Criminal Justice and Courts Bill

Written evidence submitted by Dr Mark Coen, Durham Law School (CJC 34) 

Introduction

1.1 This submission is concerned with certain provisions of the Bill which relate to jury service and the jury system. A summary of recommendations is provided at the end of the submission.

Proposed power to confiscate electronic devices from jurors

2.1 The usefulness of this power is questionable. Section 40 would permit the judge to order the confiscation of electronic devices while the jurors are in court buildings, visiting a place connected with the trial or staying in accommodation provided at the judge’s request. The power does not extend (nor could it) to the removal of electronic devices from jurors who go home at the end of each day of the trial, which is what happens in almost all cases. The juror who is determined to breach judicial warnings about conducting research may do so on any number of electronic devices in the privacy of their own home. The removal of portable devices from jurors while at court is therefore a very limited and ineffective solution to an intractable problem. It may also create the undesirable impression, notwithstanding warnings and information to the contrary, that research in the deliberation room or court building is worse than research at home. For these reasons, I would suggest that this power be removed from the Bill.

Offence of research by jurors

3.1 The Bill creates an offence of research by jurors. For the reasons given by the Law Commission, particularly the need to clarify the existing law, this is a very welcome development. The offence is generally clear, for example by explicitly prohibiting research on the law and the rules of evidence in addition to research on people involved in the case. Jurors who have challenged their convictions for conducting internet research have argued that they did not know that certain activities were prohibited, [1] so a clear legislative ban (which will have to be explained in simple but thorough judicial warnings) is essential. For the most part the proposed offence of research by jurors achieves this.

3.2 One example of "information relevant to the case" which is not included in section 42 (or, more precisely, in the proposed section 20A (4) inserted by section 42 of the Bill) is a place involved in the case. Section 20A (3)(c) refers to "visiting or inspecting a place" but place should also be listed in section 20A (4) because information about a location can also be found through online searches or by asking third parties about it. Section 20A (4) uses the word "includes" so its list of "information relevant to the case" is not exhaustive, but the inclusion of place in the list would add to the clarity of the section, as currently its explicit focus is on researching people and legal rules.

Offence of sharing research with other jurors

4.1 It is highly questionable if an offence of sharing the prohibited research with other jurors (section 43) is necessary. The focus should be on the impermissibility of conducting the research, which is covered by section 42. That message becomes blurred if judges have to tell newly empaneled jurors that sharing the fruits of the prohibited research is considered so serious that there is a separate offence of doing this. That approach arguably underplays the core wrongful conduct - the decision to defy the instructions of the judge by doing independent research in the first place. The case law demonstrates that jurors need easily understandable and comprehensive instructions that research is a punishable offence. Having to explain the potential for the commission of a further offence if they commit that initial one will not assist judges in delivering that central message. Judicial instructions should not have to consider the legal situation of the juror who has done illicit research and is deciding whether or not to share it.

4.2 Furthermore, sharing what one has found is not an independent, separate act which deserves to be punished to the same extent as the initial act of research. One can also envisage that in cases where a juror is prosecuted for the two offences of conducting and sharing research and convicted of both, the imposition of concurrent sentences might well render the existence of the two distinct offences otiose.

4.3 The proposed section 43, containing this separate offence of disclosing the prohibited research, should be omitted from the Bill. A sub-section could be incorporated into section 42 (which creates the simple research offence) stating that the sharing with other jurors of information derived in contravention of the section is an aggravating factor when sentencing for that offence.

Omission of an exception permitting approved academic research into jury deliberations

5.1 It is striking that the Bill’s provisions relating to the jury system, which clearly owe so much to the recommendations of the Law Commission, do not include the exception advocated by that body for the conduct of authorised academic research. The Commission’s recommendation to this effect is the latest in a long line of recommendations by official studies over the years. [2] Professor Cheryl Thomas stated in her oral evidence on the Bill, as she has done frequently elsewhere, that interviews with jurors about their deliberations constitute "very poor methodology." This is a contestable assertion and one which should not justify the criminalisation of the interviewing of jurors about their deliberations. Professor Thomas has demonstrated that excellent jury research can be done within the current statutory constraints, but that is also not a reason to use the force of law to prevent other researchers from using post-trial interviews with jurors.

5.2 The present lack of an exception interferes with our ability to evaluate the workings of the jury system. For example, jurors can be asked if they did online research about the case they are trying. Such a question does not contravene section 8 of the Contempt of Court Act 1981 because it does not pertain to the deliberations. Professor Thomas herself asked jurors such a question in one of her studies. [3] However, she was unable to ask the jurors if any other juror revealed that they had done internet research, because such a question would come within the ban on questions about deliberations. It can be seen from this example that the current ban, which this Bill proposes to continue, limits our ability to investigate the jury system fully. Creating a tightly regulated exception for academic research would permit researchers to ask jurors about other jurors – their understanding, their behaviour, their prejudices as revealed in the course of the deliberations. Such an exception would also permit investigation of how juries deliberate [4] – when and how votes are taken, the role of the foreperson etc. Such wide-ranging interviews have been permitted for official purposes in other jurisdictions, most notably by the New Zealand Law Commission. [5]

5.3 Without the ability to interview jurors post-trial about their deliberations, with appropriate safeguards and authorisation procedures in place, our picture of how the jury system functions is necessarily incomplete. The exception permitting regulated academic research on jury deliberations post-trial, as recommended by the Law Commission, should be incorporated in the Bill.

In summary

- The proposed power to confiscate electronic devices should be omitted

- In Section 42, Section 20A (4) should include "a place or location relevant to the case"

- The proposed offence of sharing research with other jurors (section 43) should be omitted

- An exception to the secrecy rule permitting authorised academic research into jury deliberations, as recommended by the Law Commission, should be included in the Bill

March 2014


[1] See, for example, R v Dallas [2012] 1 W.L.R. 991.

[2] Report of the Royal Commission on Criminal Justice (July 1993) at 188; R. Matthews, L. Hancock and D. Briggs, Jurors' Perceptions, Understanding, Confidence and Satisfaction in the Jury System: A Study in Six Courts (2004, Home Office No.05/04); Department for Constitutional Affairs, Jury Research and Impropriety (CP 04/05), at 31-32; House of Commons Science and Technology Committee, Seventh Report of Session 2004-05, Forensic Science on Trial at 73.

[3] C Thomas, Are Juries Fair? (Ministry of Justice Research Series 1/10, 2010) at 13 and 43.

[4] At present little guidance is given on this issue. See the comments of Lord Judge in R v Thompson [2010] EWCA Crim 1623.

[5] W Young, N Cameron & Y Tinsley, Juries in Criminal Trials, Part Two, Volume 2: A Summary of the Research Findings (NZLC PP37, Wellington, 1999).

Prepared 28th March 2014