put it, our Constitution stands in condemnation of such chicanery:
When the American people chose to enshrine [the jury trial] right in the Constitution, they weren’t suggesting fruitful topics for future cost-benefit analyses. They were seeking to ensure that their children’s children would enjoy the same hard-won liberty they enjoyed.
Like the UK’s, our ruling class may find that inconvenient. But that’s rather the point. Neither Greta Thunberg nor purported pilferers of whiskey should be put behind bars without conviction by a jury of their peers.