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17 June 2011

Punishing contempt

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By Sangeeta Bedi

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Joanne Fraill, the juror who used Facebook to contact Jamie Sewart, the acquitted defendant whose case she tried, was this week sentenced to 8 months’ imprisonment. The Attorney General’s decision to prosecute both women sends a clear warning to jurors that they will be punished severely if they act in contempt of court. But is the threat of prosecution the only way in which the jury system can respond to the challenges of the internet age?

Two aspects of this case were particularly troubling. The first was Ms Fraill’s admission that she was doodling throughout the trial: “all I was doing was just killing time […] drew more than I wrote.” This somewhat boastful assertion of irresponsibility will be cited by critics of the jury system as evidence that jurors may be unable or unwilling to concentrate on the minutiae of a criminal trial. There is some force in this criticism. But it would be too simplistic to attribute this failing solely to a broken society in which citizens no longer have any sense of public duty. The crux of the problem arguably lies elsewhere.

For many jurors, the experience of trying a case for days, weeks or even months is exhausting and disorienting. The closest point of comparison is probably school. Jurors sit in rows; they have breaks; they receive lunch money; they listen to long and technical lectures from the judge and the barristers. This is, of course, fundamentally out of step with how most people now receive and process information in their daily lives, where the internet age has rendered facts (and fiction) immediately and universally accessible, and where communication and dialogue are instantaneous.

This leads to the second troubling aspect of the case: the jury’s use of the internet. If a juror is prepared to message the defendant, he or she may be equally willing to research the case on Google, which is likely to throw up a miasma of information (and misinformation) about the offence, the defendant and previous trials for similar matters. This research would, of course, breach the oath given by the jury at the beginning of the trial that they will only try the case on the evidence before them. But is that likely to deter a juror who calculates that, unlike Ms Fraill’s brazen messaging, conducting solitary research on Google is unlikely ever to be discovered?

In the light of Ms Fraill’s conviction, the judge’s direction to the jury on not using the internet should be fleshed out in more detail. Jurors should now understand that penal sanctions are not an entirely empty threat. But instead of rejecting outright the relevance of the internet, the jury system could arguably learn from some of the internet’s virtues. If jurors want more immediate information about their case, then instead of turning to Google, they could be made to feel more empowered to seek answers in the trial process itself.

There is no compulsory direction from the judge that jurors are entitled to ask questions so as to clarify their understanding of the evidence. However, if a question is asked, the judge is obliged to provide assistance where appropriate. That relatively few questions are asked may reflect the fact that jurors feel daunted by the courtroom environment or that they are simply unaware that they have this right. Being told of that right – and reminded of it before they retire to deliberate – may at the very least make the jury feel more involved in the trial process.

Encouraging any kind of dialogue with the jury needs extremely careful handling. The jury’s questions may be inappropriate or simply fall outside their remit of enquiry. Judges will not want to drag out trials by considering endless questions. On the other hand, a juror’s question can reveal fundamental misunderstandings about the evidence, which is itself instructive and may need to be addressed so as to prevent unfairness to a defendant. Encouraging a little more communication from the jury may be a small price to pay to ensure that they remain engaged with the evidence and the questions they are being asked, rather than seeking out new evidence and irrelevant questions from Google or elsewhere.

Research suggests that the majority of jurors take their responsibilities seriously. Ms Fraill and Ms Sewart’s failings do not bring the jury system into disrepute. Most criminal lawyers would agree that juries get it right most of the time and that the jury system remains the least worst option. But the criminal justice system cannot afford to be complacent. The challenge is to find ways to render trials more accessible for juries, and hence fairer to defendants, whilst reducing the temptation for jurors to reach out to the internet, hoping to be detectives, but turning themselves into criminals.

Corker Binning is a law firm specialising in fraud and criminal work of all kinds.  For more information call us on 020 7353 6000 or go to www.corkerbinning.com.

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