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]

In 1670 a jury of twelve, led by Edward Bushell, acquitted two Quaker activists, William Penn and William Mead, of unlawful assembly, 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. To this day, a memorial plaque to the steadfastness of the jury in 'Bushell's Case' hangs in the Old Bailey. 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, a duty usually forgotten beneath the mystifications of our power-crazed law-enforcers. 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 three women members of the peace group Swords to Ploughshares of criminal damage to a British Aerospace Hawk jet. At the consent of the British government, the jet was about to be delivered to the Indonesian government and was likely to play a role in human rights abuses against the people of East Timor. But just how far justice had been forgotten was revealed when this acquittal was universally reported in the media as a perverse verdict, as if the jury had wilfully made a mockery of justice by ignoring the law. Quite the contrary - the jury had faithfully applied the principle of 'lawful excuse', a tenet of common law also written into statute in s.3(1) of the Criminal Law Act 1967:

A person may use such force as is reasonable in the prevention of crime...

Truly perverse

The verdict on the Ploughshares women is perverse only to someone who has lapsed dangerously into forgetting that it is states - including our own - which are capable of the greatest crimes as well as complicity in them (whether for reasons of politics or business, or both.)[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; this would have been a real perversion of the course of justice. The verdict was neither a perversion of justice nor of the law: the reasoning used in defence of the action followed precisely the contours of established legal principle.

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 mean a failure to follow the letter of the law, to verdicts where a jury disregards the law in the interest of greater justice. For example, to deliver moral justice rather than paper justice, a jury in 1985 acquitted Clive Ponting who broke the Official Secrets Act to correct public misinformation surrounding the sinking of the Argentine ship General Belgrano during the Falklands conflict. Misleading the jurors as to their proper right and duty, the judge summed up:

Until Parliament sees fit either to repeal or amend it, my duty and your duty is to apply the law as it is. We cannot pick and choose and say, 'This is a law we don't like, and therefore we are not going to apply it.' That would be acting wholly contrary to our oaths...
[Ponting's] duty does not mean a moral duty; it means an official duty...
You, members of the Jury, are not concerned with whether that was a wise decision or whether you would have taken it.[3]

If the judge in this case is 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.[4]

Lawful excuse

The same principles underpin defence of self, others, property or prevention of crime. They share the same requirement that force used is such as is reasonable in the circumstances… [and] that while the defendant is judged according to what he believed the circumstances to be, he will only be able to claim the benefit of this defence if he has acted (objectively) reasonably in the light of those circumstances.[7]

A surprising and momentous success was achieved last year when Sheriff Margaret Gimblett actually directed the jury to acquit the defendants on the basis of 'lawful excuse' (as it was understood to exist under Scottish law). The three women from Trident Ploughshares walked free from Greenock Sheriff Court after having persuaded Gimblett that the damage which they had caused to property at the Faslane nuclear submarine base was not 'malicious' but justified due to the women's sincere belief that nuclear weapons were illegal under international law.[11] 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 the Lord Advocate to order a review of the case, currently being heard at the High Court in Edinburgh. Whatever the result of this review, the women's acquittal cannot be reversed, and Sheriff Gimblett's assent to hearing detailed, expert defence arguments for the illegality of nuclear weapons has opened a Pandora's Box.

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 (under s.5(2)(b) Criminal Damage Act 1971, for example) you could be accused of acting recklessly and be convicted accordingly of a serious offence (aggravated criminal damage, for example, to which the s.5 excuse - with good reason - does not apply). 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.

The reasonableness of the action taken also includes the extent to which it directly intervenes against an immediate danger. This is more clearly an objective test compared with the rather subjective test of genuineness of belief.[12] For example, two activists were charged, under the Criminal Damage Act 1971, with intent to cause damage to the perimeter fences of military bases:

Part of Mrs Hill's evidence was that she believed the purpose of the bases was to monitor movements of Soviet submarines and in the event of hostilities breaking out the base would be the subject of a nuclear strike with resulting devastation in the area. She lived about 40 miles away.
Consequently her property and that of her friends and neighbours in Pembrokeshire would be put at risk should there be any such nuclear strike. If enough people cut the perimeter wire the Americans might consider the base was too insecure to be maintained. They might remove their base and thereby remove the reason for Soviet attack or else the UK Government would take steps to remove the need for such bases by abandoning the idea of nuclear defence.
Thus, at the end of that series of hypothetical events, her own property or that of her neighbours would avoid destruction.[13]

In the 1996 case of the Hawk Four (introduced above), the judge at first attempted to gag the defence. He said he accepted that their belief was genuine and so refused to allow witness evidence that the Hawk jets were to be used in human rights abuses. But after the defence argued - correctly - that this evidence was necessary in order to demonstrate the reasonableness of their subsequent action, the evidence was allowed to be presented. After explaining how a long campaign had failed to persuade the British government against delivery of the jets, which was then imminent, the jury decided in their favour. However, in an earlier very similar Ploughshares case, the judge remained unmoved in his refusal to allow witness evidence on the eventual use of the Hawk jets. A first trial resulted in a hung jury, but after a second the defendant, Chris Cole, was convicted and sentenced to eight months' imprisonment.[14] It has to be said that presently most attempts to plead 'lawful excuse' in defence of direct action have failed.

This area of law recently received some high-profile, if rather poor quality, media attention due to the trial of Lord Peter Melchett, executive director of Greenpeace, and twenty-seven others who had attacked a field of genetically modified (GM) maize owned by Aventis (formerly AgrEvo). Claiming the lawful excuse of prevention of damage to neighbouring property (cultivated land and plants), 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 for some time before uprooting the crops and bagging them (to prevent the release of GM pollen) 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.[15]

Assault on the jury

...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. (He gets high on power, does our Jack...)

It is precisely the 'middle-ranking' charges - which include those most frequently levelled at the activist - that 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 (although allowing an appeal against it). 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.

[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.) Thanks to Andrea Needham. For an account of this action, see also John Pilger, Hidden Agendas, London: Vintage, 1998, pp.313-322. (N.B. A jury's decision has virtually no force as a legal 'precedent'.)
[3] Richard Norton-Taylor, The Ponting Affair, London: Cecil Woolf, 1985, pp.104, 110.
[4] The judge presides, but the jury decides where justice lies, by James Gobert, Independent, 5.7.91 [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.)
[5] Jailed for doing her job, Observer 2.1.00.
[6] 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. 'I'm no martyr. No one told me I'd land in jail.' Observer 27.2.00. See campaign website at http://www.cambridgetwo.com
[7] 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). Thanks to Kiron Reid, Lecturer in Law and Convener of the Criminal Justice Unit, School of Law, University of Liverpool.
[8] s.3 Criminal Law Act 1967, 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."
[9] Reed & Seago, p.212.
[10] Peter Hungerford-Welch & Alan Taylor, Sourcebook on Criminal Law, London: Cavendish, 1997, p.275. [My emphasis.]
[11] 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.
[12] Elliot & Quinn, 2000, p.163.
[13] Directions to convict justified through weakness of defence evidence, Law Report, Times 6.10.88.
[14] Independent on Sunday, 21.7.96, Campaigners face jail for raid on military jet.
[15] Guardian, Independent, Telegraph and Times, 20.4.00; Thanks to Sarah Burton, Director, Political & Business Affairs, Greenpeace UK (http://www.greenpeace.org). Greenpeace activists face new trial over attack on GM crops, Independent 3.5.00.

By Keith Fisher, April 2000.
keith@flyingfish.org.uk