Jury Service and the Price of Curiosity – Emma-Louise Fenelon
15 February 2016
Curiosity is not a sin…But we should exercise caution with our curiosity… yes, indeed.
Dumbledore, Harry Potter and Goblet of Fire
Like the 179,000 or so people selected at random from the electoral register each year in England and Wales, in July 2011 Ms. Theodora Dallas was summoned to attend jury service. Along with other jurors summoned that day, she was shown a video about their service, and told by the court’s jury officer that internet research about anyone involved in the trial was not permitted. For good measure, the jury waiting room contained notices stating “You may also be in contempt of court if you use the internet to research details about any cases you hear along with any cases listed for trial at the Court…”. The notices made it clear that contempt of court was punishable by a fine or by imprisonment.
Ms. Dallas was selected to serve as a juror in a trial involving a defendant charged with grievous bodily harm with intent. On being sworn in, each juror made an oath or affirmation that they would faithfully try the defendant and give a true verdict according to the evidence. Amongst his introductory directions, the judge reiterated the importance of avoiding the internet and specifically mentioned the cautionary tale of a juror who had been in trouble recently for going on Facebook during his jury service. During the course of the trial, the judge discovered from another juror that Ms. Dallas had been on the Internet and had informed her fellow jurors that the defendant had previously been charged with rape. The defendant had been acquitted of this charge at the time.
The jury was discharged and the trial aborted. Ms. Dallas was convicted for contempt of court, and sentenced to 6 months imprisonment. During the proceedings there was some disagreement as to exactly what constituted the common law definition of contempt of court. Ms Dallas accepted that she had conducted an internet search but denied a specific intent to impede or cause a real risk of prejudice to the due administration of justice. She applied for leave to appeal to the Supreme Court on the basis that the Divisional Court had lowered the threshold for the offence and this reformulation was incompatible with Articles 6 and 7 of the European Convention on Human Rights. The Supreme Court refused leave on the basis that the application did not disclose an arguable point of law, regarding Ms. Dallas’ action as unquestionably amounting to contempt of court.
And so to Strasbourg Ms. Dallas went, arguing before the European Court of Human Rights that her conviction was a breach of the Convention because she had been found guilty of a criminal offence on account of an act which did not constitute a criminal offence at the time when it was committed. The Court limited examination of her case to Article 7, which states;
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
Judgment [available here]
Article 7, the Court said, should be construed and applied in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment. It noted that progressive development of criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition in the United Kingdom. Article 7, therefore, could not be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided any development was consistent with the essence of the offence and could reasonably be foreseen. In addition, it was primarily for national authorities to resolve problems of interpretation of domestic legislation.
The Court considered that it must be obvious to any juror that deliberately introducing extraneous evidence into the jury room contrary to an order of the trial judge amounts to intending to commit an act that at the very least carries a real risk of being prejudicial to the administration of justice. Further, in deciding that specific intent could be derived from the foreseeability of the consequences of certain actions, the Divisional Court was not replacing the specific intent test with a test of “breach of an order” or with a more basic intent test. Rather, it was finding the specific intent test to be met in the circumstances of the applicant’s case.
The Court concluded that the test for contempt of court applied in Ms. Dallas’ case was both accessible and foreseeable. The law-making function of the courts remained within reasonable limits: the judgment rendered in her case can be considered, at most, a step in the gradual clarification of the rules of criminal liability for contempt of court through judicial interpretation. There was, accordingly, no violation of Article 7 nor any other article of the Convention.
The desire to supplement evidence presented in Court has at times, proven irresistible to jurors in the internet age. Recent instances have included: using Facebook to check whether they knew a witness (Howden (Elizabeth) v HM Advocate, , available on Westlaw here); using the internet to search for a defendant’s previous convictions (Thakrar v Another ); downloading documents related to the charge and bringing them into the jury room (R v Karakaya ); posting disparaging opinions online regarding a defendant, indicating which way they would vote (AG v Davey ); and, contacting an acquitted defendant while the jury was still deliberating regarding the remaining defendants (AG v Fraill, ).
In 2013, the Law Commission published a report identifying problems with the law and procedure for dealing with jurors who disobeyed their instructions. It noted that the relevant conduct was treated as contempt because it was a breach of a judge’s order not to undertake research into the case, but that there was no specific form of words that judges had to use. As a consequence, the scope of the criminal contempt depended on the exact wording that each judge adopted. The Law Commission doubted whether for a layperson, it was obvious what “a contempt” was, or its implications.
The report considered that the message would be clearer for jurors if they were told that such conduct was a crime and recommended that Parliament legislate for a specific criminal offence, allowing the legislature to debate its contents and to set down the elements of the offence with clarity. Following these recommendations, the Criminal Justice and Courts Act 2015 amended the Juries Act 1974 to make it an offence for a juror to conduct research into a case on which he/she is sitting as a juror and to disclose such research to other jury members (see section 20A and section 20B Juries Act 1974).
The new offences came into force on 13 April 2015. On 29 September 2015 the Lord Chief Justice set out some guidance on this in a Criminal Practice Direction ( EWCA Crim 1567). He indicated that the jury will always need clear and regular guidance on: the need to try the case on the evidence; the prohibition on internet searches for matters related to the trial; the importance of not discussing the case with anyone outside the jury room; or allowing others to communicate with them about it, the importance of taking no account of media reports about the case; the collective responsibility of the jury and the need to bring any concerns about the conduct of other jurors to the attention of the judge immediately.
Ascertaining the prevalence of extraneous juror research is, for obvious reasons, no easy feat. Research relied upon in the Law Commission report suggested that up to 12% of jurors in “high-profile cases” – defined, broadly, as trials lasting for two weeks with substantial media coverage – admitted to looking up the internet about the case they were trying while it was underway (see Professor Cheryl Thomas’ paper Are Juries Fair?). In standard cases, only 5% admitted doing so. The newly created offences combined with the Lord Chief Justice’s guidance are to be welcomed, and should go some way in combating the concerns of the Law Commission by providing the clarity and consistency that its report found lacking. It would be interesting to know in the future, whether the existence of a specific criminal offence combined with clear guidance for Judges has had an effect in practice, and altered such figures.
Emma Fenelon is a Pupil Barrister at 1 Crown Office Row
Angus McCullough QC of 1 Crown Office Row acted for the UK Government in the ECtHR proceedings. He was not involved in writing this post.
That 12% figure is pretty extraordinary.
In other words – as many as 12% of jury decisions in high profile cases may rely on inadmissible evidence and any resulting convictions are therefore unsafe. I can’t imagine if evidence came to light showing that up to12% of cases were relying on contaminated evidence in any other way (perhaps that 12% of forensic evidence may be unreliable for example) the response would be anything except a complete freezing/abandonment of that system or at least extraordinary safeguards to prevent it.
But of course, we are romantically attached to allowing the innocence of individuals to be determined without any attempt at filtering jurors for ability to do the complex and demanding job in front of them.
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