The light of day

Sunday National, 9th January 2022.

With his two faces, Janus is the patron god of the new year and also, it appears, one of the ruling spirits governing the Conservative Party. Just last month, Dominic Raab announced his intention to introduce a British Bill of Rights, replacing the “hated” Human Rights Act.™

The basic idea is that this British Bill of Rights will protect most of the same fundamental freedoms as you’ll find in the European Convention, to much the same extent, only with greater opportunities for the tabloids to publish stories about Meghan Markle’s private life and greater latitude for the Home Secretary to kick foreigners out of the country. Judges will be freed up to ignore decisions of the European Court of Human Rights and courts will be obliged to defer still further to Westminster and Whitehall. Holyrood will stay merrily trussed up, as usual. 

On top of this, Raab wants to introduce a qualified right to jury trial, reflecting “our” common law tradition and history going back to the barons’ grievances against King John in 1215. Relegated to a footnote is the observation that while “jury trials are a long-standing feature of Scottish criminal procedure,” “there is no right to a trial by jury as such” in Scottish constitutional history. But ho hum. If such be the law of England, on what ground can it be argued not to be the law of Scotland? If those loonies who seized Edinburgh Castle last year think Magna Carta applies to Scotland, who is the Lord Chancellor to disabuse them.

But having positioned themselves as guardians of the liberty of all freeborn Englishmen in December, in January, senior Tories are now hinting darkly that “the integrity of the jury system is under serious question.” Why? Because a Bristol jury reached a verdict they didn’t care for this week, acquitting four activists of criminal damage after they helped tear down and tip a 19th century statue of the 17th century slave trader Edward Colston into Bristol harbour.

In Fleet Street and in Westminster, mild hysteria has followed. Questions have been tabled in the House of Commons. One tabloid demanded “judges must end juror wokeness” by sternly admonishing jurors to ignore “politically correct” defence arguments. Boris Johnson’s Attorney General Suella Braverman is now considering referring the acquittal to the Court of Appeal on point of law, to determine whether the judge gave the jury proper directions.

It is difficult to ignore the fact several Tory MPs seem more animated by the fate of a bronze statue wallowing in Bristol harbour than flesh-and-blood human beings, drowning in the channel. And their ministers are responding to these passions in kind. While Priti Patel’s Nationality and Borders Bill will criminalise individuals helping even bona fides asylum seekers to enter the United Kingdom, the UK government’s Police, Crime and Sentencing Bill will hike the maximum penalty in for damaging memorials in England and Wales from three months to ten years’ imprisonment. It is a powerful articulation of the UK government’s humanitarian priorities.

In a sense, however, there’s nothing new in Colston Four verdict. July nullification is a familiar phenomenon in common law systems, and reliably provokes a backlash. Remember Clive Ponting. It also put me in mind of the Trident Ploughshares case.

In 1999, three women – Angie Zelter, Ellen Moxley and Ulla Røder – gained access to Maytime, the Ministry of Defence’s floating laboratory complex on Loch Goil. The barge is a vital part of the Trident missile infrastructure. While inside, the three women lobbed computers and documents into the loch, took a hammer to electrical equipment, and superglued a submarine winch. The criminal damage was valued at £80,000. Zelter, Moxley and Røder were remanded into custody and indicted for theft and malicious mischief.

When the case came to trial before Sheriff Margaret Gimblett in Greenock, the three offered a rather stark defence. They argued that they had acted out of necessity, leading evidence that deploying nuclear weapons is unlawful under international law – and accordingly their actions on the vessel were justified to deliver the world from the threat the UK’s arsenal of weapons of mass destruction represented.

Remarkably, the Sheriff agreed with this interpretation of the law, directing the jury that “the three took the view that Trident was illegal and, given the horrendous nature of nuclear weapons, that they had an obligation in terms of international law to do whatever they could to stop the deployment and use of nuclear weapons in situations construed as a threat. I have heard nothing which would make it seem to me that the accused acted with criminal intent.”

Following these directions, the Greenock jury acquitted all three of criminal damage, notwithstanding the fact the three activists had admitted sending the Ministry of Defence equipment to the briny deep. As Braverman is now contemplating, in 2000 Tony Blair’s first Lord Advocate referred the acquittal to the Appeal Court arguing the sheriff had got the law wrong. Unstunningly, the judges of the High Court were less sympathetic to their anti-nuclear case than the sheriff, and ruled Zelter, Moxley and Røder had no real legal defence for their actions. Notwithstanding this, their acquittals stood, though any copycat activists couldn’t expect to benefit from their precedent.

A modest proposal. Juries are human institutions, and like other human institutions, are fallible. Jurors have the benefit of sitting through all of the evidence in the case – something armchair critics of their verdicts rarely share. We tend to reflexively criticise or defend jury outcomes which happen to coincide with our prejudices. As the knots the Tory party has tied itself in over the events in Bristol demonstrate, today’s defenders of the jury system are often tomorrow’s critics, when another jury throws out a verdict you happen to disapprove of. But we shouldn’t allergic to the idea that juries – like other institutions of our politics – can and do go wrong.

I attribute some of this attitude to the day job. At the university, I run a course called Miscarriages of Justice. We look at examples of the criminal justice going astray across the world. Thanks to Netflix, stories of American injustice are often much more familiar to my students than our own examples of innocent people being convicted for crimes they did not commit. In almost all of these cases, a jury is responsible for making the wrong call which results in innocent people spending decades of their lives behind bars.

In many cases, you can well-understand what led jurors astray. They aren’t alone in generating the unjust outcome. Eyewitnesses seemed honest – but were honestly mistaken about the identity of their attacker and picked out the wrong guy. Police questioning of the prime suspect generated a confession which seems to show a particular insight into how a terrible crime was committed – but it only transpires after the trial much of this specialist knowledge leaked out of their police interrogators, or was rooted in local knowledge, or details about the crime which leeched out into the media.

In other cases, critical evidence was illegally suppressed by police officers, resulting in awkward lines of inquiry casting doubt on the prosecution’s case never being pursued by the defence during the trial, leaving the jury in the dark. The tunnel vision of investigators who were convinced they’d got the right guy resulted in them ignoring other plausible perpetrators, and critical evidence implicating the true perpetrator wasn’t collected and led. Sloppy scientific practices and cross-contamination of DNA evidence can produce what looks like powerfully incriminating evidence against an accused person unless the mistakes in the lab are identified. But there are other cases where the decision to convict the accused on the basis of the thin evidence available beggars belief. The unsuccessful prosecution of OJ Simpson for the murder of his ex-wife is a powerful example in point.

It strikes me we might all benefit from taking a healthier, more critical view of the virtues and vices juries can succumb to – and not just when these juries happen to sit in America. For a politician to suggest a particular case seems wrongfully decided to them isn’t the end of the rule of law, despite what more easily triggered lawyers are inclined to suggest. Respecting the finality of verdict in legal terms doesn’t mean jury decisions should be treated as beyond reproach and beyond question. If that were so, many of Britain’s worst wrongful conviction cases would never have seen the light of day.

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