Jury Nullification: The Short History of a Little Understood Power
Richard Marshall is a PhD student in History at the University of Plymouth. His doctoral research explores the place of trial by jury in the politics, culture and society of late eighteenth-century English radicalism. He is supervised by Dr James Gregory and Dr Claire Fitzpatrick.
Keywords: Juries, Nullification, Legal History, Popular Justice, Repression, Liberties, Rights
Jury nullification (or Jury Equity) is perhaps the greatest safeguard against unjust laws or excessive punishment to exist in Britain. It is the practice whereby a jury delivers a verdict contrary to the evidence, law and judicial directions by acquitting a defendant they believe beyond a reasonable doubt guilty by the letter of the law, but on grounds of conscience think should not be punished.
This little understood power has existed since a 1670 ruling declaring that no juror could be punished for a ‘wrong’ verdict, which when coupled with the double jeopardy rule leaves the door ajar for juries to essentially override laws.
For centuries it was considered a critical element of the constitution, a check against tyrannical government and unfair laws but above all a mechanism that permitted the people to directly influence, comment upon and force reform of laws they deemed morally suspect. What’s more, it was widely understood and discussed as a normal part of the legal process. The idea a jury of ‘freeborn Englishmen’ could not deviate from a judge’s charge or the legal letter was an almost universally rejected one. Indeed, it was not uncommon for jurors to be encouraged to ignore or reject judicial guidance and actively consider not just the evidence but the interests of their community, religion, nation, and constitution. When an English juror entered the jury box in the eighteenth century, he was expected to act for his country and discretion was the norm. Granted not everyone accepted the idea but none denied the existence of nullification nor the rights and powers of jurors as the ultimate arbiters of justice. Most today though will never have heard of this power. For too many in the modern legal fraternity nullification is a dirty word, with a myriad of objections raised against it. Most notably, they argue it is ineffective at procuring meaningful change and encourages prejudice among jurors.
I was brought to think about the history of this murky power by the recently introduced Police, Crime, Sentencing and Courts Bill, the politically interested attempt to attack freedoms of protest, speech and the rights of the traveller community all at once. Regarding protest, it seeks to lower the legal test required for police to act against otherwise legitimate protest, with its most egregious element being the new offence of ‘public nuisance’. This will carry a maximum ten-year prison term and is defined as causing ‘serious harm’ to the public through ‘serious annoyance, serious inconvenience or serious loss of amenity’. Meanwhile the Bill also proposes to criminalise trespass, an effort to attack the freedoms of the traveller community opposed by the majority of policing bodies including both the National Police Chiefs Council and the Association of Police and Crime Commissioners.
The backlash has been immense. Politicians, lawyers, civil rights organisations, charities and many others have spoken out against the Bill, as have many thousands in mass demonstrations across the nation. It would not be unfair to suggest that a significant minority, perhaps more, oppose the provisions of this Bill as infringements on liberty. This was the very sort of legislation radicals of the past would have hoped and indeed encouraged jurors to nullify.
But does this mean we should today? For me, the answer is an unquestionable yes. Nullification exists for just these circumstances, to frustrate legislation passed or enforced spuriously or for political reasons. And the past provides plentiful justifications and precedents for its use.
In the first instance, our national history is littered with cases where juries, in spite of evidence and judicial direction, acquitted defendants to the benefit of society. Arguably the most well-known is that of Clive Ponting, the British civil servant who leaked documents relating to the sinking of the General Belgrano during the Falklands Conflict. His trial for allegedly breaching the Official Secrets Act was a cause célèbre and his unexpected acquittal, contrary to the judge’s direction, caused enough consternation for the Conservative government to remove the ‘Public Interest Defence’ Ponting relied on from Official Secrets legislation in 1989.
But the Ponting case is an outlier. For one, the acquittal had a basis in law thanks to the Public Interest Defence. A true act of nullification occurs where the law does not provide an adequate escape route and its provisions are thus arbitrary. The new Policing Bill promises to be such a law. To justify employing nullification against such an Act, there are a myriad of examples where jurors have acquitted in the face of such legislation. Take for instance the case which established the practice, the trial of two Quakers William Penn and William Meed in 1670.
The pair were charged under the Conventicle Act which restricted non-Anglicans to meetings of no more than five people. Meed and Penn were arrested preaching to several hundred.
Despite overwhelming evidence and threats from the judge, the jury refused to convict, believing the law to be morally wrong. The subsequent legal ruling that no juror could be punished merely for their decision still reverberates today and is even commemorated at the Old Bailey. This commemoration strikes me as almost a burlesque given the staunch opposition of the courts and Crown to jurors being permitted to understand the ramifications.
Hawles, J., The Englishman’s Right: A Dialogue between a Barrister at Law and a Juryman &c. (London, 1680).
Darbyshire, P., ‘The Lamp that Shows that Freedom Lives—Is It Worth the Candle?’ Criminal Law Review (1991), pp. 740–752.
Handler, P., ‘Forgery and the End of the “Bloody Code” in Early Nineteenth-Century England’, Historical Journal, 48/3 (2005), pp. 683–702.
Harling, P., ‘The Law of Libel and the Limits of Repression, 1790–1832’, Historical Journal, 44/1 (2001), pp. 107–134.
McGowen, R., ‘From Pillory to Gallows: The Punishment of Forgery in the Age of the Financial Revolution’, Past and Present, 165 (1999), pp. 107–140.
Wharam, A., The Treason Trials, 1794 (Leicester, 1992).
 Guides for jurors often encouraged them to remain independent of the judge and emphasised that they represented their fellow citizens in court. A powerful and frequently reprinted example was J. Hawles, The Englishman’s Right: A Dialogue between a Barrister at Law and a Juryman &c. (London, 1680).
 See P. Darbyshire, ‘The Lamp that Shows that Freedom Lives—Is It Worth the Candle?’ Criminal Law Review (1991), pp. 740–752.