A jury’s power to acquit without giving reasons is a bulwark against tyranny
Young people of good character accused of nothing too dreadful are famously hard to convict. Juries like to throw them a bone — and why not? This is usually the case even when — as with the Colston Four — the defendants admit having done what the Crown alleges: questions of intention, reasonable excuse, and so on, often remain.
What the defence lawyers did well here — in the sense of both skill and good fortune — was persuading the judge to direct the jury that it was open to them to acquit if they thought that Colston’s statue was so indecent or abusive that Bristol City Council’s leaving it in place was itself a crime, and that in order to prevent that crime it was reasonable to topple him.
That was certainly a bit of a reach, and many judges would not have countenanced it. But it isn’t quite as silly as it might at first look. If I were to put up a cardboard statue of Hitler outside a synagogue, I could expect to be arrested under s.5 Public Order Act. If you kick it over and damage it, surely the jury ought at least to be able to consider whether the Prevention of Crime defence is made out? And just because Colston had been there a long time doesn’t necessarily mean that against a background of rapidly changing public attitudes the statue was not criminal.
And once the question of the statue’s offensiveness is before the jury, it is no great forensic leap to allow academic expert evidence to be given on the issue. So the jury sat quietly together and listened, no doubt intently, to the horrifying details of Colston’s slave trading (19,000 people, including many children, died on his ships), the strange circumstances in which his statue was erected 170 years after his death, and the more recent farcical wrangling over the wording of a ‘corrective’ plaque — all delivered by the calm, affable, and persuasive British-Nigerian Professor David Olusoga.
Perhaps not every juror was moved by defence counsel’s exhortations to be “on the right side of history” or the line, “if you have a cancer like Colston festering in your city, you cut it out” — it was a majority verdict after all — but in the unique circumstances of this particular statue it is little wonder that there was considerable appetite for acquittal among this randomly selected collection of Bristolians.
Was it a “perverse” verdict? Certainly not in the classic sense, where a jury is directed that there is no defence in law. Who knows what each of them decided about the claim that the statue was itself a crime. Perhaps they didn’t decide: perhaps they just discussed the facts, read the judge’s directions, and voted. Jury trials, even short ones, often develop a very particular mood and culture, based on the tone of the live evidence and the personalities of the judge and counsel, which is hard to predict and impossible to piece together after the event.
Was the verdict an assault on the Rule of Law? Absolutely not. In the wake of this verdict there have been threats to topple other statues, but this trial provides no licence or precedent, factually or in law.
But nor is the decision immune from criticism by some mystical moral sanctity that attaches to a jury’s verdict. Many of those adopting that stance would have made very different noises about Ched Evans’ 2016 acquittal for rape.
The system isn’t perfectly fair — apart from anything else it is entirely a matter of luck which twelve jurors you get — but a jury’s power to acquit without giving reasons is a precious bulwark against tyranny, and should be celebrated whether or not we agree with the latest verdict in the news.