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Juries - Evidence, Equity and the Establishment

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Two recent acquittals for protestors, the 'Colston Four' on Wednesday 5 January 2022 and the 'Shadwell Three' on Friday 14 January 2022 have caused Conservative MP’s and political commentators to criticise the jury system, but do the verdicts not prove the very point of having juries?

To consider the role of juries, three simple facts must be acknowledged and understood: 

  1. The burden of proving criminal allegations rests exclusively with the Prosecution (save for exceptional examples where there is a reverse burden – such as diminished responsibility in murder cases). This means that it is for the prosecution to prove the guilt of a defendant, convincing a jury that they are sure (beyond a reasonable doubt) that the defendant is guilty.
  2. All people charged with either way offences, or indictable only offences, have a right to be tried by a jury of 12 people.
  3. Jury cases are heard in the Crown Court, with a judge presiding over the trial, taking charge of legal issues such as the admissibility of evidence, and a jury delivering a verdict having heard the admissible evidence and submissions from counsel, and ultimately, convict (verdict of guilty) or acquit (verdict of not guilty) a defendant. 

In England and Wales, there are only two verdicts available. Uniquely, Scotland has a third option of ‘Not Proven’ which in recent times rose to prominence as it was the verdict delivered in respect of one of the charges in the Alex Salmond case in March 2020. ‘Not Proven’ is a verdict which enables a Jury, in essence, to indicate that morally they believe the defendant to be guilty, but the Prosecution has failed to prove that to the sufficient standard.

Therefore it is important to consider that the actions and reactions of a jury are intrinsically linked to how a prosecution conducts its’ case, from charging decision to presentation in court, and how a defence counters assertions of guilt.

The Jury Oath

At the beginning of a trial, when selected to serve on a jury, jurors are asked to either swear an oath on a holy book or affirm. The affirmation is:

"I solemnly, sincerely and truly declare and affirm that I will faithfully try the defendant and give a true verdict according to the evidence."            

It is the last part - ‘according to the evidence’ - which has caused controversy as a result of the Colston Four and the Shadwell Three. It is argued by some that the protestors in both cases held no defence in law. 

In the Colston Four case, there was acceptance and admission that the statue of slaver Edward Colston was damaged, said damage was intentional and it did not belong to the protestors. In law then, the actus reus of criminal damage was satisfied. However, the protestors argued (amongst other submissions) that they had acted with a lawful excuse (thereby challenging the mens rea)

Whilst we can never know why a jury acquits or convicts – as it is banned by law - in this case they must have accepted the lawful excuse(s) advanced. However, it could also have simply been the case that the jury, consisting of Bristolians, didn’t think the toppling of the statue of a slaver was a crime at all, and in fact should have been removed by Bristol Council. If that were true, that would be arguably at odds with the evidence, and in fact, be an example of Jury Equity. The same is true of the Shadwell Three, the jury could have just believed that what they did was not a crime. 

Jury Equity and Prosecution Decision Making

Jury Equity is a long-established area of academic discourse. It considers that sometimes, even where evidence is overwhelming that an individual has committed a criminal offence, a jury will acquit them if society does not consider the actions to be criminal, or worthy of attaching criminal liability. Some consider it a classic dispute between the views of everyday citizens and the authorities and legislature. This is particularly true, when considering the Full Code Test which is part of The Code for Crown Prosecutors

Before an individual can be charged, a case must satisfy the Full Code Test. The test has two stages:

  1. There is sufficient evidence to provide a realistic prospect of conviction; and
  2. Such a prosecution is in the public interest.

Jury Equity arguably attacks the second limb of the test. The states agent, the Crown Prosecution Service, considers that a prosecution is in the public interest, whereas a jury (when applying equity) will refuse to convict someone as they do not, as a representative cross section of public, consider the actions of an individual to require criminal liability. 

Thus, Jury Equity is part of the checks and balances in democratic civil society. It monitors actions that the state takes in terms of assigning criminal liability to private individuals, and in certain cases (such as the Shadwell Three and Colston Four) sends a clear message to the State that decisions to prosecute do not correspond with the public’s view. In effect, they deny the assertion that a prosecution is in the public interest.

Therefore, Juries are fundamental in a democratic civil society, and moreover, why criminal defence lawyers will often advise a client that, where possible, they should face a jury of their peers, who can use their everyday experience to deliver a true verdict.


Liam Lane is a Trainee Solicitor at Edward Fail, Bradshaw & Waterson