“Trial by Google” threatens to undermine the integrity of the British jury system and “offends the principle of open justice”, according to the attorney general, Dominic Grieve QC.
In his strongest-worded warning yet about the dangers of the internet, Grieve highlighted temptations that can turn jurors into criminals and lead prosecutors to malign the courts through mistaken assumptions of online anonymity.
His comments were made on the day the director of public prosecutions, Keir Starmer QC, revealed that the Crown Prosecutions Service has so far dealt with 40 cases of crimes allegedly committed via social media sites.
The challenges posed by the web to the legal system are becoming more immediate. “How does a legal regime framed when the internet was but a gleam in the eye of Tim Berners-Lee cope when faced with the flow of information that now forms the fabric of our culture?” Grieve asked in a lecture at the University of Kent on Wednesday.
“What does the internet mean for our system of trial by jury? Is the trial process equipped, or even able, to regulate the information that jurors receive? How can we be sure that jurors decide their cases on the basis of the evidence they hear – and not what they looked up on their smart phones on the bus on the way to court?”
Grieve continued: “The internet is a haystack of material, scattered with the odd prejudicial needle, as it were. Trial by Google allows a juror to locate the haystack, find the needle, pull it out and ascribe significance to it that it simply would never have had otherwise. It takes a minor risk and turns it into a major risk.”
‘Trial by Google’, his shorthand term for jurors searching the internet, “offends some foundational principles of our legal system. The first principle is that a conviction, or for that matter an acquittal, should be based on evidence adduced in court, in accordance with established rules of evidence, subject to the supervision of the judge.
“Trial by Google [also] offends the principle of open justice. It should be clear to the defendant, the public, the victim and the prosecution what the evidence in the case is. If a jury is exposed to prejudicial material which, for whatever reason, is not before the court, the basis on which the defendant is convicted or acquitted will never be known.”
The law, the attorney general said, expects jurors to show restraint. That searching the internet is an everyday activity does not alter the restriction. Jurors have been sent to prison for conducting online searches.
“Indeed, the internet has made the commission of many criminal offences much easier,” Grieve said. “It would be absurd to suggest that such conduct should no longer be criminalised on account of the ease with which such offences can now be committed.”
Not only jurors but even lawyers can be tempted, he warned. A case reported in the US recently showed that federal prosecutors in Louisiana had posted online “vitriolic, anonymous blogs” about a particular judge. They were eventually unmasked and forced to resign.
Starmer, speaking at Chatham House in central London, said the CPS had dealt with 40 alleged crimes committed mainly under the Communications Act involving grossly offensive, menacing or racist messages.
The number of cases so far were “managable”. Taking too many cases would have a “chilling effect” on free speech, he explained. That was why the CPS’s draft guidelines to prosecutors on dealing with social media complaints set such a high threshold for offences.
Removing an offensive tweet or message rapidly and expressing remorse would make it less likely that the CPS would decide there was a public interest in pursuing a prosecution, he said.