In the unlikely event that you are reading this on the subway whilst off to do jury service in Washington, D.C. then you may notice, as you get off at Judiciary Square stop, billboards saying “Jury duty? Know your rights. Good jurors nullify bad laws” – these have been posted by the Fully Informed Jury Association – an American organisation dedicated to informing US jurors of their rights, in particularly their right to jury nullification.
What is jury nullification?
A Judge will tell a jury in England (and America as we understand it) that they have to take the law from him (or her) – the jury’s job is to find out what facts they are satisfied are proved and apply the facts to the law as told by the Judge, and that is how they reach their verdict.
However, after all this a jury will just say ‘guilty’ or ‘not guilty’. They do not answer a list of questions, or give reasons, they just give the verdict.
Jury nullification is the process whereby a jury acquits someone who they believe to be guilty, either to express their disapproval of the law itself (thereby ‘nullifying’ the law) or the particular circumstances of the way the prosecution was brought (often because it is oppressive, or unjust to convict in the case that they are trying).
So it’s an American thing. Does it happen here?
It’s not an American invention at all – it’s as British as it comes.
The origin is often taken as Bushell’s case (although there were previous instances going back to ‘Freeborn’ John Lilburne and before). William Penn (of Pennsylvania fame) and William Mead, a fellow Quaker, were accused of addressing a ‘tumultuous assembly’ – unlawfully preaching in effect. The jury refused to find them guilty, despite repeated orders from the trial Judge, who eventually got so fed up with this he found them in contempt and banged them up.
Some paid a fine and got out. Others, lead by Bushel, applied for habeas corpus. This writ was granted (full transcript here), establishing beyond doubt the right of a jury to return a verdict according to their conscience, and there was nothing that a Judge could do about it.
There have been many famous, high profile examples (as well as countless more that have gone unreported) from England since then (one example plucked at random is Clive Ponting). It is believed (by all lawyers that I have spoken to) to occur fairly regularly with sympathetic defendants. I can think of several cases where a swift ‘not guilty’ verdict was given by a jury in circumstances that would suggest it was more to do with the fact that the prosecution was misconceived or trivial (or the defendant did not deserved to be punished for their conduct) than the legal merits of their defence (to put it politely).
America is certainly a lot more robust about discussion and reporting of court cases than we are (the reporting in a routine American case would have Dominic Grieve in overdrive). And of course they have a constitutionally protected right to free speech that we lack (a prosecution for jury tampering against Julian P. Heicklen for handing out leaflets to incoming jurors advocating jury nullification was dismissed recently, although not on first amendment grounds).
Would advertising the jury’s right to do this be allowed here?
We can be pretty sure that a billboard of this nature put up at St Paul’s tube station would not go down well with the Judges in England. As for standing outside the Old Bailey handing out leaflets explaining the jury’s rights? I would be interested to see how a Judge dealt with that.
But would they be able to stop it? There’s a couple of avenues a Judge could try:
Perverting the course of justice
An approach to an individual juror or jury in an attempt to get them to acquit would certainly be (Miah & Akhbar  Cr App R 12). In this case, it is probably too remote for this to be seen as influencing the course of justice.
An interesting question is whether getting a jury to vote according to their conscience is ‘perverting’ the course of justice. The question is ‘would this lead to injustice?’ (Firetto  CLR 208 – not online)? I imagine that no Judge would want to tackle the question of whether a jury returning a verdict contrary to their oath, but in accordance with their conscience, is an injustice, or an example of justice in action (let alone whether it could be proved that there was an intention to pervert).
Contempt of Court
An “act … calculated to interfere with the due administration of justice” is a contempt. This requires a ‘real risk’ that the due administration of justice will be prejudiced. This runs into the same problem of perverting – can informing the world at large (including jurors) of their legal rights prejudice the course of justice amount to a contempt (Owen 63 Cr App R 199 – not online)? It would seem unlikely, unless it is targeted against a particular juror.
There is a specific offence of Intimidating a juror or potential juror (s51 Criminal Justice and Public Order Act 1994) but this wouldn’t apply to a billboard that sets out to inform rather than intimidate.
There are rules (made by the Advertising Standards Agency) as to what can be advertised. It doesn’t appear that a billboard such as the one at the top of the page would be necessarily in breach of the rules (although there is a broad discretion, which they may exercise out of caution).
It seems to me that if this was general ‘public service announcement’ then there is not much a court could do about it (I would be interested to see what, if any, directions would be given about it). If it referred to a particular case, then it is different – the Contempt of Court law would apply. More interesting is if it was for a class of offences (for example, possession of cannabis). Leafleting then would probably not be allowed, and I imagine that the ASA would decline to authorise any advertising.
Do judges tell jury’s about this right?
No. There’s sort of a ‘don’t ask, don’t tell policy’ where everyone keeps it quiet. We celebrate the jury in the case of Penn and Mead (a plaque commemorating the triumph of liberty it represented is in the Old Bailey today – see below), and Lord Devlin‘s famous quote that “trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives” is frequently cited with approval, Judges are certainly less vocal about supporting this historical right from the 17th Century when it comes to the present day.
There’s no real written rule about this, but a Judge who informed a jury of this right would be inviting them to act contrary to their oath, and it never happens. An advocate who told the jury about this would get a right bollocking. For example, juries also (probably) have the right to acquit the defendant at any time after the prosecution case, but they are not allowed to be told that (Speechley  EWCA Crim 3067) either by the Judge or the defence lawyer.
We have come to a strange sort of compromise wherenullification is allowed, but not allowed to be talked about. Certainly a Judge can’t direct a jury to convict, whatever the circumstances (Wang  UKHL 9) and the common law firmly recognises the right of a jury to bring in a ‘perverse’ verdict (see the Canadian case of Krieger  2 SCR 501 for an even more extreme example, as well as a good discussion of the issues), but unless you are a lawyer, you may well not know this.
Is jury nullification a good thing?
One view is that it’s what juries do best – it’s a good check on the arbitrary power of the executive. Whilst juries decide issues of guilty in serious cases, Parliament cannot pass laws that are too draconian, or else they will just be met with a string of acquittals.
On the other hand, as Lord Mansfield said in Shipley (1784) 4 Dougl 73, this introduces a lack of certainty into the law, and leave justice being a bit of a lottery.
As for my view? It’s probably, like most lawyers, slightly mixed. I can see the good sense of it, and welcome it when juries ‘do the right thing’. But I can also see the dangers if the principle runs riot. Maybe a discretion about talking about it is no bad thing, although it is hard to see that citizens should not be informed of their rights. On balance then, I’m in favour of it, and in favour of letting juries know their rights.
In the end, jurors are the only people in Court who can do justice – everyone else is there to do law – and this is a necessary consequence. Law and justice should be the same thing, it mostly is, but only a fool would pretend it is always.