On Monday 4 December, hundreds of people gathered at dozens of Crown Courts across England and Wales to uphold the principle of jury equity, i.e. the right of juries to determine whether a serious crime has been committed, whatever the trial judge may think or say. The reason for this is simple: the UK justice system is eroding that basic principle in front of our eyes.
The principle of jury equity
The protests are part of the Defend Our Juries campaign. It aims to:
- Bring to public attention the programme to undermine trial by jury in the context of those taking action to expose government dishonesty and corporate greed
- Raise awareness of the vital constitutional safeguard that juries can acquit a defendant as a matter of conscience, irrespective of a judge’s direction that there is no available defence (a principle also known as ‘jury equity’ or ‘jury nullification‘)
- Ensure that all defendants have the opportunity to explain their actions when their liberty is at stake, including by explaining their motivations and beliefs.
Famously, the principle was used to acquit the civil servant, Clive Ponting in 1985, after he leaked information exposing the government’s misinformation over the sinking of the General Belgrano – despite the judge directing the jury that Ponting had no defence to breach of the Official Secrets Act.
The principle of jury equity has recently become contentious over juries repeatedly acquitting members of groups taking action for political purposes, such as members of Extinction Rebellion, Palestine Action, and the Colston 4.
Whereas some judges are content to leave the decision to the jury, others have been taking extreme measures to prevent juries from reaching not guilty verdicts in such cases. Measures have included banning defendants from explaining their motives for taking action (in some cases people have been imprisoned just for using the words ‘climate change’ and ‘fuel poverty’ in court) and arresting those attempting to communicate the long-established principle of jury equity.
Most consequential sign in British history?
In March of this year, Trudi Warner held a sign outside Inner London Crown Court, which communicated the principle of jury equity. Nearly nine months on, the impact of her sign has been profound. It has led, among other things, to a split in the legal profession over the proper role of the jury in British justice.
On the one hand, Warner and others have been arrested for displaying the principle of jury equity, either for contempt of court or for perverting the course of Justice. In September, the solicitor general Michael Tomlinson KC announced he would apply to the High Court for Warner’s committal to prison.
But as news of the arrests and Warner’s prosecution spread, outrage has grown.
At first 24 people repeated Warner’s action in May, then 40 people did the same thing in July, and wrote to the solicitor general inviting him to prosecute them too. Then on 25 September, the first National Day hosted by Defend Our Juries took place, involving 252 people sitting outside 25 courts across England and Wales. Faced with this show of unity, the police decided not to arrest anyone and the attorney general has brought no more prosecutions.
Now, people took the Defend Our Juries campaign nationwide once more.
Defending our juries
Actions took place across the country, in place like Bradford:
Winchester:
Southwark:
Nottingham:
Carlisle:
Gloucester:
Lewes:
And London:
Meanwhile, lawyers and legal academics and others have also rallied to the defence of Warner and the democratic principle of jury equity.
Law ‘degenerating into farce’
In July, a number of leading lawyers including Michael Mansfield KC spoke out publicly over the solicitor general’s prosecution of Warner:
Jury trial is the jewel in the crown of the criminal justice system in the United Kingdom and has to be preserved and protected. The right of a jury to return verdicts according to their ‘convictions’ and ‘consciences’ has been enshrined since the trial of two Quakers in 1670 – William Penn and William Mead. It has been memorialised with a plaque in the Old Bailey. No defendant and no defence counsel should be prohibited from referencing this paramount feature of our system.
Professor Richard Vogler wrote on 27 September:
George Orwell noticed the tendency of repressive law to degenerate into farce, when truth becomes a lie and common sense is heresy. This is worth remembering now that the solicitor general, Michael Tomlinson KC, has concluded that it is right to take action against… Trudi Warner, for holding up a sign outside a criminal court, simply proclaiming one of the fundamental principles of the common law: the right of a jury to decide a case according to its conscience.
More than 150 health workers have written an open letter to the attorney general and solicitor general “to express our deepest concerns regarding the prosecution of Trudi Warner”.
They make reference to Xavi Gonzales-Trimmer, a young man who took his own life earlier this year ahead of a trial at Inner London Crown Court in front of Judge Reid, the judge who imprisoned three people for using the words ‘climate change’ and ‘fuel poverty’ in court, and where Warner displayed her sign.
In a different context, concerning a police officer prosecuted for speeding to the scene of a life-threatening attack, Met commissioner Sir Mark Rowley recently said “Thank God for the sense of British juries”.
Justice lottery in political trials
This split between those who trust in the moral sense of juries and those who don’t, is now being played out directly in the courts. Over the last two months, three jury trials concerning more or less identical allegations have exposed a fundamental divergence in the approach taken by different judges, turning criminal justice into a lottery.
First, in October this year, members of Extinction Rebellion were tried at Southwark Crown Court for causing an alleged £19,000 worth of damage to HM Treasury back in October 2019, after spraying it with fake blood, drawing attention to the Treasury’s backing for fossil fuel projects around the world. The judge in that case, Judge Cole, allowed the defendants to argue their actions were justified with reference to climate breakdown and to explain to the jury the significance of their role. The jury entered verdicts of not guilty.
In the same month, Dr Gail Bradbrook, a co-founder of Extinction Rebellion, was tried at Isleworth Crown Court for breaking a window at the Department of Transport, also back in October 2019, to shine a spotlight on the Department’s support for HS2 and Heathrow expansion. Allegedly, the window cost £27.5K to replace.
In that case the judge, Judge Edmunds, directed the jury that Dr Bradbrook had no defence in law and prohibited her from explaining her motivations to the jury under threat of imprisonment. He also banned her from explaining the principle of jury equity to the jurors and threatened to move to a judge only trial if she breached these cases orders. In that case, the jury found Bradbrook guilty.
In the third case, which concluded in November, nine women were charged with causing £500,000 worth of damage by breaking windows at HSBC’s HQ in Canary Wharf in April 2021, in response to HSBC’s £80bn in fossil fuel investments since the adoption of the Paris Agreement. In that case, again, the judge, Judge Bartle, allowed the defendants to argue their actions were justified and to explain the role of the jury. The jury acquitted all nine of the women.
Arguably, the split reflects a broader political antagonism between vested corporate interests, which threaten to undermine British democracy through lobbying, sponsorship, and legal action against governments, and calls for enhanced, deliberative democracy (through citizens’ assemblies) which draw inspiration from the principles of trial by jury as a counter to corruption.
UN intervention highlights dangers of judicial lottery
For those drawing the judicial short straw, the consequences can be severe.
When Marcus Decker and Morgan Trowland were tried for holding a Just Stop Oil banner from Dartford Bridge, causing delay to the traffic, the judge prevented the jury from considering their defence of ‘reasonable excuse’. They were then convicted, imprisoned for two years seven months and three years respectively.
Decker faces deportation proceedings, despite having a young family in London. In November it was reported that the UN had intervened alleging that the prison sentences imposed on Decker and Trowland were incompatible with fundamental civil and political rights.
The intervention was followed by another letter from the leading climate scientists, Sir David King and Professor Jim Hansen, Baroness Rosie Boycott and signed also by a number of artists, concerning the nine women who broke the windows of HSBC:
While we applaud the jury for recognising these women’s solid defence for taking such action and following their conscience, a collective act of madness is going unchecked both in the UK and across the globe. Those standing up in defence of life on Earth are being criminalised by the UK legal system, while our own government willingly continues to facilitate the destruction of our only home.
‘It should never be forgotten’ says Defend Our Juries
Speaking on behalf of Defend Our Juries, Dr Clive Dolphin said:
It should never be forgotten that in 1924 trial by jury was abolished in Germany via the Emergency Judicial Organisation Act, without effective debate in the Reichstag. To distract from the reality of what was occurring, the replacement courts were renamed Schwurgericht – ‘jury court’.
History tells us that an authentically democratic component of the criminal justice system is a vital safeguard against the abuse of executive power.
That’s why so many are risking arrest and prosecution today – to defend not only the principle of jury equity but to defend our democracy.
Featured image and additional images via Defend Our Juries
