There is a certain fogey mindset in English politics when it comes to law and the constitution. It is distrustful of anything with the word "European" and dislikes the notion of fundamental human rights. Instead it prefers "liberties" and "the common law" and extols Magna Carta and seeks to replace the Human Rights Act with a "British Bill of Rights." And if you were to press someone with this mindset for specifics, they would perhaps mention freedom of speech and trial by jury.
Well, we have recently had a newsworthy trial by jury. The "Colston Four" were charged and prosecuted by the state in respect of the damage done when the statue of a Bristol slave trader was toppled and sunk. The defendants did not dispute the material facts, but they maintained they were not guilty. The jury heard their evidence and then quickly voted to acquit.
That is what juries sometimes do. They can acquit a person charged with and prosecuted for a serious crime, despite the demands of the State. Juries are certainly not perfect, but they are important, not so much for the decisions that they make as for the decisions they preclude others from taking. The State and its prosecutors cannot always have it their own way.
Wise liberals and conservatives know this. For although there will be miscarriages of justice because of juries from time to time, the overall merits of independent juries outweigh the disadvantages. But some foolish commentators and politicians do not realise this. They have instead asserted that the jury decision here was itself an attack on the rule of law.
The rule of law, however, provides for both convictions and acquittals. Both outcomes are aspects of the law in action. An acquittal by a jury is as much an exercise in due process as any guilty verdict. One may disagree with jury decisions, but one cannot contend they are undermining of the legal system. They are the legal system—or at least part of it.
This confuses those with the fogey mindset. They cheer Magna Carta and jury trials in general terms, so long as they do not confer any actual benefit on activists. Trial by jury is fine in principle, it would seem—just not these trials by jury.
But this fogey confusion is not surprising, for the mindset is not rooted in any solid understanding of constitutionalism and the law. It is instead the jurisprudence of a nostalgia gift item, like an old biscuit tin covered with Union Jacks and pictures of empire. This traditionalism is not a way of thinking seriously about the elements of the State, but a way of not thinking about them. It is a collection of colourful patriotic phrases which express glorious sentiment but do not convey much meaning.
And this worldview is shared by the most senior of politicians and commentators. So we have a government that, in 2020, sought to use primary legislation so as to break the law, and seeks to limit or subvert any entity that offers any check or balance to the executive. The only constitutional restraints ministers want are those from the world of make-believe. They want trials by jury, but only if those juries unerringly convict and do not acquit “the woke.”
But a jury system that does not do what the government and its supporters want it to do is a fundamental part of the constitution. It means there are real and practical—not fanciful—limits to what the State can do to its citizens. Those who support the government and executive power may complain loudly about this—but their noisy unhappiness is the sweet sound of a working constitution.
