Can a jury acquit a Defendant, even where they are guilty of the offence they are charged with because they find the law in question unconscionable or constitutionally invalid? For an answer to this question, the starting point should be the Bushel case discussed below.
The Bushel case1, centred around the oppressive Conventicle Act 1664, which forbade religious gatherings of more than 5 persons outside of the Church of England. One of the Defendants was William Penn, the subsequent founder of Pennsylvania. The jury found the two “guilty of speaking in Gracechurch Street” but refused to add “to an unlawful assembly”. The enraged judge said to the jury that they would not be dismissed until they reached an acceptable verdict. The jury modified the verdict to “guilty of speaking to an assembly in Gracechurch Street”, resulting in their overnight imprisonment without food, water or heat. During the proceedings, the judge ordered Penn to be bound and gagged. Penn protested, shouting to the jury, “You are Englishmen, mind your Privilege, give not away your Right”, to which juror Edward Bushel replied, “Nor shall we ever do.” Finally, after a two-day fast, the jury returned a not guilty verdict. The judge fined the jury for contempt and removed them to prison until the fine was paid. Edward Bushel refused to pay the fine and issued a successful Writ of Habeas Corpus.
What do the current legal and judicial establishment think of juries acquitting in these circumstances? In the US it is not currently disputed that juries may acquit in such circumstances (it is referred to there as ‘jury nullification’) but recent decisions have curtailed the practice. For instance, Defence Attorneys have been prohibited from referring to jury nullification and jurors may be removed if they are likely to nullify a charge.2
What about legal opinion in the United Kingdom? In a series of published lectures, see here, Lord Devlin stated that whilst they should follow the law, juries cannot be compelled to convict a defendant and even a verdict that is axiomatically contrary to law is the last word on a defendant’s guilt, see page 90. In other words jurors have the power but not the right, to acquit in defiance of the law.
Much has changed since the above lectures were published, including, the abolition of the ancient double jeopardy rule, fundamental changes to the eligibility requirements for jurors 3 and the publication of a government commissioned report in 2001 by Lord Justice Auld. The Auld Report disputed the existence of a constitutional right to a jury trial based on and/or preceding Magna Carta (I have found it difficult to find an online link to the report but it is probably available somewhere), let alone the right of a jury to acquit in defiance of the law.
I suspect that a modern judge would prevent an advocate from telling a jury about jury nullification; see for instance the case of R v Speechley 4. In this case it was accepted that the jury had a common law right to acquit a Defendant at any time after the conclusion of the prosecution case and before any judicial invitation to render a verdict. However the fact that the trial judge prevented the Defence Counsel from informing them of this right was not deemed to be a ground for appealing the verdict.
Is this judicial approach justified? In the vast majority of cases, yes. If jurors render verdicts based on personal sympathy with the Defendant then the rule of law is undermined and we are left with nothing more than palm tree justice. However, I would submit that it is legitimate and lawful for a jury in extreme cases, to acquit a Defendant in open defiance of the law, not on vague grounds of conscience but to uphold the constitution and to guard against treason and tyranny.
Consider the case of Stephen Thorburn 5, the green-grocer who was convicted of a summary offence for selling his goods exclusively in imperial measures. He has charged with this offence after selling a pound of bananas to an undercover officer of Sunderland City Council. The offence he was charged with emanated from a foreign power and was created by mere statutory instruments (statutory instruments 1994 numbers 2866 and 2867 amended the Weights & Measures Act 1985 to create the relevant offence). It is therefore arguable that enforcing such a law against him amounted to treason praemunire 6 and/or tyranny; consider the following quote:
“The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his fellow citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation”7
On this basis juries can be viewed as the last line of defence against state tyranny, treason and usurpation. Indeed, given that a judge is part of the executive branch of the state, one can hold this view irrespective of the validity or otherwise of jury nullification (at least with respect to tyranny, a belief that state actors can commit treason despite complying with legislation requires a belief in a particular jurisprudence, which is at odds with legal positivism). This does not mean that jury trials are perfect; I accept the inherent human fallibility of jurors.
However as a safeguard of liberty, jury trials compare favourably to modern legal instruments like the European Convention on Human Rights. Such instruments are based on abstractions and not on what has worked in practice. Furthermore the vague drafting of these instruments allow them to be circumvented or even manipulated by tyrants (see my article ‘Human Rights and Alien Jurisprudence’).
1(1670) 124 E.R. 1006
3 For an interesting exposition on this see P Hitchens ‘The Abolition of Liberty’ Ch 12. This chapter refers to the ancient requirement that jurors must be landowners. One may protest that the land ownership criterion is arbitrary and does not guarantee competent and conscientious jurors, but it is in my view preferable to the position under the Juries Act 1974 (as amended) which makes almost all adults 18-70 eligible for jury service. This indiscriminate policy, which is based on egalitarian dogma, has the potential to produce poor quality jurors which in turn could lead to anomalous decisions. Such decisions may one day be used as a pre-text to abolish jury trials.
4  EWCA Crim 3067
5. As an aside, the European Court of Human Rights would not even hear his case. He was charged with a summary offence and so not entitled to a jury trial; whether this is the correct constitutional position is another matter.
6. See G Batten, ‘The Inglorious Revolution’ for a discussion, inter alia on the legality of EU accession and specifically on whether the offence Treason Praemunire has in fact been abolished by the Criminal Law Act 1969
7 2 Elliot’s Debates, 94; 2 Bancroft’s History of the Constitution, p. 267