Jury Equity: A verdict of conscience

The recent case of HM Solicitor General v Trudi Warner has highlighted a little-known but increasingly prominent issue of "jury equity".

The issue is neatly summarised in this part of the judgment:

The trial of several defendants affiliated with the environmental group Insulate Britain was due to begin at Inner London Crown Court on Monday, 27 March 2023. Between 8 am and 9 am, in the area near the entrance to that court used by judges and jurors, Ms Warner carried a placard with the handwritten words:

"JURORS, YOU HAVE AN ABSOLUTE RIGHT TO ACQUIT A DEFENDANT ACCORDING TO YOUR CONSCIENCE".

The Claimant alleges in his Claim Form that Ms Warner "…deliberately targeted jurors with her sign, including hurrying to catch up with a juror to draw attention to the sign and, in another case, walking alongside the juror while showing the sign".

It is alleged that in doing these acts, Ms Warner "…interfered with the rights of the jurors to go to and from the court and perform their duties without let or hindrance, and thereby interfered with the administration of justice itself".

The Claimant says that Ms Warner did these acts intending to interfere with the administration of justice by seeking to influence the jurors and, in particular, to acquit climate change activists, whether or not such acquittal would be in accordance with the trial judge's legal directions.

The Solicitor General alleged that Warner was in contempt of court. Still, the court ruled in favour of Warner, protecting her rights to free speech (although strictly speaking, the case was won on a different point) and also observing that any potential prejudice to a trial could be cured by a direction to the jury, with a prosecution not being a proportionate response.

So, what does this mean in reality?

The main point is that the court was merely recognising the reality of the jury system, in that it can return whatever verdict it wishes without consequence.

In the words of the court:

"As to jury equity, as I understand his case, the Solicitor General appears to accept that juries have a power (of some nature) to return a verdict according to their conscience. Mr Eardley KC describes it in his skeleton argument as "a de facto power to acquit a defendant regardless of judicial directions, because they cannot be directed to convict and they cannot be punished for acquitting on conscientious grounds, but they have no right to do so" (his emphasis). There was some debate before me about whether this is a "power" or "right" of a jury. That is not ultimately helpful, but I note that at the plaque in the Old Bailey (I return to this at [17] below) it is described as a "right". It is probably best to describe jury equity as a principle of our law. It is an established feature of our constitutional landscape and has been affirmed, as set out below, in the highest courts."

However, that is not the same as suggesting that a jury ought to do that, and in fact, the court made it very clear that jurors should follow the legal directions given.

Significantly, it is clear that we will not see advocates addressing jurors in relation to this issue with the court ruling:

"Counsel agreed that participants in the trial process cannot lawfully invite a jury to apply the principle of jury equity or indeed to inform them of it. That prohibition is how the common law squares the jury equity and the oath that jurors are required to swear. I was referred to the description of how the tension operates in the United States in the judgment of Judge Leventhal of the United States Court of Appeals for the DC Circuit in US v Dougherty 473 F2d 113. Judge Leventhal describes how, in the United States, the existence of an "unreviewable and unreversible power in the jury to acquit in disregard of the instructions on the law given by the trial judge, has for many years co-existed with legal practice and precedent upholding instructions to the jury that they are required to follow the instructions of the court on all matters of law" (at [1132]). This is also an accurate description of the position in our jurisdiction."

We are, however, very likely to see more protests like the one staged by Warner and potentially a great deal of "social media advocacy" in the coming months and years.

Of course, that may work not only in favour of defendants but potentially against them, and we will be closely monitoring this issue on a case-by-case basis to ensure the fair trial of all those we represent.