The Law Commission has proposed what, in the digital age, seem draconian measures that use threat of criminal sanction as a deterrent for jurors who turn to socially accepted and public domain technology to find out more about cases they are asked to deliberate on.
In the second of a three-part set of proposals which look at (overdue) reforms to the laws of contempt, the Law Commission has today published its recommendations on 'Juror Misconduct and Internet Publications' which would:
(1) Create a new criminal offence for jurors conducting prohibited research. This would increase clarity and consistency for jurors on the boundaries of prohibited conduct, increase the legitimacy of the offence, which would then emanate from Parliament rather than the courts and introduce the usual criminal procedural and sentencing regime in place of the current civil process of the Divisional Court.
(2) Create and exemption of contempt liability for publishers relating to archived online material. Under the present law, a publisher is liable for prejudicial material which remains online, even when it was posted entirely legitimately before legal proceedings became active. This places an onerous burden on the media to monitor online archives to check whether they relate to newly active legal proceedings. Our recommendations would lift that burden by providing an exemption from liability until and unless the Attorney General specifically notified a publisher of the existence of online prejudicial material.
(3) Create a limited exception to the prohibition on jurors revealing their deliberations. At present any disclosure of the content of jury deliberations is completely prohibited. Our recommendations would create a limited exception to that prohibition, in order to allow jurors to reveal miscarriages of justice to the competent authorities, or to participate in carefully controlled research into how juries operate.
While there is little disagreement over the need to overhaul and modernise contempt law beyond the 1981 Contempt of Court Act and the parameters for interpreting common law contempt, sending jurors back to the information society equivalent of the dark ages and expecting them to live in a google, wikipedia and media free vacuum when called upon to sit on a trial has to be at odds with the reality of society and its interaction with information and technology.
What the Law Commission proposals tell us (and its not as if it could be accused of being uninformed or random) is that unless we strip jurors of all their internet enabled devices, cut them off from the outside world and threaten them with up to two years in prison we cannot trust them to be objective and perform the role the courts and jury system expect of them. This has to be wrong.
If we have to lock juries away in a pre-information age vacuum to ensure objectivity and ultimately justice then it is the jury system itself that is fundamentally flawed rather than the occasional misbehaving juror. Is it realistic to assume that given today's technology and its integrated part in society, jurors are either not going to be aware of or naturally consider doing their own research? Surely research is a good thing? Surely it is only where research is used to seek to unduly influence other jurors or prejudice the proceedings themselves in its application that there is need for restriction or sanction? What is likely at play behind the Law Commission's deliberations is the inevitable floodgates argument. If you acknowledge and allow jurors to access the internet and research cases, how then do you place parameters and rules around that and where do you place them? The easiest approach therefore is, probably that being proposed, namely to prohibit any form of internet interaction. But this does not mean that this approach is right.
The key issue is this
If you cannot trust a juror to be objective because of what they may have read or researched online then how can you trust them to be any more objective in the confines of a court room. Their reaction to the facts, the witnesses, the pontifications or protestations of counsel on either side need to be weighed up as much as any online report. The only difference between the two is that under the old model they are presented with the facts whereas in the new and socially reflective model they themselves look for and access facts. What is circumstantial in court is also circumstantial online.
Perhaps what is required is not to scare and threaten jurors with longer sentences than would likely apply to many of the criminals they are being asked to sit in judgment over but to provide them with better guidance and a process that recognises the role of information and media in modern society rather than seeks to suppress it.
The Theodora Dallas case could provide some insight but it will probably take a European Court decision (insofar as the UK courts would feel bound to acknowledge it) to provide more clarity on this point.
In relation to the proposal for an exemption on liability for publishers this has to be welcomed as a sensible move. Publishers from mainstream media to commentators, bloggers and occasional social media users would otherwise face and unduly onerous task of tracking all the subjects and subject matter they have reported or published to ascertain if, to they extent they may be aware, any proceedings exist that could result in previously published material being engaged in terms of contempt. So the proposal that if the Attorney General identifies a case as being important enough to merit flagging up then it is right that publishers be put on notice that there may be an issue. But the debate does not stop here in that there is a valid argument for saying what is out there and has been published is out there and to seek to claw it back and retrospectively suppress it has to be wrong and a retrospective form of censorship or restraint on free speech.
Does the argument stand that says that something that has been previously published within the law in terms of the then prevailing circumstances can retrospectively be pulled because of new circumstance? Surely that is wrong? Once in the public domain it is out there. It is how one evaluates that against the new circumstances that should be the focus. So while to some extent the Law Commission's recommendations in this regard are welcome, there is some conceptual difficulty around the Attorney General being able to red flag any pre-existing publication where it is felt it may - due to new events - be viewed in a different light.
While an attempt at a step forward, the proposals as published do seem at odds with the reality of how jurors are likely to think and behave. They are also not without conflict when it comes to seeking retrospective take down notices over freely expressed media coverage that was free from objection at the time of its publication.