‘Not only a right, but a duty’: A history of perverse verdicts
Does anyone here remember Clive Ponting? In my mind’s eye, I see him emerging into a media scrum outside the Old Bailey, his breath hanging on the chilly air. He is wearing a raincoat, even though it is only February, and he looks tired.
The year was 1985, and Ponting, a civil servant, had just been acquitted of breaching the Official Secrets Act after a two-week trial. He was said to have leaked classified documents about the sinking of an Argentinian warship, the General Belgrano, during the Falklands conflict. Crucially, he admitted doing so.
I think the implications of Clive Ponting’s case are misunderstood, and so, I started to ask some questions.
The documents had been sent to Tam Dalyell, a Member of Parliament, and they showed that the Belgrano was heading away from the Royal Navy ‘taskforce’ when it was hit. That wasn’t, however, the official version, and it contradicted the account the Prime Minister, Margaret Thatcher, had given.
Ponting argued that he had acted in the public interest, which, he said, need not be the same as the interests of the government of the day. And he was acquitted even though the trial judge said he had no defence in law.
Verdicts like Ponting’s are sometimes described as ‘perverse’, in that they seem contrary to the evidence given in court, and they have a noble history.
In 1670, two Quakers, William Penn and William Mead, were charged with preaching to an unlawful assembly in Gracechurch Street in the City of London.
The jury, however, rejected the trial judge’s direction to convict. Then – though it was sequestered for three days without ‘meat, drink, fire and tobacco,’ or ‘so much as a chamber pot, if desired’ – it refused to change its mind.
When each of the jurors was fined something like a full year’s wages, several of them refused to pay. And when, as a result, those men were committed to prison, they obtained a writ of habeas corpus for their release and, a commemorative plaque records, ‘established the right of juries to give their verdict according to their convictions’.
The plaque is now in the Old Bailey, and I like to imagine Clive Ponting glancing up at it on his way out of court.
And perverse verdicts also have a noble history in America.
There, where it is known as ‘nullification’, juries have exercised the power since before the Revolutionary War. They might have done so in 1865, when they acquitted ‘Wild Bill’ Hickok of manslaughter, and they certainly did so during Prohibition, when up to 60% of prosecutions resulted in acquittal.
But American juries used nullification most controversially under the Fugitive Slave Act of 1850.
This was introduced to mollify southern states, when they threatened to secede from the Union, and it required that all escaped slaves be returned to their masters, even from the North. When given the opportunity to do so, however, many northern juries simply refused to convict those who had helped slaves gain their freedom.
In doing so, those juries were simply following the lead of one of the Founding Fathers.
In 1771, John Adams – who would be the second President of the USA, and the country’s first Veep – wrote, of the juror, ‘It is not only his right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.’ And in 1920, the great judge Oliver Wendell Holmes would say that ‘the jury has the power to bring in a verdict in the teeth of both law and facts.’
After Clive Ponting’s, the most celebrated ‘perverse’ verdict was perhaps the one returned in the case of Michael Randle and Pat Pottle.
Those men had written a book, explaining how, in 1966, they assisted George Blake to escape from Wormwood Scrubs and flee to the Soviet bloc. He was serving a 42-year sentence at the time, having been convicted of passing secrets to the Russians.
On trial at the Old Bailey a quarter-of-a-century later, Randle and Pottle said they agreed neither with what Blake did nor with the sentence he was given, which his counsel had told the Court of Appeal was ‘so inhuman that it is alien to all the principles on which a civilised country would treat its subjects.’
They argued it was necessary for them to break the law, and they were promptly acquitted, despite, again, a ruling from the trial judge that they had no defence.
In 2001, as part of his review of the criminal courts, Lord Justice Auld took another look at the perverse verdict. ‘It has been an accepted feature of our jury system for a long time,’ he said, ‘and is seen as a useful long-stop against oppression by the State …’
But all jurors must make an oath, saying that they will ‘faithfully try the defendant and give a true verdict according to the evidence.’ To choose perversity, Auld was adamant, would be to break that promise. He called the perverse verdict ‘a blatant affront to the legal process.’ Jurors, he said,
… are not there to substitute their view of the propriety of the law for that of Parliament or its enforcement for that of its appointed Executive, still less so on what may be irrational, secret and unchallengeable grounds.
Auld recommended ‘that the law should be declared, by statute of need be, that juries have no right to acquit defendants in defiance of the law or in disregard of the evidence’.
In the alternative, however, he posed a striking question: ‘should the law – and the juror’s oath – be more honest … ?’ ‘Should we provide juries with an express power of dispensation or nullification, instead of just letting them get away with it, and should jurors undertake to give a verdict according to the evidence or their conscience?’
If so, jurors would have to be told ‘that they need not convict if they disagree with the law or with the decision to prosecute.’ For Auld:
Just articulating the direction brings home the enormity of such a possible clarification of the law, but as one distinguished academic has asked, ‘what other way is there for an honest system to behave?’
That jurors may return a perverse verdict is not, then, in dispute, either in the United States or much closer to home, and the ability of jurors to return a verdict contrary to the evidence has had some distinguished proponents.
Some people think that ability should be taken away, or that the jury oath should at least be made more honest. But there is a further point; one few people seem keen to acknowledge.
Jurors are not told of their ability, just as they are not required to explain the decision they reach. What they are told, indeed, implies that their decision must not be influenced from outside the court.
So when, in a particular trial, a defendant is convicted on the evidence, we cannot know whether the jury considered a perverse verdict only to reject it, or whether its members were even aware that such a verdict might be returned.
And where a perverse verdict was rejected, we cannot know whether that was simply because jurors believed they must obey the promise they had been required to give.
That, surely, calls the ‘guilty’ verdict into question. Isn’t is possible that, aware of its ability or freed from the apparent constraints of its oath, the jury would have voted to acquit?
And that is surely true of every such verdict returned by jurors to whom the current oath has been administered.
Isn’t that a lot of guilty verdicts?
Concerned by all of these questions, I wrote to a clutch of senior Parliamentarians, academics and QCs, to see what they would say. One, though courteous, could add nothing of note, while the rest didn’t even bother to reply.
When I turned to the Justice secretary, he told me that jury deliberations must remain secret, and that there are safeguards against improper behaviour by jurors.
I wondered whether, because of their oath, jurors might feel they must ignore a verdict which, while perverse, would also be lawful.
In reply, the minister stressed ‘the paramount importance of [jurors] giving a true verdict according to the evidence that is presented to them in court,’ and also the direction they should receive from the trial judge to that effect. Telling them of their ability to return a perverse verdict would, he said, ‘fly in the face’ of these things, ‘and might lead to confusion on the part of the jury as to their role in proceedings.’
I was referred to the Auld report and told that the government ‘has no plans to revisit the manner’.
None of this allayed my concerns, so I went back to Petty France, for what I guessed might be the final time. I wrote: ‘The combination of the oath its members are required to take and the direction they receive from the judge might, of course, lead a jury to decide to eschew the ‘perverse’ verdict it favoured.’ And I asked, ‘Is that an outcome the government would welcome or one it would deplore?’
My guess turned out to be correct. The Secretary of State cited Auld once again, and then he told me, ‘there is nothing further to add.’
This article was first published on the Justice Gap on May 1, 2018. A shorter version of the article appeared in The Times on April 19, 2018