In a decision released yesterday, HM Attorney General v Davey  EWHC 2317 (Admin), the High Court of England and Wales gave leave for applications for committal orders for contempt of court against two men, each of whom had sat as a juror in a criminal case and each of whom had used the internet in contravention of instructions not to do so.
Davey posted the following message to his Facebook account at the end of the first day of the trial:
Woooow I wasn’t expecting to be in a jury Deciding a paedophile’s fate, I’ve always wanted to Fuck up a paedophile & now I’m within the law!
Examined by the judge, informed about this posting, Davey lied about posting it and about the account’s being his. Davey was dismissed from the jury. He subsequently confessed to the truth of the matter during the police investigation that followed the jury irregularity.
Davey had been directed about the use of the internet and social media in a variety of ways: he was sent a copy of “Your Guide to Jury Service”; he was shown a video that contained the injunction not to “use social networking sites to post any aspects of your jury service”; the jury manager gave the jury a speech with a similar warning; in the jury lounge were six notices to a similar effect; and on the first day of trial the judge said this:
Next: use of the Internet. There have been problems. Jurors have become detectives in their own court. And here is the sort of problem. Last week, at Kingston Crown Court, a seven-week trial had to be aborted because the jurors started on the Internet and Googling people, and the judge found out because the other jurors reported the errant juror. Seven weeks – I dread to think what it cost, in a country which will ill afford the waste of, say, half-a-million pounds. Now, this case won’t cost that money because it is a very short case, but you see the problem we have….
So don’t Google me, don’t Google the Advocates, don’t Google the Defendant, or any witness in the case because that would be wholly improper, because you would be going outside the observations your oath or your affirmation (your solemn affirmation) to try the case according to the evidence.
If you said to me, “What is the biggest threat to trial by jury in this country?” I would say to you, “No question: improper use of the Internet by jurors. No question”.
We can all find out vast amounts of very helpful and totally useless information on the Internet. Don’t do it. By all means, do your Christmas shopping on the Internet. Book your holiday (if you are lucky enough to be going on one next year), but don’t use the Internet improperly. The message is loud. It is clear. I don’t propose to repeat it, but I expect you to behave responsibly because you are judges.
The High Court concluded:
We therefore are sure that Mr Davey did an act which created a real risk of interference with the administration of justice and it was specifically intended by him to interfere with the administration of justice.
After having found that the second respondent, Beard, also was guilty under somewhat different circumstances, the court added a postscript:
58. As is clear from what we have set out, every attempt is made to try and warn jurors not to use the internet or social networking sites for any purpose in relation to the case. However, as is also clear, the language used is not consistent giving room for argument of the type advanced before us as to what a juror might understand was prohibited.
59. Many judges have adopted the practice not only of warning the jury in terms similar to what the judges in these two cases did, but also handing the jury a notice setting out what they must and must not do and the penal consequences of any breach. They have done this so that no juror can subsequently claim that he or she did not understand what they should not do and what the consequences might be. It is to be noted that in civil proceedings, committal for contempt for breach of an injunction ordinarily requires not only proof of the breach of the terms of an injunction, but that the injunction contained a penal notice.
60. In the case relating to Mr Davey, after he had been discharged as a juror, the judge told the jury in very sweeping terms that they should not use the internet. We can quite understand why he did this, but as Lord Carlile QC pointed out what he said went beyond what would be permissible under Articles 8 and 10, quite apart from imposing restrictions on jurors properly carrying out day to day tasks which cannot be easily done without use of the internet.
61. We propose to invite the Criminal Procedure Rules Committee in consultation with the Judicial College to review the terminology used in the material given to the jury and to consider whether to recommend that the practice to which we have referred in paragraph 59 should be universally followed.