The Jury Is Being Killed by the Internet

Provision of Information for Jurors

The court officer must arrange for each juror to receive general information as directed by the Lord Chancellor about a juror’s responsibilities, and a written notice of the prohibitions against research by a juror and disclosure or any such research to another juror, and a written warning that breach is an offence imprisonment or fine or both, and may be contempt of court.

The judge orally warns the jurors not to search the Internet, and explains the reason. He warns them at the beginning of the trial, and if necessary thereafter at appropriate points, for example, at the end of each session, and when they retire to consider their verdict. He may also warn of the seriousness of disregarding his warning, and perhaps of the penalties.

Criminal Procedure Rules pt 26.3

In a responsible society, and experience shows that the jurors normally act responsibly, one may expect that the jurors will heed the judge’s warning and act accordingly.

Temptation and Yielding to Temptation

However, there is reason to think that some jurors are tempted and do in fact yield to the temptation. They are naturally curious. They are constantly contacting the Internet during their daily lives. They may be dissatisfied and uncomfortable with the forensic rules of procedure, evidence and practice. They may feel that matters are being kept from them, they are being kept in the dark. ² They may not understand the logic and the reasoning behind the rules of evidence. They may feel that they are being ‘tricked by those clever lawyers’, denied information they would like to have, which they suspect is there. They may not be comfortable with the formal and sometimes tedious forensic process. They may not be accustomed to listening, and analysing, sifting the relevant from the irrelevant, the important from the unimportant. They may feel frustrated, they may become impatient. They may be unhappy at the evidence given on a specialist matter by an expert, and want to pursue their own research.

Then they tell their colleagues what they have found out; and this information may be irrelevant or prejudicial or incomplete or inaccurate. Their colleagues may feel inhibited about reporting the irregularity to the jury office or the judge. So nobody outside the jury knows what is going on. Research suggests that a sizeable number of jurors do search the Internet, and even more come across prejudicial material just by accident.

The Consequence

So either nobody knows, and the defendant D may suffer an injustice; or the matter comes to light, the judge stops the trial, orders a retrial, at great inconvenience and cost to the criminal justice system, and an unnecessary and unfortunate burden upon D; or the judge discharges the whole jury and proceeds to hear the case alone, thus depriving D of his right to trial by jury, as happened in the Heathrow robbery trial some years ago.

Could Anything Be Done?

The system could perhaps be improved. The potential jurors could be given better advice and instruction on their duties, clearer reasoned guidance, shown a modern video, all in good time. The judge could do a better job in explaining and warning. The judge could be more alert to detect abuse. The jurors could be required to give a personal undertaking to observe the rules. Efforts could be made by the Police and the Crown Prosecution Service (CPS) and the defence to request the Internet companies to take down sensitive matter in a serious case before the trial. The judge could make an injunction requiring removal. The jurors in a long case could be kept together and in a hotel overnight with no access to the Internet, but this could be impracticable. ³

Juries Act 1974 15A Surrender of electronic communications devices

A judge dealing with an issue may order the members of a jury trying the issue to surrender any electronic communications devices for a period.

Thus laptops and tablets and phones could be required to be surrendered.

The judge may order the search of a juror and the seizure of articles in his possession, but a judge would be exceedingly reluctant to do so. A better alternative would be simply to discharge the juror.

The judge rightly takes a poor view of improper behaviour, prohibited conduct, by jurors. By its very nature, the offence is devious or surreptitious. The jurors are warned by the judge. An excuse that the ‘research’ was accidental may not sound very convincing. The defendant D may be prejudiced. The discharge of the jury will lead to inconvenience, delay cost. A prison sentence is quite likely to be imposed, maximum two years.

The judge will speak of maintaining the integrity of the system of criminal justice, of the prejudice to justice, the defendant D, the victim, and the witnesses, and the delay and cost. Deliberate disobedience cannot be ignored or overlooked. Mitigation may be available along the following lines: The juror did not appreciate the seriousness of the matter. He did not quite understand the warning given by the judge. He has intellectual limitations. He found the evidence and procedure difficult to follow. He may be at an ethic or linguistic disadvantage. He was, however, mistakenly, trying to do the right thing, trying to seek a fuller picture of events, so as confidently to do the right thing, to reach the right verdict. ⁵

Conclusion

In practical terms, there is not much more that can be done to prevent abuse. Too many jurors have the irresistible urge to ‘cruise’ the Internet, it is a way of life. The view of Professor Cheryl Thomas following her extensive research ⁶ was that the best that could be done was to ensure that jurors understand why Internet use has to be prohibited and why any known such abuse by fellow jurors should be reported. The Law Commission proposed a standard judicial direction and requiring all jurors to sign a written declaration reminding them of the obligations to which the judge has drawn their attention. Giving the jurors a written notice in addition to the oral warning is the preferred practice. ⁷ The judges like the written warnings and directions. ⁸ A greater awareness of the need to be vigilant on the part of all the participants in the criminal justice system might help. Tougher sentences for abuse, attracting public notice, might act as a better deterrent. It would be regrettable if the abuse became so bad or perceived as being so bad that our traditional system of trial by jury had to be abandoned. The abandonment of jury trial in Northern Ireland for terrorist cases, the Diplock courts, albeit for very different reasons, was not a success.