Trudi Warner, a climate protester, has been charged by the attorney general with contempt of court for displaying a placard outside a court building where other protesters were on trial. The placard said: ‘Jurors: you have an absolute right to acquit a defendant according to your conscience.’ She is said to have deliberately done something that ‘interferes or creates a real risk of interference with the administration of justice’. Last September, dozens of silent protests took place outside other courts, with similar placards (though some replaced ‘conscience’ with ‘convictions’, which is a whole other matter).
On one view, a placard in the street in front of a court building, visible to members of the public who may or may not be jurors, could hardly amount to an interference with anything; it might even give useful information – especially if a decision to acquit based on conscience really is a right that jurors have. The legal origin of the theory comes at the latest from Bushell’s Case in 1670. Edward Bushell was the foreman of a jury which refused to convict the radical Quakers William Penn and James Meade of preaching to a ‘tumultuous assembly’. The jury agreed about the preaching, which the defendants admitted, but not about the tumultuous assembly. The judge, commanding that they convict, locked the jurors up without food or water for two nights when they defied him. On the third day, they found Penn and Meade not guilty. The judge fined all twelve jurors. Nine paid up, but Bushell and two others refused, preferring time in Newgate to complying with an unjust penalty.
Bushell applied for habeas corpus to a higher court. He survived Newgate prison for ten more weeks until Chief Justice Vaughan released him, ruling that jurors could only be punished if they acted improperly, not for a verdict that was unwelcome to the judge or against the evidence.
A century later, in 1784, William Shipley, the dean of St Asaph in North Wales, was prosecuted for seditious libel. He had published a philosophical ‘Dialogue between a Gentleman and a Farmer’, which claimed that ‘every state or nation was only a great club’. Hence, laws should be made only with the consent of the club’s members, representation should be open to all, and tyrants could be removed by force. As with Penn and Meade, the jury wanted to give a mixed decision: they found that Shipley was the publisher but the content was not seditious libel, intending to acquit him. The trial judge took it as a guilty verdict. The case went before Lord Mansfield on appeal. He ruled that ‘it is the duty of the judge, in all cases of general justice, to tell the jury how to do right; though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.’
Jurors today, as in 1670 and 1784, take an oath on a holy book to ‘give a true verdict according to the evidence’ (many religions are accommodated these days, as is a non-religious affirmation). But there are probably fewer jurors now who believe that breaking the oath will lead to divine punishment – a once potent threat to godly jurymen. Today’s threat is secular. Jurors are warned that if they look for information about the case, or about the law or the lawyers, which they do not receive as evidence in the courtroom, they can be prosecuted and sent to jail.
Advocates’ professional rules forbid their telling juries that they can acquit even if they think the defendant has no defence known to law. Defendants who represent themselves (sometimes said to have a fool for a lawyer) traditionally get more leeway. Juries still acquit people whose actions they support, even if they are guilty in law. It may not matter much whether they do so by right, or because, in Lord Mansfield’s words they just have the power. As Lord Devlin said in 1991:
'Juries are in the front line. They see the impact of the law on its subjects and they have to decide when to use its weapons. They exercise the discretion of the man on the spot ... Put into constitutional terms, the jury is invested with a dispensing power to be used when their respect for law is overridden by the conviction that to punish would be unjust.'
That description of conscience-based acquittals rebuts the charge that they are perverse, because they are a part of the jury’s proper constitutional function – if an unwelcome one to those in power. When capital punishment was the penalty for murder, it may have deterred killings but it is also thought to have deterred jurors from convicting.
The jury’s deliberations are secret: it is an offence to disclose them. We never know how they reach a verdict. They are trusted (rightly, in the view of most people who have taken part in jury trials) to follow the judge’s directions of law. A group of twelve randomly selected individuals is large enough to accommodate a representative range of views and life experience, but small enough for reasoned debate. In particular, juries are trusted to convict only if they are sure that the defendant is guilty: ‘Nothing less will do,’ they are always told.
But what if they use their constitutional ‘power to do wrong’ to find someone guilty whom they are not sure about? Cases involving allegations of sexual offences against children, for example, generate powerful emotions. Judges warn juries not to allow themselves to be influenced by any emotional reaction to the case, any sympathy for anyone involved, or any fixed ideas or preconceptions. That may not always be an easy thing to do. In a highly emotive case, with an unprepossessing defendant, conscience or conviction might impel the jury to find him guilty if they think he is a menace, even if they are not sure that he committed the offence.
If the ‘power to do wrong’ means the power to ignore the law as explained by the judge, then logically it does not apply only to ‘perverse’ acquittals. In the corollary of Lord Devlin’s opinion, a jury might think that a failure to convict and punish a defendant whom they were almost but not quite sure about was as unjust as not acquitting a legally guilty defendant whom they could not in good conscience convict. Perhaps this merely shows that justice according to the law and justice according to the people who become jurors are not always coextensive.
This is not an argument against using members of the public to decide serious criminal cases, or in favour of a lower standard of proof. Rather, we need to recognise that by entrusting these decisions to juries, we may be relying on their own sense of justice where they think the law fails to satisfy it.
Trudi Warner, acting from her own conscience as a dedicated climate protester, may or may not be found guilty of contempt of court. The administration of justice may or may not find that the ghost of the message given long ago by Chief Justice Vaughan and Lord Mansfield interferes with it. It will not be a jury but a judge who decides, by applying the law, whether they agree with it or not. Judges do not get the freedom of conscience afforded to juries.
Francis FitzGibbon K.C.