Behind bars | Juries in the dock

The Law Commission has just published its consultation paper on the reform of the law relating to contempt of court, both at common law and under the Contempt of Court Act 1981. It is a well intentioned effort '“ and it is not their fault that if you listen attentively you may hear the echoes of King Cnut shouting at the waves to cease their motion. Cnut probably got his feet wet to demonstrate the limits of regal dominance rather than to establish them, as this paper may demonstrate the limits of the law against the sea of information flowing in and out of courts from the internet and its busy little fishes '“ Twitter, Facebook, and all the rest of them.

The problem the commission has grappled with is that information is now just too easy to access, distribute, archive and retain, and that a legal system which needs to limit information cannot stem that tide. Chapter four of the paper deals with jurors, for whom it is an offence at common law to seek information related to the proceedings beyond the evidence presented in court or who disclose information related to their deliberations (which is prohibited by section 8 of the 1981 Act).

A better juror

In the past, a person who wanted to find out the result of a previous court case had to trek to a public library and wade through maddeningly slow microfiche of old newspapers, with some knowledge of the date or place of the trial to start off with. Now all you need is a name, and a few minutes surfing the web will turn up something about that person. It may not be accurate, and it may not be relevant, and it sure as anything isn't evidence '“ but it is out there. And if a juror has done this, and found that the defendant was acquitted of a previous charge of rape, triggering a conviction, what is the law to do? (Exactly what the law did in that case: hold a retrial, and six months imprisonment under common law contempt.)

The research relied on by the commission found that 12 per cent of jurors in high profile cases admitted accessing the internet during the trial '“ and one wonders how many dodged that question '“ despite the frequent warnings given to them not to conduct their own researches. It is interesting why jurors do this '“ ignorance, idle curiosity, malice, having nothing better to do '“ but the research found evidence of yet another reason: a wish to be a good juror. Some felt they needed to know the whole picture, deducing (accurately) that information was being kept from them, or that they needed to understand the law: researching what a legal term means, or what joint enterprise actually is comes within the prohibition. Apparently some jurors felt that they needed to know more in order to reach the right and proper verdict, although that journey of discovery would be contempt, the motive is anything but.

Prevention, not cure

The commission want responses on whether there should be a new offence created for jurors, of accessing the internet for information about the trial they are engaged in '“ but they also set out ideas for preventing the problem at source. They suggest more and better information to be given to jurors, more and better warnings by judges, and better teaching in schools about the duties of jurors and the workings of the criminal justice system. There is some evidence that not all courts give the same quality of information to their jurors about their rights and duties, and not all judges give full directions at the beginning and end of each day '“ greater consistency might get the message across.

The commission also suggests that the oath could include an understanding that independent research was verboten, and that juries might even sign a written contract. All interesting stuff, but the problem may go deeper than a somewhat incomprehensible failure by jurors to understand that when judges say 'Do not research this case on the internet' they not only mean it, but that it does apply to them. There may be a failure of confidence in the legal system itself. We tend to treat juries as passive recipients of the information we choose to tell them. They know full well that juicy stuff goes on during a three hour 'coffee break', coming back to find a grim-faced judge and a blood-stained advocate. They know things are kept from them '“ but do they trust the reasons why? They may also be maddened when assertions in court conflicts with their own knowledge, and is not corrected.

Sometimes, looking things up makes sense. Perhaps encouragement to participate more fully in the trial might give more confidence to the active juror? As a positive accompaniment to grim warnings, judges could tell them they had not merely a right but a duty to ask questions if they are confused or curious. It must be better to openly question the judge and advocates than to secretly surf '“ and we can always Google the answers if we get stuck.