"Some people argue they are something which help to protect us from a dictatorship but that is not an argument I find myself able to agree with. The only really defence against tyranny is a population which rises up against it and removes the tyrant"
I don't think people argue that they would protect against full-blown tyranny – rather, that they would help protect against sliding into full-blown tyranny, and against the kind of petty tyranny that would never provoke an uprising. As for the population rising up: surely part of the purpose of constitutional law is to provide mechanisms for the public to remove bad or oppressive rulers without recourse to violence?
There are one or two other points you make that I'm inclined to disagree with but I'll leave them till I've had time to think about them further.
I suspect where we differ is at what stage we consider something tyrannical - I think it's quite a binary state so I don't think it's possible to have less than "full-blown" tyranny. Yes, the purpose of constitutional law is to try to avoid uprising, but it only works if the people in government are willing to play by the rules. Constitutions all rely, on a greater or lesser extent, on the "good chaps" approach - but governments which don't stray too far from constitutional norms are not really tyrants.
As I said, I am not persuaded by the argument - others may be.
In my previous comment I was going with the language you'd used. My impression is that supporters of jury nullification defend it as a protection against some forms of misgovernment. Characterising it as an argument about tyranny is a bit of a strawman.
As you say, constitutions all rely, to a greater or lesser extent, on the "good chaps" approach. That is in fact part of the problem, because officialdom is full of good chaps who, in good faith, enforce laws blindly ... even when they are being misused by (a small number of) unprincipled people who have got into positions of power; even when they are clearly unjust and remain in force only because of negligence on the part of legislators.
"When the courts uphold laws which are manifestly unjust or out-of-date, the legitimacy of the whole framework of law is undermined. If the mechanisms for identifying and remedying derelict law are inadequate, reformers are placed in the invidious position of having to step outside the law in order to get their concerns heard."
To my mind, the institution of the jury straddles the boundary between law and politics. Jurors' power to give a verdict according to the dictates of their conscience is not something granted by law, it's something which exists as a matter of political fact (and the Bushel case was a recognition of that political reality).
The oath that jurors swear does not create a legal obligation; any legal obligation exists irrespective of the oath. As I see it, the requirement that they swear an oath is an attempt to invoke a higher power (their conscience) to ensure that they fulfil the legal obligation diligently. But conscience will not bind anyone to act against conscience; if anything, the swearing of the oath is more likely to reinforce people's reluctance to deliver a verdict they perceive as unjust.
Also, I'd say the bill you're proposing rests on a misunderstanding of the concept of the rule of law. There's a huge difference between principled law and arbitrary law and, until there are proper mechanisms in place to keep the edifice of the law consistent with fundamental principles of justice and good governance, any attempt to sanctify the rule of law is, in fact, an attempt to reinforce the rule of arbitrary law.
People do argue it protects against tyranny - often without setting out if they consider tyranny to be actual tyrannt or misgovernment.
The jury oath does not in and of itself create a legal obligation, no, but it does assist in any claim that a perverse verdict is an offence because it helps to establish intent.
Re the rule of law - I disagree there is a misunderstanding of what the rule of law requires. As I say in the post, the existence of perverse verdicts means that someone cannot accurately predict the consequences of their actions - two people commiting exactly the same act may end with different verdicts depending on the jury they are tried in front of. If an acquitting jury comes first, under the current system, someone may well go and do the same act in fair expectation of acquittal and yet then be convicted because the second jury does not return a verdict according to their conscience. There is nothing, at least in my view, more unfair than arbitrary and unpredictable outcomes - and the fact the law may be applied differently means the not everyone is subject to the law. It is, if it is anything, the very definition of arbitrary.
You'll have to wait and see what the proposed solution is when I write the white paper before being able to declare it arbitrary, as this paper does not go into the detail of it.
"People do argue it protects against tyranny - often without setting out if they consider tyranny to be actual tyrannt or misgovernment."
Yes, people often use words loosely – that's why it's so important to engage with the meaning behind the words rather than the words themselves.
"I disagree there is a misunderstanding of what the rule of law requires"
I wasn't referring to what the rule of law requires, I was referring to what makes the concept important. If the concept implies that all laws must be obeyed, right or wrong, then, as far as I'm concerned, it's nothing more than an adjunct to mightful authority; it's only if it actually means the rule of principled law – i.e. laws rooted in principles which are consistent with the healthy functioning of a free society – that it deserves the kind of reverence that it's given. And I wasn't suggesting that your proposal will itself be arbitrary, merely that it will reinforce existing laws that are.
You put a lot of emphasis on the need for certainty. I can see that this is of great importance with laws governing everyday, necessary activity but, to my mind, it's far less important when it comes to discretionary activity, particularly where people are consciously or deliberately testing the limits of the law. And the picture you paint strikes me as somewhat unrealistic: my impression is that most people regard the administration of justice as a bit of a lottery at the best of times; the idea of anyone relying on a jury returning a 'perverse' verdict seems highly implausible to me – they might hope for it, but I very much doubt anyone would rely on it.
As it happens, I'm planning a post on my own site on how the courts' decision, centuries ago, to adopt an arbitrary rule, for the sake of certainty, has led them to violate a fundamental principle of governance. That's going to be my first 'new' post once I've brought most of my older material across from my Wordpress site.
It’s clear that you see *verdicts of conscience* as a threat to the rule of law. It’s also clear that you weren’t practicing in criminal law in the late 70’s to mid 80’s when the jury aquittal rate was 97% where the police evidence was unsupported by independent witnesses. This is what led to PACE being introduced & that has been inadequate to prevent huge numbers of miscarriages of justice (the concept that the prosecution decides what evidence is relevant to the defence is completely laughable & an affront to the rule of law). You will not be alone in misunderstanding the protective value of the rule of law here (see Silas Reid’s frankly embarrassing pronouncement) but as you do it’s probably better that you don’t draft any white papers until you have at least spent some time in the practice of criminal defence law. When you read this ask yourself what would happen if the death penalty were reintroduced… what is the last line of defence for society?
"Some people argue they are something which help to protect us from a dictatorship but that is not an argument I find myself able to agree with. The only really defence against tyranny is a population which rises up against it and removes the tyrant"
I don't think people argue that they would protect against full-blown tyranny – rather, that they would help protect against sliding into full-blown tyranny, and against the kind of petty tyranny that would never provoke an uprising. As for the population rising up: surely part of the purpose of constitutional law is to provide mechanisms for the public to remove bad or oppressive rulers without recourse to violence?
There are one or two other points you make that I'm inclined to disagree with but I'll leave them till I've had time to think about them further.
I suspect where we differ is at what stage we consider something tyrannical - I think it's quite a binary state so I don't think it's possible to have less than "full-blown" tyranny. Yes, the purpose of constitutional law is to try to avoid uprising, but it only works if the people in government are willing to play by the rules. Constitutions all rely, on a greater or lesser extent, on the "good chaps" approach - but governments which don't stray too far from constitutional norms are not really tyrants.
As I said, I am not persuaded by the argument - others may be.
In my previous comment I was going with the language you'd used. My impression is that supporters of jury nullification defend it as a protection against some forms of misgovernment. Characterising it as an argument about tyranny is a bit of a strawman.
As you say, constitutions all rely, to a greater or lesser extent, on the "good chaps" approach. That is in fact part of the problem, because officialdom is full of good chaps who, in good faith, enforce laws blindly ... even when they are being misused by (a small number of) unprincipled people who have got into positions of power; even when they are clearly unjust and remain in force only because of negligence on the part of legislators.
As I say in my recent piece, the Fog of Law (https://malcolmr.substack.com/p/the-fog-of-law):
"When the courts uphold laws which are manifestly unjust or out-of-date, the legitimacy of the whole framework of law is undermined. If the mechanisms for identifying and remedying derelict law are inadequate, reformers are placed in the invidious position of having to step outside the law in order to get their concerns heard."
To my mind, the institution of the jury straddles the boundary between law and politics. Jurors' power to give a verdict according to the dictates of their conscience is not something granted by law, it's something which exists as a matter of political fact (and the Bushel case was a recognition of that political reality).
The oath that jurors swear does not create a legal obligation; any legal obligation exists irrespective of the oath. As I see it, the requirement that they swear an oath is an attempt to invoke a higher power (their conscience) to ensure that they fulfil the legal obligation diligently. But conscience will not bind anyone to act against conscience; if anything, the swearing of the oath is more likely to reinforce people's reluctance to deliver a verdict they perceive as unjust.
Also, I'd say the bill you're proposing rests on a misunderstanding of the concept of the rule of law. There's a huge difference between principled law and arbitrary law and, until there are proper mechanisms in place to keep the edifice of the law consistent with fundamental principles of justice and good governance, any attempt to sanctify the rule of law is, in fact, an attempt to reinforce the rule of arbitrary law.
People do argue it protects against tyranny - often without setting out if they consider tyranny to be actual tyrannt or misgovernment.
The jury oath does not in and of itself create a legal obligation, no, but it does assist in any claim that a perverse verdict is an offence because it helps to establish intent.
Re the rule of law - I disagree there is a misunderstanding of what the rule of law requires. As I say in the post, the existence of perverse verdicts means that someone cannot accurately predict the consequences of their actions - two people commiting exactly the same act may end with different verdicts depending on the jury they are tried in front of. If an acquitting jury comes first, under the current system, someone may well go and do the same act in fair expectation of acquittal and yet then be convicted because the second jury does not return a verdict according to their conscience. There is nothing, at least in my view, more unfair than arbitrary and unpredictable outcomes - and the fact the law may be applied differently means the not everyone is subject to the law. It is, if it is anything, the very definition of arbitrary.
You'll have to wait and see what the proposed solution is when I write the white paper before being able to declare it arbitrary, as this paper does not go into the detail of it.
"People do argue it protects against tyranny - often without setting out if they consider tyranny to be actual tyrannt or misgovernment."
Yes, people often use words loosely – that's why it's so important to engage with the meaning behind the words rather than the words themselves.
"I disagree there is a misunderstanding of what the rule of law requires"
I wasn't referring to what the rule of law requires, I was referring to what makes the concept important. If the concept implies that all laws must be obeyed, right or wrong, then, as far as I'm concerned, it's nothing more than an adjunct to mightful authority; it's only if it actually means the rule of principled law – i.e. laws rooted in principles which are consistent with the healthy functioning of a free society – that it deserves the kind of reverence that it's given. And I wasn't suggesting that your proposal will itself be arbitrary, merely that it will reinforce existing laws that are.
You put a lot of emphasis on the need for certainty. I can see that this is of great importance with laws governing everyday, necessary activity but, to my mind, it's far less important when it comes to discretionary activity, particularly where people are consciously or deliberately testing the limits of the law. And the picture you paint strikes me as somewhat unrealistic: my impression is that most people regard the administration of justice as a bit of a lottery at the best of times; the idea of anyone relying on a jury returning a 'perverse' verdict seems highly implausible to me – they might hope for it, but I very much doubt anyone would rely on it.
As it happens, I'm planning a post on my own site on how the courts' decision, centuries ago, to adopt an arbitrary rule, for the sake of certainty, has led them to violate a fundamental principle of governance. That's going to be my first 'new' post once I've brought most of my older material across from my Wordpress site.
It’s clear that you see *verdicts of conscience* as a threat to the rule of law. It’s also clear that you weren’t practicing in criminal law in the late 70’s to mid 80’s when the jury aquittal rate was 97% where the police evidence was unsupported by independent witnesses. This is what led to PACE being introduced & that has been inadequate to prevent huge numbers of miscarriages of justice (the concept that the prosecution decides what evidence is relevant to the defence is completely laughable & an affront to the rule of law). You will not be alone in misunderstanding the protective value of the rule of law here (see Silas Reid’s frankly embarrassing pronouncement) but as you do it’s probably better that you don’t draft any white papers until you have at least spent some time in the practice of criminal defence law. When you read this ask yourself what would happen if the death penalty were reintroduced… what is the last line of defence for society?