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.