Its the decision of the Jury not of the Crown.
As long as a case has to be scrutinised by twelve honest men, defendant and plaintiff alike have a safe-guard from arbitrary perversion of the law. Old principles has been preserved and endure to this day, that law flows from the people, and is not given by the King. Both sovereign and subject were in practice bound by the Common Law, and the liberties of Englishmen rested not in any enactment of the State, but on immemorial slow-growing custom declared by juries of the free men who gave their verdicts case by case in open court.
(from Winston Churchills A history of the English Speaking People (Vol. I, pg. 219 and Vol. I, p225).
In 1980 in the U.S. the Berrigan Brothers were convicted by a jury. One of the jury members afterwards stated: We convicted them on three things, and we really didnt want to convict them on anything. But we had to, because of the way the judge said the only thing that you can use is what you get under the law I would have loved to hold up a flag to show them we approved of what they were doing. It was very difficult for us to bring in that conviction.
If that jury member had been told the right to nullification the Berrigan Brothers would have been acquitted in 1980.
What is the nullification principle?
Juries have an old but not often upheld right to nullify the law. In practice, what it means is that a jury can decide that a given law is stupid, obnoxious, oppressive, etc., and acquit the defendant regardless of the facts of the case, and regardless of the Judges instructions. This is already the right of the juries in England, but unfortunately nobody knows about it. The Government and Judges have done nothing to inform jury members of this right in the last century. In the latter part of the 18th century judges and state law were increasingly moving against nullification. Today in the US no officer of the court is allowed to tell the jury of its veto power.
In 1895 - in cases against labour leaders trying to organise unions - the US Supreme Court upheld the principle, but ruled that juries were not to be informed of it by defence attorneys, nor were judges required to tell them about it.
For more that 600 years there has been no clearer principle in English (and American) constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused, but it is also their right and their paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive Lysander Spooner, Essay on Trial by Jury).
(In 1852 it was hopeless to convict anyone under the Fugitive Slave Law, because that law was so obnoxious to a large portion of people. In response the Judges began to question jurors to find out if they were prejudiced against the Government, dismissing any that were)
If a jury feels the law is unjust we recognise the undisputed power of the jury to acquit, even if the verdict is contrary to the law as given by a judge, and contrary to the evidence. (4th Circuit Court of Appeals, US v Moylan, 1969).
When a jury acquits a defendant even though he or she clearly appears to be guilty, the acquital conveys significant information about community attitudes (Sheflin and Van Dyke, Law and Contemporary Problems 43, No. 4, 1980).
Many people nowadays feel the Government has overstepped its power in different ways and that there must be protection for the natural rights of citizens. The rights to protest, dissent and uphold higher principles of International Law have to be defended and it cannot be left to the Government to decide such matters without the mediating effect of a jurys judgement of fairness.
The conscience of each Jury member.
If a juror feels that the statute involved in any criminal offence is unfair, or that it infringes upon the defendants natural god-given unalienable or constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no-one is bound to obey an unjust law. (Chief Justice Harlan F. Stone).
In John Peter Zengers case - his newspaper accused the Royal Govenor of New York colony of corruption - it was argued thatthe jury were judges of the merit of the law, and should not go against good conscience to convict Zenger of violation of such a bad law. The law made it a crime to publish any statement, true or false, criticising public officials, laws or government. The Judge ruled that the truth was no defence. His case helped establish the right to freedom of the press.
Jurors may believe a law to be unconstitutional, or fundamentally unfair, or misapplied in the case at hand. In order to fulfil their responsibility to the defendant, the community, and their own consciences, they must not set aside their own judgement of right and wrong.
It is not only the Jurors right, but his duty to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the direction of the court. (Americas 2nd President John Adam, 1771) (Yale Law Journal, 1964:173)
Jurors cannot be punished for their verdicts. The jury has a right to judge both the law as well as the fact in controversy (John Jay, the first Chief Justice of the U.S. Supreme Court in Georgia v. Brailsford 1794).
A jury has a veto on proposed laws. Our freedoms of religion, peaceable assembly and speech all trace to our right to a trial by a jury of peers, a jury not intimidated by the Government.
In 1670 William Penn was arrested for preaching a Quaker sermon, by doing so breaching the law of England, which made the Church of England the only legal church - the Jurors were imprisoned for refusing to convict him, but later it was established in Court that jurors can never be punished for a verdict which displeases the judge.
Ignorance and compliance from people, is the greatest enemy to freedom.
If a jury accepts to follow the instructions of the Judge to follow his suggestion alone to what the law is, then that juror has accepted the exercise of absolute authority of a government employee. The juror has in that way surrendered a power and right that once was the citizens safeguard of liberty. This safeguard has more or less been lost because its possessors failed to stretch forth a saving hand while there was time.Citizens can reinforce this rule of jury nullification, but first of all, that is only if the citizens are aware that the responsibility for an oppressive government is on the shoulders of complacent citizens themselves. Ignorance and compliance are the only reason why citizens will be oppressed by their government and only citizens can do something to change the status quo.
This will also be the case for International Humanitarian law if citizens dont protects these right and duties of ordinary people - the Government or its employee certainly feels no need to do so. The big question is: How do citizen uphold these rights, if the police and courts will not help to bring these rules into force. So far many things have been tried - but until a determination of how to uphold these laws is made by those these laws are intended to protect, citizens have no other choice but to exercise their right to intervene themselves. It is in the end of the day a matter of public conscience. Remaining in silence will be complicity with the Government.
Bring truth into light.
Judges in England (and America) have for the last hundred years tried to hide this jury power from the people, and now actively attempt to suppress it.
It is time to bring this kind of undemocratic and dangerous secret into the light, because it only takes one person aware of that right in order to hang a jury. It is not up to a government official to tell citizens how to live our lives and how to protect ourselves or our friends somewhere from being attacked by the military forces of the same government.
If the jury has no right to judge on the justice of a law of the Government, they plainly can do nothing to protect the people against the oppressions of government; for there are no oppressions which the Government may not authorise by law (Spooner 1852).
People need to be informed that juries have the right to nullify the law, since this is unfortunately not a common knowledge conception of the public as to the rights and duties of a Jury. However, lack of information is not enough to take away an already existing rule. This rule goes back to the Magna Carta of 1215 - King Johns oppression became so great, that the nation rose against the ruler of England and compelled their King to pledge that no freeman would be punished for a violation of any laws without the consent of his peers and placed the liberties of the people in their own safe-keeping. (Echardss History of England, p. 106-7). The Magna Carta has thereafter often met with hostilities from the Crown. From 1664 English juries were routinely fined for acquitting a defendant, as in William Penns case.
Although this fact seems to be a jealously guarded secret of the judiciary, it has an enormous significance in the current climate of increasingly repressive legislation which is eroding our freedoms, corrupting the system of justice and turning citizens into fearful slaves of the all-powerful Government. (Applies to British and American Law - but what about Scottish Law?). Find out what Scottish Law says about Juries nullifying the law?
Further information contact:
The Fully Informed Jury Amendment (FIJA).
The Fully Informed Jury Association,
Box 59, Helmvill MT 5984, USA
I hope this has given you interest in raising these question in public debate and with your politicians. If you find out any rules for Scotland I would like to hear from you at e-mail: email@example.com.
Please forward this to people without e-mail in your groups and to anyone else you consider interested in this case.