The Law Commission recently published a timely consultation paper on reform of contempt of court laws. The current Attorney General has been extraordinarily active in bringing contempt cases – with more in the last few years than in the previous decade. His view is that contempt laws are still valid in the internet age but enforcement presents a real challenge, particularly given the power and prevalence of social media. The Law Commission’s starting point is “to ask how, in a modern, internet-connected society, the law of contempt can continue to support the principles that criminal cases should be tried only on the evidence heard in court.”
The consultation is clearly prompted by the flurry of recent contempt cases. These have ranged from key cases against mainstream publishers (e.g. the first prosecution for online contempt; contempt mid-way through verdicts) to guideline cases against jurors (e.g. Facebook juror; juror internet research). The Law Commission’s primary concern is “juror misbehaviour”. In the last six years the Court of Appeal ordered “at least 27 investigations” into juror misbehaviour as compared with just four investigations in the preceding seven year period. There must be many more unknown cases.
A report for the Ministry of Justice in 2011 found that 12% of jurors in high-profile cases admitted doing online research during a trial, for example. The President of the Queen’s Bench Division has recently issued a new protocol to assist Crown Courts dealing with juror misbehaviour – providing guidance on how judges are to navigate the sanctity of the jury’s deliberations whilst investigating possible misconduct.
The Law Commission is keen ascertain views on strengthening the law to tackle juror misbehaviour in two main ways: how to punish it and how to prevent it. The most radical proposal is that there should be a new criminal offence to deal with jurors performing internet research about the case they are trying. The rationale is that by making the law clearer, jurors will be more obedient. This is questionable. At present the judge’s ‘homily’ at the start of the case includes a stern and trenchant warning that internet research is forbidden and can result in imprisonment.
It is not entirely clear why the Law Commission regards the current law as inadequate. At present a juror who conducts internet research about the case he is trying is guilty of contempt. If this is discovered pre-verdict the juror will be discharged and the matter will be referred to the Attorney to decide whether to commence contempt proceedings. The High Court recently imposed a deterrent sentence of six months’ imprisonment for a juror who had performed online research about the defendant she was trying and who had informed the other jurors about her findings. The Court’s view could not be clearer: “misuse of the internet by a juror is always a most serious irregularity and an effective custodial sentence is virtually inevitable”.
There are potential problems with the Law Commission’s proposal. First, it suggests that the new offence of juror research should not be triable by a jury. A jury could not be trusted to convict jurors seems to be the premise. That is a dangerous precedent and would logically lead to all sorts of spurious jury vetting arguments in other cases. And it is an empirical argument – most juror misbehaviour cases are discovered because law-abiding jurors report the misbehaviour to the trial judge, which strongly suggests that they can be trusted to form objective judgments about other jurors. Moreover, the possibility that a criminal trial of a juror would stray into forbidden territory (e.g. the content of deliberations) is much greater than in the current sanitised procedure before the High Court, which can safely consider statements, edited if necessary, from the trial judge, other jurors etc. in deciding whether a contempt has occurred. Second, why single out juror internet research? As the Facebook juror case (in which an errant juror contacted an acquitted defendant about the jury’s further deliberations) made clear, social media can wreak as much havoc with a jury trial as online jury research. One aspect of the consultation which is particularly welcome, however, is the suggestion that s.8 of the Contempt of Court Act might be amended so as to permit jurors to make disclosure to the police or CCRC if they genuinely believed that such revelation was necessary to uncover a miscarriage of justice.
But closely allied to the question of jury research, and ensuring that a jury only tries the case on the evidence before it, is whether it is genuinely possible to police or even sensibly to limit what material is available on the internet to jurors trying a case. The previous DPP thought that policing the accuracy of information on the internet is “an unmanageable task”. He believed that it should not invalidate a trial if jurors are found to have conducted online research while a case is in progress. At the heart of the problem is the extent to which the jury can be trusted to adhere to the judge’s cardinal directions at the start of the trial – that they must not have regard to any material extraneous to the trial. The courts have recently given out somewhat mixed messages on this issue. On the one hand they have said that “The problem .. is not the internet: the potential problems arise from the activities of jurors who disregard the long established principles which underpin the right of every citizen to a fair trial”. On the other, they have emphasised the “viral nature” of material on the internet and the near-impossibility of controlling its dissemination.
If jurors can generally be trusted to try the case based only on the evidence adduced at trial then there is a less pressing need to attempt to limit what is on the internet – they can be assumed that they will put out of their mind whatever inadmissible material they may have encountered elsewhere. Clearly, we are prepared to accept the validity of that in many cases: there are numerous high-profile trials in which it is impossible to suppose that the jury will not have read pre-trial material about the case and yet a fair trial was possible because the integrity and fidelity of the jury to its oath was accepted at face value. The prejudicial publicity which preceded Abu Hamza’s and Michael Stone’s cases, for example, was intense and hostile and yet did not provide a successful ground of appeal. And in the online contempt case, the court held that it would not have found a contempt against the newspapers if accessing the offending material would have been a breach of the trial judge’s direction – i.e. the court trusted the jury absolutely to obey the judge’s directions.
But if jurors cannot typically be trusted to heed the judge’s directions then some policing of the internet, however imperfect, may be justified. In the USA, given the reverence for the First Amendment, no attempt to restrict prejudicial publicity is made. But the trade-off is extensive jury-vetting. Here, for largely cultural reasons, we are not presently prepared to countenance that. And so the Law Commission favours restricting the accessibility and availability of prejudicial material online. Even though there is no legal restriction whatsoever on publication before proceedings are active for the purposes of contempt (i.e. pre-arrest) the Law Commission proposes that such ‘archive material’ be taken down upon application by the defence to the trial court. Sadly, it overlooked the opportunity to review whether/when the press ought to able to able name suspects pre-charge – something which the Leveson report concluded should not occur save in “exceptional and clearly identified circumstances”.
Whilst the Law Commission undoubtedly has an open mind, it has perhaps underestimated the scale of the problem. Firstly, it is naïve to suppose that material which has previously been on the internet (especially on mainstream sites) will not be re-published somewhere where it cannot be controlled e.g. hosted on foreign or roving servers. And even if action could be taken against re-tweeters of such material, the Mexican wave/Spartacus effect is such that mass prosecution for prejudicing a trial is unlikely in the extreme. The reality is that the jury will simply have to be directed to ignore what they may have read outside the trial and trusted to obey that direction.
The ruling in the PC Harwood case illustrates the scale of the problem – there material had been lawfully published at a time prior to his trial but the judge ordered The Telegraph and The Mail to remove this archive material during his trial. Unlike the careful exercise which was undertaken by the court in the online contempt case, the judge did not perform a detailed assessment of the accessibility or prominence of the inadmissible material. The judge also took the robust view that material which had been previously published was still being continuously published at all times thereafter, however difficult it may been to find such material. Other creative techniques have been deployed in other cases in an attempt to grapple with the issue. In the Birmingham riots case, the trial judge used his inherent powers as a High Court judge to injunct the BBC from broadcasting a programme about riots. And in relation to a man facing trial for shooting an police officer, the press were warned by the Attorney about reporting comments made by the Prime Minister and police officers because this could prejudice. All these attempts to police the internet, whilst well-intentioned, are arguably entering King Canute territory.
Whilst the Law Commission’s proposals are welcome, thoroughly researched and balanced, any proposed solution must properly accept and face up to the scale of the problem. The Commission is right to aim for ‘future-proofing’ of jury trial. It will be interesting to see whether the responses to the Consultation (due by 28 Feb) consider that it has struck the right balance in safeguarding fair jury trial whilst securing press freedom.