As of this week, a rather belated public discussion about jury misconduct has begun in Ireland. Within three weeks of each other, two criminal trials have collapsed because of allegations that jurors brought outside information to bear on their deliberations. The source of the external information in the earlier collapsed trial is not fully apparent from media reports, but the trial lasted a month before being discontinued. In the more recent case a juror informed the judge that the foreperson had conducted online research about a witness. This abandoned trial was itself a retrial, meaning that the accused person may now face a third trial on the same charges. The implications for public resources, and more particularly for public confidence in the jury system, are clear.
Jurors take an oath to return a true verdict in accordance with the evidence. Evidence consists of material placed before a court supervised by a judge, which can be tested in public by both the prosecution and the defence. Jurors are reminded throughout the trial that they must make their decision as to guilt or innocence solely on the basis of the evidence placed before them in court and put anything else they may have heard or seen out of their minds. Major issues of fairness, transparency and reliability arise when jurors have regard to material of which the court and the parties are unaware.
Human nature being what it is, jury misbehaviour has occurred down through the centuries. Modern case-law from other jurisdictions contains examples of unauthorised experiments in the jury room and secret site visits by jurors. The internet is perceived as posing a unique threat to the integrity of trial by jury, however. This is because of the ease with which it can be searched, its potentially indefinite storage of information and its ubiquity in most people’s lives. The natural inclination to research everything online collides dramatically with the legal imperative that jurors may only act on information that is provided to them in court.
It should not come as a surprise to us that human institutions are fallible. However, the jury is often spoken about by judges, legal practitioners and academics in reverential terms. It is regarded as a protector of the rights of the citizen against the might of the State; an institution that brings community values and perspectives to bear on the trial of the most serious offences. One often hears the view expressed that most jurors obey their oaths and take their function seriously. Indeed, the two recent cases demonstrate that conscientious members of the jury were prepared to alert the judge to perceived irregularities. However, it should be noted that jury deliberations are cloaked in secrecy, are not amenable to research and that juries do not provide reasons for their verdicts. In this context, it is important that the guidance given to jurors about their role, and the law regulating their conduct, is kept under regular review.
While the recent cases have attracted significant media attention, they are not the first of their kind in Ireland. In 2011 a juror was discharged at the trial of Patrick Hegarty for sexual offences when she disclosed to the jury minder that she had done internet research into the technical specifications of a vehicle mentioned in evidence. In 2013 the Law Reform Commission made very sensible recommendations about the need for a statutory offence of jury misconduct, which unfortunately have not been acted upon by the Oireachtas. It would be open to the Irish judiciary to imprison jurors who engage in misconduct for contempt of court, as has been done in England. For example, a juror called Theodora Dallas was jailed for three months in 2012 for doing online research into the case she was trying. There has been no indication to date that the judges here would countenance the jailing of jurors, however. Consideration should be given by Government to the enactment of a statutory offence of jury misconduct, in line with the Law Reform Commission’s recommendations, to which judges could direct the attention of jurors.
Some of the commentary this week has quoted legal practitioners who argue that warning jurors not to conduct internet research is counter-productive, because it prompts jurors to speculate about what material may be online or cause them to look when they might otherwise not do so. The Court of Appeal has taken the view in a case called McCarthy that the judge is not required to give an internet warning to jurors in every case. However, it is arguable that the significant role of the internet in everyday life calls for a warning in all jury trials. This would instruct jurors not to research the case in any way, including on the internet. To avoid prejudice in individual cases the judge could explain that the warning is given in every case. Further, as Mr Justice Charleton suggested in a Court of Criminal Appeal decision in 2010, it would be useful to explain the rationale for the “no googling” rule. This is important because otherwise there is a danger that jurors will perceive the rule to be a quaint legal anachronism, rather than a core aspect of the right to a fair trial.
Dr Mark Coen is a lecturer in law at the Sutherland School of Law, University College Dublin