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.