In a report published in December 2013, the Law Commission recommended the creation of a new statutory criminal offence of a sworn juror in a case deliberately searching for extraneous information related to the case he or she is trying. This was, in part, a response to some high profile cases in which jurors had used online search engines and social networking sites to find out more about the case they were trying. Such matters are currently dealt with as a contempt of court and subject to a maximum sentence of two years’ imprisonment. As noted earlier on this blog, the benefits of a single criminal offence could include greater awareness that such conduct is prohibited, greater protection of the defendant’s right to a fair trial, and greater procedural protection for jurors who are found to have conducted extraneous research. The Criminal Justice and Courts Bill, however, contains not one, but three new offences dealing with this type of misconduct by jurors. Arguably, the Government’s proposed legislative response to juror misconduct has gone too far.
The first proposed offence is one of ‘research by jurors’ (Clause 44). This offence is similar to that recommended by the Law Commission. It applies where the juror intentionally seeks information about the case. ‘Information’ can be sought by whatever means (including internet searches). Perhaps controversially, it includes not only information about the defendant and the facts of the case, but also about the judge, lawyers, the law relating to the case, the law of evidence, and court procedure. There may be some very limited situations in which searching for information about a judge or lawyer could influence the jury’s deliberations (for example, finding that the lawyer had represented the defendant on a previous occasion). Yet, whether it is appropriate to go so far as to prosecute someone for looking up the judge or lawyers, or for seeking clarification about the law and court procedure, is questionable. Such conduct has yet to form the basis of a finding of contempt of court.
The second offence is one of ‘sharing the research with other jurors’ (Clause 45). The commission of this offence takes place after the first offence has been committed. Sharing extraneous information is detrimental to the defendant’s right to a fair trial, as it could be used to influence the jury’s deliberations; the evidence may not be reliable and the defence will have had no opportunity to explain or put it into context. This is a key reason for prohibiting the initial act of research. Once the act of research has come to light, it is likely that a new trial, with a new jury, will be ordered. Under the proposed reforms, the juror would be liable for two separate offences arising out of what currently seems to be treated as one course of conduct, subject to one penalty. The contempt of court cases which have so far arisen have focused on whether the juror committed an act or omission calculated to, and intended to, ‘interfere with or prejudice the due administration of justice’ (see, for example, A-G v Davey and A-G v Beard ). It seems both excessive and unnecessary to impose liability for two separate offences, each carrying a maximum sentence of two years’ imprisonment.
The third offence is one of ‘engaging in other prohibited conduct’ (Clause 46). It covers situations such as that in A-G v Davey, in which a juror in a case of sexual activity with a child had acted in contempt of court by posting the following status on Facebook:
‘Wooow I wasn’t expecting to be in a jury deciding a paedophile’s fate, I’ve always wanted to fuck up a paedophile & now I’m within the law!’
The juror must intend to engage in the prohibited conduct but need not know that the conduct is prohibited. ‘Prohibited conduct’ means ‘conduct from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue’. This offence appears to be aimed at protecting the defendant’s right to be tried by an independent and impartial tribunal, but it is drafted too widely.The definition of ‘prohibited conduct’ goes beyond the type of conduct exhibited in Davey. It will likely be difficult for a judge to explain to a jury precisely what it means. This, coupled with the fact that the juror need not actually know that the conduct is prohibited, makes for a potentially uncertain and far-reaching offence. In addition, it seems that the mere perception of intention would be enough to satisfy the requirement of intention to ‘try the issue otherwise than on the basis of the evidence presented’. The Law Commission’s report suggested that it may be appropriate to extend the proposed offence to cover conduct such as that in Davey, but this was not an official recommendation, nor did it call for an entirely separate, and so far-reaching, offence.
The measures in the Bill exceed that which is necessary to achieve the legitimate aims of the single offence recommended by the Law Commission. The additional offences are unlikely to increase jurors’ awareness of the type of conduct which is prohibited. Nor are they likely to increase protection of the defendant’s right to a fair trial.
Dr Abenaa Owusu-Bempah is Lecturer in Law at the University of Sussex