Trial by Facebook Friends?
Civitas, 8 December 2010
Over the last number of weeks, the WikiLeaks debacle has demonstrated incontrovertibly the power and potential of disseminating information online. However, the ability to access a near infinite databank of knowledge, though arguably valuable for scrutinising politicians, is less welcome elsewhere. The country’s most senior judicial figure, Lord Judge, has condemned juries’ use of the internet to research their cases as a violation of the purpose and integrity of the justice system. Nevertheless, attempts to prevent independent research through oral instructions alone are doomed to fail.
The use of technology has been embraced in the courtrooms. With a heightened concern to protect vulnerable witnesses and victims, and facilitate the potentially galling trial process, giving evidence via live video link, or through pre-recorded police interviews for children, is increasingly becoming widespread practice. Yet we must only “welcome advances in technology, provided that we are its masters and it is our tool and servant”.
In the current age, we turn to the internet for almost all our needs, from shopping, to finding jobs, to healthcare. As Lord Judge noted, its very purpose is “to discover answers”. However, it is a fundamental principle, which touches the very heart of the structure and virtue of the criminal trial, that a defendant must be tried only on the evidence presented in court, having had the opportunity to challenge that evidence. At the outset of the trial, and at frequent intervals throughout its duration, jurors are given clear instructions that they must not speak to anyone outside their own number about the case before they reach their verdict, nor can they conduct their own research into the events or persons involved. Nonetheless, in ‘high profile’ cases, a quarter of jurors admit that they have seen information pertaining to the case online. Perhaps even more ominously, only one in eight admitted to searching for it themselves.
That there is a problem is undeniable. In August, a judge in Manchester was forced to restart a trial after a juror asked her ‘friends’ via Facebook, ‘Did he do it?’. Similarly, in Thakrar, the jury asked the judge why they had not been told about the defendants’ previous convictions, after one member had found (false) information online.
Just this year, the Court of Appeal held that an appeal on such grounds should fail unless the material accessed “strikes at the fairness of the trial” and thus “the conviction is likely to be unsafe”. Yet there is no way to identify acquittals unjustly based on the jury’s own inquiries. And had the question in Thakrar not been asked, the defendant may have been convicted on entirely fallacious ‘evidence’, and the catastrophe never revealed.
Jurors should continue to be given oral guidelines as to their expected conduct, and Lord Judge has pressed for instructions to be placed clearly around court buildings. However this alone will not be enough. The Lord Chief Justice notes that a “breach of the Contempt of Court Act 1981 is defined as anything that ‘creates a substantial risk of serious prejudice’” and intent is not required. Although he is somewhat too tentative in his suggestion, Lord Judge is right that “for a juror to examine the internet for information relating to the case is a contempt of court, and a criminal contempt”. Jurors should not only be instructed not to consult the internet during the trial, but should be warned that they face prison for doing so.
The Lord Chief Justice has stoutly, if somewhat naively, stated that “[w]e cannot accept that the use of the internet, or rather its misuse, should be acknowledged and treated as an ineradicable fact of life”. In contrast, the former DPP, (now Lord) Ken Macdonald should be commended for his pragmatic approach to the issue. Although he recognises that juries should not be “allowed” to do online research, “we need to assume this will occasionally happen”. As much as we may try to protect juries from extraneous and false information, policing a juror’s use of the internet, and the accuracy of the information they access, is inevitably “an unmanageable task”. “In essence,” he concludes, “we’re finally giving up”.
Given that we cannot eliminate possible contamination, perhaps we should abolish the jury system altogether? Indeed, earlier this year four men were found guilty in the first juryless criminal trial this country has held for 400 years, using powers under the Criminal Justice Act 2003. Three previous attempts to try the men for the £1.75 million robbery had collapsed, amid allegations that the jury had been “compromised”, costing the taxpayer at least of £25 million. Such subversion can perhaps never be entirely avoided, however, Lord Judge was right to argue that this sad fact “does not alter the essential reality that the jury system has a resonance for us…which it is difficult to underestimate and unwise to ignore”.
This system perhaps does give a single individual quite considerable power, however I’m not sure that, in these circumstances, this should be cause for concern. Firstly, I think the judge is best placed to make this decision. Indeed, the judge is also responsible for making many other decisions, not only at trial but throughout the court process. For example, the judge will resolve disputes as to whether a defendant’s antecedents should be disclosed to the jury or whether a witness will be allowed special measures. I’m not entirely convinced that a decision to discharge a jury (at least, not always) is more serious than a decision, for instance, about admissibility of evidence, certainly not to the extent that it requires more than one judge to sit. The cost implications are certainly greater, as is the potential impact on the witnesses if they are required to evidence for a second time, however the skills and expertise required are largely the same.
Secondly, the judge’s discretion is quite tightly circumscribed. The judge must be satisfied to a relatively high standard before the jury can be discharged – relatively high given that the fairness of the trial is at stake if a jury is wrongly not discharged. A more severe benchmark may run counter to the interests of justice.
Finally, and importantly, there is a right of appeal against the decision of the judge (in the CJA 2003 this is under s.47). An appeal from the Crown Court will be heard by three judges in the Court of Appeal.
I absolutely agree that jury service is often seen as a trial (pun much appreciated), but I’m not sure how we could change the way juries are selected without undermining the integrity of the whole jury system. Far better would be to seek to change the public’s attitude towards jury service, although this is quite clearly problematic. For one thing, such a small proportion of the overall population is ever selected for jury service, and people are perhaps unlikely to see the issue as relevant to them (until of course they receive their summons). In my experience, judges are exceptionally courteous to jurors during the trial, and anxious to accommodate them so far as possible. I know that trials have been adjourned so that a juror can attend a hospital appointment, or because the case fell on a religious holiday (although a juror is perhaps unlikely to know this until they begin their service). Nonetheless, the trial process is often unavoidably arduous for the jury, as they have to leave the court room during any legal argument, and trials are often delayed for any number of reasons.
Perhaps the standard required length of jury service, currently 10 working days, could be reduced? In addition, jurors can make a claim for lost earnings, but the amount they are entitled to receive may not cover their actual losses.
I think it’s important, however, to draw a clear line between jury tampering (as in the Heathrow case) and jurors wrongly conducting independent research (as discussed in Lord Judge’s lecture). Attempts to bolster public reverence for jury service may well mitigate the latter, but are unlikely to prevent the former.
Thanks for the (huge!) response.
My concern is that the judge is given the discretion to dimiss the jury as he or she sees fit – isn’t this too much power to be given to a single person? It does seem like the only simple solution would be one of all or nothing and I agree with Mendelle’s quote.
Perhaps the elephant in the room is the manner in which juries work and are selected – few ever enjoy jury service or see it as just that – a ‘service’ for the betterment of the community. From my experience it is more of a trial (pardon the pun) and a slog. If it was made more reasonable and respectful of the fact that the jury, while compelled is still giving up their time, then this respect would lead to greater respect from the jury for the rules – less tampering.
Do you agree?
Juries in the UK have always been sequestered to some degree, although not usually to the levels seen in the US, where they can be kept in isolation in hotels for as long as is required. Ideally, we would keep the jury away from the web for the duration of the trial. However, putting cost issues aside, this would still not prevent them from accessing information – particularly about well-reported high profile cases – before they are even selected.
We could compel all jurors, once sworn, to surrender their private computer systems, mobile phone or any other communications device, for scrutiny. However, as Lord Judge notes, it’s unclear which authority could be responsible for this task. Moreover, the disastrous ramifications of such a scheme for civil liberties are axiomatic. And the entire endeavour would be futile in any case, as jurors could simply use someone else’s device or an internet café.
In relation to the Heathrow case, the decision to allow the trial to take place without a jury was taken by the very same Lord Judge. The case related to an armed robbery at a cash depot at Heathrow Airport in 2004. The Lord Chief Justice made the decision as he feared jury “tampering” which could not reasonably be protected against.
I don’t want to get unnecessarily legalistic, but I think it’s worth looking at the statutory framework under which this decision was made. The application was made under Part VII of the Criminal Justice Act 2003 (http://www.legislation.gov.uk/ukpga/2003/44/part/7). s.46 of the Act deals with circumstances in which a “judge is minded during a trial on indictment to discharge the jury” because such tampering appears to have taken place (ss.46(1)(a), (b)). After appropriate representations by the parties, the judge may only discharge the jury once he is satisfied that the jury tampering has taken place (s.46(3)(a)) and that “to continue the trial without a jury would be fair to the defendant” (s.46(3)(b)).
Under s.44 of the Act, a trial may be continued without a jury where there is “evidence of a real and present danger that jury tampering would take place” (s.44(4)) and that, notwithstanding any reasonable preventative steps, “the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury” (s.44(5)). The Act continues in s.44(6) to give examples of when such a “real and present danger” of tampering may occur, including where a trial has already been discharged because of jury tampering (s.44(6)(a)).
Finally, (I promise, the last bit of technical legalism) under s.48(5)(a), where a defendant is convicted after a trial without jury, the court must give a judgement stating the reasons for the conviction as soon as reasonably practicable after the verdict.
In the particular case mentioned here, Judge LCJ, sitting with Goldring LJ and McCombe J at the Court of Appeal, drew attention to the “serious criminal” nature of the charges, including possession of a fireman with intent to endanger life. Although Lord Judge acknowledged that trial by jury in this country “is a hallowed principle of the administration of criminal justice”, the court held that the cost of the necessary measures to protect the jurors from potential influence in this case, such as the services of police officers, was too high, and that the case had already reached ten times the proceeds of the robbery in legal costs.
The CPS refused to disclose the evidence of jury tampering seen by the appeal judges to the defence or the public, due to the “sensitivity” of the information, saying that there were still “risks” associated with the case. Of course, this makes it difficult, if not impossible, for us to reach our own conclusions as to the validity of the decision. However, what we do know is that there had already been three attempts to try the defendants before the final trial. One of the defendants, Twomey, suffered a heart attack during the first trial. In the second trial, one juror refused to return to court, protesting that he felt “like a prisoner in the building and in the jury room”. In the last attempt, the trial progressed almost to the half way mark before it was abandoned when the judge received information which suggested “a serious attempt at jury tampering”. It was then that the prosecution applied for a juryless trial.
One of the defence counsel, Sam Stein QC, remarked outside the court that, “[w]e are breaking history”. He is undoubtedly right, the case was truly historic. However, that says nothing of the merit of the practice. I side with Paul Mendelle QC, Chairman of the Criminal Bar Association, who has said: “Some principles of justice are beyond price. Trial by your peers is one of them.”
It’s perhaps worth noting that in his lecture referenced in this blog post, Lord Judge remarks that, despite the benefits of having a jury, other systems are still legitimate. He mentions specifically that the vast majority of criminal cases in this country are decided by lay magistrates. However, whilst he praises the Diplock courts in Northern Ireland as “a model of how a trial of serious offences can take place without a jury”, he fails to even acknowledge the overwhelming controversy surrounding these single-judge trials. And despite being the judge who sanctioned the trial, his silence on the Heathrow case is deafening.
Why don’t we just keep the jury where they can’t access the web? I’m sure if it was 5* hotels they wouldn’t complain about it either!
Why was that particular case chosen to be juryless? Isn’t it worrying that this could be arbitrarily decided?