Protest, Juries, and Discretion

Dissent, Protest, & Justice series 007.

Originally posted onFacebook, 6th January 2022

The jury’s perverse acquittal of the Colston statue vandals, and the 06.01.2021 protestors’ request that congress not certify the US election result, both involve the proper functioning of systems which build liberty on the common sense of non-experts.

Juries are comprised of 12 lay people, not because 12 judges/lawyers would be too expensive. But to move conviction from being the automatic consequence of disobeying a law, to being something that also requires 12 fellow citizens to believe that the law is just.

I have precious little sympathy for the Colston vandals, or for those that helped soviet agent George Blake escape, or for Clive Ponting’s leaks . But our liberty rests on the system that allowed 12 of their peers to thumb their noses at laws which jurors felt were unjust.

The certification of US elections likewise involves chosen good men and true exercising their judgement. If the intention of the constitution had been for a rubber stamp, the possibility of discretion would have been removed. It is put there as a safety valve to prevent injustice. And, if voters think that there is an injustice, it is their duty to make representations to those trusted with discretion.

On 6th Jan 2017. Half a dozen Democratic House members raised formal objections to the Electoral College vote count. California lead the charge, Barbara Lee saying "I object because people are horrified by the overwhelming evidence of Russian interference in our election”, and Maxine Waters, "Is there one United States senator who will join me in this letter of objection?”. Members of the public in the House’s Visitor galleries shouted and were removed by security.

In GW Bush’s 2005 re-election, citing alleged voting irregularities, Congressman Stephanie Tubbs Jones (D- Ohio) and former senator Barbara Boxer (D-Calif) objected in writing to the Ohio electoral votes.

In 2001 Members of the Congressional Black Caucus objected to the counting of Florida’s electoral votes.

During Capitol Hill deliberations on other key ratifications, such as Justices nominated for the Supreme Court, public protests are usual, and sometimes become illegally violent. In 2018 during the Kavanaugh confirmation, protestors were inside the Senate Office Building. They waived banners and confronted at least one Senator.

Reports of the 6 Jan 2021 protests, and six people dead, suggested the day went further than other recent protects to the legislature. But issue should only be taken with any violence, not with protest itself. Peaceful protest is the right thing if one believes that an injustice is nigh. And the common law since 1689 has been “ it is the Right of the Subjects to petition the King and all Commitments and Prosecutions for such Petitioning are Illegal”

The moment support for a right becomes contingent on one’s approbation of the people using it, it is just a privilege not a right. The reasonableness of belief in Russia rigging the election for Trump, or voter fraud for Biden, is irrelevant. If peaceful protest and petitioning is not allowed, when someone has a concern they must choose inaction or illegality. Not good a good choice for either the person or the country.

So on this anniversary day, let’s celebrate the right to use our own judgment, to reject unjust laws, to question the official line, and to protest when we see injustice. Returning to U.K. history, while Clive Ponting was annoying to the government at the time, with the benefit of forty years hindsight, would the world have been a better place for not knowing details of the Belgrano sinking, or for having incarcerated Ponting?

Who gets to chose the dramatis personae in that Yes Minister irregular verb:

I give unofficial briefings

You leak

He is in breach of the official secrets act

Either it is a jury, or it is the establishment marking their own homework.

Another take

After I posted the piece on Facebook, someone kindly posted a link to https://thesecretbarrister.com/2022/01/06/do-the-verdicts-in-the-trial-of-the-colston-4-signal-something-wrong-with-our-jury-system-10-things-you-should-know/?s=04&fbclid=IwAR2omO1ZwWy-6HdkKo64arzid1RXIdFY64mocW9jTeIYZ78CvtVqo17sjCg