On 9 December the Law Commission published recommendations to reform elements of the law governing contempt of court. The Commission’s recommendations included introducing a new statutory offence for jurors who intentionally seek information beyond the evidence presented in court. It follows recent high-profile reports of jurors searching the internet to find out information about defendants and cases.
The recommendation is that jurors who search for information beyond what is presented as evidence in court should be prosecuted for a criminal offence rather than dealt with by the contempt of court procedure. Currently, the report says, jurors receive instructions from the trial judge on what they should not do. If they breach those specific instructions they are in contempt of court. But the precise limits on what they can do are set by each judge in each case. That, says the Commission, leads to inconsistency and can generate confusion. It also means that the judge is responsible for setting the boundaries of what is, in all but name, a criminal offence. The Law Commission’s recommendations mean that the limits of what jurors can do are laid down by Parliament in statute.
The Commission says its recommendations will also help to clarify for jurors what they can expect if they do search for information on the trial. Jurors accused of this form of contempt are currently tried in an unusual procedure in the Divisional Court. Under the Commission’s recommendations, jurors who search for information in this way would be committing a criminal offence and tried in the Crown Court in the usual way.
Other recommendations in the report include creating a new statutory exemption to contempt for content published prior to proceedings becoming active, and providing a broader defence for jurors who disclose potential miscarriages of justice.
Under the current law, anyone who publishes information that poses a substantial risk of seriously prejudicing a trial commits a contempt of court. They can be fined or imprisoned, and the court can order the publication to be removed or made inaccessible on the internet. This same law applies even if the material was published before proceedings were active, provided the publication is still available once proceedings are active. The onus is on the publisher to know that proceedings are active and to take down from the internet for the duration of proceedings any potentially prejudicial information.
The Law Commission is recommending that, where the information is published for the first time before proceedings become active, the publisher would be exempt from liability and could not be ordered to remove the material. That exemption could only be lifted if the Attorney General directly informs the publisher that proceedings have started and identifies the potentially prejudicial information.
This would mean that publishers need not continually review all the material they have previously published online in light of newly instituted proceedings.
The Law Commission is also recommending an extension of the defences available to jurors who, after the trial, disclose their concerns that a miscarriage of justice occurred as a result of behaviour during deliberations. Under the existing law, jurors can approach the court during a trial if they have concerns about the nature or process of deliberations. But there will be some cases in which jurors need to report concerns after a case is finished. The Commission is recommending that if proceedings have concluded and a juror fears that a miscarriage has occurred, the juror can take their concerns not just to the court but also to the Criminal Cases Review Commission and the police.
Under the current law, it is not permitted to ask the jury about any aspect of their deliberations, even when the questions are being asked by approved researchers looking into the criminal justice system. The Commission is recommending that an exception be made to enable approved researchers to investigate how juries carry out deliberations.
Prof David Ormerod QC (pictured), the Law Commissioner leading the project, said:
“We are recommending a package of reforms that would strike a balance between the public interest in the administration of justice, the defendant’s right to a fair trial and the rights of jurors.
“Jurors are already prohibited from seeking information related to a trial but which is not presented as evidence. Putting this prohibition on a statutory footing would bring greater clarity and certainty for both courts and juries. Members of the jury would know the rules; the wrongdoing could be prosecuted in the same way as other crimes and jurors accused of contempt would benefit from the normal protections of the criminal trial process.
“We are also recommending reforms that would deal more proportionately with the problem of prejudicial internet publications and their impact on court proceedings. The exemption we propose would reduce the burden on publishers and balance their right to freedom of expression with the defendant’s right to a fair trial. It is a proportionate response to a modern problem.
“It is in the interests of justice that any misconduct by jury members is brought to light, including during the process of reaching a verdict. Our reforms would extend the opportunities jurors have to report concerns, by enabling them to report to specific responsible bodies after the trial.
“The delivery of justice can only benefit from a greater understanding of how juries reach a verdict. Academic research into jurors’ conduct has been enormously helpful and, by allowing approved academics to research how juries conduct their deliberations, we would have an even more complete picture of how they work.”