George Orwell noticed the tendency of repressive law to degenerate into farce, when truth becomes a lie and common sense is heresy. This is worth remembering now that the solicitor general, Michael Tomlinson KC, has concluded that it is right to take action against a climate campaigner, Trudi Warner, for holding up a sign outside a criminal court, simply proclaiming one of the fundamental principles of the common law: the right of a jury to decide a case according to its conscience.
Presumably he will be taking the same action against those responsible for maintaining the fabric of the Old Bailey, where a historic plaque is proudly displayed celebrating the “courage and endurance” of the jury that first established this right by acquitting William Penn in Bushel’s case in 1670.
I wonder if displaying other fundamental principles of the common law in the vicinity of a trial court would be considered prosecutable by Tomlinson? Would it be an attempt to pervert the course of justice, for example, to express support on a similar sign for the presumption of innocence or the right to a fair trial? And does this mean that such principles no longer apply? Or that we are simply not allowed to mention them anywhere near a real trial?
I suspect not. The right of a jury to decide a case according to conscience, described in the US literature as “jury nullification”, has always been something of a dark secret in English criminal justice; tolerated but ideally not mentioned in public. Juries have the power to return what is condescendingly called a “perverse verdict” but are never told this by judges in case it encourages them to do so. Trudi Warner’s offence seems to be to have let this particular jurisprudential cat out of the bag.
But what value is a right, you wonder, if it is deliberately kept secret from those who might exercise it? Why are we so coy? And why aren’t juries trusted to be told exactly what their powers are? During the years when they were composed exclusively of right-thinking, white males, selected on a property ownership condition, juries were reverenced in constitutional theory as “bulwarks of liberty”.
However, since the full democratisation of jury eligibility in the 1970s, they have become objects of suspicion and subjected to repeated attack. This is notwithstanding that there is ample recent academic research evidence to show that decision-making by groups of ordinary people, particularly diverse groups of people, is more accurate, more responsible and more successful at reaching the truth of any matter than that by single individuals.
As long ago as the 1960s, in their famous Chicago Jury Project, Harry Kalven and Hans Zeisel demonstrated through the use of large numbers of mock juries and questionnaire responses from judges that the same outcome was reached by professional and lay decision-makers in 89% of all cases. And who is to say that where they differed, it was not the judges who were in error?
Much of the hostility towards juries has centred precisely on their right to defy judicial directions and to reach their decisions according to conscience. Lord Justice Auld, in his 2001 Review of the Criminal Courts, described this power as a “blatant affront to the legal process” while the academic Penny Darbyshire felt that it turned the jury into an “anti-democratic, irrational and haphazard legislator”. Such behaviour might be acceptable in an oppressive and autocratic regime but was surely indefensible in a modern democracy.
This may represent a somewhat overoptimistic view of the benign intentions of constitutional democracies. Roy Amlot, former Treasury counsel and former Bar Council chair, has pointed out that harsh and unpopular laws may indeed be enacted by democratic governments with complete control of the legislature, but in that case, no jury can be forced to implement them.
Nullifying juries have always served as a safety valve against unpopular legislation, or where an otherwise sensible rule leads to an obvious injustice in a particular case. This is surely a vital safeguard in a democracy. Thomas Jefferson famously asserted that the participation of the people in a jury that enforced the law was more important than their role in democratic elections, through which laws were created in the first place!
The “secret power” of jury nullification, as set out by Sonali Chakravarti, professor of government at Wesleyan University and author of Radical Enfranchisement in the Jury Room and Public Life, is as an effective weapon both “against the tyranny of the state” and “against the tyranny of police officers”. Indeed, one of the most potent justifications for independent jury decision-making is as an antidote to the endemic and institutional corruption of decision-making by police, prosecutors and professional judiciaries, to which “no country is immune”.
Given the allegations of institutional corruption in this country’s largest police force, which have resulted in the suspension or being placed on restricted duties of more than 1,000 officers, this scarcely seems to be the right time to be dispensing with or deliberately undermining such safeguards.
The right of the jury to decide cases according to conscience has played a crucial role in the creation of many of the fundamental rights that we enjoy today, such as a free press and the establishment of basic democratic principles in our own Glorious Revolution of 1688 and the American Revolution. But it is no mere historical relic and the need for nullification is as strong today as it was for William Penn in Bushel’s case.
Independent juries retain their vital role in breaking up the circuits of power within criminal justice process. As outsiders, they can sniff out corruption, hypocrisy, persecution and unfairness in ways that are simply impossible for insiders in the system, who are bound by regulations and institutional pressures they cannot evade without endangering their future careers. Juries, on the contrary, can react directly to bullying, oppression and prosecutions that grossly affront public feelings, by merely acquitting without giving reasons.
So perhaps we should reassure Warner that she is not alone in wishing to assert the fundamental principles of common law justice, which have served us so well for so long. These principles are not to be withdrawn or restricted or silenced when considered inconvenient. They belong to all of us.
Richard Vogler is professor of comparative criminal law and justice at the University of Sussex
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