Still Judgement By Peers?

Editorial

The internet and social media poses problems for trial by jury

In 1215, England, the Magna Carta was born. Although most of it is now irrelevant, arguably the most important remaining aspects of the charter of liberty is trial by jury; the idea that when facing prosecution, determining guilt should be left to fellow peers. Such a system is meant to allow the ramifications of society to have a part in the legal process, ensuring that arbitrary States would not impart negative influence.

Trial by jury has thus withstood the test of time. But today, as information becomes more ubiquitous and accessible by social media and the internet as a whole, it can be very difficult for jurors to refrain from being influenced from what they may unintentionally see or purposefully find online. Trial by jury is only effective when jurors solely rely on the facts of the case and the legal direction provided by the judge to determine the guilt of a defendant. When external information or influences get involved, it undermines the value of the jury system, and this may intensify further in the future.

Yet, to date, there have been only a few reported instances of the negative impact of this trend. In the case of Attorney General v Dallas (2012), Theodora Dallas was jailed after informing fellow jurors that the defendant in the case in question had been previously convicted of rape; information she had found online. The case had to be retried. In another case, that of Attorney General v Davey and Beard (2013), jury member Kasim Davey made an inappropriate post on Facebook revealing his desire to “Fuck up a paedophile…within the law” in a case involving a child sex offender.

The fact that someone like Mr Davey was able to sit on the jury in the first place is perhaps a problem in itself, but his case presents an even wider issue. His comments were made in the wake of the Jimmy Savile scandal, during which a large amount of news coverage and social media activity focused on. This highlights the growing influence that social media has on peoples’ perceptions, particularly on controversial or sensitive issues. The Reuters Institute for the Study of Journalism finds that 51% of people with online access use social media as a news source. This combined with the increased personalisation of social media feeds, developed by the likes of Facebook and Twitter, means that people may be inadvertently developing a narrow mindset on the hot topics which tend to swirl around quickly. Consequently, even the fair-minded folk that may sit on juries do so with preconceived ideas that would distract them from the facts and direction they are supposed to acknowledge. It becomes particularly worrying with cases involving rapists, terrorists or child sex-offenders. Can the jury system still deliver impartial verdicts in light of this?

Don’t Want to Know

In R v Jackson (2013), it was said to be “unreasonable to require anyone not to have any means of accessing the Internet in their home.” This, therefore, illustrates the increased likeness of online influence on the jury, of which even the law now recognises.

What worsens this is the ingrained secrecy of jury deliberations which can veil such undue influence. The lack of transparency furthers problem presented by the Internet. In his speech defending trial by jury from 2012, MP Dominic Grieve QC admitted that “so little research has been done on jury decision making” due to the legal frameworks that essentially prohibit such work. Section 8 of the Contempt of Court Act 1981, for example, makes it a criminal offence to ‘obtain, disclose or solicit any particulars of statements, opinions or votes made by members of a jury in the course of their deliberations.’ Such statutory limitations make it particularly difficult to see whether jury verdicts are truly impartial and solely based on the facts of the case and the legal direction provided by the judge. Lord Slynn, in R v Mirza (2004), argued that maintaining confidentiality was “essential to the operation of the jury system.” However, with the increasingly potent influence of and dependence on the internet today, this confidentially can easily become an incubator for covert undue influence in the decision-making of jurors, potentially resulting in unsafe convictions and therefore rendering it ineffective in determining a defendant’s guilt.

Perhaps a suitable remedy may be to educate the jury on what they can and cannot do online. Research from Thomson Reuters showed that 23% of jurors misunderstood the rules on internet use. It was also found that 82% of jurors would prefer more information on conducting deliberations. Greater clarity and understanding of the law may thus be of great benefit.

However, given the reluctance to investigate jury deliberations and the growing influence of modern media, greater reforms may be needed to allow trial by jury to remain effective.

Sources:

Attorney General v Dallas [2012] 1 W.L.R. 991

Attorney General v Davey and Beard [2014] 1 Cr. App. R. 1

R v Jackson [2012] EWCA Crim 2602

R v Mirza [2004] UKHL 2

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