Keir Starmer's assault on trial by jury marks another step away from the common law tradition and towards an EU-like administrative model of criminal justice
By Bepi Pezzulli
THE STARMER GOVERNMENT'S proposed restrictions on jury trials amount to one of the most consequential constitutional changes attempted in modern Britain. Presented as a technocratic response to court backlogs, the reform would strip thousands of defendants of the right to elect trial by jury in England by channelling increasing categories of criminal cases into magistrates' courts or judge-only proceedings. Ministers insist the objective is efficiency. The constitutional reality is different. The policy weakens one of the oldest restraints on state power in the English legal order.
The reform emerges at a moment when Britain's constitutional culture already appears fragile. Parliament legislates at accelerating speed through delegated powers. Executive agencies increasingly shape public life through regulation rather than parliamentary deliberation. Criminal justice itself has become progressively managerial, numerical, and bureaucratic. The attack on jury trial therefore cannot be understood in isolation. It belongs to a broader transformation of the British state.
The reform
The government's justification rests upon the Crown Court backlog, now exceeding 80,000 pending cases. Ministers argue that the system cannot continue functioning if substantial numbers of defendants retain the ability to elect jury trial for "either-way" offences. The proposed legislation would therefore remove that choice in many categories of case. Matters expected to result in shorter custodial sentences could remain before magistrates or proceed before judges sitting alone in a new division of the Crown Court.
The government also seeks expanded use of judge-only trials in complex fraud and financial-crime prosecutions. The underlying assumption is unmistakable: ordinary citizens are increasingly regarded as inefficient participants in criminal justice.
Such reasoning reflects a conception of justice dominated by throughput, administrative capacity, and institutional management. The vocabulary itself is revealing. Ministers speak of "case disposal", "capacity pressures”, and "system performance”. Defendants become units within an overloaded administrative mechanism. The jury, within this logic, appears as an obstacle to rationalisation.
Yet constitutional safeguards almost always appear inefficient when viewed through purely administrative criteria. A free press complicates governance. Judicial review delays executive action. Due process consumes resources. The point of constitutional protections is precisely to impose limits upon the state even when those limits frustrate administrative convenience.
Why the jury matters
The jury occupies a unique place in the constitutional imagination of the common law. It is not merely a procedural device for determining facts. It represents a political principle: the administration of justice belongs ultimately to the community rather than exclusively to the state.
English constitutional development differed profoundly from continental Europe. The English state emerged gradually through negotiation between Crown, Lords, Parliament, courts, local institutions, and customary liberties. The common law itself evolved incrementally through judicial decisions and communal practice rather than comprehensive codification. Distrust of concentrated authority became deeply embedded within this tradition.
The jury reflected that distrust. Medieval English kings sought increasingly centralised mechanisms of governance, yet local participation remained indispensable. Jurors originally functioned not as passive listeners but as local men expected to possess knowledge of disputes and reputations within their communities. Over time the jury evolved into an independent body evaluating evidence presented in court. Its constitutional significance expanded dramatically during the conflicts of the seventeenth century.
The great constitutional struggles of English history repeatedly turned upon attempts by the Crown to bypass ordinary legal protections. The Stuart monarchy sought pliable judges, prerogative courts, arbitrary imprisonment, and centralised authority. Resistance to those tendencies produced many of the foundational principles of the British constitution.
The jury emerged as one of the central symbols of that resistance. The 1670 Bushel's Case became particularly important. After jurors refused to convict the Quaker preacher William Penn despite judicial pressure, the Court of Common Pleas affirmed that juries could not be punished for their verdicts. The principle established something larger than procedural independence. It confirmed that the state could not fully monopolise criminal justice.
The American colonists later inherited precisely this understanding. Complaints against the Crown included restrictions upon jury trial. The United States Constitution consequently entrenched juries within both criminal and civil proceedings. What the Americans preserved in written form reflected older English assumptions about liberty and dispersed authority.
The jury also carries cultural significance beyond constitutional doctrine. Twelve ordinary citizens sitting in judgment symbolise the idea that criminal law expresses the moral judgment of society itself rather than the technical will of officials. The presence of the jury reminds judges, prosecutors, and governments that they do not exercise unlimited authority. The citizen remains present within the courtroom.
The constitutional implications
The Starmer reforms weaken precisely this constitutional balance. The state acquires greater authority over criminal adjudication while ordinary citizens become progressively marginal to the process. Ministers present the reform as neutral modernisation. In reality, it redistributes power decisively towards institutional actors.
The reform also changes the psychological relationship between citizen and government. A defendant judged by peers confronts society itself. A defendant judged exclusively by professional officials confronts the machinery of the state. The distinction is fundamental.
Professional judges undoubtedly possess expertise and integrity. Yet English common law never assumed that expertise alone constituted sufficient protection for liberty. The tradition instead dispersed authority deliberately because it recognised that even well-intentioned institutions accumulate interests, habits, and loyalties of their own.
The jury introduces unpredictability into the legal process. Governments dislike unpredictability. Administrative systems seek uniformity, speed, and calculability. Yet liberty often survives precisely within spaces resistant to bureaucratic control.
Another crack in the Common Law
The deeper significance of the reform lies in what it reveals about Britain's constitutional trajectory. Over the 40 years of membership in the European Union, the country has increasingly drifted away from the assumptions of common law and towards a bureaucratic conception of governance more characteristic of continental administrative states.
Plea incentives already pressure defendants to avoid trial. Prosecutorial discretion has expanded considerably. Judicial procedure grows increasingly managerial. Legislative power steadily migrates towards ministers and regulators. The weakening of jury trial forms part of this broader evolution.
Continental systems descending from the Napoleonic tradition developed upon different philosophical foundations. The French revolutionary state sought rationalisation, codification, uniformity, and centralised legal authority. Professional magistrates occupied a far more executive position within that structure. Law became identified with systematic state administration.
English common law historically proceeded from almost opposite premises. It evolved through precedent, local practice, adversarial contestation, and suspicion of concentrated power. The jury stood at the centre of that architecture because it inserted society itself into the judicial process.
As longstanding comparative law scholar Barney Reynolds (2021) points out consistently in his works, the preservation of the common law tradition also carries immense economic significance: Common law helped transform Britain into the world's foremost commercial power because it provided predictability, decentralised adjudication, strong property protections, and judicial independence from political authority. La Porta, Lopez-de-Silanes & Shleifer (2007) explain that commercial actors historically preferred common-law jurisdictions precisely because the system evolved pragmatically through precedent rather than through centralised bureaucratic design. London's rise as a global financial centre rested not merely upon geography or empire, but upon confidence in English courts and the stability of English legal institutions. The erosion of core common-law principles therefore carries consequences extending far beyond criminal procedure. A state increasingly governed through managerial discretion, administrative concentration, and weakened civic safeguards gradually undermines the institutional culture upon which long-term economic confidence depends. Daron Acemoglu (2012), recipient of the 2024 Nobel Memorial Prize in Economic Sciences, has demonstrated that investors ultimately place trust not only in markets, but in constitutional traditions capable of restraining arbitrary power.
Starmer appears increasingly attracted to the continental instinct for managerial order. Yet Britain lacks the institutional foundations that accompany civil-law systems. French administrative law operates within a codified constitutional culture fundamentally distinct from Britain's historically uncodified settlement. Importing isolated continental features into the British system produces imbalance rather than coherence.
Britain therefore risks entering a constitutional halfway house: abandoning the safeguards of the common law without acquiring the structural consistency of the civil law tradition.
That such a retreat from the common-law tradition should occur after Brexit—a moment supposedly dedicated to restoring British sovereignty and constitutional self-government—reveals the profound confusion now surrounding the very meaning of sovereignty within the British state.
The administrative state against the jury
The irony is considerable. Sir Keir Starmer built much of his public reputation within the traditions of English criminal justice. Earlier in his career, he defended jury trial as a safeguard against excessive state power. His government now advances the opposite proposition: ordinary citizens constitute an impediment to efficient administration.
The constitutional danger extends beyond criminal procedure. Once governments normalise the idea that ancient liberties may be curtailed whenever institutions become congested, constitutional guarantees cease to function as guarantees at all. Rights become contingent administrative permissions dependent upon fiscal pressures and managerial calculations.
English liberty did not emerge from trust in efficient government. It emerged from distrust of power. The jury remains one of the last institutional expressions of that distrust. Weakening it may reduce statistical backlogs. But it also weakens a constitutional inheritance that distinguished the common law from the administrative state for eight centuries.
Bepi Pezzulli is the Political Director of Italia Atlantica. He is a Solicitor in England & Wales and an Avvocato in Italy. A foreign-policy scholar, he is a councillor of the Great British PAC and Britain Unbound. He posts at @bepipezzulli.
Image of Lady Justice by Tony Baggett from Adobe Stock
