Taking juries seriously
5 December 2011
Today’s Telegraph reports that a juror is to be charged in respect of internet research. The allegation is that Theodora Dallas – a lecturer – used the internet to look up details of a defendant in a trial on which she sat as a juror.
Cases like this throw up the enduring issue of what exactly a jury is for. The historical position was that the jurors were local people – propertied men, of course – whose worldliness and common sense would be brought to bear on questions of fact before a court.
A judge could well decide the law – but whether the evidence stacked up to make some offence or civil wrong was a question for the laymen. And there are many examples of robust juries in criminal trials frustrating the wishes of judges and lawyers: miscarrying justice in either direction with acquittals or convictions.
More recently, the judicial attitude towards juries has become more paternal. Elaborate rules of evidence and procedure have been devised so as to ensure that relevant evidence cannot be admitted to the proceedings. Criminal trials are won and lost in the pre-court battle of what evidence is to be put to the jury. In the few remaining civil trials with juries – for example in libel cases – a great deal of expensive litigation, sometimes taking years, occurs on what defences can be put to the jury. Juries remain (though may be phased out altogether for libel trials) but what they can bring to their deliberations is increasingly confined.
The criminal justice system now has a choice. If it seeks to retain juries – and they can be as glorious in throwing out illiberal and misconceived cases as they can be unintentionally brutal in convicting the innocent – then can it be seriously held that jurors will not look at the internet? And if so, can such a rule be realistically upheld?
An alternative model is that the jurors can look at what they want during a trial, but that they are trusted to make their decision on the evidence before them in court. After all, jurors are responsible adults and so presumably can make decisions on the evidence before them without being prohibited from using the internet.
But the problem here is that the jury’s deliberations are unknown: there could be misleading or accurate information being used to determine guilt or innocence which will not be known to the defendant and their lawyer. Or there could be true but highly prejudicial information on the internet which means that someone can be seen as guilty where on the facts of the case there is more than a reasonable doubt. Surely a prohibition on internet research reduces the chance of such injustices.
So perhaps the current regime is the least bad option. However, it is sensible every so often to ask exactly what the point is of having jurors decide anything in our criminal justice system. Given the rules of criminal evidence, would it not be better for a judge to give reasoned assessments of the evidence? Judges do this routinely in civil cases and in less serious criminal cases. We would then have a situation where defendants would be able to appeal convictions when the evidence has been wrongly construed.
On the other hand, juries can buck the pro-prosecution attitudes of our criminal courts. They can doggedly place little or no weight on the evidence of a police officer or an expert who otherwise would get a judge to nod along. In this way, juries are a force for good. The question is therefore how long the paternalistic attitude to what jurors can and cannot know can be sustained in the age of routine internet research. Is it time for the criminal justice system to treat jurors as grown-ups?
David Allen Green, media correspondent of The Lawyer