The question for the 2025 6KBW Essay Competition will be released on 18 July 2025. Further information can be found here. To inspire any potential essayists, here are the three winning entries from the 2024 competition. The question was ‘Should a jury be told they can acquit a guilty defendant?’ Congratulations once again to Connor, Omonefe and Rustom!
1st Place: Connor Byrne
The principle of jury equity allows juries to acquit a defendant whose guilt is demonstrated by the evidence. This power is recognised in law; in Wang, for example, the House of Lords held that ‘there are no circumstances in which a judge is entitled to direct a jury to return a verdict of guilty.’ [1] The separate question of telling jurors about this power recently emerged into public discourse. In Warner, the High Court denied the Solicitor General permission to bring contempt proceedings against an activist who held a placard outside of a Crown Court informing potential jurors of the principle of jury equity. [2] In reaching this decision, Mr Justice Saini noted that a prominent plaque at the Old Bailey already informed potential jurors of the ‘right of juries to give their verdict according to their convictions.’ [3]
Following Warner, it is clear that juries can be told about this power in some circumstances. However, counsel in Warner agreed that ‘participants in the trial process cannot lawfully invite a jury to apply the principle of jury equity or indeed to inform them of it’; Saini J considered that this prohibition is ‘how the common law squares the jury equity and the oath that jurors are required to swear.’ [4] In opposition to this dictum, this essay will argue that it is right for judges to give juries some form of direction about jury equity. In doing so, an inequality for defendants will be removed, and the role of the jury will be better recognised.
The principle of jury equity strikes at the heart of what Lord Devlin considered ‘the eternal conflict between law in the abstract and the justice of the case [as being] how to do what is best in the individual case and yet preserve the rule’. [5] In the abstract, jury equity threatens the rule of law. If, as AV Dicey wrote, ‘every man […] is subject to the ordinary law of the realm’, then why allow jurors ever to render verdicts contrary to the evidence in a case? [6]Conversely, jury equity is considered an important mechanism to ‘do what is best’ in the individual case. Lord Devlin argued that jury equity operates as ‘insurance that the criminal law will conform to the ordinary man’s idea of what is fair and just’. [7] This reasoning was accepted by Lord Thomas in Goncalves, who considered Lord Delvin’s argument and agreed that jury equity ‘has its origins as a safeguard against tyranny and oppression’ [8] and ‘remains justifiable today’. [9]
For those who disapprove of jury equity, it follows that the fewer jurors are told about it, the better. In response to the decision in Warner, Scott argued that ‘[i]f juries disobey the law [or rather, their oath] they will become engines of injustice. Nobody should be encouraging them to do so.’ [10] Respectfully, this line of argument misses a salient detail. The fact is that some jurors do and will know about jury equity, whether through placard or plaque, studying law or reading a newspaper. It would be impossible, even if it were desirable, to screen out jurors who have knowledge of this power without giving the game away:
Q: Are you aware that juries can acquit a guilty defendant?
A: I am now!
Whatever one thinks of jury equity, the present state of affairs is that some but not all jurors have knowledge of this power. Therefore, some but not all defendants have the benefit of a jury which has knowledge of this power. This threatens the principle of equality before the law. In circumstances where a jury may wish to acquit against the evidence, it is a lottery as to whether the jury has the requisite knowledge to do so.
It may not be intuitive that knowledge of jury equity is a prerequisite to a jury giving a verdict against the evidence. The framing of jury equity as the last bastion of resistance against individual cases of injustice imagines that, in the face of sufficient injustice, a jury may organically realise this power and refuse to convict. This will not always be the case. The human mind does not offer up previously unthought-of actions simply because it is faced with an unjust situation. On their first day, jurors are informed of various contempts of court they must carefully avoid committing during their service. Jurors swear an oath or affirmation to ‘faithfully try the defendant and give a true verdict according to the evidence.’ [11] It is reasonable to consider that jurors may fear that breaching their oath is punishable. Moreover, it would be wrong to reserve the use of this power for cases in which jurors believe they are assuming a risk in protest of injustice. Whether jurors would be willing to accept this imagined risk speaks more to the character of the jurors than the justice of the case.
Trial by jury persists for the most serious criminal cases in England and Wales, at public expense and inconvenience to the jurors themselves. Trial by jury persists because we accept that juries play an important function in our justice system. As Lord Auld notes, trial by jury ‘commands much public confidence’ [12] due to the ‘involvement of the community in the administration of justice.’ [13] Trial by jury gives legitimacy to the criminal law by requiring members of the community to sanction convictions for the most serious offences. This function should ensure that the criminal law is, to some extent, in keeping with the values of the community it serves. If we are to be serious about these elements of the role of the jury, transparency around jury equity must be increased.
In Shipley, Lord Mansfield held that ‘it is the duty of the Judge […] to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences’. [14] Jury equity can no longer fairly be called a ‘power to do wrong’. In 2001, Lord Auld recommended legislating against jury equity, which he considered ‘a blatant affront to the legal process.’ [15] Parliament did not take up this recommendation. As jury equity is recognised by law, it is right in principle that judges should inform juries of one of their legal powers. To conceal this power by omission borders on paternalism and demonstrates a lack of trust in the jury’s willingness to ‘do right’.
However strong the principled argument, a jury direction that ‘you have the power to acquit a guilty defendant’ presents clear problems. Firstly, a reasonable and grave concern is that this direction may be interpreted as a license to render verdicts according to a range of extra-legal factors, including convicting according to conscience or against the evidence. Secondly, giving such a direction, despite its truth, may confuse the jury or undermine the stated endeavour of the trial as hearing and considering evidence. Lord Auld raised the issue of jury directions in argument against jury equity, writing that ‘[t]o appreciate the full impact of [an express power of nullification] one has only to consider the sort of direction that it would require judges to give to juries’. [16] However, it is entirely possible to propose directions which better position juries to utilise the principle of jury equity, if necessary, without plainly stating, as Lord Auld feared, that juries ‘need not convict if they disagree with the law or with the decision to prosecute.’ [17]
This essay concludes with those proposed directions. Firstly, ‘I cannot direct you to convict the defendant in any circumstances.’ This is the principle in Wang. Secondly, ‘I cannot punish you for your verdict.’ This is the principle in Bushel’s Case, publicly celebrated by way of aforementioned plaque at the Old Bailey. [18] These directions provide necessary foundational knowledge in order for juries to consider acquitting against the evidence, if the issue arises, without fear of punishment or requiring cognitive leaps. These directions would not confuse jurors, or undermine the trial process, or appear to contradict the direction to render verdicts according to the evidence. We trust juries with so much. If we are to have the courage of our convictions when it comes to the importance of trial by jury, we must trust jurors with a little knowledge that will better enable them to exercise all of their available powers.
[1] [2005] UKHL 9 [17].
[2] [2024] EWHC 918 (KB) [41].
[3] ibid [17].
[4] ibid [19].
[5] P Devlin, Trial by Jury (Stevens 3 edn 1966) 124.
[6] AV Dicey, Introduction to the Study of the Law of the Constitution (5th edn, Macmillan and Co 1897) 185.
[7] (n 5) 160.
[8] [2011] EWCA Crim 1703 [37].
[9] ibid [36].
[10] M Scott, ‘I Don’t Stand With Trudi Warner’ (Barrister Blogger, 24 April 2024) < https://barristerblogger.com/2024/04/21/i-dont-stand-with-trudi-warner/ > accessed 25 August 2024.
[11] Criminal Procedure Rules 2020 r 26.5(9).
[12] R Auld, Review of the Criminal Courts of England and Wales: Report: October 2001 (Stationery Office 2001) [1].
[13] ibid [10].
[14] (1784) 99 ER 774, 824.
[15] (n 12) [105].
[16] (n 12) [108].
[17] ibid [108].
[18] (1670) 124 ER 1006.
2nd Place: Omonefe Orogun
In criminal trials, jurors often grapple with more than just the question of legal guilt. They also reflect on the moral implications of a defendant’s conduct. In some cases, a jury may deem a defendant’s conduct lawfully wrong but not morally so.[1] Alternatively, they might consider the law itself to be unjust or misapplied in their particular case.[2] This can ultimately lead to jury nullification, where a jury acquits a defendant despite being convinced of their guilt beyond a reasonable doubt, opting to follow their moral judgment and sense of justice rather than the strict letter of the law.
This departure from the jury’s core fact-finding responsibility, resulting in the acquittal of an otherwise guilty defendant, makes jury nullification a contentious issue. In England and Wales, jury nullification is not punishable. Consequently, debate centres on whether jurors should be informed of their nullification power. At present, judges must direct juries to base their verdicts solely on whether the prosecution has proven guilt beyond a reasonable doubt.[3] Thus, any act of jury nullification necessarily involves jurors intentionally disregarding these judicial directions.
Against this backdrop, this essay submits three arguments. First, informing jurors of their ability to nullify could undermine the rule of law. Second, there are more appropriate ways of addressing injustice than jury nullification. Finally, telling jurors they can acquit guilty defendants could overburden them.
Undermining the Rule of Law
As expressed by AV Dicey, a fundamental tenet of the rule of law is that the law must apply equally to everyone.[4] Informing jurors of their ability to nullify poses a direct threat to this principle as jury nullification promotes the inconsistent application of the law, based on jurors’ personal beliefs or biases. While one jury may nullify due to their collective beliefs, another facing the same evidence could decide differently, adhering strictly to the law.
One of the most well-known examples of jury nullification in English law occurred in the 1985 trial of Clive Ponting. Ponting, a civil servant, leaked documents exposing the British Government’s misleading statements regarding the sinking of an Argentine warship during the Falklands War.[5] Charged under the Official Secrets Act 1911, Ponting confessed to the offence but advanced that he acted in the public interest.[6] Despite the judge informing the jury that Ponting had no legal defence, they acquitted him, swayed by his moral stance.[7] As one might expect, this case is often heralded as a positive example of jury nullification.[8] However, another jury, abiding by its role by only assessing the presented evidence, would likely have convicted him, highlighting the inconsistency that jury nullification could introduce to the criminal justice system.
Further, informing jurors of their ability to nullify could perpetuate existing systemic biases. This issue was starkly evident during the civil rights movement in the United States in the 1960s, when predominantly white southern juries notoriously acquitted defendants accused of racially motivated crimes.[9] Although this form of jury nullification is widely criticised, it demonstrates how the practice can uphold prejudiced beliefs that have no place in society nor within the criminal justice system.
So, despite proponents of jury nullification contending that it enables jurors to correct injustices,[10]routinely informing jurors of their ability to nullify could shift the rule of law towards a rule of men. Rather than being founded on subjective beliefs, verdicts should be grounded in objective assessments of evidence and there is a definite need for the consistent application of criminal law. While various studies have shown that jurors’ decisions are often influenced by both conscious and unconscious biases,[11] no system can be perfect, and the risk of unequal treatment provoked by telling jurors they can acquit a guilty defendant cannot be understated. Therefore, to ensure consistency and fairness, it is imperative that the concept of jury nullification is not explained to jurors and that jurors strictly assess factual evidence.
Limits in correcting injustices
Some proponents of jury nullification submit that it is an essential tool for correcting injustices in the criminal justice system. However, this argument does not account for other democratic avenues available for bringing about legal reform. Campaigning, for example, is a powerful method of advocacy that has historically led to significant changes to the law that were once considered immutable. This is exemplified by the ‘Snowdrop Petition’ grassroots campaign leading to the introduction of the Firearms (Amendment) Act 1997, which effectively criminalised the private ownership of handguns in Britain.
It is recognised here that not all campaigns result in immediate, or any, legal reform. Yet, this does not indicate a failure of the democratic system. If every campaign led to changes in the law, the legislative process would be destabilised. In particular, the criminal justice system would be subject to perpetual revision based on shifting public sentiments.
Moreover, there are established oversight mechanisms within the criminal justice system aimed at preventing or rectifying injustices. These include appeals to higher courts, reviews by the Criminal Cases Review Commission and the Unduly Lenient Sentence scheme. These mechanisms provide essential checks that protect individual rights while maintaining the legislative integrity set by Parliament’s elected representatives.
Importantly, a significant aspect of jury verdicts is that, unlike prosecutions, they cannot be reviewed. This principle traces back to the landmark Bushel’s case of 1670, which established the importance of allowing juries to deliberate and return verdicts independently without interference.[12] Although this rationale is sound, the fact that jury verdicts cannot be reviewed also means that jury nullifications are beyond oversight. This could be harmful, particularly if jurors are informed of their ability to nullify and choose to do so, potentially without fully appreciating the implications. Thus, juries should render verdicts based on the evidence and the law as directed by the court, trusting that there are more appropriate channels for addressing unjust laws.
Excessive Burden on Jurors
Finally, making jurors aware of their ability to nullify may unnecessarily complicate their primary responsibility of fact-finding by imposing another implicit task of assessing the fairness of the law. This additional burden could cause significant confusion during deliberations, as jurors may struggle to separate their personal opinions about the law from the facts and merits of the case. The criminal justice system relies on a clear division of responsibilities: Parliament creates criminal offences via statutes, judges oversee trials and jurors assess facts to determine guilt. Jurors are typically not legal experts. Rather, they are chosen for their ability to impartially judge facts – not to evaluate or critique laws. If jurors believe they are expected to consider the fairness of the law, trials could become longer as they grapple with understanding legal principles to a needless extent. In turn, this could increase deliberation times, the number of hung juries, and critically, the need for retrials. This would place further pressure on the criminal justice system, which is already under severe strain.
Conclusion
In conclusion, jurors should not be told they can acquit a guilty defendant. As demonstrated, this practice could undermine the rule of law by disrupting the objective, consistent and equal application of the law. Furthermore, more appropriate and well-established channels exist for jurors to address perceived injustices and push for legal reform. Lastly, informing jurors of their ability to nullify could also complicate their primary duty of assessing facts, which could further strain the criminal justice system. Overall, while it may appear to be a sound solution to complex legal and moral issues, advising jurors that they can acquit a guilty defendant risks weakening the rule of law and the criminal justice system.
[1] Jason Scott and others, ‘Juror Decision Making and Euthanasia: Exploring the Role of Jury Nullification, Manner of Death and Defendant-Decedent Relationship’ (2023) 126 Psychological Reports 3052.
[2] Liana C Peter-Hagene and Chasity L Ratliff, ‘When jurors’ moral judgments result in jury nullification: moral outrage at the law as a mediator of euthanasia attitudes on verdicts’ (2021) 28 Psychiatry, Psychology and Law 27.
[3] Judicial College, ‘Crown Court Compendium Part I (July 2024)’ (Courts And Tribunals Judiciary, 31 July 2024) < https://www.judiciary.uk/wp-content/uploads/2024/07/Crown-Court-Compendium-Part-I-July-2024-1.pdf> accessed 05 September 2024.
[4] Albert V Dicey, Introduction to the Study of the Law of the Constitution (Macmillan 1885).
[5] Geoffrey Bindman, ‘Blowing the right whistle’ (2007) New Law Journal 7270 New Law Journal <https://www.newlawjournal.co.uk/content/blowing-right-whistle> accessed 03 September 2024.
[6] ibid.
[7]ibid.
[8] ibid.
[9] ‘From Slavery to Segregation’ (Equal Justice Initiative) <https://segregationinamerica.eji.org/report/from-slavery-to-segregation.html> accessed 04 September 2024.
[10] Avaia Williams, ‘The Quiet Revolution – Should Jurors Defy The Law?’ (Nightingale Rights Initiative, 30 August 2023) <https://nightingalerights.com/2023/08/30/the-quiet-revolution-should-jurors-defy-the-law/> accessed 01 September 2024.
[11] UK Parliament, ‘Unintentional Bias in Court’ (UK Parliament, 22 October 2015) <https://researchbriefings.files.parliament.uk/documents/POST-PN-0512/POST-PN-0512.pdf> accessed 03 September 2024.
[12] Williams (n 10).
3rd Place: Rustom Ahmad
For several reasons, there is a public interest in informing a jury that they can acquit a guilty defendant, despite the apparent risks of institutional and moral harm. Chiefly, it would help the courts mitigate the risks of perverse verdicts by circumventing avenues for influencing juries in an age where information has never been more ubiquitous. It would also help cultivate a greater culture of judicial accountability and self-responsibility among the public by inviting them to consider themselves as stakeholders of the justice system. Additionally, informing the jury of their full powers of acquittal would help re-emphasize conscience in the justice system more explicitly and soberly, which would strengthen rather than diminish the legal system in the long term.
A scenario where a jury acquits a guilty defendant is referred to as jury equity, jury nullification or a perverse verdict. The provenance of this rule is in Bushel’s Case in 1670, where two defendants, William Penn and William Mead, were charged with preaching to an unlawful assembly. The jury was punished by the recorder of the case for refusing to give a verdict against the two men, and were subsequently locked up without food, water and heating for three days. Lord Chief Justice Vaughan held in the judgement that “It is absurd a jury should be fined by the judge for going against their evidence”[1]. In this case, we see that the genuine independence of the jury is contingent on the scope of their powers, which includes the ability to acquit a guilty defendant. However, juries are informed during trials of their role as judges of facts, and that they must determine the culpability of a defendant solely on the evidence presented to them. As such, juries are generally uninformed of the full scope of their powers of acquittal.
The dangers of informing juries of their ability to acquit guilty defendants was most deftly encapsulated by Lord Mansfield in R v Shipley. He hastened to note that in passing a verdict contrary to the facts the case, the jury “usurp the judicature of law”. He reminds us that uncertain law harms the integrity of the justice system, and that a jury deciding by discretion rather than by facts of law causes them to be “liable to no review, and subject to no control”. In addition, juries deciding by conscience than by facts further inflames attempts to externally influence legal outcomes through various mediums of information[2]. This degrades the predictability and reliability of the justice system, as well as promotes more unjust outcomes in individual cases.
Lord Mansfield’s assessment was, in my view, correct and ought to be reapplied for the modern age. More than any other period in legal history, it is in the interest of the general public to minimize the possibilities of jury equity, as retaining the predictability of cases is becoming increasingly difficult. In 2021, a jury acquitted a group of Extinction Rebellion protesters for causing criminal damage to the headquarters of the Royal Dutch Shell oil company[3]. However, in 2024, another jury returned a verdict of guilty to a group of Extinction Rebellion protesters who had caused criminal damage to a building of JP Morgan investment bank in London[4]. The circumstances surrounding the two cases were almost tantamount, but the variation of outcomes occurred in the backdrop of a prominent but constantly shifting discourse on environmental responsibility, which may have influenced the verdicts of the juries. Uncertainty regarding the possible consequences of climate activism is a byproduct of perverse verdicts, and may be repeated for other controversial issues.
It is therefore prudent to minimize the caprice of juries. However, failing to inform the juries of their powers is, in my view, insufficient for this goal, especially when considering the developing landscape of information. In many ways, the unspoken rule of omitting to inform the jury of the full scope of its power to acquit is a relic of a period where access to information in a free press had frontiers. Contemporarily, we are in an unprecedented position where we have access to more information than in any other period in history, thanks to technology and the internet. This saturation of information is precisely the danger, because if the courts fail to inform the juries of their power of jury equity, then it is almost certain that another, likely partisan, party will. There is no shortage of tactics to engender biases or subtly influence the processes and decisions of the jury, which is made possible by the exponential growth of information mediums. Rather than reduce unpredictability, the current status quo is unprepared to face the modern challenges of information, as seen in the previously mentioned judgements on environmental groups. The dilemma facing the courts is simple; either they inform the jury of its full powers of acquittal in the most neutral manner possible, or another party with a partisan aim will.
Another motivator for informing the jury is that it would spur, rather than diminish, the integrity of the justice system, as it would encourage a greater culture of accountability both within juries and the public, thus reflecting the full costs and responsibilities of a democratic order. The failure to inform the jury of its power to acquit a guilty defendant is an omission. However, no democratic order can survive by relying on omissions and misrepresentations. The jury system is accepted because democracy and public participation is accepted, along with its risks[5]. To mitigate those risks, we must be forthright and transparent with the public about its powers, responsibilities, and clear guidance about perverse judgements, why they are undesirable, and why it should only be considered in exceptional circumstances. This culture of accountability, responsibility and transparency is what makes our democratic order function. There is no reason why we ought to abandon pursuing a culture of civic virtue in the legal system. By embracing democratic accountability within the jury we can enhance the public’s legal awareness. This would invite the public to cultivate its ties with the legal system and see itself as stakeholders and custodians of the legal system’s integrity, which would invite juries to approach legal charges maturely, fairly and more objectively, as would any stakeholder in a system’s success.
Moreover, jurists must, in my view, begin to reconsider the central role that conscience has in the preservation of the justice system, and informing the juries of their power of acquittal can help re-orient the role of conscience at critical junctures of the law’s development. Dworkin notes that the public is a distinct moral agent, around which forms the legal order. They see in the codes and laws a reflection of their own norms and values[6]. Informing the jury of its full powers of acquittal is one exercise of this concept, as it ensures the law more closely mirrors the public’s broad moral consensus. The cognition of jury duty as a civic duty is contingent on the degree that the public recognizes the law as an extension of their own morals and conscience, and that they are not merely observers, but active participants in the legal order. This element of conscience in the law invites greater attachment to the law by the public while reminding the public of their responsibility to heed their conscience at moments when the law greatly diverges from what is moral and just, such as in Bushel’s case. This helps preserve morality as a central element of the legal system, which only strengthens the legal system by ensuring its perceived validity and primacy.
To conclude, the courts must face the facts of changing times or risk proliferating the very consequences it wishes to avoid, which are an unreliable justice system, and unjust outcomes for victims and defendants. There are risks to informing juries that they may acquit guilty defendants, but they are necessary elements of a justice system accountable to democratic and moral inputs. Democratic accountability goes both ways, and the public must be treated maturely and transparently if we are to cultivate a culture of legal responsibility among juries. This is especially necessary in the face of growing avenues of influence in the age of technology and the internet. Above all, we should champion conscience in the law if we are to exercise it wisely. Conscience creates a system of public accountability to ensure the law’s perceived legitimacy, while promoting a shared concept of a moral community.
[1] (1670) 124 ER 1006
[2] (1784) 4 Doug 73
[3] ‘UK jury clears climate activists of damaging Shell offices’ (France24, 23 April 2021) https://www.france24.com/en/live-news/20210423-uk-jury-clears-climate-activists-of-damaging-shell-offices accessed 17 August 2024.
[4] Kaye Wiggins, ‘A-Level results widen attainment gap between north and south of England’ Financial Times (London, 17 August 2023) https://www.ft.com/content/90327222-e040-4311-9ea8-83df7b546356 accessed 17 August 2024.
[5] John Gastil and Dennis Hale, ‘The Jury System as a Cornerstone of Deliberative Democracy’ in R Levy, H Kong, G Orr, and J King (eds), The Cambridge Handbook of Deliberative Constitutionalism (Cambridge University Press 2018) 233.
[6] Ronald Dworkin, Law’s Empire (Harvard University Press 1986) 189, 427.
