Where is the Tension? The Juror's Oath and Conscience
Disclaimer for our Troubled Times
No part of this short essay is legal advice of any kind, and must not be relied upon as such. I do not accept any liability whatever for any reliance upon these thoughts I give. Rather, It is a discussion about common sense and conscience, things that seem more and more lacking in our world, of late, and we must each rely on our own, no matter what the threat we face if we do, and no matter if we are told we cannot. It is not possible to claim that to act according to your conscience will be without consequence, but history shows us the consequences which can occur when people wait for permission so to act.
The Tension Identified
It is repeated by many, and seems to emanate from lawyers, that when a jury returns what is described by some as a ’perverse acquittal’, also known as jury nullification, annulment by jury or jury equity, that the jurors are breaking their juror's oath. And this has been described as causing a tension between the acknowledged power of jurors to return such a verdict, the judge not telling them of this power, and the jurors oath.
Definitions
What is meant by a ‘perverse acquittal’, jury equity and annulment by jury was recently said to be:
"a verdict of not guilty where the application of the law to the undisputed facts should result in a conviction, but a jury acquits. Because a jury’s reasoning is not known, this is the only situation where it is necessary to consider whether a jury is, or should be, free to behave like this. If the outcome may have turned on the resolution of issues of fact then it would be wrong to describe it as perverse, even if that resolution seems far-fetched to some.”
Webster and others v The King [2026] EWCA Crim 9. 1
Sir Patrick Devlin thought it would be wrong to call it perverse in any circumstance:
‘Perverse has come to be a lawyer’s word for a jury which offers its own standards instead of those recommended by lawyers. It is an unfortunate, even impertinent word to use about an equal when all you are saying is that you disagree with the conclusions which it is his job to reach and not yours’2
You may have noticed the language used by the Court of Appeal in the above passage from Webster, questioning whether a jury ‘should be free to behave like this’. How does that language make you feel? But, I digress…
What is meant in Webster here by ‘law’ is presumably the law or the legislation as it is set out to the jury by the trial judge, though it is not defined in the judgment.
Here is the juror's oath as set out in the Criminal Procedure Rules 2025,25.6(9)
The oath or affirmation must be in these terms, or in any corresponding terms that the juror declares to be binding on him or her— “I swear by Almighty God [or I do solemnly, sincerely and truly declare and affirm] that I will faithfully try the defendant and give a true verdict according to the evidence.
(The history of the juror's oath and how this particular formulation came to be contained within the Criminal Procedure Rules, is a separate study, and not part of this short essay.)
The Two Bases
Now we have dealt with some definitions, let’s turn to the apparent reasoning behind this opinion (often stated as fact) that exercising jury equity is a breach of the juror’s oath. The argument seems to be made on either one or other of two bases, as follows:
First Basis: The Jury Ignored the Evidence
If the evidence adduced showed the facts to be such that the legislation or law as set out by the judge was clearly breached, the fact that a not guilty verdict is given is said to show that the jury ignored the facts, and, therefore, ignored, or did not give verdict according to the evidence adduced in the case. It is, of course, possible, that a jury, or a judge for that matter, might ignore evidence, and one would often never know - this could include where Guilty verdicts are rendered. Of course, jurors (and judges sitting alone) are entitled to decide what weight to give to each piece of evidence they hear, presumably using faculties for this task which are not specifically listed in the juror's oath. It does not follow that, in the case of a ‘perverse acquittal’ this is what has occurred—that evidence has been ignored. Remember, one purpose of jury equity is acknowledged to be the prevention of state overreach, the refusal to enforce legislation which is unjust. For example, Lord Bingham quoting Sir Patrick Devlin in the 2005 case of R v Wang, stated that the jury 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.’ 3
So, what is more likely happening when jury equity occurs, or a 'perverse acquittal' is given, is that the jury is refusing to enforce the law or legislation as described to them by the judge.
It does not follow, however, that a jury that annuls a prosecution is necessarily ignoring evidence - to say so seems more a way of a lawyer coming to terms with the difficult (to them) idea that the jury simply does not agree with the particular legislation. For example, say the charge was that the Defendant had sung ‘Auld Lang Syne’ on the village green in summer contrary to the legislation of the day which precludes this. If several witnesses gave evidence that he sang that song on the green in the summer, say there was CCTV, say the Defendant admitted he had indeed sung that song on the green in the summer. If the Jury finds him not guilty of that offence, it doesn’t mean that they are ignoring, or lying to themselves about the fact he sang Auld Lang Syne on the village green in the summertime - they know full well that he did. No, they found him Not Guilty because they found this ‘law’ to be oppressive and contrary to Natural Law because it infringed the man’s free will. It is the legislation which they ignore, not the evidence. 4
The Second Basis: The Oath Permits Consideration of The Evidence, and Nothing But the Evidence
The second basis for the argument I have heard goes like this: The fact the juror’s oath states that the juror must give true verdict according to the evidence, means that the only thing that a jury can consider are the facts established by the evidence. The ‘reasoning’ seems to run that because the oath only mentions evidence, it rules out the possibility of using conscience, or departing from the Judge’s rendition of what the law is. This, it seems to me, is patently absurd.
To give a verdict according to the evidence clearly implies that one must apply some kind of yardstick to those facts established by the evidence. If it did not, the only finding possible would be a list of facts. For example, in a murder case, the jury would not be able to conclude that a murder had been committed. Instead, their finding would be along the following lines:
- We find that the defendant pushed the knife into the chest of the deceased who was asleep at the time.
- We find that this action caused the death of the deceased
- We find that the defendant admitted that he intended to put the knife into the chest of the deceased and that he intended to kill him, and we accept he did so intend.
- We find that the defendant was of sound mind at the time.
These are just statements of fact. This is not a verdict, or a judgment. A jury is not asked to give a mere statement of facts.
In order to come to a verdict or judgment, the facts must be measured against some standard in order to decide whether the behaviour is wrong behaviour or not.
Without any yardstick to apply, we cannot say whether these facts mean that a defendant has, or has not, done anything wrong (which is deserving of punishment). This would be the position if we were to consider only the evidence, or the facts established thereby.
Nowhere in the oath does it explicitly state what the standard or yardstick is that the jury must apply to the evidence (or facts established by the evidence) in order to come to their judgment. It does not say the juror must apply the legislation as per the statute, the judge’s direction as to the law, their conscience, or anything else. It is just implicit that they must apply some yardstick to their factual findings in order to reach a judgment. If they applied no yardstick, they could not come to a verdict. The yardstick to be applied could be any one of those things listed above: Statute, Judge’s direction, conscience, or a combination thereof. In fact, the use of the words, "faithfully try the defendant and give a true verdict" would imply a necessity to do justice, and, to me at least, this suggests that one’s conscience should always be engaged.
Let’s look at the above ‘reasoning’ - of only being able to consider the facts as established by the evidence, and how that would work in the case of an imaginary statutory offence of, say, a prohibition on wearing green trousers in a public place on a Tuesday.
Imagine the defendant was caught on CCTV wearing green trousers in a public place on a Tuesday. The trousers are clearly seen as green and there is no dispute that the incident took place on a Tuesday in a public place. Indeed, the Defendant admitted that he did wear green trousers in a public place on a Tuesday. No mental element is said to be required for this offence to be committed. If the jury is only to consider the facts established by the evidence, and not apply any yardstick to judge those facts, all they would be able to say is:
We find that the defendant wore green trousers in a public place on a Tuesday.
They would not be able to say whether he was guilty or not guilty of any offence. They would not be able to say whether he had done anything wrong that was deserving of punishment.
If the jury found him not guilty because they believed the legislation to be unjust (applying their conscience and sense of justice), then those who support the argument that this is a breach of the juror's oath would say that the jury considered other matters that they were not entitled to consider because those other matters are not expressed in the juror's oath. However, if the jury found the defendant guilty, presumably because they accepted the judge’s rendition of the law, there would be no allegations of breach of oath by applying that yardstick (judge's direction) even though that yardstick is also not mentioned in the oath.
The oath is specifically silent as to the yardstick the jury should apply in reaching their verdict or judgment as to whether wrong-doing has occurred, because that is a matter for the jury, acting honestly. We all know that to require an oath where the yardstick to be applied is confined to the legislation and/or the judge’s direction as to the law, would be denying the jury the ability to make a moral judgement, and would render them mere order followers, and so it is silent. This is not to say that there will never be a time when the wording of the oath is changed to purport to deny conscience, and we must be ever vigilant to prevent this happening. If it should happen, it will, ironically, be for each individual to exercise their own conscience as to how they must proceed.
Demanding that a person who is required to make a judgment must ignore their conscience is immoral, and puts us on a road to tyranny. It was when people did not exercise conscience, or were told to ignore their conscience, or when officers put their oath to the state above their conscience, that tens of thousands of Jewish people were put on trains to concentration camps where they were killed. Nevertheless, the argument being made regarding a perverse acquittal being a breach of a juror’s oath, puts us on a trajectory towards this road. It is edging us ever closer to a time when ‘authority figures’ may purport to demand that we ignore our conscience. Our continuing to turn to lawyers, government and ‘experts’ to tell us how we decide our own law, when it is that they believe we may exercise our conscience, and accepting any implication that jury equity is something that the professionals tolerate, when it is our duty to exercise conscience in all circumstances, will lead us further down this path to pure order following, or worse, judgment by algorithm.
Even if the oath did state that the yardstick to apply is the law or legislation as described by the Judge - is that not inherently conditional upon the state (legislators and the Judge) acting justly? That, if the legislation or the judge's directions on that legislation were not, in a particular circumstance, just, then a person is no longer bound by that oath—because it can never be right for a person to be bound to uphold an unjust law?
"According to the Evidence" and The Juries Act
Does not “according to the evidence” in the juror’s oath simply mean - a juror must consider the evidence presented in court, and not evidence or information gleaned outside of the courtroom to which the parties (defendant and prosecution) have no opportunity to respond? So, we don’t speak to others about the case, lest they colour our perception of the facts, neither do we do extra-curricular research, for the same reason. Does it not mean - we must listen to the evidence, whilst trying to keep an open mind, before exercising our judgment? In other words, we must not pre-judge a matter? It is surely actions which would breach these concepts which are precluded as ‘prohibited conduct’ by s20C Of the Juries Act 1974:
Prohibited conduct” means conduct from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue.
An example of such behaviour was given in the Webster judgment. In fact, the case that led to the enactment of s.20C above, was dicussed. A man named Mr. Davey, on his way home from his first day of jury service posted the following on his Facebook account:
Woooow I wasn't expecting to be in a jury Deciding a paedophile's fate, I've always wanted to Fuck up a paedophile & now I'm within the law!
The Webster judgment makes the observation that:
No doubt, Mr Davey would say that his feelings about paedophiles were based on his conscience, but this did not prevent Parliament from criminalising his conduct in expressing those convictions when serving as a juror in a case to which they were relevant.
What Mr. Davey posted on Facebook was a clear announcement of his intention to find a man guilty without consideration of the evidence, or, no matter what the evidence said. This would obviously not amount to ‘faithfully’ trying or ‘true verdict’ giving, and cannot properly be put in the same pot as the act of a deliberating juror applying their conscience to the facts gleaned from the evidence.
Problems with Confinement to Evidence Adduced in the Case
Even the attempt to confine jurors to judge (by yardsticks as listed above) only evidence or information presented in court is problematic. The purpose of a jury of twelve, is to ensure that a cross-section of people from your community deliberate together in a case. People from different walks of life, with different life-experiences and knowledge. If you want them to leave outside the jury room their experience and knowledge which has not been gleaned in court, then, not only would that be impossible, it would also defeat the purpose of the jury. You cannot, nor should you wish to have twelve blank slates deciding a person's guilt or innocence—if this is your aim, then you would choose trial by computer, or by algorithm (but even that is not a blank slate, because it is programmed). Is this the direction of travel?
it is implicit that jurors are to bring their life-experiences and common sense to the table in deliberation. This can be seen, for example, in the evidential rule which says that expert opinion evidence may only be received on a subject calling for expertise which a lay person, a juror, would not be expected to possess to sufficient degree. There are obviously, then, a whole host of areas of knowledge which jurors are likely to possess, but these are not matters where the knowledge is gained from the evidence adduced in court. In the ongoing debate as to whether jurors are capable of understanding the evidence in complex fraud trials, it is often acknowledged that some jurors may have more experience of the relevant business or financial practices than would many judges or the lawyers in the case. Strictly speaking, such knowledge could be said to be information obtained otherwise than from the evidence which is presented in the case.
What If, in the green trousers example above, the case had turned on identification evidence, part of which was the distinctive home-crochet design of the green trousers said to be uniquely owned by the defendant. Say one of the jurors had lived in Nepal and knew that similar crocheted green trousers were made there and had been shipped around the world - thus raising the possibility that there may be many more people owning such trousers. Would it be wrong for that juror to share that knowledge with the other eleven? When does life experience turn into the giving of evidence, does it depend on how widely known is the information as opposed to the knowledge of niche information? What if the trousers were actually sold in Marks and Spencer, but nobody else apart from this one juror seemed to know this - is it still niche information then? What if all the jurors knew about it, but none of the parties in court? What if one of the jurors had learned years before, in school, about the trade in crocheted green trousers and was able to tell the jury that these trousers were not that unique? Should they ask the Judge first? What if the Judge said that they must not tell the others? Would that be justice? It is obviously important to prevent apparent bias or jurors effectively giving evidence to other jurors. The question of where life-experience spills into bias or evidence-giving is addressed in the section on Jurors in the Criminal Practice Direction 2023 6 and the case law you will find referenced there. A full analysis is beyond the scope of this essay.
Clearly, it would be wrong for jurors not to listen to or refuse to consider the evidence given in court, or to instruct a private detective to spy on the defendant, or to base their verdict on, say, the toss of a coin. Such activities would obviously be caught by S20C of the Juries Act, or be contempt of court. But there is a world of activities and life-experience, knowledge and common-sense that a juror may possess which, if used to inform the deliberations, someone with a mind to could argue to be "trying" the issue otherwise than on the basis of the evidence presented in the proceedings on the issue if we were to apply similar thought processes to those we have seen used in relation to the juror's oath. So, it must simply mean that we apply our life-experience, knowledge and conscience to the evidence we have heard in court. Again, common sense is required, and it is apparent in the cases that judges have exercised common sense in this sphere. There is a danger though that whilst there is any suggestion to jurors that using their conscience or their life-experience may be a breach of their oath, or fall foul of the Juries Act, jurors may not feel able to deliberate freely, for fear of prosecution. This is especially so when we are asking jurors to report on their fellow jurors, which we are, and which obviously, sometimes, may be necessary for them to do. As with any curtailments on free speech, these restrictions, which are impossible to define completely, or, in many situations, prevent (and arguably, we should not even try), mean that free discussion may be stifled. So, the use of conscience must absolutely not be equated with breach of oath or 'prohibited conduct'.
A part of jury deliberations is that someone like Mr. Davey is able to freely air their views in the deliberation room, so that the other jurors can hold him to account, to question him on those views, to point out where those views may be wrong, or when they amount to pre-judgment, how the evidence presented in the present case, does not show any crime having been committed, if that is indeed so, and, generally, to help Mr. Davey to see. The drum which is currently being beaten around the use of conscience, or consideration of anything else other than the evidence being presented in court being a potential crime, or contempt of court, may mean that a man with similar views, but more wiley than Mr. Davey, just doesn't speak about his views with the other eleven—and so, such bias remains unknown and is brushed under the carpet—where it is much more likely to mean that justice will not be done. And don't think the answer is to move to judge-only trials—we all have different biases and blind spots—and with nobody else in the tribunal, without even a chance of someone else calling us out on them, justice is even less likely. So much would be lost in exchanging the perspective of the twelve for the perspective of one.
We need to trust our fellow men within the process of Trial by Jury—for there is more present in that room than just the Twelve.
We had become professionalized... They say the office helps to make the man. Even within the much briefer compass of most trials, jury membership does seem to summon up people’s civic-mindedness - perhaps for the first and only time in their lives. Although this is a cynical age, honesty, fairness and justice are concepts nearly everyone believes in, even if they do not personally live up to them. 7
A Juror Using their Conscience is a Given
You need look no further than the case of Wang for a clear acknowledgment that jurors exercising conscience is a given:
Lord Bingham, giving the opinion of the judicial committee of the House of Lords: With great respect I think that to be an unconstitutional doctrine. It is the conscience of the jury and not the power of the judge that provides the constitutional safeguard against perverse acquittal.
and
The trial judge indicated a fairly strong opinion in the present case, particularly at the end of his summing-up, when he hinted to the jury that there was only one verdict that they could in conscience return.
And, finally, once more, from Wang—to make it clear that conscience is not just to be exercised for a guilty verdict, Lord Bingham:
That the last word should rest with the jury remains, as Sir Patrick Devlin, writing in 1956, said (Hamlyn Lectures, pp.160, 162),
"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."
Tension
If we acknowledge the obvious truth, that it is actually impossible for a juror to hear a case and deliberate in a way which would be faithfully trying and true verdict giving, without using conscience (as well as other faculties and knowledge they possess) then the tension dissolves. The tension, of which lawyers are wont to speak, only exists where there is obfuscation or denial of this truth.
It is not what a lawyer tells me I may do; but what humanity, reason and justice tell me I ought to do.
Edmund Burke
LW
References:
1 Webster and others v The King [2026] EWCA Crim 9 — https://www.judiciary.uk/wp-content/uploads/2026/01/R-v-Webster-Ors-2026-EWCA-Crim-9-final.pdf
2 Devlin, P. (1981) The Judge. Oxford: Oxford University Press
3 R v Wang [2005] UKHL 9; [2005] 2 Cr. App. R. 8
4 My Letter to Sir Brian Leveson LJH — https://www.commonlawconstitution.org/resources/my-letter-to-brian-leveson?c=letters-and-communication
5 AG v Davey; AG v Beard [2013] EWHC 2317
6 Criminal Practice Directions 2023 https://assets.publishing.service.gov.uk/media/691b45b584a267da57d70620/criminal-practice-directions-2023-amended111125.pdf
7 Grove, T. (2000) The Juryman's Tale. Bloomsbury Publishing.
Further Reading:
Conrad, C. (2014) Jury Nullification: The Evolution of a Doctrine. Cato Institute Press