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The eight-month prison sentence received by Joanne Fraill for juror-defendant communication on Facebook has received enormous media attention, but isn't representative of the message jurors are typically being sent about using the internet. Fraill's situation was so extreme that it could not be ignored or brushed over; what is more worrying is the way that internet research is clawing its way ever further into criminal trials.

The internet is now so pervasive in our lives that the problem can seem insuperable. These kind of difficulties were noted in Attorney General v Associated Newspapers Ltd and News Group Newspapers Ltd [2011] EWHC 418 (Admin), where two national tabloids published photographs online that would have led to the jury being discharged had the judge not been satisfied that none had seen them.

Similarly, Lord Judge, in his recent guidance on the use of electronic communications in court, has recognised the danger to the administration of justice, in particular in the context of criminal trials, of tweeting from the courtroom.

That said, the Court of Appeal appears increasingly reluctant to quash convictions based on juror research, the leading case being R v Thompson [2010] EWCA Crim 1623. Here the Lord Chief Justice gave guidance that material obtained from the internet should be considered by the court to see whether it strikes at the fairness of the trial. Somewhat at odds with that, Benjamin Thompson's appeal was based on five pages of legal research conducted by one of the jurors on the internet. The appeal was dismissed because the letter of concern written on behalf of almost half the jurors did not explicitly say that they did other than follow the directions in law given by the judge.

Thompson was followed in R v McDonnell [2010] EWCA Crim 2352, where it became apparent that at least two of the jury had been involved in internet research and that the jury as a whole had not brought this to the trial judge's attention. The determination of the court to uphold the safety of the conviction was obvious, with the judge saying: 'It is difficult to see that it could have produced anything prejudicial to the appellant... we think it safe to assume that simple curiosity was probably the reason for the enquiry and there is no positive reason to think that it produced anything prejudicial to the appellant.'

In neither case did the court fully confront the fact that no member of either jury had seen fit to even tell the trial judge that internet research was being carried out, nor is there any suggestion of contempt proceedings following either case. What was not acknowledged was the complete lack of control a court has over a case the moment it becomes apparent that jurors are feeding outside information into the deliberation process. The individual and collective disregard shown to the judge's directions was frowned upon but nothing more.

This is not to say that juries should be discharged every time internet research arises. I observed HHJ Darling handle the individual discharge of a juror who had researched the issue of Muslims taking (or not taking) an oath on the Koran impeccably in a trial at Wood Green Crown Court. It was clear there, however, that the information was yet to make its way into collective deliberations.

Wrong message

It is not just for the courts to set examples, however. A colleague of mine recently represented a man of good character at Snaresbrook Crown Court, the only evidence that an item found in his possession was an offensive weapon being a printout from Wikipedia which the officer in the case produced as his own exhibit and which the Crown Prosecution Service nonchalantly relied upon at pages 1 and 2 of the exhibit bundle. Fortunately the case was dropped on the morning of trial (thanks to HHJ King's firm views), but what kind of message is it sending jurors who are told not to conduct internet research of their own if the Crown seeks to present them with a page from Wikipedia and then ask them to convict?

Jurors have no reason to fear personal repercussions if they conduct their own internet research, as long as they're not silly enough to actually contact the defendant, and defendants would be right to feel enormously insecure about what jurors are reading on the internet and feeding (openly or otherwise) into their deliberations.

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