JURIES, JUDGES, BARRISTERS, DEFENDANTS AND PERVERSE VERDICTS

Those with a legal ear to the ground can`t be unaware of the noise surrounding barrister Rajiv Menon KC who faced unprecedented contempt proceedings (up to 2 years' prison) over his closing speech defending a Palestine Action activist accused of damaging an Elbit Systems arms factory in Filton.  The trial judge had ruled that counsel could not invite the jury to disregard the court's rulings of law, disregard their juror oaths, or apply the principle of jury equity. Menon nevertheless referred to jury independence in his closing speech

This raises the fundamental question of what happens when the evidence against a defendant is overwhelming but the defendant nevertheless wants the jury to acquit?   Not because they did not carry out the alleged offence or because of some technicality  but because the motivation for the offence was such that they believed it was right.  That is a rather different proposition which raises the uncomfortable possibility that, in some cases, the defendant may actually be better off without a barrister because they do not have to obey the rules of a club of which they are not a member.

The Court of Appeal has already ruled that the original procedure for bringing the contempt proceedings was unlawful. That did not, however, settle the underlying question of what a barrister can properly say to a jury. The issue is still alive.

In April 2019 activists targeted Shell's London headquarters on Belvedere Road spraying graffiti, pouring fake oil, breaking windows and climbing the roof to protest against climate change. At trial in April 2021 a jury acquitted the six Extinction Rebellion activists of criminal damage despite the judge directing them that they had no defence in law. They had dispensed with their lawyers and represented themselves to enable them to put forward a defence that was not available to their barristers whose actions are strictly governed by the Bar Standards Board (BSB) Handbook, specifically Part 2: The Code of Conduct. They wanted to speak directly to the jury. There was no pretence that the damage had not occurred. The argument was essentially that what they had done was justified by the circumstances and by their beliefs. The jury acquitted them.

In the cases of Clive Ponting in 1985 and the Colston Four in 2022 their  defence teams successfully argued that their actions were in the public interest, leading to historic acquittals despite the judges` explicit directions to convict.  The bottom line is that the jury itself cannot be ordered by a judge to convict.  A judge can tell a jury very strongly what he or she thinks about the evidence and can explain what verdict would follow if the jury accepts particular facts. The jury is, however, the body which decides whether the defendant is guilty.  Even where a judge considers an acquittal would be perverse the judge has no power to pre-empt the jury's verdict by directing them to convict.

And this brings us back to the Menon case which is therefore about rather more than one barrister and one closing speech. It raises a much bigger question about the relationship between the judge, the advocate, the defendant and the jury. A judge can tell the jury what the law is. A barrister must obey the judge but a defendant representing himself can stand in the witness box, or before the jury in their closing speech, and say what they believe. And if what he believes is: “Yes, I did it but I ask you to acquit me,” there is something rather fundamental about the jury system which allows him to make that appeal. To some degree litigants in person are enabled to pursue actions forbidden to barristers and actively take that route for their defence so achieving the spectacle of perverse verdicts.

There is one further possibility which has been alluded to in an earlier post on this Blog. The previous government's proposals to reduce the use of jury trials have been presented principally as a response to the Crown Court backlog. That is the official explanation. But is it the whole explanation?  There have been a number of recent cases in which juries have acquitted defendants involved in highly political causes.  In addition to those cases mentioned above, climate protesters and Palestine Action supporters,  notwithstanding evidence which, on the face of it established what they had done, have been acquitted.

Could governments be concerned that a jury does not always behave as the Government, the prosecution or even the judge expects particularly where questions of political, religious or ethnic identity are involved?  And, more specifically, has there been concern about the possibility of block voting on an identity basis, including the possibility of Islamist influenced voting in cases involving Israel, Palestine or terrorism?

A jury is supposed to decide the case before it, not the political cause with which a defendant identifies. Yet twelve individuals bring their own experiences, beliefs and prejudices into the jury room. That is both the strength and the weakness of a jury system.  Indeed the same applies to magistrates courts.  As a peripheral observation:  if a bench constituted three Muslims could a Jewish defendant feel that s/he would get a fair hearing? 

David Lammy's own 2017 review concluded that juries did not, on average, produce different results for BAME and white defendants while identifying disparities in some magistrates court outcomes.  Those results indicated that juries are less susceptible to certain forms of bias than magistrates.  Why then reduce their role?

If there is a fear that identity politics can produce verdicts which depart from the straightforward application of the law, removing or reducing jury trial would certainly reduce that particular risk.  However on the other hand the jury system is akin to a defensive barrier between government which makes the law and the protection of the citizen from the excesses of that legislation. 

If the jury alone decides guilt how far may a defendant, as opposed to his barrister, appeal to the jury's conscience?