On December 14th, 2021, the UK’s Justice Minister, Dominic Raab, wrote an article for the Times, in which he announced plans to reform the Human Rights Act, which incorporates the European Convention on Human Rights into domestic law. It would be replaced, he said, with a British “Bill of Rights.” Consequently, some rights would be reduced. The Bill, he said, will make it easier to deport criminals. “Spurious and unmeritorious” claims will be “sifted out.”
But the Bill will also, he promised, strengthen “quintessentially British rights.” Just two of these were identified. The first was the right to freedom of speech, which Raab described as “the liberty that guards all the others.”
American observers of Britain’s claimant-friendly and high-cost libel laws, severe official secrets regime, and lack of any constitutional equivalent of the First Amendment might find the assertion that freedom of speech is a “quintessentially British right” distinctly arguable. The only constitutional protections for freedom of speech in UK law are the limited and qualified rights deriving, through the 1998 Human Rights Act, from Articles 10 and 11 of the European Convention on Human Rights.
These, Raab explained, are not enough because “the hyper-sensitivity of some in our society to opposing views, has incrementally and surreptitiously whittled away the scope for the rambunctious debate which is essential to our democracy.” It is hard to know what he means by this. His own department is currently shepherding a Bill through Parliament which will greatly increase the powers of senior police officers to control or even prevent political demonstrations if, for example, they are expected to make too much noise. One wonders quite how deep the Minister’s own commitment to rambunctious debate runs when he is one of the chief incremental whittlers.
The second “quintessentially British right” singled out for protection in Raab’s proposed Bill is trial by jury. This is, he wrote, “another ancient right, applied variably around the UK, that doesn’t feature in the ECHR, but will be in our bill of rights.”
Whether or not the right to trial by jury is “ancient” is also debatable; in its modern English form, with jurors randomly selected without regard to sex or property qualifications, it dates from 1972. In any case, it is a right that can be exercised only by a few defendants. Anyone charged with a relatively trivial offence—that is, the vast majority—has to be tried without a jury in the Magistrates courts whether they like it or not. Those facing the most serious charges have no choice in the matter either: they are always tried by a jury. It is only when facing some medium level offences—such as theft, burglary or, as in the Colston case, some allegations of criminal damage—that a defendant has a right to choose to be tried by a jury.
But even if it were an ancient right, that is one of the worst possible arguments in its favour. Should members of the clergy be able to escape serious punishment by demanding the restoration of their ancient right to be tried in Ecclesiastical Courts? Should Peers of the Realm facing criminal charges be entitled to trial by the House of Lords, as they were until 1948?
Both the right to freedom of expression and the institution of trial by jury came under intense scrutiny just three weeks after Raab’s article, when a Bristol jury acquitted four young people of criminal damage, even though they had all admitted tearing down a city centre statue.
In the summer of 2020, protests and riots erupted across America, sparked by the murder of George Floyd. Buildings were set on fire and people were shot dead. On the face of it, the issue that provoked this unrest had little to do with Britain. The British police could not be blamed for Floyd’s death. But we, too, have a bleak history of slave trading; and so, the UK also experienced demonstrations, although on nothing like the same scale.
One of these took place in Bristol, a city that grew wealthy in the 17th and 18th centuries on profits from the African slave trade. A Bristolian who grew particularly wealthy was Edward Colston, a merchant who gave much of his money to good causes. Churches, alms-houses, and hospitals all over England, but especially in Bristol, benefited from his generosity. His name has lived on in many Bristol street names, buildings, and institutions, including Colston’s School—still one of the city’s finest—and the (recently renamed) Colston’s Hall. It was impossible for anyone to grow up or live in Bristol without encountering his name. There is even a sweet, spiced Colston’s Bun, that used to be distributed to Bristol children annually on “Colston’s Day.” Originally, the sugar and spices in the buns would have been grown on Caribbean plantations tended by slaves bought in Africa on Colston’s behalf.
Nevertheless, for most of the last 300 years, the fact that he made much of his money from slaves was forgotten or ignored. In 1895, the city decided to honour Colston with a statue. Probably accidentally, the site chosen was just a few yards from an earlier statue of Edmund Burke, one of the spiritual fathers of modern conservatism, a Bristol MP and a vocal opponent of the slave trade. There both men stood for 125 years, looking out towards the harbour, until the summer of 2020, when demonstrators arrived with ropes, threw one around Sir Edward’s neck and with surprising ease toppled him from his plinth.
Amid much cheering he was daubed with red paint and rolled down the street into Bristol harbour. The police—heavily outnumbered and anxious to avoid more serious rioting—took a decision not to intervene. By American, and even by Bristolian standards, it was quite a gentlemanly, if somewhat rambunctious, protest. Nobody was hurt. Even so, the Home Secretary Priti Patel called it “utterly disgraceful.” She met with the Chief Constable of Avon and Somerset Police, clearly displeased with the police response, and told him that those responsible should face justice. Prime Minister Boris Johnson said that they should “face the full force of the law.” And so they did, but it turned out that the law was on the side of the protestors.
There was little difficulty identifying those responsible, because the whole incident had been filmed and shared on social media. Four of those most centrally involved were arrested and prosecuted for criminal damage. They exercised their right to elect trial by jury, and after a four-week trial, a Bristol jury found them all not guilty. Since juries are not required—or even allowed—to give reasons for their verdicts, we do not know exactly how they reached their decision. However, the judge’s legal directions have been published and they include a number of possible defences to help the jury decide.
Two of the defendants had argued that the statue had been given to the “people of Bristol,” and that they believed the people of Bristol would have consented to its destruction. In law, it makes no difference that the people of Bristol, as represented by Bristol City Council, had not so consented. The Criminal Damage Act provides such a defence, even if a defendant’s belief is unjustified or unreasonable; all that matters is that the belief is genuinely held.
The second line of defence, which all four relied upon, turned on a well-established principle of English law which permits the use of “reasonable force” to prevent a crime. It is more commonly encountered in the context of assaults, where it can, for example, be permissible to strike pre-emptive blows in order to defend yourself or someone else from an anticipated attack. But the principle is not restricted to crimes of violence; it can justify the use of reasonable force to prevent any crime.
The question is partly subjective. Juries must decide whether the force employed in the prevention of the crime was reasonable “by reference to the circumstances as the defendant believed them to be.” The defendants said they believed that two separate “hate crimes” were being committed by the display of the statue, namely:
• “Displaying a visual representation which was abusive, within the sight of a person likely to be caused distress by it” (an offence under S.5 of the Public Order Act 1986).
• “Displaying indecent matter in public” (an offence under the Indecent Displays (Control) Act 1981).
The defendants argued that they therefore had a legal right to use reasonable force to tear the statue down.
While the principle that one can use reasonable force to prevent a crime is well-established, the application of it to a situation in which there is no emergency, no threat to people or property, and where there is no good reason for not pursuing a complaint through more conventional means was unusual to say the least. And however unpleasant Colston may have been, to invoke laws designed to restrict pornographic advertisements or abusive signs as justification for tearing down his statue was pretty startling.
Even if they rejected all the other defence arguments, the judge then told the jury that they should still find the defendants not guilty if, in their opinion, a conviction would be a “disproportionate” interference with their rights under the European Convention on Human Rights: “The right to freedom of thought and conscience, and to manifest one’s beliefs; and the right to freedom of expression, including to hold opinions and impart ideas.”
It is not clear how jurors were supposed to decide if a conviction would be “disproportionate”—they had no way of knowing what the likely sentences would be, and when, by law, they were forbidden from taking it into account even if they did know. Nevertheless, the happy result for the defendants was that they were able to rely simultaneously on the existence of indecency laws designed to restrict freedom of expression, and on laws protecting their own freedom of expression as manifested by their tearing down of the statue as part of a political demonstration.
The verdicts provoked a good deal of angry commentary from those who believe that they gave encouragement to anyone else tempted to destroy statues as part of a political protest. Sure enough, within a few days a man was arrested for damaging the statue of Prospero and Ariel outside Broadcasting House, the headquarters of the BBC. The presence of the statue has often been criticised since it emerged years later that its maker, Eric Gill, had sexually abused children and his family’s dog.
There are innumerable other statues and memorials all over the country, either depicting or commemorating or made by men—usually men, although presumably the many statues of the arch-Imperialist Queen Victoria could also find themselves under attack—now considered evil, disreputable, or merely controversial. Of course, the Colston verdicts do not mean that those other statues are fair game in law, but it may mean that those thinking of tearing them down are rather less deterred than they would otherwise have been.
The judge in the Colston case may have got at least some of the law wrong. At the very least, there are good reasons for some of his decisions to be reviewed by a higher court. In the immediate aftermath of the trial, the chambers website of Liam Walker, the barrister representing one of the defendants, published a blog outlining the legal arguments which ultimately led to the acquittals. These were originally described as “new and complex.”
Although the prosecution have no way of appealing against a jury’s verdict, the Attorney General—the barrister and politician responsible for the Crown Prosecution Service—quickly announced that she was considering invoking the little-used, though entirely legitimate, “Attorney-General's reference” procedure to invite the Court of Appeal to review the trial judge’s legal directions:
Some criticised her for trying to “undermine the jury,” although clarification of “new and complex” points of law, without interfering with a jury’s verdicts, is the very reason for the existence of the reference procedure. Interestingly, the blog has now been edited to remove the claim that his legal arguments were either new or complex. Perhaps on reflection he now considers them old and straightforward.
But focussing on the arguments over the detail of the law in the Colston case may be missing the more important point, which is that the jury would probably never have convicted, no matter what the law said. Opinion in Bristol was strongly, and fairly evenly, divided over the presence of the statue. What should happen to it had been debated inconclusively in Bristol for over 10 years. The Council could never agree whether it should remain in place or be removed. Their preferred option was to leave it in place with a plaque drawing attention to the slave-trading source of Colston’s wealth, but that sensible solution foundered over the precise wording that should appear on the plaque.
Once the statue had been torn down, even the Society of Merchant Venturers, an organisation which had benefited from Colston’s largesse and done more than any other to promote the cult of Colston for nearly 300 years, announced that “The fact that it has gone is right for Bristol.” With even Colston’s staunchest supporter welcoming the removal of the statue, it was always likely that a jury would do so too, irrespective of the legal arguments.
Ever since the 1670 case of Penn and Mead, when a jury refused to convict two Quaker preachers of unlawful assembly, the ability of juries to return whatever verdict they like, irrespective of the law, has been clear. Americans call this “jury nullification.” Thus, a 1985 jury acquitted Clive Ponting—a senior civil servant—of leaking government papers about the sinking of the Argentine battleship General Belgrano, despite legal directions from the judge that gave him no defence.
In 1991, a jury even acquitted two men who confessed to helping Soviet double-agent George Blake escape from prison in 1966: not only did they have no possible defence in law, but Blake was also a truly wicked man responsible for the deaths of innumerable agents after he passed information to the Soviet Union on the scale of Kim Philby. Somehow, the jury were persuaded that it was right to help him escape back to Russia (where he was made a Colonel in the KGB and lived a long and happy life, honoured with the Order of Lenin and another medal from Vladimir Putin).
More recently, and less notoriously, a string of well-meaning and sometimes very elderly climate change protestors have been acquitted of offences committed during political protests, with jury sympathy over their aims quite possibly proving as important a factor as any legal defences that they may have run.
Should juries have this right to acquit when the law demands a conviction? At the start of any trial, juries in England and Wales swear an oath “to return a true verdict according to the evidence.” How can an acquittal in the face of the evidence possibly be consistent with that oath? It cannot; but arguments are made in favour of juries retaining that right.
It is often said that the jury provides a final defence against prosecution under an unjust law. There may be something in that. Serious criminal trials in Hong Kong were normally tried by juries, but when the Chinese Communist Party imposed its National Security Law, prosecutions under its provisions were to be heard only by hand-picked judges so that the desired verdicts would never be in doubt. Yet, as Hong Kong also shows, juries provide no protection against tyranny if the tyrannical government can simply abolish them when they prove inconvenient.
Unlike China, Britain is a functioning democracy. But in a democracy, why should juries be able to legitimise behaviour that the law considers criminal? Why should a random selection of individuals be able to ignore a law that has been properly passed by Parliament? There are two possible answers, neither of which is entirely satisfactory.
The first is that the occasional eccentric, or plain wrong, verdict is a small price to pay for the other benefits that a jury trial brings. No criminal justice system is perfect, and it is generally accepted that at least some wrongful acquittals are inevitable. The second is that it is difficult to see how one could have a jury system without it. If judges could simply direct convictions the jury would wither into irrelevance. Both answers depend on the premise that trial by jury is the only correct way to decide serious criminal cases.
Yet the jury system is far from perfect. We may shrug our shoulders, or even cheer, when wrongful acquittals occur; such a reaction does not seem appropriate for wrongful convictions which result in innocent people being imprisoned for decades.
For almost every other legal decision, reasons must be given, and if the reasons are inadequate they can be challenged on appeal. Yet juries, who make the most important decisions of all, give no reasons. Their reasoning—if there has been any—cannot be questioned, still less appealed. Even when mistakes have been made in trials, the Court of Appeal routinely defers to the jury, declaring, without any way of knowing, that the mistake can have made no difference to the verdict.
The object of jury selection in England and Wales is to produce a random selection. Yet a random sample is not the same as a representative sample. It is possible, for example, to have an all-male or an all-female, an all-black or an all-white jury. It is possible to have a jury biased towards statue destroyers or climate protestors or biased against them. Virtually no effort is made to avoid such outcomes. In contrast to the American practice, jury selection rarely lasts more than a few minutes, questions to potential jurors are usually few and perfunctory. The American profession of “jury consultant” is unheard of.
Jurors are meant to try cases solely on the evidence presented in court, yet in some high-profile cases, restrictions on pre-trial comment are so widely ignored and so impossible to police that they are likely to be selected with opinions and well-entrenched prejudices that evidence cannot shift. How much, if at all, did the vocal support of celebrities like Banksy assist the Colston defendants? How much, if at all, did the almost universally hostile pre-trial press coverage of Ghislaine Maxwell assist in her prosecution?
It is very difficult to assess how serious these problems are. The only recent study into the decision-making of jurors in English courts was broadly reassuring, but there is still much that we do not know.
What we certainly do know is that juries make mistakes. Jurors can believe liars, or disbelieve truthful witnesses, and can do so for reasons that might be entirely irrational. They can be taken in by plausible charlatans, misunderstand expert evidence, or draw unjustified inferences from expert evidence that they have understood. They can acquit because they approve of a defendant’s politics, and they can convict because they disapprove. All these things are, of course, also true of judges. But judges set out the reasons for their conclusions and juries do not.
There is a tendency among English and Welsh criminal lawyers to defend the jury system at all costs, to refuse to accept any criticism of it, and to refuse to contemplate even minor reforms, such as giving defendants the right to choose trial by judge alone (a right that Canadian and New Zealand defendants enjoy in every serious case).
For all that, the jury system—though under huge pressure—does still work well in most cases. Juries are trusted perhaps more than single judges and verdicts are generally accepted as fair. Although the abolition of juries is often suggested, it is hardly a popular cause. Jury trial may not be as ancient a right as Dominic Raab suggests, but if a system has the confidence of the public, it would be a huge mistake to decide to destroy it without knowing what to put in its place. Every alternative suggestion has problems of its own.
Quite what Raab intends by including the “right to jury trial” in his proposed Bill of Rights is obscure. Even if he wanted to, he cannot prevent future governments from abolishing juries, and nor is there the slightest indication that he will extend their existing role. Like his professed desire to increase protection for freedom of speech, his promise to legislate to protect “the ancient right of trial by jury” seems to be more of an empty slogan than a serious policy proposal.
CORRECTION: An earlier version of this article attributed a legal argument to Liam Walker that was in fact advanced by the other defendants. Apologies for the error.
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