Jury Nullification

by D.J. Webb

I think there is an important point to be made about jury trials. Of course, the recent collapse of the jury trial of Vicky Price is partly down to the stupidity of the jurors and the removal of the property franchise for serving on a jury — and well-to-do people should never be able to evade their duty in serving on a jury simply because they feel they have other things to do with their time.

However, the judge’s replies to the jurors’ questions were misleading. In particular, they asked whether they could decide the case on grounds other than those presented in the court case. The question, question 5 of the ones they asked the judge, was this: “can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it?” The answer he gave was this: “the answer to that question is a firm no. That is because it would be completely contrary to the directions I have given you.”

It’s all very convenient for the judge to command the jury to find according to his directions. I expect most judges would like to get rid of the popular participation in the judicial process entirely — leaving the judges to issue what judgements they like. Yet the judge’s reply here was a deliberate mis-statement of the law. This is because jury nullification is entirely permissible according to English Common Law.

It is quite incorrect to say that the jury only judges the facts and the judge judges the law. If the jurors decide the law is an ass in a particular case, they are at liberty to produce what the judge may think to be a perverse judgement, one that nullifies an unjust law. For example, where someone has helped a terminally ill mother to die – something that I regard as a crime, but one that might be understandable in some circumstances – the jury may decide to find the defendant not guilty regardless of the evidence against him – and there is nothing the judge can do about that.

In the Vicky Price case, she clearly did sign to claim to have been driving the car in question, and yet the jurors’ questions showed they wanted to ascribe her doing so to religious views that had not been presented in the case. They should have just gone ahead and found her not guilty regardless of the judge’s views.

In general, there is no reason why a jury should have a discussion with the judge while reaching their verdict. To send questions to the judge is to invite him to influence their decision – which ought to be illegal. The only type of communication from a jury to a judge should be to ask for certain transcripts and pieces of evidence to be copied to them.

The right of juries to nullify unjust laws is fundamental to English liberty – no wonder the judge in this case was keen to assert that there is no such right.

14 responses to “Jury Nullification

  1. I have little (if any) interest in this particular case, but I certainly agree with the last point – the right of jury nullification is vital.

    Which is (I suspect) why English (and Scots?) legal writers have not stressed it in recent centuries – either do not mention it, or actually deny it. It does not fit with the view of things of Blackstone, Maitland and so on.

    The American Founding Fathers all believed in jury nulification – but modern American Law Schools (and so on) do not teach it. Or actually deny it.

    Not good,. Indeed very bad,

  2. agree with Paul entirely.

  3. “…and well-to-do people should never be able to evade their duty in serving on a jury simply because they feel they have other things to do with their time.”
    Is that what passes as Libertarian nowadays?!

  4. I would never sit on a jury in the UK, the primary reasons for this is the
    is the corruption within the justice process, and those “Basket Case”
    judges who keep covering up for police and CPC corruption, it’s not
    difficult to see why they don’t want TV cameras in the courts, after sitting
    in on many trials, how in gods name do these judges get away with deliberately misdirecting jury’s to the advantage of the police, I have to
    say some of those jury service lot seem a bit thick, they appear to beleive
    every forged document the police puts in front of them. No, one can make you sit on a jury, lawyers and judges refuse to apply law, where conflict of political interests exists, so why should people be forced to sit on court
    jury.It’s pointless anyway until the police and courts are cleaned up.

  5. Secondly, the existance of Newtons Trials, show’s jury’s are effectively useless anyway, just look at this abuse of the law, take for example a criminal trial, the lawyers withold evidence the police have conclusively fabricated the evidence, the lawyers fail to disclose this during the trial, after the trial is over, they have another trial called a Newtons Trial, and then uphold the fact the police evidence is fabriated, this aspect of the case evidence never gets before a jury or the media, it proves that Jury trials are a pointless wirthless exercise, and why do the police never face charges despite the court findings against them, the situation is one of madness!

  6. Very good post! The more this gets out, the more chance liberty has to rear its shiny head out of the muck the statists keep burying it in.

  7. I think the jury’s oath is to try the case “according to the law”.

    Therefore they are NOT entitled to nullify unjust laws. But thankfully, they can actually decide as they please-and therefore DO nullify unjust laws.

    Probably there will now be a move to get rid of juries.

  8. Well good point. but if they deliberately withold evidence from juries, they
    will automatically formulate wrong conclusions, juries are only as good
    as the facts before them, they are easy to “Nobble”.

  9. There are indeed moves to get rid of juries – using the excuse that they are made up of welfare day time television watchers…. (and on and on). An suggestion of restoring the property qualification for jury service is met with total horror – yet getting rid of juries is considered fine (such is the modern world).

    It is often forgotten that is was not the Nazis who got rid of trial by jury in Germany – it had already been abolished by the Weimar Republic (the Gestapo also dates from the Weimar period – this is also forgotten). The “Social Rule of Law” (what the new generation of legal experts replaced the “Rule of Law” with – see Hayek “Constitution of Liberty” and “Law, Legislation and Liberty”) can not really have trial by jury – as it is based on the rule of “enlightened experts” “planning society”.

    As Hayek was fond of pointing out – “social” is a “weasel word”, it sucks out the meaning out of concept (like the animal, supposedly can such the yolk out of an egg was leaving the shell). Just as “Social Justice” undermines property rights (rather than upholding them as justice does) so the “Social Rule of Law” undermines the priniples of the Rule of Law – it has to, it is MEANT to.

    But this is not something the elite want to explain to us “Homer Simpsons” (we might not “understand” – or we might understand only too well and tear the establishment to pieces), so the legal system has to be left to the “enlightened” – which means no real room for juries.

  10. If the jury system goes we’ll get panels of hand picked ‘experts’ and if we return to property qualification we’ll get w.a.g.s. and all air heads who made lots of dosh for getting their kit off,people who made it by de-constructing Britain, people like Will Self but, you won’t get me! aghh. Let us not confuse wealth with intelligence and common sense.

  11. Yes, patricia, people are making fortunes, out of the destuction of britian, and this will continue as long as they are getting rich, try as hard as might I just don’t identify this as england anymore it’s far detached from the country I knew twenty years ago, Yes I used to be in business, encountered lot’s of wealthy people, yes, perhaps, no common sense, or great intelligence, but lots of money. As for the idear of panels of hand picked experts, difficult with so many being bent. I wonder if this were put through, we might see a situation as in the law society, yes we all agree, we all come from the same lodge, or wear the same school tie.

  12. 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 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 are 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 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 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 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 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 pretrial 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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