The church in England was worried. Radicals were popping up everywhere, preaching all sorts of new religious ideas. It was illegal to do this in 1670, so when two Quakers, William Penn (who would later be party to founding Pennsylvania) and William Mead, stood in Grace Church Street and spoke to their different beliefs, they were soon in trouble. The two Williams were hauled up before a judge and jury. Extraordinarily happily for our two Quakers, this jury was principled, brave, and wonderfully stubborn.
Bushell’s case
Penn and Mead faced a charge of “preaching to an unlawful assembly”. The jury accepted the preaching, which was not in dispute, but refused the word “unlawful” and so returned a verdict of ‘not guilty’. The infuriated judge threw them into jail without food, water, or comforts for two nights, but they stuck to their guns. The judge then fined them. Many jurors paid and went free, but one, Edward Bushell, did not. He remained in jail and filed a successful writ of ‘Habeas Corpus’ which released him. This case is famous as ‘Bushell’s case’ and the rest of this story hangs upon it. The presiding Judge, Chief Justice Vaughan, gave a ruling which reverberates still centuries later. His opinion established “the right of juries to give their verdict according to their convictions”. They still have this right.
Bushell’s case, and this judgement, are so fundamental that they are celebrated with a marble plaque on the wall of the Old Bailey which all jurors pass and are at liberty to read as they enter the court. Ever since 1670, jurors have kept the right to reach a verdict based on their conscience and they are entitled to do this even in the face of direct, contrary instruction from a judge.
We are all protected against judicial prejudice by the conscience of the ordinary citizen thanks to the dogged Edward Bushell and the principled Chief Justice. His ruling is known as ‘Jury Equity’ and is, or should be, well known to every lawyer in the land.
Trudi’s case
Scroll down 353 years, to March 2023, and what do we see? There’s a small lady, 69 years young and as formidable as Edward Bushell. She’s standing outside an Inner London Crown Court where Insulate Britain activists are on trial. She’s holding a cardboard placard where jurors will see it as they enter the court. On it she’s written a legal truth: ”Jurors, you have an absolute right to acquit a defendant based on your conscience”. She speaks to no one, damages nothing and interferes with nobody, merely holds her sign where it can be read. The judge in the case, though, one Silas Reid, sets legal wheels rolling towards a charge of contempt of court and they reach the desk of the Solicitor General, Robert Courts, MP for Witney.
Trudi Warner, for it is she, is told by the Solicitor General that she will be prosecuted and that contempt of court is a crime which carries a prison sentence if proven. She waits a nail-biting year before the Solicitor General deploys a KC in the High Court to seek permission to present the case. It doesn’t go well for Mr Courts, as the application is summarily, indeed witheringly, dismissed.
The High Court Judge, Mr Justice Saini, dismisses the claim in its entirety. He states that the case is a “mischaracterisation of what Miss Warner did” and a “failure to recognise the placard said what is essentially regularly read by Old Bailey jurors”. He says the Solicitor General “does not have a reasonable basis in fact and law for pursuing these proceedings”. Indeed, it doesn’t come “arguably close”. He adds that the Solicitor General’s “fanciful” attempt to prosecute was a “disproportionate approach”.
Mr Justice Saini tells the Solicitor General that Warner’s placard was “informative”. In fact, it summarises the principle of jury equity “very similarly to the Old Bailey plaque”. He concludes, rather reasonably, that it is “not unlawful to accurately communicate the bare principle of law to potential jurors in a public forum”.
He reminds our Solicitor General that the principle of jury equity has been tested in the highest courts in England and Wales, and exists in other countries such as Canada, New Zealand, and the US, and he delivers his decision:
“The Solicitor General’s case does not disclose a reasonable basis for committal … the conduct did not amount to an act of contempt … I refuse the Solicitor General permission to proceed, and I dismiss the claim.”
This decision, and tongue-lashing, is reason to raise a cheer – perhaps even a glass. Trudi gets to walk free and the principles of freedom and the rule of law over arbitrary power get another lease of life.
Edward Bushell’s bones will have been rattling with delight.
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