Do jurors have an absolute right to acquit a defendant according to their conscience?

Question

It is in the news that someone is being prosecuted for holding up a placard stating: “Jurors: you have an absolute right to acquit a defendant according to your conscience.” outside the crown court while it was hearing a trial relating to direct action by climate protesters.

Is this statement true? I have always believed it to be true, and it appears to be based on case law from Bushel's Case from 1670. However Mr Justice Cavanagh is quoted as denying this right:

It is not the case in any trial that jurors can acquit by their conscience if by that it is meant that they can disregard the evidence and directions given by the judge and decide on their own beliefs whether a defendant is guilty of a criminal offence.

Is this a decided legal question? Do we know for sure if juries have the right to give their verdict according to their convictions?

William Penn and William Mead plaque at the Old Bailey

Transcription of the text of the above photo, from openplaques.org:

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.

Answer 1

canada

It is a de facto power, not a right

In Hohfeldian terms, the jury's ability to nullify is a de facto power not a right (see Wesley Newcomb Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1929) Yale L.J. 16, pp. 44–54).

The Supreme Court of Canada has recognized this distinction. While acknowledging that there can be a proper role for jury nullification, and that a jury has this de facto power, the Court rejected the proposition that this is a "right." See R. v. Latimer, 2001 SCC 1 (internal citations removed, emphasis from original):

58 This Court has referred to the jury’s power to nullify as “the citizen’s ultimate protection against oppressive laws and the oppressive enforcement of the law” and it has characterized the jury nullification power as a “safety valve” for exceptional cases. At the same time, however, Dickson C.J. warned that “recognizing this reality [that a jury may nullify] is a far cry from suggesting that counsel may encourage a jury to ignore a law they do not support or to tell a jury that it has a right to do so."

See also R. v. Morgentaler, [1998] 1 S.C.R. 30 (emphasis mine):

It is no doubt true that juries have a de facto power to disregard the law as stated to the jury by the judge. We cannot enter the jury room. The jury is never called upon to explain the reasons which lie behind a verdict. It may even be true that in some limited circumstances the private decision of a jury to refuse to apply the law will constitute, in the words of a Law Reform Commission of Canada working paper, "the citizen's ultimate protection against oppressive laws and the oppressive enforcement of the law". ...

...

The difference between accepting the reality of de facto discretion in applying the law and elevating such discretion to the level of a right was stated clearly by the United States Court of Appeals, District of Columbia Circuit, in United States v. Dougherty, 473 F.2d 1113 (1972) ...

Likewise, the accused does not have a right to a jury that might nullify (Latimer):

68 The appellant’s second argument is a broad one, that the accused person has some right to jury nullification. How could there be any such “right”? As a matter of logic and principle, the law cannot encourage jury nullification. When it occurs, it may be appropriate to acknowledge that occurrence. But, to echo the words of Morgentaler (1988), saying that jury nullification may occur is distant from deliberately allowing the defence to argue it before a jury or letting a judge raise the possibility of nullification in his or her instructions to the jury.

69 The appellant concedes as much, but advances some right, on the part of the accused person, to a jury whose power to nullify is not undermined. He suggests the right to a fair trial under s. 7 of the Charter encompasses this entitlement. The appellant submits that there is a jury power to nullify, and it would be unconstitutional to undermine that power.

70 We reject that proposition. The appellant cannot legitimately rely on a broad right to jury nullification. In this case, the trial did not become unfair simply because the trial judge undermined the jury’s de facto power to nullify. ...

Answer 2

yes, the jury can do this as a fact, if not as a right.

Jury Nullification / Jury Equity is a thing. The jury might see the most guilty person who even admits the deed, but they may still decide "They're not guilty." They might do so for any reason, but it is less a right they have to be informed about but a simple result of their power not to convict: once they put in a verdict of not guilty that's it.

The Cavanagh quote however says not that they can't do this. It says they can't disregard the evidence and judge's instruction in doing so. It's a call to follow the established procedures and not use the extraordinary means of jury nullification. It's not a right, it's just a power they have.

But informing people about it can be tampering with a Jury

Standing in front of a Courthouse with such a sign can give rise to jury tampering, and result in the jury being dismissed and replaced, or even a trial without a jury held instead.

Answer 3

united-states

This is sort of like telling witnesses, “You have an absolute right to testify that you don’t remember something, and no one will ever be able to prove beyond a reasonable doubt that you were lying.” They are not supposed to. It’s just that you can’t get caught and punished for pretending not to remember something unless you’re completely stupid, or for voting the wrong way on a jury at all. Jurors and witnesses take an oath not to do those things, the judicial system can only function if they take that seriously, and telling them not to will be interpreted as an attempt to disrupt the trial.

Despite this, there are several celebrated trials where the jurors refused to convict because they considered the law unjust. The most famous was the trial of John Peter Zenger in 1735. There are also, however, some famous trials where a jury refused to convict someone for a lynching solely because the victim was Black, such as in the cases of Emmitt TIll and Medgar Evers.

Answer 4

It’s not so much a right, as inherit in the position — you can’t have someone making a decision that you then punish them for making and then truthfully say they were free to make the decision.

“Ladies and Gentlemen of the jury, here’s the defendant, we will show he is guilty of the crime of X. If not convicted, all of you will spend the next 99 years in jail. What is your verdict?”

Absent criminal conduct (bribery, conspiracy), neither the prosecution nor the jury can be punished for “failure to prosecute or convict”, without turning the idea of innocence and trial into a joke.