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Aug 20, 20204 min read

Is the Modern Age of Information Sending Juries Back to the Middle Ages?

By Andrew German - Law Student @ St John's College, Cambridge

 

Historically, a jury was a body of men sworn to give a true answer, or ‘verdict’, to some question. English juries have existed even before the birth of the common law during the reign of Henry II (1154 -1189), though the classical form of trial by jury in criminal suits first appeared around 1220.[1] Originally, jurors were expected to already know or inform themselves of the facts of the case, which is why juries were deliberately drawn up from independent neighbours so that they may provide the judge with local knowledge regarding the criminal allegations. Juries behaved almost like witnesses giving evidence at trial, and the judge reserved to himself the final decision.[2]


This changed over the 14th century as greater weight was placed on the opinion of jurors and judges became more passive, frequently letting jury verdicts decide the outcome of trial. In 1367, a leading case finally established that the consent of all twelve jurors was required for a conviction.[3] With their newfound quasi-judicial capacity, juries were placed under greater scrutiny to behave impartially. They were effectively imprisoned by the court for the duration of the trial to prevent the possibility of improper influence by the defendant, their accuser, or any outsider.


Nowadays, jurors are better treated and permitted to go home after a day in court. However, the modern development of the internet and social media platforms present a danger to the integrity of the jury system as prying jurors embark upon their individual investigations by Googling the facts of the trial they are sitting in and posting about it on Facebook or Twitter.[4] Jurors are, of course, instructed not to seek out information outside of the evidence presented to them at court, but these orders are so hard to enforce in the privacy of one’s home and so frequently disobeyed, that exhausted judges have accepted that many jurors will inevitably conduct their own online research.[5]


The problem has become so prevalent that, in some respects, we have returned to the model of the self-informed medieval jury. The consequences can be disastrous. With so much misinformation and people with questionable agendas on the internet, it can lead to wrongful convictions. Jury tampering is nothing new, but it is now easier than ever.


In 2005, Adem Karakaya stood trial for allegedly raping a minor and was found guilty based solely on the testimony of his alleged victim. However, internet printouts were subsequently found in the jury room, containing persuasive articles about the difficulty of obtaining rape convictions. Karayaka was granted a retrial and acquitted.[6]


In 2011, the first juror to be prosecuted for contempt of court for using the internet was convicted. Joanne Fraille, a 40-year old mother of three, accepted a Facebook friend request from Jamie Sewart, one of the defendants in a multimillion-pound drug trial and exchanged messages with her. Fraille admitted she provided information regarding the private deliberations of her fellow jurors to Sewart because she felt ‘empathy’ for her. Jamie Sewart was acquitted of any drug offences, while Fraille was sentenced to eight months in jail for her conduct.[7]


Another more subtle threat to the modern jury system comes from Criminal Justice Act 2003. Trial by jury is a fundamental English common law right in serious criminal cases, however, Sections 44 and 46 of the Act made provisions for trial by judge alone for the first time in centuries. These statutory powers were intended to be used by judges only in exceptional circumstances where there is a ‘real and present danger that jury tampering will take place’ or where jury tampering has already taken place and it would be ‘fair’ to discharge the tainted jury and continue trial without one.[8]


Since the CJA 2003 came into force, judges have only used these exceptional powers twice: both times in high-profile cases involving organised crime where there was a real possibility or actuality of jurors being subjected intimidation[9] or bribery.[10] The fact judge-only trials are so rare should be comforting, nevertheless, it is ultimately for judges to decide what counts as a ‘real and present danger’ and whether it is ‘fair’ to proceed without a jury and there is nothing preventing them from deciding that a juror’s use of the internet meets this statutory test. With regard to judges reserving to themselves the final decision on a case, it is another instance where seems we have indeed taken a step back towards early medieval justice, even if it is a small step.


Why does this all matter? Well, if the integrity of the jury system continues to be undermined by the illegal use of the internet and social media, it paves the way for alternative forms of justice such as judge-only trials to prevail. So, I will leave you with these final words, not my own, which convey far better than I ever could why the terror of juryless trials should never be understated.


‘The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of twelve of his countrymen… Trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.’ [11]



 

References and further reading:

[1] Baker, An Introduction to English Legal History, 5th ed. (Oxford, 2019), p. 79-80. [2] Ibid, p. 82. [3] Ibid, p. 83. [4] Potter, Law, Liberty and the Constitution, (Woodbridge, 2015), p. 325. [5] The Guardian, 4 Oct 2010, online: https://www.theguardian.com/law/2010/oct/04/judges-resigned-jurors-online-research [6] The Guardian, 26 Jan 2010, online: https://www.theguardian.com/uk/2010/jan/26/juries-internet-justice [7] The Guardian, 16 Jun 2011, online: https://www.theguardian.com/uk/2011/jun/16/facebook-juror-jailed-for-eight-months

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