The Lord Chief Justice, Lord Judge, has been considering jury irregularities in the Court of Appeal in {i}Thompson{/i} [2010] EWCA Crim 1623. I don’t want to misrepresent what he had to say (look what happened to poor, sensible, old Canute) so I will paste in a lengthy quote below, but the essence of the part of the judgment that I am interested in will lead to judges in criminal cases directing the jury that they must not do any Internet research on the case or discuss it there (eg on social networking sites).
I do not doubt that the Lord Chief Justice has his law right (I know he’ll be relieved to hear that). Nor do I doubt that the aim is a worthy one – the idea is to reinforce the basic principle which requires that the defendant be tried on the evidence admitted and heard by the jury in court. I freely acknowledge that this is especially important in the context of the Internet, which has a good deal of complete nonsense on it (God knows, I have written some of it). The prospect of a juror doing his late night research on the Net and then casting himself in the role of Henry Fonda in {i}Twelve Angry Men{/i} is very real, and most unwelcome.
But while Lord Judge has an unrivalled grasp of the law and no doubt knows more about juries than is good for him, I am not sure he has quite acknowledged the scale of the problem.
The orthodox comparison for Internet research by jurors is with research using books. Since the juror has for generations been clearly instructed not to go off on some research frolic of his or her own, where’s the problem with the Internet? Surely a clear direction, in terms akin to an order from the judge, will do the trick?
There are two issues that occur to me. First, for a growing number of people (and probably for the vast majority of those reading this blog post) the Internet is a {i}very{/i} large part of their lives. They do not go off for a brief session online at their local library or log on for 20 minutes at the end of a working day – they are online 24/7. Prohibiting some from researching the case on the Internet is not like prohibiting a visit to a library or even prohibiting research in books they own, it is like prohibiting research in a book that they already have open. ‘Don’t look’ – whoops, too late. Moreover, for some, no problem can be assessed without additional online information (you know you have a problem when you are seeking Internet guidance before cutting your toe-nails) – some (and I think many) are not going to follow the judge’s direction. James Richardson, the eminent Editor of Archbold, comments in Criminal Law Week that ‘there is as much chance of stopping jurors from “googling” the names of key players as there was of Canute stemming the tide’. The second problem is with pushed information. If you are keeping notes, as many jurors rightly do, then you may well be keeping notes on a wireless enabled device. As you review those notes at home in the evening after the close of a day in court, information about the participants in the case or about the places involved may well be pushed at you. This is an insignificant problem affecting a tiny minority at present, but in a few years it will be a much more serious problem.
The other, largely ignored, threat to jury integrity comes from Twitter and social networking sites generally. Again, few would disagree with the orthodox line:
‘jurors should not discuss the case with anyone, not least family and friends whose views they 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.’ ({i}Crown Court Benchbook{/i}, chapter 2, para 2).
My first reaction to Lord Judge’s endorsement of this was wholehearted agreement. It seems obvious that, since jurors have for years been warned not to discuss a case outside the jury room (not even with their nearest and dearest), discussion of the case with which a juror is concerned on a social networking site or on Twitter must be absolutely unacceptable. And it should be unacceptable – but again I wonder if the scale of the problem has been acknowledged.
While you and I might be trusted not to discuss the case with even the most curious and persistent of partners, not all are so punctilious. If every case where a juror had discussed the case with a spouse was to result in a mistrial, the courts would be so overwhelmed that Dr Crippen would still be waiting his turn. The truth is that it happens all the time but nobody knows about it officially. But if a juror tweets, the world knows – and the sophisticated information crunching software that is currently available may enable the defendant to know and either engage with the juror or use the abuse to seek a retrial. This could become a very real problem for the criminal justice system.
I don’t have answers. But I would be delighted to hear from any SCL members who might.
The extract from Lord Judge’s judgment in {i}Thompson{/i} is pasted in below but the full judgment is of course available on Bailii (click {here: http://www.bailii.org/ew/cases/EWCA/Crim/2010/1623.html}).
{b}Use of the Internet{/b}
11. The use of the internet has expanded rapidly in recent years and it is to be expected that many, perhaps most, jurors, will be experienced in its use and will make habitual reference to it in daily life. It has already impacted on the court in cases such as R v Karakaya [2005] 2 Cr App R 5, R v Marshall and Crump [2007] EWCA Crim 35 and R v Thakrar [2008] EWCA Crim 2359; see also the experience in New Zealand, R v B [2008] NZCA 130. Just as it would in any other instance where it was satisfied that extraneous material had been introduced, the approach of this court is to make inquiries into the material. If, on examination, this material strikes at the fairness of the trial, because the jury has considered material adverse to the defendant with which he has had no or no proper opportunity to deal, the conviction is likely to be unsafe (R v Karakaya). If the material does not affect the safety of the conviction, the appeal will fail.
12. It is, however, apparent, that the use of the internet is so common that some specific guidance must now be given to jurors. We agree with the approach adopted in the current JSB Bench Book. Jurors need to understand that although the internet is part of their daily lives, the case must not be researched there, or discussed there (for example, on social networking sites), any more than it can be researched with, or discussed amongst friends or family, and for the same reason. The reason is easy for jurors to understand. Research of this kind may affect their decision, whether consciously or unconsciously, yet at the same time, neither side at trial will know what consideration might be entering into their deliberations and will therefore not be able to address arguments about it. This would represent a departure from the basic principle which requires that the defendant be tried on the evidence admitted and heard by them in court. Again, we do not purport to lay down a standard form of words; the sense of the message is familiar to all judges. What matters is that it should be explicitly related to the use of the internet. We recommend a direction in which the principle is explained not in terms which imply that the judge is making a polite request, but that he is giving an order necessary for the fair conduct of the trial. Such a direction will naturally fall to be given at the outset of the trial, in the same way as the direction as to collective responsibility addressed earlier in this judgment.
