Jury Service (lrc 107-2013)
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- 1.427 The Commission recommends that, in order to protect juror privacy and assist in preventing potential intimidation, the daily roll call of the jury after empanelment should be abolished. 104
- CC Current Position in Ireland and Comparative Approaches 105
- 1.431 Similarly, section 19(3) of the 1976 Act sets out the following oath that each juror in a case other than a criminal trial must take: 105
1.422 A second matter related to intimidation to which consultees referred is that, after empanelment, there is currently a daily roll call of the jury which is carried out in open court, thereby revealing on a daily basis the names of the 12 jurors. The Commission agrees with consultees that this is an unnecessary process and it should be abolished in order to protect juror privacy and assist in preventing potential intimidation. 103 1.423 Related to the calling of the jury roll is a third matter to which consultees referred, which is that there is currently no formal requirement for jurors to establish their identity when summoned to appear in court, although the Commission understands that, in practice, this is sought. The Commission considers that the juries legislation should expressly provide that prospective jurors be required to bring a valid form of personal identification when attending for jury selection. This would assist the courts to deal with the risks arising from the use of the electoral roll where, as already discussed, it is not possible to identify with precision specific persons with the same name at the same address. In addition, the provision of formal identification would assist in limiting the necessity for calling names in court on a repeated basis. The Commission also considers that this is a suitable requirement, bearing in mind that the jury lists are derived from the electoral register and that section 111 of the Electoral Act 1992 requires voters to bring prescribed personal identification to a polling station. The current list of prescribed personal identification comprises the following: (i) a passport; (ii) a driving licence; (iii) an employee identity card containing a photograph; (iv) a student identity card issued by an educational institution and containing a photograph; (v) a travel document containing name and photograph; (vi) a bank or savings or credit union book containing address in constituency or electoral area; (vii) a cheque book; (viii) a cheque card; (ix) a credit card; (x) a birth certificate; or (xi) a marriage certificate. The Commission adds that the failure to produce suitable identification should not, in itself, prevent a juror from serving and in such a case the juror should be required to confirm their identity by oath or affirmation, which is also a process of identification under the Electoral Acts. The Commission also considers that the form or notice accompanying the jury summons (as currently required by section 12 of the Juries Act 1976) should include a statement referring to the benefits of bringing such personal identification, including that the person may positively identify themselves in court and that this may limit the extent to which the person’s name is called out in public. 103 1.424 The Commission recommends that the elements of the common law offence of embracery which remain of relevance and which do not already overlap with the offence of intimidation in section 41 of the Criminal Justice Act 1999 should be incorporated into a single offence that deals with all forms of jury tampering. The single offence should include any attempt to corrupt or influence or instruct a jury, or any attempt to incline them to be more favourable to the one side than to the other, by money, promises, letters, threats or persuasions, with an intent to obstruct, pervert, or interfere with, the course of justice. 103 1.425 The Commission considers that there is a strong argument, as described in the 2002 Report of the Committee to Review the Offences Against the State Acts 1939-1998, in favour of a re-examination of whether the use of scheduling of offences for the purposes of the Offences Against the State Act 1939 complies with the State’s obligations under international law and whether a more individualised case-by-case approach may be justified. 103 1.426 The Commission recommends that, in order to ensure that the accused may exercise a right to challenge effectively while at the same time protecting as far as practicable the security and privacy of jurors, access to jury lists should be possible only by the parties’ legal advisers (or the parties if they are not legally represented) and only for a period of four days prior to the trial in which the parties have an interest. The Commission also recommends that access to the jury list should not be permitted once the jury has been sworn, except for some exceptional reason and only with the sanction of the court on application; and that, where a party is legally represented he or she may be provided with the information in the jury list but not a copy of the list. 103 1.427 The Commission recommends that, in order to protect juror privacy and assist in preventing potential intimidation, the daily roll call of the jury after empanelment should be abolished. 104 1.428 The Commission recommends that the juries legislation should expressly provide that prospective jurors be required to bring a valid form of personal identification when attending for jury selection, and that this should take the same form as the prescribed personal identification required under section 111 of the Electoral Act 1992. The Commission also recommends that the failure to produce suitable identification should not, in itself, prevent a juror from serving and in such a case the juror should be required to confirm their identity by oath or affirmation. The Commission also recommends that the form or notice accompanying the jury summons (as currently required by section 12 of the Juries Act 1976) should include a statement referring to the benefits of bringing such personal identification, including that the person may positively identify themselves in court and that this may limit the extent to which the person’s name is called out in public. 104 juror misconduct: independent investigations and internet searches 105 juror misconduct: independent investigations and internet searches 105 BB Introduction 105 1.429 In this Chapter the Commission examines to what extent current law is sufficient to deal with the risk of juror misconduct, in particular the risk that a juror may engage in independent investigations, such as searching for information on the internet about the case on which the person is sitting as a juror or visiting a crime scene alone. This involves the application of two principles discussed in Chapter 1, the right to a fair trial and that the jury must be unbiased. In Part B the Commission examines whether the juror’s oath to arrive at a verdict “according to the evidence” is sufficient to prevent such misconduct and also discusses a related issue, to what extent the publicity surrounding a case could affect the fairness of a trial. The Commission also examines the approaches taken to juror misconduct in other jurisdictions. In Part C, the Commission reviews the provisional recommendations made in the Consultation Paper and, having regard to the views expressed in the consultation process, sets out its final recommendations. 105 CC Current Position in Ireland and Comparative Approaches 105 (1) The juror’s oath and judge’s directions to the jury 105 1.430 Section 19(1) of the Juries Act 1976 sets out the following oath that each juror involved in a criminal trial must take: 105 “I will well and truly try the issue whether the accused is (or are) guilty or not guilty of the offences (or the several offences) charged in the indictment preferred against him (or her or them) and a true verdict give according to the evidence.” 105 1.431 Similarly, section 19(3) of the 1976 Act sets out the following oath that each juror in a case other than a criminal trial must take: 105 “I will well and truly try all such issues as shall be given to me to try and true verdicts give according to the evidence.” 105 1.432 The oath clearly requires a juror to decide a case, whether a criminal trial or otherwise, exclusively on the basis of evidence presented in court. This obligation is reinforced by a specific direction from the trial judge after the jury has been selected that they must try the case on the evidence presented in court, and must not be influenced by any external matters or to obtain information elsewhere. This is also reinforced in the trial judge’s summing up to the jury at the end of the trial and immediately before they retire to consider their verdict. 105 1.433 It has been noted that the content of such a direction may be moulded to the facts of the case and, for example, may take account of the degree of publicity that the case has attracted. In the past, the direction would typically include a statement that the jury should not read any newspapers or magazines that might include coverage of the trial or listen to radio programmes or watch TV. The advent of the internet and social media sites, and in particular their ready accessibility through smart phones or Wi-Fi enabled tablets, now provide access to a wide range of materials such as archives of media reports that may have reported on the factual background to a trial, general information on scientific matters that might arise in a trial (such as DNA evidence) and a huge array of general commentary such as blogs and other material from social media. This information can contain prejudicial material, and has the potential to impact on the right to a fair trial. In recent years, trial judges have incorporated specific comments to the jury not to access information regarding the trial through internet search engines or social media. 105 (2) Effect of publicity on the fairness of jury trial 106 1.434 In a number of cases the courts have considered the effect on jurors of pre-trial publicity and on ongoing media coverage as a trial proceeds. As to pre-trial publicity, in Z v Director of Public Prosecutions the applicant applied in 1993 to prohibit his trial on charges of rape. The applicant’s (then-alleged) victim, who was 14 years of age at the time, had become pregnant as a result of this and she and her parents had inquired about whether obtaining a termination of the pregnancy would affect the admissibility of evidence at the trial of Z. This then gave rise to the decision in 1992 in Attorney General v X in which the Supreme Court had held that it was permissible for Z’s victim, referred to as Ms A, to obtain a termination. This decision in 1992 received enormous national and international media coverage, although neither Ms A nor Mr Z were named in the media. Nonetheless, Mr Z sought to have his trial prohibited on the basis that the pre-trial publicity would mean that it was highly probable that the jurors would be pre-disposed to convict him. This argument was rejected on the ground that the trial judge would be able to deal with the publicity surrounding the trial by directing the jury that the controversy and publicity surrounding the case was completely irrelevant to the trial and should be completely disregarded. In Kelly v O’Neill Denham J commented in the Supreme Court that the decision in Z v Director of Public Prosecutions recognised “the robustness of the Irish jury… and the administration of justice proceeded.” 106 1.435 As to publicity occurring in the course of course of a trial, in D v Director of Public Prosecutions the applicant had been charged with indecent assault of a girl. As a result of inaccurate newspaper reporting of the trial, the jury in his trial had been discharged and when the newspapers in question had appeared in court to explain their inaccurate reporting counsel for the prosecution had stated that as a result of the reporting “a patently guilty man had gone free.” This in turn received further widespread media coverage which included a sympathetic interview with the victim (who was not named), and the applicant sought to prevent his re-trial on the charge in question. The High Court granted the order sought but this was overturned by the Supreme Court. The Supreme Court accepted the importance of the right to a fair trial and that a juror might well remember reading the media coverage of the previous trial and feel sympathy towards the victim, but the applicant had not established that there was a real risk that the jury would be prevented from returning an impartial. The Court concluded that, to hold otherwise, would imply that the jury would ignore their oath to try the case on the evidence adduced and to ignore extraneous evidence. 106 1.436 In these decisions, the courts have emphasised the importance of the trial judge’s directions to a jury that they must try the issues before them only on the evidence adduced. In the D case, Blayney J noted that the jury will be reminded of this in the trial judge’s summing up immediately before they begin deliberations. 106 (3) Prior juror experience and perception of bias 106 1.437 Jurors will bring their general experience of life to bear on their deliberations without breaching the oath under section 19 of the Juries Act 1976 or risking an unfair trial; indeed, as previously noted, such life experience is of immense value in the deliberative process required of juries. In some instances, however, this life experience may be more directly related to the issues under consideration and raise the risk that the trial is not conducted by an impartial jury. This was the issue that arose in The People (DPP) v Tobin, where the defendant was on trial for rape and other sexual offences. During the jury’s deliberations, a woman juror revealed that she had previously experienced sexual abuse. The trial judge was informed of this and was assured by the foreman that the disclosure by the juror had had no impact on her impartiality and, after legal argument, the trial judge declined to discharge the jury and allowed the trial to proceed. The defendant was convicted and, on appeal, the Court of Criminal Appeal, applying the objective test of reasonable apprehension of bias, held that given the particular circumstances of the case the disclosure in question could lead to a reasonable apprehension that the juror may have been influenced by her experience of abuse and that this might also have had an influence on the other members of the jury. The Court therefore quashed the conviction and ordered a re-trial. The Court of Criminal Appeal added that its decision in this case did not rule out the possibility that, in another case, a considered and carefully worded direction to the jury could deal with this type of problem and allow the trial to proceed and avoid the need to discharge the jury. 106 (4) Juror misconduct and contempt of court 107 1.438 An instance that came close to active juror misconduct occurred in The People (DPP) v McDonagh. In this case, two members of the Garda Síochána had been sworn as jury keepers but it was clear that they did not fully understand their role beyond preventing external interference with the jury. On at least one occasion one of the Garda jury keepers had discussed the case with one of the jurors, though only in a fairly general way, and there were, it appears, discussions of “war time stories” from other cases over drinks; and, when the jury were sequestered overnight in a hotel a Garda jury keeper had spent some time drinking with one of the jurors in her bedroom into the early hours of the morning. The Court of Criminal Appeal accepted that these events did not involve subornation of the jury in that there had been no attempt to influence the jury’s decision-making process but, applying the objective test of bias in The People (DPP) v Tobin, discussed above, the Court concluded that the conviction should be quashed and a re-trial ordered. 107 1.439 The examples discussed above do not involve misconduct in the sense of a juror actively seeking extraneous information by, for example, visiting a crime scene or carrying out an internet search in breach of the juror’s oath. As discussed in the Consultation Paper and briefly below, however, such misconduct has occurred in other jurisdictions. 107 1.440 As the Commission has previously noted, it is in general desirable to preserve the general secrecy of jury deliberations but this does not preclude communication with the trial judge after the jury has begun its deliberations, as expressly referred to in section 15(4) of the Juries Act 1976 and illustrated by the decision in The People (DPP) v Tobin. Where the jury communicates in this way during the trial and if the trial judge considers that the behavior is inappropriate, the juror may be discharged from the jury under section 24 of the 1976 Act and the trial may be able to proceed. Where juror misconduct occurs that is in clear breach of the oath, whether through internet searches or other inappropriate behavior, this constitutes an interference with the administration of justice and, therefore, a case of criminal contempt of court. Where the conduct comes to light after the jury’s verdict has been delivered, a prosecution for contempt of court may be instituted. The Commission now turns to examine the approach to this issue in other jurisdictions, where the question of enacting a specific offence to deal with juror misconduct has been considered. 107 (5) Comparative approaches to juror misconduct 107 1.441 As the Commission noted in the Consultation Paper, in other jurisdictions juries have been discharged arising from the impact of extraneous influences, including active forms of juror misconduct such as internet-based research by jury members. 108 1.442 In the English case R v Young it emerged that some members of the jury had used an ouija board in an attempt to make contact with the murder victim in the case that they were empanelled to hear. In R v Marshall and Crump it emerged after the jury had delivered its verdict that some printed material downloaded from the internet had been found in the jury room. The material, obtained from the websites of the Crown Prosecution Service, the Home Office and a criminal defence solicitor’s practice, dealt with a number of issues relating to charging and sentencing practice and in relation to the offences with which the defendants had been charged. The defendants argued on appeal that the jury members must have undertaken their own research and that the material found indicated that they might have taken extraneous matters into account when reaching their verdicts. The Court of Appeal accepted that a jury’s access and use of additional material could in principle be regarded as an irregularity that could render a conviction unsafe but in this instance concluded that it had not and it dismissed the defendants’ appeal. 108 1.443 In R v Mirza Lord Hope stated that the jury system would be strengthened if jurors were told before the trial begins that they are under a duty to inform the court at once of any irregularity that occurs while they are deliberating. After the decision in Mirza, a 2004 Practice Direction was issued in England and Wales which provides that trial judges should ensure that the jury are alerted to the need to bring any concerns about fellow jurors to the attention of the judge at the time they occur, and not to wait until the case is concluded. The Practice Direction added that “it is undesirable to encourage inappropriate criticism of fellow jurors, or to threaten jurors with contempt of court.” In support of this balanced approach, the Judicial Studies Board for England and Wales has also issued guidance on the form of judicial direction that should be given, which points out that the judge should note that jurors ought not to presume that misconduct is common or likely to occur but that if it does occur it should be brought to the judge’s attention. The Commission is also aware that, since 2010 there has been a specimen “Internet Direction” to juries in Northern Ireland, which focuses on the requirement in the juror’s oath to determine the case according to the evidence only. 108 1.444 In R v Smith and Mercieca a juror wrote a letter to the trial judge expressing concern in relation to the conduct of other jurors in the case. The UK House of Lords held that the trial judge had acted correctly when he decided not to question the jurors about the contents of the letter because if he had done so he inevitably would have had to question the jurors about their deliberations and whether the defendant was guilty of any of the offences charged. Nonetheless, the House of Lords concluded that the trial judge should have assumed that the letter was accurate and that, therefore, if the jury had been behaving as alleged by the juror in her letter, they required a strong, even stern, warning that they must follow the judge’s directions on the law, adhere to the evidence without speculation and decide on the verdicts without pressure or bargaining. In this respect, the House of Lords concluded that the general reiteration by the trial judge of the jurors’ duty to decide the case on the evidence adduced was not sufficient. In this instance the jury required stronger and more detailed guidance and instruction, and without this it was difficult to be satisfied that the discussion in the jury room was conducted after that in the proper manner. 108 1.445 In this context, while a prosecution for contempt of court can rightly be regarded as a last resort, in 2011 a juror in an English case who contacted the defendant during the course of the trial through her Facebook account was convicted of contempt of court and sentenced to a term of imprisonment. 108 1.446 A 2010 English study carried out for the UK Ministry of Justice by Cheryl Thomas examined the effect of publicity on juror decision-making and the prevalence of internet searches by jurors. This was the first empirical study in England of the “fade factor”, that is, whether the further away media reports are from a trial the more likely they are to fade from jurors’ memories. The study’s findings supported the view that, in general, a “fade factor” applies to pre-trial publicity and does not affect the deliberations of a jury. Of the jurors who participated in the study, those serving on high profile cases were almost seven times more likely to recall media coverage (70%) than jurors serving on standard cases (11%). In high profile cases, the study found that over a third of jurors (35%) remembered pre-trial coverage, with television (66%) and national newspapers (53%) the two main sources. This contrasted with jurors’ recall of media reports in standard cases, where local newspapers accounted for almost all (77%) coverage recalled. Two thirds (66%) of jurors in high profile cases who recalled media coverage either did not or could not remember it having any particular slant. Where jurors did recall any emphasis, almost all recalled it suggesting the defendant was guilty. In high profile cases, 20% of jurors who recalled media reports of their case said they found it difficult to put these reports out of their mind while serving as a juror. 109 1.447 As to internet searches, the 2010 English study found that more jurors said they saw information on the internet than admitted looking for it on the internet. Dr Thomas concluded that as the jurors who participated in the study were admitting to doing something they would have been told by the judge not to do, this may have explained why more jurors said they saw reports on the internet than said they looked on the internet. The study found that in high profile cases 26% said they saw information on the internet compared to 12% who said they looked. In standard cases 13% said they saw information compared to 5% who said they looked. Among the jurors who said they looked for information on the internet, most (68%) were over 30 years old. Among jurors in high profile cases, an even higher percentage (81%) of those who looked for information on the internet was over 30. 109 Directory: fileupload fileupload -> Phone Line Justification (ata-analog Telephone Adapter Connected Devices) fileupload -> Vehicle Bill of Sale fileupload -> Marion county, south carolina fileupload -> Georgina Campbell’s Ireland Guide App Download 1.75 Mb. Share with your friends:
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