High Court slaps down ‘fanciful’ prosecution of Trudi Warner

The High Court has slapped down the solicitor general’s “fanciful” attempt to prosecute Trudi Warner for contempt of court, declaring that the minister had “significantly mischaracterise[d] the evidence”.

Last year, Warner, a 69-year-old retired social worker, held up a sign outside Inner London Crown Court that said, “Jurors: you have an absolute right to acquit a defendant according to your conscience.” The sign summarised the principle of “jury equity” – the idea that juries can find someone not guilty regardless of the evidence against them. It is arguably one of the most important principles in English law. For holding up this sign, Warner was charged with contempt of court.

In a huge win for democracy, the High Court has now decided that Warner’s conduct did not amount to contempt and that the attempt to prosecute her was disproportionate. 

The judge said that the solicitor general had “mischaracterise[d] the evidence” when he argued Warner “confronted” jurors. CCTV evidence showed that she  held her sign in a “strikingly unobtrusive manner”, and the judge said it was “fanciful” to suggest her conduct fell into the relevant category of contempt.

The judge distinguished between encouraging someone to take a particular course and merely informing them that a particular course was open to them. He ruled that Warner’s sign did not encourage jurors to discharge their duties in a particular way, but was simply sharing information, agreeing with her legal team that she was operating, in essence, as a “human billboard”.

The principle of jury equity is an important constitutional safeguard that dates back to the 17th century and has been affirmed in our highest courts, making it what the judgment called “an established feature of our constitutional landscape”. 

Constitutions are fundamental in guarding against tyranny, placing important limits on what those who govern us can do. The UK is one of very few countries with an uncodified constitution, so the constitutional safeguards enshrined in common law are particularly important.

The principle of jury equity, one such safeguard derived from the common law, means that even if parliament passes a law that goes against people’s sense of what is right, juries always retain the right to acquit. This remains an important check on power.

As Lord Bingham said in a decision of the House of Lords in 2005, quoting Sir Patrick Devlin, the principle is:

 “an insurance that the criminal law will conform to the ordinary man’s idea of what is fair and just. If it does not, the jury will not be a party to its enforcement… The executive knows that in dealing with the liberty of the subject it must not do anything which would seriously disturb the conscience of the average member of parliament or of the average juryman. I know of no other real checks that exist today upon the power of the executive.”

A plaque celebrating this principle, and its historical origins, hangs in the Old Bailey – England’s most important criminal court.

The judge said that Warner’s placard was “informative”, summarising the principle of jury equity in a way “not far from” Lord Bingham’s description, and “very similarly” to the Old Bailey plaque. The judge concluded it was “not unlawful to accurately communicate the bare principle of law to potential jurors in a public forum”. 

The judgment recognises that this principle is in tension with the juror’s oath to “faithfully try the defendant and deliver a true verdict according to the evidence.”  But the judge was clear that if the solicitor general wants to address this concern, he should do it in parliament, “not by way of contempt proceedings”. So far, parliament has refused to make a change, even when it was recommended to them by a 2001 Review of the Criminal Courts.

The principle of jury equity is long hallowed in English law, playing a vital role against a constitutional background where those who govern us can wield almost unfettered power – much more so than in many other countries. Whether or not you agree with the principle of jury equity, it is chilling that the solicitor general would attempt to criminalise a woman for merely communicating its existence outside a court. The fact that the solicitor general mischaracterised the evidence against Warner shows the contempt the government continues to hold for protesters and for freedom of expression. Fortunately for Warner, and for our democracy, the judge understood the clearly disproportionate nature of these attacks.