Can a jury decide not guilty if they think the sentence is unjust?

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Frances Crook, formally head of the Howard League For Penal Reform tweeted this comment.

I’m not sure how long the tweet will stay up because it raises significant issues, not just in terms of morality but in terms of Legality

Juries have a responsibility to remain within the Law and to fulfil the specific duties they have been given. To fail to do so is itself misconduct and can lead to custodial sentences. Misconduct specifically includes where jurors

“intentionally engage in conduct, during the trial period, from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue (s.20C Juries Act 1974). This is ‘prohibited conduct”

This brings a custodial sentence. I would submit that choosing to determine the verdict based not on the facts available but on wider perceptions of policy falls within that category.

Incidentally I suspect that this isn’t even what Crooks intended to say. Rather, what I suspect she means is that a high tarrif focuses the mind on the evidence somewhat. The death penalty for example would have really focused a 19th Century Juror’s mind on what “Beyond reasonable doubt means.”

There’s a reason why jurors are given specific and bounded responsibilities and demonstrated by another example from the ensuing conversation.  One person said the following.

That all sounds well and good doesn’t it because we instinctively sympathise with the hypothetical offender here. The person goes on to argue that they would go beyond the strict duties of a juror in order to protect against a greater injustice. But how do they know that they are preventing injustice and not causing an injustice.

Sticking with their example, whilst we may have sympathies towards the defendant, there may be others who would argue that in fact the defendant would have had other legal means of recourse, that there is a victim of the crime and that the re are plenty of struggling people who choose not to steal. And of course, the likelihood is that you won’t be asked to sit on such a case but in a Jury trial you could be dealing with a question of serious assault, rape, burglary, murder etc. 

The point is that we as a society have determined the role and therefore the competency of a jury.  The job of the jury is to determine guilt/innocence of the facts, A judge is appointed to the trial and they will rule on matters of law.  This means that there are other remedies made available to defendants to enable excuses, justifications and mitigations to be considered. Judges have a level of discretion when it comes to sentencing and then there are wider policy considerations for parliament to determine.

In other words, you as a juror do not have competency or responsibility for determining broader issues of morality and justice. This doesn’t mean you are incapable of coming to such opinions or have no role to play in determining them. It means that when you participate in those decisions you do so as a private citizen along with the rest of society as part of the democratic justice.

Choosing to act outside of your competency is immoral and unjust. We recognise that in terms of Government and leadership. A leader who acts outside of their area of competency is tyrannical and abusive.  A person who drives a vehicle they have not been licensed to drive is reckless and dangerous. 

The Juror who decides the case on anything other than the facts commits an injustice because they refuse to follow due process. This makes the process of justice itself unsafe. How can anyone be sure that there will be a fair trial and safe verdict if jurors go beyond the evidence?  What is to stop a juror for example deciding that whilst person a may or may not have committed this crime that they are obviously guilty of something and so must be punished.

The juror commits an injustice because they fail to consider the needs of the victim for justice in the situation.  They are too busy grandstanding.  They are not giving their attention to hearing the case properly and so doing right by accuser and defendant. They are using the trial for other purposes for which it wasn’t set up.

If you disagree with sentencing policy then that’s a political matter and you should campaign and vote accordingly but the jury room is no place for such politics.

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