This article was first published in The Lawyer. Click here to view the article.
If the judiciary can’t keep pace with technology, US-style closeted juries will become the norm.
The internet, social media and mobile communications are not only changing the way court cases are reported but making it far harder to protect juries from prejudicial reports from the outside world concerning cases they are sitting on.
Now that the judiciary’s response to the Law Commission’s consultation on contempt of court has been published is it realistic, in the digital media age, to expect juries to remain oblivious to how a case is being discussed in the wider world? Has the time come for juries to be sealed off, US-style?
The timing is coincidental but it is interesting to note that the response to this consultation comes just weeks after the Vicky Pryce trial debacle. You’ll remember one of the “concerning” questions asked by a confused juror was whether they could use evidence not submitted during the trial in coming to their verdict. Answer: No.
Of course, this is one of the precepts of a fair trial. Juries must only decide guilt on the evidence presented in court. Moreover, this evidence is sifted by a judge pre-trial to ensure nothing prejudicial is put before the jury. But easy internet access means it is increasingly difficult to ensure jurors do not embark on their own additional research.
The consultation’s aim was to see whether jurors could be protected. More than ever, there are temptations for jurors to research the defendant for, say, previous convictions, find evidence on the internet, access news reports or contact other jurors and seek to share ideas.
Jurors are given instructions as part of their induction, repeated by the judge before and during the trial. The importance of staying away from the internet is emphasised but, as we saw in the Pryce trial, temptation is still an issue.
The judicial response to the consultation was led by Lord Justice Treacy and Mr Justice Tugendhat. Their paper reflects the views of the president of the Queen’s Bench Division, the senior presiding judge, Lord Justice Leveson, Lord Justice and other senior judges. In summary, they do not support a US-style system of closeting juries but believe more clarity from presiding judges is the key. Prohibited conduct needs to be more keenly spelled out. Further, they propose that an offence be created to deal with jurors who deliberately seek or obtain information about the case they are trying, regardless of their motives.
It is difficult to know how often jurors conduct their own research because the issue only comes to light if another juror reports the conduct to the judge.
Jury deliberations are necessarily private but given the explosion in the accessibility of news and other information via the internet, we can only assume the number of these instances will rise unless the court system gets a grip on the issue.
Does our system sufficiently appreciate the power of the internet and how this is increasing? As technology continues to evolve, are proposals already outdated? And if the judiciary can’t keep up with technology, is not a closeted system in the future inevitable?
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