Jury Nullification: A Barrister Writes


by Howard R. Gray

Juries have a duty to try the case according to the law: this is trite. The judge is the tribunal of law, and the jury is the tribunal of fact: that is the simple rule of how criminal law works, and also just as trite. Judges in England are allowed broad scope to direct juries on the law and often put forward their views of the facts usually pre-seasoned with the exhortation that it is “up to you ladies and gentlemen of the jury” about any particular point they deem in need of comment.

That being said, there is a plethora of rules that they must use to put to a jury about particular points of law and about the standard of proof that must always be there in their directions. For example the “you must be satisfied beyond a reasonable doubt” and “satisfied so that you are sure”, then they go on to give examples. There are the Turnbull directions on corroboration of witness testimony and so on. Each factual element that has a contentious nature must be directed upon in the judge’s homily to the jury at the end of the trial. Failure to adequately direct a jury can result in the verdict being set aside on appeal. Jurors needn’t be too worried that justice will be denied; appeals are often successful.

There is an apocryphal story heard allegedly at the Snaresbrook trial centre in the East End of London of a dialogue between two jurors in the old days at the trial centre in the gents while at the urinals. “Oi mate whad yu think about the evidence then squire?” “Not much guv, seems ee did it though whad you fink?” “Yeah! Fink ee did too!” “You goin to convict?” “Nah didn’t much like the judge did you?” “Nah guess not. Don’t seem right to send the blighter down fa that.” “Yea! Lets get back to the jury room, now weeze knows whats the right fing to do.”

Jury nullification is never far beneath the surface of the system, but it may not always come out as obvious. I have defended a number of cases where there were perverse verdicts of acquittal; it happens regularly and isn’t that unusual. I recall being in an eleven handed case with ten black defendants and two white defendants, when we, the defending barristers, used every one of our peremptory challenges to get most of the white people off the jury panel just to get enough black peers on the panel. I recall the days after this sort of thing went on daily when the concept of being tried by your peers was deliberately attacked at Snaresbrook by bussing in jurors from Knightsbridge to hear east end cases. Talk about a jury of your peers! They just didn’t wear their ermine for their day out in the east-end to wreak justice upon the plebs!

Jury nullification didn’t happen in that case but it could have been an issue as there were too few black people (two to be precise) on the jury selection panel thus the artifice of challenging nearly all the potential jurors was needed to get only one on the jury initially. The usher deliberately kept the other one further down the queue as each juror was presented for empaneling. This sort of behavour isn’t that uncommon in one form or another and would be a good cause for throwing a trial. In the final analysis the other black person was sworn in as a challenge for cause was made to ensure the only two black people eventually served on the jury.

One of my mentors, now sadly passed on, Sophie Craven Barrister at Law, used a simple example about circumstantial evidence. Imagine you are on a street in one of England’s great county towns and you see a man walking down the street and you see he has a lead pipe over his shoulder. You will probably think nothing of it. Consider for a moment. PC Plod of Noddy fame steps out from the police station and surveys the same scene; what conclusion does he draw? This man is a burglar and lead pipes and burglars somewhat go together don’t they? Evidence may be circumstantial but you must use your common sense but just whose common sense do you use? Judges use these stories to demonstrate what they mean about how to handle evidence and arrive at some rational conclusion during their directions to juries.  Juries need the directions to understand what to do and how to do it. Nullification isn’t a big deal when a jury decides to throw a case, that is their privilege. It is probably best they say nothing to the press afterwards as it only encourages the naysayers. A jury may disagree with the process however well they are directed, and that should always be permitted. It is very rare that blatant jury nullification happens in spite of the facts, so it isn’t a real concern in the larger picture of how the system works.

Never forget that learned judges are often wrong on the law and on their view of the facts in their directions at the end of the trial, let alone their miss-handling of the trial itself; all being grounds for appeal. Deliberately and cantankerously failing to reach a verdict might verge on contempt of court, but in the usual course of things, a jury failing to reach a verdict isn’t that unusual. The confidentiality of the jury room is sacrosanct and fundamental to the system and the only true protection from tyranny we have in the criminal law.

Nullification is simply an outcome that can happen and should not be seen as remarkable, for it is provided for and should be respected. The fact that our lords and masters in some quarters want to abolish juries is nothing new. Of course they do; that’s what they do. No surprises there! We have the advantage of not being back in the days of Judge Jeffries who threatened to jail the jury because he didn’t appreciate how long they were taking to reach a verdict. Jury nullification would have been dead risky in those days! Nullification may be a loud message to the political class that a particular issue isn’t acceptable as “the law” and needs attention by parliament. So be it.

Sound justice requires the potential for a case to be thrown for whatever reason, and it should always be available, however inconvenient. This is the safety valve in the criminal justice system and should never be abolished. Juries! You may love ‘em or hate ‘em but they are the best thing about the system. Remember compurgation and trial by battle? These were truly awful ways to do criminal law business along with the ducking stool. Single judge panels without juries trying cases would be a retrograde step; especially as judges are now required by the Home Office to go to Judging School for “sensitivity training” and the like. The jury is a vital bulwark and must always be there with the benefit of nullification.

Then of course there is the majority verdict direction when there is deadlock in the jury room. This is a dubious concept, but it is the law. One could go on about that for another page or two. Majority verdicts probably, like it or not, avoid jury nullification for the most part.

One other thing, jury service is compulsory and thus immoral per se as presently conducted. Don’t be taken in by the civic duty nonsense: it is coercive and is repugnant. A proper hourly rate should be paid for jury service commensurate with the pay rate that each juror enjoys in the open market. If this were the case there would be few who would avoid jury service; sadly currently most potential jurors attempt to avoid being empaneled simply because of the personal cost and inconvenience of service on a jury.

My late wife Marilyn was regularly called for jury service in Brooklyn. She always consciously turned out time and again, only to be removed on the voir-dire pre-trial juror interrogation as she was married to an English barrister. Thus she was assumed to know too much about the law. The system here in the states has nullification of jurors too! Though not yet quite like this in England… so far.

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24 responses to “Jury Nullification: A Barrister Writes

  1. I suspect that there is something wrong with the site. This article is unreadable.

    However, the duyt of a jury (or of human beings generally) is plain.

    To punish those who are guilty of aggression against the bodies or goods or others and NOT to punish those who are not guilty of such aggression.

    For example, if Parliament passes a statute (a “law”) against having blue eyes – then a jury should find any blue eyed person “innocent”. As the “facts of the case” are not relevant – it is the statute itself (the “law) that goes against the principle of justice (see above).

    Not an artificial situation – as (contrary to Maitland) Parliament has often passed statuted that pretend that noncrimes are crimes – for example the various statutes that tried to prevent freedom of movement (establish or enforce de facto serfdom in areas of the country that did not have not have serfdom).

    Just being born the child of a peasant was (according to these “laws”) enough to “tie you to the soil” – as late as the time of the first Elizabeth statutes were passed trying to tie people to the occupation of their parents (much like the madness of late Roman Emperors).

    It is obviously the duty of any juty to find against such “laws”.

    Also a jury should find someone “innocent” even if they have committed a REAL crime (not just violated some lunatic statute of Parliament).

    For example under the “Black Act” about 200 offenses carried the death penality (some of them quite minor offenses).

    Of course if a jury knew they had a “hanging judge” (a judge someone who would have someone hanged for a minor offense) they QUITE CORRECTLY found the person on trial “innocent” (in order to gut the absurd “laws” – or, specifically, the penality of death for a minor offense).

    Sir Robert Peel swept this nonsense (the statutes that allowed death for minor offenses) away in the 1820s.

    Both where a “law” violates the principles of law (i.e. makes a nonagression a “crime”), AND where the penality is absurd (totally out of proportion with the offense – even when the “crime” is a real one) it is the DUTY of the jury (as human beings) to find the accused “innocent”.

  2. “This man is a burglar and lead pipes and burglars somewhat go together don’t they?”
    Well I never knew that – you live and learn I guess!
    A friend of mine, a nurse, once saw a dog in distress having been locked in a car on a hot day. After searching in vain for the owner she smashed a window in the car in order to save the dog’s life. Now, the law says that is criminal damage, but the point is that our legislators cannot possibly conceive of every circumstance that might arise. The jury has to ask themselves the question “what would I do if I found myself in similar circumstances?”, so it is the jury, not the legislators, who ultimately decide what the law is and how it should be applied.
    Fortunately, in my friend’s case, there were no consequences at all to her actions, but if she had been charged, is there a jury in the land who would have convicted her? I doubt it.

  3. A few typos in the above – but there we go.

    Also I should like to make plain (if I have not already done so) that a jury should find someone “innocent” of committing a real crime (i.e. an act of aggression against the body or goods of others – as opposed some evil Act of Parliament which tries to pretend that a noncrime is a crime) ONLY if the punishment is wildly out of line with the offense (the real crime).

    For example – leaving your place of birth is clearly not a crime (whatever the “laws” of Parliament say – and juries are quite correct to find against such statutes) and nor is undertaking a different occupation from your parents (whatever the Statutes of late 16th and early 17th century may say).

    And (for example) being hanged by the neck till you are dead for the crime of stealing a loaf of bread is clearly unaccepable also (even though stealing a loaf of bread is indeed a REAL crime).

    There are two things for the jury (as human beings) to consider first…..

    “Is this offense a real crime – or some evil nonsense of Parliament and/or the Executive?” No “crime” of being a candle stick maker when your father was a farmer.

    And.

    “Even if this is a real crime – is the punishment broadly proportionate with the offense?” No being executed for stealing a loaf of bread.

    If the answer to both of these questions is “yes”.

    Then one can go on to the “facts of the case”,.

    Of course the first two questions might best be dealt with “internally” (i.e. inside the mind of each member of the jury – as a human being) so that the jury may truthfully say…..

    “No Sir – we did NOT discuss either the merits of the statute or the punishment”.

    “Discussion” may be avoided if each member of the jury does their duty (duty as a human being) of dealing with the questions of whether it is a real crime, and the likely punishment, within their own minds (without talking about it).

  4. Something in wordpress had scrambled the hypertext. Probably something to do with its transmission on copper cables under 3,000 miles of sea and one-and-a-half-centuries of corrosion. I went into the page and, er, fiddled with a few settings and stuff like that. It seems to be all right now.

  5. Hugo Miller

    “(even though stealing a loaf of bread is indeed a REAL crime).” I dunno Paul, is it? If a mother stole a loaf of bread to feed her starving child would that be a crime? I might be reluctant to convict.

  6. I would beg to differ, where a countries wealth has been stolen by government, a mother has every right to steal bread for her self preservation
    and that of her child. “Not Guilty” case dismissed!

  7. Hugo, you could alway’s copy the British Model, have six police officers arrest her, call in the parasites from the Social Services, the probation services, full trial, put the children into care, some basket case on the bench calling her a criminal, there hugo, you now have a “Million Pound Loaf” thanks to the tax payer, god these probation buildings are getting bigger than the hospitals and schools these day’s no wonder health care and education is bankrupt!

  8. So it is David – indeed the article became visible as I was writing my second comment (I should have said).

    Hugo and Karl.

    If the principle is established “if you are in need of food, or your child is, you may steal” a lot MORE children will starve to death (not fewer – more). As no property will be secure and civil society will break down (actually I have just repeated myself – as “no property will be secure” and “civil society will break down” is the same thing).

    However, the punishment must be broadly proportionate to the offence – no being hanged by the neck till you are dead,, for stealing a loaf of bread.

    After all if a mother is really stealing to feed her child – would she really mind a proportionate punishment?

  9. Of course Hugo every book has a final chapter, when freed from the clutches
    of these bloodsuckers, she then gets refered to the CRB office and wealfare,
    who tell her shes burnt toast on the job’s market due to her conviction, she
    then gets another shock sentence, an so you shall live on “Wealfare” for the
    rest of your naturan life, for ever, and
    ever, and ever, and thus ends the story of the Great British Justice System!

  10. Of course it is breaking down, now at a faster rate, however there is a second book, when the mother gets home and gets a copy of her CRB certificate, she opens the letter and then collapses on the floor in shock, the poor mother, only expecting to see a recorded conviciton of thef of loaf, notes, Armed Robbery, Burglary, two counts of Rape, off we go again to the lawyers, here’s your legal aid! That CRB office can’t get anything right, who in god’s name is working those computors, it can’t go on, it’s multi billion pound sate bureaucracy, causing a multi billion pound state bankrupcy bill!

  11. Hugo Miller

    Paul I am not arguing that theft should in general be made legal, but in particular circumstances it may be considered excusable. Illegal, yes, but not necessarily a ‘crime’ in the non-legal sense. I am not condoning it, merely saying I would possibly be reluctant to convict, even though the law has clearly been broken. That is the point I was really trying to make, that the jury is absolutely sovereign in deciding whether, and how, the law should be applied.

  12. The CRB business is designed to progressively exclude males from certain kinds of jobs: starting with anything to do with “working with children and vulnerable people”. Vulnerable People means any person or group that the socialist Nazis want to include into their Borg Blockvote. British children are already State-Property, although they won’t ever realise it, at least this current generation won’t if they’re under about, oh, 17 or 18.

    Indeed: I forsee a time when it won’t be possible to get any job whatsoever without a “clean enhanced CRB”. There are already people out there who have never been charged with any offence whatsoever, but whose CRBs show damning information under the section headed “supplementary information not required under the Act but provided at the Chief Constable’s discretion”. (Or something like that. I haven’t seen one but I’m told this is what it says.) What it means is “The CPS wouldn’t allow us to formally charge, but we think this is a “wrong’un anyway”.)

    • David, that’s the kind of petty tyranny that you must expect of a managerial state. It leads me to a somewhat more accepting view of the European Union than I used to have. Our fellow Europeans tend not to be ruled by swivel-eyed maniacs, and their rulers sometimes can be useful for keeping ours under something approaching control.

  13. Unfortunately, this barrister is “within the system” and regurgitates the judges’ view that the jury is only there to judge on facts, not the law, although in a long and rambling post he does agree there is such a thing as jury nullification.

    Let us be clear: if juries can nullify the law, then they are judging the law as well as the facts. They don’t have to justify their decision to the judge – and so they are in the position of being able to hand down what the judge might think to be a perverse decision. They are judging the law.

    As a barrister within the system, this person is unlikely to accept that the common law is our fundamental law (and Parliament’s right to sit and the Queen’s right to reign are based on Common Law, and therefore hedged in by it too). The rights of jurors are whatever they have always been in Common Law – and that includes the right to nullify law, particularly where “statutes” appear to ride roughshod over English Common Law.

    The status of “statute law” is key to any discussion of law. As a person trained in scrutiny of statutes, this barrister is likely to insist that statutes are our ultimate law – but in fact the Common Law came first, and it is the Common Law that determines the rights of the Crown in Parliament – and even if the Queen or Parliament were to claim various rights, they would have to show first that English Common Law granted them the right to make those assertions.

    Claims that Parliament can do anything it likes are contrary to English Common Law – previous generations would have been alarmed by such a statement – which is why Lord Chief Justice Sir Edward Coke in Dr Bonham’s Case ruled that the Common Law overrode statute law. Parliament may pass a statute giving itself various rights – but that is just a case of a body asserting it has rights – but as its right to sit is only a function of the Common Law, everything is circular until you go back to English Common Law and find out what Parliament has the right to do.

    The same is true of Royal power. Edward II accepted in a 1346 statute that Royal decrees could be nullified where they overstepped the bounds of the Common Law. I doubt this barrister has even heard of the Ordinances for the Justices Act of 1346.

    Put simply: no judge or jury has ever sworn to uphold statute law – their oath relates to English Common Law – and the nullification of statutes is a way of fulfilling that oath and thereby upholding the law of the land – ie the Common Law.

  14. Of course David, you’re right on the facts, however, bit behind on the implimentation, in Norfolk now nearly all employers are requesting CRB
    certificates, even for shelf stackers, of course the situation you describe
    regarding the CPS is true they can fabricate anything or give a biased opinion on a persons character out of political malice, point of fact,
    there’s nothing anyone can do, they just love this abuse of the
    law against republicans, it just pushes things back 30 years when anyone
    wrongly accused of being a rebuplican remained on the dole for life, it’s
    about control, oppreession, and creating a dictatordhip of nepostisim where police families and thier spouses have total control of our destiny, just look at
    who’s getting all the warnings for serious crime and a let off. It’s a middle
    class hypocritical dicatorship.

  15. Some of these barristers are so corrupt they don’t even bother with the law
    in these common courts, why does a defendant not have the free choice
    or barrister or lawyer instead of one appointed by the same court trying
    the case. It’s a scam of injustice.

  16. djwebb – what you write here has not been the legal mainstream since Blackstone undermined it back in the 1700s (someone like Maitland in the 19th century would just have sneered at you).

    Alas! Because, in this, I am on your side.

  17. Hugo, what you state about the law in the US may be true, however I assure you in the UK we have a different ball game all together, people do not have the right to appeal even if they have been wrongly convicted, appeals are subject to costs limitation and denial of legal of legal aid if the case is demeed to costly, secondly, where a laywer has been instructed to an appeal on the basis of sound legal grounds, where a conflict of interests exists, the laywers are able to nobble the appeal process, this is relatively simple, if for instance a poilice coroner owns a law firm, and he is appointed by a court to represent a suspect, he can advise of appeal, but deliberately delay the advice so the case run’s out of time, and then refuse any further representaion on the grounds of conflict of interest, the appellant then has no right to appeal as it is automatically denied by the court, on the point of appeal out of time, where a sitiuation arises where X police officers are working on defence cases such as legal clerks in solicitors firms,there must be some conflict particularly, when in the police, they resided as custody officer the same case whilst working for the police, they are simply quite able to give bad advice to the client, which will not become available or ever available if the client has no knowledge of the law, in the case of my own experience, the law firm employed an X custody seargent,he resided over my case file, despite his own former junior officers being involved in the “Malicious prosecution”. Personally I do not veiw this as impartial justice, there are now considerable numbers of retired police working in the court industry at all levels and in solicitors officers, I cannot see how justice can be impartial under such circumstances, there is an overiding conflict of interests when you are dealing with a client and a colleague who have worked with for over 30 years, it would be difficult for anyone to be impartial in such circumstances, they deny the public the right of fair justice and impartiality, no one can get justice when files go missing.

  18. Paul Marks: yes, I know – but what I am talking about is the origin of our constitution – Maitland or anyone else cannot deny that Parliament’s right to sit derives from the common law, and could not, in logic, derive from any law passed by itself asserting its right to sit. This makes England special – as law and its origins are lost in the mists of time. Statutes should only be for limited updating in line with modern circumstances. Eg the income tax in Napoleonic times was an extraordinary measure to deal with a war – but as a permanent revenue stream in peace time is totally contrary to English Common Law.

    You could ask, “why should everything always be like it was 1000 years ago?” But that is a question that presumes state interference by a technocratic bureaucracy which doesn’t even seek to gain popular support for its measures.

  19. Well, I can answer that, it’s like it was a 1000 years ago, because, let’s face
    their making to much money to want any changes, and they still retain the
    totaliterian powers no one would want to give up! When a judge has control
    over goverment or immigration, it is a very worrying state of affairs. You might ask where is democracy. Why bother to vote at all.

  20. Mr Webb – sadly Maitland and co could deny it, they could deny everything and anything (greatest good of the greatest number you see – TRUTH has no intrinsic value to such people, if a lie would, in their view, be beneficial then they lied and twisted).

    Maitland argues that the Common Law was simply the judgements of the King’s judges (“common” because it was over and above local custom) with no connection to either natural law (natural justice) or to ancient tradition. He even praises Thomas Hobbes.

    Those who think the intellectual corruption of this land started in the 20th century are, sadly, mistaken – even at the peak of British power (the high Victorian period) the intellectual corruption was well under way – especially as concerns the study of the principles (not the details) of law.

    As for the Americans – I am wary of Thomas Jefferson (he was a speculative speaker and writer – who often said various things, and the opposite of those same things). However, his rival John Adams was a more careful legal thinker (and also a man with a great deal of practical experience of the law) and he was no fan of English legal PHILOSOPHY (i.e. jurisprudence – the study of the principles of law) either. Either English lawyers pretended there was no such thing (and sneered at the very mention of it), or their statements upon the subject were so wrong headed and crass, that it was like listening to Thomas Hobbes.

    What John Adams would say about modern American lawyers is a scary thought.

  21. Intellectual corruption, is an established part of the system, although I have
    only read the history of the legal system back to 1600’s, it fair to say it was
    a very corrupt power orientated system of control.

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