On 27th March 2023, a person with a placard was outside a criminal court in London. A high-profile criminal trial was about to begin, but the statement on the placard did not refer to any particular case or defendant. In fact, the statement on the placard was unexceptional and one which could be found in many law textbooks, and even on a plaque at the Old Bailey.
The person with this placard did not speak with anyone going into the court. And there is no suggestion that the person or their placard affected the fairness of the trial in any way. Indeed, the defendants in that high-profile trial were convicted.
Yet over the last year that person has faced the prospect of a criminal prosecution for contempt of court. The UK state, through the solicitor general, has sought to criminalise the placard holder for their speech act. How did this come about? And should it have come about?
Let us start with the statement on the placard. The handwritten statement was in block capitals: “JURORS YOU HAVE AN ABSOLUTE RIGHT TO ACQUIT A DEFENDANT ACCORDING TO YOUR CONSCIENCE.”
This text refers to a feature of the criminal law of England and Wales, as well as that of some other common law jurisdictions. It means that if a jury acquits a defendant in defiance of the law and the evidence, there is nothing that can be done. This principle is termed “jury equity” and it is a controversial aspect of the criminal justice system.
Jury equity in England and Wales is the consequence of two legal rules. The first rule is that no judge can direct a jury to convict a defendant. In a jury trial, the ultimate determination of guilt is a matter for the jury and not the presiding judge. This rule was affirmed in absolute terms by the House of Lords in an appeal as recent as 2005.
The second legal rule is that there can be no sanctions against a jury that acquits rather than convicts regardless of the law and evidence. This was set out in a venerable 17th-century case in which a plucky jury refused to obey a judge’s direction to convict and the jurors were imprisoned. They then successfully challenged that imprisonment by the ancient writ of habeas corpus—the right of an imprisoned person to a hearing.
These two rules have the effect that when a jury acquits against the law and against the evidence, that is the end of the matter. This is the position even though jurors swear or affirm that they will give a true verdict according to the evidence.
Sometimes this situation is described as the jury having a “right”. But it is not a right that is provided for by any code, nor a right that needs to be formally invoked or exercised. A more accurate term would perhaps be that it is a “liberty”—it is a thing that a jury can do if so minded, and there is not anything that can stop them.
It is a thing that is there, regardless of its categorisation. There have been proposals for it to be somehow addressed by statute, but such proposals have never been enacted by parliament. Jury equity has continued existing.
Indeed, jury equity is celebrated. The plaque in the Old Bailey mentioned above is about that hallowed 17th-century case, and it states:
“Near this site WILLIAM PENN and WILLIAM MEAD were tried in 1670 for preaching to an unlawful assembly in Gracechurch Street. This tablet commemorates the courage and endurance of the jury, Thomas Vere, Edward Bushell and ten others, who refused to give a verdict against them although locked up without food for two nights; and were fined for their final verdict of Not Guilty. The case of these jurymen was reviewed on a writ of habeas corpus and Chief Justice Vaughan delivered the opinion of the Court which established the right of juries to give their verdict according to their convictions.”
So even if one does not want to call jury equity a right, it is certainly described as such in the grand hall of the central criminal court, for anyone—including jurors—to see. And the principle featured on a placard outside another criminal court in March 2023.
The person with the placard was Trudi Warner. The British government decided to make an example of her and commenced proceedings for contempt of court. The solicitor general contended that she directly interfered with the administration of justice, and that her conduct was undertaken with an intention to so interfere.
These are serious, heavy accusations. And if convicted, Warner would have faced a similarly serious, heavy sentence. Even though all she did was hold a placard up outside a court stating something which is a commonplace in legal volumes and on the wall of the Old Bailey.
Jury equity is important not for the power it gives but for the power it deprives others from having
Fortunately for Warner, the prosecutorial zeal of the solicitor general is not enough. A judge also has to be persuaded to give permission for such contempt proceedings to take place. The judge has to be satisfied that two tests have been met: that there are reasonable grounds for committal and that it is also in the public interest.
And in a sterling and readable judgment, it was decided by Mr Justice Saini that the solicitor general did not even show there were reasonable grounds for committing Warner to prison or imposing another sanction, let alone any public interest. In a striking paragraph he concluded:
“Overall, in my judgment, the claim is based on a mischaracterisation of what Ms Warner did that morning and a failure to recognise that what her Placard said outside the Court reflects essentially what is regularly read on the Old Bailey plaque by jurors, and what our highest courts recognise as part of our constitutional landscape.”
For the government, the rousing text of this judgment is even more unwelcome than the offending text on the original placard. For with this illiberal and misconceived application it has given the concept of jury equity more circulation than would ever have been achieved by Warner’s placard.
There is now in place a cracking High Court judgment from one of the most highly regarded judges of his generation. It was a silly and counterproductive case for the government to bring, especially in the absence of evidence of interference. One can only wonder as to why it was brought.
There is no doubt that jury equity is irksome to the executive branch of our constitution. In a sequence of celebrated cases, juries have acquitted defendants to the anger and dismay of prosecutors. Jury equity means that the government can never be completely confident of criminalising those it accuses of serious crimes.
Wise ministers and officials, however, should value jury equity. It is an early warning system for showing that prosecutions may be going too far against public opinion.
For, as with concepts elsewhere in our constitutional arrangements, jury equity is important not for the power it gives but for the power it deprives others from having. It means that the liberty of the subject depends on neither judge nor prosecutor. As Ambrose Bierce deftly set out under the definition of “jury” in his Devil’s Dictionary:
“Against all law and evidence,
The prisoner was acquitted.
The judge exclaimed: “Is common sense
To jurors not permitted?”
The prisoner’s counsel rose and bowed:
“Your Honor, why this fury?
By law the judge is not allowed
To sit upon the jury.”
Jury equity is something that existed, and which a prudent government took notice of but did not shout about. But now, with this silly attempt to criminalise Warner, the existence of jury equity will be better known to those who do not read legal textbooks nor the walls of criminal courts. It will even feature in legal blogs.
This wider knowledge would render its useful function as an early warning system more limited. Such acquittals will not be confined to exceptional cases when a jury simply finds a prosecution unconscionable, unaware of its legal power to acquit against the evidence and law. The power of jury equity may instead become common currency: a potential starting point for deliberations, rather than a rare finishing place.
But all may not be lost. For perhaps one consequence of this unhappy case will be that we can finally move on from the current paternalistic attitude towards juries, with the strict limits placed on what jurors know and do not know about their rights, powers and liberties in halting prosecutions and returning verdicts.
Perhaps we can take jurors seriously as correctly informed citizens, which would be appropriate, given that jury service is an example of active citizenship. Perhaps jurors should even be made routinely aware of what was on the placard of Trudi Warner. Indeed, we could put the text of her placard—with a quote from Mr Justice Saini’s judgment—on plaques on the walls of the courts where they deliberate. Such things have been done before.
