Legal comment: Contempt in an online era

The case comes only six months after another juror was jailed for contacting an accused on Facebook, and calls into question whether our current contempt laws can cope with the internet.

For those that missed it, Dr Theodora Dallas, a former university lecturer was convicted of contempt of court and given a six month sentence after researching an accused while serving as a juror in his trial. Dr Dallas’ actions came to light after she told her fellow jurors that the man who was on trial for causing grievous bodily harm had previously been accused of rape.

In her defence, Dr Dallas, a 34 year old originally from Greece who moved to the UK when she was 19, claimed that her English was sometimes “not that good” and that she hadn’t understood that she was not meant to search on the internet.

This was rejected by the court who pointed out that the jury, of which Dr Dallas formed part, were given repeated warnings as to the prohibition on researching the case they were trying.

But, where researching facts on a computer is now second nature for all of us, can we really be satisfied that the direction of a judge will be enough to stop jurors from going online?

The difficulty faced by the courts is that the contempt laws were put in place long before the internet revolutionised all our lives.

In pre internet times it was relatively easy to keep information from a jury. Most information came from newspapers or broadcasters who were, and still are, subject to the Contempt of Court Act 1981. In Scotland, this provides that once an accused is arrested or charged, or a warrant for their arrest is granted, anyone responsible for a publication (this covers any communication) which “creates a substantial risk that the course of justice in the proceedings in question will be impeded or prejudiced” is guilty of contempt.

Faced with the prospect of heavy fines media outlets have always been slow to publish anything which might amount to a substantial risk of serious prejudice. The end result was that before information became so widely available through the internet most jurors had little or no prior knowledge of an accused.

All this has changed with the internet. Now information on virtually everything is available at the touch of a button, as Dr Dallas discovered.

This therefore takes us back to the question – Can our contempt laws cope with the internet. The answer seems to be no. But in handing down sentences of eight months in the case of the Facebook juror and six months to Dr Dallas the courts are clearly sending out a message that any juror found to have carried out research on an accused will be dealt with very seriously.

Traditionally the Scottish courts have taken a stricter approach to matters of contempt that their counterparts south of the border. As yet we have not seen any Scottish jurors prosecuted for researching on the internet. If, and when, that happens it is likely that the Scottish courts will take a similarly harsh approach.

• Kirsteen Macdonald (Associate) and Fiona McAllister (Solicitor) are media specialists with Burness LLP