The Consultation Paper provisionally recommended that it should be an offence to make inquiries about matters arising in the course of a trial beyond the evidence presented; and that there be a separate offence for a juror to disclose matters discussed in the jury room that would affect the fairness of the trial.524 It also provisionally recommended that the Courts Service should provide information to jurors explaining why independent investigations or internet searches about a case should not be undertaken,525 and it invited submissions as to whether a trial judge’s directions should be reformulated specifically to cover juror misconduct.526
Given the general secrecy that surrounds jury deliberations, it is difficult to assess to what extent, if any, such misconduct occurs now or has occurred in the past. In the Commission’s discussions with interested parties, including those involved in the criminal justice system in Ireland, the general view expressed was that jurors take their oath and task very seriously and that misconduct, if it occurs, appears to be rare. Nonetheless, in addition to the examples already discussed where the Court of Criminal Appeal has dealt with recorded instances of concern arising within juror deliberation, there has been at least one published reference where a juror had observed a fellow self-employed juror using his mobile phone in the jury room in order to keep in contact with his business.527 While that specific example may indicate the difficulties posed for self-employed persons serving on juries where there is no financial support in place,528 the Commission is also conscious of the need to ensure that public confidence in the jury system is not impaired through any perception of inappropriate juror behaviour and that there should therefore be specific statutory provisions and administrative arrangements in place to reduce as far as possible the risk of this occurring. The Commission considers that this is reinforced by the findings in the 2010 English study of the effect of publicity on juror decision-making and the prevalence of internet searches by jurors carried out for the UK Ministry of Justice by Cheryl Thomas,529 discussed above. While no comparable study has been carried out in Ireland, the Commission considers that its findings are of value in indicating that the impact of extraneous publicity on the one hand and the risk of internet searches by jurors on the other hand should be addressed.
Consultees agreed that the issue of juror misconduct, and in particular the risk of extraneous investigations in the internet and social media age, was in need of specific reform and that the general approach taken in the Consultation Paper was correct. Submissions suggested that as soon as the jury has been empanelled, the judge ought to inform jurors clearly of their role, make clear the type of conduct that is inconsistent with this role and that specific mention ought to be made of the use of phone or internet sources to either seek or disseminate information about the trial. It was also suggested that the guidance and approach in place in England and Wales and in Northern Ireland, in which the judge should state that jurors should not expect that misconduct is likely to happen, could also usefully be followed. It was also generally agreed that jurors should be informed clearly as to how to go about reporting misbehaviour, to avoid the situation in which this is reported after the verdict.
Having regard to the submissions received and the further discussions with interested parties, the Commission has concluded that it should affirm the views expressed in the Consultation Paper. The Commission acknowledges that consultees indicated that juror misconduct may be a relatively rare occurrence, but it is nonetheless important that suitable measures are in place to ensure public confidence in the deliberations of juries to the greatest extent possible. In this respect, the Commission has concluded that the issue of juror misconduct should be addressed by a combination of the type of specific directions and guidance used in England and Wales and in Northern Ireland and the specific legislative reforms adopted in New South Wales. These legislative reforms would be without prejudice to other offences involving the administration of justice, notably contempt of court and perverting the course of justice.
The Commission is also conscious that prosecutions for existing offences under the Juries Act 1976 have in the past been brought in rare cases only and that, in recent years, there is no clear evidence that any prosecutions have been brought. The Commission is conscious that prosecution of jurors should not always occur as an automatic response to non-appearance to a jury summons but it is equally important to recognise that the complete absence of prosecutions is likely to lead to a greater level of non-appearance and, ultimately, disrespect for the rule of law. It also signals an official indifference to those who are prepared to attend for jury service and recognise its value as a civic duty. In this respect the Commission recommends the development of an agreed protocol on prosecutions for the various offences provided for in the legislation on jury service. The Commission also recommends that, to complement this, the legislation on jury service should provide that a fixed charge notice may also be issued in respect of any offence provided for under that legislation.
The Commission recommends that the judge’s direction to a jury should inform jurors clearly of the type of conduct that is inconsistent with the juror oath to arrive at a verdict “according to the evidence”; that specific mention ought to be made of the use of phone or internet sources to either seek or disseminate information about the case in which they are involved; that the judge should state that jurors should not expect that misconduct is likely to happen, but that they should also be informed clearly as to how to go about reporting misbehaviour if it occurs, in particular to avoid the situation in which this is reported after the verdict.
The Commission recommends that possible juror misconduct should also be addressed by providing for two specific offences. The first should be an offence for a juror wilfully to disclose to any person during the trial information about the deliberations of the jury or how a juror or jury formed any opinion or conclusion in relation to an issue arising in the trial; this offence would not apply where a juror discloses information to another juror, or where the trial judge consents to a disclosure. The second offence should prohibit jurors from making inquiries about the accused, or any other matters relevant to the trial, but would not prohibit a juror from making an inquiry of the court, or of another member of the jury, in the proper exercise of his or her functions as a juror nor would it prevent a juror from making an inquiry authorised by the court. It would also provide that anything done by a juror in contravention of a direction given to the jury by the judge would not be a proper exercise by the juror of his or her functions as a juror. In this offence, “making an inquiry” would be defined to include: asking a question of any person, conducting any research, for example, by searching an electronic database for information (such as by using the internet), viewing or inspecting any place or object, conducting an experiment or causing someone else to make an inquiry.These offences would be without prejudice to other offences involving the administration of justice, notably contempt of court and perverting the course of justice,and without prejudice to the recommendation in paragraph 11.18 of this Report concerning jury research.
The Commission recommends the development of an agreed protocol on prosecutions for the various offences provided for in the legislation on jury service. The Commission also recommends that, to complement this, the legislation on jury service should provide that a fixed charge notice may also be issued in respect of any offence provided for under that legislation.
