Monday Message 22.06.26

Let there be absolutely NO doubt: the Criminal Bar Association is fundamentally opposed to the proposed restrictions on the right to jury trial

In this edition:

  • Sir Keir Starmer’s Resignation – Our Justice Needs Juries Campaign Continues
  • Our Justice Needs Juries Campaign Continues
  • REASONS WHY THE JUDGE-ALONE PROPOSALS IN THE ‘COURTS AND TRIBUNALS BILL’ SHOULD BE REJECTED – by Sir Stephen Mitchell, June 2026
  • A Brief Update on Fees
  • Other CBA work over the past two weeks
  • **Reminder – Upcoming Dates for MP Visits to Crown Courts
  • **Reminder – Please Share our two briefing Notes with your MP
  • Rajiv Menon KC
  • Bar Council Harassment and Mandatory Reporting Change
  • Bar Council Balint Group reflective practice introduction session – 2nd July

Sir Keir Starmer’s Resignation – Our Justice Needs Juries Campaign Continues

Sir Keir Starmer has now resigned as Prime Minister, and as leader of the Labour Party.

As all reading this will be aware, the debate over the Government’s proposals to restrict the public’s right to sit on a jury, and to be tried by a jury has been rather quiet over the past couple of weeks. All breath was held, waiting for the outcome of the Makerfield by-election,and then for this inevitable moment. We know that Andy Burnham has been elected, but while it seems the way has been paved for him to be the next leader, there are still too many possible variables over what may happen next. Not only in terms of the country’s leadership – we do not know what Sir Keir’s resignation will mean for the current Lord Chancellor, or for the Minister of State for Courts and Legal Services, or what intentions there will be for the Courts and Tribunals Bill. Sir Keir has announced his intention to remain in place until a leadership contest is concluded. We wish him, and those working with him, well for this next stage, and send our thanks for the good work he has done during his time in office.

With all these uncertainties, we cannot be complacent, and so our Justice Needs Juries campaign continues at full strength. The Criminal Bar Association maintains that juries do not cause delays. They are fundamental to justice and fairness, and the one part of the system that mitigates against bias of all kinds.

As Nicki Arch, a victim of the Post Office IT scandal who narrowly escaped prison, said to Emily Dugan in the Times this Sunday “I’m totally convinced that if it wasn’t for the jury I would have gone to prison.”  Her story shows the central importance of juries in deciding cases of alleged dishonesty. The allegations faced by Sub-Postmasters were not ‘minor’ charges – their lives were ruined. In total, 236 Sub-Postmasters were sent to prison, in most cases for between 9 and 15 months. The Courts and Tribunals Bill, would take away the right to elect trial by jury from a defendant of good character in that situation.

Quoted in that article was Sir Stephen Mitchell, one of our most eminent retired High Court judges. Earlier this year he wrote in The Sunday Times  that the measures proposed would be “a form of legislative vandalism”.  Sir Stephen has now written a superb paper, which really drills into everything that is wrong with the Bill, its aims, and the inevitable consequences that will follow if it is passed. He considers the impact on freedom of speech, the threat to judges’ safety, and the “postcode lottery” that would result, together with concerns over the Government’s over-reach and the lack of consultation around such a significant change that was not in Labour’s manifesto.

The paper has been reported in an excellent summary by Charles Hymas in the Telegraph today.

It is a huge honour that Sir Stephen has given the CBA permission to publish his paper in full. We set it out below and also attach it in PDF, together with an excellent summary index.  We urge you to read it and to share these with your MP, and anyone else who may be interested.

 

REASONS WHY THE JUDGE-ALONE PROPOSALS IN THE ‘COURTS AND TRIBUNALS BILL’ SHOULD BE REJECTED –Sir Stephen Mitchell

INTRODUCTION – SUMMARY OF PROPOSALS    (§§1–7)

1.         Currently, a Crown Court jury tries any case in which a defendant, charged on indictment, pleads ‘not guilty’.  It is now proposed that a significant number of these cases, drawn from two statutory categories of offence, should be allocated to ‘judge alone’ trial in a new, but parallel, tier of the Crown Court. Crown Court judges will not be restricted to sitting either in one tier or the other – they will sit in each. The two categories of offence from which these ‘judge alone’ cases are to be drawn are (i) those ‘triable only on indictment’ (these are the most serious offences); (ii) those ‘triable either way’ (ie. either on indictment in the Crown Court or by magistrates in a Magistrates Court).

2.         Offences triable ‘only on indictment’: Under the Bill (s4) these offences will ordinarily continue to be tried by a jury, but in some cases, where the trial is to be particularly long or complex (neither being defined in the Bill) in certain circumstances, a judge may order a ‘judge alone’ trial. Under the Bill (s4 and Schedule 1), additional provisions are added to the Criminal Justice Act 2003, namely – Part 6A (consisting of ss 42A-42C), and Schedule 3ZA (Parts 1 [Offences to which s 42A applies] & 2 [Power to amend Part 1 of the Schedule]). Under the new provisions where:

(i) one or more of the defendants are to be tried on indictment for one or more offences and

(ii) one or more of the offences in the indictment is listed in Part 1 of Schedule 3ZA and

(iii) none of the offences in the indictment is an excluded offence (theses are listed in s 42B) and

(iv) a preparatory hearing has been ordered under s 7 of the Criminal Justice Act1987 or the Criminal Procedure and Investigations Act 1996 – a court may at any time before the beginning of the trial, order a ‘judge alone’ trial, but only if: (a) it is satisfied that the likely complexity or the likely length of the trial (or both) makes it appropriate for ‘judge alone’ trial; (b) the court does not consider that jury trial is in the public interest, and (c) there are no other reasons for considering jury trial would be more appropriate.

3.         Part 2 of Schedule 3ZA provides that the Secretary of State may by order amend Part 1 so as to (a) add an offence to the list in that Part; (b) remove an offence from that list. ‘Offence’ includes an offence under any enactment ‘that is no longer in force’. No such powers are given either in relation to the list of ‘excluded’ offences in s42B or in relation to adding ‘excluded’ offences to the list in Part 1 of Schedule 3ZA

4.         Offences triable ‘either way’. A much larger cohort of cases is to be drawn from offences in this category for trial by a single judge sitting alone (‘judge alone’ trials). The Bill (s 3(1)) introduces new provisions in the Senior Courts Act 1981 (ss 74A-74D). The test to be applied in order to distinguish between ‘either way’ offences, which will continue to be tried by a jury, and those now to be allocated to ‘judge alone’ trial, is whether the allocating judge, having regard to what he is told about the particular offence and the defendant, determines that the ‘likely’ sentence (having also considered the relevant Sentencing Guidelines) following trial and conviction will be  ‘more than 3 years’. If it is, then jury trial; if it is not (ie. if the ‘likely’ sentence is to be 3 years or less) then ‘judge alone’ trial.  Further details of these provisions are set out below (see §§9 et seq).

5.         The provisions in the Bill also apply ‘retrospectively’ to most of the thousands of cases already constituting the current ‘backlog’:  Where s 42A of the 2003 Act (see §2 above) applies in relation to a trial, and the preparatory hearing (whether under the 1987 or the 1996 Act) was ordered before the day on which subsections (2) and (5) of the Bill come into force, an order may be made under that section without a hearing: s4(7) and (8)(c).

6.         Where s74A of the 1981 Act (see §4 above) applies to a trial on indictment of a person and the arraignment of the person on the indictment took place before the coming into force of that section – the court must decide as soon as reasonably practicable whether the trial is to be with or without a jury. That decision may be made without a hearing: s3(4) of the Bill.

7.         With regard to ‘mode of trial’ decisions in either case, there is to be no right of appeal.

GENERAL AND PRINCIPLED REASONS FOR REJECTION  (§1-8)

1.         These proposals did not feature in the government’s election manifesto; there has been no bona fide consultation exercise. The Bill runs to 100 pages in all. The judge alone provisions are complex and border on the impenetrable. Between its publication and Second Reading, MPs were given 13 days to consider it.

2.         The judges most affected by the proposals are those best able to understand their many ramifications. These judges appear to have been under instruction to remain silent, as have the senior judiciary, who have even failed adequately to explain their silence to the public.

3.         As jurors, the public constitutes an essential cornerstone of the criminal justice system. That crucial role is now to be very significantly restricted. The public is entitled to be informed about, and if it sees fit to challenge, the nature and extent of this unwarranted trespass upon, and partial dismantling of, their centuries-old role. The plans, collectively, are an affront to this key component of criminal justice – the jury. Jurors are recruited from ordinary members of the public for the sole purpose of shouldering the heavy responsibility of determining the verdicts in Crown Court criminal trials.

4.         The jury’s historic role and significance are universally accepted and respected. It undoubtedly retains public confidence. Yet the government, particularly those within the Ministry of Justice, have chosen to embark upon a process of violation.

5.         Not one of the many current failings in the criminal justice system can be attributed to the role of the jury.

6.         2-tiers of Crown Court trials: The introduction of the proposals will result in two very different types of trial running in parallel in the Crown Court – one, the ‘adversarial’ form we have long been familiar with – barristers each representing the two sides (prosecution and defence) and a judge holding the ring, ruling on points of law and carrying much of the responsibility for ensuring the fairness of the trial. The other form of trial (a judge, who sits alone, rules on points of law, has the responsibility for ensuring the fairness of the trial and determines the verdict) – is akin to a continental-style ‘inquisitorial’ trial.

Example: (Concurrent trials – in tier A (judge alone), in tier B (jury): On trial in tier A is a black man (X) in his 30s of good character and in employment. He is charged with an offence of dishonesty similar in nature and seriousness to that faced by the defendant (Y) on trial in tier B. Y has many similar offences of the same character stretching back several years and has served several sentences of imprisonment.

The defence advanced by both X and Y in their current trials is that he was ‘framed’ by the police. In each case, the respective character records of X and Y will have been the determining factor in the allocating judge’s decision to order a ‘judge alone’ trial for X (‘likely’ sentence bracket 3 years or under) and a jury trial for Y (‘likely sentence bracket more than 3 years). This perfectly plausible example makes a mockery of the ‘device’ used to determine who is tried by a jury and who is tried by a judge. In this example, who really has the most to lose? If, as it should be, the answer is X, why should he (unlike Y) not have the benefit of 12 minds considering his defence rather than one?

7.         The claim: saving time (therefore saving costs) thereby cutting the ‘backlog’: The government claims that ‘judge alone’ trial will make a significant contribution to the reduction of the current Crown Court backlog (70-80,000 cases) by saving much court time. This claim, unsupported by any respected set of statistics, is the rationale for this ill-judged experiment in criminal justice.

8.         A recent report in The Times May 7 2026) demonstrated, under the headline ‘Courts data casts doubt on jury reforms’, how the backlog is very gradually being reduced. The daily disposal rate is better than HM Courts and Tribunals Service’s chief executive had anticipated. This improvement has been significantly assisted by the government easing its cap on judicial sitting days, although courts are still not sitting at full capacity. The Court’s Minister is reported to have said recently that ‘one of the greatest drivers’ of trial delays was ‘workforce pressures – the fact that we do not have enough prosecutors and defence barristers’. Yet, The Times reports that the Bar Council cannot get the government to produce the increase in criminal legal aid fees promised last December – a boost of the fees by £34M annually.

STRUCTURAL FLAWS

A.  THE SENTENCING DEVICE FOR DETERMINING MODE OF TRIAL  (§9-22)

9.         Senior Courts Act 1981 ss74A-74D: The ill-considered, time-wasting and flawed ‘sentencing exercise’ in respect of defendants in ‘either way’ cases committed for trial in the Crown Court – namely, the judicial pre-trial determination that if the ‘likely’ sentence is ‘3 years or less’ then trial by ‘judge alone’; OR, if the ‘likely’ sentence is over 3 years, then trial by jury:

10.       Determining a sentence within the spectrum of 0 to 3½ years is often a difficult exercise even when embarked upon following trial, conviction, mitigation and the assistance of various reports upon the defendant. It is particularly difficult in relation to the significant cluster of cases falling within the 2½ to 3½ years spectrum. To embark upon this crystal ball exercise even before trial, for a purpose having nothing to do with the actual sentence, but merely to determine ‘mode of trial’, is a mystifying waste of valuable judicial time.

11.       Essentially, this is an administrative decision. To lend judicial credence to it, it is unveiled in the Bill, within a cascade of complicated statutory provisions (involving much time-wasting) as a judicial decision. All of this is to achieve but one purpose: a very substantial, but note – judicially controlled, reduction in the number of jury trials. Discreetly revealing the true nature of the ‘mode of trial’ decision, the Bill expressly provides that once made, the decision as to the ‘likely’ sentence-bracket has no further relevance to any future sentencing issue (whether trial is to be by jury or by ‘judge alone’). This is because the length of the actual post-conviction sentence which can lawfully be passed, is unrestricted (save for any statutory ‘maximum’ for that particular offence). A ‘judge alone’ trial may therefore lawfully conclude with a sentence of over 3 years and a jury trial may conclude with a sentence of 3 years or less (see the proposed s. 74D (4) of the Senior Courts Act 1981 set out in s. 3 (1) of the Bill).

12.       The time of other individuals will also be wasted (so inevitably will be taxpayers’ money) – barristers and solicitors (not to mention listing officers and other court staff). The procedural exercise involved in making this determination is elaborate (although there is no right of appeal – ‘judicial review’ may be another matter). The judge must (s74C (4)(b)): ‘to such extent as may be prescribed have regard to any sentencing guidelines that are relevant to the defendant’s case’. Further, before making the determination, the court must have regard to any allocation guidelines (or revised allocation guidelines) issued as definitive guidelines under s. 122 of the Coroners and Justice Act 2009: s74C (5) – see §21 below. Prosecution and defence advocates must (74C (3)) have an opportunity to make representations as to ‘the sentence which a defendant would be likely to receive…’ [but as to the meaning of these words, see further at §16-17 below]. The prosecution must also have an opportunity to inform the court of the defendant’s previous convictions (if any). There is no provision requiring the prosecution to have an opportunity to inform the court of a defendant’s ‘good character’ (see §16-17 below). Nor is there provision for the production of ‘sentence-related’ Reports: probation, medical, employment, and the like. Strangely, although the Bill requires the judge to ‘consider any of the [prosecution and defence] representations, no provision requires the judge to require, let alone consider, any Report relevant to sentence. The inference is that, for the purpose of this exercise, no Report is regarded as necessary.  The ‘sentencing exercise’ for the purpose of determining ‘mode of trial’ is simply a ‘device’ which has nothing to do with an actual sentence – assuming the defendant is convicted.

13.       Flawed formula for determining ‘mode of trial: The provisions therefore identify the basis for determining ‘mode of trial’ – namely, the answer to one question: whether ‘the defendant if convicted of the offence … for which he is to be tried would be likely to receive a sentence of more than 3 years?’ – if ‘YES’ then jury trial; if ‘NO’ then ‘judge alone’ (see: s 74A (5))  Note that here, the ‘likely’ sentence appears to mean not a specific ‘likely’ sentence but rather, which of two sentence brackets (‘over 3 years’ and ‘3 years or less’) is the ‘likely’ bracket.

14.       However, on the face of s.74C (3), although the language changes and becomes specific [‘Before determining for the purposes of ss74A or 74B the sentence which a defendant would be likely to receive for any offence or offences…’], the approach presumably remains as that laid down in s74A(5) because what is determined for the purpose of ss 74A and 74B is not a specific sentence but rather into which of two sentence brackets the ‘likely’ sentence will fall. The argument supporting this view is based upon s74A (2), (3) & (5), s74C (3). Section 74C (3) must be read in conjunction with the provisions in s 74A.

15.       But even a determination of the ‘likely’ (probable) sentence bracket, must cater both for the offence and for offender. If, for the purpose of this exercise, the defendant’s circumstances are to be largely disregarded (particularly in this range of sentences, ie. from non-custodial to over 3 years), the word ‘likely’ should be replaced by the word ‘possible’. The word ‘probable’, let it not be forgotten, sets quite a high bar – it is the standard of proof required in the civil courts. Would any judge, mindful of the judicial oath, contemplate determining in every ‘allocation’ case coming before the court (perhaps one, two years or more before trial, conviction and mitigation), into which sentence bracket the sentence which may eventually be passed upon a defendant, would be ‘likely’ to fall, without having access to all the necessary reports and relevant information about that defendant? Yet this is precisely what the Bill appears to require. This means that in many cases (particularly those in the 2½ to 3½ years cluster (which of course spans the both ‘modes of trial’), the determination as to ‘mode of trial’ will be made on a flawed basis – namely, inadequate information about the defendant for the purposes of determining into which of the two ‘sentence brackets’ the offender and his offence is ‘likely’ to fall. No wonder there is no reference to the need for reports – more money, more delay in preparation etc.

16.       Defence ‘representations’: Defending advocates will be in an impossible position. In many cases their preferred ‘mode of trial’ will be trial by jury.  What representations can they possibly make? Is it seriously contemplated that before trial and conviction the advocate should at this stage embark upon a form of mitigation? That absurdity is further compounded because to achieve a jury trial advocates will have to argue that the ‘likely’ sentence will be over 3 years! If they argue for ‘3 years or less’, then they are heading for ‘judge alone’ trial. No provision caters for defendants who decline to participate in these pre-trial exercises – what, some might ask, does any defendant really have to lose by so doing? The defence ‘opportunity’, given in the Bill, to make ‘representations’ appears to be pointless – a hollow gesture to disguise a flawed device.

17.       ‘Mode of trial’ (good character): A marked preference for trial by jury, is a point of great importance to some defendants, (and their advocates), particularly defendants of good character who are innocent and for whom their good character matters greatly. Just as ‘previous convictions’ alone could carry a defendant into the ‘more than 3 years’ camp (trial by jury), those with an impeccable past are very probably going to fall within the ‘3 years or less’ camp – so no jury trial for them. Some might regard this inevitable, and eminently avoidable outcome, as unjust if not outrageous.  It is certainly an affront to any notion of ‘Justice’.

18.       The absence of a ‘public interest’ factor in the ‘mode of trial’ determination’ under s 74A: Under s 42A(3) (see Introduction: §2 above) before a court can order that a long or complex case can be heard without a jury, it may only do so if (b) ‘the court does not consider that it is in the public interest for the trial to be conducted with a jury, and (c) the court does not consider there are any other reasons why it would be more appropriate  for the trial to be conducted with a jury’. Why have these two caveats been excluded from the s74A provisions? The assumption that no ‘public interest’ issue can possibly arise in cases where the ‘likely’ sentence bracket is determined to be ‘3 years or less’ is impossible, to understand, let alone defend.

If s74A is to be implemented, it should be subject to each of the two caveats identified in s42A (3). How they could operate within a s74A context is shown in the example of the parallel tiers in operation given in §6 (above). Many would claim it is in the public interest that a defendant of ‘good character’ should be tried by a jury.

19.       The proposals now allow a government to by-pass jury trial:  These provisions now create an opportunity for a government to create offences with a maximum of 3 years, thereby ensuring a ‘judge alone’ rather than a jury trial. Even if the maximum sentence was fixed at 5 years, the government could be reasonably confident, certainly in the case of those with a good character, that the case would be allocated to ‘judge alone’ trial. In short, the government has now created for itself a golden opportunity to by-pass ‘trial by jury’ in ‘sensitive’ cases – for example, any new public order–type offences. The jury remains a citizen’s best protection against ill-conceived or perverse prosecutions based either on an ill-judged assessment of the strength of the case, or on evidence of otherwise doubtful veracity.  The role of the jury also extends to protecting citizens from freedom-restricting legislation enacted by a government to micro-control citizens activities in relation to freedom of speech and freedom to protest. This important protection will now disappear.

20.       However, the true significance of such a development must be assessed in a much wider context – commonly characterized as ‘mission creep’, driven not so much by any particular government, but by the state, with the intention of eventually controlling the criminal justice system. This particular ‘mission’ arguably dates back to the Courts Act 1972 which abolished the old courts, largely locally controlled, of Assize and Quarter Sessions and replaced them with a single, centrally administered court for England and Wales – the Crown Court. Next came the abolition of the ancient office of Lord Chancellor, invariably in those days an eminent, very experienced and well-respected lawyer – certainly a politician – but essentially an experienced and respected lawyer who, by virtue of the office, headed the judiciary. Although the title of the office remains, the status and powers are very different – the Lord Chancellor now heads a government ministry. Since 2010, there have been 12 Lord Chancellors, some not even qualified lawyers. The former and sturdily constructed bridge between the judiciary and the government no longer exists – Lord Chancellors these days do not have one foot embedded in each camp. The Lord Chancellor’s oath also rings rather hollow: ‘I swear that in the office of Lord Chancellor … I will … defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.’

The ‘Lord Chancellor’s Office’ was responsible for judicial appointments. That role is now in the hands of the Judicial Appointments Commission. A visit to its website, assuming it is up to date (many are not), is both informative and revelatory. A cynic might say that this ‘mission’ may be nearing its conclusion if these ‘judge alone’ proposals pass into law.

21.       ‘Allocation Guidelines’ [s74C (2)] issued as definitive guidelines under s.122 of the Coroners and Justice act 2009: Inquiries as to these have proved fruitless.  At the time of writing (June 2026), they do not appear even to exist. The extent to which, if at all, they shed any light upon how the judge should proceed (i) in relation to the extent of the information a judge can consider – in particular information as to the defendant’s circumstances, before determining the ‘mode of trial’; (ii) if the ‘determination’ falls within a ‘likely’ sentence bracket which spans the current pair – namely, 2 ½ -3 ½ years; (iii) in cases where the defendant is of  ‘good character’.

22.       It would be highly unsatisfactory, but not surprising, if these proposals became law before such guidelines were published.

B.  ACTUAL AND PERCEIVED UNFAIRNESS.  (§23-26)

‘Innocent until proved guilty’: ‘unfairness’ arising from features of a ‘judge alone’ trial when contrasted with jury trial

23.       A jury hears nothing of evidence sought to be introduced by the prosecution, if it has been ruled inadmissible by the trial judge. Similarly, a jury will hear nothing of a defendant’s ‘previous conviction(s)’ unless he puts his own ‘character’ in issue or attacks the character of a prosecution witness or unless one or more of the convictions are relevant and admissible in relation to any other live issue in the case. In ‘judge alone’ cases, the judge will also be required to rule upon the admissibility of any prosecution evidence if its admissibility is challenged by the defence. If the judge rules any evidence ‘inadmissible’, the judge must wholly disregard it for the purpose of determining the verdict. Depending upon the quantity and nature of the inadmissible evidence – that, too often, will be a tall order.

24.       Among the various judicial warnings given to the jury at the beginning of, and routinely during, any criminal trial, is that the jurors should not discuss the case with anyone outside their own number – e.g. friends, relatives, advisors and strangers. This is important and is intended to protect the eventual verdict from any risk of ‘outside’ influence. Some judges in ‘judge alone’ trials will find themselves having to break what, until now, was the harmless habit of a judicial lifetime. The observance of this rule by judges responsible for returning verdicts in criminal trials is obviously essential. They should be required to record in each trial that the rule ‘will be’ and ‘has been’ observed.  Other similar warnings are given to jurors (e.g. accessing the internet to gain further information etc.). These too should apply to judges conducting ‘judge alone’ trials. Jurors return to their usual daily routine and their working lives after completing their service. For judges, the role of determining verdicts will be continuing and relentless. Over time, the demands upon an individual judge’s intellectual discipline will become just too great. This risk is by no means catered for by merely requiring the judge to explain the verdict in a reasoned judgment (whatever, in this context, that is meant to mean) given at, or as soon as reasonably practicable after, the conviction or acquittal.

25.       The prospect of ‘judge alone’ trials prompts a reflection about the wider role of the jury in a criminal trial, rarely if ever acknowledged. A jury consists of 12 members of the public (men and women), from different backgrounds and with different experiences who, almost certainly, are unknown to each other. United by their oath, each is immediately aware of the very considerable, but shared, responsibility he or she has undertaken to deliver a verdict – each knows he/she is there to function, collectively, as a judge. A jury is accorded much respect both by the trial judge and the advocates. The very presence of a jury can act as a restraining factor upon any temptation, to which either ‘Bench or Bar’ might fall, to display eccentricities or rank unfairness. The presence of a jury underpins the defendant’s confidence and the public’s confidence in the fairness of criminal trials.  This dimension would be dangerously absent in a ‘judge alone’ trial.

C    VULNERABILITY OF JUDICIARY     (§§26-28)

26.       Vulnerabilities of the judiciary resulting from these provisions: The proposals ignore (or, at best, overlook) the pressures, threats and dangers (including psychological) to which participating judges may now be exposed. Contrast the position of a single judge who has to determine the verdict alone, with that of the shared anonymity and responsibility of 12 jurors who, having returned their collective verdict, return to the privacy and anonymity of their daily lives. Individual judges may also become the subject of the sort of statistics and predictions more commonly found in betting shops, with even a potential for the emergence of an underworld ‘postcode sentencing lottery’.

27.       Public confidence in criminal justice:  The implementation of these proposals will create a significant risk of further, and very seriously, undermining the public’s confidence in the criminal justice system. The confidence and respect afforded by the public to ‘trial by jury’ are founded not upon a sense of tradition or feelings of nostalgia, but upon a system which demonstrably works effectively, and has at its core 12 independent minds randomly selected from ordinary members of the public – in short, collectively a jury constitutes an invaluable harvest of commonsense. It would be foolish to assume that the same degree of confidence will be transferred to judges who return the verdicts.

28.       In the ever lengthening litany of ‘miscarriages of justice’ and of convictions in high profile cases being quashed by the Court of Appeal, what went wrong in each of these cases cannot be attributed to the functioning of the jury, but to the malfunctioning of others or of procedures (often both) – the police, expert witnesses and/or witnesses in other categories, failure to disclose material which should have been disclosed, judges (in relation to the conduct of the trial or the summing-up), and improved scientific knowledge – particularly in relation to DNA analysis, which can rectify the lethal effect of evidence given (albeit in good faith) many years earlier.

CONCLUSION – THE JUDGE-ALONE PROVISIONS ARE UNWORKABLE

Given all the above, are the s. 42A and s. 74A ‘judge alone’ provisions workable?

1.         12(i) S42A:  (Long or complex trials)
Before a ‘complex or lengthy’ trial under s 42A and, its related provisions, can be tried by a judge alone, rather than a jury, a number of qualifying conditions (see s. 42A (1)-(4) must be met. These include ‘the court does not consider either that it is in the public interest for the trial to be conducted with a jury or that there are any other reasons why it would be more appropriate for the trial to be conducted with a jury. Further, none of the offences in the indictment under consideration can be an ‘excluded’ offence (see ss 42A(1)(c) and s42B). Thus, the statutory framework for such a trial is tightly drawn and the issue of sentence is (as it should be) irrelevant to the ‘mode of trial’ decision.

The case against such trials is that – 12 minds are better than one, judges do not have a monopoly of commonsense; there is not a shred of evidence to demonstrate that a jury is unable to cope either with a complex trial or a lengthy trial or a trial sharing both features – all the evidence (and there is a lot of it) is very much to the contrary. That being so, why should the fairness of the trial be put in jeopardy by the judge, who is to determine the verdict, being exposed to what may be a substantial amount of prejudicial inadmissible, or undisclosable, material?

If it is thought to be acceptable for the judge in such a trial to conduct it in the manner apparently anticipated by Sir Brian Leveson [see his 2015 Review, pp 356 & 357), notwithstanding his claimed ‘time-saving’ effect, that would constitute a further, and serious, objection to this form of trial. It would be an unwarranted interference with the presentation and content of the evidence:

p 356 ……. they [the judge and assessors] could pre-read and direct the parties to the central issues thereby avoiding what would otherwise be the necessary deployment of a great body of complex evidence.

P 357 It is worth adding that trials of similar complexity in the Chancery Division and the Commercial Court can be much shorter because the judge is able to provide feedback to the parties both on the evidence and the arguments that appear persuasive and those that are only of marginal (if any) relevance.

In effect, the judge will not only have taken over the role of the jury but will be in danger of trespassing upon the roles of the advocates. Further, what may be of ‘marginal’ relevance at the beginning of a criminal trial can develop into a central issue as the trial proceeds. Above all, such conduct by a judge in a criminal trial could very easily jeopardize the fairness of the trial.

2.         S74A:  (The three-year cut-off point)
This provision identifies a crude and flawed device for determining whether a defendant, who is to be tried on indictment for an either way offence, should be tried by a jury or by ‘judge alone’. The operation of this device, expressed in the Bill as a judicial determination, turns upon whether a judge considers it ‘likely’ that an eventual sentence (for that offence committed by that defendant) will fall into one, rather than the other, of two specified sentencing brackets – ‘more than 3 years’ (jury), ‘3 years or less’ (judge alone). There is no ‘public interest’ factor to which the judge may have regard, indeed the judge has no discretion at all save in choosing the appropriate bracket. A defendant’s ‘good character’ is an almost certain passport to trial by ‘judge alone’, whereas an ‘old lag’ with years of convictions and prison sentences behind him is a very promising candidate for ‘trial by jury’.

Will these provisions (s74A and s42A) work satisfactorily? The answer must be an unqualified ‘No’. There is an inherent unfairness in having two trials on indictment, each of a very different nature to the other, running in parallel in the same court. Can it really be said that one form of trial is equally as fair as the other?  It is inherently unfair for one defendant having his verdict decided by one person (albeit a judge) and another defendant’s verdict being decided by twelve jurors. Equally unfair is that a defendant of ‘good character’, almost by definition, has little prospect of being tried by a jury. The example given above in §6 highlights the absurdity of what is proposed.  Under these proposals, judges themselves will inevitably become more vulnerable.

The media invariably respect a jury’s verdict. Judges, who are anything but anonymous, cannot expect to be treated in the same way – especially as their verdicts will have to be explained. The enormity of the task now required of them was grossly underestimated by Leveson. It will not be confined to controlling the conduct of the trial, ruling on questions of law, and summing-up. It will now include determining the verdict(s) and providing a reasoned judgment. – very different exercises.  Nor is there any reliable evidence that these proposals, if implemented, will save time – the stated rationale for this ill-considered and unjust experiment in criminal justice.
  
Sir Stephen Mitchell
June 2026

Sir Stephen Mitchell was one of the foremost criminal lawyers, practitioners and judges of his day. For over 17 years the editor of Archbold, at the Bar he advanced to become First Senior Treasury Counsel, at the Central Criminal Court (Old Bailey), before becoming a Crown Court judge, sitting at The Old Bailey where he presided over many notable trials. He was then elevated to a High Court Judge and worked alongside Lord Igor Judge at what was then the Judicial Studies Board. He is someone whose experience and knowledge of our criminal justice system is unparallelled.

A Brief Update on Fees

Further to our message sent to members by email on the 8th of June, we have in the last two weeks had a number of meetings with the Bar Council Remuneration Committee, and with the MoJ on the question of both prosecution and defence fees. We have also written to Stephen Parkinson, Director of Public Prosecutions, and to Sarah Sackman MP, Minister of State for Courts and Legal Services, requesting urgent meetings.

Stephen Parkinson quickly and courteously responded to our letter, and we have a meeting with him in early July.

We have yet to receive a reply from Minister Sackman. However, as stated above, we are conscious that the government is in a period of flux, and that our meeting may need to be with another minister in due course.

We were due to have a further meeting with the MoJ this morning, at which we hoped we would be given some clarity around the upcoming consultation on defence fees, and its timetable, understandably that has been cancelled. However, we have just been offered new dates, and it is hoped that the meeting will be rescheduled for the 2nd of July. Our questions around fees are too important to be allowed to drift,  we will keep you informed.

As previously said – As soon as the full proposals have been published, as soon as we know what the final package contains, as soon as we know exactly what we are dealing with, the CBA will be consulting you, our members, on how you want to proceed and on our response.

Other CBA Work

The Officers of the CBA have been promoting the criminal bar daily over the past two weeks. In addition to our above mentioned meetings on fees, we have also met with the Bar Council in respect of jury trials and other issues, the MoJ in respect of the government’s proposals for matched funding for pupillage, the Quality of Advocacy Working Group, the Crown Court Improvement Group, Prison Escort Services and HMCTs, the Victim Commissioner, and others. Three matters deserve specific mention:

  • Chair and Vice Chair meeting with the LCJ – 15th June

The Lady Chief Justice of England and Wales, Sue Carr, kindly hosted a meeting with the Chair and Vice Chair of the CBA on 15th June 2026. The varied topics discussed ranged from wellness at the bar through the condition of court buildings to recruitment and retention at the criminal bar.

We are very grateful for the continuing engagement we have with the Lady Chief Justice and other senior members of the judiciary. These meetings are an important opportunity for us to convey the everyday concerns of our membership to our leadership judges.

  • Junior Bar Meeting with SPJ and Cutts J – 17th June

A group of our CBA junior barristers were invited to meet with Senior Presiding Judge Nicholas Green and Mrs Justice Johannah Cutts to discuss Better Case Management and provide the unvarnished truth about the realities of criminal practice for the junior Bar. It was a constructive meeting, with the judges expressing real interest in the issues raised as well as a desire to continue with this sort of engagement and follow up on some of the matters discussed. Mrs Justice Cutts will be publishing a report on how to improve Better Case Management in the criminal courts. We thank Maya Chopra (Farringdon Chambers), Emma Fielding (The 36 Group), Vincent Scully (6 Kings Bench Walk), Mark Robinson (Garden Court Chambers), Huda Musa (2 Bedford Row), and Faye Rolfe (Red Lion Chambers) for attending the meeting and making representations on behalf of the CBA.

  • CBA Chair on Radio 4’s Podcast The Law Show – 17th June,

CBA Chair Riel Karmy-Jones KC was interviewed by Dr. Joelle Grogan alongside BBC correspondent and frequent visitor to the courts, Adina Campbell about “blitz” courts.  The discussion focussed on their effectiveness, and also touched on the decay of the courts’ infrastructure, the poor working conditions of the criminal bar, issues with retention, problems with diversity in the judiciary, and the other measures that could be considered to reduce delays and the backlog. Also appearing on the episode was Joanne Edwards of Forsters Solicitors, who spoke about how the government is addressing the myth of common law marriage with a new consultation on cohabitation rights.

You can listen to the full episode here: BBC Radio 4 – The Law Show, What are Blitz courts?

  • Parliamentary Summer Justice Reception – 15th June

CBA Chair Riel Karmy-Jones KC and  Vice Chair Andrew Thomas KC, together with Claire Davies KC (leader of the Southeastern Circuit), Samantha Hillas KC (Leader of the Northern Circuit), Chris Rees KC (Leader of the Wales and Chester Circuit), Sarah Jones KC (leader of the Western Circuit), and Caroline Goodwin KC (leader of the North Eastern Circuit) , attended this reception hosted by Andy Slaughter MP on behalf of the Bar Council and the Law Society. It provided an excellent opportunity to speak with a number of MPs and other interested parties on a diverse range of criminal justice topics, including the passage of the Courts and Tribunals Bill.

**Reminder – Upcoming Dates for MP Visits to Crown Courts

All of our recent MP Court visits, orchestrated by the Bar Council, who have liaised with MPs and secured their attendance, and our Circuit Leaders who have arranged for senior members of the bar to host, and have been extremely successful. Please do seek out and engage with MPs at these courts on the dates below.

Upcoming dates are as follows:

  • 26th June, 12.45-14:00 – Northampton Crown Court – Midland Circuit, Harpreet Sandhu KC;
  • 2nd July, 12:45-14:00 – Croydon Crown Court – South Eastern Circuit, Claire Davies KC.
  • 3rd July, 13.15-14.15 – Lincoln Crown Court – Midland Circuit, Harpreet Sandhu KC;
  • 3rd July, 12:45-14:00 – Bolton Crown Court – Northern Circuit, Samantha Hillas KC
  • 10th July, 12:45-14:00 – Caernarfon Crown Court – Wales and Chester, Chris Rees KC;
  • 17th July, 12:45-14:00 – Merthyr Tydfil Crown Court – Wales and Chester, Chris Rees KC;
  • 21st July, 12:45-14:00 – Bolton Crown Court (2nd visit, different MP) – Northern Circuit, Samantha Hillas KC
  • 21st July, 12:45-14:00 – Newcastle Crown Court – North Eastern Circuit, Caroline Goodwin KC

Please contact your Circuit Leader if you would like to help, and for more details.

**Reminder – Please Share our two briefing Notes with your MP

In our meetings with MPs, Riel and Andrew have frequently been asked for a note that summarises in a simple way our position on the Courts and Tribunals Bill. To that end, we drafted these two documents for our Parliamentarians – (i) a briefing note on the key issues, and (ii) a summary of what others have said on the issue of jury trials with media links:

Please do share these with your MP, along with Sir Stephen Mitchell’s paper above.

Rajiv Menon KC

Following the decision of the Court of Appeal in Re Menon [2026] EWCA Civ 573, the matter has returned to the trial judge, Mr Justice Jeremy Johnson, who now has to decide what action (if any) to take concerning the allegation that Rajiv Menon KC’s closing speech in the Elbit Systems protest case breached the Judge’s ruling on reference to ‘jury equity’.  Arguments were presented at a full day hearing on Friday 19th June 2026 concerning the procedural options available, whether the allegations meet the threshold for the commencement of proceedings, and the public interest in proceedings. Johnson J has reserved his decision.

The CBA recognises the potential significance of this case for all criminal practitioners. We will continue to follow it closely.

Bar Council Harassment and Mandatory Reporting Change

Following the appointment of Dame Maria Miller as the Bar Council’s Commissioner for Conduct, a recommendation of the Harman Review, the Bar Standards Board have agreed a protocol with her which sets out how our organisations will work together to support people experiencing bullying, harassment and sexual harassment at the Bar.

The protocol establishes a clear and consistent procedure for the referral and handling of bullying, harassment and sexual harassment reports between the Commissioner and the BSB. The protocol confirms that where such reports amount to serious misconduct, the BSB will take action. Where they don’t meet our threshold for regulatory action, the Commissioner will support individuals to raise their concerns with the responsible body such as chambers or the judiciary.

This protocol is an important clarification. It rightly lets a victim of bullying or sexual misconduct decide for themselves whether to report the allegation to the BSB. The duty to report serious misconduct, construed strictly, could mean that a victim of bullying or sexual harassment by another barrister would be forced to report the matter to the BSB, regardless of their feelings or concerns, or the trauma they may be experiencing. It could also mean that if they confided in a barrister colleague, that person would also be under a duty to report the allegation, even if that was against the complainant’s wishes.

The protocol removes that automatic duty. It rightly puts the complainant in the driving seat in deciding what action to take and allows them to take advice. Importantly, the Bar Council’s confidential ‘Talk to Spot’ reporting system [Spot] means that an allegation can be reported without undermining anonymity.

The full protocol can be found here.

Bar Council Balint Group reflective practice introduction session –  2nd July

Could group reflective practice support your professional development and wellbeing?

In 2025, Barbara Mills KC (then Chair of the Bar) set up the Active Wellbeing Working Group (AWWG), chaired by Charlotte May KC. The committee includes Sam Mercer (Bar Council representative) Kama Melly KC (Chair of the CBA RASSO Committee), Richard Blakeley KC, Stephen Barratt and Emma Cross.

That year, they embarked on an ambitious project to shift the profession’s approach to wellbeing. Instead of focusing solely on crisis intervention, the aim was to build a culture of prevention – one where barristers could reflect on the emotional and relational challenges of practice before they became overwhelming. At the heart of this initiative was a simple question: could structured reflective practice, long used in medicine and psychotherapy, meaningfully support barristers in their day-to-day professional lives?

To find out, the Bar Council partnered with Balint Legal to run its first pilot programme of Balint groups across the Bar. What emerged from this pilot was a rich picture of how reflective practice can support the modern Bar, where it works best and where the model needed refinement during the pilot process. The feedback was great: 84% of those taking part said it helped their wellbeing, and 79% said it helped their day-to-day legal practice. One barrister in the crime and family group said:

“It’s really been life-changing in terms of work and challenged my internal monologue that this is just the way things are and I need to just put up with it/work harder/do better.”

The Bar Council wants to run two more groups this autumn. If you think this might be helpful to you, come along to an online introduction at 5.15pm on 2nd July and find out more. Register here.  Please note – there is no cost associated for participants.

You can also find out more by reading this article by Emma Cross in Counsel and the Bar Council blog.
Yours,

Riel Karmy-Jones KC           Andrew Thomas KC
Chair                                       Vice Chair

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