GREEN PAPER: Dealing With Perverse Verdicts
Considering the implication of perverse verdicts within the current system and options for dealing with them
Introduction
Recently, at least in England and Wales, acquittals of those engaged in (arguably criminal) protests has pushed the issue of perverse verdicts onto a more mainstream agenda.
Perverse verdicts1 are a feature of the criminal law in any number of jurisdictions. They perform, at least in theory, an important function in defending people from the overbearing use of the criminal law by the state.2
However, perverse verdicts arguably undermine the rule of law. There are two main reasons for this. First, there is genuine doubt as to whether a perverse verdict is a lawful verdict. Second, they make it so that the criminal law is applied inconsistently making it impossible for people to be able to weigh the likely consequences of their actions.
Lawfulness of perverse verdicts
Advocates of the perverse verdict argue a jury in England has the absolute right to acquit according to conscience but are unable to point to any convincing authority to support that.3 Jurors take an oath to return a true verdict according to law. As the law sets out the elements of an offence and the available defences, only a guilty verdict would be in accordance with the oath in circumstances where the Crown has proved the facts to the required standard and the elements of the offence are made out in law.
Where there is genuine, well-founded, doubt as to the lawful underpinning of perverse verdicts they clearly undermine the rule of law in a system which is predicated on the law being properly applied to all those who go through it.
Recently a Crown Court judge has seemed to find there is no such right and that those claiming there is have misstated the law4:
Arguably jurors returning a perverse verdict are, themselves, committing a criminal offence. What saves them from prosecution is there is no way to gather the evidence to proffer charges.
Weighing the consequences
One of the features, at least arguably, of a well-functioning rule of law compliant legal system, is that those subject to it are able (with appropriate legal advice if necessary) to weigh the consequences of their actions and understand the risk of criminal sanction being applied if they follow a particular course. Perverse verdicts make that harder, because people, and their legal advisors, cannot reasonably predict if something might lead to a criminal conviction or an acquittal.
Even the advocates of perverse verdicts must surely accept that it would be better for those who may be contemplating a criminal act as a matter of conscience to be able to consider the risks and impact of doing so. A criminal justice system in which a lawyer has to shrug and say
“well, it’s probably an offence but it might be there is a defence we only recently discovered although maybe that defence didn’t work and the jury just decided to acquit anyway”
is not a particularly fair or just system.
The options
Option1: Do nothing
This option accepts the existence of perverse verdicts as a feature not a bug and preserves the current landscape of uncertainty.
The case for doing nothing
The main case for doing nothing is that the system has functioned well enough for hundreds of years without needing intervention in this area.
The case against doing nothing
Doing nothing means the risk of legal uncertainty undermining the rule of law persists. Arguably, with the advent of large-scale social media the risks caused by perverse verdicts are, and will be further, amplified.
Option 2: Introduce a requirement to give reasons
Under this option a positive obligation could be placed on juries to give reasons for their decision.
The case for introducing a requirement to give reasons
Requiring a jury to give reasons for a decision would, at least in theory, increase transparency in the criminal justice system: complainants, defendants, and the public at large would at least have some idea of why a particular verdict has been returned. This has wider implications beyond the issue of perverse verdicts; it might, for example, give some greater clarity on why certain types of offences are more likely to lead to acquittals than others.
The case against introducing a requirement to give reasons
Requiring a jury to give reasons for its verdict may not cure the issues caused by perverse verdicts. Assuming a jury is properly directed on the impact of their oath, and understands that the consequences are that they must return a verdict of guilty when they conclude they are sure the elements of the offence are met, when a juror may simply state they have a doubt as to whether the threshold has been met. That would maintain the hidden nature of a perverse verdict and would, at least potentially, exacerbate the problem by giving additional legitimacy to a perverse verdict.
Depending on how a requirement to give reasons were implemented it might undermine the presumption of the innocence of a defendant who is found not guilty.5 This may happen in one of two ways. First, it may impact on the presumption in the immediate case by a jury stating they were not so certain as to be sure the offence had been committed as this may lead people to conclude there must be evidence. Second, it may impact the presumption in other cases where a jury says they have acquitted because they are sure the offence was not committed as it reinforces, in those cases, the impact set out previously.
Additionally, it may then lead to increased speculation by the press and commentators discussing jury reasons in higher profile cases.
Option 3: Give judicial power to direct verdicts or to substitute a verdict
Under this option judges could be provided with a power to direct verdicts or to substitute their own.
The case for giving judicial power to direct verdicts or to substitute a verdict
Giving judges the power to direct verdicts, or to substitute their own verdicts, would help to provide for greater legal certainty because it would mean that, where the elements of the offence are made out a guilty verdict is returned.
The case against giving judicial power to direct verdicts or to substitute a verdict
Giving a judicial power to direct would undermine the role of the jury and may strengthen calls to abolish jury trials altogether. It is not clear that the power would, necessarily, remove the risk of difference of outcomes as individual judges may reach different conclusions. Without a requirement to give reasons, this option would not advance legal certainty much further.6
Option 4: Introduce an alternative to perverse verdicts
Under this option a mechanism for a jury to acquit for conscience could be explicitly introduced. This may be by legislating a right to return a perverse verdict, putting the debate about the lawfulness of the practice to bed, or by creating a new type of verdict which makes it clear something is a verdict of conscience.
The case for introducing an alternative to perverse verdicts
The main reason for introducing an alternative to perverse verdicts is that it formalises a practice which is happening anyway and, in doing so, seeks to minimise the damage to the rule of law and administration of justice perverse verdicts can cause.
The case against introducing an alternative to perverse verdicts
Although this option would, realistically, just bring into the open an existing practice, creating a formal, legal, route to acquitting for conscience gives state approval to the concept that conviction should, in part, be determined by what a particular jury thinks of a particular defendant’s reasons for doing something. That could undermine the criminal justice system by introducing, as a matter of law, a subjective element to the criminalisation of conduct.
Additional points to consider: is this a temporary magnification of the issue?
One thing to consider, in weighing whether or not there is an argument for acting, is whether this is a big issue or not. It is entirely possible that the current focus on this is because of an increased number of disruptive protests occurring at the same time as government legislating in the area of protest.7
Tentative conclusions and next steps
It is perhaps even likely, rather than just possible, that the current debate is a temporary magnification which gives the impression that perverse verdicts are a much bigger issue than they really are. Nevertheless, the existence of perverse verdicts is a structural issue in the criminal justice system which risk undermining the rule of law.
On balance, that risk to the rule of law means this issue merits further thought and so I will begin work on a white paper.
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For any Americans who stumble across this substack, you will know it as “jury nullification”.
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 - a tyrannical regime is unlikely, in my view, to care overly much for the obstacle of juries when imprisoning those it wants to.
At least in my view. Many point to Bushel’s case as establishing some form of absolute right to acquit but I think there is an argument that the more correct formulation around perverse verdicts is that there is no mechanism to know why a jury found the way they did and no way, therefore, to effectively challenge them for lawfulness. That doesn’t make the decision lawful, it just makes it unchallengeable. The outcome is the same, but the route to it is markedly different and has a different implication for the rule of law.
As Twitter have still not grown up I cannot add an embedded tweet. The original tweet can be found here https://twitter.com/legalhackette/status/1658390714303086593 with the beginning of the thread https://twitter.com/legalhackette/status/1658387080097984514 showing that this comment is about people holding signs outside court stating that juries have an ancient right to acquit on their conscience.
Or, perhaps more accurately, further undermine. I am not convinced a not guilty verdict does maintain the presumption of innocence, at least not entirely - there is plenty of evidence of people taking a “no smoke without fire” approach to acquitted defendants. That comes with a host of problems which are outside the scope of this green paper and which may be considered in future work (although at this stage I can already say I do not see a viable solution to that problem, so at best it would be a brown paper which did not lead to further work).
Compare, for example, https://highways-news.com/judge-orders-insulate-britain-m25-protestors-to-be-found-not-guilty/ and https://www.bbc.co.uk/news/uk-england-essex-65263650. Although the cases were tried in different levels of court, and the offences charged were different, both involve the disruption of the M25. The District Judge clearly found that a conviction would be disproportionate whereas the Crown Court was satisfied not only that conviction was proportionate but so was immediate imprisonment.
Whether or not abolishing the common law offence of public nuisance and creating a statutory offence was an avenue to introduce more restrictions is a matter of live debate which it is not necessary to deal with here.
"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.
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?