If you ask a lawyer why they became a lawyer I suspect some of us that little bit older might say a film like ’12 Angry Men’ was an influence. This classic film starring Henry Fonda follows the jury who are deliberating a murder trial. Fonda is the dissenting voice in the jury room and seeks to convince the other jurors the case is not as clear as it first seems. There is no need for a ‘spoiler alert’- I won’t tell you the end but the point here is that the Fonda character – ‘juror 8’ – does a bit of his own investigative work. I am not able to comment on the U.S provisions relating to juries, but in England and Wales what he did would be a contempt of court. He doesn’t, as is required here, merely consider the evidence put in front of him and the other jurors, he goes off and finds some of his own.
In 2011 we acted for Joanne Fraill. She was the first juror to be charged with contempt of court through the use of Facebook (she had contacted one of the defendants in the case). She had also used the internet to research certain aspects of the case. The case was heard at the High Court by a tribunal which included the then Lord Chief Justice, Lord Judge. He had stated around the time of the case that the internet was perhaps the biggest threat to the sanctity of jury trials. One concern was the risk of jurors like Ms Fraill accessing the internet to research the case, a matter which is a constant worry for those of us who represent clients who may have a ‘chequered past’. In some cases it is conceivable to think that a successful bad character application by the prosecution may be less harmful than an internet search which could flag up a forum on which the client is discussed and dissected, without any means of recourse; or coming across a report of a case involving the defendant from several years before. We are also alive to information on Facebook pages which can often contain messages or material to undermine a statement or impression the individual is otherwise trying to portray.
As a result of the Fraill case the warning to jurors was changed to emphasise to the jury the prohibition on research. Other cases suggest the warnings were not adhered to (see A-G v Dallas), so it was necessary for the Criminal Procedure Rule Committee and subsequently the government through the Attorney General for a review of the law in this area. There was a seemingly thorough consultation process which concluded in February last year and last month the Law Commission produced its recommendations.
The issues at the heart of this are complex and perhaps explain why a 141 page report followed. The commission recognised that there is a balance between i.) Protecting the jury from prejudicial material, ii.) The defendants right to a fair trial and iii.) The media and others’ right to freedom of expression. To analyse all of these issues would take too much time from my fee earning responsibilities. However there are some aspects which the Commission considered which are worth highlighting.
- Amongst the proposals the commission suggests a specific criminal sanction against any sworn juror who conducts deliberate unauthorized searches for extraneous material; imprison-able up to two years. This may make it clearer to the jurors from the outset the consequences of research and have a preventative effect. It would also simplify the administration of justice in this area, the process currently of bringing contempt proceedings (and as I discovered, defending them) is arcane, complex and costly.
- The commission recognised that a juror or even potential juror, may inadvertently come across material which could prejudice the outcome. Although the risk may be low the commission restated that juries must not be partial or seen to be partial; therefore the report suggests that in some instances there should be a temporary removal of material which might prejudice a future trial.
It seems anomalous that in a modern society where we are encouraged and indeed educated to ‘think for ourselves’, that a juror must limit ones thinking to that which the court allows. Like ‘juror 8’ or ‘Sherlock’ we like to think we can work things out. And since we have tools to access so much material ‘now’ that can aid our deductive processes, why not use it? When we live in a world where policemen, politicians and priests, once the most trustworthy of individuals are now ironically ‘held in contempt’ by large parts of society, it might seem a bit rich to patronise jurors by telling them what is and isn’t suitable for them to look at whilst they are considering a case. Shouldn’t we encourage scepticism in circumstances where justice and liberty are at stake?
Only last week the integrity of the police was trashed again in the ‘Plebgate’ row and of course we had the dramatic scenes outside the High Court following the ruling in the Mark Duggan case. I do not know the details of the evidence the jurors heard in the Duggan case and the rules currently insist that we are not entitled to know anything of their deliberations on how or why they came to the conclusion they did. That is really another debate. The question for now is ‘what should jurors be allowed to do?’
The system is not without fault, but please, please, please we must not dispense with juries. Thankfully the commission also propose “a specific, statutory, defence to a breach of section 8 of the Contempt of Court Act 1981, where, after the conclusion of the trial, a juror, in genuine belief that they are exposing a miscarriage of justice discloses the content of jury deliberations to a court official, the police or the Criminal Cases Review Commission”. (Section 8 prohibits jurors disclosing their deliberations etc).
So the commission are proposing a balance, one which will allow the sceptical (albeit constrained) juror to raise concerns, but fundamentally adhere to the principle that they should not consider the case on anything other than the evidence they hear in court. Lets see if it gets off the ground!”