From: www.flyingfish.org.uk/articles/excuse/lawful.htm
Reclaim the Law
The Rt. Hon. Lord Devlin stated in The
Conscience of the Jury [Law Quarterly Review,
July 1991, Vol.107, p.404 [1]] "The power that puts the jury above the
law can never safely be entrusted to a single person
or to an institution, no matter how great or how good.
For it is an absolute power and, given time, absolute
power corrupts absolutely. But jurors are anonymous
characters who meet upon random and unexpected
summons to a single task (or perhaps a few), whose
accomplishment is their dissolution. Power lies
beneath their feet but they tread on it so swiftly
that they are not burnt".
The jury - rooted in conscience
In 1670 a jury of twelve, led by Edward Bushell,
acquitted two Quaker activists, William Penn and
William Mead, of "leading a dissident form of
worship", despite having been directed by the
judge to convict. When the jury refused to reverse
their decision the judge sentenced them to prison,
but after an appeal the court ruled that they should
not be punished for their verdict. To this day, a
memorial plaque to the steadfastness of the jury in
'Bushell's Case' hangs in the Old Bailey. The jury's
power of a verdict according to conscience is
enshrined as a bulwark against oppressive measures of
the state.
We, in our time, are only reminded of this duty of
the jury in so-called exceptional cases, a duty
usually forgotten beneath the mystifications of our
power-crazed law-enforcers. Nowadays, when a jury
fulfils its highest function, the verdict is called
'perverse'; we have forgotten the moral foundations
supporting the letter of the law.
In 1996 a jury acquitted three women members of
the peace group Swords to Ploughshares of criminal
damage to a British Aerospace Hawk jet. At the
consent of the British government, the jet was about
to be delivered to the Indonesian government and was
likely to play a role in human rights abuses against
the people of East Timor. But just how far justice
had been forgotten was revealed when this acquittal
was universally reported in the media as a perverse
verdict, as if the jury had wilfully made a mockery
of justice by ignoring the law. Quite the contrary -
the jury had faithfully applied the principle of
'lawful excuse', a tenet of common law also written
into statute in s.3(1) of the Criminal Law Act 1967:
A person may use such force as
is reasonable in the prevention of crime...
The jury accepted the defence's argument that the
women sincerely intended to prevent the crime of
genocide against the population of East Timor. The
damage had been the result of principled belief, done
for no personal gain and without malice; this did not
have the character of criminal activity.
Truly perverse
The verdict on the Ploughshares women is perverse
only to someone who has lapsed dangerously into
forgetting that it is states - including our own -
which are capable of the greatest crimes as well as
complicity in them (whether for reasons of politics
or business, or both.)[2] A cry
of horror at the verdict is ironically misplaced, for
the true perversity would have been to declare it a
crime to attempt to prevent genocide; this would have
been a real perversion of the course of justice. The
verdict was neither a perversion of justice nor of
the law: the reasoning used in defence of the action
followed precisely the contours of established legal
principle.
Correctly speaking, a perverse verdict (or
'nullification', in legal terms) occurs when a jury
refrains from applying the law at all. The legal
profession restricts the notion of 'perverse' to mean
a failure to follow the letter of the law, to
verdicts where a jury disregards the law in the
interest of greater justice. For example, to deliver
moral justice rather than paper justice, a jury in
1985 acquitted Clive Ponting who broke the Official
Secrets Act to correct public misinformation
surrounding the sinking of the Argentine ship General
Belgrano during the Falklands conflict. Misleading
the jurors as to their proper right and duty, the
judge summed up:
Until Parliament sees fit
either to repeal or amend it, my duty and your
duty is to apply the law as it is. We cannot pick
and choose and say, 'This is a law we don't like,
and therefore we are not going to apply it.' That
would be acting wholly contrary to our oaths...
[Ponting's] duty does not mean a
moral duty; it means an official duty...
You, members of the Jury, are not
concerned with whether that was a wise decision
or whether you would have taken it.[3]
Similarly, in 1991 a jury perverted legal justice
to achieve moral justice by acquitting Patrick Pottle
and Michael Randle who had clearly helped Soviet
agent George Blake to escape after he had broken out
of Wormwood Scrubs in 1966. Responding to criticisms
of this latter acquittal, a law professor wrote:
If the judge in this case is
deserving of criticism, it would be for failing
to tell the jury of its power to do justice
despite the lack of a recognised defence. From
Bushell's time forward, the power of the jury to
acquit in cases where a strict application of the
law would lead to an unjust result has been
tacitly recognised. Yet judges have not
informed juries of this power.[4]
In these two cases the juries came to realise that
it was within their power to acquit. By contrast,
perhaps it was an ignorance of this power which led
to a miscarriage of justice in the recent case of the
Cambridge Two. A malicious prosecution of two workers
at a hostel for the homeless resulted, last year, in
their being convicted by a jury of allowing heroin to
be supplied on the premises, when in fact they had
taken the usual professional anti-drugs measures.
Ruth Wyner and John Brock were sentenced to five and
four years in jail respectively, Judge Jonathan
Haworth condemning "their 'perverse' refusal to
show remorse."[5] Haworth
did not bother to remind the jurors of their moral
duty to acquit if their consciences so demanded, and
his summing up was tilted against the accused -
perverse on the part of the judge, rather, and a
clear case of institutional fascism.[6]
Lawful excuse
The same principles underpin
defence of self, others, property or prevention
of crime. They share the same requirement that
force used is such as is reasonable in the
circumstances… [and] that while the
defendant is judged according to what he believed
the circumstances to be, he will only be able to
claim the benefit of this defence if he has acted
(objectively) reasonably in the light of those
circumstances.[7]
The use of reasonable force becomes lawful when
someone has a genuine belief in its necessity, even
if that belief turns out to have been mistaken.[8] This is what is called a subjective
test, where it is the defendant's honesty that is at
issue. But case law as well as juries' assessment of
the facts of a particular situation introduce an objective
element. Firstly, the degree of force used has to be
objectively reasonable (rather than merely what the
defendant themselves deemed necessary). Secondly,
"the more unreasonable the mistake then the more
unlikely it is that the jury will believe him"[9]; or put another way, "The [defendant's]
belief does not have to be a reasonable one, but the
reasonableness or otherwise of the accused's belief
will be relevant to the question of whether he
actually held that belief."[10]
A surprising and momentous success was achieved
last year when Sheriff Margaret Gimblett actually
directed the jury to acquit the defendants on the
basis of 'lawful excuse' (as it was understood to
exist under Scottish law). The three women from
Trident Ploughshares walked free from Greenock
Sheriff Court after having persuaded Gimblett that
the damage which they had caused to property at the
Faslane nuclear submarine base was not 'malicious'
but justified due to the women's sincere belief that
nuclear weapons were illegal under international law.[11] This triggered howls of
disbelief - despite the fact that a 1996 ruling of
the International Court of Justice seriously
questioned the legality of nuclear weapons - and
prompted the Lord Advocate to order a review of the
case, currently being heard at the High Court in
Edinburgh. Whatever the result of this review, the
women's acquittal cannot be reversed, and Sheriff
Gimblett's assent to hearing detailed, expert defence
arguments for the illegality of nuclear weapons has
opened a Pandora's Box.
When invoking 'lawful excuse', the reasonableness
of both the motivating beliefs and the subsequent action
are in question. In an extreme case, if the action
could endanger life or limb, then rather than having
the chance of being acquitted on the basis of lawful
excuse (under s.5(2)(b) Criminal Damage Act 1971, for
example) you could be accused of acting recklessly
and be convicted accordingly of a serious offence (aggravated
criminal damage, for example, to which the s.5 excuse
- with good reason - does not apply). Similarly, a
jury decided recently that Tony Martin had gone
beyond the bounds of self-defence against a burglar
by using unreasonable force: shooting the intruder in
the back while he was apparently attempting to flee.
The reasonableness of the action taken also
includes the extent to which it directly intervenes
against an immediate danger. This is more clearly an
objective test compared with the rather subjective
test of genuineness of belief.[12]
For example, two activists were charged, under the
Criminal Damage Act 1971, with intent to cause damage
to the perimeter fences of military bases:
Part of Mrs Hill's evidence was
that she believed the purpose of the bases was to
monitor movements of Soviet submarines and in the
event of hostilities breaking out the base would
be the subject of a nuclear strike with resulting
devastation in the area. She lived about 40 miles
away.
Consequently her property and that
of her friends and neighbours in Pembrokeshire
would be put at risk should there be any such
nuclear strike. If enough people cut the
perimeter wire the Americans might consider the
base was too insecure to be maintained. They
might remove their base and thereby remove the
reason for Soviet attack or else the UK
Government would take steps to remove the need
for such bases by abandoning the idea of nuclear
defence.
Thus, at the end of that series of
hypothetical events, her own property or that of
her neighbours would avoid destruction.[13]
The judge concluded that, when viewed
'objectively', the causal connection between the
intended action and the defence of property was too
"tenuous and nebulous" for the intended
action to be considered reasonable; furthermore,
there was "no evidence that there was that
immediate danger."
In the 1996 case of the Hawk Four (introduced
above), the judge at first attempted to gag the
defence. He said he accepted that their belief was
genuine and so refused to allow witness evidence that
the Hawk jets were to be used in human rights abuses.
But after the defence argued - correctly - that this
evidence was necessary in order to demonstrate the
reasonableness of their subsequent action, the
evidence was allowed to be presented. After
explaining how a long campaign had failed to persuade
the British government against delivery of the jets,
which was then imminent, the jury decided in their
favour. However, in an earlier very similar
Ploughshares case, the judge remained unmoved in his
refusal to allow witness evidence on the eventual use
of the Hawk jets. A first trial resulted in a hung
jury, but after a second the defendant, Chris Cole,
was convicted and sentenced to eight months'
imprisonment.[14] It has to be
said that presently most attempts to plead 'lawful
excuse' in defence of direct action have failed.
This area of law recently received some high-profile,
if rather poor quality, media attention due to the
trial of Lord Peter Melchett, executive director of
Greenpeace, and twenty-seven others who had attacked
a field of genetically modified (GM) maize owned by
Aventis (formerly AgrEvo). Claiming the lawful excuse
of prevention of damage to neighbouring property (cultivated
land and plants), evidence was presented to the jury
as to the reality of the danger and thus the genuineness
of a belief in the danger, its immediacy
and the reasonableness of the action thus
taken. GM pollen could travel long distances and
contaminate other non-GM organisms; the GM crops were
about to flower at the time of the action; and for
some time before uprooting the crops and bagging them
(to prevent the release of GM pollen) several other
avenues had been taken in the attempt stop the crops
from being grown. The jury acquitted the defendants
of theft and was unable to decide on the charge of
criminal damage. The Crown Prosecution Service has
now decided to launch a re-trial.[15]
Assault on the jury
...And so, the government embarks on a warpath
against its own people: corporate-, weapons- and
biotech-friendly New Labour will have none of this.
While Jack Straw leans back in contentment over his
wide scope for discretion, as Home Secretary, to have
the final word on many legal cases - such as whether
or not to extradite General Pinochet to Spain - he is
quite happy to put his full weight behind the
Criminal Justice (Mode of Trial) Bill, intended to
reduce the people's involvement in administering
justice, by restricting defendants' scope to opt for
a Crown Court trial by jury. (He gets high on power,
does our Jack...)
It is precisely the 'middle-ranking' charges -
which include those most frequently levelled at the
activist - that the Bill addresses. Currently, a
defendant can choose between summary justice before
the magistrate's court and a more thorough trial by
jury in the Crown Court. In future, the new Mode of
Trial Act would leave this decision to the magistrate
(although allowing an appeal against it). The
proposed savings in time and money, minimal even as
they are, have been hotly disputed. Are justice and
popular empowerment so cheap? Obviously, to this
government they are.
April 2000
References:
[1] The Rt. Hon. Lord Devlin, The
Conscience of the Jury, Law Quarterly Review,
July 1991, Vol.107, p.404.
[2] "[T]he Indonesian Government
had given assurances that the planes would not be
used against the East Timorese, and the British
Government had accepted this and granted an export
licence. Acquitting the women was therefore a
criticism of the British Government's position on the
issue, as well as the actions of the Indonesian
Government." (Catherine Elliot & Frances
Quinn, English Legal System, 2nd edn, London
& New York: Longman, 1998, p.148.) Thanks to
Andrea Needham. For an account of this action, see
also John Pilger, Hidden Agendas, London:
Vintage, 1998, pp.313-322. (N.B. A jury's decision
has virtually no force as a legal 'precedent'.)
[3] Richard Norton-Taylor, The
Ponting Affair, London: Cecil Woolf, 1985, pp.104,
110.
[4] The judge presides, but the
jury decides where justice lies, by James Gobert,
Independent, 5.7.91 [My emphasis.] A standard law
textbook states, "Juries are never actually told
that they can acquit if their consciences suggest
they should: their instructions are quite the
opposite…" (Elliot & Quinn, p.149.)
[5] Jailed for doing her job, Observer 2.1.00.
[6] Judge Haworth said in summing up,
"[Y]our task is not to determine motive or to
try and tackle moral dilemmas", Regina v
Wyner and Brock, summing up, 16.11.99, p.2. 'I'm no martyr. No one told me I'd land
in jail.' Observer 27.2.00.
See campaign website at http://www.cambridgetwo.com/
[7] Alan Reed & Peter Seago, Criminal
Law, London: Sweet & Maxwell, 1999, p.217. (This
discussion derives mainly from Reed & Seago, pp.206-217.
See also Elliot & Quinn, Criminal Law, 3rd
edn, Harlow: Pearson, 2000, pp.263-269). Thanks to
Kiron Reid, Lecturer in Law and Convener of the Criminal Justice Unit, School of Law, University of Liverpool.
[8] s.3 Criminal Law Act 1967, General
Note: "[O]rdinary rules applicable to mistake of
fact would be available, and accordingly a person
would be justified in using such force as was
reasonable in the circumstances as they appeared to
him."
[9] Reed & Seago, p.212.
[10] Peter Hungerford-Welch & Alan
Taylor, Sourcebook on Criminal Law, London:
Cavendish, 1997, p.275. [My emphasis.]
[11] Stephen C.Neff, Idealism in
Action: International Law and Nuclear Weapons in
Greenock Sheriff Court, The Edinburgh Law Review,
Vol. 4, Issue 1, Jan 2000, pp.74-86; p.84. Neff
laments the poor quality of the media reports on this
case.
[12] Elliot & Quinn, 2000, p.163.
[13] Directions to convict
justified through weakness of defence evidence,
Law Report, Times 6.10.88.
[14] Independent on Sunday, 21.7.96, Campaigners
face jail for raid on military jet.
[15] Guardian, Independent, Telegraph and Times, 20.4.00;
Thanks to Sarah Burton, Director, Political &
Business Affairs, Greenpeace UK (http://www.greenpeace.org/). Greenpeace activists face new trial over
attack on GM crops,
Independent 3.5.00.
By Keith Fisher
[email protected] Further web links:
| Lawful
excuse |
| 17.10.01 |
Guardian |
GM
crop protesters cleared in high court test
case. ‘… The
jury accepted the Greenpeace defence that
criminal damage was justified if it was used
to defend a greater public interest, namely
preventing the contamination of the
environment by genetically modified organisms.
Following this trial, all
charges of criminal damage against GM
protesters which might have to go before
juries were dropped in favour of aggravated
trespass which could be dealt with by
magistrates.’ |
| 28.6.01 |
Guardian |
Court
victories for GM crop rebels put CPS on the
spot |
| 28.6.01 |
Guardian |
The
trials and tribulations of green activists |
| 14.6.01 |
Independent |
Jury
clears Greenpeace incinerator protesters |
| 13.6.01 |
Guardian |
Magistrates
acquit GM crop protesters |
| 31.3.01 |
Guardian |
Faslane
nuclear ruling overturned |
| 22.1.01 |
Guardian |
Perverting
the course of justice? 'They
admitted it. The judge said they had no
defence. But last week, two people who
attempted to trash a nuclear submarine were
acquitted. Marcel Berlins and Clare Dyer on
why more and more juries are returning
'perverse' verdicts.' |
| 19.1.01 |
Guardian |
Trident
protesters found not guilty |
| 10.10.00 |
Telegraph |
I
may be wrong, admits sheriff in Trident case |
| 9.10.00 |
BBC |
Trident
'legal' says Crown |
| 9.10.00 |
Guardian |
Nuclear
protesters become test case. 'Lord advocate queries 'justified'
defence for Trident lab attack.' |
| 28.9.00 |
Guardian |
Our
nuclear programme is illegal. 'The high court is to examine a
remarkable ruling against Trident.' |
| 21.9.00 |
Guardian |
Greenpeace
wins key GM case. 'Not
guilty: Protesters who destroyed crops are
cleared.' |
| 21.9.00 |
Guardian |
Trident
protesters may face retrial after non-verdict |
| Trial
by jury |
| 16.10.01 |
Independent |
Campaigners
win GM crop test case ruling. ‘Ms Tilly said she was "furious"
because of "the manipulation going on
behind the scenes to keep us out of a jury
trial".’ |
| 14.10.01 |
Observer |
Is
our jury system so perverse? 'No, it's not... it is juries, with
their independence, that frequently save the
law from being an ass.' |
| 9.10.01 |
Guardian |
Criminal
justice review urges removal of right to
trial by jury. 'Appeal
judge suggests 300 reforms to system of
criminal trials.' |
| 13.4.01 |
Guardian |
Juries
aren't that stupid, m'lud. 'The
Sunday Mirror is not the only one guilty of
an 'error of judgment.' |
| 22.1.01 |
Guardian |
Juries
in jeopardy |
| 28.12.00 |
Times |
Law
Report - Defendant's belief is insufficient
defence |
| 22.12.00 |
Independent |
Hostel
managers lose appeal in drugs case |
| 21.11.00 |
Times |
Why
Auld's review deserves to come under attack.
'The Lords should prepare
themselves for another battle over the trial-by-jury
system, says Joel Bennathan.' |
| 9.10.00 |
New Statesman |
A
jailbreak out of an Ealing comedy. 'The judge told the jurors that they
could only consider if Pottle and Randle were
guilty in law. They had no other choice. He
was rebuked by Pottle in a magnificent speech
from the dock. No judge, no prosecutor, no
force on earth could stand between English
jurors and their conscience, he said.' |
| 25.8.00 |
Independent |
New
law will force juries to give reasons for
verdicts |
| 12.7.00 |
Telegraph |
Charity
pair are freed to appeal over heroin case |
| Hawk Jets |
| 7.10.00 |
Independent |
Indonesia
uses British jets to attack tribesmen |
