"The power that puts the jury above the law can never safely be entrusted to a single person or to an institution, no matter how great or how good. For it is an absolute power and, given time, absolute power corrupts absolutely. But jurors are anonymous characters who meet upon random and unexpected summons to a single task (or perhaps a few), whose accomplishment is their dissolution. Power lies beneath their feet but they tread on it so swiftly that they are not burnt." (Lord Devlin)[1]. FlyingFish investigates direct action, lawful excuse and the jury’s conscience.
The jury - rooted in conscience
In 1670 a jury acquitted two Quaker activists of "leading a dissident form of worship", despite having been directed by the judge to convict. When the jury refused to reverse their decision the judge sentenced them to prison, but after an appeal the court ruled that they should not be punished for their verdict. The jury's power of a verdict according to conscience is enshrined as a bulwark against oppressive measures of the state.
We, in our time, are only reminded of this duty of the jury in so-called exceptional cases. Nowadays, when a jury fulfils its highest function, the verdict is called 'perverse'; we have forgotten the moral foundations supporting the letter of the law.
In 1996 a jury acquitted four women from the peace group Swords into Ploughshares of criminal damage to a British Aerospace Hawk jet. Just how far justice had been forgotten was revealed when this acquittal was universally reported as a ‘perverse’ verdict, as if the jury had wilfully made a mockery of justice. Quite the contrary - the jury had faithfully applied the principle of 'lawful excuse', a tenet of common law also written in the Criminal Law Act 1967: "A person may use such force as is reasonable in the prevention of crime". The jury accepted the defence's argument that the women sincerely intended to prevent the crime of genocide against the population of East Timor.
Truly perverse
The verdict on the Ploughshares women is perverse only to someone who has lapsed into forgetting that it is the state which is capable of the greatest crimes as well as complicity in them.[2] A cry of horror at the verdict is ironically misplaced, for the true perversity would have been to declare it a crime to attempt to prevent genocide. The verdict was a perversion of neither justice nor of the law: the reasoning used in defence of the action followed precisely the contours of established legal precedent.
Correctly speaking, a perverse verdict (or 'nullification' in legal terms) occurs when a jury refrains from applying the law at all. The legal profession restricts the notion of 'perverse' to verdicts where a jury disregards the law in the interest of greater justice. In 1991 a jury perverted legal justice to achieve moral justice by acquitting two people who had clearly helped Soviet agent George Blake to escape after he had broken out of Wormwood Scrubs in 1966. Responding to criticisms of this acquittal, a law professor wrote:
“If the judge in this case were deserving of criticism, it would be for failing to tell the jury of its power to do justice despite the lack of a recognised defence. From Bushell's time forward, the power of the jury to acquit in cases where a strict application of the law would lead to an unjust result has been tacitly recognised. Yet judges have not informed juries of this power.”[3]
By contrast, perhaps it was an ignorance of this power to acquit which led to a miscarriage of justice in the recent case of the Cambridge Two. A malicious prosecution of two workers at a hostel for the homeless resulted in their being convicted by a jury of allowing heroin to be supplied on the premises, when in fact they had taken the usual anti-drugs measures. Judge Jonathan Haworth, who condemned "their 'perverse' refusal to show remorse", did not bother to remind the jurors of their moral duty to acquit if their consciences so demanded, and his summing up was tilted against the accused - perverse on the part of the judge, rather, and a clear case of institutional fascism.[4]
The use of reasonable force becomes lawful when someone has a genuine belief in its necessity, even if that belief turns out to have been mistaken.[5] This is what is called a subjective test, where it is the defendant's honesty that is at issue. But juries' assessment of the facts of a particular situation introduces an objective element. Firstly, the degree of force used has to be objectively reasonable (rather than merely what the defendant themselves deemed necessary). Secondly, "The [defendant's] belief does not have to be a reasonable one, but the reasonableness or otherwise of the accused's belief will be relevant to the question of whether he actually held that belief."[6]
A surprising and momentous success was achieved last year when a Sheriff in a Scottish court actually directed the jury to acquit the defendants on the basis of 'lawful excuse', as it was understood to exist under Scottish law. Three women from Trident Ploughshares walked free after having persuaded the Sheriff that their damage caused to property at the Faslane nuclear submarine base was not 'malicious' but justified due to their sincere belief that nuclear weapons were illegal under international law.[7] This triggered howls of disbelief - despite the fact that a 1996 ruling of the International Court of Justice seriously questioned the legality of nuclear weapons - and prompted a review of the case.
When invoking 'lawful excuse', the reasonableness of both the motivating beliefs and the subsequent action are in question. In an extreme case, if the action could endanger life or limb, then rather than having the chance of being acquitted on the basis of lawful excuse you could be accused of acting recklessly and be convicted accordingly of a serious offence (aggravated criminal damage, for example). Similarly, a jury decided recently that Tony Martin had gone beyond the bounds of self-defence against a burglar by using unreasonable force: shooting the intruder in the back while he was apparently attempting to flee.
This whole area of law recently received high-profile attention due to the trial of Lord Peter Melchett, executive director of Greenpeace, and twenty-seven others who had uprooted a field of genetically modified (GM) maize owned by Aventis. Claiming the lawful excuse of prevention of damage to neighbouring property, evidence was presented to the jury as to the reality of the danger and thus the genuineness of a belief in the danger, its immediacy and the reasonableness of the action thus taken. GM pollen could travel long distances and contaminate other non-GM organisms; the GM crops were about to flower at the time of the action; and several other avenues had been taken in the attempt stop the crops from being grown. The jury acquitted the defendants of theft and was unable to decide on the charge of criminal damage. The Crown Prosecution Service has now decided to launch a re-trial.[8] It has to be said that presently most attempts to plead 'lawful excuse' in defence of direct action have failed.
...And so, the government embarks on a warpath against its own people: corporate-, weapons- and biotech-friendly New Labour will have none of this. While Jack Straw leans back in contentment over his wide scope for discretion, as Home Secretary, to have the final word on many legal cases - such as whether or not to extradite General Pinochet to Spain - he is quite happy to put his full weight behind the Criminal Justice (Mode of Trial) Bill, intended to reduce the people's involvement in administering justice, by restricting defendants' scope to opt for a Crown Court trial by jury.
It is precisely the 'middle-ranking' charges - which include those most frequently levelled at the activist - which the Bill addresses. Currently, a defendant can choose between summary justice before the magistrate's court and a more thorough trial by jury in the Crown Court. In future, the new Mode of Trial Act would leave this decision to the magistrate. The proposed savings in time and money, minimal even as they are, have been hotly disputed. Are justice and popular empowerment so cheap? Obviously, to this government they are.
(For a full version of this article and other great stuff on "the resistance against news and image management, against the systematic distortion and trivialisation of reality which mainstream culture spews forth" see www.flyingfish.org.uk)
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References:
[1] The Rt. Hon. Lord Devlin, The Conscience of the Jury, Law Quarterly Review, July 1991, Vol.107, p.404.
[2] "[T]he Indonesian Government had given assurances that the planes would not be used against the East Timorese, and the British Government had accepted this and granted an export licence. Acquitting the women was therefore a criticism of the British Government's position on the issue, as well as the actions of the Indonesian Government." (Catherine Elliot & Frances Quinn, English Legal System, 2nd edn, London & New York: Longman, 1998, p.148.)
[3] The Independent, 5.7.91, The judge presides, but the jury decides where justice lies, by James Gobert. [My emphasis.] A standard law textbook states, "Juries are never actually told that they can acquit if their consciences suggest they should: their instructions are quite the opposite…" (Elliot & Quinn, p.149.)
[4] The Observer, 2.1.00, Jailed for doing her job, by Nick Cohen. The Observer, 27.2.00, 'I'm no martyr. No one told me I'd land in jail.' Judge Haworth said in summing up, "[Y]our task is not to determine motive or to try and tackle moral dilemmas", Regina v Wyner and Brock, summing up, 16.11.99, p.2. See campaign website at http://www.cambridgetwo.com
[5] Alan Reed & Peter Seago, Criminal Law, London: Sweet & Maxwell, 1999, p.217. (This discussion derives mainly from Reed & Seago, pp.206-217. See also Elliot & Quinn, Criminal Law, 3rd edn, Harlow: Pearson, 2000, pp.263-269.) Criminal Law Act 1967 s.3, General Note: "[O]rdinary rules applicable to mistake of fact would be available, and accordingly a person would be justified in using such force as was reasonable in the circumstances as they appeared to him."
[6] Peter Hungerford-Welch & Alan Taylor, Sourcebook on Criminal Law, London: Cavendish, 1997, p.275. [My emphasis.]
[7] Stephen C.Neff, Idealism in Action: International Law and Nuclear Weapons in Greenock Sheriff Court, The Edinburgh Law Review, Vol. 4, Issue 1, Jan 2000, pp.74-86; p.84. Neff laments the poor quality of the media reports on this case.
[8] The Guardian, Independent, Telegraph and Times, 20.4.00; further details from Greenpeace. Independent, 3.5.00 Greenpeace activists face new trial over attack on GM crops.