Human factor means juries fallible but we defend system for democracy’s sake

The Colston Four decision is a reminder that our commitment is only truly tested when a verdict to acquit seems grossly flawed.

Protesters dump the Colston statue into Bristol harbour in 2020. Picture: Getty Images

As gratifying as it is to agree with a jury’s decision, our commitment is only truly tested when a verdict to acquit seems grossly flawed.

That test came after four protesters were acquitted 10 days ago in Bristol for causing criminal damage when they toppled the statue of 17th-century slave trader Edward Colston, rolling it through the street and dumping it in the harbour.

Their actions in June 2020 were filmed, then broadcast around the world, and embraced by the Black Lives Matter protests in the US. In other words, there was no factual issue in dispute. The defendants caused the damage.

We can’t and won’t know why the jury acquitted the four defendants who argued that the statue of a slave trader was a form of hate speech and needed to be removed by the protesters because democratic processes had failed to do so.

Maybe jurors were swayed by defence pleas that they ensure, through their verdict, that they were “on the right side of history”. Maybe some were influenced by other defence arguments that their decision would “reverberate around the world”. Maybe the jury rejected the judge’s warning that they should “try this case on the evidence you heard”, adding that it would be wrong if they felt “some kind of additional burden on their shoulders”.

The Colston Four celebrate the jury’s not guilty verdict. Picture: Getty Images

A deeply flawed decision like this one is the best way to explain why a jury decision to acquit must be treated as sacrosanct, whereas jury decisions to convict can be, and frequently are, overturned. The sanctity of the jury’s decision to acquit is reinforced by the fact that, by way of contrast, if a defendant is acquitted by a judge, that decision can be appealed in limited circumstances.

The difference lies in the combination of the presumption of innocence, the preference in a just society that 10 guilty persons go free rather than one innocent person be jailed, and the rule against double jeopardy. Once tried, and acquitted by a jury of your peers, the state does not get to amass its power against you a second time.

It was predictable that some politicians would demand an appeal to overturn the Colston Four acquittal, rather than accept the decision of 12 ordinary people on a jury. Politicians have a habit of thinking themselves smarter than the rest of us, with no evidence for that smug assumption.

Had the jury’s decision in the Colston case been different, many on the right might have mentioned Magna Carta and defended the ordinary men and women of the jury, as a bulwark against state power. They could have, as The Times did, cite the fine precedent of jurors during Colston’s lifetime who were imprisoned in 1670, then freed by the chief justice, when they refused to convict two Quaker preachers, William Penn and William Mead, for unlawful assembly. As The Times also noted last week, there is a plaque at the Old Bailey commemorating this event as establishing “the right of juries to give their verdict according to their convictions”.

Instead, many on the left and right swapped positions. Because a statue of an old white man was torn down by left-wing protesters who couldn’t get rid of the statue via usual democratic processes, the Colston jury became the left’s saviour.

A phalanx of human rights lawyers cheered the jury for its wisdom. The jury’s decision is part of reckoning with a wicked past, said London’s Guardian newspaper. There was conceit too. Ian Bray, co-founder of Extinction Rebellion, twice acquitted by jurors, told The Guardian that it is a deliberate tactic of XR to cause just over £5000 damage, the legal trigger that allows a defendant to request a jury trial.

“It’s like pulling the lever of a fruit machine and you’re hoping for three pineapples,” he said. “You’ve got to get at least three jurors who won’t convict. If you’ve only got two, the other 10 are a majority who can convict, but you can’t have a 9-3 majority.”

On the right, the acquittal was depicted as a direct path to mob rule. Petitions for a retrial attracted thousands of signatures. Some Tory MPs described the “extraordinary verdict” as a “vandals’ charter” giving mobs a “dangerous licence to carry out similar acts”.

Right on cue, on Wednesday, a man in a beanie propped a long ladder up the wall of BBC headquarters in Westminster, London where he proceeded to use a small hammer to chip away at a statue of Prospero and Ariel from Shakespeare’s play, The Tempest.

“What happens if activists decide to take down Churchill’s statue in Parliament Square and dump it in the Thames?” asked Tory MP Tom Hunt. “Will they escape punishment too?”

If only it were that simple. Instead, this troublesome verdict calls for a balancing act of costs and benefits. The benefit of overturning a jury’s decision to acquit is not outweighed by the cost of undermining the jury system. In any case, you don’t get to ditch a jury’s decision to acquit when you disagree but praise it when you agree.

Those who predict that mobs will start demolishing statues after the Colston jury’s decision need to use a longer lens. If we overturn or undermine a jury’s acquittal, we essentially remove the jury as a bulwark against state power.

A state-appointed judge can direct a jury. But a jury cannot be forced to convict. That provides a powerful buttress against unjust laws, unjust prosecutions, and state power.

In answer to conservative critics of the Colston decision, Tory MP Jacob Rees-Mogg said, though he didn’t think statues should be torn down by mobs, “one of our greatest monuments is the jury system, which is the great sublime protector of our liberties”.

Though not every decision of a jury is welcome, he said, “it is such an important protector of our liberties that we must take the rough with the smooth”.

In Britain, the Attorney-General can ask the Court of Appeal to clarify matters arising from the Colston case, though this is not a retrial, and therefore does not affect the jury’s decision to acquit the four defendants. That’s a tidy way of getting legal clarity for future cases while still defending a jury’s right to acquit.

Juries need to be defended because they are, as British writer Peter Hitchens describes in his book, Abolition of Liberty, “a grave nuisance to the authorities”.

Though Hitchens has also expressed doubts about some jury outcomes, notably the guilty verdict against George Pell, he explains why our commitment to juries must remain steadfast: “For without a jury, any trial is simply a process by which the state reassures itself that it has got the right man. A group of state employees, none of them especially distinguished, are asked to confirm the views of other state employees. With a jury, the government cannot know the outcome and must prove its case. And so the faint, phantasmal ideal of the presumption of innocence takes on actual flesh and bones and stands in the path of power.”

The Pell case is the other half of the principle that a just society will prefer that 10 guilty people go free than one innocent person go to jail. Here, an appeal was possible because the jury’s verdict was guilty. Pell was in prison. A unanimous High Court found that the so-called opportunity evidence was so clear that a jury applying that evidence rationally should have concluded there was a reasonable doubt that Pell was guilty of committing the sexual abuse he was charged with.

This week, three white men who chased and murdered 25-year-old Black man Ahmaud Arbery, who was jogging in a suburban street in South Georgia in February 2020, were sentenced to life in prison. Two of the men were given no chance of parole.

This evil crime may have gone unpunished. More than two months passed without an arrest. The District Attorney, after recusing himself, sent a letter to local police arguing there was not enough evidence to convict.

There was video evidence, half a minute long, showing Arbery jogging along the suburban street at 1pm. There is a white truck, one defendant holding a shotgun, the other holding a handgun. Arbery was not armed when he was shot dead.

After hearing defence arguments that the defendants were trying to carry out a legal citizen’s arrest of a man they assumed was a thief, and then acted in self-defence, the jury delivered a guilty verdict against all three men.

Juries are not always right, for the simple reason that human beings are fallible. But, like any democracy that depends on the collective decisions of ordinary human beings, it is the least worst system of justice we have come up with.