I am reasonably certain we can trust the judges to determine a matter based on the evidence put at trial – but can we be so certain about jurors? It would seem not and the judges, while directing juries not to look at Google, The Daily Mail, Facebook, twitter and other information on the net, seem to have given up the ghost. This does not bode well for our ‘hallowed jury trial system’ according to an interesting article in The Guardian this morning.
The Guardian reports: “Judges are “giving up” trying to stop juries using Google, Facebook and Twitter to access potentially false and prejudicial information about defendants, Sir Ken Macdonald, the former director of public prosecutions, has warned.
High-profile criminal trials, such as that of Baby P, have been put at risk by material posted abroad but widely available online – and Macdonald admits that the consequences can be serious.
But although policing the accuracy of information on the internet is “an unmanageable task”, Macdonald said, it should not invalidate a trial if jurors are found to have conducted online research while a case is in progress.
“This is a serious point and we struggled with it, in criminal justice, for years trying to protect juries from what they might read about a case on the internet, material they weren’t supposed to know about while they were trying it,” Macdonald said.
“In essence, we’re finally giving up and just concluding that you have to expect juries to try cases fairly and they’re told to do that so I think this is a serious issue around privacy, because policing the internet is really, I think, an unmanageable task.
One of the ironies of freedom of speech and the internet making information more widely available, is the very real possibility that such freedom and freely available material can prejudice justice. Can anything be done other than asking reasonable jurors to behave honestly and fairly?
Ken Clarke to unveil plans for prisoners to work 40-hour week
The Guardian: Justice secretary to end enforced idleness in jails with some of cash earned going to victims
Political Conferences tend to be rather like X-Factor on television but for a specialised audience, and the speakers tend not, usually, to be subjected to a great deal of criticism by the attendees. Grandstanding is very much part of the ethos and ‘staff of life’ at these conferences so I am not sure whether we should take too seriously ideas being put forward by Ken Clarke, Lord Chancellor and Secretary of State for Justice, to put prisoners to work, give them 20 quid and plough the rest of the money into the system to pay for their detention and into a compensation fund for their victims. Sounds good – but, I suspect, this little wheeze will not be a main feature on the Ministry of Justice website in twelve months or so and will be consigned to the Google search archive. We shall see. For what it is worth – the thoughts of Chairman Ken are reported in the Guardian article. I’m not going to bother to quote – because this appears to be a bit of ‘red meat’ being chucked to carnivorous Tories who miss the old days of flogging, hanging and deportation to Australia and Benidorm. As always, I could be wrong. We shall see.
I realise there is a severe danger that it will look like I’m rather addicted to leaving comments on your blog, but you raise interesting subjects.
The jury one I find particularly interesting in that I seem to recall that not only is researching background information about the defendant strictly off-limits but that there is also some form of disapproval of researching issues of a more technical basis. For instance, jurors are discouraged from reading up on some technical aspects of the case which they are passing verdict on. That might be looking into medical aspects, fingerprints, finance rules, forensic computing or any number of other things. I believe the point was meant to be that the jurors should be judging only the evidence as it is presented to them, and any technical analysis of evidence would be by expert witnesses. The danger was perceived to be that untrained members of the jury would come to their own conclusions about the technical evidence presented to them whilst what they should be doing is judging the credibility of the testimony given by the experts called by the prosecution and defence.
I also recall that in at least one case (the infamous Shirley McKie perjury prosecution) that the prosecution objected very strongly to the defence expert witness proceeding to demonstrate to the jurors that the Scottish Criminal Records Office fingerprint experts had clearly erred when matching Shirley McKie’s prints to those found in the house. The position appeared to be that the jurors had no business judging the match itself, but only the relative credibility of the opposing experts’ evidence. The SCRO’s experts evidence was effectively of the form that it was a match because they said so and they had all the experience.
This highly technical stuff also comes up in other areas. For instance, in an area involving IT fraud I would find it difficult not to take into account my own experience. It is not just fraud – there were lots of technical issues involved in the Operation Ore investigation into Internet paedophiles where at least some of the evidence was deeply flawed. There was also the strange affair of the defence expert witness, Jim Bates, who exposed some of this, but was, himself found guilty of perjury for mis-stating his qualifications. That he did this, was presumably because he thought he would not be taken seriously if he didn’t have the right paper qualifications, whatever the quality of his evidence. (He also got arrested by the police and prosecuted for possession of indecent images himself, although that was rules unlawful).
On another personal note, if I had been in the Sally Clark cot death jury, then I like to think I would not have believed the infamous 1 in 73 million odds Professor Sir Roy Meadow claimed applied in that tragic case. However, would I, as a juror, be justified in examining the technical basis of his flawed calculation? Some might argue that it is only the evidence as presented that matters, and as there was no real examination of the basis of the calculations in the case, then it becomes a witness credibility issue.
That is something of a ramble, but I’d find it extremely difficult not to research something of the technical background of these sort of cases, if not the circumstances of the case.
nb. the American Jury system appears to survive with many fewer controls on press coverage. Has anybody done any work on the reliability of juries in our two systems?
There is also the point that people don’t like serving on juries (and their bosses like it even less).
So – a key member of my staff is serving on a jury in a case that looks like it’ll go on for weeks. I want her back in the office and she wants that too. So she reads up some stuff on the Internet and tells the usher what she’s done. What should happen next? Should she be discharged from the jury? Held in Contempt of Court? Neither course would seem to be in the public interest.
If we are not going to sequester juries then the way forward, I suggest, is that they should give the jury usher a note of what they’ve read and where (usually by e-mail I suppose) and let the judge – presumably in the summing-up – refer to it if that is felt to be appropriate. Peer group pressure in the jury box is quite strong in my experience and a good jury usher should be able to satisfy herself that any “external” information has been passed on.
Steve and Mike – Both of you have raised excellent points….. the truth of the matter, for a smallish business, having someone out of the business serving on a jury is a very real problem.
Steve – always a pleasure to have your comments – I do appreciate it – you have open invitation!
‘There is also the point that people don’t like serving on juries (and their bosses like it even less).’
get prisoners to serve on juries. it’s not like they are doing anything else. simples!
Jurors CAN be trusted to act fairly on the evidence presented in the court. [Often, facts are known which are not presented for various reasons but that’s another story].
Those lawyers who are anti-jury and who favour judge-only trials will relish the idea that jurors look at the internet and all manner of news presentations. So what? They live in the real world and it is the judiciary which has to alter its stance on this issue.
Also, who is to say that judges do not also look at the internet etc. Of course they do. The idea that as trained lawyers they are able to exclude such information holds some water but it is an insult to the many intelligent jurors to suggest that, as laymen, they are unduly influenced by what they have seen.
I recall judges pretending that they could not look at Hansard. Now they do it all the time in the difficult cases. It took a Denning to get into a spot of bother with his Lord Chancellor to indicate that a change was needed here and post Pepper v Hart the change was made official.
Obiter J – I am delighted to hear it. From what I can gather – many criminal lawyers would be appalled at the prospect of the loss of Jury trial.
I suspect that the media has found a few jurors who look at Facebook and make hay on the story. I have never sat on a jury – in fact, I would not wish to simply because I don’t really like the idea, myself, of judging my fellow ‘man’.
Spent 30 years ‘judging’ law students on their performance… quite enough for a lifetime!
A statement was made on 14/07/2010 by the Lord Chief Justice of England and Wales Lord Judge that juries should be directed by a trial judge not to research a case or anything pertaining to it on the internet. I wonder in all humility if His Lordship knows what a curate`s egg he has opened. He is in effect promoting ignorance. ObiterJ`s remarks above are pertinent. It could be argued that similar thinking for many years prevented the televising of parliament.
The logical conclusion of Lord Judge`s statement is that jurors should be examined as to their ability to comprehend what is to be put before them.