4 February 2014

The googling juror

A few weeks by, I blogged about the experience of being summoned but not balloted for jury duty in the High Court in Glasgow. As you might expect, there were one or two details I couldn't include in that sketch. The nature of the indictment. The involuntarily amusing moment when the first police witness told the court that, on his arrest, the second accused had uttered, spontaneously and unprompted, "well that's it, the game's up".  

While it isn't inconceivable that a talented advocate might offer a persuasive, innocent interpretation of that remark, it isn't the easiest brief in the world. It didn't help that this somewhat ropey-looking character had just been pried from a car crammed with material subsequently revealed to be class A drugs. From the get-go, his not guilty plea didn't look likely to prosper. And so it seems to have proved. Although the Daily Record report is a little unclear, both of the main co-accused have now either been convicted or entered late guilty pleas further into the proceedings, owning up to distributing large quantities of illegal drugs in Dumfries and Galloway and beyond. 

As an unballoted juror, one aspect of the case that was of particular interest to me was the "googling factor". The phenomenon of jurors conducting independent internet research on the accused is one of increasing salience and concern to the justice system.  The first googling juror seems to have been prosecuted and jailed during 2011 in the UK.  In 2013, a juror in England was jailed for six months for contempt of court having googled the accused, discovered his past convictions, and told her colleagues who promptly dobbed her in.  In his opening remarks to the jury in this case, Lord Kinclaven underlined the point several times that the fifteen men and women should not trawl online for evidence of the past misdeeds of those in the dock (or for the matter, of witnesses whose evidence they consider). 

The basic legal rationale for this ban is that jurors should decide the case on the evidence led and tested in court: not on some tabloid hack's biased summary of the matter. With the criminal justice system's repeat players, there's also a risk of disclosing past convictions if jurors go spelunking in the paper record.  Certain clear limits are imposed on the prosecution's ability to lead evidence of the accused's bad character or past bad acts in court. The classic defence of these constraints is that the prejudicial influence of adducing evidence of prior convictions outweighs its probative value.   

Does ten prior convictions for flashing make it more likely that you flashed this particular grandmother in Uplawmoor on or around 2.00pm on Christmas Eve last year? Maybe. But if you knew the person in the dock had this record of public wang-waggling behind him, would you be more inclined towards convict him, even if the evidence adduced by the authorities was shooglier than it ought to be? It's a serious possibility, perhaps even a likelihood, so we try to insulate juries from this kind of information. 

As it happens, the High Court case I brushed against is an excellent example of the importance of putting the fear of god (or at least, of the judge and google) into jurors' hearts. Having been discharged from service, curious, I popped the two main co-accused's names into the search engine revealing - yes you guessed it - several eminently prejudicial press reports of their recent convictions for a rich catalogue of essentially analogous drugs offences.  To be convicted once for dealing heroin in large quantities in south Scotland may be regarded as a misfortune, but twice and thrice? 

Although I probably ought to know better, unbidden, my mind leapt pretty quickly to the conclusion that the pair of them were more or less banged to rights and any explanation they might give would have to be phenomenally good to get them out of it. After a day or two, it seems that at least one of them came to the same conclusion. Little good it will likely do him, mind you, given that a guilty plea at this late stage does nothing to mitigate the costs for the justice system, when no fewer than eight advocates are briefed and ready to perform and the jury has been empanelled and heard evidence. 

Happily, the liberty of these men did not depend on my tainted judgement. But it is a salient example of just how easy, prejudicial and tempting it can be for the lay juror to compromise their objectivity in deciding on the guilt or innocence of folk in the dock.


  1. LPW"
    'Happily, the liberty of these men did not depend on my tainted judgement. But it is a salient example of just how easy, prejudicial and tempting it can be for the lay juror to compromise their objectivity in deciding on the guilt or innocence of folk in the dock.'

    Oh the ups and downs of the wisdom of our peers -

    'A JUROR in the Tommy Sheridan perjury trial has revealed confidential details of the case on Facebook.

    The woman, who cannot be named for legal reasons, faces legal action after information about how jurors voted and her personal views of the trial were posted on a website supporting the shamed former MSP.

    She also posted messages on her own Facebook page slagging off fellow jurors, calling them "dirty low life b*******" and "scumbags" for finding him guilty.

    The messages will be brought to the attention of the judge in the Sheridan case before his sentencing later this month as it is a criminal offence to reveal a jury's deliberations.

    One message began: "Hi tommy i was one off youre jurers."

    In the same message, she revealed how she and others voted and described fellow jurors as "pure b*******".

    The posting, on January 4, stated: "Dont know if this letter gets too you personally but id be grateful if you can get back too me please. Hubby is 1000% behind you and so am i dawl ok i really think strong for you dawl and youre going too appeal against these idiots."

    She also said she wanted to be at his sentencing on January 26 to "support you all the way".

    The woman also revealed where she sat during the trial and and urged Sheridan or his wife Gail to get in touch In a Facebook posting, she described fellow jurors as "dirty low life b******" and hoped they "choke in their fckn sleep scum bags they are".

    She also revealed whether she thought Sheridan was guilty or not.



    1. Funny you should mention that, Edwin. As I was rattling this post out, that particular juror popped into mind. Never heard what happened to her, if anything, from which we might conclude that she escaped punishment.

  2. How can judges put a fear of googling into jurists minds? They can put a fear of talking about it into jurists minds, but they won't be able to stop them unless they are held in isolation with no access to mobile phones. My phone is now as quick as my laptop, which is why we are no longer allowed to go to the toilet during rounds at the local pub quiz as we were all cheating.

    Of course judges need to instruct juries not to google, but they need to emphasise in very strong terms WHY googling hinders justice & even then my guess is that most jurists will unless they are not of the google generation.

    Maybe judges should threaten juries will GCHQ, that may work. They know what you are viewing on line jurists, as Edward Snowden told us........

    1. Hi Observer. It's a dreadful cliche already of course, but google has changed our perceptions - magicians say that an audience of kids will have googled what they are doing within 5 mins of the act starting (nicely referenced in Big Bang Theory).

      As with magic so with those other conjurers, politicians and lawyers. We all of us inhabit a Dave universe these days. Even if we never watch it!

    2. I know what you mean, Observer. If anything, the cases I mention underline the perils of talking about anything you find out online about the accused. I imagine - without a basis in evidence, but it seems likely - that a great many jurors can't resist the temptation and go rummaging despite the judicial instruction to the contrary anyway.

  3. Past convictions undoubtedly do change the balance of probability that someone is guilty. I do not entirely see why they are not revealed to jurors. Especially now that google is available. How many jurors now do google and do not reveal what they find but allow themselves to be influenced privately? We cannot know. Would it not be better to allow a full section on publicly available information to be covered in court with appropriate comment by the judge? In that way, anything jurors might find out can be set in context.

    1. Interesting point, John, echoing the "legalise to regulate", harm-reduction arguments we sometimes hear in the context of drugs and prostitution. If jurors are bound to go googling, why not try to influence and shape the impact of such information as they are likely to acquire anyway? It is a controversial argument I imagine most legal practitioners would violently reject -- but there must come a point when one bows to the inevitable, and recognise that the convenient hypocrisy that jurors heed judicial warnings and won't google those before them won't cut it.

  4. There's also the matter of informed online discussion about a case. In the Kercher murder case currently causing such controversy in Italy, there exists a huge body of internet discussion solely dedicated to monstering the accused in every way possible. This includes an entire wiki site full to the brim with misinformation and lies. And yet jurors in Italy are not prohibited from accessing such material.

    There is also, inevitably, well-informed discussion based on the actual evidence in the case, but how is a juror, new to the deliberations, to tell one from the other? Especially those at the intellectual level suggested by one of the above comments?

    Nevertheless, if such a juror confines him or herself to using the debating points discovered online and does not reveal the source of the material, it could be impossible to show that this is what happened. Difficult situation.