PageJournal of Criminal Law2014Judicial management of juror improprietyNick Taylor and Roderick DenyerSubject: Criminal procedureKeywords: Accountability; Impartiality; Jurors; Jury trial; Misconduct; Public opinion *J. Crim. L. 43 Abstract The debate surrounding the utility of trial by jury is as relevant as ever. Much criticism of the ability of jurors to carry out their task was brought to the fore following the highly publicised Pryce trial and the comments from Sweeney J indicating a fundamental problem in jurors' understanding of their role. Furthermore, media attention surrounding a steady stream of cases involving juror misconduct has called into question whether jury trial can survive in its current form. This article recognises that although juries are not a normative part of a fair trial, they do have considerable value in enhancing public confidence in the fairness of the criminal process, particularly through the perception of impartiality. If public support is lost, then the value of jury might be lost with it. Whilst the Law Commission is rightly considering how jurors might be more prepared in advance to carry out their role effectively, this article considers the current judicial approach to dealing with the practical issue of juror impropriety once it has occurred. Through looking at a series of trial and appeal cases it can be seen that a framework has developed which seeks to ensure that trials are derailed rarely whilst the impartiality of the jury is safeguarded. It is maintained that in emphasising both actual and apparent impartiality the vital element of public confidence in the existing process can be preserved.KeywordsJuries; Jury management; Public confidence; Jury misconductAs the furore surrounding the Pryce trial1 illustrated, trial by jury continues to be a fertile source of academic, professional and political debate. In 1956 Humphreys J commented: I cannot bring myself to believe that there are any persons who would vote in favour of the abolition of trial by jury in serious cases.2 In 1991, Darbyshire concluded that sentimental attachment to the symbol of the jury is dangerous. She added that, the symbolic function of the jury far outweighs its practical significance.3 Reforms following the Auld Report,4 which increased the pool of those qualifying *J. Crim. L. 44 for jury service, has generated case law,5 and the House of Lords' conclusions in R v Mirza6 that jurors' deliberations remain sacrosanct likewise has generated much academic discussion and appeal court time.7 In 2005 the Department for Constitutional Affairs8 sought views on whether the rules surrounding jury confidentiality ought to be amended or clarified by legislation. No changes followed, but the debate was certainly not brought to an end. In 2010 the European Court of Human Rights determined that jury verdicts were compatible with Article 6 of the European Convention on Human Rights despite the absence of a reasoned verdict provided that other safeguards were in place.9 In its 2012 Consultation Paper on Contempt of Court,10 the Law Commission sought views on aspects of the jury with particular regard to juror misconduct and the new social media context within which juries must operate. More recently, further jury research by Thomas11 has underscored the need for reform. Without doubt, scrutiny surrounding the role of the jury is particularly acute at the moment12 given the considerable external threats to the impartiality of jurors' deliberations and, perhaps equally damaging, the perception of any partiality that may serve to erode public confidence. The jury still continue to hold the confidence of the public, seemingly more so than any other branch of the criminal justice system, and it would be dangerous not to respect the importance of this. It does appear somewhat incongruous that the public have such strong faith in a system which lacks the levels of accountability and openness seen in other public institutions. Arguably, what encourages public support is the belief that the process is fair. This article considers the management of jury misconduct and impropriety as one key aspect of the framework surrounding jury trial that promotes public confidence.

Public confidence and jury accountability Trial by jury still retains considerable public confidence13 in part through its representativeness14 and also its perceived fairness.15 The first of these *J. Crim. L. 45 core values, representativeness, resides in the ability made available for ordinary citizens to play an important participatory role in the criminal process. Citizens still view the jury as having larger political and social functions that go beyond the efficient determination of guilt and innocence.16 This value should not be underestimated. As Marder notes, Countries, especially those that aspire to being more democratic, have begun to recognise the importance of having ordinary citizens participate in the criminal justice system.17 The domestic jury trial ensures that the general public are given a voice at the very heart of the most serious criminal cases in the country. Arguments remain about jury composition, but it is with regard to a second buttress of public confidence, the perception of fairness that is perhaps under more acute pressure.The Bar Council found that the public were strongly of the view that juries were trusted to reach correct decisions and produced a better quality of justice than trial by judge alone.18 In looking at the supporting reasons for jury trial, Redmayne19 identifies (not exclusively) a key aspect of what helps to produce that positive perception--that the jury be good fact-finders as fact-finding accuracy must clearly be a high priority in any fair trial process. Twelve randomly selected individuals are arguably more likely to produce a broader range of experience and expertise than a single judge, and the application of these attributes to the evidence presented produces a strong fact-finding body. To aid the cause of accurate fact-finding on the evidence presented the process must be seen to be impartial. MacCoun and Tyler found that citizens' perception of a fair jury procedure included the ability of its members to put aside personal biases.20 The jury must approach (and be seen to approach) the evidence with an open, uncommitted mind. Though such impartiality does not of itself guarantee accuracy it is seen to be a basic element of a fair judicial process that the defendant is aware of the case against him and has the opportunity to address it, so factors beyond those presented in evidence should not be relevant. This idea of jury trial holds public confidence--people assume that fair procedures will produce fair outcomes.21The perception that jury trial is fair, however, may be under increasing pressure from the seemingly increased likelihood with which information not given in evidence may flow into or from within the jury room. That such information might come in the way of threats to jurors has already seen the development of judge-only trials in exceptional circumstances.22 The everyday use of the internet and social media platforms heightens further the potential for external influences to act upon jury deliberations. *J. Crim. L. 46 As such, that the jury perform their deliberative role in secret might be difficult to justify as a fair procedure, for it is not possible to discern what impact, if any, punctures in the sealed unit of the jury room might have. It is claimed that jury privacy is a vital aspect of ensuring that full and frank deliberation occurs but it also impedes our ability to review the jury's approach to the evidence. How can the presumed impartiality of an apparently unaccountable jury fit within an appropriate system of adjudication? Fuller described the main attribute of adjudication as being the opportunity to present proofs and reasoned arguments.23 The parties can participate in the decision-making process by presenting their evidence and the reasoning which supports their factual argument, if they so choose. Adjudication is then, a device which gives formal and institutional expression to the influence of reasoned argument 24 Such an institution must itself satisfy a test of reason--we demand of an adjudicative decision a kind of rationality we do not expect of the results of contract or of voting.25 Therefore, it may be said that the essence of adjudication lies not in the manner in which the affected party participates in the decision but in the office of judge.26 The rationality of that decision-making process can be seen in the respective judgment, wherein the judge will (should) have accounted for the respective influence of the arguments.In those cases where a jury is present, it plays a key role in the adjudication process, but that one cannot gain access to the reasoning for the jurors' decision makes its rationality rather harder to determine.27 Its impartiality amongst other things is difficult to ascertain. An obvious response might be to remove jury secrecy. In 1988 it was commented that:It may be that the abandonment of secrecy, far from destroying the system, may be all that will save it. The jury system will only survive in the end if the community accepts that it is in the public interest that it should survive. That, I suggest, can only be determined when the community knows what juries do in the jury room.28However, the 25 years that have passed since this comment do not bear it out. Public confidence remains high. Indeed, exposing the jurors' deliberations to scrutiny might in fact harm public confidence. As Lord Slynn commented in Mirza : it seems plain that discussion and disagreement in public as to what happened in the jury room is likely to undermine public confidence .29 Deliberations within the jury room must be frank and open and may be less so in a more accountable environment. If an open deliberative process did admit of less guarded comments, this might *J. Crim. L. 47 include some unpalatable observations. Such comments may be an essential part of the deliberations but which, seen in isolation, might only reduce public confidence amongst those keen to debate the issues for themselves, only without the essential framework surrounding the jury provided by the trial judge.30A less radical departure might be that the jury provide reasons for their verdict. It was anticipated in some quarters that the European Court of Human Rights (ECtHR) might demand such a move.31 Undoubtedly, there would be difficulty in attempting to reconcile the varied conclusions of 12 jurors into a coherent set of reasons that were anything more than anodyne. In any event, in Taxquet v Belgium,32 the ECtHR accepted the idea of an unreasoned verdict, deciding that, the Convention does not require jurors to give reasons for their decision and that article 6 does not preclude a defendant from being tried by a lay jury even where reasons are not given for the verdict.33Nonetheless, trust in the jury is secured by the fact that it applies standards of adjudication which are both generally familiar and widely accepted.34 Those familiar standards of adjudication include the basic standards of due process or natural justice, or which are given more explicit recognition through Article 6. Amongst other things, this demands that the defendants know the case against them and are given the opportunity to test the evidence. More specifically, in relation to jury trial, the procedural safeguards include clear directions to the members of the jury as to their task and the questions they must answer, as well as the availability of substantive appeal. Further, the ECtHR has explicitly provided that the tribunal must be impartial: impartiality being presumed unless there is evidence to the contrary. There must also be apparent impartiality with the system offering sufficient guarantees to exclude any legitimate doubt in this respect.35 Domestic law has reflected the influence of the Convention in this respect and the test to determine whether bias, or the perception of bias has become operative, was outlined by Lord Phillips in Re Medicaments :36The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask itself whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.Therefore, as part of a fair process attracting public trust, the impartiality of the jury must be secured not through the accountability of its reasoning, *J. Crim. L. 48 but through the knowledge that it has reasoned within a procedural framework that seeks to guarantee impartiality or, at least, remove any doubts in this respect. The manner in which the trial court responds to allegations of bias is therefore a crucial aspect of the framework which seeks to produce impartial decision-making and enhance public confidence. There is a mutual dependence between belief in the correctness of factual decisions and trust in the body making them and its wisdom.37 The jurors must resist the temptation to carry out their own research or use evidence from any source which was not a part of the trial itself. If there is bias exhibited by the jury, or even the perception of bias, then the defendant will not be seen to have had a fair trial. It is clear that the integrity of adjudication is impaired if the arbiter forms theories about what happened and conducts his own factual enquiries.38Part of that framework must include the clarity and certainty with which the trial or appellate judge seeks to deal with issues of jury misconduct or impropriety. Allegations of both actual and apparent bias have to be effectively answered. It is essential that the jury continue to be seen to be impartial. As Zuckerman has outlined:juries are suited to be put in charge of adjudicating on the merits because of the trust they command in the community. Since the efficacy of any judicial system depends on its ability to generate public confidence in its judgments, the element of trust in the tribunal is crucial.39Though public trust is currently invested in a system that is based on private deliberation, if that system is to withstand the turbulence presented by the ease and speed of modern information flows, the surrounding framework must be robust and must maintain trust in the impartiality of jury deliberation. The operation of jury trials need not change provided that there is confidence in the judicial management of the process. The remainder of this article will consider part of that process--the management of misconduct and impropriety.

The legal context The ability to discover and effectively deal with some forms of jury impropriety is inevitably hampered by the rule that jury deliberations must remain secret. This rule has both common law and statutory force.Section 8(1) of the Contempt of Court Act 1981 states:It is a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings.Running parallel to the above is the common law rule expressed by Bankes LJ in Ellis v Deheer :40 *J. Crim. L. 49 the court will never admit evidence from jurymen of the discussion which they may have had between themselves when considering their verdict or of the reasons for their decision once a verdict has been given it ought not to be open to an individual juryman to challenge it or attempt to support it if challenged.In Mirza,41 the House of Lords was asked to consider the compatibility of the common law position with Article 6 of the European Convention on Human Rights, and the question of the applicability of s. 8 to the courts was also considered. The facts were such that after the trial had ended, one of the jury wrote a letter to trial counsel in which it was claimed that other members of the jury had been biased against the defendant on racial and cultural grounds. The Court of Appeal held that s. 8 prevented them from inquiring into the matter on the basis that such inquiry would constitute a contempt of court. Rejecting that view, Lord Steyn in the House of Lords said:Properly construed, Section 8(1) does not apply to the court of trial or to the Court of Appeal hearing an appeal in that case. It cannot properly be read as categorising what the court does in the course of its investigation as a contempt of the court itself.42However, although s. 8 did not constitute a bar to investigation, the common law did. Lord Hope said, [T]he common law rule which holds that after the verdict has been delivered, evidence directed to matters intrinsic to the deliberations of jurors is inadmissible must be applied.43 Furthermore, attempts to soften the rule to serve the interests of those that claim they were unfairly convicted should be resisted in the general public interest.44 The conclusion of the majority, therefore, was that if any juror had concerns relating to impropriety that should be raised with the trial judge before the verdict was given, for the verdict is the conclusion to which the jury have agreed is the culmination of their deliberations.45 To breach the sanctity of the jury room might impact upon one of the key reasons why juries enjoy such public confidence. Ultimately, Lord Hope argued, the common law rule ensured the jury could continue to perform their vital function of safeguarding the liberty of every individual.46Lord Steyn's dissenting opinion was, nevertheless, a powerful one, in which he indicated that the conclusion of the majority reasoning was that mistakes were a price worth paying for the preservation of the jury system. Conversely, he emphasised that following the Royal Commission on Criminal Justice in 1993, the philosophy became firmly established that there is a positive duty on judges, when things have gone seriously wrong in the criminal justice system, to do everything possible to put it right.47 Allowing the Court of Appeal to investigate into the deliberations of jurors where allegations of misconduct have occurred after the verdict has been *J. Crim. L. 50 given, would, it was argued, uphold this duty. Lord Steyn noted that such cases would be exceptional, however, and that in the majority of situations jury secrecy would remain intact.Similar debate has been aired in the USA. Federal Rule of Evidence 606(b) states that a juror may not testify about any matter occurring during the jury's deliberations other than where extraneous prejudicial material was brought to the jury's attention, where there was outside influence brought to bear or a mistake made in entering the verdict. Debate has centred on whether the sanctity of the jury is unconstitutional based upon the fact that the Sixth Amendment provides a defendant with a right to an impartial and competent jury. The leading case of Tanner v United States48 establishes an approach not dissimilar to that adopted in Mirza. Privacy of jury room deliberation remains sacrosanct.Much has been written about the judgment in Mirza and this article does not seek to rehearse those arguments again. However, what is clear from that judgment is that trial procedures to encourage the reporting of misconduct and efforts to neutralise its effects (or perceived effect) are crucial. The arguments that have been persuasive thus far in the USA are that defendants are not denied a constitutionally fair trial because that is protected at other points in the process, for example, at the voir direjury selection, during the trial itself through juror reporting to the court or juror observation by the court and post-verdict impeachment.49 That the attempts to ensure impartiality in England and Wales fall almost exclusively on the judge's management of the trial open that management up to closer scrutiny.50

Management of jury irregularities 51Jurors undertake an oath52 to try the case according to the evidence alone and are given further guidance and directions by the judge as to how they should fulfil the promise, for example, by not discussing the case with anyone outside of the jury room or carrying out their own investigations so that they are not influenced by external factors.53 Nevertheless, there *J. Crim. L. 51 are many reasons, intentional or otherwise, why these strict requirements are not always adhered to. For example, whilst a particular juror may carry out his or her own research in clear contravention of the directions given, other jurors may become aware unintentionally of information beyond that provided in court. When and how these issues come to the attention of the court determines the approach to be taken. An inflexible approach that states that a jury exposed to outside influence should be instantly dismissed would not retain public confidence. The administration of justice would grind to a halt were it so simple to bring serious criminal cases to an abrupt end. What the courts have sought to achieve has an internal and an external element. Internally, that is in the trial process itself, the court has to ensure fairness to the defendant--that the jury's deliberations do not take into account material beyond that provided in evidence and to which the defendant has not had an opportunity to respond. The external element is that the process of deliberation must be perceived more widely to be objective--that the deliberations are based upon the evidence alone or, where that is not the case, that there are no lingering doubts that external factors may have played a part.If an allegation of misconduct or impropriety is made during the trial the judge has the duty to investigate54 and consider how far this has affected, or might affect their deliberations.55 As the case is still live, the situation can be dealt with on its merits and the judge can react accordingly either by issuing further warnings as appropriate or dismissing individual jurors56 or the entire jury.57 In other words, if the approach is discovered before the verdict is given and has been brought to the court's attention swiftly it is still possible to ensure that fairness and impartiality are upheld and seen to be so--thus retaining public confidence. As Lord Bingham stated:The high regard in which juries are held depends on their collective integrity and on the individual integrity of their members. If a source of poison is identified in time it may (and often is) possible for the poison to be isolated and neutralised. But we cannot view without grave unease verdicts reached by a jury when we know that there was a source of poison which (because its presence was unknown) could not be isolated and neutralised, when we do not know how far the poison may have spread and when we do not know what effect it may have had.58It is crucial that when the judge is exercising his or her discretion to issue further directions or dismiss jurors this is done following a full investigation of the issues. Actual or apparent bias can only be neutralised effectively if the judge can respond, and be seen to respond, to all the specific issues arising on the facts. As noted by Lord Goff: the effect of his warning is not merely to ensure that the jurors do not allow any possible bias to affect their minds, but also to prevent any lack of confidence in the integrity of *J. Crim. L. 52 the jury.59 The Crown Court Protocol60 provides general guidance on how a court should response to jury irregularities: an analysis of the case law illustrates the practice.

Using additional materialsConcern surrounding jurors making reference to material about the defendant or to issues pertinent to the trial, which they have seen outside of the trial itself is not new. However, the ease of access to research on the internet has heightened this concern and is exercising the authorities in a number of jurisdictions.61 In 2013 a survey of Australian judges, magistrates, court administrators and other stakeholders identified the potential for juries to misuse social media during trials as, by far, the single most significant challenge that social media poses to the courts.62 The ubiquitous nature of the internet has prompted domestic courts to develop directions on jury management that specifically mention that the internet should not be consulted.63 These are a vital part of the procedural framework surrounding jury trial that seek to maintain its integrity. Inevitably, even an explicit direction is not infallible and where external materials are consulted the judge must act with a view to maintaining or re-establishing jury room integrity and the perceived fairness of the deliberations.64 *J. Crim. L. 53 An inability to restore jury room integrity can be seen in R v Thakrar.65 At the end of the appellant's evidence the judge received a note from a juryman indicating that some three weeks earlier a fellow juror had been looking at a website and found that the defendant had a previous conviction for money laundering. That information was in fact inaccurate. The judge explained this to the jury, adding that although the defendant did have a previous conviction it was irrelevant to the matters before them and they should put it out of their minds. However, although the judge might rightly have formed the view that the jury were able to do this, that the matter had not been reported for three weeks is of clear concern. Objectively, it cannot be said with sufficient certainty that the jury had not formed an adverse view of the defendant during the three-week period that then impacted upon their view of subsequent evidence. Additionally, that no juror saw it appropriate to report the incident for such a length of time clearly conflicts with the judge's instruction that irregularities should be brought to the attention of the judge immediately. The conviction was rightly quashed as the integrity of the jury could no longer be re-established.By way of contrast is R v McDonnel.66 After retirement it was discovered that the jury were in possession of various pieces of information downloaded from the internet. Interestingly, this discovery had not been volunteered by any member of the jury. In open court the judge asked whether there had been any further internet searches. The jury indicated that there had. He then considered the totality of the new information and decided not to discharge the jury and that the situation could be dealt with by a strong warning. The Court of Appeal endorsed this action:The fact that some members of the jury had carried out private researches, contrary to the judge's express direction, is undoubtedly troubling, but is not by itself a reason to discharge the jury, unless either there are grounds for thinking that they have acquired information that might have lead them to reach a verdict otherwise than on the evidence or there are grounds for thinking that one or more of them might disregard a clear warning from the judge not to repeat the process.67The nature of the information obtained appeared to be crucial. It related to information about denial as a defence and penalties for drug offences neither of which was considered to be prejudicial to the defendant. There was no evidence to suggest that new directions from the judge would not be followed.68 Though one might question this in light of the fact that it was not a jury member who highlighted the problem in the first instance, unlike in Thakrar, this was factual material of a general nature rather than a trawl for information about the case itself. On that basis there was said to be no actual or apparent bias. It can be argued that jury members making searches of factual, non-prejudicial material reflects a healthy desire on their part to take their role seriously and deliver a verdict to the best of their ability. *J. Crim. L. 54 The distinction between what is appropriate internet use and what amounts to inappropriate research needs further clarification. In recent years guidance has been provided to judges and updated on a number of occasions about how they should approach the task of warning the jury about accessing external information. In 2006 the Consolidated Criminal Practice Direction informed judges that it was essential to warn jurors of the dangers of conducting their own investigations and, following R v Thompson,69 made it clear that jurors should report misconduct before the case is concluded otherwise it may not be possible to put matters right. The Crown Court Bench Book advises judges to give examples of the type of prohibited conduct to make it ever clearer. It states: jurors should not discuss the case with anyone, not least family and friends whose views they trust, when they are away from court, either face to face or over the telephone, or over the internet via chat lines or, for example, Facebook or MySpace or Twitter.70It has to be accepted that the internet is now a central part of the lives of many and it may not be realistic to assume that jurors will refrain of using the internet during the period of the trial.71 As Pattenden suggests: Because a total ban may seem unreasonable to jurors, it is likely to be ignored .72 The emphasis of warnings has to be upon the nature of appropriate use as the Bench Book guidance indicates.73 This more nuanced approach is to be welcomed. It should also be the case, however, that such warnings should be repeated at appropriate points in the trial and, importantly, the reasons behind such warnings explained.74 To the juror the reasons why they should not engage with others involved in the case might be readily apparent, but it may be less obvious why they cannot discuss it with those who have no connection at all to the proceedings. In addition, evidence would also appear to suggest that a written copy of the directions is useful to jurors. Darbyshire's summary of the research suggested that:It is well known that audible information is lost soon after receipt. Written instructions do not reduce deliberation time but they result in better comprehension, retention and application. They make jurors more satisfied and efficient and they participate in higher quality deliberations.75 *J. Crim. L. 55 The regular provision of clear directions will both facilitate the task of the jury and provide the necessary procedural framework to foster trust in the integrity of the system. Not only do jurors need to be clear about their role, but the public too need to be confident that the jury are performing their role against clear standards and expectations.The Law Commission considers whether it would be appropriate to introduce a specific offence of intentionally seeking information related to the case the juror is trying.76 Similar provisions exist in certain Australian states and would certainly make clear to jurors the severity of this type of misconduct.77 However, if impartiality is seen as a key component of public confidence in juries, then educating the jury in how to carry out their task to ensure fairness rather than the negative approach of punishment might do more to retain that confidence. Arguably, criminalising this type of misconduct would simply ensure that it is less likely to come to light, and collective jury integrity depends upon jurors not only performing their own task in accordance with the procedural framework, but alerting the court to instances when they feel this has not happened. Suggestions that the law is inhibiting candour in the jury room, which the threat of criminal sanctions might bring, could prove detrimental to wider support for the jury. Further, the civic responsibility aspect of jury service needs to be emphasised more clearly, and seeking juror responsibility through the threat of criminal prosecutions might only add to the burden that many now view jury service to be.78In addition to more nuanced directions about the scope of jurors' commitments, perhaps what the Thakrar case might also suggest is that jurors need to be made more fully aware of their duties to report alleged misconduct and how they should do this. As Thomas discovered, a substantial proportion of jurors said they would not know, or were uncertain what to do if something improper occurred.79 However, it is not inconceivable that many jurors wishing to inform on their peers might feel reluctant to do so given that they have to maintain a working relationship with them, potentially over a number of weeks.80 Considering the issue of apparent bias, there must be a procedure instituted where jurors can report their concerns in confidence. The Law Commission posits the idea of drop boxes that can be accessed away from other jurors.81 For convenience and confidentiality it would be equally appropriate if jurors were able to e-mail their concerns, though of course the irony of encouraging internet use in this situation is apparent. However, as stated above, the advice to jurors about the internet should be focused on appropriate use, *J. Crim. L. 56 not a prohibition. Some individual jurors will inevitably seek recourse to materials which they should not see, but confidence can be maintained if the public are content that jurors are able to, and do report problems, and that the judge deals with them effectively.

Improper approaches/contact during the trialThe Criminal Justice Act 2003 introduced the possibility of judge-only trials in situations where there is a real and present danger of jury tampering.82 Despite being a controversial move it was anticipated that it would only occur in exceptional circumstances.83 To remain exceptional, however, it is important that improper approaches to jurors during the trial are appropriately dealt with to ensure impartiality.In R v Thorpe,84 involving a multi-handed conspiracy to defraud, there were three separate improper approaches to different members of the jury during the course of the trial. The last of these was during the summing up. The judge separated that juror and asked him if he felt that he could properly and fairly go on. There were further submissions and the judge had the whole jury back and asked them whether as a body they could put these matters out of their mind and try the case on the evidence.85 The jurors felt they could. On appeal, the Court of Appeal regarded it as important that the jurors concerned had immediately reported matters to the judge: a fact that reflected well on their integrity. However, the initial approach of the trial judge had been inadequate. On being made aware of the approach, segregating the juror and, without consulting counsel, asking him if he felt able to continue was simply not enough for the judge to take an informed decision on action appropriate to neutralise the problem. It was only through the arguments of counsel that a more robust and appropriate course was taken which involved consultations with counsel; further inquiries into the nature of the incident; and a consultation with the jury as a whole. The Crown Court Protocol on Jury Irregularities supports this, asserting that consultation with advocates should take place unless there is a good reason not to do so.86 Only then could the robust warning to the jury be seen as appropriate to counter any undue influence or the perception that the judge had made up his mind at the outset without a full appraisal of the position. By way of addition, the Court of Appeal stated that a juror's note ought to be discussed with that juror before it is shared with the entire jury and, as a matter of good practice, jurors' notes should be timed and dated. This action, unlike materials found in the jury room, allows the judge to determine the extent of the problem. If no other jurors are aware of the approach, then it might be prudent to keep it that way and dismiss the individual juror--this would establish confidence that the poison had not infected the jury as a whole. However, if the juror is to remain, then the jury as a whole should be *J. Crim. L. 57 given the relevant directions. If a juror is questioned separately, this should be done in open court.87The degree of inquiry necessary was given further gloss in R v Hammans.88 After the close of evidence, two jurors sent a note to the judge saying that after court the previous day they had felt intimidated by the actions of a group of men and they felt that one of that group might have been connected with the defendant. Inquiry revealed that this was unlikely. The judge refused to discharge the jury taking the view that telling them that there was nothing to connect the men with the defendant was sufficient and that they should not allow the actions of others to prejudice them. The conviction was upheld, but the Court of Appeal commented on what more the judge might have done:He could have asked them to identify precisely what was said to them and by whom: he could have asked them whether they had been influenced and whether a report of the incident had been passed to any other members of the jury: he could have asked the jury whether any of them felt intimidated or whether they or any of them felt that their ability to imply impartial judgment to the evidence was compromised.89The court must ensure that impartiality is maintained in fact and perception. The court must deal with the practical problem before it, but also must be seen to have been effective in doing so. The court failed to ensure this in R v Brown.90 Two jurors complained about apparently improper remarks directed to them by members of the defendant's family during the lunch break. The judge caused inquiries to be made by a police officer and the two jurors made statements. In open court he then asked the assembled jurors to consider two questions directed to ascertaining whether anything they had heard about those approaches affected their ability to try the case fairly. He asked them to put up their hands if the answer was yes. No one responded. The Court of Appeal noted that this may not have been the best way of dealing with the problem.91 It is not reasonable to assume that if jurors have a concern they would be happy to raise it publicly. The jury ought to have been given time to consider the issue individually and privately.The case is also important for three other observations. First, it is not open to a defendant to obtain the discharge of a jury by deliberately creating some ground of friction between him and them. Secondly, in order for a judge to conclude that the defendant is responsible for the problem which has arisen the circumstances must either be agreed or ascertained by the judge to exist. They cannot be assumed simply because there is a prima facie case which the defendant disputes.92 However, quite how the judge is to set about finding the facts is less than clear. Thirdly, a judge is entitled to have in mind as a background factor the expense of a retrial and the emotional strain which might be placed upon various *J. Crim. L. 58 participants in the trial though these are clearly not determinative.93 Indeed, they must come second to ensuring impartiality is seen to be achieved.It may be that investigation into who is responsible for the approaches that have been made to jurors may yield nothing. In such instances the judge, as in R v Morrison,94 might rightly conclude that the better approach is not to delay the trial further, but to proceed following appropriate steps being taken. This would include questioning the members of the jury about their ability to continue performing their role effectively, and the judge clearly indicating that where there was no evidence that the accused was responsible for the approaches the jury should not speculate further.95R v Whyte96 also indicates that it is better for the judge to ask jurors openly if they are able to decide their verdict impartially rather than presume that this is the case if no further concerns are raised. Where a judge does ask questions of jury members, this would normally be through the foreman. However, in R v Appiah,97 the Court of Appeal held that there was no reason why each individual juror could not be asked whether he or she felt intimidated in the circumstances that pertained. Provided that the judge has adopted an open procedure, has consulted with counsel and has taken steps to address the issues which arise, the Court of Appeal will be slow to intervene.98The extent of the trial judge's questioning is clearly case-specific, but it is important that even if the judge is satisfied that the juror is and can remain impartial this must be objectively assured too. In R v Oke99 a juror was spotted having a drink with a member of the public who had been present in court during the course of legal argument held in the absence of the jury. The juror told the judge that the man was her husband and the judge declined to question her further. Although entitled to presume that the juror was following directions appropriately in the absence of evidence to the contrary, it would have been better if the judge had asked some more questions at the time to reinforce that position. Again, it is a scenario where the perception of impartiality must be clearly reinforced. Similarly in R v Blackwell100 the extent of the investigations were held to be insufficient, but this time were fatal to the conviction. A female juror was seen talking to a man (later discovered to be her fianc) who had been present in court, possibly including times when the jury were absent. It was clear that the two parties had discussed the case. The judge dismissed the juror, but rejected an application to discharge the whole jury. The Court of Appeal held that the lack of detailed inquiry of the individual juror or indeed any questioning of the jury as a whole was fatal. It is suggested that although an opportunity may exist in cases of external influence for *J. Crim. L. 59 dismissing an individual juror and allowing the remaining jurors to continue without hindrance, this move must be taken with special care. In this case it was not possible for the judge to determine how far any contamination had spread. As such, there could not be confidence in the objectivity of the jury's deliberations. Even if the judge is satisfied that there is no further contamination it is essential that the reasonable observer also believes that the jury remain impartial and this requires a robust approach by the judge.This has been emphasised more clearly in R v Mears.101 Again a female juror had contact with her fianc during the trial about issues which he was aware of as a member of the public in the court, but about which she, as a member of the jury, was excluded from hearing. It appeared that both parties knew that their actions were wrong. The judge, when investigating the issue, satisfied himself that there was no direct evidence of contamination and therefore refused to discharge the jury. The Court of Appeal emphasised that the test in Re Medicaments required that the fair-minded, independent and informed observer would need to be satisfied that the jury could carry out their task without taking into account the extraneous material. The judge could not substitute his own view of the facts. The Court of Appeal noted:There was no direct evidence that information or opinions derived from discussions between the juror and her fianc had infiltrated the jury, but there was a risk that that had occurred. We do not think that concerns of that kind are capable of being allayed by the fact that when questioned by the judge none of the other jurors admitted to having been told anything.102The court also noted, with some surprise, that given that the juror admitted passing some information directly to another juror--and other jurors may have heard--that this had not been brought to the attention of the court. These facts reflect clearly that the judge's belief in the jury remaining uncontaminated is not enough; it must also be seen to be so.

Acquiring information inadvertentlyOn occasion the jury may become aware of information inadvertently. For example, in R v Boyes,103 at the end of a summing-up in a rape case, the complainant's mother shouted from the public gallery words to the effect that five other girls had been attacked by the defendant. In such instances the integrity of the jury members is not in issue, but the judge must still be satisfied that the jury are able to put such information out of their minds and that the fair-minded observer could trust the jury's objectivity. Although the judge directed the jury to ignore what was shouted from the gallery, he did not inquire into what they had actually heard. As such his direction was rather too general and failed to give due attention to comments which were potentially highly prejudicial. The earlier case of R v Docherty104 stated that in such circumstances the judge should approach *J. Crim. L. 60 the issue on the basis of the most prejudicial meaning that could reasonably be placed on the comments. It is clear that the wrong course of action is to try to limit the impact of information garnered inadvertently by simply ignoring it.R v Hutton,105R v Wilson106 and R v Thompson107 all concern the problems that can arise when a defendant's name appears more than once on a court list such that an astute observer might spot that he or she faced further or different criminal charges. In Hutton, a note pinned to the door of the court made it clear that further trials were pending. A juror was observed reading the notice. After the jury had retired the judge was told about this. He refused to have them back and give some direction about ignoring what they had read. This was held to be wrong. Tailored directions should have been given to the effect that the jurors should put this knowledge out of their minds as being irrelevant to their deliberations. In Wilson, jurors may have spotted that the defendant's name was on a court list for mention later in the week. The judge did not confront the jury with the problem, not least because defence counsel did not want him to. The conviction was upheld as the jury properly already knew a great deal about the defendant's criminal history. Nevertheless, the Court of Appeal was clear that it would have been much more preferable were the issue to have been addressed head on. Hughes LJ added that:The better course would have been to say either that they should pay no attention to something which might well have an explanation in the technology, or that whether he faced another charge or not was entirely irrelevant to the question which they had conscientiously sworn to try, namely whether he had done what was alleged in this case.108The irrelevant explanation is better in this case and an appeal to technological problems should only be made if actually borne out. In the final analysis, where the judge has weighed and articulated the issues and given a strong and appropriate direction, the Court of Appeal should not and will not interfere with decisions made by a trial judge about the proper conduct of the case unless satisfied that they are wrong.109The situation might arise where a juror accesses the internet for entirely proper purposes, but is inadvertently exposed to prejudicial material. The Law Commission is considering a proposal to permit prosecution and defence lawyers to apply for temporary removal orders aimed at those with sufficient control of the prejudicial material.110 Such a proposal has implications for free speech and it is suggested that emphasis should be placed on jury management rather than curtailing speech.111 This is another area where jurors must be encouraged to report such issues to the court so that the judge might respond appropriately to neutralise the problem.

*J. Crim. L. 61 Dissension within the juryDissension within the jury room is, to a degree, inevitable. However, where this escalates to the point of jurors reporting conduct to the judge, then this must be dealt with openly and swiftly. In R v Orgles,112 there was friction amongst the jury and two jurors made a complaint to the judge. In the absence of the others, the judge asked them whether they still felt able to continue if the remaining jurors were directed to give true verdicts according to the evidence. They said that they could. This approach was held to be wrong. As discussed earlier, it is entirely appropriate to seek to deal with external issues affecting an individual juror by speaking to that juror alone. This may have the effect of limiting contamination. However, where the problem is internal to the jury their capacity to carry out their function as a collective body is at risk.113 It is important that the other jurors are aware of the potential problem and can react accordingly. This might have the effect of concentrating minds more closely on the task at hand or even bringing problems out. Other jurors might have felt the same friction in the jury room, but had been reluctant to say such. What is key, however, is not that the trial is placed back on track as speedily as possible, but that bias and pressure are not seen to be operative.The approach adopted by the trial judge in R v Momodou114 was endorsed by the Court of Appeal. After a four-month trial the jurors were in their second day of retirement. One wrote a letter to the judge saying that two of her colleagues are being discriminatory and prejudiced and are not judging the case based upon the evidence. The judge did not discharge them straight away, but had them into court and expressed his concern about the contents of the letter. He provided each member of the jury with an edited copy of the letter and then told them to retire, consider it and decide whether they felt able to continue or whether their collective ability to give an impartial verdict had been compromised. He would only accept a response in general terms and not individual responses. Counsel for the defendant had suggested that the judge had failed to investigate adequately the allegations made by the individual juror. However, the Court of Appeal thought it unnecessary in this case though, should it have been necessary, it should take place in the presence of the defendant. This approach succeeded in ensuring that jury deliberations were not touched upon; that perceived prejudice could be neutralised; and that the individual complainant juror was not exposed. By providing an edited copy of the letter the jurors were not simply reminded of their task but were able to see how the complaint came about and whether, as a result, they could effectively put the potential prejudice aside.115R v OKZ116 indicates that the specific content of the juror's note may determine the approach. The trial judge chose to deal with a note indicating *J. Crim. L. 62 concerns about a juror's comments about ethnicity by addressing the jury as whole. On appeal, Hooper LJ commented:We have concerns about the juror's note being disclosed to the whole jury without any opportunity to consider the matter with the individual juror. If, as was done in this case, jurors are told to bring matters to the attention of the judge if they have concerns, then it seems, to say the least, concerning to read this kind of note to the whole jury without prior discussion with the writer of the note.117In contrast to Momodou the note referred to the comments of one particular juror and as such might have required further elaboration in order that the judge could ascertain the degree of the problem. However, in taking this course of action, the judge must be especially careful that the jury's deliberations are not touched upon.118 One relevant consideration might be that a juror may have reported concerns confidentially and simply to address the jury as a whole following the note it might be readily apparent to the other jurors who the complainant was, potentially impeding their collective task. If jurors are to be encouraged to report perceived problems, then they must be made to feel comfortable in doing so. An aspect of the procedure adopted in this case that was certainly problematic was that the judge chose not to share the juror's first note with counsel immediately, thus denying them the opportunity to make valuable representations as to how to progress the case.Where there is evidence of dissension in the jury room an obvious solution is to dismiss the jury. However, as stated earlier, it should not be possible for a trial to be so easily derailed. It is imperative, therefore, for the judge to take a holistic view of the circumstances. The juror who has reported the discord may have sinister reasons for doing so, but even when that is not the case, there is the possibility that the juror may be over-sensitive or has misread what is seen by others as robust debate. The judge should consider the juror's note in the light of wider factors: has any other juror reported concerns; has the jury acted in accordance with the directions thus far; are the questions they are asking (if any) suggestive of any bias? If there are no factors supporting the individual juror's report, then it may be that a further stern warning to the jury, with a reminder to report further impropriety, may well suffice to ensure that the jury can carry out their task without actual or apparent bias. The decision between further warnings and discharge of the jury is difficult and, necessarily, dependent upon the individual facts.119 However, whether the members of the jury can continue to be trusted or whether their integrity has been irredeemably lost does have consequences beyond the defendant. The public must also have faith in the decision. Action should be swift though not without a pause for thought120 to take account of all surrounding factors. Further, it is recommended that the judge discuss the way forward *J. Crim. L. 63 with counsel to ensure that all relevant issues have been taken into account.

Conclusion For jury deliberations to be made public or for the jury to have to give reasons for their verdict would fundamentally change the nature of their role. Indeed, either might undermine the confidence of the public which juries have in abundance. Further, such changes need not be an essential part of a fair adjudication process. Instead, as the ECtHR recognised, confidential jury deliberations without reasons to justify the verdict can be compatible with Article 6 provided that there is a procedural framework in place that provides sufficient guarantees as to, inter alia, the jury's impartiality. Such a framework can promote accuracy and also enhance (or at least maintain) public confidence, a key facet of the criminal justice process. The oath and the directions provided by the judge to the jury are one aspect of this framework, and both are under consideration by the Law Commission with a view to greater specificity in their scope and, more broadly, better education as to the role of the jury. A further aspect of the framework is the Crown Court Protocol on Jury Irregularity and the manner in which trial courts deal with allegations of impropriety during the trial, which involve ending the trial where impartiality has been compromised, or curing or negating the partiality where this is possible. Dealing with jury impropriety is necessarily fact-specific. Nevertheless, in order to maintain both actual and apparent impartiality it has been illustrated that certain key features should inform the court's response. It is important that the judge acts without delay and fully investigates any allegations such that he or she can be sure that they have gone to the root of the issue. It is advisable that the judge consults with counsel who should be given the opportunity to make representations. So far as possible the whole jury should be kept informed as to what has happened unless a specific juror is to be discharged in relation to an external issue in which case it may be feasible to limit the extent of the problem. Certainly, asking a juror who is not to be discharged then and there to keep information from fellow jurors is inappropriate. Likewise, the court should exercise caution when questioning individual jurors about complaints in relation to colleagues as it carries clear risks of impermissible inquiry into jury deliberations. Jurors should not be asked to give immediate or individual responses in open court, but should have the opportunity of private reflection. If jurors are discharged, it is also vital that they are warned not to discuss the circumstances with anyone. Applied to the individual facts of a case these features help not only to ensure that the defendant receives a fair trial, but, crucially, that the public can continue to trust the integrity of the jury.Post-verdict allegations of bias121 or other misconduct raise different questions and are outside the scope of this article though it is noteworthy *J. Crim. L. 64 that even in suggesting the possibility of exceptional circumstances to allow post-verdict allegations to be investigated, the Law Commission states that clearly it is important that the rationale for section 8 [Contempt of Court Act 1981] is not undermined.122 Though the role of the jury, and more specifically jury privacy, is under considerable strain it does not as yet appear that the pressure for fundamental change is overbearing. This can only remain the case, however, whilst judicial management of juries and consequent misconduct or impropriety fosters public trust and confidence. Juries are not infallible, but do still play a valuable role within the criminal justice system that is worthy of protection.J. Crim. L. 2014, 78(1), 43-641.Vicky Pryce jury discharged in Huhne speeding points case, 20 February 2013, available at www.bbc.co.uk/news/uk-21516473, accessed 5 December 2013.2.Justice Humphreys, Do We Need a Jury [1956] Crim LR 457, quoted in P. Thornton, Trial by Jury: 50 Years of Change [2004] Crim LR 119.3.P. Darbyshire, The Lamp That Shows That Freedom Lives: Is It Worth the Candle? [1991] Crim LR 740 at 741.4.Auld LJ, A Review of the Criminal Courts of England and Wales (London, September 2001) ch. 5.5.See, e.g., Hanif v United Kingdom [2012] Crim LR 295; R v Abdroikov [2007] UKHL 37, [2007] 1 WLR 2679; R v L [2011] EWCA Crim 65, [2011] 1 Cr App R 27.6.[2004] UKHL 2, [2004] 1 AC 1118.7.For example, see the major decisions in R v Momodou [2005] EWCA Crim 177, [2005] 2 All ER 571; R v Karakaya [2005] EWCA Crim 346, [2005] 2 Cr App R 5; Attorney-General v Scotcher [2005] UKHL 36, [2005] 1 WLR 1867.8.Department for Constitutional Affairs, Jury Research and Impropriety: A Consultation Paper to Assess Options for Allowing Research into Jury Deliberations and to Consider Investigations into Alleged Juror Impropriety, CP 04/05 (2005).9.Taxquet v Belgium (App. No. 926/05, 16 November 2010).10.Law Commission, Contempt of Court: A Consultation Paper, Law Com. Consultation Paper No. 209 (2012) especially ch. 4.11.C. Thomas, Avoiding the Perfect Storm of Juror Contempt [2013] Crim LR 483.12.J. Horan, Juries in the Twenty First Century (Federation Press: Annandale NSW, 2013).13.J. Roberts and M. Hough, Public Opinion and the Jury: An International Literature Review, Ministry of Justice Research Series 1/09 (2009). See also the surveys discussed in C. Thomas, Exposing the Myths of Jury Service [2008] Crim LR 415 at 416-7.14.Roberts and Hough, above n. 13 at 25: the general finding is that most people are very confident that juries are representative of the community.15.Roberts and Hough, above n. 13, see Table 3.1, 25. See also R. J. MacCoun and T. R. Tyler, The Basis of Citizens Perceptions of the Criminal Jury: Procedural Fairness, Accuracy and Efficiency (1988) 12 Law and Human Behaviour 333 at 338, Table 2.16.MacCoun and Tyler, above n. 15 at 335.17.N. S. Marder, An Introduction to Comparative Jury Systems (2011) 86 Chi-Kent L Rev 453.18.Bar Council, Views on Trial by Jury: The British Public Takes a Stand (2002), quoted in Roberts and Hough, above n. 13 at 25.19.M. Redmayne, Theorising Jury Reform in A. Duff, L. Farmer, S. Marshall and V. Tadros (eds), The Trial on Trial: Volume Two: Judgment and Calling to Account (Hart Publishing: Oxford, 2006) ch. 6.20.MacCoun and Tyler, above n. 15 at 347.21.Ibid. at 350.22.Criminal Justice Act 2003, s. 44; R v Twomey [2011] EWCA Crim 8, [2011] 1 Cr App R 29.23.L. L. Fuller, The Forms and Limits of Adjudication (1978) 92 Harv L Rev 363.24.Ibid. at 366.25.Ibid. at 367.26.Ibid. at 365.27.Further on jury accountability, see J. D. Jackson, Making Juries Accountable (2002) 50 Am J of Comp L 477. See also Taxquet v Belgium (App. No. 926/05, 16 November 2010); P. Roberts, Does Article 6 of the European Convention on Human Rights Require Reasoned Verdicts in Criminal Trials (2011) 11 HRLR 213.28.McHugh J, Jurors' Deliberations, Jury Secrecy, Public Policy and the Law of Contempt in M. Findlay and P. Duff (eds), The Jury Under Attack (Butterworths: London, 1988) 71.29.[2004] UKHL 2, [2004] 1 AC 1118 at [47]. For a critique, see L. McGowan, Trial by Jury: Still a Lamp in the Dark? (2005) 69 JCL 518.30.M. Zander, Jury Research and Impropriety: A Response to the Department of Constitutional Affairs' Consultation Paper (CP 04/05) (2005) at para. 6: available at http://www.lse.ac.uk/collections/law/staffpublicationsfulltext/zander/JuryResearchndmpropriety.pdf, accessed 5 December 2013.31.See, e.g., R. L. Lippke, The Case for Reasoned Criminal Trial Verdicts (2009) 22 Can J L & Juris 313.32.Taxquet v Belgium (App. No. 926/05, 16 November 2010).33.Ibid. at para. 90.34.A. A. S. Zuckerman, Law, Fact or Justice? (1986) 66 BULR 487 at 496.35.Pullar v United Kingdom (1996) 22 EHRR 391 at para. 30.36.[2001] 1 WLR 700.37.A. A. S. Zuckerman, The Principles of Criminal Evidence (Oxford University Press: Oxford, 1989) 34.38.Fuller, above n. 23 at 385-6.39.Zuckerman, above n. 34 at 496.40.[1922] 2 KB 113 at 117.41.[2004] UKHL 2, [2004] 1 AC 1118.42.Ibid. at [57].43.Ibid. at [129].44.Ibid. at [116].45.See also Attorney-General v Scotcher [2005] UKHL 36, [2005] 1 WLR 1867 at [17], per Lord Rodger.46.R v Mirza [2004] UKHL 2, [2004] 1 AC 1118 at [116].47.Ibid. at [4].48.483 US 107 (1987).49.M. Zora, The Real Social Network: How Jurors Use of Social Media and Smart Phones Affect the Defendant's Sixth Amendment Rights' (2012) U Ill L Rev 577. See also K. D. Clardy, Judicial Confusion and Inconsistency in Handling Juror Misconduct: A New Proposal (2009) 17 Wm and Mary Bill Rts J 895; R. P. MacKenzie and C. C. Bromberg, Jury Misconduct: What Happens Behind Closed Doors (2011) 62 Ala L Rev 623.50.There is the possibility to challenge a juror for cause though it has been claimed that this is of little value in terms of ensuring impartiality: P. Darbyshire, A. Maughan and A. Stewart, What Can the English Legal System Learn from Jury Research Published Up to 2001?, Occasional Paper Series 49, Kingston Law School (2002) 15.51.His Honour Judge R. Denyer, Case Management in Criminal Trials, 2nd edn (Hart Publishing: Oxford, 2012) ch. 21.52.Criminal Practice Directions [2013] EWCA Crim 1631 at [39E].1. For comment, see C. Murdoch, The Oath and the Internet (2012) 176 Criminal Law and Justice Weekly 149.53.Guidance on how the Crown Court should respond to jury irregularities can be found in Jury Irregularities in the Crown Court: A Protocol Issued by the President of the Queen's Bench Division, available at http://www.judiciary.gov.uk/Resources/JCO/Documents/Protocols/jury_irregularities_protocol.pdf, accessed 5 December 2013. Judicial instructions to the jury can be found in the Crown Court Bench Book Directing the Jury (2010). The jurors are also provided with a booklet from HM Courts and Tribunals Service, Your Guide to Jury Service (2011).54.R v Blackwell, Farley and Adams [1996] Crim LR 428; Criminal Practice Directions [2013] EWCA Crim 1631 at [39M.3]-[39M.11].55.R v Momodou [2005] EWCA Crim 177 at [94].56.Juries Act 1974, s. 16.57.R v Hambery [1977] QB 924. See also Jury Irregularities in the Crown Court, above n. 53 at para. 10.58.R v Putnam [1991] 93 Cr App R 281 at 286.59.R v Gough [1993] 97 Cr App R 188 at 199.60.Jury Irregularities in the Crown Court, above n. 53.61.For example, in Australia the concern surrounding juror misconduct has seen the introduction of legislation criminalising certain behaviours. See New South Wales Jury Act 1977, s. 68c. The Courts and Other Legislation Further Amendment Act 2013 (NSW) will regulate the use of personal digital devices during a trial. In Queensland the relevant statute is the Jury Act 1995 (Qld) ss 69A-70; and in Victoria, the Juries Act 2000 (Vic), s. 78A. Cases of particular interest include: R v K [2003] NSWCCA 406; R v Bilal Skaf [2004] NSWCCA 37; Dupas v The Queen (2010) 241 CLR 237; Boyd v The State of Western Australia [2012] WASC 388. For a discussion of the relevant concerns and legislative response, see R. Johns, Trial by Jury: Recent Developments, NSW Parliamentary Library Research Service, Briefing Paper 4/05 (2005). See also L. Trimboli, Juror Understanding of Judicial Instructions in Criminal Trials, Crime and Justice, Bulletin No. 119 (NSW Bureau of Crime Statistics Research: 2008); J. Johnston, P. Keyzer, G. Holland, M. Pearson, S. Rodrick and A. Wallace, Juries and Social Media: A Report for the Victorian Department of Justice (2013), available at http://www.sclj.gov.au/agdbasev7wr/sclj/documents/pdf/juriesndsocialmedia-final.pdf, accessed 5 December 2013; P. Lowe, Challenges for the Jury System and a Fair Trial in the Twenty-First Century [2011] JCCL 175; J. Horan, Juries in the 21st Century (Federation Press: Annandale NSW, 2013). In New Zealand the issue is also live--see A. T. H. Smith, Reforming the New Zealand Law of Contempt of Court, Discussion Paper (2011) para. 2.53, available at http://www.crownlaw.govt.nz/uploads/contempt_of_court.pdf, accessed 5 December 2013; R v B [2008] NZCA 130 at [78]. See also W. Young, N. Cameron and Y. Tinsley, Law Juries in Criminal Trials, Part Two: A Summary of the Research Findings, Law Commission of New Zealand Preliminary Paper 37(2) (1999), discussing jurors' reliance on outside materials before mass internet use. For a summary of the issues in the USA, see C. M. Morrison, Jury 2.0 (2011) 62 Hastings LJ 1579; R. P. Mackenzie III and C. C. Bromberg Jnr, Jury Misconduct: What Happens Behind Closed Doors (2011) 62 Ala L Rev 623; T. Hoffmeister, Investigating Jurors in the Digital Age: One Click at a Time (2012) 60 U Kan L Rev 611; A. J. St Eve and M. A. Zuckerman, Ensuring and Impartial Jury in the Age of Social Media (2012) 11 Duke L & Tech Rev 1. See also Common wealth v Werner 81 Mass App Ct 689 (2012).62.Johnston, Keyzer et al., above n. 61 at para. 3.1.63.R v Karakaya [2005] 2 Cr App R 5; R v Marshall [2007] EWCA Crim 35; Judicial College, Crown Court Bench Book: First Supplement (2011); Judge Tonking and Judge Wait, Crown Court Bench Book Companion (2011).64.Jury Irregularities in the Crown Court, above n. 53 at para. 8.65.[2008] EWCA Crim 2359.66.[2010] EWCA Crim 2352.67.Ibid. at [28].68.This issue is addressed similarly in Australia, see Benbrika v R (2010) 247 FLR 1.69.[2010] EWCA Crim 1623.70.Judicial College, above n. 63 at 8.71.Horan, above n. 61 at ch. 5. For further information on how jurors use the internet during a trial, see C. Thomas, Avoiding the Perfect Storm of Juror Contempt [2013] Crim LR 483.72.R. Pattenden, Investigating Jury Irregularities: United Kingdom (England and Wales) (2010) 14 E&P 362 at 364.73.See K. Crosby, Controlling Devlin's Jury: What the Jury Thinks and What the Jury Sees Online [2012] Crim LR 15.74.This might also aid comprehension. The suggestion that jurors have difficulty comprehending some legal directions is certainly very real. See C. Thomas, Are Juries Fair?, Ministry of Justice Research Series 1/10 (2010) 36; J. L. Ritter, Your Lips Are Moving But the Words Aren't Clear: Dissecting the Presumption that Jurors Understand Instructions (2004) 69 Mo L Rev 163; J. Turgeon and E. A. Francis, Improving Pennsylvania's Justice System through Jury Innovations (2009) 18 Widener LJ 419; Darbyshire, above n. 3.75.Darbyshire et al., above n. 50 at 33.76.Law Commission, Contempt of Court (1): Juror Misconduct and Internet Publications, Law Com. No. 340, HC 860 (2013) para. 3.78.77.See also Zora, above n. 49, who argues that the current structure of judicial warnings and suchlike are proving insufficient to guarantee impartiality and the criminal nature of jurors behaviour in accessing external materials should be more clearly explained followed by prosecutions.78.Darbyshire et al., above n. 50 at Part C.79.Thomas, above n. 74 at 49.80.An example of juror reluctance to inform can be seen in the New South Wales case of R v Wood [2008] NSWCCA 53. Further, see Horan, above n. 61 at ch. 5.81.Law Commission, above n. 10 at para 4.91.82.Criminal Justice Act 2003, s. 44.83.To date there has only been one such case: R v Twomey [2011] EWCA Crim 8, [2011] 1 Cr App R 29.84.[1996] 1 Cr App R 269 at 279.85.In accordance with Jury Irregularities in the Crown Court, above n. 53 at para. 8.86.Ibid.87.R v Ramzan and Farooq [1995] Crim LR 169.88.[2001] EWCA Crim 479.89.Ibid. at [25].90.[2001 EWCA Crim 2828.91.Ibid. at [24].92.Ibid. at [31].93.In R v Spencer [1987] AC 128, Lord Hailsham was clear that the paramount factor had to be the interests of justice.94.[2009] EWCA Crim 1457.95.Jury Irregularities in the Crown Court, above n. 53 at para. 10(i).96.[2011] EWCA Crim 41.97.[1998] Crim LR 134.98.R v Panniyis [1999] Crim LR 84.99.[1997] Crim LR 898.100.[1995] 2 Cr App R 625.101.[2011] EWCA Crim 2651.102.Ibid. at [20].103.[1991] Crim LR 717.104.(1999) 1 Cr App R 274; see also R v Lawson [2005] EWCA Crim 84, [2007] 1 Cr App R 20.105.[1990] Crim LR 875.106.[2008] EWCA Crim 134, [2008] 2 Cr App R 3.107.[2010] EWCA Crim 1623, [2011] 1 WLR 200.108.R v Wilson [2008] EWCA Crim 134, [2008] 2 Cr App R 3 at [20].109.R v Azam [2006] EWCA Crim 161 at [57]; [2006] Crim LR 776.110.Law Commission, above n. 10 at para. 3.82.111.I. Cram and N. Taylor, The Law Commission's Contempt Proposals: Getting the Balance Right? [2013] Crim LR 465.112.(1994) 98 Cr App R 185 at p. 190.113.Jury Irregularities in the Crown Court, above n. 53 at para. 10(ii).114.[2005] EWCA Crim 177, [2005] 2 Cr App R 6.115.The effect of the specific (in)action taken at the trial stage can be seen in the contrasting cases of Gregory v United Kingdom (1998) 25 EHRR 57 and Sander v United Kingdom (2000) 33 EHRR 44.116.[2010] EWCA Crim 2272.117.Above n. 116 at [22].118.Jury Irregularities in the Crown Court, above n. 53 at para. 8.119.For a recent example, see JC, JJC, PC and TC v R [2013] EWCA Crim 368.120.R v Heward [2012] EWCA Crim 890 the Court of Appeal reiterated that the recommended course be that the courts takes its time to ensure the most appropriate course of action. See also Jury Irregularities in the Crown Court, above n. 53 at para. 9.121.Further, see Jury Irregularities in the Crown Court, above n. 53 at paras 16-24; G. Daly and R. Pattenden, Racial Bias and the English Criminal Trial Jury (2005) 64 CLJ 678; P. R. Ferguson, The Criminal Jury in England and Scotland: The Confidentiality Principle and the Investigation of Impropriety (2006) 10 E&P 180; N. Haralambous, Investigating Impropriety in Jury Deliberations: A Recipe for Disaster? (2004) 68 JCL 411; J. L. West, 12 Racist Men: Post-Verdict Evidence of Juror Bias (2011) 27 Harvard Journal Racial and Ethnic Justice 165; A. C. Helman, Racism, Juries and Justice: Addressing Post-Verdict Juror Testimony of Racial Prejudice During Deliberations (2010) 62 Me L Rev 327; L. Goldman, Post-Verdict Challenges to Racial Comments Made During Juror Deliberations (2010) 61 Syracuse L Rev 1.122.Law Commission, above n. 10 at para. 4.60. 2014 Vathek Publishing