The Colston Four defendants have been acquitted by a jury.
Some are contending, like this former cabinet minister, that this acquittal ‘undermines the rule of law’.
We undermine the rule of law, which underpins our democracy, if we accept vandalism and criminal damage are acceptable forms of political protest.
They aren’t. Regardless of the intentions. https://t.co/JsOj0kNgWq
— Robert Jenrick (@RobertJenrick) January 5, 2022
That contention is incorrect.
An acquittal is as much an aspect of the rule of law as a conviction.
Criminal courts can acquit as well as convict – both can be the outcomes of the application of due process in a particular case.
The Colston Four were acquitted by a jury – and the defendants did not deny the essential facts.
It can be open to a jury to do this – and this informative Guardian article sets out many other examples.
A jury returning a verdict that they are entitled to return is an example of the law in action, and not of a legal process undermined.
This is not to say that juries are perfect – indeed, many of the greatest miscarriages of justice have come from jury verdicts.
Juries do not always get things right.
But the constitutional importance of juries is not so much for the decisions they make, but for the decisions they take away from others.
The State may arrest, charge and prosecute a person – but they cannot convict and punish a defendant pleading ‘not guilty’ to a serious offence without a jury trial.
The implication of the former cabinet minister’s view quoted above is that it should not be open to a jury to acquit a person prosecuted for a serious offence – but only to convict and punish.
But that is not the ‘rule of law’ – it is something darker and nastier instead.
Others are fretting that the verdict creates a ‘precedent’.
It, of course, does not create any legal precedent – no jury can bind another jury, and each jury should look at the case before them on its own evidence.
Nor does it create any practical precedent – or, at least, not one which has any more force than the many previous examples set out in the Guardian article.
The real upset is that a court heard the evidence and acquitted the defendants.
This is what juries sometimes do – and they can do this because they are outwith the control of the prosecuting State.
One half-expects that this weekend’s press will see ‘government sources’ urging ‘a crackdown’ on ‘perverse’ acquittals – with a proposal for ministers to have a ‘fast track’ on imposing convictions.
And this is not to put an idea into the heads of government ministers – the idea is no doubt already there.
One irony – if that is the correct word – is that this very government sought to use primary legislation to enable ministers to break the law.
That proposal – over which the Advocate General and the Treasury Solicitor resigned (and the recently knighted former Lord Chancellor did not) – did more to undermine the rule of law than any verdict of a Bristol jury.
And the current hyper-partisanship of modern politics means that if, say, a group of fox hunters were acquitted by some shire county jury, the same people who are jeering the Bristol jury would be cheering the shire county jury instead.
But juries are juries – they make mistakes, but they are independent of State prosecutors.
And the noise of government supporters unhappy with a jury decision is the sweet sound of a working constitution.
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David – happy new year … and welcome back. Excellent piece.
‘And the noise of government supporters unhappy with a jury decision is the sweet sound of a working constitution.’
Brilliant – and comforting.
Very elegant way to place this former minister among the ones who are always ready to waive the noose, beautifully timed a year after the Capitol Hill attempted coup d’état
Thanks, very informative.
On the question of a jury system. I understand the benefit of a jury is system is that juries are outside the control of a potentially oppressive state, but couldn’t an independent and impartial judge/panel of judges have made the same decision?
As a layman with no legal knowledge I don’t know that I should be tasked by the state with making complex decisions with no experience or training.
On the three avenues the defence presented to the jury, I am curious to know what would the direction be to the juror members around them interpreting the law on whether a statue was so grossly obscene that it was unlawful.
Were the jurors in effect primarily asked make a judgement on the legality of the statue, from which a guilty/not guilty verdict would automatically flow?
Christopher, what a reasonable person would think is that the jurors wanted to acquit and were given the means to do so. They did not need to challenge the authority of the courts. Perhaps we can think of the verdict as the release of pressure from a safety valve.
Is not the rôle of the Jury in this, or any case, to come to a verdict that is either guilty or not guilty?
That the verdict is seen as the release of a pressure from a safety valve is not, so far as I understand the rôle of any Jury.
Christopher – I doubt that a panel of judges – however impartial – would have reached the same decision. The difference is that juries do not have to give reasons for their decision (and it is illegal in the UK to ask jurors how or why they reached their verdict). So we will never know the basis on which the jury reached its decision in this case. By contrast, judges usually have to give reasons for their decisions, and I suspect that it would be difficult for judges to be able to give a reasoned decision for acquittal in this case (although I have not seen all of the evidence and submissions, so this is something of an educated guess on my part).
The absence of reasons is both a strength and a weakness of the jury. It acts as a strength in prosecutions where the prosecution may have some kind of political motivation. But it is a weakness in prosecutions which have no “political” element, as it potentially increases the risks of wrongful convictions. I oscillate between whether the advantages outweigh the disadvantages (or vice versa).
Clive Ponting is another example of a jury acquittal in the face of virtually a direction by the judge to convict. You will recall that he was prosecuted under the Official Secrets Act for leaking documents to Tam Dalyell MP relating to the sinking of the Beltran’s in the Falklands war.
As a retired lawyer, who for 40 years worked within the judicial side of criminal justice, I agree with every word you have written. All my working life I have been studiously apolitical but, I am now free to express my opinion. I have no doubt that this government and its most vocal supporters present the greatest danger to the rule of law this country has known in my working lifetime.
Keep up your good work of keeping us informed and I implore those who subscribe to your blog, whatever their previous political persuasion, to use their influence to argue against this most dangerous and corrupt government.
“Trial by jury is more than an instrument of justice and more than a wheel of the constitution; it is the lamp that shows that freedom lives.”
(Devlin, 1956)
Question is, will this illiberal government now try to remove the right to trial by jury?
Like Linda, I loved your closing comment. Thank you!
The whole piece was typically on point.
I have but one nuance to add.
Not everyone will necessarily know that “the Advocate General” you refer to was the Advocate General of *Scotland*, the (truly) Rt Hon. Lord Keen.
They might also have missed the fact that the then (and present) Attorney General for England and Wales, and Advocate General for *Northern Ireland*, the “Rt Hon.” Ms Suella Braverman, who had incidentally resigned from her previous post over Mrs May’s proposed Brexit deal & portrayed her fight as one against–the disturbingly anti-Semitic trope of–“cultural Marxism”, but did not, along with the recently knighted and also “Rt Hon.” Lord Chancellor, see fit to resign over the proposal that Ministers should be able to flout international treaty law under the U.K. Internal Market Bill.
I had a curious exchange with someone on Twitter this morning, who felt that the jury during their deliberations should have taken into account the likely reactions of the current Government to any decision they made.
He feared an illiberal backlash.
To cut a long story short, I said I felt the Government needed no encouragement to undertake illiberal action.
I am not unfamiliar with this line of argument from some on the left, who believe that had the last Labour Government not replaced Incapacity Benefit with Employment and Support Allowance then the incoming Tory Government would have not been inspired (and able) to adopt, I now choose my words with care, an intolerant, inconsistent and incompetent approach to the temporarily sick (ESA is claimed by, amongst others, those with a job to which to return, but whose employer funded sick pay has run out), the intermittently, the chronically and the terminally ill.
Tory Governments being, some seem to feel, incapable of designing benefits systems for themselves.
ESA addressed anomalies and I am sure unintended inequity caused when the Major Government had replaced Sickness Benefit with IB.
The Law of Unintended Consequences and benefits are more than just nodding acquaintances.
There is something to be said for the ingenuity of a mindset able to blame a Tory Government for inequity that it was only capable of causing with the aid of a previous Labour Government.
I guess it makes life easier for those with a tendency to have a binary view of the world.
…And I’m reminded that the legal principle that a jury is free to return its own verdict goes back to Penn, Mead and Edward Bushel in 1670.
https://en.wikipedia.org/wiki/Bushel%27s_Case
Thank you!
I was vaguely aware of the case, but would have found it hard to find for myself.
In a not dissimilar vein, Christopher Andrew once did a piece for Timewatch on the death of duelling, citing two cases separated by a few decades.
Duelling was illegal in both cases.
In the first, the jury acquitted the accused.
In the second, they did not.
The law had not changed in the intervening period, but social attitudes towards duelling had turned against the practice as a way of honourably settling disputes. One imagines m’learned friends benefited, thereby.
And the duel that took place between the Duke of Wellington, at the time the Prime Minister, and George Finch-Hatton, 10th Earl of Winchilsea in Battersea Fields on 21 March 1829, over the issue of a letter the Earl had sent to Duke about the Catholic Relief Bill, had brought the practice into disrepute.
The Duke fired and missed; he claimed he did so on purpose. However, the Duke was known as a poor shot and accounts differ as to whether he purposefully missed.
Winchilsea kept his arm by his side at the command to “fire” then quite deliberately raised his arm in the air and fired. He then apologised for the language of his letter. It is almost certain that Winchilsea and Falmouth, his second, had agreed on their course of action, as the letter of apology was already prepared.
I mean what is the point of chaps squaring off with no intention of even drawing blood with a letter of apology already prepared?
And Wellington was in the curious position of having, on campaign, banned duelling by his officers for fear of losing the talented amongst them and he felt there were precious few that came up to such an estimation.
But he had personally risked his life as Prime Minister at a time of crisis for party and country.
Wellington the politician was never the equal of Wellington the general and diplomat, perhaps because he had been used before he went into politics to being a law unto himself.
A Time to Kill by John Grisham was a fine novel on this topic.
An acquittal is probably the best outcome, the government gets a poke in the eye, Bristol Council gets rid of a contentious statue without the bother of taking it down and a possible riot was prevented. Trebles all round.
The dynamic of this jury decision is interesting. At one level I suppose the defendants were guilty as Hell. But a guilty verdict would be morally a bit iffy and could easily lead to a brick through one’s window. Not that anyone would think such a thing. Then a guilty verdict would probably have led to some public disturbance – all for some old statue. Much better to give a wink and a nod if one were needed. If this was stage managed then it was skilfully and rightly done, nuff said guvnor. Or of course it was just good old English justice at work – maybe.
BTW Happy New Year.
Replying to Jim:
“At one level I suppose the defendants were guilty as Hell. But a guilty verdict would be morally a bit iffy ..”
When juries start to give verdicts based on their moral compass it kind of defeats the object given to jurors by the judge – ‘ decide on the evidence presented’.
Presumably, when the/a judge talks about ‘evidence presented’ this is under the auspices of the law ( or rule of law?) rather than a question of group/individual morals.
Well, I agree with the sentiment that juries ought to act on the facts of the case. That is the simple minded textbook view, but the beauty of a free jury is the ability to add nuance and subtlety. The law is not a book of mathematics and the courts are often enough deceived. Personally I don’t have much time for the Colston Four as bastions of free speech and defenders of the innocent. But times, attitudes and fashions change and here I feel the public interest was best served by letting sleeping dogs lie.
However it was right to bring them before a court and see what a jury would make of them. My interest was in the delicate way the jury may have been led to ‘not guilty’. I doubt the police nor anyone other than a random Minister or two was too disappointed – more trouble than it’s worth. Just so long as it does not happen too often.
Very informative – but a word of caution on juries. Over the past decade I have learned a great deal first hand of what happens when juries get something badly wrong – as in jailing someone for life for a crime they did not commit – indeed on any objective view the chances of them being in a position to do so were vanishingly small. This has led to helping others in a similar jam and I am beginning to wonder how often juries get things wrong. If there were an effective appeals system this serious question would be less serious. But there is not https://appgmiscarriagesofjustice.files.wordpress.com/2021/03/westminster-commission-on-miscarriages-of-justice-in-the-interests-of-justice.pdf
A great piece, and a most welcome antidote to the ill-informed, authoritarian and anti-juridical rubbish being spouted today by the likes of Robert Jenrick and the Pravda press. But, nonetheless, I still have forebdings along the lines of: first they came for the judges (‘enemies of the people’), then the lawyers (‘lefties’) and then the jury system.
Clive Ponting came to my mind for his ( later accepting ) leaking of secret papers on the Belgrano sinking.
So too was Ken Dodd’s aquital for tax evasion in c. 1989. Most informed folk, including the Liverpool jury knew he was guilty ( in reality) but ‘politically’ with a dose of Liverpool ‘localism’ let him off. As one wag remarked at the time – the prosecution made a strategic mistake in holding the trial, in er, Liverpool.
The worrying trend , when you take away all the ‘froth’ is that it actually undermines the jury system.
Putting moral aspects aside ( as Ponting did by trying to have his private secretary implicated as a suspect, as Ken Dodd did by manifestly evading tax for a number of years) the jurors in both cases did not live up to the credo of delivering a verdict based on the evidence presented to them.
Sure, politically and, perhaps, with their own morals, the jurors made the right decisions – unfortunately, the ‘rule of values’ cannot be conflated with ‘rule of law’ – just doesn’t cut the mustard.
It is worth re-reading Lord Devlin’s “Trial by Jury” – and his view of the role of the jury as providing protection for the citizen from a tyrannical executive:
“The first object of any tyrant in Whitehall would be to make parliament utterly subservient to his will; and the next to overthrow or diminish the right to trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of 12 of his countrymen …”
The “not guilty” verdict in this case (as with Ponting) is an example of the jury exercising its right to find a defendant “not guilty” because they considered that the prosecution was inappropriate. And, in my view, that is part of a jury’s role – to act as a bulwark against an authoritarian and politicised prosecutor.
One of the many ironies here is that the Government is seeking to justify the repeal of the HRA by introducing a new “British Bill of Rights” which would entrench “British” rights that are not within the scope of the ECHR – such as the right to be tried by jury – yet Conservative MPs and ministers are condemning a jury verdict in this case in circumstances where the jury is undertaking its proper role to protect the citizen from an over-zealous executive.
Thanks, yes this acquittal of the accused by a jury of their peers shows that constitutional protections are intact and predictably has brought howls of rage from the usual ‘Law & Order’ suspects.
However there is another case that I really would like DAG to comment on.
Today the ECHR ruled on the case brought to it by a Belfast man Gareth Lee who in 2014 found that a NI bakery chain (Ashers) refused to make him a cake emblazoned with the message ‘Support Gay Marriage’. It’s well known in NI that Ashers is owned by a conservative evangelical Protestant family. Same-sex marriage was only finally legalised in NI in 2021.
The Belfast County Court and then the `Court of Appeal ruled for Lee saying he had been discriminated against, however the UK Supreme Court ruled the other way that the defendants had the right to refuse based on a religious objection and so Lee took it to the ECHR.
To me the reason its ruling is important is that the ECHR did not adjudicate the case but ruled the claim was inadmissible because the applicant had not expressly invoked his rights under the European convention on human rights at any point in the domestic proceedings and had relied solely on domestic law.
To me this is very interesting because it means that the ECHR requires that from day one of any action involving human rights in the UK then the plaintiff and his legal team must think beyond UK law and chart a course to the ECHR.
This is worrying in a time when the Justice Secretary and Home Secretary are openly hostile to the ECHR and especially to UK based plaintiffs having access – indeed talking of ‘reforming the law’ to require permission from the UK government for any UK citizen to take a case
Jacob Rees Mogg agrees, astonishingly: https://www.bbc.co.uk/news/uk-politics-59893024
I too was rather surprised that he did not join in with the vitriol on this occasion. He is (more or less) a local MP (his constituency rings Bath and borders Bristol), and this statue and other things Colston have featured in the local news for many years.
The judge’s summing up would likely have been typed up before it was delivered; are they allowed to provide copies if asked?
Or, as it was delivered in open court for all [present] to hear, by a taxpayer paid public official, would a document like that be subject to FoI?
As others have noted, very similar to Ponting and indeed a reminder of the power of the jury system, ie. juries have, for time immemorial, taken many factors into account notwithstanding stern edicts from judges to do otherwise or, indeed, their oaths as jurors. But, I am wondering why the CPS moved forward with this charge knowing that it was an ‘each way’ offence and was therefore highly likely to lead to a highly contentious jury trial in a city where opinions on the Colston statue would differ sharply. Could they have gone forward with other, lessor charges that could only be heard by magistrates? The commentaries seem to say that the size of the damage, being above £5,000, meant that preferring an ‘each way’ charge was the only the option open to them. And, more generally, need the CPS have gone forward with charges at all in this case? Do they not have wide discretion as to whether to prefer charges under the ‘public interest’ test?
Rick – with a short amount of research, it seems likely that the CPS would fall foul of breaching its own Code for Crown Prosecutors:
https://www.cps.gov.uk/publication/code-crown-prosecutors
“..2.7 When making decisions, prosecutors must be fair and objective. They must not let any personal views about the ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity of the suspect, defendant, victim or any witness influence their decisions. Neither must they be motivated by political considerations. Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction…”
The challenge you outline seems to indicate that given the televisual evidence of the offence (a youngish thuggish crowd pulling down a statue) then the CPS could/would be accused of acting in a political ( moral) manner that goes against its very purpose.
Whilst accepting the Jury made the decision it did, it’s hard to reconcile that it doesn’t undermine the jury system longer term.
Two comments in the same thread is too much, however in his Twitter feed Chris Grey has just tonight flagged a headline in today’s Sun which reads;
After Statue Acquittals ….
Judges Must End Jury ‘Wokeness’
Article penned by Jonathan Reilly Political Correspondent
Here in Canada, I recall the cases of Dr. Henry Morgentaler who was charged multiple times for performing abortions when the law severely restricted access to the procedure. In every case, juries returned a verdict of ‘Not Guilty’ to the fury of government officials and many others at the time.
The juries were sending a message to the government that the law, as it was then, was unacceptable and did not have the support of the populace. After a long struggle, we arrived at the situation existing today – there is no longer any law restricting abortion in Canada. It is solely a medical issue between the woman and her doctor.
This too is an important role of juries – to decide whether or not a particular law, as written, is acceptable to society.