Technology has evolved far quicker than the law, and past information about an accused facing trial which used to be very difficult to obtain can be viewed effortlessly in seconds. With clients facing greater potential prejudice, advocate Donald Findlay QC says it is time a new offence was created to protect accused from online information about their past.

Whether we like it or not, and I for one do not, we live in an age which is becoming ever increasingly dominated by technology and especially the internet.

We can shop, get our news, watch sporting events, play bizarre and largely pointless games, disclose all sorts of what should be confidential information about ourselves, conduct banking, be defrauded, watch every form of sexual perversion known to mankind – and all of this and much more, “On Line”.

In the home, computers are as common place as tasteless wallpaper. Everywhere you go you see signs for Wi-Fi, free or otherwise, thereby encouraging us to make all our most private information available to the marauding (or should it be surfing?) criminal classes.

We are bombarded by advertisements for free laptops; faster broadband; printers which double up as fax machines, photocopiers, and who knows what else. Go into a shop and say you want to buy a mobile phone and some callow youth will confront you with the most challenging of questions – what do you want it to do, sir?

“Eh, make phone calls.” Doh!

“Oh, Sir, if only it was that simple.”

Camera? Megapixels? (What is a pixel anyway?) 3G? (Eh?) Touch? (Touch me and you’ll get a smack). And on and on it wearyingly and bafflingly goes. But technology is part of our every day lives and it seems to me that it poses a real dilemma for the criminal justice system, a dilemma that we do not seem to be prepared to confront.

In practical terms, there is nothing to stop a witness or a juror using a search engine to find out all sorts of information about the past history of an accused person. It is such a simple matter to access newspaper reports via the internet. It can even be done in the court building using an iphone or Blackberry. These reports, accurate or otherwise, may disclose information about the crime and more importantly the accused himself. Most dangerously of all, the previous convictions of an accused may be available.

I first became truly concerned about this at the time of the trial of William Beggs in 2001. On the day the trial started, Mr Beggs was still the subject of massive internet coverage including his previous convictions. It seemed to me that there was every danger that jurors might check up on Beggs via the internet given that his arrest had attracted considerable media attention.

The reaction of the Crown was to argue that this was no different from the risk that jurors might go to a library and hunt around for back editions of newspapers. Hardly a realistic analogy! In the end the trial proceeded on the basis that jurors would decide the case on the evidence only and in terms of the oath.

Of course I recognise that it is fundamental to our system that the jury, under the guidance of the trial judge, will obtemper the oath.
But is there not a real risk that we are asking too much of members of the public? Are we just to ignore how tempting it must be to go home at the end of a day in court and type a few names into a computer? And what if a juror comes upon extraneous material by mistake?

A fair trial on the evidence and according to law is the very essence of our system. I believe that, as far as jurors are concerned, there should be a specific offence of seeking to obtain information out with the trial. Before the trial starts, jurors should be advised of the existence of this offence and the consequences. The jury should also be told that if one of their number is known to have breached this rule there is an obligation on the rest to disclose this to the court or the remaining jurors may also be guilty of an a offence. If there is a suspicion of internet access, this can easily be checked by an examination of the juror’s computer.

I have no desire to see any juror being convicted of an offence. Nor do I wish to see jurors being intimidated. But, I do firmly believe that the criminal justice system should recognise and tackle the realities of the world in which we now live – for the sake of a fair trial.