The case of Joanne Fraill, the juror sentenced to eight months in prison for contempt of court over violations that resulted in an expensive mistrial, has aroused fierce passions.
There are those, including Ms Fraill, who find it hard to believe that what she did – contact a defendant who had been acquitted while others in the same case were still being tried, and communicate with others about the deliberations in the jury room – really warranted what they regard as a draconian sentence. Then there are others, more in sympathy with the judge, who argue that what she did compromised the whole jury system and justified an exemplary sentence to discourage others. There are also those who believe she was treated too leniently.
We tend to support the judge. Ms Fraill was warned several times about her conduct during the trial, but appears not to have taken the instructions seriously. Breaching the confidentiality of the jury room is a grave matter, and one that threatens the integrity of the system. Nor is the cost to the public purse of a mistrial in what was a complicated drugs case something that deserves to be dismissed lightly.
If, as seems likely, however, the arguments on either side are to be tested again at appeal, that would probably not be the worst outcome – because this case can be seen as being about more than the actions of a single aberrant juror. While it has always been possible, in theory and in practice, for jurors to communicate improperly with a defendant – acquitted or not – and while Ms Fraill is unlikely to be alone in having violated the confidentiality of the jury room, the spread of social media made her actions far, far easier than they would once have been.
She was able to find the acquitted defendant through Facebook; she was able to communicate from the court, and even the jury room, by internet. Only a few years ago this would have been impossible. In many ways, it is a compliment to the sense of responsibility shared by those called to jury service that this is the first contempt case of its kind. What is not, and may never be, known is how many jurors privately research "their" cases on the internet and whether that affects their judgement. This, too, is illegal, but – so long as it is kept private – is far harder to trace.
The Fraill case highlights the difficulty of ensuring the integrity of the jury system in a world of social media. But it is just one of many ways in which the proliferation of new media is complicating, if not actually compromising, the judicial process. As was seen recently, with the revelations about Ryan Giggs, something like a double standard now applies to privacy injunctions, with the old media required, on pain of huge fines, to observe them, even as the forbidden facts circulate around the new media with apparent impunity. The culpability of individual new-media users under the law has yet to be seriously tested, and great obstacles face anyone who might want to bring charges.
The principles of confidentiality remain clear. What has changed is the capacity of judges to enforce them and the extent to which the public still accepts them. This is a moment when judges, media and MPs should sit down together and consider whether a new settlement might not be needed to cater for these new circumstances.