Is trying to keep jurors in the dark about information from outside the courtroom still a viable option?

Whilst we all diplore the blatent censorship of the Internet by the Chinese authorities, it would appear that the UK legal system wishes that it could do exactly the same thing in order to properly implement its practice of “reporting restrictions”.

In fact, it has already had such a system of censorship in effect back in 2006 when the New York Times felt it prudent to follow the reporting restrictions issued for a trial then underway. Thus, everywhere else in the world except in the UK the article in question could be read. Or, at least that was the intention. As always on the Internet there are ways around such things and accessing the site through an online proxy let anyone in the UK read the article.

At any one time there are a number of cases affected by these reporting restrictions which are intended to avoid the publication of information which could prejudice the outcome of the trial in question or to protect the names of the people involved in the trial. In addition to specific reporting restrictions there are more general restrictions regarding, for example, reporting of the names of children. These practices date back centuries and clearly a hundred or more years ago stopping the publication of information in the various newspapers of the time was quite effective in ensuring that the jurors did not have access to information about the case outside the courtroom. However, things have moved on somewhat in the intervening centuries.

Up to 10 or 15 years ago one could easily read information about the higher profile cases in foreign newspapers even when reporting on them had been banned by the UK legal system although notably the New York Times did not distribute the issue of the paper noted above in the UK. However, as Steven Bates pointed out back in 1995 the only truly effective way of implementing them would be to unhook the UK from the Internet. Worryingly, as China has shown this is now a potentially viable option but one hopes that it will never be considered as such by the UK.

Although there are presumably instances of even the smallest trial being reported on over the Internet the effect is most noticeable with high profile cases. The snag with those is that often the opinions expressed are very highly charged and thus potentially very prejudicial to the outcome of a trial were jurors to have come across some of them. At least two trials have already come to grief courtesy of independent Internet research by jurors and no doubt there will be more whilst the current “jurors must be ignorant” approach remains in place.

However, although the Internet has brought to prominance the possibility of jurors researching a case themselves in fact they have been able to do that for a considerable period of time already. Libraries contain exactly the kind of background information in the form of archived newspapers that the courts would wish banned from the Internet once a court issues a reporting restriction order. The snag is that the Internet has a much higher profile than the libraries ever did and is, of course, much more accessible. Combine that with the fact that even deleted articles are available courtesy of googles caching and you have the problem that once anything is published, it stays published.

But, there is no reason why that presumption of the ignorance of jurors should be retained. After all, the American legal system seems to operate quite well without it. Granted it will require changes in the British legal system to allow the dropping of this mechanism of reporting restrictions but surely the increased public visibility of the operation of the courts that would follow can only be a good thing?

One suspects that it will be quite some time before the British courts go so far as those in Arizona and permit the jurors to ask questions but it seems high time that they accepted that jurors are likely to have seen something about the case before the trial and allow for that.

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