There is no shortage of people who are prosecuted for offences that may seem unjust to many. Of particular interest here is plant medicine prosecutions, where people are prosecuted for cultivation / possession for pure personal use, i.e. no suggestion of any black market activity. Or supply cases where it is clear that the supply is not for profit, but is an effort to get plant medicines to those who have a therapeutic need, and are unable to navigate all the red tape / expenses of legal supply.
Whether a particular prosecution is seen as unjust will depend a lot on the circumstances, and different people may have different views.
There is a widespread misconception that it is a jury’s job only to determine whether a person committed a particular offence, and that it is not a jury’s job to get involved in the question of whether the law or prosecution itself is unjust. However, it is certainly a jury’s proper role to consider this.
There’s a large marble plaque at the original entrance lobby to the Old Bailey in London – England’s most famous criminal court - that reads as follows:
Near this Site WILLIAM PENN and WILLIAM MEAD were tried in 1670 for preaching to an unlawful assembly in Grace Church Street
This tablet Commemorates The courage and endurance of the Jury Thos Vere, Edward Bushell and ten others who refused to give a verdict against them, although locked up without food for two nights, and were fined for their final verdict of Not Guilty
The case of these Jurymen was reviewed on a writ of Habeas Corpus and Chief Justice Vaughan delivered the opinion of the Court which established The Right of Juries to give their Verdict according to their Convictions
Penn and Mead were on trial because they were Quakers – a religious minority who were banned from meeting for worship. The law said it was an offence for them to meet for worship, but the jury refused to convict them. And this is celebrated in the plaque at the Old Bailey as the right of a jury to give a verdict that they believe to be correct.
This is what Lady Justice Hallett had to say about the Bushel case. Lady Justice Hallett was the vice president of the Criminal division of the Court of Appeal until 2019. She’s one of our most senior and respected judges. It was in a speech called “The Blackstone Lecture”, given in 2017.
This was a major milestone and the jury thereby entered the picture as the defender of individual liberty; the protector of human rights. By placing the power of conviction or acquittal in the hands of the public…, there was as sure a defence against oppressive action by the State against the individual as was possible at the time. While the enactment of cruel and arbitrary law may remain in the hands of legislator and executive, the jury was not obliged to give effect to it.
She went on:
Juries provide another form of accountability. They ensure that in each criminal trial it is not just the accused that are on trial. They ensure that the criminal process is itself in trial.
A jury may refuse to convict in spite of the law and the evidence because it concludes that the law is an unjust law. The jury passes its verdict on the law.
The verdicts referred to by Lady Justice Hallett are called “perverse verdicts“ within the legal profession, as they are verdicts that go against the letter of the law. However, I prefer the less perjorative “Bushel verdicts“, named after the leading juror in the Quaker case.
There have been notable cases recently where the jury has fulfilled this function. If the government continues to dig its heels in on plant medicine law reform, then we may see increasing numbers of Bushel verdicts in this area.