The Lamp That Still Burns: Jury Independence, the Inalienable Verdict, and Its Constitutional Force in Australian Courts
Preface
In December 2013, the Attorney General of England and Wales stood before the Politeia Forum in London and declared that trial by jury is “a vital safeguard in a free society” and “a bulwark of our freedoms.” He was not making a sentimental observation. He was restating a constitutional principle that has endured for more than three and a half centuries — a principle that reaches directly into Australian courtrooms today.
This article examines the historical and constitutional foundations of jury independence, the inalienable character of the jury’s verdict, and the specific implications of those principles for men and women facing criminal proceedings in Australia. It draws on primary legal authorities from England and Australia and proceeds on the basis that the common law is a living inheritance, not a relic.
Libera enim esse debet sententia juratorum — the verdict of jurors ought to be free.
Part One — The Constitutional Origin
The right to be judged by one’s equals is not a statutory creation. It predates the Constitution of the Commonwealth of Australia, the Commonwealth, the colonies, and the settlement of this continent. Its foundational expression appears in Magna Carta 1215, in which King John conceded that no free man shall be punished save by “the lawful judgement of his equals.” That concession was wrested from a king by the force of his barons. It was not a gift. It was a recognition of a pre-existing entitlement.
The operative constitutional moment in the development of jury independence, however, is Bushel’s Case (1670) 124 ER 1006. William Penn and William Mead — both Quakers — were charged with unlawful assembly for holding a religious meeting in contravention of the Conventicle Act. The jury found them “guilty of speaking in Gracechurch Street” but refused to add “to an unlawful assembly.” The trial judge responded by imprisoning the jury without food, heat or water. After two days of confinement the jury returned a verdict of not guilty. The judge then fined the jurors and imprisoned them for contempt of court for returning a verdict contrary to his direction.
Edward Bushel, one of the jurors, petitioned the Court of Common Pleas for a writ of habeas corpus. The Court of Common Pleas, led by Chief Justice Vaughan, granted the writ and confirmed the principle that has governed English and Australian law ever since: a jury cannot be punished by reason of the verdict it returns. The verdict is the jury’s own. It cannot be coerced, directed, overridden, or penalised by any judicial officer, however senior, however confident in the correctness of an alternative outcome.
This is not a procedural technicality. It is a structural constitutional guarantee that the determination of criminal guilt is not a matter for the State alone. It places between the accusation of the Crown and the punishment of the accused the independent judgment of twelve members of the community — judgment that is answerable to no-one.
Part Two — The Modern Restatement
The principle from Bushel’s Case received its most recent authoritative restatement in the House of Lords decision in R v Wang [2005] 1 WLR 661. The facts were unremarkable — Mr Wang was charged with possessing offensive weapons in a public place, claiming they were used for the practice of Shaolin martial arts. The trial judge concluded that no lawful defence was available on the evidence and directed the jury to return a verdict of guilty. The Court of Appeal agreed, describing the matter as “plain beyond sensible argument.”
The House of Lords disagreed and quashed the conviction. Lord Bingham stated:
“I find it difficult to see how a sensible jury could have acquitted. But I do not reach such a conclusion as a matter of law and I cannot accept that the judge is entitled to direct the jury how to answer a question of fact, however obvious he may believe the answer to be and although he may be satisfied that any other answer would be perverse.”
This statement is of the highest authority. It does not say a jury must acquit in such circumstances. It says a judge cannot direct a conviction. The distinction is the whole of the point: the verdict belongs to the jury, not to the court.
Lord Bingham in doing so quoted Lord Devlin’s celebrated observation from an earlier case that trial by jury is “the lamp which shows that freedom lives.” The Attorney General of England and Wales, in his 2013 speech to the Politeia Forum, explicitly endorsed both statements as correctly representing the constitutional position. They represent not merely English law but the common law inheritance received by all Australian jurisdictions at settlement and preserved through the constitutional framework of the Commonwealth.
Part Three — The Australian Constitutional Guarantee
Section 80 of the Constitution of the Commonwealth of Australia provides:
“The trial on indictment of any offence against any law of the Commonwealth shall be by jury…”
The orthodox interpretation of this section, confirmed by the High Court in R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128 and subsequently, is that Parliament controls what offences are indictable and therefore controls the scope of s 80’s operation. If Parliament characterises an offence as summary, s 80 does not apply. Several justices of the High Court have criticised this interpretation as rendering s 80 a “constitutional tautology” — a guarantee that Parliament can hollow out at will.
However, the orthodox interpretation does not exhaust the constitutional position. Three further principles operate independently of s 80 and are of direct practical importance.
First — Chapter III of the Constitution. The High Court has progressively developed what has become known as the “Kable principle” from Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. State legislatures cannot confer functions on State courts that are incompatible with their status as repositories of federal judicial power. Chapter III courts must be — and must be seen to be — independent and impartial. A legislative scheme designed to produce a predetermined outcome, or to strip from the accused the genuine protection of the jury process, may be incompatible with this requirement.
Second — the Implied Freedom. The High Court has confirmed in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 and Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 that the Constitution contains an implied freedom of political communication and, relatedly, that sovereignty resides in the people. The jury is the mechanism through which the community exercises its sovereign judgment about whether the State has proved criminal liability. Legislative or procedural devices designed to circumvent genuine jury deliberation engage these constitutional values.
Third — the common law protection preserved at federation. The common law rights of the people — including the right to trial by jury for serious offences — were imported into the colonies and preserved at federation. The principle of legality, confirmed in Potter v Minahan [1908] HCA 63, requires that legislation be read as not intended to abrogate fundamental common law rights without clear and unambiguous expression. A man or woman’s common law right to have criminal guilt determined by a jury of peers is a fundamental right of this character.
Part Four — The Inalienable Verdict in Practice
The practical implications of the inalienable verdict principle in Australian courts are substantial and underappreciated.
A judge cannot direct a verdict of guilty. This is now confirmed as an absolute rule, both in England under R v Wang and in Australia under the High Court’s consistent treatment of the jury’s constitutional role. A direction to convict, however strongly the judge may believe the evidence points in one direction, is a legal nullity and any conviction resulting from it is appealable.
A judge cannot withdraw a defence from the jury without legal justification. Where a defence is raised on the evidence — however thinly — the jury is entitled to consider it. The judge’s view of whether the defence is likely to succeed is irrelevant. The judge may direct the jury on the law applicable to the defence; the judge may not take the defence away from the jury on the basis that it will probably fail.
A judge cannot penalise a jury for its verdict. Bushel’s Case established this in 1670. It remains the law. A jury that acquits in the face of overwhelming prosecution evidence has done nothing wrong. It has exercised its constitutional function. No judicial officer has any power to review, override, or penalise that exercise.
A perverse verdict is a lawful verdict. This is perhaps the most counterintuitive implication of the inalienable verdict principle but it is the most important. A jury that acquits because it disagrees with the law — because it considers the law unjust, or its application to the accused unfair, or the prosecution itself improper — has returned a lawful verdict. Jury nullification, as it is sometimes called, is not misconduct. It is the ultimate constitutional check on State power. The jury is the last line between the prosecution and the accused. If the jury says not guilty, the matter is concluded.
This principle was present in Bushel’s Case — Penn and Mead were acquitted by a jury that refused to apply the Conventicle Act to them. It was present in many of the great constitutional moments of English legal history. It remains embedded in the structure of the criminal trial today.
Part Five — What This Means for the Accused in Australia
A man or woman facing serious criminal charges in Australia is entitled to the following protections, grounded in the authorities surveyed in this article:
The right to elect jury trial for electable offences. Where an offence carries a right of election between summary and jury trial, the accused has the right to elect. That right cannot be taken away by the administrative convenience of the prosecution or the court system.
The right to a genuinely independent jury. The jury must be drawn from the community by genuine random process. It must be free from external pressure, judicial coercion, and improper influence. Any attempt to predetermine the outcome of jury deliberations — whether by improper direction, wrongful exclusion of evidence favourable to the accused, or any other mechanism — is a basis for appeal.
The right to have all available defences considered. Where the evidence raises any defence — however unlikely the jury is to accept it — the accused is entitled to have that defence put to the jury with proper directions. A judge who withdraws a defence from the jury without legal foundation has erred in law.
The right to challenge the jury. The accused may challenge individual jurors for cause — requiring evidence of specific grounds of disqualification — and may exercise a limited number of peremptory challenges without giving reasons. These rights exist to ensure the jury that tries the accused is genuinely impartial.
The right to an impartial verdict free from judicial direction. Once the jury retires, its deliberations are its own. No judicial officer has power to direct the verdict, recall the jury to reverse an acquittal, or penalise the jury for the outcome it reaches. The verdict, when delivered, is final in favour of the accused. The double jeopardy rule — nemo debet bis vexari pro eadem causa — ensures that an acquittal by jury cannot be reversed or retried.
Part Six — The Democratic Foundation
The Attorney General’s 2013 speech made an argument that goes beyond procedure: jury trial is a mechanism of democratic participation and institutional legitimacy. Many men and women will pass through their entire lives without direct engagement with the criminal justice system. Jury service is one of the most serious civil duties any member of the community can be called upon to perform. It gives the justice system its democratic foundation — the outcome is not merely the State’s determination but the community’s.
This argument has particular force in the Australian context. The Constitution is explicitly founded on popular sovereignty. The preamble refers to the people of the several colonies agreeing to unite. The High Court has confirmed that sovereignty resides in the people, not in Parliament alone. The jury trial is the direct expression of that popular sovereignty in the administration of criminal justice. It is the community sitting in judgment on whether the State has discharged its burden of proof to the criminal standard.
A justice system from which the jury is progressively excluded — by the expansion of summary jurisdiction, by the narrowing of election rights, by the broadening of judge-alone trial — is a justice system progressively removed from the democratic foundation the Constitution establishes. Each such removal requires, under the principle of legality, clear and unambiguous legislative authority. It cannot be achieved by administrative convenience or judicial preference.
Conclusion
The lamp Lord Devlin described burns in Australian courtrooms as surely as it burns in those of England and Wales. The constitutional guarantee of trial by jury, the inalienable character of the verdict, and the independence of the jury from judicial direction are not historical curiosities. They are living principles of the common law that every accused in Australia is entitled to invoke.
Bushel’s Case established in 1670 that no judge may punish a jury for its verdict. R v Wang confirmed in 2005 that no judge may direct a verdict of guilty. The Attorney General of England and Wales confirmed in 2013 that these principles remain the constitutional bedrock of the criminal justice system. The High Court of Australia has consistently recognised the jury as a constitutional institution of the first order.
A man or woman who stands accused before a court exercising jury jurisdiction stands in a position protected by centuries of constitutional development. That protection is not diminished by the passage of time, the growth of the statute book, or the administrative preferences of any institution. It is the birthright of every free man and woman in a common law jurisdiction — a right that no court, no Parliament, and no prosecuting authority may legitimately take away.
Nemo debet bis vexari pro eadem causa — no one ought to be harassed twice for the same cause. Once the jury has spoken in favour of the accused, the matter is concluded. The lamp burns.
Lex semper dabit remedium — the law will always provide a remedy.
A summary of the 2013 Attorney General for England and Wales speech
“In Defence of the Jury Trial”
Source: UK Government — Attorney General’s Office (gov.uk) Speaker: The Rt Hon Dominic Grieve KC, Attorney General for England and Wales Delivered: 11 December 2013, Politeia Forum, London Published: 12 December 2013 Government: 2010-2015 Conservative and Liberal Democrat Coalition
What the Speech Is
This is a formal speech by the serving Attorney General of England and Wales, delivered at a policy forum, in defence of the institution of trial by jury. It is not a judgment and not a law reform report — but it carries the weight of the government’s senior law officer publicly stating the constitutional and practical case for jury trial. It is published on the official UK Government website under Open Government Licence.
The Historical Foundation
Grieve traces the jury’s history across approximately a thousand years. Several specific points are relevant:
Magna Carta 1215. The right for a man to be punished only pursuant to “the lawful judgement of his equals” was enshrined by King John. Grieve acknowledges this was initially limited to men of a certain standing but identifies it as laying the foundation stone for judgment by one’s peers.
The Star Chamber abolition. By the 17th century, the right to be judged by peers was confirmed in the Act abolishing the Star Chamber.
Bushel’s Case (1670). This is the pivotal constitutional moment Grieve focuses on. Penn and Mead — two Quakers — were charged with unlawful assembly for holding a religious meeting. The jury found them “guilty of speaking in Gracechurch Street” but refused to add “to an unlawful assembly.” The judge imprisoned the jury without food, heat or water. After two days they returned a verdict of not guilty. The judge fined them and imprisoned them for contempt. Bushel petitioned for habeas corpus. The Court of Common Pleas confirmed the foundational principle: a jury cannot be punished by reason of the verdict it returns. This is the constitutional guarantee of jury independence.
Historical development. Lawyers only became a regular feature at trials around 1800. Until 1858 the jury was kept without food or drink until a verdict was reached. The right to testify, free legal representation, and appellate procedure are all relatively recent. Grieve notes the modern jury trial is very different even from a century ago.
The Core Constitutional Principle
Grieve quotes the House of Lords decision in R v Wang [2005] 1 WLR 661 as the modern authoritative statement. The House of Lords held there are no circumstances in which a judge is entitled to direct a jury to return a verdict of guilty. The trial judge had directed the jury to convict on the basis that the defendant had no lawful defence. The Court of Appeal agreed. The House of Lords disagreed and quashed the conviction.
Lord Bingham quoted Lord Devlin’s famous statement that trial by jury is “the lamp which shows that freedom lives.”
Lord Bingham’s own statement in Wang is the key passage:
“I find it difficult to see how a sensible jury could have acquitted. But I do not reach such a conclusion as a matter of law and I cannot accept that the judge is entitled to direct the jury how to answer a question of fact, however obvious he may believe the answer to be and although he may be satisfied that any other answer would be perverse.”
Grieve endorses this without reservation: the right of the jury to return the verdict it collectively believes is the true one is inalienable. Even if the verdict seems to fly in the face of the evidence, it is essential that juries are trusted to take decisions with proper direction.
The Practical Case for Jury Trial
Grieve makes several practical arguments:
Conscientious and effective. The experience of lawyers, judges and practitioners is overwhelmingly that juries almost always do a conscientious job. Appeals against conviction based on jury failings are rare.
Research support. Professor Thomas of University College London published research in 2010 finding little evidence that juries are unfair. Once sworn, juries reached verdicts by deliberation on 89% of all charges and were discharged in less than 1% of cases. The research found that conviction rates varied by offence type in a rational way — offences with stronger direct evidence had higher conviction rates — suggesting juries do try cases on the evidence and the law.
Democratic legitimacy. Jury trial provides genuine participation in the criminal justice system. Many people will go through life without direct involvement in the justice system. Jury service is one of the most serious civil duties any member of the public can be called upon to perform, and it gives the system democratic legitimacy.
The Challenges — Internet Research and Juror Misconduct
Grieve addresses two specific contemporary challenges.
Internet research. Jurors are directed not to conduct their own research. The case of Theodora Dallas at Luton Crown Court in 2011 is used as the example: a juror searched archived news reports about the defendant, discovered prior court appearances, and the trial had to be aborted. The Lord Chief Justice imprisoned Dallas for six months for contempt. The victim had to give evidence again at a retrial. Grieve’s view is that the fundamental principles of juror restraint are timeless — the internet creates new opportunities for misconduct but not new principles.
Juror-defendant communication. The case of Fraill and Sewart involved a juror initiating Facebook contact with a defendant she had just acquitted while the jury was still deliberating on co-accused. Details of deliberations were disclosed. Both were tried for contempt before the Lord Chief Justice.
Law reform. The Law Commission published recommendations to create a statutory offence of juror misconduct. Grieve welcomed this — noting that the proposal itself endorsed jury trial by providing that a juror accused of misconduct would be tried by a jury of their peers.
Key Points for This Series
Several passages are directly relevant to the jury rights analysis already conducted in this series.
First — the inalienable right of the jury to return its verdict. R v Wang [2005] 1 WLR 661 confirms there are no circumstances in which a judge may direct a verdict of guilty. This is directly applicable to the earlier analysis in this series of jury independence and the limits on judicial power to direct verdicts.
Second — Bushel’s Case (1670) as constitutional authority. The Attorney General himself identifies Bushel’s Case as the foundational authority for jury independence. This is a primary source reference to a case that is fundamental to the English constitutional tradition inherited by Australia.
Third — the jury as a constitutional check on state power. Grieve’s framing is explicitly constitutional — the jury is not merely a procedural device for fact-finding but “a vital safeguard in a free society” and “a bulwark of our freedoms.” Lord Devlin’s description of jury trial as “the lamp which shows that freedom lives” is expressly endorsed.
Fourth — practical research confirms effectiveness. The 2010 research by Professor Thomas provides empirical support for what this series has argued from principle — that juries are effective, conscientious, and rational in their decision-making.
Fifth — participation and legitimacy. Grieve’s democratic legitimacy argument is relevant to the broader framework in this series: the jury is the mechanism by which the community — as distinct from the State — participates in the determination of criminal liability. It is not merely a procedural convenience; it is the expression of the community’s judgment about whether the State has proved its case.
The Applicable Principle
Grieve’s speech, delivered by the senior law officer of the Crown, confirms what this series has established from case law: the right of an accused to trial by jury in serious matters is a constitutional safeguard of the first order. The jury’s verdict is inalienable — no judge can direct it, no prosecutor can predetermine it, and no administrative convenience can displace it.
Libera enim esse debet sententia juratorum — the verdict of jurors ought to be free. Bushel’s Case established this in 1670. Grieve confirmed it remains the law in 2013. R v Wang confirmed it in 2005. The principle is unbroken across more than three and a half centuries.
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