Jurors who deliberately flout court rules to research cases online will face criminal conviction under proposed new laws.
The Law Commission proposal has the backing of top legal advisers across several countries and is being spearheaded from New Zealand after 10 jurors had to be sacked from a high-profile case.
Currently, jurors who are in contempt of court can be fined a maximum of $1000 and face up to three months in jail but are not criminally convicted because it is a common-law offence.
But the proposal will redefine contempt of court as a statutory offence and will result in a criminal conviction. Attorney-General Chris Finlayson last week led a discussion in London about problems facing the jury system in a digital age.
Read more: No need to punish jurors for sleuthing
"The issue is not whether there are penalties for contempt, which is well settled law," Finlayson told the Herald on Sunday, "but providing clearer guidance to judges and everyone else engaged in the legal process on the kinds of behaviours that could interfere with the proper administration of justice and the defendant's right to a fair trial."
At an annual meeting with counterparts from the UK, US, Canada and Australia, Finlayson cited the trial of Salofo Aiono, where 10 jurors were discharged for researching the case online.
Those jurors were simply let go because contempt is not a statutory law with its own charges and specific penalties, but the Law Commission proposes making it a criminal offence for jurors to use the internet to find out details of cases. It will also be illegal to share details with other jurors or post it on social media.
The proposal is supported by top Auckland defence lawyer Maria Pecotic, who defended Aiono in 2010. Aiono was later found guilty of manslaughter after beating and stomping on the head of a man for having an affair with his wife.
Aiono's first trial had a hung jury. At the second trial, a journalist on the jury researched the case after being sworn in and shared the information with four other jurors.
Justice Mary Peters had to discharge all five. When a second panel of 36 people was called for selection as replacements, a further five revealed they, too, had researched the case online and were discharged.
"It was quite an unusual situation. I would have preferred if a whole new panel were selected that were uncontaminated by any suggestion of internet searching," said Pecotic.
Judge Peter Boshier, who is heading the review, said policing whether a juror has researched a case online is problematic as often it is only revealed if someone outs them or if they leave evidence behind in the jury room.
One possibility is for judges to have the right to seize and search their mobile devices and computers, but Boshier said it was heavy-handed.
"Cellphones now are such a vital part of life that I think it's sad if we deprive people of their means of communication in order to achieve this end," he said.
He said the proposal is being put out for discussion and submissions can be made until August 22.