Present in Judgment: Jury Trial, Neurodivergence and a Gap in theEquality Duty

A note for the House of Lords on the Courts and Tribunals Bill

The Courts and Tribunals Bill has reached the House of Lords in a narrower form than it began. The Government has withdrawn the Crown Court Bench Division. What remains includes the removal of the defendant's right to elect jury trial for either-way offences, and a power for complex or lengthy fraud and financial cases to be tried by a judge alone, with the list of eligible offences set out in a new Schedule 3ZA to the Criminal Justice Act 2003 and (as introduced and debated) amendable by statutory instrument. The loss of the right to elect is likely to affect far more defendants than the fraud power, including neurodivergent defendants whose presentation is already liable to be misread; the participation question raised below arises there too, whenever an either-way case stays in the magistrates' court. I want to raise one question about these provisions that has not yet been put squarely. It concerns neurodivergent defendants, and a gap in the Public Sector Equality Duty that the Bill, as it stands, leaves open.

What a jury is for

A jury is the point at which ordinary people are present in judgment. Twelve people from the community sit in the room, hear the evidence, and look at the person in the dock. In a constitution where the executive and legislature are fused rather than separated, that lay presence is one of the few places where power is genuinely shared with the public at the moment it is exercised over an individual.

Presence works in both directions. The jury is present to the defendant, and the defendant must be able to be present to the court: to follow the evidence, to give an account, and to be understood. Where a defendant cannot do that, the trial loses something even if every procedural box is ticked. That is why the question of who decides is not neutral for defendants whose way of being present is easily misread.

Why neurodivergence matters here

Autism, ADHD and related conditions can meet the definition of disability in section 6 of the Equality Act 2010 where they have a substantial and long-term adverse effect on day-to-day activities. Neurodivergent people are over-represented in the criminal justice system. Their presentation is often misread: a flat affect taken as lack of remorse, literal answers taken as evasion, sensory overload taken as hostility, and a true but unusual account taken as implausible.

The tools to address this already exist: reasonable adjustments, intermediaries and special measures, the Equal Treatment Bench Book, and sentencing guidance on neurodivergence. Their use is widely described as uneven. A tribunal of twelve does not cure misreading, but it spreads the act of reading across many perspectives. A single tribunal concentrates it. Whether that concentration is fair for a particular defendant is exactly the kind of question that ought to be asked before a case is sent for trial without a jury.

The gap in the equality duty

Section 149 of the Equality Act 2010 requires public authorities, when exercising their functions, to have due regard to eliminating discrimination and advancing equality of opportunity, including by meeting the different needs of disabled people. A Minister making regulations to add offences to Schedule 3ZA is exercising a public function and is therefore bound by that duty. Paragraph 3 of Schedule 18 to the same Act creates a deliberate exception. It provides that section 149 does not apply to the exercise of a judicial function, or to a function exercised on behalf of or on the instructions of a person exercising a judicial function. The exception extends to judicial functions conferred on someone other than a court or tribunal. The evident purpose is to protect judicial independence by keeping the procedural duty of "due regard" (which is enforceable by judicial review) out of individual case decisions.

The practical consequence is a split. The equality duty bites at the level of the list — when a Minister decides which offences may be eligible for judge-alone trial — where the question is abstract. It falls away at the level of the individual case, where a judge decides whether this defendant's trial should proceed without a jury. That decision is the exercise of a judicial function. Nothing in the judge-alone test as drafted requires the court to consider whether the defendant can participate effectively in a trial of that form, including by reason of disability or a neurodevelopmental condition. The general equality duty cannot be called on to fill that silence. Two features of the Bill, as debated in Commons committee, widen the gap. First, a case can be directed for judge-alone trial where only one offence on the indictment appears in Schedule 3ZA, so any expansion of the list reaches further than the list itself suggests. Second, the list can be amended by statutory instrument. Even under the affirmative procedure, an instrument cannot be amended, debate is short, and rejection is almost unknown. A boundary of the jury's reach that has historically been fixed by Act of Parliament would become adjustable by future Ministers of any party.

The Government has added a welcome clause requiring an independent review of whether the Bill leads to defendants of different racial groups or socio-economic backgrounds being treated differently. Disability is not named. The defendants whose presence is most easily misread are therefore outside the one review the Bill guarantees.

What the Lords could do

None of this requires the Lords to reject judge-alone trial for genuinely complex economic crime. It requires three modest additions. Illustrative wording follows; I offer it as a starting point, not as finished drafting.

1. A participation test at the point of decision. In the judge-alone provision, insert: "(x) Before making an order under this section, the court must consider whether the defendant would be able to participate effectively in a trial without a jury, having regard to any disability (including any diagnosed or reasonably suspected neurodevelopmental condition) and to any measures available to assist the defendant, and must give reasons for its decision on that question."

2. Stronger scrutiny of any change to the list. Require that any draft regulations amending Schedule 3ZA be laid with an equality impact assessment that specifically addresses disabled and neurodivergent defendants, and be subject to an enhanced (super-affirmative) procedure allowing committees to take evidence before approval.

3. Disability in the independent review. Amend the review clause so that it also covers "defendants who are disabled, including those with neurodevelopmental conditions", and require publication of mode-of-trial and outcome data by protected characteristic to inform it.

Closing

The equality duty was designed to ensure that public power notices people it would otherwise overlook. As drafted, the Bill lets it notice them only in the abstract. A participation test closes that gap at the point where a person's liberty is actually decided, and costs little in time or money. The Lords have the opportunity to make sure that when a jury is removed, the court has at least asked whether the defendant can still be present at their own trial.