Wednesday, 11 December 2013

Jurors and the internet

The Law Commission has published a report - Juror misconduct and internet publications - (pdf 141 pages) - which includes a recommendation for a new criminal offence for jurors conducting prohibited research.   In total, the report contains 31 recommendations.

Clearly, a case must be decided on the basis of the evidence presented to the court and extraneous material should not be taken into account - The Guardian - Law Commission floats plans to stop jurors researching cases online.

In recent times, a number of jurors have been punished for contempt of court. 
As David Banks points out in an article in The Guardian - there were 17,786 jury trials in England and Wales in 2011.  Only a small number of jurors have been convicted of contempt of court where their conduct has involved using the internet.  Banks provides links to some examples including Joanne Fraill - see Attorney-General v Fraill and Sewart [2011] EWCA Crim 1570 (previous post 25th July 2011).

The The Guardian - Theodora Dallas case is of interest since it is proceeding to the European Court of Human Rights - BBC 5th December 2013.   Dallas argues that the judge had not been clear about using the internet or that doing so could be a criminal offence.  The Guardian's article on this case also notes: In a written witness statement to the judges, Dallas admitted that "sometimes my grasp of English is not that good".  That, in itself, raises a further and separate issue about the need for good understanding of the English language by jurors.

A study by UCL has indicated that 23% of jurors are unclear about the rules surrounding internet use during a trial.  However,  Professor Cheryl Thomas said - “These findings show that the vast majority of jurors understand and follow the rules on how jurors can use new media during trial but the message is not getting through and is confusing to a significant minority of jurors."

The Crown Court Benchbook (2010) Chapter 2 states:

The jury will be asked to return a unanimous verdict.  It is their collective view of the evidence which will alone determine their verdict.   They should discuss the evidence only when all 12 jurors are preset in the jury room.

For the same reason, jurors should not discuss the case with anyone, not least family and friends whose views the trust, when they are away from court, either face to face, or over the telephone, or over the internet via chat lines or, for example, Facebook or MySpace. If they were to do so they would risk disclosing information which is confidential to the jury.  Each juror owes a duty of confidentiality to the others, to the parties and to the court.  Furthermore, if they were to discuss the case with others they would risk consciously or not, bringing someone else's views to their consideration of the evidence  ........

If the case is one which has in the past or may during the trial attract media attention, the jury should remember that the report is only the author's version of past events.  It is the jury alone which hears the evidence upon which they must reach their verdict.  They should therefore take care to ensure that they do not allow such second-hand reporting or comment to influence their approach to the evidence.

We have a system of open justice in which the parties themselves decide what evidence to adduce at trial.  It is upon that evidence alone that the jury must reach their verdict.  They should not seek further information about, or relevant to, the case from any source outside court, including the internet (e.g. Google).  If they were to do so it would be unfair to the prosecution and the defence because neither would be aware of the research and its results and, therefore, neither would be aware of the research and its results and, therefore, would be unable to respond to it.


6 comments:

  1. "because neither would be aware of the research and its results and, therefore, neither would be aware of the research and its results and, therefore, would be unable to respond to it".

    It is not unlikely that a juror could have particular knowledge direct or indirect pertaining to the matter in hand. Is she to self impose chinese walls upon herself? If eg medical or other specialised evidence is presented by either side and is known by the juror to be, for argument`s sake, inaccurate is there an onus that certain action should or should not be taken? The fact that juries do not give reasons for their decisions and that research into their deliberations is forbidden leads me to consider that we are approaching a time when fundamental re-assessment of juries, their requirements, their necessity and their functions cannot be far ahead especially with governments increasingly influencing the actions of the judiciary...eg sentencing for the riots of 2011.

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  2. The banning of internet research is one thing, however jurors can still be influenced by tosh disseminated through official channels through the (lapdog) media (see Edward Teague's article SPOT THE 'FRIDGE - Win a Million Pounds - Lord Patel's challenge to Metropolitan Police for example, where strategically placed 'prosecution material' could/would have influenced jurors & their peers).

    Previously early 'terror trials' have collapsed (namely the March 2000 trial of Sofiane Kebilene, Farid Boukemiche, and Sofiane Souidi), however with a new CPS Protocol in place since October 2005, the media play their ready part in terror trial cases, with no questioning of anomalies etc..., because of the jucy headlines..

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  3. As far as I know, jurors are not sequestered - either before or during a trial. They are subject to all kinds of day to day influence. It amuses me whenever I see the words 'alleged' attached to the report of a person of interest in respect of a specific crime. As if that makes a difference. Justice of the Peace is right, we need to have a fundamental rethink of jury trials. Either jurors are intelligent and independent enough to make their decision only on what is put before them in the trial or they are not. I think they are; but if they are, there is no way on earth that they can be shielded from extraneous information - nor should they be.

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  4. Good point, 'The Justice of the Peace'. If a potential juror has direct or indirect knowledge/involvement pertaining to the matter in hand, then the jury 'whittling down' process may exclude the potential juror, but this should not extend to particular 'expert/general' knowledge whereby a juror would be able to see that particular prosecution/defence evidence is untrustworthy. Prosecution/defence counsels tend to exclude jurors who they think will 'see through their case'.

    Note the case of Abdul Aziz Jalil, Mohammed Navid Bhatti, Zia Ul Haq & Qaisar Shaffi who were arrested in August 2004 in connection with the Dhiren Barot fantastic 'Gas Limousines project'. In June 2007 these 4 persons were found guilty of various charges (e.g. Shaffi was found guilty by jurors at Woolwich Crown Court on June 13, 2007 of conspiracy to murder by a majority of 10 to 2).

    On appeal [[2008] EWCA Crim 2910, Shaffi's counsel raised the point that 'that there was no jury ballot' and, in fact, in the original trial of 2007, the jury (whittled down from over 90 persons) contained 2 persons who had 'some connection to the armed services and/or the metropolitan police'.

    It is an interesting question as to whether these 2 persons declared their connections to fellow jurors - we shall never know......, however their (undeclared?) allegiance to the crown may have swayed the case....

    The court process of 'voire dire' is of course used to inform the judge/counsels as to which way a juror would think/vote, but this process can, of course, be used to select jurors who will uphold the crown/prosecution case.......

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