Justice in the Internet Age: has trial by Ordeal passed its sell by date?

The recent suicide of a victim while the Jury was deliberating helps add perspective to the recent debate on whether “Trial by Google”  is “a risk to the Jury system“. The opportunity should be used to facilitate a rebalancing of justice. Should we not return to something more akin to a Saxon investigative Jury seeking to understand what happened, followed by trial of the accused, not the victims, by Ordeal? Justice is all too often not served by the modern compromise, whereby the victim suffers the ordeal, as part of a ritual trial by battle (albeit the champions use words and obfuscation instead of swords and shields) during which the jury is drip fed only that information which legal protocol permits.   

Why should Counsel be permitted to google Jurors in order to adjust arguments to their prejudices (as revealed by their on-line habits) while Jurors are not permitted to go on-line to find out what is being hidden from them? Why should the scales of justice be so heavily weighted on the side of the accused long after the death penalty, corporal punishment and even penal servitude have been abolished?

My doctor assumes that I have Googled my symptoms and asks what I think I have got, as well as what I looked at, before he or she questions me. So too should Judges and Counsel ask Juries what they have found on the Internet and help them evaluate all the evidence, not just that subset which fits the case for the prosecution or that for the defence, as part of a set of rituals that has developed in response to flaws in the justice system in the period portrayed by  Garrow’s Law : when those found guilty could suffer death or transportation for even minor offences.    

The Attorney General is correct to say that “Trial by Google” threatens to undermine the integrity of the current British jury system. He also asks good questions:”What does the Internet mean for our system of trial by jury? Is the trial process equipped, or even able, to regulate the information that jurors receive? How can we be sure that jurors decide their cases on the basis of the evidence they hear – and not what they looked up on their smart phones on the bus on the way to court?”.

Some of his concerns are also valid: “The internet is a haystack of material, scattered with the odd prejudicial needle, as it were. Trial by Google allows a juror to locate the haystack, find the needle, pull it out and ascribe significance to it that it simply would never have had otherwise. It takes a minor risk and turns it into a major risk.”

But the “fundamental principle of our legal system” which “Trial by Google” offends has been questioned by many generations of Jurors, albeit in private, because most take the secrecy of the Jury room as seriously as the alumni of Bletchley Park took their commitments. Many of those who have acquited defendents of heinous crimes, only to learn afterwards of track records which showed that they were indeed capable of that which was being denied, have severe reservations over the principle “that a conviction, or for that matter an acquittal, should be based on evidence adduced in court, in accordance with established rules of evidence, subject to the supervision of the judge.”

That principle is not quite the same as the principle of open justice: “it should be clear to the defendant, the public, the victim and the prosecution what the evidence in the case is. If a jury is exposed to prejudicial material which, for whatever reason, is not before the court, the basis on which the defendant is convicted or acquitted will never be known.” 

It could be argued that instead of expecting jurors to show restraint, they should be expected to declare what they found over the Internet so that it too is before the Court. Arguments over how that evidence should be evaluated could then be conducted in front of the jury. This would almost certainly lead to major changes in behaviour on the part of police, prosecuitors and defendents. These could well lead to fewer cases going to trial and a sharp drop in earnings for Counsel and employment opportunities for Judges, as more defendents plead guilty. MIght it also lead to a safer and most just society? 

Dominic Grieve is correct to say that “the internet has made the commission of many criminal offences much easier”. But the way forward is surely to use the Internet to make it easier to convict the guilty without subjecting victims to unnecessary torment.

Seeking to prevent Juries from using the Internet is pissing in the wind.

I admit that working out how to guide their use of the Internet will be an “interesting” exercise.  I also suspect I would be in favour of draconian penalities for those publicising falsehoods outside the Courts with the aim of influencing juries. Telling lies in Court, alongside economy with the truth, is, sadly, part of the rituals that cause so many victims to suffer in silence rather than report crime to our injustice system.