Why restricting jury trial access will set us back

Opinion: Lofty language is often used when discussing the virtues of trial by jury, with one English judge famously referring to it as “the lamp that shows that freedom lives”.
The impact of delay in the court system is also frequently described in emotive terms: the phrase “justice delayed is justice denied” will be familiar to many. How, then, are we to assess the Government’s proposal to limit the availability of jury trials in an effort to counter delay?
The Government has been seeking public input on a proposal to lift the threshold at which defendants can choose to be tried by a jury rather than by a judge alone.
Jury trials are more resource intensive and therefore more expensive than judge-alone trials. For charges with a maximum sentence of less than two years’ imprisonment, a judge-alone trial is the only available option. When the maximum sentence is two years or higher, a defendant can choose to have a jury trial.
The Government is considering increasing that threshold to only allow jury trials for charges with maximum penalties of three, five, or seven years’ imprisonment. Any of these changes would significantly reduce the number of jury trials.
There is certainly cause for the Government’s concern about delay in the justice system.
The New Zealand Bill of Rights Act 1990 contains a right to be tried without undue delay for a reason.
Delays take a significant human toll on all involved and can cause evidential problems for the prosecution and defence. The question is whether changing the threshold for jury trial election is the right policy lever for the Government to pull.
This isn’t the first time a government has tried to address delay by adjusting the threshold for jury trial election.
In just the second ever amendment to our Bill of Rights Act, legislation passed in 2011 changed the longstanding threshold of three months’ imprisonment to two years due to concerns about delay and the significant costs involved in jury trials.
The change followed a decade-long review by the Law Commission, which in 1998 had warned that cost and efficiency considerations alone should not justify significant change to the right to jury trial.
Despite the eventual increase, New Zealand’s threshold presently remains comparable to that in other countries with the right to jury trial.
It is fair to be cautious, then, when, a little over a decade after making what was then a significant amendment to an important right, we are once again being asked to consider pulling the same lever to address the issue of delay.
What are we giving up when we reduce access to jury trials to save time and money? And what else could the Government do to alleviate delay?
There are a number of widely accepted benefits to jury trials. Jury trials bring the diverse life experience of 12 members of the public to questions they are well qualified to answer – questions such as what our community considers is “reasonable force” in cases of self-defence, or what should be considered “indecent”.
Another strength of the jury system is the independence of juries from the broader criminal justice system. This independence gives legitimacy to decisions reached in difficult cases.
While trial processes or aspects of the evidence may be criticised after trial by the media or public, it is rare to hear criticism of individual juries. The jury is also considered by many to provide a safeguard against arbitrary laws and government.
The participation of members of the public in our criminal justice system also has broader democratic and societal benefits.
Studies in New Zealand and overseas have shown that many jurors have positive experiences serving as a juror. Jurors surveyed commented on their increased understanding of the process, pride in their contribution and respect for the competence of judges and the way that trials are conducted.
In a time of increasing mistrust of institutions, we should think very carefully before restricting the community’s direct participation in the justice system.
Given these wide-reaching benefits, any proposal that seeks to limit access to jury trials in order to address cost and efficiency concerns should be carefully scrutinised. Raising the threshold risks placing timeliness above all other values in our justice system.
Before resorting to lifting the threshold once again, there needs to be further examination of the causes of delay and other, sustainable solutions.
There are obvious issues – like the backlog resulting from Covid-19, when jury trials were put on hold. But there are also other, more complex considerations.

Between 2018 and 2023, there was a significant uptick in the number of defendants choosing to have a jury trial. The reasons for that change are not currently well understood.
Modern criminal justice processes are also resource intensive. These include more detailed pre-trial processes to ensure fairness to defendants, research-led accommodations made for vulnerable court participants, and increasing volumes of complicated technical evidence.
The real-life pressures in the lives of defendants, witnesses and complainants lead to missed court dates. Limits on funding for professional actors across the justice system remain a problem.
Adjusting the jury trial threshold may seem like a simple solution to delay.
But doing so without properly addressing the broader causes of delay in the criminal justice system risks bringing us back here in another decade.
While jury trials may be time-consuming and costly, we must always be mindful that the preservation of rights may have costs in both time and money.
Submissions on the proposal, which close today, can be made here.