On 9th December 2013, the Law Commission published their report, Contempt of Court (1): Juror Misconduct and Internet Publications. This report is a welcome response to several recent high profile cases of juror misconduct, including that of Dr Theodora Dallas. Dallas was a juror who, in 2011, had discovered on the internet that the defendant she was trying had previously been accused of rape. As a result of her actions, she received a sentence of six months imprisonment. Incidentally, Dallas is now taking her case to the European Court of Human Rights, claiming that, as a juror, she had not been given proper instructions about using the internet.
One of the Law Commission’s recommendations is that there be a new statutory criminal offence for a sworn juror in a case deliberately searching for extraneous information related to the case he or she is trying. This conduct would most likely involve a juror searching for information about the case on the internet. Currently, this amounts to a contempt of court at common law. Without getting into the details of the recommended offence, one can note the potential benefits it could have as a mechanism for protecting fair trial rights in an area of increasing significance.
The criminal law acts as a means of regulating conduct. In this way, it limits our everyday behaviours and interactions. Principles of individual autonomy and minimal criminalisation mean that the creation of new criminal offences should be avoided, unless absolutely necessary. However, in this instance, the Commission’s recommendation for a new offence does have merit. Jurors are instructed throughout the trial process that they are not to undertake independent research in relation to the case they are trying. Their decisions should be based only on the evidence that is presented to them in court. Yet, many jurors are uncertain of the scope of this rule and the consequences of breaching it. This problem has been highlighted in the research of Professor Cheryl Thomas (Are Juries Fair? (2010); ‘Avoiding the Perfect Storm of Juror Contempt’  Crim LR 483). The deterrent effect of a new criminal offence is by no means certain, but there is at least the potential that the existence of a criminal offence would keep jurors alert to the fact that independent research is prohibited, and that there are significant consequences attached to the undertaking of such research.
The potential deterrent effect of a new offence might be enhanced by explaining clearly to jurors why they should not conduct independent research. One of the most damaging consequences of juror misconduct of this kind is that it denies the defendant the right to a fair trial. It is a right of the defence to challenge the evidence against them. This is not possible if the jury, or even a single juror, has conducted their own research, and used it to influence their decision. There is a significant danger that the information which the juror has found is inaccurate and has been taken out of context, resulting in a false or misleading impression. If such information plays a role in the jury’s deliberations, it could lead to a wrongful conviction.
Before evidence can be presented in court, it is ordinarily subject to complex rules of admissibility in order to ensure that it is relevant and reliable. These include the numerous provisions set out in the Criminal Justice Act 2003 which deal specifically with the admissibility of evidence of a defendant’s previous bad character and with the admissibility of hearsay evidence. Judges also have a general discretion to exclude any prosecution evidence that would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. These safeguards cannot be applied to the extraneous information sought out by jurors. As a result, in cases where independent research has been undertaken, the defendant has not only been denied the opportunity to challenge (or explain) the evidence, but has also been denied the right to be tried by an independent and impartial tribunal. Both of these rights are provided for by Article 6 of the European Convention on Human Rights.
A further benefit of a new criminal offence is that those jurors who are caught conducting independent research will be subjected to criminal proceedings, rather than contempt of court proceedings (to which the civil law of evidence applies). The benefit here is to the jurors themselves. Although fair trial rights do apply to the contempt proceedings, they are not afforded the same level of protection as in criminal proceedings. For example, there is no charge sheet or indictment from which the juror can know the case against them. It is also unclear whether the protections of the Bail Act 1976 apply to this type of contempt of court, or whether legal aid is available to the alleged contemnor.
So, although the creation of new criminal offences should always be a last resort, in this case it could be worthwhile. It would (hopefully) alert jurors to the harm caused by searching for information related to the case they are trying, which would, in turn, (hopefully) reduce the instances of independent research being carried out, which would, in turn, prevent the detrimental effects that this has on the rights of those being tried. Where the offence fails to have this effect and the juror’s misconduct is brought to light, the juror facing criminal charges will, at least, be afforded the protection of due process rights which they are currently being denied.