Jury Equity - A verdict of conscience - Levy Solicitors (2024)

The recent case of HM Solicitor General v Trudi Warner has shone a light on a little-known but now increasingly prominent issue of “jury equity”.

The issue is neatly summarised in this part of the judgment:

The trial of a number of defendants affiliated with the environmental groupInsulate Britainwas due to begin at Inner London Crown Court onMonday27 March 2023. Between8amand9am, in the area near the entrance to that court used by judges and jurors, MsWarnercarrieda placard with the handwritten words:
“JURORS YOU HAVE AN ABSOLUTE RIGHT TO ACQUIT A DEFENDANT ACCORDING TO YOUR CONSCIENCE”.

The Claimant alleges in his Claim Form that MsWarner“…deliberately targeted jurors with her sign, including in one case hurrying to catch up with a juror so as to draw attention to the sign and, in another case, walking alongside the juror while showing the sign”.

It is alleged that in doing these acts, MsWarner“…interfered with the rights of the jurors to go to and from court and perform their duties without let or hindrance, and thereby interfered with the administration of justice itself”.

The Claimant says that these acts were done by MsWarnerwith the specific intention of interfering with the administration of justice by seeking to influence the jurors andinparticularto acquit climate change activists, whether or not such acquittal would be in accordance with the trialjudge’slegal directions.

The Solicitor General alleged that Warner was in contempt of court, but thecourt ruled in favour of Warner, protecting her rights to free speech (although strictly speaking the case was won on a different point) and also observing that any potential prejudice to a trial could be cured by a direction to the jury, with a prosecution not being a proportionate response.
So, what does this mean in reality?

The main point is that the court was merely recognising the reality of the jury system, in that it can return whatever verdict it wishes without consequence.

In the words of the court:

“As to jury equity, as I understand hiscasethe Solicitor General appears to accept that juries haveapower (of some nature) to return a verdict according to their conscience.Mr Eardley KC describes it in his skeleton argument as“ade factopowerto acquit a defendant regardless of judicial directions, because they cannot be directed to convict and they cannot be punished for acquitting on conscientious grounds, but they have norightto do so”(his emphasis). There was some debate before me about whether this is a“power”or“right”of a jury. That is not ultimately helpfulbut Inote that at the plaque in theOld Bailey(I return to this at [17] below) it is described as a“right”.It is probably best to describe jury equity as a principle of our law. It is an established feature of our constitutional landscape and has been affirmed, as set out below, in the highest courts.”

However, that is not the same as suggesting that a jury ought to do that, and in fact, the court madeveryclear that jurors should follow the legal directions given.

Significantly, it is clear that we will not see advocates addressing jurors in relation to this issue with the court ruling:

“Counsel agreed that participants in the trial process cannot lawfully invite a jury to apply the principle of jury equity or indeed to inform them of it. That prohibition is how the common law squares the jury equity and the oath that jurors are required to swear. I was referred to the description of how the tension operates in the United States in the judgment of Judge Leventhal of the UnitedStates’Court of Appeals for the DC Circuit inUS vDougherty473 F2d 113. Judge Leventhal describes howinthe UnitedStatesthe existence of an“unreviewable and unreversible power in the jury to acquit in disregard of the instructions on the law given by the trial judge, has for many years co-existed with legal practice and precedent upholding instructions to the jury that they are required to follow the instructions of the court on all matters of law”(at [1132]).Thisis also an accurate description of the position in our jurisdiction.”

We are howeververy likely to see more protests like the one staged by Warner and potentially a great deal of“social media advocacy”in the coming months and years.
Of course, that may work not only in favour of defendants but potentially against them, and we will be closely monitoring this issue on a case-by-case basis to ensure the fair trial of all those we represent.