Posts on this blog represent my opinion. It may be my considered opinion on the basis of my formal study of law and technology. But it is not legal advice. It must not be treated as, or acted upon as, legal advice and no liability is accepted for doing so.

Monday, 24 November 2008

The Onward March of Technology...

... applies even to misconduct in the jury room. Ouija boards (as in R v Young (Stephen) [1995] QB 324) are clearly old hat, as the lazy or delinquent juror now has recourse to Facebook.

Leaving aside the fact that this person now faces the prospect of being charged with Contempt of Court, this once again highlights the way in which Facebook is so often used without any regard to the privacy settings available. My friend Pangloss has many a time lamented the way in which students in particular post all manner of personal details to social networking sites without considering who might see them - either now, or down the road when they're looking for jobs, and prospective employers are liable to make use of Google.

But what happens if and when we have security-conscious web users and genuinely anonymous net access? The current laws on jury process evolved when the only opportunity a juror had to seek outside advice was to go down the pub. How well will they work when user randomjuror53234 posts a query on an anonymised discussion board?


Tom Womack said...

I notice that the Wikipedia article on Peter Tobin has been 'temporarily deleted during legal process'.

If you want jurors to be completely ignorant about a case except for what limited information the defence and prosecution might deign to reveal to them, I think you have to go to American-style sequestration, and pay jurors an awful lot more for the inconvenience (say, based on the standard compensation for incorrect imprisonment for the relevant period). I don't think it's reasonable to expect twenty-first-century information-literate people to obey a total ban on informing themselves without using large carrots as well as the stick of the contempt of court legislation.

Simon Bradshaw said...

Well, that 'limited information' might, for instance, include information improperly obtained by means such as an illegal search or a coerced confession. Should you ever find yourself on trial and trying to convince the jury that some of the evidence against you has been falsified or even just obtained in a way that puts it in a very bad light, would you rather the jury were told about it or not?

In an ideal world, jurors would look at such evidence, listen to arguments as to why it wasn't reliable, and put it out of their minds. Unfortunately, centuries of painful experience is that jurors very often don't do that, thinking that there's no smoke without fire or that anything put forward by the police must be unimpeachable fact. If only. Hence, rules on admissibility.

If you really want to decide cases on the basis of all the evidence, then don't be a juror - volunteer to become a magistrate.

Tom Womack said...

I think we're trying to make different arguments here.

If the prosecution claim a relevant wall is four feet high and my defense claims it's eight feet high, so the jurors are sitting there with information from conflicting authorities, it doesn't seem immediately obvious to me that, as the law presently requires, the case should be declared a mistrial and the juror put in danger of jail were he to go out in his lunch break and measure the wall.

There's a much larger volume of material on google than can conceivably be admitted into court as evidence of character, so the prosecution and defence are obliged to cherry-pick, and I can't see why the jurors can't be permitted to go and look at the cherry tree itself.

I realize that this makes cases depend on the get-up-and-go of the jurors - but cases 'famously often' (in quotes because officially you're not allowed to ask) are already decided by the get-up-and-go of one juror convincing the rest that their not-self-evident view of the case is the right one.

Simon Bradshaw said...

Well, to take your specific example, this was addressed in the case of Blick in 1966; if a juror has personal knowledge contradicting evidence given in the trial, he or she should pass a note to the judge, who should then ensure that better evidence is called to resolve the matter.

Why can't jurors look themselves? Because what they find will be unsworn, uncorroborated hearsay! Evidence is only admissible in court if it comes directly, or with a lot of accreditation, from a reliable source. Neither side develops its case by going on a fishing expedition for such material as it can find; evidence must be via sworn statement and if contentious should be given in person so that the witness (who must be a witness, i.e. someone with first-hand knowledge) can be cross-examined about it.

We have a name in the legal profession for the sort of process you seem to be proposing: Witch-Hunt.

Sorry to be so direct (and I will note for the benefit of other readers that I know and very much respect TW) but these are very, very fundamental elements of the way that our legal system works, and history is full of horrific miscarriages of justice in cases where they weren't observed.