Three Strikes created awkward gap between law and justice

Acouple of years ago I attended a conference, where the programme provided for parallel sessions at the same time, forcing people to choose between competing presentations. One was entitled ‘‘Law’’ and the other was ‘‘Justice’’, which I thought was sadly ironic.

Of course, sometimes law is able to deliver justice, but this is not always the case, and people are compelled to either accept an unjust outcome, or find what we euphemistically call a ‘‘workaround’’.

The announcement that the Government is set to repeal the Three Strikes law has brought this debate to the surface – with decision-makers including prosecutors and judges criticised for finding ways to avoid its disproportionately punitive consequences.

National MP and former Crown lawyer Simon Bridges was scathing of judicial pushback in Three Strikes cases, claiming this subverted the intention and supremacy of Parliament. While he is correct in his overall assertion concerning parliamentary supremacy, he fails to acknowledge that the customary separation of powers affords judges significant discretion in sentencing that is all but eliminated by Three Strikes.

Judges and prosecutors are not the only actors in the legal system who can subvert the restrictions of the law in the pursuit of justice. For centuries, ordinary citizens have asserted their power to override unjust laws or circumstances through jury nullification.

Jury nullification, or conscientious acquittal, occurs when members of a jury believe that a defendant is guilty, but choose to acquit. This may be due to beliefs that the law is unjust, the punishment too severe, or that the circumstances of the defendant warrant sympathy.

A historical example involved the 1728 trial of James Carnegie of Finhaven, in Scotland, for the accidental killing of the Earl of Strathmore. Despite there being no doubt as to the fact of the killing, the mandatory punishment of hanging resulted in the jury taking pity on Carnegie and entering a not guilty verdict – after his lawyer appealed to the conscience of the jury to consider the whole case, not just the form of the law.

Other examples of jury resistance to unjust laws include the numerous instances of nullification of the fugitive slave laws in mid-19th-century America, and the rejection of the laws prohibiting the production and sale of alcohol in the 1920s and 30s. Widespread jury rejection of these laws made them virtually unenforceable, and not worth the time or resources of law enforcement to try to uphold.

Sometimes perverse verdicts are entered by criminal juries not in response to the law itself, but in its application to particular defendants or their beliefs. The recent acquittal of six activists associated with the environment movement Extinction Rebellion, who were charged with criminal damage to the headquarters of the Royal Dutch Shell oil company in London, is such an example. The verdict was entered despite the judge’s instruction to the jury that there was ‘‘no defence in law’’ for the activists’ actions.

This decision resonates with the trial in Wellington in 2010 of the three activists who damaged the government’s spybase at Waihopai to draw attention to the war in Iraq.

The defendants admitted the damage, claiming their motive was to prevent the suffering of others, in what was then labelled ‘‘the greater good defence’’. The jury agreed and the accused all walked free – as had similar protesters who had damaged a US navy plane in Ireland four years earlier.

Arguably, some verdicts in homicide trials involving defendants acting under extreme stress, or those who have killed after enduring years of intimate partner violence, are examples of conscientious acquittal. The lack of alternative options such as a defence of diminished responsibility, which exists in some jurisdictions and has long been recommended by our Law Commission, forces juries to consider applying the law or effectively ignoring it.

The enactment of the End of Life Choice Act 2019 provides a lawful option for those who have previously considered mercy killings of the terminally ill, risking criminal prosecution and a plea for nullification.

There are problems with the nullification approach. While some laws may be broadly unpopular with the wider population, and political or social causes may have widespread support, other laws and movements will not be viewed so unequivocally.

The danger of leaving justice to juries is that sometimes jurors project their own prejudices on to the process and outcome. While the conviction of innocent black defendants by predominantly white juries is a well-documented phenomenon in the US, so is the acquittal of white defendants by similarly constituted juries.

The broader constitutional reason we should be concerned about perverse verdicts is respect

for the rule of law – even in circumstances where respect may not be warranted. One of the difficulties with jury nullification is that we are often left guessing as to the reason for the decision – because, unlike judges, juries are not required to provide any justification supporting their verdicts.

Ironically, broadly publicised unjust convictions can provide impetus for legislative change. The challenge is having a law-making process that is able to keep pace with changing social and cultural values, without falling victim to poorly construed knee-jerk reactions to temporary trends.

The danger of leaving justice to juries is that sometimes jurors project their own prejudices on to the process and outcome.