Lady Hale calls for more research into jury behaviour

Lady Hale has called for more research on "what works and what does not work in getting juries to do as they are told".

In a speech to the Socio-Legal Studies Association last week, she said that research had revealed "the unsurprising fact that jurors do not always understand the judge's directions and even if they do understand them they do not always follow them."

Lady Hale said courts were "understandably anxious" to address the problem but could not risk accepting that "a large number of jurors may be deciding the case by what they have learned outside the courtroom and will not understand how unfair this is."

She said: "The courts have to go on trusting the jury otherwise the whole system will collapse."

Lady Hale said research by Cheryl Thomas, professor of judicial studies at UCL, into the work of juries for the MoJ had been used by the courts in different ways.

She referred to Attorney-General v Associated Newspapers [2011] EWHC 418 (admin), a prosecution of The Daily Mail and The Sun for contempt of court in publishing online a prejudicial photo of the accused during his trial for murder.

Lady Hale said: "In assessing the risk, not only of members of the jury accessing the material but also of its influencing their verdict, the court observed rather dismissively that 'there are those who rely on research to doubt whether juries obey the prohibition not to search the internet'.

"But it then went on to reason that although the courts do trust jurors to obey a prohibition on consulting the internet, they have been concerned to meet the problem - instant news requires instant and effective protection of the integrity of a criminal trial.

"So the newspapers were guilty of contempt despite the courts' confidence that the jurors would do as they were told."

Lady Hale said Thomas's research was also used by lawyers for defendants who complained of pre-trial publicity, such as in R v Ali [2011] EWCA Crim 1260.

"Counsel cited Cheryl's research in support of the argument that the new jury could not be relied upon to follow the judges' directions not to do research on the internet.

"She reported that 26 per cent of her sample in high profile cases said that they had seen information on the internet, although only 12 per cent were prepared to admit that they had gone looking for it.

"So it was highly likely that in this very high profile case there would be jurors who were very well aware of what had gone on before.

"The answer given - which some may find less than convincing - was that for this to have any effect upon the jury would require all the other jurors to disobey their oaths."

Lady Hale said a further use of the research on juries was to justify "what some might feel are draconian sentences" on "those who disobey the direction and not only do the research but are unwise enough to share it with their fellow jurors, one of whom is now bound to shop them".