Do the Underlying Principles of Common Law Require that Juries Be Told of Jury Nullification?

Christopher Bong, ARCH Education, China (Hong Kong)

Third Place for the 2020 Law Prize ​| 8 min read 

As a matter of jurisprudence, the legitimacy of jury nullification is subject to extensive controversy. Jury nullification, or perverse verdict in the United Kingdom, occurs when a criminal trial jury acquits the defendant despite believing that his guilt has been established beyond reasonable doubt. This unofficial mechanism in criminal procedure offers a crucial channel for the public to protest against laws that they either find unjust or carry disproportionately harsh sentences. However, critics maintain that it threatens legal certainty to allow laymen to arbitrarily diverge from the letter of the law and to permit jurors to exercise powers beyond that prescribed by law. This essay argues that jury nullification is not only consistent with fundamental common law principles, but crucial to their survival, that it must be required that all jurors be informed of this power. This proposition shall be justified on two grounds:

  1. Jury nullification not only does no harm to the legal notion of precedent, but it also secures systematic standardisation of judicial proceedings which enhances common law certainty.

  2. The ultimate aim of the common law is to administer justice consistent with modern societal values and to ensure that justice is fairly served. This is best achieved with direct citizen involvement in the judicial system.

Originating from Anglo-Saxon England, the common law can be described as a body of unwritten laws built on past cases.[1] It is unwritten in the sense that unlike civil law, where a comprehensive set of codified legislation is present, the common law lacks a centralised documentation of such rules. Rather, the common law relies on precedents, an agglomeration of previous legal rulings. This distinguishes the common law from other bodies of law, because in the case of the former, the law is primarily developed by the judiciary as opposed to the legislature. Apart from precedents, the common law is also recognised for its flexibility to adapt to changes in social needs.[2] Despite the importance of precedents, common law courts can, when extremely compelling reasoning is submitted, revise and reinterpret the law without the involvement of the legislature.[3] This view is supported by Lord Justices in the UK Supreme Court, writing in the judgment of Willers v Joyce [2016, UKSC 44] that “while the Law Lords would regard their earlier decisions as ‘normally binding’, they would depart from them “when it appears right to do so”.[4] This allows the law to constantly progress gradually orderly alongside evolving political and social values, preventing change from causing immediate and disrupting effects on existing law.[5] These fundamental principles of common law will form the cornerstone on which this essay’s arguments are based.

Stare decisis, or precedent, is a fundamental pillar of common law. Principles and decisions established in previous cases are referenced and applied when adjudicating a future case of a similar nature. This model ensures legal consistency and clarity, or quoting Lord Mansfield, makes “every aspect of the law, its formation, interpretation, and performance, subject to a general duty of good faith and fair dealing”.[6] This certainty allows one to predict to a reasonable degree where the law might stand on a particular issue. However, critics contend that allowing jurors to arbitrarily exercise conscientious acquittals causes inconsistencies, disrupts the system of precedents, and jeopardises legal certainty.[7] This criticism, however, is unfounded, and can be refuted from a legal and a layman approach.

Legally, this argument fails to distinguish between a verdict and a judgment. A verdict is a declaration given without reason by the jury on whether or not they believe a defendant is guilty of the offence he is charged with; a judgment is a set of legal reasoning outlined by the judge on the rationale of his ruling. Emphasising reasoning rather than outcome, a judgment is far more impactful than a verdict on the overall growth of the common law: whereas the former explains legal principles, the latter gives only a short definite answer. In a system that is so rooted in explanation and analysis, it is unlikely that an acquittal rendered without reason would significantly interfere with the integrity of legal precedent. This shows that telling juries of perverse verdict is, at the very least, consistent with the elementary principle of certainty. Therefore, it is unsubstantiated for critics to object the requirement for juries to be told of their nullification based on this point.

To a layman, the idea of certainty is viewed differently. Jury nullification, although contentious, is not explicitly outlawed. It is, however, a power that the judiciary and legal practitioners appear to hide from the jury, hoping that it would not be exercised. This is precisely the problem that threatens certainty. While some may be ignorant, certain knowledgeable jurors may still know of and use this power of acquittal. In fact, courts have no way of knowing whether this power has been invoked since juries do not justify their verdicts.[8] When court procedures are not uniform, when certain powers are only known to some but not to all, an element of randomness is introduced into the jury, where the composition of the jury may affect the verdict just as much as the facts of the case. This compromises legal consistency alongside its legitimacy. The common law guarantees that defendants be tried before a competent tribunal, yet this can hardly describe a jury that is unclear of its own powers and limitations. Logically, therefore, jury nullification must be made clear to all jurors to mitigate entropy in judicial proceedings. Otherwise, the public may doubt the legitimacy of the court, subsequently weakening the force of stare decisis. Since common law survives and thrives on precedents, precedents that are subject to entropy will provide an unstable basis on which future judges can cement their own reasonings on, and thereby cripple the credibility of the common law system. If jury nullification cannot be completely eradicated from court, as indeed it cannot, then requiring that all jurors be told of this practice is the only realistic method to standardise court procedures and guarantee certainty.

Legal certainty is a hallmark of common law, and the system of precedent is a means to achieve it; however, it should be considered whether strict legal certainty, or upholding justice, is its ultimate aim. Lord Mance discussed this dilemma between certainty and justice in depth in his speech Should the Law Be Certain given in Oxford in 2011. He offered a balanced argument. Initially, he mentioned the importance of precedent and legal certainty and cited numerous authorities to support this point.[9] Certainty eliminates confusion and makes it easier for citizens to understand and thereby follow the law. But, he also recognised the presence of limits to absolute legal certainty. He cited Lord Goff, who described the common law as “a living system of law”, “reacting to new events and new ideas”, and being a system of “practical justice relevant to the times in which they [citizens] live”;[10] he referenced Lord Mansfield: “The most desirable object in all judicial determinations… is to do justice”.[11] It is evident that Lord Mance saw more in the common law than just an adherence to precedent; rather, he believed that it portrays societal values, and is an instrument for the pursuit of justice.

If Lord Mance’s view precisely describes the common law as a reflection of social values, then this further justifies why everyone must be informed of jury nullification. To demonstrate this, we turn to the situation of stealing in Medieval England. At a time when crime was rampant, criminal punishment was harsh. A crime’s severity was determined by whether a thief stole over or under a set threshold, with the former punishable by death.[12] While the death penalty was a fearsome deterrent, the public soon felt that it was disproportionate to the crime of stealing. Historical evidence suggested that juries began acquitting defendants for this reason, hence jury nullification became a mechanism for jurors to reflect inconsistencies between the law and societal principles.[13] Lord Denning once described juries as a “cross section of society”, making them the best candidates to introduce modern societal values and sentiments into the courtroom.[14] Critics can argue that this disrupts stare decisis; however, one can equally dismiss this argument by contending that the common law characteristic of compiling new case laws supports the gradual acclimation of the law to a new status quo. If one were to take the perspective of Lord Mance, that the law reflects society, then the right of a juror to give a perverse verdict must be made known to all, even if this may be perceived to interfere with precedent. Otherwise, this becomes self-defeating, as on the one hand the law values keeping up with societal attributes, yet on the other jurors are being denied the knowledge of knowing that they can voice objections towards outdated jurisprudence.

Another fundamental function of the common law, according to Lord Mance, is to pursue justice. By its very nature, justice demands a moral consideration of right and wrong, and this extends beyond the letter of the law. Described by Lord Brown as a “bulwark against injustice”, juries are designed to protect unpopular interests, or the interests of the unpopular, against persecution.[15] If this ideal role of the jury is to be realised, then jurors must be invested with the power of nullification to intervene in the face of tyranny. So was the case in the trial of John Lilburne, an outspoken critic of the then tyrannical British Government.[16] In 1649, he was tried twice for high treason for denouncing the legitimacy of the Commonwealth and criticising Parliament. Facing capital punishment, the jury, sympathising with his commitment to the common good and his bravery in challenging authority, nullified his charge and spared him from death.[17] Subsequently, the Court of Common Pleas acknowledged that the right to jury trial entailed a right to acquit, irrespective of the judge’s view on whether or not the defendant was guilty.[18] This ruling had implicitly affirmed not just the legitimacy of jury nullification, but its importance in allowing the law to serve faithfully as an instrument for the pursuit of justice. Critics may be inclined to cite the dangers of entrusting the common law to a layman’s moral discretions; however, by its very nature, determining fairness requires one to apply his own moral judgement to the situation, adding on his understanding of societal norms, to decide on whether or not something is fair. Failing to disclose the existence of jury nullification to jurors is a denial of their right to translate their moral values into action in an attempt to eliminate injustice in society. In other words, since jury nullification is an effective means to pursuing justice, which is in itself an objective of the common law, then it would be inconsistent to champion the common law and not jury nullification.

The debate on jury nullification wrestles with the very principles integral to common law. It calls into question how the possible unpredictability of a layman’s input into the judicial process may disrupt the order of precedent and threaten legal certainty. It also pushes one to consider whether stare decisis, or the attainment of justice in accordance with the societal values of the time is the ultimate purpose of the common law. This essay has proven that jury nullification does not threaten the legal notion of precedent, and more importantly, denying jurors the power of conscientious acquittal will undermine the legitimacy of the common law’s goal to dispense justice fairly. Based on the arguments aforementioned, it is clear that common law principles require that juries be told of jury nullification.

Footnotes

1 Segal, T., ‘Common Law’, Investopedia, 29 March 2020, https://www.investopedia.com/terms/c/common-law.asp, (accessed 10 July 2020)

2  Wikipedia Contributors, ‘Common Law’, Wikipedia, https://en.wikipedia.org/wiki/Common_law, (accessed 10 July 2020)

3  Wikipedia Contributors, ‘Common Law’, Wikipedia, https://en.wikipedia.org/wiki/Common_law, (accessed 10 July 2020)

4 Willers v Joyce and another (in substitution for and in their capacity as executors of Albert Gubay (deceased)) [2016] UKSC 44, https://www.bailii.org/uk/cases/UKSC/2016/44.html, (accessed 10 July 2020)

5  Wikipedia Contributors, ‘Common Law’, Wikipedia, https://en.wikipedia.org/wiki/Common_law, (accessed 10 July 2020)

6 Mance, J., Deputy President of the Supreme Court of the United Kingdom, ‘Should the Law Be Certain’ (The Oxford Shrieval lecture given in the University Church of St. Mary The Virgin, Oxford University, 11 October 2011), https://www.supremecourt.uk/docs/speech_111011.pdf, (accessed 10 July 2020)

7 Brooks, T., ‘The Right to Trial by Jury’, Journal of Applied Philosophy, volume 21, number 2, 2004, p. 197-212, https://www.jstor.org/stable/24355195?seq=1, (accessed 10 July 2020)

8 Smith, D., ‘The Historical and Constitutional Contexts of Jury Reform’, Hofstra Law Review, volume 25, issue 2, Winter 1996, p. 380-505, https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1958&context=hlr, (accessed 10 July 2020)

9 Mance, J., Deputy President of the Supreme Court of the United Kingdom, ‘Should the Law Be Certain’ (The Oxford Shrieval lecture given in the University Church of St. Mary The Virgin, Oxford University, 11 October 2011), https://www.supremecourt.uk/docs/speech_111011.pdf, (accessed 10 July 2020)

10 Mance, J., Deputy President of the Supreme Court of the United Kingdom, ‘Should the Law Be Certain’ (The Oxford Shrieval lecture given in the University Church of St. Mary The Virgin, Oxford University, 11 October 2011), https://www.supremecourt.uk/docs/speech_111011.pdf, (accessed 10 July 2020); citing Kleinwort Benson Ltd v Lincoln CC [1992] 2 AC 349, 377-379

11 Mance, J., Deputy President of the Supreme Court of the United Kingdom, ‘Should the Law Be Certain’ (The Oxford Shrieval lecture given in the University Church of St. Mary The Virgin, Oxford University, 11 October 2011), https://www.supremecourt.uk/docs/speech_111011.pdf, (accessed 10 July 2020); citing Alderson v Temple (1768) 4 Burr 2235, 2239

12 Smith, D., ‘The Historical and Constitutional Contexts of Jury Reform’, Hofstra Law Review, volume 25, issue 2, Winter 1996, p. 380-505, https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1958&context=hlr, (accessed 10 July 2020)

13 Smith, D., ‘The Historical and Constitutional Contexts of Jury Reform’, Hofstra Law Review, volume 25, issue 2, Winter 1996, p. 380-505, https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1958&context=hlr, (accessed 10 July 2020)

14 Brooks, T., ‘The Right to Trial by Jury’, Journal of Applied Philosophy, volume 21, number 2, 2004, p. 197-212, https://www.jstor.org/stable/24355195?seq=1, (accessed 10 July 2020)

15 Mance, J., Deputy President of the Supreme Court of the United Kingdom, ‘Should the Law Be Certain’ (The Oxford Shrieval lecture given in the University Church of St. Mary The Virgin, Oxford University, 11 October 2011), https://www.supremecourt.uk/docs/speech_111011.pdf, (accessed 10 July 2020); see paragraph 16

16  Robertson G., Queens Counsel, ‘Magna Carta and Jury Trial’, British Library, https://www.bl.uk/magna-carta/articles/magna-carta-and-jury- trial, (accessed 10 July 2020)

17  Robertson G., Queens Counsel, ‘Magna Carta and Jury Trial’, British Library, https://www.bl.uk/magna-carta/articles/magna-carta-and-jury- trial, (accessed 10 July 2020); Smith, D., ‘The Historical and Constitutional Contexts of Jury Reform’, Hofstra Law Review, volume 25, issue 2, Winter 1996, p. 380-505, https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1958&context=hlr, (accessed 10 July 2020)

18  Robertson G., Queens Counsel, ‘Magna Carta and Jury Trial’, British Library, https://www.bl.uk/magna-carta/articles/magna-carta-and-jury- trial, (accessed 10 July 2020)

Bibliography

Brooks, T., ‘The Right to Trial by Jury’, Journal of Applied Philosophy, volume 21, number 2, 2004, p. 197-212, https://www.jstor.org/stable/24355195?seq=1, (accessed 10 July 2020)

Mance, J., Deputy President of the Supreme Court of the United Kingdom, ‘Should the Law Be Certain’ (The Oxford Shrieval lecture given in the University Church of St. Mary The Virgin, Oxford University, 11 October 2011), https://www.supremecourt.uk/docs/speech_111011.pdf, (accessed 10 July 2020)

Robertson G., Queens Counsel, ‘Magna Carta and Jury Trial’, British Library, https://www.bl.uk/magna-carta/articles/magna-carta-and-jury-trial, (accessed 10 July 2020)

Segal, T., ‘Common Law’, Investopedia, 29 March 2020, https://www.investopedia.com/terms/c/common-law.asp, (accessed 10 July 2020)

Smith, D., ‘The Historical and Constitutional Contexts of Jury Reform’, Hofstra Law Review, volume 25, issue 2, Winter 1996, p. 380-505, https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1958&context=hlr, (accessed 10 July 2020)

Wikipedia Contributors, ‘Common Law’, Wikipedia, https://en.wikipedia.org/wiki/Common_law, (accessed 10 July 2020)

Willers v Joyce and another (in substitution for and in their capacity as executors of Albert Gubay (deceased)) [2016] UKSC 44,

https://www.bailii.org/uk/cases/UKSC/2016/44.html, (accessed 10 July 2020)

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