Opinion: “Can jurors in the internet age avoid being in contempt of court?” – Alex Bailin QC

27 08 2011

Joanne Fraill

The Sun and the Daily Mirror have been found guilty of contempt of court over their coverage of the arrest of Chris Jefferies, Yeates’ landlord, who was later released without charge (see our post here). Joanne Fraill contacted the defendant in the case on which she was a juror via Facebook. She was later tried and found guilty of contempt of court.

Proceedings brought against newspapers under the Contempt of Court Act 1981 are fairly rare, although courts are increasingly battling the problem of jurors conducting online research.

There have been two other landmark contempt cases this year involving juries and the internet. But were the messages that these cases sent out entirely consistent? In the Facebook juror case, Joanne Fraill was jailed for eight months (A-G v Fraill [2011] EWCA Crim 1570).

The court was keen to emphasise that prison sentences were required in order to ensure that “this troublesome case” remained the exception. The court stressed that

the problem is not therefore the internet: the potential problems arise from the activities of jurors who disregard the long established principles which underpin the right of every citizen to a fair trial.” [28]

It explained that internet research by jurors does not constitute evidence in the case (and therefore verdicts cannot be based on it) and may be inaccurate or incomplete.

During the trial from which the contempt case emerged, the judge had specifically directed Fraill and the other jurors “not to go on the net during this trial to explore any issues which may arise“. Jurors are also prohibited (for life) from revealing their deliberations to anyone.

And so it followed that flouting those fundamental prohibitions, which undermine the sanctity of our jury system, would inevitably result in serious consequences. The overall message was clear: the problem does not lie with the internet (including the availability of almost any information on it and its considerable power to locate another person) but rather with errant jurors and defendants.

But that conclusion is hard to square with the court’s views three months earlier in the online contempt case concerning the Sun and the Daily Mail. Both newspapers published pictures online of a defendant on trial for murder posing with a gun, the images remaining on the newspapers’ websites for some hours. The trial was not aborted, but nevertheless the court found that publication had caused a substantial risk of prejudice. Even though the papers had not intended to cause any prejudice, they were found to have committed a type of contempt of court.

The rationale for such strict contempt laws is that they compensate for the fact that in Britain, unlike the United States, we have very limited jury vetting and so prejudicial material must be especially carefully controlled before and during the trial. But in reaching its decision, the court emphasised the “viral nature” of material on the internet and the near-impossibility of controlling its dissemination. It also decided that jurors might have accessed the offending image without breaching the trial judge’s directions: he had merely said “do not consult [the] internet about this case” not “do not go online at all” and the image was accessible on the newspapers’ websites. The clear message was that jurors can be trusted to obey judges’ directions – which seems hard to square with the Facebook case.

It seems that no-one can agree on the issue. Lord Macdonald QC, the former director of public prosecutions, considers that policing the accuracy of information on the internet is “an unmanageable task“. He believes that it should not invalidate a trial if jurors are found to have conducted online research while a case is in progress. Indeed, a report for the Ministry of Justice last February found that 12% of jurors in high-profile cases admitted doing precisely that, and a further 26% said they had come across media reports online during the trial.

Nevertheless the attorney general, Dominic Grieve, takes the view that “of course a jury can be trusted not to research a case on the internet as directed.”

No doubt jurors, defendants and newspapers will be more wary of breaching the rules in the light of these contempt cases. But the scale of the problem ought to be recognised and the strong messages from the court need to be entirely consistent.

Alex Bailin QC is a barrister at Matrix Chambers

This article was originally published on the Guardian website and is reproduced with permission and thanks

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One response

1 09 2011
JFV

Jury means a jury of your peers. If members of the jury regularly use the internet to find out about life in the universe, this information adds to their education which the state has initiated at school. We do not expect jurors to be ignorant, and prefer them to be literate and educated.Although the internet has its share of misinformation, most people can filter the dross based on experience, and we know that witnesses can also lie. The more information the better.

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