Jurors, Google and Contempt of Court: is the right to a fair trial in the UK in crisis?
Technology has moved a long way since 1993, when the decision of four jurors to use an Oiuja Board to make the final call on a verdict led to the collapse of a murder trial. Today, juries' desperation need not extend to the supernatural; today, jurors have Google - and the right to a fair trial is heading towards crisis point.
Justice: The internet is compromising the right to a fair trial
The problem is in the spotlight once again following two jail terms handed out to two jurors for Contempt of Court on Monday 29 July. Kasim Davey, 21, from North London was jailed for two months for sending a Facebook message about the child abuse case he was sitting on and 29-year-old Joseph Beard was given the same sentence for using Google to research a fraud case and sharing the information with the rest of the jury.
Rising cases of jurors being caught out searching the internet for information - and even contacting those involved in proceedings - have led to serious questions about the ability of the law to stamp its authority, and calls for extreme measures from legal professionals such as surveillance and jury sequestration. Contempt of Court law has traditional and comfortable jurisdiction over the media. Where it now struggles is finding jurisdiction over a juror in front of a computer screen with Google, Facebook and Twitter pages open.
If the right to a fair trial is at such risk, do juries themselves need to be kept behind lock and key for the duration of trials?
Cyber crime lawyer at law firm Pannone, David Cook, says it's the only course of action that could ensure juries don't access information outside of the evidence presented in court, but admits it's unlikely.
"Jury sequestration involves isolating the jury to avoid accidental or deliberate tainting and is a fairly severe option," he explained. "However, it strikes me that it is the only possible way to be absolutely sure that a juror has not researched, given how easy, prevalent and attractive such an option must be.
"But that would simply not be possible in the majority of cases," he continued. "With that in mind, I am unable to see how this issue can be resolved. Like so many legal issues with the internet, despite the best efforts of those tasked with policing the system, it will still happen somewhere and somehow."
In 2005, a jury bailiff found papers in a jury room printed from the internet during the trial of a man accused of raping and indecently assaulting a 14-year-old girl, including information about the difficulty in obtaining rape convictions. His conviction was subsequently declared unsafe and overturned. He was acquitted at a retrial.
During a child abduction and sexual assault case at Burnley Crown Court in 2008, a woman launched a poll on her Facebook page inviting friends to influence her verdict with a vote because she couldn't make her mind up. "I don't know which way to go, so I'm holding a poll," she posted. The trial continued with 11 jurors after she was dismissed.
Joanne Fraill was jailed in 2011 for contacting a defendant on Facebook and revealing the direction of the jury, leading to a retrial and a £6m bill for the taxpayer. A conviction in a criminal property case was overturned in 2009 when it emerged a juror had uncovered a previous money laundering conviction online, while a juror in another trial turned detective and visited a crime scene, took photographs and sent the trial judge a Google map location of the site along with almost 40 questions about the case. And the list goes on.
Human rights lawyer, Aamer Anwar, says that the Contempt of Court Act 1981 negated the need for jury sequestration, but admits that the pre-internet Act has no provisions to deal with the digital challenges facing the criminal justice system, and calls on parliament to get involved.
"The implementation of the Contempt of Court Act 1981 dispensed with any need for jurors to be sequestered," he said. "But in 2013 I do not feel that there are sufficient safeguards to ensure the right to a fair trial in light of the advances in technology.
"It is now inevitable that research will involve going onto Google and downloading material which one might consider helpful in arriving at a decision," Anwar continued. "The concern is that if a juror goes home and secretly downloads material to carry out research there is no way of challenging this information. There is simply a lot of bad information on the internet.
"Parliament should consider whether legislation should be extended to advise jurors of the serious criminal sanctions if they were to breach their oath and carry out internet research, particularly focusing on the jury accessing social media in any form during the duration of a trial."
Juries are told at the beginning of their service that they must not access any information about the proceedings on the internet and should ignore any previous press or media coverage. However, the traditional focus of Contempt of Court law rested on the responsibility of publishers not to put information into the public domain which was likely to cause a substantial risk of serious prejudice to a trial, and the ability of the law to take action against those that did. Today it is struggling to contend with jurors having the tools to actively seek out information from a vast library of material.
And that material can build a much more colourful picture than some careless details in a news report; Facebook fallouts, Twitter opinions and Google gossip can all knit together to build a strong picture of character, but not of evidence. As long as the juror says nothing and the judge is unaware, a trial will carry on regardless of a juror's nightly investigations, creating a strong argument that the administration of justice has become fundamentally flawed.
A study in America last year showed many jurors found it a struggle to refrain from researching information on the internet. Just over a quarter said they would like to use the internet to find out more about a case, with 23 per cent seeking to research the parties involved and 19 per cent keen to dig up information on witnesses.
However, the American judicial system does have sequestration safeguards in place for juries in high profile cases, a route Cook thinks the UK could consider.
A consultation was opened by the UK Law Commission in November last year to review Contempt of Court law, prompted partly by the case of a juror having researched a defendant online.
In September last year, Donald Findlay QC spoke out ahead of a Scottish Parliament Justice Committee hearing into the role of the media in criminal trials, calling for stronger deterrents to prevent juries from using online tools to research information about defendants on trial. Prison sentences and computer checks were among the QC's proposals.
However, head of dispute resolution at Sheridans law firm, Keith Ashby, said research indicated that the challenge to the legal system from juries using the internet to research cases may not be as extensive as is feared.
“Recent research by UCL suggests that trial by jury in Britain has not been irreparably damaged by internet use because it indicates that the vast majority of jurors understand and follow the rules on how jurors can use new media,” he explained. “The answer, therefore, is to ensure that jurors receive very clear instructions when they are sworn in, so that there can be no misunderstanding about what is permissible and what crosses the line."
Jury surveillance, prison sentences and even hints of sequestration seem extreme solutions for dealing with jury members who opt for their own methods, but as the grapple between governance, justice and technology continues, how far will the British justice system go to ensure the right to a fair trial continues?