Edit to add: I’m not going to substantially edit this piece, because I don’t want to change the record, but I’m going to bring the central question right to the top. Juries are meant to be impartial, uninfluenced by outside sources. What can and can’t, legally, be published about active criminal proceedings is limited. The rise of social media threatens the former, and makes the latter harder to police. Despite the long-held respect in which the jury is held, could a solution to this be judge-only, or bench, trials, particularly in high profile cases?
This is probably a good post on which to reiterate the Platonic “I know that I know nothing” sentiment. This is necessarily an opinion piece, involving areas of law I haven’t studied in jurisdictions where I do not study.
The idea for this post came from two sources. One was seeing the reaction on Twitter to the Hillsborough charging announcement. The other was listening to an Australian podcast on the fact that Cardinal Pell had been charged with historic sex offences. (I may refer to these, but I note that as proceedings are active, what I can say – and what I can publish/ will allow to be published on my blog in the form of comments – is necessarily limited. I have not studied the law of contempt, but I am taking the linked page as a guide)
The jury is regarded as a fundamental part of the criminal trial in common law systems. The institution gives voice to the community in the exercise of judicial power, and in some instances allows punishment to be doled out based on community standards. (For instance, the Ghosh test for theft and related offences- are the defendant’s actions dishonest “standards of reasonable and honest people”, or, in the case of gross negligence manslaughter, whether the actions that led to the death should be considered grossly negligent). One may even regard the jury as safeguarding against judges who are under the control of the government ((Rex v Snow  HCA 90; (1915) 20 CLR 315 at 352), and while Isaacs J noted that this notion was a relic, one might wonder whether the lack of judicial diversity, or indeed concerns about experts or the educated elite not representing the community, might resurrect this concern).
Modern juries are supposed to be impartial members of the community, not connected to victims, witnesses, or accused, and uninfluenced by sources outside the court room. The last in particular has long been a concern, and media reports influence jurors and have been shown at least in some contexts to have a role to play in wrongful convictions.
This is one thing. But we are now in the age of social media, where anyone can be a publisher. What’s more, anyone can publish without being aware of the consequences of doing so, including potential contempt charges and prejudicing active proceedings (and yes, this does apply to social media posts). The perils of publication during active proceedings are not only unknown to some, they are also actively ignored by others (tweets used with permission):
It would also seem that the effect of at least some forms of social media is to insulate people from opinions or even media that disagree with them, which may lead to intensified views. It certainly leads to amplification of more extreme views which previously might only rarely be published, if at all (e.g. Viscount St. Davids’ “satire” surrounding Gina Miller).
What, then, does this mean for the jury trial? If, as alluded to in the above tweet, people can’t restrain themselves from discussing Hillsborough (or other high profile cases) in ways that might prejudice the trial, does this mean that high profile cases cannot go ahead? Or will courts simply have to run the risk, or be seen to be running the risk, of miscarriage of justice? It would seem to me that the sheer volume of publishing on social media would make the policing of prejudicial content extremely difficult, and questionable content will likely slip through the cracks.
One solution which is used in most jurisdictions in Australia is a judge only trial. This is of course controversial, and goes against centuries of thought about trial by jury as a right, sometimes upheld in national constitutions (indeed, in Australia for the purposes of indictable federal criminal offences, which has been interpreted in such a way that means that such trials may only be held with a jury, c.f. Alqudsi v The Queen  HCA 24).
Such a notion certainly has its attractions. It is probably the case that prejudicial material being spread about high profile cases cannot entirely be avoided, and judges, although not magically free from bias, are likely better equipped to disregard such material in their decision making. For the interests of justice in individual cases, judges are required to provide their reasons, which may be interrogated by higher courts (and although issues of fact are brought up less often than issues of law, they can be brought up). Juries, as we know, do not provide reasons for their decisions, and may choose not to apply the law- I’m sure I’m not the only one who’s heard of jurors who refuse to convict because they don’t believe in the law in question?). As Malcolm McCusker argued, this would answer the call for greater transparency (I realise I am not linking to the speech directly: it appears not to be working at the moment. I’d love to read it if anyone has a copy). Presumably, in an age of growing scepticism about educated elites and institutions such as the courts, and continuing politicisation of the criminal justice system, having “explanatory accountability” for the verdicts of the criminal courts could only help increase the legitimacy of the exercise of their power? (The quote is from Kate Malleson, ‘The Evolving Role of the Supreme Court’, in Public Law, 2011, which, I’m sorry to say, I can’t find a good link to that isn’t behind a pay wall)
The idea, however, is also not without its problems. As noted, we do live in an age of scepticism about educated elites, and judges in particular have been dragged into the politics surrounding their work (c.f. the “enemies of the people” and similar headlines surrounding the Miller litigation). This comes from both sides of the political aisle, with, for example, concerns about Sir Martin Moore-Bick in the context of Grenfell. There is also a clear place in the criminal law for subjective and evolving community opinion, such as the Ghosh test and the test for gross negligence manslaughter noted above, which might not be well captured by a judge (although judges are certainly part of the community, most of the community does not view these things through the prism of the law). I should note that the Australian state of New South Wales normally excludes trials which involve such standards from trials which may be held by judge alone.
I won’t pretend to have an answer. I do wonder whether the role of the jury has been cemented, despite changing circumstances which may render its use problematic. But this is also an area where people can exercise real democratic power (for better or worse). What I do think is that the idea of the jury as sacrosanct in criminal procedure should be interrogated.
French CJ said that the purpose of “the exercise of… judicial power is “to do justice”.” (Alqudsi v The Queen) Presumably the various procedures, including the inclusion or exclusion of a jury from trial, are there to support the legitimate exercise of judicial power. But I wonder. Is it really the case that the exercise of judicial power is about justice? There are presumably competing factors, which may or may not serve each other’s ends. Are trials not also about fidelity to the law (and if so, whose vision of the law? Even given Parliamentary supremacy in the UK, the law is subject to judicial interpretation)? The law is, patently, not always just. And are (in particular) criminal trials not also about giving voice to the community, their condemnation of what has occurred (or not, as the case may be)? But community sentiment is not always just, or within the constraints of the rule of law. The role of the jury in a criminal trial may (or, indeed, may not) amplify community sentiment within criminal proceedings. Coherent answers to these questions are beyond me, at least at this time. But they are questions that would need to be contemplated if the role of the jury were to be questioned or re-imagined.
Please do comment. As always, I’m open to suggestions or constructive criticism (although please also note that I will not be allowing comments which may fall foul of the law on contempt).