Juries are supposed to consider evidence without influence or bias from the outside world. However, the widespread access to and use of the internet and social media threatens to undermine this, with significant consequences for our criminal justice system and those within it.

Given courts cannot effectively police smart-phone use they must adapt to it. This week the Tasmania Law Reform Institute completed its year long inquiry into courts and the information age, and has recommendations as to how they can adapt.

Read more: Jurors and social media: is there a solution?

The right to a fair & unbiased trial by your peers

An accused person’s right to a fair trial is the most fundamental principle of our criminal justice system. It is a phrase that describes a system that affords an accused person many protections. That system relies on jurors being impartial and returning a verdict that is based solely on the evidence that is presented within the courtroom.

In the past this was readily easy to achieve. Juror communications during trial hours and even after them could be controlled. News about the trial was generally a local affair, and even when it attracted national attention, the journalists needed to be in the court’s jurisdiction to report, so they and their employers were subject to the court’s authority.

The shift in the way people access news, information and communications in the modern age has changed this reality.

Almost every Australian has access to the internet via their smartphone or other devices, social media use is habitual among much of our population, and the internet is a ubiquitous source of information for most people.

Jurors are no different – in fact, they represent the wider Australian community these statistics describe. While jurors’ smart phones are removed from them during trial, they cannot be before or after the trial period, nor at the beginning or end of the day. As a result jurors may intentionally, or simply by habit seek out or communicate information about the trial.

Read more: All about juries: why do we actually need them and can they get it 'wrong'?

Use and misuse of social media

Between 2018 and 2020 the Tasmanian Law Reform Institute conducted an inquiry into juror misuse of the internet and social media during trials. The institute concluded there is likely to be a high, but unquantifiable and undetectable level of misuse.

However, there is evidence across Australian jurisdictions that jurors have used their internet connected devices to:

• research legal terms or concepts or other information relevant to the trial. A West Australian juror in a drug-related trial obtained information online about methylamphetamine production

• research the accused, witnesses, victims, lawyers or the judge. Two South Australian jurors sitting in a blackmail trial against multiple defendants conducted online searches about the accused which disclosed past outlaw motorcycle gang affiliations

• communicate with people involved in the trial. Multiple New South Wales jurors on a long-running fraud trial became Facebook friends, sharing posts such as a digitally altered photo of one of the jurors wearing a judge’s wig

• publish material about the trial on the internet or social media. A NSW juror sitting in a sexual offending trial posted on Facebook the day before the guilty verdict was returned: “When a dog attacks a child it is put down. Shouldn’t we do the same with sex predators?” This post was accompanied with a photograph that showed images of rooms and implements by which lawful executions are carried out.

Misuse is under-reported. In those few instance where reports are made, fellow jurors, rather than court officers, tend to be the ones who raise the issue. Indeed, it is an important part of their role.

While jurors across Australia are currently told not to conduct online research, wilful disobedience is only part of the problem. It can also involve unintentional acts by jurors who believe they are doing the right thing.

For instance, jurors accessing online news, entertainment or social media sites can be passively influenced by information relevant to the trial. Jurors often misunderstand their role and conduct independent research in the genuine belief their actions are in the pursuit of “fairness” or discovering the truth.

Educate, inform & encourage self-regulation

The law reform institute ultimately concluded it is impossible for, and beyond the capacity of courts to completely police juror internet use. It has thus recommended not reforming the law, but rather strengthening and standardising juror education and directions. These recommendations are divided across two stages of jury selection, as part of an overall strategy:

• pre-selection: prospective jurors should receive improved training and information about the role of the juror and the risks of internet use

• post-selection: once a jury has been selected, judges need to explain to jurors what dangers arise from using the internet to access and publish on social media, seeking information about the case, parties, court officers, lawyers, and self-conducted research into legal concepts or sentences. The report has recommended the court adopt minimum standard directions, but also have the flexibility to make specific directions relevant to any particular trial.

The report recommended certain current practices and laws should remain unchanged, including:

• removing phones from jurors while they are in court (even though the effect is limited it avoids juror distraction)

• leaving contempt (punishment) laws in place for those jurors who intentionally ignore court training and directions. That might include monetary fines and, in severe cases, imprisonment.

This process is aimed at encouraging self-regulation among jurors, by educating them how to curtail their internet use and why it’s so important.

Read more: Trial by social media: why we need to properly educate juries

Jemma Holt receives funding from the Law Foundation of Tasmania.

Brendan Gogarty receives funding from Law Foundation of Tasmania.