Few cases are cited more frequently in discussions about juries than Bushell’s Case (1670). It is regularly invoked as authority for the proposition that juries may ignore the law, disregard the evidence, and return whatever verdict conscience dictates. In modern debates about jury nullification, Bushell’s Case is often presented as establishing a constitutional right of jurors to decide cases according to their personal sense of justice.

The problem is that the case does not say that.

In my view, Bushell’s Case may be one of the most misunderstood authorities in the common law.

What Bushell’s Case Actually Decided

The case arose from the trial of William Penn and William Mead in 1670. The jury refused to convict despite significant pressure from the trial judge. The jurors were fined and imprisoned for returning a verdict that the court considered unsatisfactory.

One of those jurors, Edward Bushell, challenged his imprisonment by way of habeas corpus. The question before Chief Justice Vaughan was not whether jurors were entitled to disregard the evidence. Nor was it whether jurors possessed a constitutional right to acquit according to conscience.

The issue was much narrower.

Could jurors be punished by the court merely because the judge disagreed with their verdict?

The answer was no.

Vaughan CJ held that jurors could not be fined or imprisoned for the verdict they returned. The decision protected the independence of the jury from judicial coercion. It established that judges could not punish jurors simply because they reached a conclusion different from the one the judge thought correct.

That principle was both important and enduring. It is not, however, the same thing as saying that jurors are free to decide cases on any basis they choose.

The judgment in fact considers how it is acceptable that two people may reasonably take different views based on the same testimony. The evidence was very much in the mind of Vaughan CJ. Not morality. Vaughan’s main rational was that we cannot know that the jury was wrong about the facts because the trial Judge came to a different view of the evidence. 

The word most commonly associated with Bushell’s Case today is ‘conscience’. Yet Vaughan CJ’s judgment is concerned not with conscience but with competence: the competence of a court to second-guess the reasoning of a jury and punish jurors for reaching a conclusion different from that preferred by the judge.

How the Myth Developed

Part of the difficulty is that many discussions of Bushell’s Case begin not with Vaughan CJ’s judgment but with the famous memorial plaque displayed in the Old Bailey. The plaque records:

“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.” 

That inscription is undoubtedly one of the reasons why Bushell’s Case is so frequently cited as authority for jury nullification or jury equity. The difficulty is that the plaque is not a law report.

It is a commemoration of what later generations regarded as the constitutional significance of the case. It is not a statement of Vaughan CJ’s decision.

In the case of Bushell’s Case, there has been an evolution of what the case actually establishes. The evolution might be expressed in this way:

1. Vaughan CJ held that jurors could not be fined or imprisoned merely because of the verdict they returned.
2. Later constitutional lawyers recognised that the decision established the independence of juries from judicial coercion.
3. Modern commentators sometimes go further and suggest that jurors possess a right to return whatever verdict conscience dictates.

The first proposition is undoubtedly contained in the case. The second is a fair description of its constitutional importance. The third is far more contentious and is not something Vaughan CJ decided.

The plaque commemorates the second proposition. It is frequently cited as though it established the third.

The result is that the symbolic meaning of the case has, in some discussions, eclipsed its actual legal effect.

Indeed, the wording of the plaque itself demonstrates the point. It refers to “the right of juries to give their verdict according to their convictions”. It says nothing about the juror’s oath. It says nothing about the duty to return a true verdict according to the evidence. It says nothing about the circumstances in which a juror who openly declared an intention to disregard the evidence would immediately be discharged from service.

The plaque captures an important constitutional principle: juries must be free from judicial coercion. But it should not be mistaken for a complete statement of the law governing the duties of jurors.

The danger lies in treating a commemorative inscription as though it were a headnote to the judgment itself.

Jury Independence Is Not The Final Word 

The modern tendency is to treat Bushell’s Case as authority for a broad principle of jury sovereignty. The reasoning often proceeds as follows: Jurors cannot be punished for their verdict, therefore jurors may return any verdict they wish, therefore jurors are entitled to ignore the law or the evidence.

The difficulty is that each step goes further than the case itself.

A distinction must be drawn between what a juror is required to do and what the legal system can do if the juror fails to do it.

In England and Wales, jurors swear an oath to “faithfully try the defendant and give a true verdict according to the evidence.” That oath imposes a clear duty. Jurors are expected to decide the case on the evidence presented and in accordance with the judge’s directions on the law.

Nothing in Bushell’s Case removes that obligation.

The case concerns enforcement, not duty. It limits the power of the court to punish jurors for their verdict. It does not redefine the standards by which jurors are supposed to reach that verdict.

The Test of the Proposition

One way of testing whether Bushell’s Case is being interpreted too broadly is to apply its logic to convictions as well as acquittals.

Suppose a juror openly announces before the trial begins:

“I am going to acquit regardless of the evidence.”

No court would permit that juror to remain.

Likewise, suppose a juror announced:

“I am going to convict regardless of the evidence because the defendant has previous convictions.”

Again, the juror would almost certainly be discharged.

In neither case would anyone seriously argue that Bushell’s Case protects such conduct.

The reason is obvious. Jurors are expected to decide cases according to the evidence and their oath. The law treats that obligation as real.

Yet these examples involve exactly the same substitution of personal conviction for evidential assessment that is often defended under the banner of jury nullification.

The fact that the argument is usually advanced only in favour of acquittal demonstrates that the debate is often political rather than doctrinal. The law’s concern is not whether the verdict is merciful or severe. Its concern is whether jurors are performing the function they have sworn to perform.

The Importance of the Jury Room

The real explanation lies elsewhere.

The criminal justice system treats jury deliberations as sacrosanct. The secrecy of the jury room is not an accident. It is a deliberate constitutional choice designed to protect jurors from external pressure and judicial interference.

That choice carries consequences.

Because deliberations are private, the legal system cannot ordinarily investigate the reasoning process by which a verdict is reached. Once a jury retires, the law largely refrains from examining what is said or thought during deliberations. Once a verdict is returned, particularly an acquittal, the opportunities for scrutiny are extremely limited.

As a result, the system inevitably tolerates the possibility that some juries will disregard the evidence, misunderstand the law, or decide cases on grounds inconsistent with their oath.

But toleration is not endorsement.

The law does not instruct jurors that they may ignore the evidence. Judges do not direct juries that conscience may replace proof. Courts do not encourage jurors to disregard legal directions.

Rather, the system accepts that the protection of jury independence comes at a cost. Some improper verdicts will occur because the mechanisms necessary to prevent them would undermine the very independence the jury system seeks to preserve.

The secrecy of the jury room means that the law must tolerate the possibility of jurors acting contrary to their oath. But toleration born of constitutional necessity is not the same thing as legal approval.

The Real Legacy of Bushell’s Case

The true constitutional significance of Bushell’s Case is not that jurors possess an unrestricted right to do as they please.

Its significance is that the state cannot punish jurors merely because it dislikes the verdict they have reached.

That is a profound principle. It protects the jury from becoming an instrument of the executive or the judiciary. It ensures that verdicts are not extracted through threats or coercion.

But it should not be confused with a judicial endorsement of jury nullification or a licence to disregard evidence.

The better view is that Bushell’s Case creates a sphere of jury independence which the courts will not police after the event. Within that sphere, jurors may sometimes fail to comply with their oath. The legal system may be unable to correct that failure. Yet inability to punish is not the same thing as approval.

For that reason, Bushell’s Case is perhaps best understood not as a charter for jury nullification but as a safeguard against judicial coercion. Its legacy is jury independence, not jury omnipotence.

Some of you will have read my blog about my colleague Nicky Gatto. The day after the news was announced HHJ Tom Gilbart, a former member of our chambers, said a few words in open court at the start of the day. Tim Storrie KC responded on behalf of the Bar. A largely impromptu tribute and HHJ Gilbart has asked me to share his words with a wider audience than was in court and I am more than happy to do so. You will note that we both recall the same anecdote!

It was announced yesterday that Nicky Gatto passed away.

I know that something more formal will take place and I do not want to step on anybody’s toes but I was in Chambers with Nicky for my entire time at the bar and I wanted to say something very briefly in open court this morning.

She was, I think, one of the funniest people that I have met. A natural raconteur. My first reaction yesterday when I heard the news – after the sadness – was to share some of stories about her with my son and laugh about them. A personal favourite was when she walked into Court without her glasses on. Seeing the usher on the Judge’s bench preparing his papers, Nicky asked – unable to see properly – what time is Ratface getting here?

It was, of course, the Judge. “Ratface is already here” came the reply.

She was also an absolutely first rate barrister – tireless; fearless and well prepared. Whenever I covered one of her cases as a barrister, I would be astounded by the number of conferences she had had and the whole wealth of issues she had explored.

We defended a trial together for about a month at Preston Crown Court. The case was overwhelming against both of our defendants. Witness after witness would come and give apparently devastating evidence about her defendant and I would sit there and think “What on earth will Nicky ask him?”. But every time – she would stand up; gown a bit dishevelled; wig not quite straight on her head; papers falling from a pile onto the floor – and produce killer question after killer question. It was obvious that the jury loved her and at the end of the trial – she gave the best defence speech that I have ever heard.

She also appeared in front of me once I was appointed as a Judge and, of course was just what was expected – a powerful advocate; immensely well prepared; an expert on the law and fearless in putting her case. 

Her death is a sad waste of all that energy and talent and the Northern Circuit and 9 St John Street Chambers and the staff at Bolton will miss her terribly but the real loss, of course, is suffered by Mark and her family. All of our thoughts are with them today.

Thank you

HHJ Tom Gilbart

The way we work as barristers is a deeply personal skill. We all find ways of doing it which suit us. From the way we go about preparing something to the way we ask a question or make a submission.

Nicky’s way of doing it seemed to involve making copious notes in almost indecipherable handwriting on every blank space on the witness statements and then shoving the entire bundle into the washing machine on spin cycle. You would look across at her at court and she would seem to be scribbling away in the lines between the notes already made, with the papers now carpeting every spare inch of the table before her.

And that method produced a mighty fine advocate.

Often when you praise an advocate’s tenacity and industry it can seem like less of a compliment than when you praise someone for their intelligence or eloquence. I want to make it clear that Nicky had both eloquence and intelligence in spades. She allied those skills with the aforementioned tenacity and hard work, and that made her a truly formidable opponent. A complete pain in the backside to be against, but for good reason.

I had the experience of being against her on both sides of the courtroom, I have co-defended with her and we have swapped many a return between us. I briefly led her, before I had to return the case. From that I am well placed to sum her up with this simple phrase. She cared.

She cared about every case, every client, every victim. She cared every single day of her working life. She cared about every result. She cared about doing her very best.

She once said to me that she “gave good speech”. I have no idea how she translated the notes she had made on pages ferociously torn out of a blue notebook into such well crafted closing speeches but she did, she gave good speech. Every one different. Every one a gem.

And so it is that when Nicky tragically passed away this week, the legal profession lost a really, really good barrister. More than once in recent times I had said to Nicky “come on, apply for Silk”. She would shrug me off, but she should have done. When my pupil supervisor met her for the first time over twenty years ago he came away from their conversation and predicted she would take Silk. In my estimation she had all the skills.

Once we were against each other in the Court of Appeal. We got the train together and were chatting about the case. She kept referring to something that had been said in evidence. I was adamant it had not featured in the case. She dug out her annotated transcripts. She pointed out the passage of evidence to which she was referring. I had to break it to her that she had been sent the transcripts of the trial where the jury had been discharged, not the one that led to the conviction that was being appealed.

The colour drained from her cheeks. I gave her my copies of the correct transcripts. We were about 45 minutes outside of London. She hurried off to a table on her own. There was furious note scribbling. When she returned the transcripts to me, she had miraculously found a washing machine with a vigorous spin cycle, despite the fact we were on a train. When she stood up to address the court, she gave a faultless performance.

I found out she had passed away when I was in the midst of a case dinner. Counsel who had strived hard over the previous weeks enjoying the camaraderie of the Bar. It was so apt that I was at an event where Nicky would absolutely have been in her element. I am not suggesting that Nicky necessarily liked hanging out with barristers, but on such occasions she would absolutely be the life and soul of the party. Not by anything else other than being a teller of hilarious tales.

If you ever read a book by someone like Bill Bryson you sometimes wonder how so many interesting and funny things can happen to one person. At the Bar, that was Nicky. Things happened to her and around her that she forged into brilliantly told stories. Always told with a laugh sown through her words and eyes wide with mirth.

I will share one with you, one which is a circuit legend. One day, part heard in a trial, she wandered into court without her glasses on and saw the court clerk at the front of court. She asked the court clerk if the Judge was in the building yet. Except she asked it in a colourful way by enquiring “Is Rat Face in yet?”

“I am Rat Face”, came the reply. It wasn’t the clerk. It was the Judge who had wandered in to find something, still in shirt and tie rather than robes. These things happened to Nicky. And we loved listening to them.

In the days since her passing I have been sent or seen so many messages that refer to her presence in a robing room. She will be sorely missed by this Circuit and beyond. She will be missed by my chambers. I cannot quite believe that I am going to walk through the conference room corridor and not see the explosion in a photocopier paper tray that was Nicky sitting at a table, spinning a dozen different cases.

Of course none of us will feel the loss as keenly as her family. Her husband Mark, a fellow member of chambers, and her two sons. As ever, all our thoughts are with them.

Imagine that year upon year have passed and there has been no increase to the remuneration that you receive for the work you do. And I mean not even 1% here or 3% there.

Imagine that year after year has passed where you have been warning anyone that will listen that the lack of increases are playing a significant part in your colleagues leaving and not being replaced. Imagine trying to tell anyone that will listen that the exodus is causing real problems in getting the job done.

Now imagine that those who are responsible for what you receive half listen and ask someone else to look into it for them, to let them know if you are right in what you say. Then imagine that this person comes back and says “yep, they are almost spot on, so spot on that you need to increase the rates by a minimum of 15% immediately.”

Imagine how relieved you would be to finally be listened to.

Now imagine that you get told this good news in November 2021. And you wait, and you wait, and you wait. You wait for the 15% minimum that is immediately required. And you are still waiting in July 2022. Meanwhile people are still leaving, the cost of living is going up.

Then imagine that the people responsible for paying for your services and your labour finally acknowledge that the immediate increase you have been arguing for and waiting for is, in fact, necessary.

Now imagine being told that the increase is only going to be implemented in a way that you will receive the increased rate in a year or more from now. Imagine that you are told that the “immediate” increase that you are awarded in July is not going to be paid for any of the work you do that month. Or in August. Or even in September. Imagine that you are told it is not going to be paid on the majority of the work that you do in October and November.

Imagine being told that most of the work you do in November 2023, two years after the minimum amount was recommended immediately, will not be paid at the increased rate. Imagine being told you are likely to still be doing work in November 2024 which will not be paid at the increased rate.

If you have imagined all of that, you do not have to imagine why it is that criminal barristers have voted by an overwhelming majority to say “no more” and stop work from 5th September. This is not a “strike” as such, this is the profession saying “you know what, most of us just aren’t prepared to do it any more.”

No matter what you may read about levels of income, no matter what you imagine barristers earn, the independent report by Sir Christopher Bellamy makes the case that the junior criminal bar need paying more and paying it immediately. The data makes it clear. Logic makes it clear.

The only answer that the Government have is to mislead. They mislead about the cause of delay. They mislead about average increases. They mislead about their “generosity”.

If the Government had listened to the junior criminal bar through the years, we would not be here. If the Government listened to the recommendations of the independent report, we would not here. If the Government had listened when the disruption to the system was less dramatic, we would not be here.

The Government still have time to listen and time to talk. We have a Lord Chancellor. We have a functioning Treasury. They have the relatively small sums available to them to settle this. The Bar have a willingness to work with them that is, perhaps surprisingly, undiminished despite the Government’s previous cavalier and callous attitude.

Imagine if the Government did the right thing, starting with applying the fee increase to the work in progress so that junior criminal barristers feel the benefit of the increase on work they are doing now? If they did, I imagine the criminal justice system will survive. If they do not, imagine the chaos that lies ahead?

In H.G. Wells’ War of the Worlds the narrator meets an artilleryman who has also survived the initial onslaught of the invading Martians and their walking machines equipped with heat rays. The artilleryman explains to the narrator that he has already decided the Martians cannot be defeated and that the only chance of survival for the human race is to start a whole new world underground, away from the deadly heat rays.

The artilleryman describes a society living in a network of sewers and other tunnels. He talks of areas big enough to play cricket, of schools and universities. He tells the narrator that he has started work already on the scheme and takes him to where work has commenced.

For those of us born in the seventies, the next words will always be spoken in the voice of Richard Burton as the narrator observes

In the cellar was a tunnel scarcely ten yards long, that had taken him a week to dig. I could have dug that much in a day, and I suddenly had my first inkling of the gulf between his dreams and his powers.

That short passage and the notion of crazy ideas obviously falling short of reality was immediately brought to mind when I read a short article penned by Lucy Frazer MP about delays in the criminal justice system and her solution to the problems that was published in the Daily Telegraph.

Her solution was to make sure cases were listed more quickly. This is a solution in the same way that a doctor telling a diseased patient to get better is a cure.

When I read on to what her plan was, I was a little surprised. The answer did not lie in more courts, judges and advocates being available to clear the backlog and progress cases. The answer, it seemed, owed more to the science fiction of Wells and Asimov. The answer was artificial intelligence.

Apparently AI could replace the judicial function of listing. When counsel have been unable to obtain a date from a Judge that fitted in with our diaries we have often joked that “the computer says no” when back in the robing room. This MP wants to make that the reality.

Anyone with any experience of MoJ and HMCTS computer based schemes would immediately foresee millions and millions being wasted on a system that would end up listing a trial for a case in Manchester in the court at Maidstone. Last week.

But it is not an instinctive mistrust of the ability of government to have an effective IT rollout that caused me to observe that there was a gulf between her dreams and the power of AI, it was the sheer ludicrous nature of the suggestion.

Listing is intrinsically a judicial function. It involves competing interests, at the heart of which is often the competing interests of a myriad of different cases. It is central to the issue as to how long defendants wait in custody for their trials. An algorithm may be able to identify how the production line in a sausage factory can best work, it cannot decide on whether the 12 year old complainant or the defendant that has been in custody for a year should have their trial heard first. And an algorithm cannot hear the submissions that would speak of those competing interests.

Lucy Frazer prayed in aid her understanding of the criminal justice system. I cannot countenance how anyone with experience of the system could suggest this as a solution. It is as realistic as playing cricket in a sewer. And probably contains as much in the way of BS.

The criminal justice system needs no more amateur observers with their ideas of reinventing the wheel when what the system needs is just more air in the tyres.

Dealing with the current backlog and improving the efficacy of the system requires less money than would be wasted on some I, Robot listing officer but it needs funding on the things that every single Judge and criminal lawyer would be able to identify. It is time the government started to listen to people whose only ambition is to improve the system, not gain a promotion.

The article speaks of front loading case preparation and all the usual stuff. Part of the solution is in more work being done as soon as possible. That requires more funding for the police, more funding for the CPS, more funding for lawyers to be paid to do the work, more lawyers with time to do the work. Ally that to more judges to hear the trials and more courtrooms open for them to sit in and the problem is solved.

It doesn’t take daft ideas to improve things. It requires honesty and investment. It’s simple. Whilst Lucy Frazer is ten yards along a tunnel that will lead to nowhere, there are countless men and women who know the answer. Engage with them, not science fiction

Last week we learned of the passing of HH John Dowse, retired Circuit Judge who sat in the North East and former Deputy Head of Chambers at 9 St John Street, Manchester. A distinguished and successful career.

For many of us, it is not the judicial initials that went alongside the His Honour title that we knew John by, but simply “JD”. And when the world lost JD, we truly did lose a fabulous man.

JD taught me what it meant to be a part of, and contribute to, the success of chambers. It is only through the hard work and excellent judgement of people like JD that chambers can work as a business. It is by JD’s example that I realised that chambers is also a family.

Shortly after I joined chambers he became the first Deputy Head of Chambers. He had recently organised the move from our previous premises to 9 SJS. I served with him on a management committee that dealt with moving our former senior clerk from a percentage to a salary, worked with him when he drafted the basis for the chambers’ constitution and assisted him as he transformed the way that chambers was run. He laid the foundations for the success that chambers was to enjoy as a business for the twenty years after he left to go on the Bench.

But he would never have wanted chambers to be “corporate”. On the day that I was offered tenancy in chambers, after I had called my mum and dad to let them know the good news, my pupil master told me that JD wanted to speak to me in his room about some work I had done for him. Back to reality. I wandered down the corridor to JD’s room, knocked on the door and went in. He was in his usual position at the head of a boardroom style table. In front of him was a bottle of champagne, half a dozen glasses and the same number of criminal practitioners standing around. He popped the cork and welcomed me to the family.

I was to spend a lot of time over the next eight years or so in that room, talking to JD. And laughing with him. John was a master of deploying pantomime-esque feigned ignorance to comic effect. His eyebrows would pop up, his voice become that little more Southern, giving him the every appearance of one of Fagin’s boys, overacting their innocence. I imagine that most people would have the word “mischievous” in their descriptions of John.

He had photos of his children in that room. It was always obvious that the photos were not there as mere decoration, nor were they there because that is what people do, but because JD wanted his family with him in some way at all times. Whenever I saw John after he went on the bench, it would not be long before he gave me an update on something in the life of at least one of his children. Never in a boring way. Never in a boastful way. Just out of irrepressible pride in his kids.

He was the pupil master of my contemporary and friend Rachel Wedderspoon (now Employment Judge Wedderspoon). Rachel and JD were as close as family to each other, and in many ways she has followed in his career footsteps. He would have taken no credit for her success but basked in pride.

When I was asked to be the Deputy Head of Chambers my first thought was of JD. I had big shoes to fill. If I did half as a good a job as he did, I will have done well.

Whenever I saw JD he would greet me with a hug. A man that I had only spent seven years or so with in chambers, a Circuit Judge, would give me a big hug when he saw me. Almost as if we were family…

My thoughts are very much with his family. His wife Elaine and his children, Francesca, Philippa and Jonathan. I hope it will be some comfort to them to know that mischievous, irrepressible JD will be missed by many of us.

I met Nick when I was a young man playing cricket for the Circuit. From that first meeting we were mates. Well, I say we were mates, I certainly felt like he was my mate. I have no idea whether he thought of me as his mate. But that was one of Nick’s great talents. He made you feel like you were mates. Not in a false, bonhomie kind of way. In a “he is my mate” kind of way.

And it is always very sad to lose a mate.

When you walked into a robjng room that contained Nick Kennedy, the robing room was Nick Kennedy. Or Nick Kennedy was the robing room. Either way, you could sense his natural, Northern charm from the moment you walked in and he was at one of the tables, chatting away and greeting all comers with a smile.

There are not many of us that manage to be ourselves in the courtroom. Nick managed it. He prosecuted me in a firearms case a few years ago in Liverpool. Now imagine being cross examined by someone who had you believing that they were your mate? Believing that he was your mate right up to the point when the trap was sprung with you at your most disarmed. His style of cross-examination was as if he was about to let you in on a secret, the downside being that the secret was that you were lying. My defendant did not enjoy the experience, although I am fairly certain the jury did.

It was with great sadness that I learnt that Nick had passed away. He loved sport and our conversations would often revolve around cricket and the England team. Often there would be tales told of away trips to see them in foreign climes. If ever someone deserved a retirement of more trips like that it was Nick. 10 years as head of his chambers should have been followed by a time to enjoy his retirement. The only comfort is that he enjoyed life so much, and everyone was allowed to enjoy it with him.