Case Commentaries

Publication Date01 April 2011
AuthorRosemary Pattenden
Date01 April 2011
Juror internet research and social networking—Eire and England
In most major common law jurisdictions the issue of juror exposure to inappro-
priate internet material has been addressed by the courts (see, for example,
(2010) 14 E&P 362) and newspapers frequently report juror abuse of digital
technology. The problem now extends beyond illicit internet research to
inappropriate communications to third parties during the trial via social
networking sites such as Twitter and Facebook. A trial in the English city of
Manchester was recently aborted after it was discovered that a juror had posted
details of the trial on her Facebook page and asked her friends: ‘Did he do it?’
(Sun, 26 August 2010). The Lord Chief Justice, Lord Judge, has warned that unless
juror consultation of the internet is stopped, the jury system will not survive
(Judicial Studies Board Lecture, ‘Jury Trial’, Belfast, 16 November 2010,
AAC3F8/0/speechlcjjurytrialsjsblecturebelfast.pdf>). There is a foolproof solu-
tion: segregation of jurors during criminal trials at a location where they have
no access to digital methods of communication. This is not, however, practical
both on grounds of cost and because of the inconvenience to the citizens
compelled to serve on juries.
In Byrne v DPP [2010] IEHC 382 the Irish High Court was asked to issue a declaration
recognising a novel safeguard, namely, a duty on the part of the Director of Public
Prosecutions (DPP), on application by the defence, to sweep the internet for
websites containing material that might be prejudicial to the prospect of a fair
trial and, if identified, request its removal before the trial. The inspiration for this
remedy appears to have been a conference speech given in 2005 entitled ‘How to
Preserve the Integrity of Jury Trials in a Mass Media Age’ by Virginia Bell, now a
judge of the High Court of Australia. The address is available on the website of the
New South Wales Law Reform Commission at lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_bell_270105>.
As a result of a split jury, Byrne (unlike three of his co-defendants) faced a retrial
for participating in a notorious heist in which armed raiders forced an employee

of Securicor to cooperate in bringing a van full of money to a liaison point by
capturing his wife and child and trussing them up. All those convicted were
sentenced to a 25-year term of imprisonment. In passing sentence, the trial judge
had described the heist’s participants as ‘a revolting crew’ and ‘spineless crimi-
nals’. Media coverage of the crime (March 2005) and the trial (April to July 2009),
including uninformed commentary, remained accessible on the internet on free
and paid for websites. None of this publicity, however, implicated the defendant.
In consequence, in Byrne v DPP, Charleton J did not consider that there was a risk of
prejudice to Byrne at his retrial. The judge pointed out that the mere fact that a
crime was vicious or depraved did not preclude a fair trial: the jury is told to
presume defendants are innocent. Even if Charleton J had been satisfied that there
was a risk of prejudice to the defence, he would not have granted the declaration:
it is no part of the DPP’s function to surf the internet for material prejudicial to a
person whose trial is pending and correspond with local and foreign internet
service providers with a view to having it removed.
The prosecution has specific duties laid down by law, including the
duty of disclosure and of providing information in relation to any
convictions that proposed witnesses on their side of the case may have
recorded against them. That is entirely within their sphere. The world
of the media is not the responsibility of the Director of Public Prosecu-
tions. (at [32])
If adverse pre-trial publicity creates a real and substantial risk of an unfair
trial, it is open to the defence to apply to the trial judge to have the proceedings
stayed as an abuse of process (Rattigan v DPP [2008] 4 IR 639). In fact, an appli-
cation for a stay of proceedings was received by the trial judge at the first trial
following a radio broadcast that had contained baseless comments. The trial was
allowed to continue once it was established that none of the jurors knew of the
Charleton J noted that trial judges generally ask jurors to declare any pre-trial
knowledge they have of the case on which they have been selected to serve (which
may or may not lead to their discharge) and many judges also warn jurors to
decide the case only on the basis of the evidence seen and heard in court and to
resist the temptation to surf the internet in search of information about trial
participants (including judge and counsel). There ‘is no reason to believe that
juries cannot be trusted if appropriate directions are given to them, perhaps,
coupled with an explanation as to why this is necessary’ (at [35]). Warnings and
directions to the jury, he emphasised, are a matter for the discretion of the trial
judge, but it may be appropriate to remind jurors that it is a contempt of court

punishable by an unlimited fine or imprisonment to ignore an instruction not to
conduct internet

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