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Jury Nullification?

A jury decides the facts of a case, the judge directs them as to the law. The distinction is fundamental, and cements the place of the common folk, non-lawyers and non-politicians, in our legal processes. A judge is quite entitled to say to a jury 'This is the law. If you find facts A, and B, and C proved, so that you are quite sure, then you must find the defendant guilty. Otherwise he is entitled to be acquitted, and you must do so.'

What happens when a jury thinks that the law is wrong, or is being applied oppressively, but the facts are inescapable? The simple answer is that our own law has what is probably the good sense not to ask. You may not ask of a juror in the UK, what was in his mind when a particular verdict was delivered, or what he meant by his verdict. He gives his verdict, and that is that. This does sometimes leave a sense of bewilderment amongst those outside the jury room, but every so often, it leaves the inescapable whiff of the common man putting two fingers well and truly up at the establishment. The juror cannot be questioned, and therefore can reach his verdict quite freely.

There are times when the law itself is clear, but perhaps unpopular. This has happened several times, particularly with early road traffic offences where drivers were charged with manslaughter, then with the Official Secrets Act 1911, and latterly with the Computer Misuse Act (eg R v Bedworth), and also with some charges brought under the Criminal Damage Act against political protesters. The common element in all these was that the law was, to a lawyer, quite clear, and given what appeared to be the factual circumstances a conviction was inevitable. In each case, a jury can only be described as having refused to convict. An oppressive prosecution, or law, was seen as such, and whatever the judge directed, the jury returned a verdict of not guilty.

In the US this process seems to be known as 'jury nullification', the making unworkable of a law by the application of independence of mind, common sense, and, perhaps above all, a sense of fair play and a sense of true justice. Governments do not like it. I believe that a defence lawyer is not allowed directly to suggest to nullification a jury, but it does not seem to stop the jury coming to know. You may have noticed that in our own governments, successive Home Secretaries come in liberal-minded, and leave, after trying to dispense with the jury, as bigoted bureaucrats.

What do judges say, then?

In a series of cases, judges have found themselves in a position where the law appeared simple, and the facts, often themselves admitted, overwhelming. Yet, somehow, the defendant sticks at pleading not guilty, and the judge gets the funny, and mildly uncomfortable, feeling that the jury have some sympathy.

A judge cannot be criticised for not saying 'You may ignore me if you wish ', but it seems clear that juries do come to understand, with the assistance of defence counsel if necessary, that they have the power, as they say, to 'Just say 'No''.

Mercifully, and to the great credit of our judicial system, judges in the Court of Appeal have consistently emphasised that the judge can go so far, but no further. He may summarise the defendant's version of events, but must do so fairly, and may not do so in a way which disallows the jury from reaching a verdict which, in his mind, would perhaps do the facts less than justice. He must stay firmly on his side of the line. He must stick to the law.

The judge may not tell the jury what the facts are, and the jury may not tell the judge what the law is. In practice however, and, perhaps rarely, a jury's verdict is so emphatic that its effect is precisely to nullify the law.

It must also be noted that a jury is sworn in. When they take on a case, each juror swears to find according to the facts presented. A choice to find otherwise is a breach of that oath.


December 2004 - A side note

I had heard it said both on the internet and on 'The Practice', so it must be true, that in the US it was not considered proper for counsel to advise a jury that it may 'find against the facts.' I have never heard such a rule in English law, but the case of Regina -v- Speechley (Times 1 December 2004) adds a little colour. The defendant appealed. At the close of the prosecution case, his barrister had requested the permission of the judge to be allowed to invite the jury to discharge the defendant withoutmore. The judge refused. The appeal failed. The court pointed out that such a request was unheard of (had never been done before - there was no precedent). It is the judge's task to ensure fairness in a trial, and it is his decision alone when a trial might be so ended.

Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.
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18 October 2013 http://www.swarb.co.uk/lawb/crmJuryNull.shtml 225 18 October 2013