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Conscience and the courts

It’s called jury service, not jury suggestions

Artillery Row

Last week, the Solicitor General, Michael Tomlinson KC, confirmed that contempt of court proceedings would be commenced against Trudi Warner. On 27 March, Warner allegedly stood outside the Inner London Crown Court, where a trial of climate protesters had been taking place, with a sign telling jurors that “you have an absolute right to acquit a defendant according to your conscience”. Warner was reacting to the actions of HHJ Silas Reid, who had restrained Insulate Britain defendants from referring to their motives during a public nuisance trial (and who were convicted despite the apparent calls for a verdict of conscience). Since one of the defendants disobeyed the orders, he would ultimately be imprisoned for contempt of court. Following the news that proceedings against Warner would go ahead, it has now been reported that a number of protests using the same tactics have taken place across the country.

Despite commentary stating that Warner was merely giving an accurate summary of the law, it is not clear that juries truly have what is described as a “right” to bring a verdict in defiance of the law and the evidence. Lord Justice Auld, in his Review of the Criminal Courts of England and Wales, said:

although juries may have the ability to dispense with or nullify the law, they have no right to do so. Indeed, it is contrary to their oath or affirmation “faithfully [to] try the defendant and give a true verdict according to the evidence”.

Jolyon Maugham’s Good Law Project describes Bushell’s Case from the 17th century as supporting Warner’s placard — pointing out that the “principle” of the case is also etched on a plaque installed in 1907 in the Central Criminal Court (the Old Bailey). The history of Bushell’s Case does not bear out the claim. In 1670, William Penn (famous for founding Pennsylvania) and William Mead had been indicted for unlawful assembly in Gracechurch Street in relation to Quaker activities. The trial was eventful even before the well-known jury deliberations. The defendants were first fined for refusing to remove their hats for religious purposes. Penn loftily, and erroneously, invoked Magna Carta (like some of the Covid protesters on trial in the 21st century). Mead was admonished during the trial for his use of Coke’s Institutes to outline the elements of the common law offence for apparently neglecting a key passage. By the end of the trial, having irritated the judges, both defendants were ultimately kept in the bail-dock.

The jury was locked in a room and denied meat, drink, fire and tobacco

At first, the jury failed to give a verdict, with four jurors dissenting. Later, ignoring the indictment, the jury gave a special verdict of their own: namely, that Penn had been guilty of speaking or preaching to an assembly, and that Mead was not guilty. Angered, the judge ordered the jury to bring a verdict of guilty or not guilty. The jury was locked in a room and denied meat, drink, fire and tobacco. When the jury eventually decided to give “not guilty” verdicts, the judge elected to fine them forty marks each for contempt of court, since they had “followed their own judgements and opinions, rather than the good and wholesome advice which was given”. (In fairness to the judges, it appears from some accounts that Penn at very least may have been guilty of the offence, despite some of the apparent ambiguities in the indictment.)

Several jurors refused to pay their fines and were duly imprisoned. One of their number, Edward Bushell, succeeded in bringing a writ of habeas corpus to the Court of Common Pleas. Sir John Vaughan found in favour of Bushell, who was freed, with his fine set aside. A jury could not be fined for having reached a verdict on the evidence contrary to the wishes of judges. The judgment, however, does not state that juries are entitled to give verdicts of conscience. It is not one of the “fundamental principles of the common law”, as Richard Volger said in the Guardian. Nowhere did Sir John Vaughan make such an observation.

Bushell’s Case opened the door to those verdicts of conscience (otherwise known as jury equity or perverse verdicts) since the law required the secrecy of jury deliberations. Verdicts of conscience do exist, then. They have a history in the legal system of England and Wales. R v Randle and Pottle and R v Ponting provide infamous examples in the 20th century. Juries acting in such a manner have been celebrated by Lord Devlin, in rather excessively romantic language, as “little Parliaments” and the “lamp that shows that freedom lives”. Lord Devlin’s rather unconvincing analogy is that the judge is acting like the executive, whipping backbenchers, who may by conscience ignore the whip. Lord Justice Auld quite rightly said in response:

I regard the ability of jurors to acquit, and it also follows, convict, in defiance of the law and in disregard of their oaths, as more than illogicality. It is a blatant affront to the legal process and the main purpose of the criminal justice system — the control of crime — of which they are so important a part.

A perverse verdict is arguably contrary to the rule of law. 12 jurors are not acting as elected representatives, making open decisions to vote against the executive to which they are answerable. In giving a perverse verdict, they are, as a small, unrepresentative group, arbitrarily ignoring the law as passed by Parliament or the common law as developed by judges. The secrecy of deliberations adds to objections since the public can never know whether the verdict was arrived at on rational grounds. Absence of reasoned verdicts provides a strong ECHR article 6 based challenge to this approach. Although perverse verdicts do exist, judges and barristers do not in practice encourage juries to give them (which appears to have been the case in R v Shipley (1784) 4 Douglas 73, where it was said that juries may find a verdict against the law and evidence “but I deny that they have a right to do so”).

It was only after the 17th century that the familiar evidential rules of the adversarial trial, with regards to relevance and admissibility, would develop in order to control the reliability of the verdict. Historically, judges could coerce jurors to reach the right verdict, requesting that the jury give reasons and requiring them to redeliberate. Since judges relinquished control by fines, they tightened control of evidence and proof. According to Langbein:

As the judges lost much of their former authority to shape the jury’s verdict and correct error in the making, they developed a substitute regime aimed at restricting the potential of the jury to err. Prophylaxis would replace cure as the guiding principle of jury control. [Emphasis added.]

That substitute regime mentioned by Langbein is the core of the argument in favour of bringing proceedings for contempt of court against Trudi Warner. Due to the fact that judges cannot force a conviction, direct a conviction or interfere with deliberations, they attempt to only allow relevant evidence which proves or disproves a matter for the trial. A barrister, for instance, is not permitted to request that a jury should give a perverse verdict. In the trial outside of which Warner was protesting, HHJ Silas Reid prevented the self-representing defendants from mentioning motives because it was not relevant to the elements of the offence to be proved or disproved. Outside influences on juries have the potential to contaminate deliberations with irrelevant matters. A sign outside a courtroom may in certain circumstances create such a potential to contaminate deliberations. It is not an affront to the independence of juries to prevent those influences.

It has been suggested by Adam Wagner that Warner’s conduct might not meet the definition of contempt since there was no intimidation. Previous cases have shown that lower-level interference may constitute contempt or embracery, however. Embracery (which is relevant in so far as the case law may describe the parameters of contempt) was described in Archbold as consisting:

in any attempt to corrupt or influence or instruct a jury, or any attempt to incline them to be more favourable to the one side than to the other, by money, promises, letters, threats or persuasions, whether the jurors on whom such an attempt is made give any verdict or not, or whether the verdict given be true or false.

In R v Owen (Norman) [1976] 1 WLR 840, the defendant had approached a juror in the murder trial of Robert Selwyn Davies. The defendant told the juror that Selwyn Davies was guilty and had stabbed someone else previously. The defendant was convicted of embracery. Whilst imploring a juror to convict and giving further evidence is more serious than quoting the apparent right to acquit according to conscience, the Solicitor General has arguably decided to bring proceedings in respect of the latter because it still could have the potential to influence juries.

When ordering that the case be referred to the Law Officers, Mr Justice Cavanagh noted, “It is said she did this with a view to incite jurors to not honour their oath to come to verdicts based on the evidence before them, and to disregard the legal directions given by the trial judge”, adding:

It is not the case in any trial that jurors can acquit by their conscience if by that it is meant they can disregard evidence and directions given by the judge and decide on their own beliefs whether a defendant is guilty of a criminal offence. To do so would be a breach of their jury oath and cause injustices.

Even though the criminal justice system attempts to put in place protections in favour of the defendant, because of the inequality of arms and seriousness of criminal conviction, a perverse acquittal may still amount to an injustice. One such egregious example is the acquittal of the murderers of Emmett Till in Sumner, Mississippi, but the principle may apply in less serious cases.

The Trudi Warner case, then, is not an attack on juries, as an objective analysis of Bushell’s Case shows. It is precisely because of the way that the justice system has developed in respect of juries that the Solicitor General has sought to protect their independence, and uphold the rule of law, by minimising potential interference. Whatever the ultimate outcome of the Warner case, the decision by the Solicitor General is justified.

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