Jury nullification is one of those things that we’re not really supposed to talk about in English law. It’s always been there, the Americans are more willing to talk about it than we are and our judges get really quite irate about it.
It’s when the jury listens to the evidence, is told the law, then they go “Naah, we’ll not be ‘avin’ with that”.
Which is what seems to have happened here with Extinction Rebellion:
Six Extinction Rebellion protesters have been cleared of causing criminal damage to Shell’s London headquarters despite the judge directing jurors that they had no defence in law.
Two of the group’s co-founders, Simon Bramwell, 49, and Ian Bray, 53, were acquitted on Friday alongside Jane Augsburger, 55, Senan Clifford, 60, David Lambert, 62, and James “Sid” Saunders, 41, after a trial at Southwark crown court.
The six, who represented themselves, were also cleared of individual counts of having an article with intent to destroy or damage property, while a seventh protester, Katerina Hasapopoulos, 43, earlier pleaded guilty to criminal damage.
Now, we can think that XR are, in fact, a groupuscule of ignorant tossers – I do. We can think that they were bang to rights and should be picking oakum right now. Seems fair to me at least. But that’s not in fact the point. So was John Wilkes bang to rights by the law of the time and it’s that which tells us the purpose, or at least one of the purposes, of having a jury. That ability to go “Naah.”
The classic observation on this is that back in the day tealeafs and diddycoys would be hanged for theft to the value of five shillings or more. At that time the jury both decided upon guilt and also the valuation of what had been stolen. It’s truly remarkable the number of people found guilty – bang to rights – of theft but to the value of 4 shillings and 11 pennies. We might even think that more diddys should have been strung up but that wasn’t what the demos of the time thought.
The jury is there, in part, as a defence against our rulers passing laws and making crimes that we, the people, don’t think are in fact crimes. Or even, if they are crimes then they don’t deserve what that bastard judge is about to hand down, or must because of what the law says.
We are, after all, aware that both the law and politics can be captured by special interest groups. Who might leverage that capture into an oppression. Well, actually, given the way political power works, will so leverage.
To give a modern example. Case a week or two back, couple of university rowers, drunk, retire to bed. Apparently, although the distaff side says she doesn’t recall, had sex. In the morning the bloke desires to try again, she’s not so sure about it. Doesn’t actually complain or refuse, just not positive and willing participation perhaps, certainly no statement of it.
So, is this rape? By modern feminist standards of course it is. By the standards of the modern law – that absence of unequivocal consent – it might well be. But we are a democracy, it is the will of the people that matters. So, who decides whether parking a morning glory into a previously willing – apparently – participant deserves 10 years in pokey?
Hmm, well, tough one. Which is exactly why there is so much shouting about how rape trial should not have juries any more. For among the special interest groups it is entirely clear that this most certainly could be rape. Among the general population, rather than those especially trained as legal experts by the special interest groups, possibly not so much agreement.
Should the rower be in jail? Should the XR folks be? There might well be a split determined by political views between those two cases. But the actual people who should decide these edge cases is us – which is why juries. Because we do indeed get to say “We’ll not be ‘avin’ with that” as John Wilkes and others over the centuries have been most glad to hear.