As Dr Theodora Dallas begins her six month sentence for contempt of court, you may be wondering whether the principles of jury duty can survive in a world where information is freely available to everyone about almost everything.
In her case, ‘contempt of court’ meant deliberately disobeying an order by the judge at the start of the case. As a matter of routine in every case, judges tell jurors not to search on the internet for information about the case they are due to try. They call it the ‘Google warning’, and will remind the jury of it at regular intervals. Prominent notices in the jurors’ section of the court building and the introductory film they are shown on their first day, both stress the point.
The reason for the prohibition is clear: it is for the parties to decide what evidence they wish to rely on in support of their respective cases, and only evidence which is probative and relevant to an issue can be admitted. An ‘issue’ means an important matter in dispute – one that the jury needs to resolve as part of its task in deciding whether the prosecution have proved their case. One side or the other will often object to the evidence by arguing that it is not relevant. If the Judge agrees, the jury will not hear it. If a piece of evidence is not probative it will be excluded, particularly if it also prejudicial– it will bias the jury without helping to clarify the real issues in the case. Disputes about whether evidence should be admitted or not can be complicated, but the two key considerations are relevance to an issue and ‘probative value’ – meaning simply that can help the party which uses it to prove its case.
Questions about what evidence should be admitted or excluded are not an arcane procedure designed to give employment and pleasure to lawyers. It is an essential component of the ‘golden thread’ of our criminal law, by which the prosecution have the burden of proving guilt, and proof means the jury must be sure of the defendant’s guilt. Dodgy evidence will not achieve a safe and reliable verdict. The prosecution have the responsibility of not putting in evidence that may look probative, but is not, and are subject to the judge’s ruling in a disputed case (as of course are the defence). Picture this: a prosecutor applies to put in evidence of a defendant’s previous convictions (often admissible now, since the Criminal Justice Act 2003); the Judge decides that in the particular circumstances of the case, they are not admissible – because they are not relevant to any of the matters in dispute in the trial. But then the prosecutor tells the jury about them anyway. Obviously the trial would have to stop, the jury would be discharged, and the prosecutor would be in serious trouble. No one could say a trial like that was fair.
Of course, that is a highly implausible scenario. But follow it up to the point at which the judge rules that the jury can’t hear the evidence. The discussion and decision take place in their absence (no point telling them what they can’t hear). The prosecutor abides by the ruling. But then a juror independently decides to search online for the defendant’s name and discovers a news report from many years ago which discloses his previous convictions; or he uncovers some malevolent gossip on Facebook. He tells the other jurors. They use the information when deciding the case by convicting the defendant. This is something like what Dr Dallas did.
You can see how easily this subverts the basic principles of a jury trial. The court decides, in public, whether a piece of evidence is relevant and admissible. The judge hears arguments from each side, and gives a reasoned decision. In many cases, a higher Court can review that decision on appeal. The process is open, transparent, governed by law, and accountable – the minimum requirements for a fair trial. What Dr Dallas did was secretive, immune from proper legal consideration, and thus lacked all safeguards against unfairness. Justice must be open justice. That is why dictators favour secret trials – they can get away with whatever they want, and nobody knows what evidence has been used or how the decisions are made. We already put a lot of trust in jurors, and let them make their decisions in private. But the evidence and the arguments are heard in public. Most of the time they repay our trust and act conscientiously, within the rules.
A mouse click away
But how do you stop jurors taking the evidence into their own hands when misleading or totally false information about a case may be only a mouse click away? They have to be trusted to obey the rules, and the rules and the reasons for them have to be explained clearly – as they surely are in the Crown Court. There must be firm sanctions for breaching that trust. The High Court thought that the only sanction for Dr Dallas was a term of imprisonment. That reflects not only the damage that her action was capable of doing in the trial, but it shows how much value is placed on the integrity of the system of trial by jury. That system has many powerful enemies, and this latest abuse may given them more ammunition.
Francis FitzGibbon QC
Francis FitzGibbon QC is a criminal barrister at Doughty Street Chambers. He is chair of the Criminal Bar Association. The views expressed here are personal