By Richard Vogler, Professor of Comparative Criminal Law and Criminal Justice, University of Sussex
George Orwell noticed the tendency of repressive law to degenerate into farce, when truth becomes a lie and common sense is heresy.[1] This is worth remembering today, when the Solicitor General, Michael Tomlinson KC, has concluded that it is a prosecutable offence for a climate campaigner, Trudi Warner to hold 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.[2] Presumably Mr Tomlinson 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 which first established this right by acquitting William Penn in Bushel’s case in 1670. The plaque of course uses almost exactly the same wording as Trudi Warner put on her sign.
I wonder, moreover if displaying other fundamental principles of the common law in the vicinity of a trial court would be considered by Mr. Tomlinson as a criminal offence? 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 American 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, one wonders, 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 was 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.[3] 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”[4] whilst the academic, Penny Darbyshire felt that it turned the jury into an “anti-democratic, irrational and haphazard legislator.”[5] Such behaviour might be acceptable in an oppressive and autocratic regime but was surely indefensible in a modern democracy.[6]
This may represent a somewhat over-optimistic view of the benign intentions of constitutional democracies. Roy Amlott 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.[7] 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 which enforced the law, was more important than their role in democratic elections, through which laws were created in the first place![8] The “secret power” of jury nullification, as Sonali Chakravarti puts it, is an effective weapon both “against the tyranny of the state” and “against the tyranny of police officers”.[9] 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[10], to which “no country is immune”.[11] Given the allegations of institutional corruption in this country’s largest police force[12], which have resulted today in the suspension on restricted duties of over 1000 officers[13], 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 which we enjoy today, such as a free press[14] and the establishment of basic democratic principles in both 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 which they cannot evade without endangering their future careers. Juries, on the contrary, can react directly to bullying, oppression and prosecutions which grossly affront public feelings, by merely acquitting without giving reasons.
So perhaps we should reassure Trudi Warner that she is not alone in wishing to assert in public the fundamental principles of common law justice, which have served us so well for so long. These principles are not in the gift of the Solicitor General nor any trial judge, to be withdrawn or restricted or silenced when considered inconvenient. They belong to all of us and it is our right to assert them today just as strongly and as loudly and as publicly as possible. And since many climate campaigners have now been denied the right to present a defence based on their actual beliefs, where better than outside a trial court to remind jurors, politely, accurately and in a passive, non-confrontational way, of the fundamental common law duties and obligations which they must uphold on behalf of all of us?
Richard Vogler Professor of Comparative Criminal Law and Criminal Justice
University of Sussex
[1] Ingle, S. (2007). Lies, Damned Lies and Literature: George Orwell and ‘The Truth’, 9(4) The British Journal of Politics and International Relations, pp.730-746.
[2] The Guardian, 19 September 2023.
[3] Kalven, H., et al. (1966). The American Jury. Boston, Little, Brown.
[4] Auld, R. (2001). Review of the Criminal Courts of England and Wales. London, HMSO, para.105.
[5] Darbyshire, P. (1991). “The Lamp that Shows that Freedom Lives – is it Worth The Candle?” Criminal Law Review: 740-752, p.750
[6] Brooks, T. (2004). The Right to Trial by Jury, Journal of Applied Philosophy 21(2): 197-212, p.198.
[7] Cited in Lloyd-Bostock, S. and C. Thomas (2000). The Continuing Decline of the English Jury, in Vidmar, N.(ed). World Jury Systems. Oxford, Oxford University Press. pp.53-91, p.87.
[8] Boyd, D. (1958). The Papers of Thomas Jefferson, Vol. 15. Princeton, Princeton University Press, p.283.
[9] Chakravarti, S. (2020). Radical Enfranchisement in the Jury Room and Public Life. Chicago, University of Chicago Press, pp.81, 112.
[10] Wakeham, J. (2022). “Institutional Corruption in the Criminal Justice System: The Case of Ferguson.” Crime, Law and Social Change.
[11] Søreide, T. (2016). Corruption and Criminal Justice: Bridging Economic and Legal Perspectives. Cheltenham, United Kingdom, Edward Elgar Publishing, pp.113-115; Brooks, G. (2019). Criminal Justice and Corruption. London, Palgrave Macmillan, pp.131-157.
[12] https://blogs.sussex.ac.uk/centre-for-the-study-of-corruption/2023/03/28/is-the-metropolitan-police-institutionally-corrupt/
[13] https://www.bbc.co.uk/news/uk-england-london-66842521
[14] Otis, A. (2022). ““Guilty of Publishing Only”: Jury Nullification as a Legal Defense in the Eighteenth Century.” Journal of Interdisciplinary History 53(2): 267-288.
