This post was contributed by Ms Charlotte Crilly, Module Convenor for Legal system and method.
How important is the principle of the independence of the jury?
A recent jury verdict, the acquittal of “the Colston Four”, has caused controversy, including vehement criticism from the UK government. The case arose from four protesters toppling a large statue of a historic slave trader, Edward Colston, during a Black Lives Matter protest in 2020 in the city of Bristol, in England. The four protesters did not deny that they had helped to pull down the statute and throw it into the city’s harbour, but they pleaded not guilty to the offence of criminal damage.
By a majority verdict of eleven votes to one, the jury acquitted the four protesters.
Members of parliament from the Conservative Party expressed their outrage at the decision. One minister said that a perceived “loophole” in the law would be closed, to limit the prosecution of people who damage memorials and, in the words of the minister, to ensure that people “can’t just go round and cause vandalism, destroy the public realm, and then essentially not be prosecuted”. Another Conservative member of parliament argued that “We undermine the rule of law, which underpins our democracy, if we accept vandalism and criminal damage are acceptable forms of political protest.”
The Attorney General stated that she was considering whether to refer the case to the Court of Appeal to “clarify the law”. She noted that “trial by jury is an important guardian of liberty and must not be undermined. However, the decision in the Colston statue case is causing confusion.” If the case were referred to the Court of Appeal in this way, the court would not be able to rule on whether the jury’s decision was correct, or to change the verdict, but only to decide whether there was an error in law in the directions that were given to the jury.
The acquittal by the jury in this case, and the reaction to it in some quarters, brings into focus the independence of the jury, and the power to acquit whenever it sees fit. This principle was established in Bushell’s Case ((1670) 124 E.R. 1006) in the 17th Century, in which jurors returned verdicts of not guilty, despite the judge urging them to find the defendants in the case guilty. The judge found the jurors to have returned an erroneous verdict and ordered the jurors to be fined and imprisoned (under the law as it stood at that time). One of the jurors appealed against that sentence, and the court ruled that jurors cannot be punished for their decisions. Jurors must be free to decide a case free from any pressure or intimidation.
There have been a number of cases which have attracted media attention because juries have acquitted in situations in which defendants have admitted causing damage. In 1985, Clive Ponting, a civil servant working for the British government, leaked documents about the Falklands war; he was acquitted in a jury trial despite the fact that he had breached the Official Secrets Act 1911 and the judge had directed the jury to convict him (R v Ponting  Crim LR 318). In April 2021, a jury acquitted six Extinction Rebellion protesters of causing criminal damage to London headquarters of Shell despite the judge directing them that the protesters had no defence in law.
Criticisms invariably arise when cases of this sort are decided by juries with an acquittal verdict, and questions asked about whether trial by jury is an effective and just means of deciding criminal cases. In the case of the “Colston Four”, much of this criticism came from Conservative MPs, including Government ministers. How does this fit with the Government’s recent commitment, given in the context of its plan to reform the Human Rights Act, that it will “strengthen typically British rights like … trial by jury”? The jury is seen as a fundamental right in the English legal system, but one that will continue to be controversial.