Opinion: Is the jury out?

In the era of social networking, are smartphones jeopardising our right to trial by jury, asks Dr Fergal Davis from UNSW's Gilbert + Tobin Centre of Public Law.

Juries inside 0

In the era of social networking, are smartphones jeopardising our right to trial by jury, asks Dr Fergal Davis, Senior Lecturer and researcher in the Anti-Terror Laws and the Democratic Challenge Project at UNSW's Gilbert + Tobin Centre of Public Law.

The impact of social networking has been felt far and wide: it undermined the regime of Hosni Mubarak and others in the Middle East; it allows me to keep in touch with family and friends in the UK and Ireland; and it may well help to extinguish "the lamp which shows that freedom lives" - trial by jury.

On Tuesday 14 June 2011 Joanna Fraill a 40 year-old woman from Manchester in the UK, was convicted of contempt of court. Ms Fraill was a juror in a multi-million-pound drugs case who contacted Jamie Stewart, one of the defendants, via Facebook and discussed the case. She also conducted an internet search into Stewart's boyfriend Gary Knox.

On its own the case would be interesting but not overly damaging but it is part of a sustained attack on the legitimacy of trial by jury in the UK. Last year London witnessed its first non-jury trial in a serious criminal case for over 400 years. Earlier this year a London judge took the unprecedented step of dismissing the jury (due to a belief that the jury had been tampered with) and then proceeded to deliver the verdict in the case on her own. So a case which began with a jury, ended without one.

All of this follows the less-than-supportive 2001 report of Lord Justice Robin Auld into the criminal justice system in England and Wales.

Closer to home, the right to trial by jury is under threat in New Zealand. Across the Tasman Sea 18 individuals arrested in 2007 during the Urewera 'terror' raids are being tried by judge alone, without a jury.

Of course things are different here in Australia: here the right to trial by jury is constitutionally guaranteed. This guarantee is not watertight. Section 80 of the Australian constitution only applies to trial on indictment and parliament is apparently free to determine that any offence, no matter how serious, is not indictable.

The Fraill case is reminiscent of the New South Wales' case of R v K. Here, after the trial, defence counsel learned that members of the jury had engaged in their own online investigations surrounding the case. The result of R v K and R v Skaf (2004) is that juries are more clearly directed not to conduct independent research into the case, but is this realistic?

The jury has a long and distinguished history. William Blackstone, in 1768 declared it to be the bulwark of liberty, but the jury is simply an institutional means to ensure a fair trial. In Australia, the right to trial by jury has, perhaps, added significance. In NSW the development of trial by jury was directly associated with the transformation from military justice and penal colony to emancipated normality.

Furthermore, as an institution, the jury has a great legitimating function - it involves the governed in the process of governing; it places the citizen at the centre of the criminal justice system; and so the French political philosopher Alexis de Tocqueville described it as a "predominately republican institution".

However, the core function of the jury is to provide justice, after all Dietrich v the Queen affirmed the right of Australians to a fair trial.

So the jury must, first and foremost, guarantee a fair trial; its ability to perform some civic duty along the way is secondary.

In the era of the smartphone, when Channel 10 cannot even police the phone usage of Master Chef contestants, is it realistic to hope that juries will not be tempted to carry out some online sleuthing?

If not, what matters more: the right to trial by jury or the right to a fair trial?

This opinion piece first appeared in Online Opinion.