Jurors and Contempt of Court: New Proposals

The Law Commission has proposed a number of reforms concerning jurors researching cases outside of the evidence presented to them in court. What is the current law and what has been proposed?

Background and Current Law

When an individual is selected to serve on a jury they promise on oath to ‘give a true verdict according to the evidence’. That is to say they promise to base their verdict only on the evidence presented to them in court; they will not research the case themselves, rely on information not presented to them in court or discuss the case with anyone else outside of the jury room. It is made abundantly clear to jurors by the judge in every case that they must only judge the evidence and not seek or rely on other external information

The need to make this promise is entirely justified. Information which is not presented in court but found elsewhere (such as in a newspaper or on the internet, or through discussing the case with another person) may be factually inaccurate or otherwise unreliable. Relying on this information to reach a verdict jeopardises a fair trial: it could lead to the conviction of an innocent individual or the acquittal of a guilty individual.

Recognising the dangers of external information being used in the decision making process, and the risk it poses to the integrity of the justice system, the courts treat researching a case very seriously. Jurors who research a case face conviction for contempt of court under the common law (for more information on the common law, see this article). Contempt is essentially an act which interferes with the administration of justice. A custodial sentence (imprisonment) is almost inevitable in these circumstances.

The two recent cases of Attorney General v Fraill (2011) and Attorney General v Dallas (2012) illustrate the courts’ severe approach. Fraill was a genuinely exceptional case concerning drugs and corruption. Fraill was one of the jurors and actually discussed the case with one of the defendants on Facebook. She was sentenced to immediate custody for 8 months. In Dallas, a case concerning grievous bodily harm, the juror researched the case on the internet and then shared the information with her fellow jurors. She was sentenced to immediate custody for 6 months.

Having considered the current position we can now consider the Law Commission’s proposals for reform.

The Law Commission’s Recommendations

Firstly, what is the Law Commission? The Commission is a body that was created by the Law Commissions Act 1965 to keep the law under review and recommend reforms where necessary.

Secondly, why have the proposals been made at all? Law Commissioner David Ormerod has said that they will make the law clearer and more certain for the courts and jurors; jurors will know the rules and wrongdoing can be prosecuted like any other crime.

So what has been proposed? The Commission has proposed the creation of a new statutory criminal offence for a sworn juror to deliberately search for information related to the case that they are trying. A statutory offence is simply one that is written in legislation (for more information on legislation, see this article).

The new offence will be triable on indictment only (by a jury) and will have a maximum sentence of two years’ imprisonment and/or an unlimited fine. Community penalties would also be available.

Alongside the new criminal offence the Commission has recommended a number of other measures to prevent juror misconduct. Firstly, improved school education on the role and importance of jury service is recommended. Secondly, the Commission recommends giving improved information to jurors about what they can and cannot do. Thirdly, it is recommended that jurors should possibly have to a sign a written declaration after they have received a warning not to conduct their own research. Fourthly, a revised oath which includes an agreement to base the verdict only on the evidence and not to seek information elsewhere is recommended. Finally, the Commission recommends that judges should have a statutory power to remove internet-enabled devices (such as smart phones) from jurors; the power would be applied automatically each time the jury is in the deliberating room and applied at other times where it is proportionate and in the interests of justice.

In addition to these recommendations the Law Commission has made recommendations on publishing prejudicial material and research on juries. The full report can be read here.

What are your thoughts? Would you be tempted to research a case?