Prof Alisdair A. Gillespie
In December the Law Commission produced their first report on contempt of court. This is a tricky area of law and the Law Commission has decided (correctly) that it is necessary to consider the issue over several pieces. The first report concerns juror misconduct and, in particular, internet publications.
The Internet is obviously a valuable resource, it has transformed the way that we communicate, interact and even conduct research. Those of us in academia have seen dramatic changes concerning the level of information that we can now access. It is comparatively rare for us to need to physically enter a library anymore with journals and even books increasingly being accessed electronically. Global research databases allow us to access research from any jurisdiction as easily as finding information about England.
The amount of information on the Internet can cause problems for criminal trials however. In England & Wales we famously adopt the jury system although it is worth noting as an aside that whilst the jury captures the public’s imagination, only around 2 per cent of cases will ever end up before a jury (because so many will be dealt with either in the magistrates’ court or will lead to a guilty plea). One of the features of the jury trial – and one that is not without controversy – is that the jury are not told all the information or evidence. The jury are told only what counsel and ultimately the judge believes is legally admissible or relevant.
Perhaps one of the most contested issues in terms of what jurors can know about is any previous convictions of the accused or a witness. The rules relating to character have been the subject of considerable debate over the years and the labyrinthine Criminal Justice Act 2003 purportedly deals with these issues. I am not going to discuss the technical rules of character – you are welcome to wade through the 2003 Act yourself to work those out – but it is worth noting that the general rule remains that the previous convictions of an offender will ordinarily not be admissible as evidence. The 2003 Act effectively introduces a series of exceptions to this general rule.
It is a central part of the English criminal justice system that justice should be done in public and part of this is that the press are free to report not only who is standing in trial (subject to certain exceptions where disclosing the identity of the defendant would lead to the identity of a protected victim being released) and, in particular, the identity of a person convicted of a crime (subject to the same exceptions).
As is well known it is very difficult to ‘delete’ information from the Internet and most search engines will return news stories from several decades ago and that is without considering news providers who have created vast archives of material. The potential consequences of this are that a jury could now find out information that the court does not want them to know about. This could be a previous conviction or it could be the identity of a co-accused or a piece of incriminating evidence that has been excluded because, for example, it was gathered improperly. All of that information is potentially available to the juror who decides to ‘google’ the name of the defendant etc.
How should jurors be stopped from finding out information that they are not supposed to know? One possibility is that material could be (temporarily) removed from the Internet. The Law Commission note that there have been attempts to do this already and they propose a new Criminal Procedure Rule to deal with the making of any order of temporary removal, including considering representations from the press (presented in chapter 2 of the Report). This, of course, raises questions concerning Article 10 of the European Convention on Human Rights (Freedom of Expression) and there will also be questions around jurisdiction (especially for material hosted abroad) but it is at least an attempt to bring clarity to an issue that has caused problems.
This is a very controversial subject and not one that I am going to focus on. It is worth reading the proposals of the Law Commission and it will be interesting to see how Parliament will react to this and, more importantly, whether host providers will comply with an order to remove material (even though this could conflict with practices or constitutional safeguards in other countries, for example the USA).
What I wish to concentrate on however is the response of the Commission to individual jurors (primarily contained in chapter 3 of the report). The responsibility of jurors themselves was brought into focus perhaps most significantly by the case of Attorney-General v Dallas (2012). Ms Dallas, originally from Greece, was a lecturer at the University of Bedfordshire. She was called to serve on a jury concerning an allegation of grievous bodily harm with intent (s.18, Offences Against the Person Act 1861). Despite being told not to, and various notices being placed in the jury room saying “You may be in contempt of court if you use the internet to research details about any cases you hear” Ms Dallas decided to look up the defendant on the internet and found that he had previously been accused of rape and had a previous conviction for actual bodily harm. She then told other jurors what she had found and this was reported to the usher by a fellow juror and ultimately to the trial judge.
In the High Court, the Lord Chief Justice stated:
We have no doubt that [Ms Dallas] knew perfectly well, first that the judge had directed [the jury]…in unequivocal terms, that they should not seek information about the case from the internet; second, that [she] appreciated that this was an order; and, third, that [she] deliberately disobeyed the order…[by her actions] she did not merely risk prejudice to the due administration of justice, but she caused prejudice to it…. The unfortunate complainant had to give evidence of his ordeal on a second occasion. The time of the other members of the jury was wasted, and the public was put to additional unnecessary expense. 
Ms Dallas was sentenced to imprisonment for a term of six months. She has subsequently petitioned the European Court of Human Rights alleging that her treatment amounted to a breach of Article 6 of the ECHR.
Subsequently to this case there have been other high-profile contempt cases, including Attorney-General v Davey; Attorney-General v Beard (2013). Davey was called to a jury that was asked to consider an alleged sexual assault against a child and he posted a comment on Facebook saying, “Woooow I wasn’t expecting to be in a jury Deciding a paedophile’s fate, I’ve always wanted to Fuck up a paedophile & now I’m within the law!” which obviously implies that he would not be discharging his juror oath. Beard, like Dallas, was accused of conducting research on the Internet.
How can these sort of instances be prevented? The Law Commission was concerned that there was not uniform practice across all courts in terms of warning jurors not to research their cases (p.65). There were also differences in terms of how courts dealt with the use of internet-equipped technology carried by jurors. The Law Commission queried whether the average lay person (i.e. a juror) would understand what Contempt of Court meant (p.67). There is also the issue that contempt is currently instigated not as a criminal offence per se, but by the Attorney-General seeking committal for contempt at the High Court. This raises questions about how the ‘crime’ is investigated, by whom, what rights the defendant has and who the tribunal of fact is (indeed it is these factors that Dallas is taking to the European Court of Human Rights).
The Law Commission has recommended that there should be a new criminal offence to specifically deal with this (p.80). It would be a statutory offence and thus Parliament would debate its terms and it would be investigated in the ordinary way by the police and a suspect would have all of the traditional rights that a suspect of any crime has. The Law Commission had questioned whether the new offence should be tried in the High Court (as now), by a judge sitting alone in the Crown Court, or as an ordinary trial by indictment. They had proposed in the consultation paper a preference for trial by judge alone but they now propose that it is dealt with as an ordinary indictable offence, i.e. a trial would take place before judge and jury.
This must be the correct decision. Trial by jury is considered an important part of the criminal justice process and save where the matter is to be dealt with summarily (ie in the Magistrates’ Court) then it should be exceptional for a jury not to be used (currently trial by judge alone is only permitted where it can be shown that there has been attempts at tampering or intimidating a jury). The Law Commission were concerned whether a jury would be prepared to sit on a case concerning someone in their position (another juror), a case of “there but for the grace of God go I” (p.75). However jurors already sit on cases where they may have sympathy for a defendant and there is no evidence that they cannot discharge their duties effectively.
A new offence will be simpler than the contempt jurisdiction. It will be clear and can be readily explained. However given that internet research by jurors is already illegal will the creation of a specific offence change anything? It will be remembered in Dallas that the Lord Chief Justice was clear that Ms Dallas knew that she should not have researched the case but still did so. It is unlikely that the creation of a specific offence would have changed this.
The Law Commission recommended that consideration should be given to how jurors could be warned specifically about the dangers of conducting research (discussed in chapter 5). They suggested that warnings should be clearer and more frequent (p.109). In the consultation paper they recommended that consideration should be given to making jurors sign a declaration accepting that they should not conduct internet research (amongst other things). The response to this proposal was mixed although a slight majority was in favour of it (p.114). I believe that it makes sense to get a juror to sign such a declaration. It puts jurors on notice as to what their responsibilities are and they are likely to take it more seriously. They know that having signed a written declaration that they will not conduct research that it will be very difficult to persuade another jury that they did not understand that they should not do so. It seems to me a simple and cheap way of reminding jurors of their obligations.
The Law Commission also considered whether jurors should have their internet-enabled equipment removed from them at court (p.117). There was an interesting question whether judges currently have the power to do this and the Law Commission proposed that the position should be set out in statute. Again, this is very sensible. There may be occasions when removing devices is necessary and there should be no doubt about the power to do so.
However it must be recognised what this means. The reality is that the main internet-enabled device that people will have is their mobile telephone. Few would welcome their telephones being removed from them and there is the possibility that both Article 8 (Right to Respect for Private Life, Family Life, Home and Correspondence) and Article 1 of Protocol 1 (peaceful enjoyment of possessions) of the European Convention on Human Rights would be invoked. Whilst neither are absolute rights, the proportionality of any removal must be considered carefully.
Where there is perhaps a stronger case for removal is in the jury deliberation room. This is where the jury should be considering only the evidence before them and there are already procedures that limit communication outside of that room. Preventing internet-enabled equipment being taken into the jury room (with safeguards in place so that the juror can be contacted in an emergency) is a sensible precaution. It will ensure the jury consider only the evidence in front of them. Whilst, of course, there is nothing to stop them from conducting research outside of the room (including at home) the fact that internet-enabled devices have been removed from them perhaps serves as an additional notice that they should not be conducting research on the Internet.
As noted at the start of this blog, the Internet poses great challenges to the legal system in terms of how trials are conducted. Sensitive issues are raised here and there is a constant tension between, for example, the right of the defendant to seek a fair trial and the right of jurors to access the Internet freely and media companies to publish information. This is a complicated area but it is submitted that the Law Commission have considered this carefully and navigated dangerous waters in a calm manner. Their proposals are sensible and should be implemented speedily by Parliament as it can only improve the integrity of the criminal justice system.
Alisdair A. Gillespie is Professor of Criminal Law and Justice and the Deputy Head of the School of Law at Lancaster University.His main research interests concern the law of child exploitation, particularly where it is facilitated by Information and Communication Technologies. He also has particular interest in cybercrime, a topic on which he is currently writing a book for Routledge.
You can find out more about Alisdair’s research at http://www.lancaster.ac.uk/fass/law/profiles/alisdair-gillespie