Meeting of minds: debating the jury system in a digital age

A quintet of attorney generals joined forces in London last week to look at the international fight against cybercrime. Dominic Grieve QC hosted the annual meeting of his counterparts from Australia, Canada, New Zealand and the US to discuss a host of other issues applicable to the digital age, such as privacy and information sharing in cybercrime investigations, cyberbullying, international cooperation in cross-border investigations and prosecutions, and building worldwide capability to tackle cybercrime.

Also on the agenda was the issue of freedom of expression, social media and contempt of court. The decision to discuss these topics in particular was suggested by the New Zealand attorney general, Christopher Finlayson QC, after the issue arose in several high-profile cases in
his jurisdiction.

In one manslaughter case, a judge was forced to initially discharge five jurors after one researched the case on the internet and told the others what he had discovered. The following day, a new jury was drawn from 36 people.

However, five more prospective jurors had to be discharged because they too had researched the case online. The New Zealand law commission has since proposed making it a criminal offence for a juror to disobey a judge's instructions
and research extra information.

Justice threat

Senior judges in the UK have previously said there is a good case for a specific offence to deal with jurors who ignore warnings and intentionally seek or obtain information about a case that they are trying.

Responding to a Law Commission consultation on the law of contempt last year, Lord Justice Treacy and Mr Justice Tugendhat said that a new offence "would be consistent with statutory or common law offences which criminalise
other misconduct by jurors".

A number of jurors have already been jailed for online research and communicating their findings to others. New moves are afoot to strengthen the law further. The Criminal Justice and Courts Bill, which is making its way through parliament, creates four criminal offences that will replace the existing contempt of court punishments already available
to judges.

These new offences will criminalise jurors researching details of a case a court is trying, sharing details of that research with others, disclosing details of deliberations and engaging in other prohibited conduct.

If it passes into law, judges
will also gain the power to order searches and confiscate smart phones, tablets and other electronic devices from jurors for the duration of a trial to prevent improper communications in the interest of justice.

Grieve has previously warned the public about the dangers of being found in contempt of court by commenting about ongoing cases on social media platforms.

"Blogs and social media sites like Twitter and Facebook mean that individuals can now reach thousands of people with a single tweet or post. This is an exciting prospect, but it can
pose certain challenges to the criminal justice system," he said last year.

Jury debate

Grieve told an audience at think tank Politeia in December 2013 that he was "an enthusiastic advocate of trial by jury". He added: "It is an essential element of the justice system of England and Wales. It is deeply ingrained in our national DNA.

"The right for a man to be punished only pursuant to 'the lawful judgement of his equals' was enshrined in King John's Magna Carta in 1215."

However, recent high-profile cases, such as the Vicky Pryce trial, have shown how modern jurors are finding it increasingly difficult to grasp even the most basic principles of trial by jury. It is perhaps understandable that some jurors cannot help but turn to their own devices and Google the information they think that they need to discharge their duty - even though this is prohibited.

In the lead up to last week's conference, Grieve said: "Juror contempt is a serious risk to justice but people are often not aware of the consequences. The proposed criminal offence for jurors to search for information about their case on the internet or by other means would make the position absolutely clear and would, I hope, reduce the need for future prosecutions. I look forward to sharing the New Zealand experience."

Parts of the media have suggested that courts should employ an IQ test for prospective jurors or do away with the jury system entirely and adopt an inquisitorial system such as in France and Italy. Or one similar to the Dutch system, where a judge decides on a case without
a jury, witnesses or experts and bases their decision primarily
on written reports in case files provided by the parties.

Removing juries from the criminal justice system, simply because of the digital world's allure, would be a drastic decision to take.

However, the risks posed
to justice should not be ignored either. Jurors should only consider the evidence before them and not their own research which may be flawed. How the attorney generals and the courts go about this is open to debate.

It was Lord Denning, perhaps the greatest law-making judge of the last century, as well as the most controversial, who in Ward v James [1966] 1 QB 273 said: "[trial by jury] has been the bulwark of our liberties too long for any of us to seek to alter it.

"Whenever a man is on trial for serious crime or when in a civil case a man's honour or integrity is at stake... then trial by jury has
no equal." 

 

'Judicial direction must be stronger' Rebecca Meads is a barrister at Peters and Peters "The prohibition on juries using the internet and social media to research cases is essential to the administration of justice and the concept of a fair trial. It is fundamental that jurors make their decisions on the basis of the evidence they hear in court, in accordance with established rules of law relating to admissibility. To do otherwise would risk obliterating the possibility of a fair trial and increase the likelihood of miscarriages of justice. "The internet is home to a wealth of extraneous, biased and inaccurate material. This can range from potted histories of a defendant or witnesses, to third-party blogs and opinions. Imagine if jurors were able to conduct internet research, we would no doubt see campaigns by PR agencies, groups of interested parties and individuals trying to promote the good qualities of said defendant, or tarnish the characters of both prosecution and defence witnesses. "Furthermore, jurors carrying out their own research would be an affront to the principle of open justice - the pinnacle on which our legal system is based. Although it is true to say that no one knows the reasons behind a jury's decision, we do know what evidence has been adduced and the legal directions jurors are given by the judge to apply in reaching their decision. If they were to conduct their own research, we would have no idea on what basis they have made their decision. It would also usurp the roles of the legal teams and the scrutiny applied in challenging and probing the evidence presented. "The ability to regulate jurors' actions is nigh on impossible, unless we were to start sequestering them or confiscating their mobile phones or laptops for the entire duration of trials, all of which is unworkable in practice and would, rather, serve only to undermine the jury system. "Judicial directions must be stronger. Jurors should be robustly informed that non-compliance is a criminal offence punishable by immediate imprisonment. For clarity, examples of what would constitute an offence should be spelled out with examples, i.e. that looking up information about the case includes law relating to the case, lawyers involved, or looking on Google Street View at any locations referred to in the case. "They should stipulate the implications if the direction is not followed, namely, the cost of a new trial, and the impact on potential vulnerable victims, as well as the defendant. They should also be given a written copy of the directions to take with them and hang on the wall of jury rooms. It could be said that with the amount of information being given to them that emphasis may otherwise be lost."

 

John van der Luit-Drummond is legal reporter for Solicitors Journal john.vanderluit@solicitorsjournal.co.uk