The Googling Juror – Update

It was as clear as crystal that my discussion of the Googling Juror and the reasons why jurors go on-line was not going to be the last word on the subject and indeed discussion and debate can only assist in seeking solutions for preserving the principles underlying the jury trial in a new information paradigm.

To assist in that discussion and debate I have decided to post a few references that have come across my desk since I wrote the article as much to keep the research and the issue up to date as to inform further debate. Some are academic – others are in the nature of news. Some pre-date my article – mea culpa – I should have picked them up.

A helpful overview is a piece entitled “The Wired Juror Unplugged” by Susan McPherson and Beth Bonora from the Issue of Trial for November 2010. In a well documented piece they discuss the problem and emphasise the importance of telling jurors WHY they should not go on-line for information about the case or the law.

” The rapidly changing ways that people learn are clearly creating significant challenges for judges and trial lawyers. But the ways in which we choose to respond could well improve jurors’ level of comprehension and their overall experience in deciding cases. If lawyers attempt to engage jurors in a deeper understanding of the trial process and their role in it—and treat their curiosity and desire to make fully informed decisions with respect— jurors may be more motivated to play by the rules.”

The article includes some draft jury instructions, although the source for these is not credited. I assume that they have been crafted by the authors.

Marcy Zora has written a piece in the University of Illinois Law Review entitled “The Real Social Network: How Jurors’ Use of Social Media and Smart Phones Affects a Defendant’s Sixth Amendment Rights” (2012) U Ill L.Rev 577. The article advocates a “consequences” approach for juror research rather than preventative efforts. The abstract states:

” Internet resources, particularly when combined with new technologies such as smart phones with web-browsing capabilities, provide jurors with a new avenue to do independent research on the defendant or the case, or to communicate trial-related material before deliberations are complete, both of which violate a defendant’s Sixth Amendment rights. This Note analyzes the different approaches courts have taken in combating such violations, including the use of more specific jury instructions, restriction of juror access to electronic devices such as smart phones, use of voir dire to exclude “at risk” jurors, and monitoring of juror Internet activities. Ultimately, this Note argues that jury instructions, prohibitions on electronic devices in the courtroom, voir dire, and monitoring are insufficient to protect defendants’ Sixth Amendment rights. Courts, rather, should establish specific punishments for engaging in these prohibited activities, ensure that the jurors are informed of the punishments, and take a more proactive approach toward identifying violators by questioning jurors throughout the trial process.”

Ralph Artigliere, Jim Barton and Bill Hahn consider the issues in their article “Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers” (2010) 84 Florida Bar Jnl 8. The voir dire process – not used in New Zealand and other Commonwealth countries – is emphasised. The article concludes:

“Because juror misconduct threatens the fundamental fairness of a trial and is a due process issue, judges and trial lawyers should consider methods supplemental to the current standard and routine jury instructions throughout the trial. Practical methods to reduce juror temptation, such as taking away cell phones and other digital devices during deliberations, are needed in light of the current culture and technology that constantly connect jurors to other people and the Internet. Clear, strong instructions with follow up and reminders from the judge and the lawyers that clearly define right from wrong and disclose the consequences to jurors are part of the solution to reduce as much misconduct as possible. While the standard instructions are being considered for revision, judges and lawyers must be attuned to ways to minimize intentional or unintentional behavior which, left unchecked and unaddressed, will undermine fairness of jury trials. Judges and lawyers who learn better ways to address these issues should share them with the common goal of eliminating as much juror misconduct as possible from trials.”

Daniel A. Ross in the New York Law Journal for 8 September 2009 writes about juror abuse of the Internet. The article looks at the issue of jury instructions and Court policies on the use of electronic devices. The voir dire process is also considered. But the underlying message is the need for adaptation to the new technological environment.

Regardless of the precautions taken, it is unlikely that judges or lawyers will be able to eliminate juror misuse of the Internet, and they should adjust to a world in which control over information to or from jurors is much less effective than it was before the advent of Google, Facebook and the next emerging technology.

In an article entitled “Federal Judges on Guard Against Juror’s Social Media Activity” Mary Pat Gallagher examines a national survey of Federal judges which finds that there are concerns about juror use of social media and the steps that are being taken to address the problem. The article appears in the 29 March 2012 issue of New Jersey Law Journal. It is available via LexisNexis.

The importance of juror engagement in the trial process and steps that have been taken in Michigan to enable this are the subject of an editorial by Linda Mah in MLive for 17 September 2012 entitled “Courts’ Efforts emphasize the right and responsibilities of jury duty.” 

The editorial notes:

The Michigan Supreme Court deserves praise for a recently launched program that brought changes to the jury system to help jurors feel as involved as possible and to broaden the tools they have with which to decide a case….

In 2009 and 2010, the Michigan Supreme Court organized a pilot program that allowed judges to test proposed reforms in their courtrooms during actual trials. Among the initiatives were to allow jurors to submit questions for the witnesses and to discuss evidence among themselves prior to final deliberations.

The pilot program led to the adoption of “a comprehensive package of jury reform court rule amendments in September 2011, according to the Supreme Court news release.

The Akron Legal News for 18 September 2012 reports on the development of Federal model instructions and refers to the report of the  Conference of Court Public Information Officers (CCPIO) . The article notes:

A proposed new set of jury instruction for federal courts has been issued by a federal Judicial Conference Committee that relates with the fact that jurors bring their phones with them to court.

The proposed model instruction, which follows numerous state courts’ attempts to deal with this issue, would add about two pages to a standard jury instruction, one each at both the start of the trial and at the close of the case.

The model instruction follows in the footsteps of many state courts, which have been giving these sorts of jury instructions for a long time.

Concerns about the impact of social media in jury trials are not restricted to the United States. In Australia Attorneys-General have formed a task force to consider social media regulation and possible law reform following an online outpouring of grief and anger, in a murder case that has highlighted both the strong benefits and sharp risks of social media reporting on criminal investigations and prosecutions. Within minutes of the arrest of the man who was ultimately charged with the rape and murder of a young woman in Queensland, the grief and anguish earlier expressed on social media gave way to angry posts that included calls for the accused man to be tortured and “lynched.” There were also many posts that subsequently revealed the man’s face and speculated about a criminal history — posts that Australian media law experts argued could derail his trial. This is because of Australian sub judice contempt law that strictly regulates publication in the state in which a case is to be prosecuted. The article “Trial by Social Media Prompts Clash Over Accused Murderer” was published on the MediaShift website on 12 October 2012.

The whole issue of juror misconduct and how to deal with it has exercised the minds of judges in England. In November a protocol was issued by the President of the Queens Bench Division dealing with jury irregularities in general.

A “jury irregularity” is defined as:

“….anything that may prevent a juror, or the whole jury, from remaining faithful to their oath or affirmation as jurors to ‘faithfully try the defendant and give a true verdict according to the evidence’. Anything that compromises the jury’s independence, or introduces into the jury’s deliberations material or considerations extraneous to the evidence in the case, may impact on the jurors’ ability to remain faithful to their oath or affirmation.”

The protocol deals with two phases in which jury irregularity may occur – during the course of the trial and after the verdicts have been returned. The protocol is wide and covers more than the problem of “The Googling Juror.

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The National Center for State Courts produces some interesting material on this topic. On the wider issue of increased engagement by Court leaders a paper by Garrett M Graff is interesting and though-provoking. Entitled “Courts are Conversations: An Argument for Increased Engagement by Court Leaders”, Graff takes the Cluetrain Manifesto as his starting point. In essence the Manifesto has come to define communication in a connected world. Although the Manifesto has markets as its emphasis, it makes the point that a global conversation has begun, enabled by the Internet. Interstingly, the Manifesto was published in 1999 before Web 2.0 ushered in the era of interactive connected communication.

Graff points out that the Courts have been a little slow to embrace social media but observes that communication is central to a court’s very being. In fact, courts are among the most critical forums (sic) for conversation in a civilized society.

One issue addressed by Graff, and which I have commented upon in my post “Why Do Jurors Go Online”, is that of user expectations in the digital paradigm.

As a new generation arrives with different expectations for conversations and interactions, courts now  face a fundamental challenge: How do they listen better to a public now used to conversing in different ways, on different platforms, and with different tools?
What we’re witnessing today represents fundamental changes in communication and behavior for a new generation. The legal system runs a serious risk that this new generation will find courts increasingly out of touch, bearing little resemblance to their lives or their chosen means of communication. To a generation raised with free-wheeling, constant, global communication, courts—with their traditions and structure—may seem as anachronistic as the oncepracticed legal tradition of tying a suspected witch to a stone to see if she sinks.

Not only must Courts understand how people are using communication tools, they must become more adept at using them themselves. The article concludes:

These new rules play out in the news on an almost daily basis, from Egypt’s Tahrir Square 
to Anthony Weiner’s Twitter feed,from the back alleys of Syria to Iowa’s Supreme Court retention election. While these disruptions have had some positive impacts—ensuring, for instance, a more responsive democracy and one where many more voices have an opportunity to be heard—this increased vulnerability for incumbents and institutions has troubling implications on judicial independence.

The answers here are much more unknown and yet the window for engagement is rapidly passing. The legislative branch and the executive branch are forging ahead. The judicial branch cannot cede all of this territory, all of these online conversations, to the other branches of government without a real cost to judicial independence. Courts cannot be left voiceless in this new world. While it’s important for the judicial branch to appear to be in touch with advances in communication, certainly, the challenge presented by the social media revolution is more fundamental than merely hopping on the hot new tech trend. The Cluetrain Revolution is altering the expectations and habits of society. The ability of courts to execute their intended functions and to achieve their stated goals of dispute resolution and justice-seeking, will be contingent upon how smartly and thoughtfully they meet society’s new expectations.

At some point in the not too distant future—perhaps this year, perhaps next, but for sure in the next five to ten years—every court will be confronted with a scenario that requires a thoughtful online communication strategy, one that incorporates YouTube, Facebook, Twitter, Tumblr, and platforms that today we can’t even imagine, into a coherent media apparatus. As any expert in crisis communication will attest, that future point will be too late to begin figuring out this world. On the day that it’s needed, the courts will already need to have the infrastructure and the following in place.

There is no silver bullet, no single correct answer for every state and every court. Instead, it is necessary for each court in every state to begin engaging as soon as it can.
Don’t wait. The world has already changed.

Finally an article in the Guardian entitled “Juries and Internet Research: We Need to Ask More Questions” (9 November 2011) refers to a valuable piece of research by Paula Hannaford-Agor, David B. Rottman and Nicole L. Waters entitled “Juror and Jury Use of New Media: A Baseline Exploration” published by the National Center for State Courts.

The US pilot study looked at a small sample of jurors in 15 civil and criminal trials in Connecticut, Florida, Michigan, Pennsylvania, Texas and Virginia. Judges, lawyers and jurors were asked to fill in questionnaires concerning new media use during the trials.

They found that 44% of jurors would like to use the web to research legal terms; 26% to find out more about the case; 23% to research the parties; 23% the lawyers; 20% the judge; 19% the witnesses and 7% their fellow jurors.

8% wanted to email their family about the trial; 5% wanted to connect with another juror; 3% wanted to connect with a trial participant, tweet or blog about the trial.

The report came hot on the heels of the case of Stephen Pardon who was jailed for four months for contempt for disclosing details of jury deliberations to a defendant. A further case involving social media use by journalists may yet come before the Courts.

The English attorney general Dominic Grieve has to decide whether to prosecute a journalist who allegedly tweeted material that breached the Contempt of Court Act during the trial of Vincent Tabak.

The tweets concerned pornography on Tabak’s laptop – evidence that had been ruled as inadmissible at his trial – and Grieve’s decision will be watched closely by an industry that has seen contempt of court re-emerge as a legal threat to publishers after years of dormancy.

There can be no doubt that the variety of uses of New Media by both jurors and others involved in the Court process is challenging. The writers of the Baseline Report published by NCSC recommend a wider study. Certainly there is a problem. Such studies can only enhance our understanding of the extent of it.

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Revisiting “The Hobbit”

In a moment or two I shall depart to my High Street bookseller – yes, I have a real world hard copy bookseller and yes Unity Books is located on High Street in Auckland. They have a special anniversary edition of  The Hobbit  available which I ordered some time ago. I’m told that they also have a copy of “Hobbitus Ille” – “THE Hobbit” in Latin which can sit alongside my copies of “Winnie Ille Pu” and “Alicia in Terra Mirabili.” It will be interesting to see how the translator deals with Gollum’s curse – “Thief, thief thief! Baggins – we hates it forever” Tentatively I have reach “Fur, fur, fur! Baggins!  Id in aeternam odimus!” (Although some would suggest “nos odit eam in aeternum”)

I have had cause to reflect a little upon “The Hobbit” and the resonances that it brings. I am currently reading “There and Back Again” by Mark Atherton, a piece of work that I am enjoying immensely. Although one reviewer finds the publisher’s blurb “shameful” (the rest of the review is more positive) it has been well-received in Tolkien quarters.

What started the resonances particularly were the references by Atherton to the idyllic and atavistic location of  the beginning of “The Hobbit” in the pre-idustrial English country-side. Reference was made especially to the colour painting of “The Hill” that Tolkien executed in 1937-38. I remember that painting as the first encounter that I had with Tolkien’s world when I was 10 and opened “The Hobbit” for the first time. That, and the opening passages, I found imparted a warmth and a safety within my own mind that recognised that there were greater things in the wide world, but that certain places – home in particular – should be untouched by the tribulations of the outside world. For me that picture is so representative of tranquility and peace that every time I see it I recollect the feelings that I had when I first saw it.

Atherton puts it this way

“Hobbits live in a world that resembles an idyllic version of England in about 1890; a ahistorical English countryside – one that never underwent the notorious enclosures of the early 1800’s that so taxed rural workers and was captured in, say, the writings of the poet John Clare. It is an ordered ‘respectable society’ with a municipal organisation (signposts) and some basic industrial production (baked tiles) but otherwise basically a pre-industrial modern world. In brief it is anachronistic, a vestige of rural England.”

The extraordinary thing that happens whenever I read “The Hobbit” is that I am not only entering Tolkien’s world but returning to another world that I inhabited in 1957. The resonances and remembrances from that time are startlingly clear and the feelings and sensations that I had when reading it then return now. There are occasions when the same thing happens when I read “The Lord of the Rings”. The first appearance of the Black Rider in “The Fellowship” was a sleep-depriving experience and I still feel the dread when I re-read the passage. My reading the “The Lord of the Rings” was a somewhat complex process, for I borrowed each volume separately from the library. After I finished “The Fellowship” the second volume “The Two Towers” was not on the shelf. However, Volume 3 was and I borrowed it, so hungry was I to return to Middle-earth and thinking that I could pick up the threads later. But the problem is that the final images of “The Fellowship” and the sundering of the Fellowship at Amon Hen and the funeral of Boromir lead straight to the image of Pippin bouncing along with Gandalf to Minas Tirith after the episode with the Palantir following the fall of Isengard. “The Two Towers” came later and it all made sense, but first impressions, it seems, endure.

I suppose part of the explanation for these apparent “flashbacks” lies in the fact that I came to “The Hobbit” and “The Lord of the Rings” at a very impressionable age. But why the enduring memories and the continued fascination. Is there an aspect of avatism at work that keeps certain archetypal resonances alive. Certainly some of the themes in Tolkien’s Middle-earth writings are constants throughout the tales of all cultures. This is not surprising, given that his objective was to create a “mythology for England”. I have written on Tolkien’s themes, symbols and myths in my “The Song of Middle-earth – J.R.R Tolkien’s Themes, Symbols and Myths”. For example the quest of the hero and the stages of development of the heroic figure, so graphically identified by Joseph Campbell, are apparent in Aragorn. The tragedy of Turin Turambar, recounted in “The Silmarillion” and “The Children of Hurin” as well as in “Unfinished Tales” reflects themes of incest that occur in Northern mythologies as well as in those of the Greeks. The Creation myth appears in “Ainulindale” in “The Silmarillion” and a clearly worked eschatology is present throughout, reaching a partial demonstration in the fall of Numenor.

It was a certain curiosity and dissatisfaction that caused me to write “The Song of Middle-earth” in 1984-5. I said then that I thought that there was something greater, more significant, more meaningful than was on the printed page. Part of that derived from the depth that Tolkien himself had created. Gondolin, the origin of the eleven blades that appear in “The Hobbit” is mentioned by Elrond, and there are hints of an earlier time throughout, exemplified by the telling of tales from days gone by when Bilbo returns to Rivendell after the completion of the dwarves quest.

Part of my enquiry in “The Song” involved a consideration of “what had gone before”. AT the time of writing, the monumental twelve volume collection – “The History of Middle-earth” – had not been published. Indeed, “The Book of Lost Tales” was published as I was readying “The Song” for publication.

The dissatisfaction that I felt was with much of the (then) published literature about Middle-earth. With the exception of Carpenter’s “Biography” and “The Inklings” and Shippey’s “Road to Middle-earth” most of the writers and commentators had missed a vital point. I did not think that Tolkien’s work was ,erely derivative – that he had examined other mythologies and extracted tales, elements and themes and had plopped them into his creation. That to me was a simplistic approach and unflattering to the creator. Nor did I think that critical comparisons with the earlier greats of English and Europens liertature wholly productive. There was soemthing deeper and more meaningful to Middle-earth than that.

I decided to eschew the derivative approach and avoid, as much as I could, comparisons with other works and examine and analyse the Middle-earth works as they stood – alone. And the obvious starting point, and one which has received scant examination in the earlier literature, was myth. Tolkien had left for me, and for others, an abundance of clues- that he was creating a Mythology for England- and I began my examination from the point of view of myth and mythology.

Rather than examine the works as derivative from other mythologies, it became clear that the approach should be thematic – study the themes that are common to most, if not all, mythologies and ascertain what elements are present in Tolkien’s work. As the book showed, the elements are satisfied.

The starting point must be The Silmarillion, a difficult book to read and with which to come to terms. But it is essential to an understanding of the creation and development of the Tolkien cosmos, as well as being a history of the Elves in Middle-earth, and it establishes the framework within which is set the Third Age as portrayed in The Hobbit and The Lord of the Rings. Yet The Silmarillion gives hints of other writings and accounts that deal with the Matter of Middle-earth. Some of these accounts are collected in Unfinished Tales, and in this volume we find more detail of the acts of Tuor and of Turin, a background to the realm of Numenor, the Tale of Aldarion and Erendis, and much information about the Istari, the palantiri and the early history of the Third Age. For one interested in the stories, Unfinished Tales is essential. For the aficionado it provides a penetrating insight into the manner in which Tolkien worked.

As I have said, when “The Song” was being prepared for publication, Lost Tales I was published. I made the following observations at that time which, with the bebenfit of hindsight, still are valid.

The Book of Lost Tales I comprises a part of what may be called a ‘protoSilmarillion’. Most of the ingredients of the tales of The Silmarillion are present, although it is obvious, both from the Tales themselves, and the notes by Christopher Tolkien, the editor, that the Tales underwent many fundamental changes before they became The Silmarillion. But Lost Tales I is, in my opinion, almost as significant as The Silmarillion in that it indicates that it was always Tolkien’s desire to create a Mythology for England. To give even greater credence to his intention (as if we needed more than the confessed desire of the writer), the manner of the telling of the Tales is significant. Eriol, a traveller from Middle-earth (or The Great Lands), comes to the Isle of Tol Eressea and in his travels in that land comes to a dwelling which is, in some respects, a forerunner of Imladris in Middle-earth. During his sojourn he requests and is told tales of early Arda. Most of the tales are told in a common-room before a Tale-fire which is ‘a magic fire, and greatly aids the teller in his tale’.  The tales are told by Lindo, Rumil and Gilfanon, Elvish inhabitants of Tol Eressea. Now the significance of the setting is that the Tales are recounted orally, and indeed are so written that they have a lyric and rhythmic quality when read aloud.

Thus, in introducing his myth, Tolkien resorts to the oral or bardic tradition of story-telling, a feature of mythological tale-telling that predates Homer. Apart from the themes of the cosmological myths that comprise Lost Tales I, the whole cycle is distinctively myth oriented and is a clear indication of Tolkien’s desire and intention. Christopher Tolkien gives us tantalising hints of things to come in later publications, but perhaps most interesting is the reference to Aelfwine of England. Aelfwine is another realisation of the character Eriol.

 Later, his name changed toAelfwine (Elffriend), the mariner became an Englishman of the ‘Anglo-Saxon period’ of English history, who sailed west over the sea to Tol Eressea – he sailed from England out into the Atlantic Ocean; and from this later conception comes the very remarkable story of Aelfwine of England, which will be given at the end of Lost Tales. But in the earliest conception he was not an Englishman of England: England in the sense of the land of the English did not exist; for the cardinal fact (made quite explicit in extant notes) of this conception is that the Elvish Isle to which Enol came was England that is to say, Tol Eressea would become England, the land of the English, at the end of the story.

 Apart from the very method of tale-telling, the major themes that I have examined in The Silmarillion are present, as one would expect, in Lost Tales. Certainly some major changes in plot as well as changes in matters of detail have occurred. But this too is consistent with the development of myth. The tales of myth are never constant, and there is no one ‘authorised version’ (even the Bible has its Apocrypha). Rather, as I note later, the tale-tellers vary, refine and embellish. But the constant ingredient is the basic theme, and certainly the themes that Tolkien propounds and illustrates do not change.

The Silmarillion, Lost Tales and, to a degree, Unfinished Tales set the stage for the drama at the end of the Third Age recounted in The Hobbit and The Lord of the Rings. The mythology is complete and the questions that have been bedevilling readers for the last forty or fifty years may could finally be answered. But I believe that the main inspiration for the questions and the curiosity that readers have for Middle-earth lies deep in the realms of myth. Because the Middle-earth saga was conceived as a mythology the reader, perhaps only subconsciously, recognises myth as the sound of a far-distant trumpet echoing through the mind. Can the reader, perhaps, recognise within his own experience the desire for a subcreated realm of faerie that is as meaningful to him or her as were the great tales that rang through the rafters of the mead halls of early England and the Viking lands, or which were majestically and sonorously intoned by Homer sitting by the tale-fire on an evening in ancient Greece.

Perhaps that ‘desire for dragons’ that we all have is now realised in Tolkien’s created mythology for England.

But is there more than mythological depth that allows us to recognise many of Tolkien’s characters and description, albeit vaguely? What is it that transports us back to that first reading so vividly and completely. The archetype may provide an answer – the wise old man, the Lady in the Wood, the dark stranger are all recognisable.

Without heading too deeply into the area of psychoanalysis, some of these issues are dealt with in an excellent and amusing work entitled “The Individuated Hobbit – Jung, Tolkien, and the Archetypes of Middle-Earth” by Timothy O’Neill (Houghton Mifflin 1979) The book provides a provocative and highly original explanation for the phenomenon of Tolkien’s works on the modern imagination. Correlates between Carl Jung’s theory of the collective unconscious and Tolkien’s mythology for Middle-Earth. O’Neill points out case after case of how the themes and characters of The Lord of the Rings closely parallel’s Jung’s archetypes, and how the entire narrative can be read in Jungian terms as the central human struggle for what Jung called individuation – the healthy realization of the self. 

O’Neill was in the military when he first came to Tolkien and then was a professor of Engineering Psychology at West Point – hence his reference in a passage that follows to “Othello’s trade”. He sets out his purpose as follows:

The real power of Tolkien’s world is as much in form as in content. The difference between myth and a story is just that: a story becomes myth (or, in diminutive form, “fairy tale”) when a certain form is imposed on it. What that form should be is the subject of this book. The most immediate hallmark of that form is the degree to which it evokes images in the reader – images that are in harmony with the common psychological heritage of all Man.

 What I am really suggesting in these pages is that there are two kinds of reality: the objective reality of personal experience and perception, which we call consciousness, and the subjective reality which is outwardly directed. The first is practical, demonstrative, and concerned with outward-looking energy and social reality. The second is inward-looking, symbolic, and profoundly affected not only by Man’s day-today encounters with the world, but also by the collective experience of Man through the ages. The power of enchantment in Middle-earth is not to be found in this outward-looking consciousness, but is rooted in a deeper, far more ancient part of Man: a seldom-glimpsed realm “where the shadows lie”

 Just how this happens has, I think, escaped the critics and cultists. There have been detailed explorations of odd place names, exhaustive searches for obscure source and mythological parallel – for the “meaning” that Professor Tolkien assured us repeatedly was not there. To the extent that there is no allegorical meaning or hidden satire, I am in agreement with the author. But meaning comes in various disguises, and if plot and content are to be taken at face value and simply enjoyed, then the reasons for the attractions must be found in form. The meaning, if meaning is the correct word, of this source of attraction is unique for each reader; each man’s psyche is his own, despite strains of commonality, and will make of the charms and joys of Middle-earth what it will without the slyness of satire or the blunt instrument of allegory.

 My purpose is to demonstrate that the framework of Tolkien’s world is truly in harmony with “real” myth and fairy tale, that they are woven of the same strand of human psychology. The common denominator of all such expression is to be found in the theoretical framework of analytical psychology – in the concepts of the collective unconscious and in the search for Self-realization. This is the vast complex perspective of Carl G. Jung and his inheritors, a set of theories only dimly grasped by most psychologists and frequently (if unfairly) dismissed as nonempirical, mystical, and nearly incomprehensible. Although the impact of Jungian theory is considerable- more in art and literature than in psychology – its delicate mechanics (what we will call its “constructs”) are hardly even addressed in introductory psychology texts. It is this obscurity which has, I think,caused its applicability to Tolkien’s work to elude readers. I hope to correct this oversight.

O’Neill’s book is thorough but is not without amusement and a certain whimsy. The following passage discusses the archetype of the dragon and the encounter between Smaug and Bilbo:

But Bilbo is not through spelunking – ahead lie the Lonely Mountain and a far more formidable foe than wretched Gollum. Bilbo must now earn his title of burglar – or “expert treasure-hunter,” as he would doubtless prefer to be called – by dickering with Smaug the Mighty, “greatest and chiefest of catastrophes.”

 The dragon is a common symbol in the mythologies of a variety of times and cultures. In form, it is a fusion of serpent, bird, and other animals, and I cannot resist digressing for a few paragraphs in honor of this fantastic beast and its importance in understanding the imagery of the psyche.

 The winged snake is encountered in odd places. The medical profession in this country has embraced the caduceus as its symbol. This is actually an error- the proper symbol, and that which is used elsewhere, is the staff of Asklepios, a stick about which is entwined the single serpent. I shall not bother with the mythological basis for this emblem, since it does not influence our present concerns; but the caduceus, whether it is appropriate for the medical profession or not, gives us a hint about winged snakes in general. The caduceus is the winged staff of Hermes, the Greek god who served as messenger and patron of travelers. He is also the intermediary between gods and the underworld; unifier of light and darkness, his common symbol being the phallic berm placed at crossroads. He is also the guide of dead souls, which is not encouraging for patients whose doctors embrace his staff. The symbolic nature of the caduceus is fairly straightforward: the serpents are chthonic, earthy, close to the underworld, suggestive of Man’s lowly phylogenetic origins. The wings reflect the soaring soul of Man, the consciousness that sets him apart from his scaly and furry forefathers. The central staff binds the two together- mating snakes, the instinctual substrate, flying bird, the sunlit potential of consciousness.

 The union of opposites is thus an essential part of such figures, among which we must place the dragon. Those familiar with mythology will point out that the Serpent of Midgard, who gnawed for ages at the roots of the Norse world tree Yggdrasil, was a “worm”: creeping and wingless. Remember, however, that he was compensated (as was the rest of the complex Norse world) by the eagle that perched in the top branches of the tree. The two symbols are not yet fused, and carry on no more than a spirited dialogue through the good offices of a squirrel whose fate it is to scamper up and down Yggdrasil’s loftiness from one to the other until the day of Ragnarokk.

 But Smaug the Mighty is a full-fledged (should one say “fledged”? His wings are batlike and featherless) fire-drake, long of tooth, broad of wing, bad of breath, and shudderingly articulate. Tolkien, for some reason which will remain unguessed, was very nonevaluative in his general treatment of dragons. The worms of The Silmarillion are a pretty grim lot, true; but then there is little frivolity about that work, composed of the tear-soaked chronicles of the Eldar’s trials in Middle-earth. I have already made clear to the reader that I am not impressed by the Elves’ studious garment-rending and handwringing Had they bothered to stop and talk for a few moments with any of the dragons set against them, they might have found entertainment enough to offset the confounded eternal weariness of the world. When Tolkien removes his Elvish persona and confronts dragons as the plucky hobbit or the sturdy yeoman-farmer, worms fare better. Chrysophylax Dives is merely living up to his miserly name, and doing so with wit, gusto, and a pinch of pathos. Smaug is certainly not to be trifled with, and admittedly dealt rather summarily with the Dwarves in the time of Thrain; but he is older now and perceptibly more mellow, at least willing to chat for a while before belching napalm and ending meaningful dialogue. And if he is greedy, well, that is what dragons are supposed to be; we cannot blame him for that, nor expect altruism of a fire-drake any more than empathy from a weeping crocodile. I really find Smaug altogether more worthy of sympathy than some hobbits – Lobelia Sackville-Baggins would have smitten the pesky lizard with a furled umbrella and sent him off whimpering. But perhaps after all pestiferous and acquisitive relatives are more likely to interrupt our serenity in contemporary times than thundering dragons.

 Bilbo is terrified. Sting and Ring are hardly more than lucky charms in the great treasure cave, not proof against the fearful flamethrower. Smaug is what we of Othello’s trade call an area weapon: precise location of the target is not required, nor is fastidious marksmanship necessary for good terminal effect. But Bilbo has guts that belie his species’ reputation. None of the Dwarves, not even the venerable, muchdecorated Thorin Oakenshield, who proved his mettle in the Goblin Wars, has volunteered to help him burgle treasure with the dragon so near. As he treads the tunnel coming ever nearer to the uninviting red glow the “least Tookish part of him” wavers, wishing yet again for the comfy hole at Bag End.

This is the persona (the “good decent hobbit”) railing impotently at the anima (the Tookish part, personified as the great Belladonna, from whom he has surely inherited the propensity for disturbing sleeping dragons); but the objections are too little·and much too late. He is committed to the path of Self-realization, like it or not. In fact, the controlled social mask is already slipping away, no longer supported by the need to maintain a reputation for the neighbors. The nature of Bilbo’s journey across the landscape of the psyche is revealed by his reply to Smaug’s inquiry: “Who are you and where do you come from, if I may ask?”

 “You may indeed! I come from under the hill, and under the hills and over the hills my paths led. And through the air. I am he that walks unseen.”

 Over hill and under hill, indeed; Bilbo is too modest (if that is possible). “I am the friend of bears [a reference to Beorn, the theriomorphic figure we will discuss in more detail later] and the guest of eagles. I am Ringwinner and Luckwearer….”

This is a complex and pregnant sort of name. It traces his path through conscious and unconscious (over hill and under hill) that has led him this far; establishes his foundation in both worlds (“friend of bears”- i.e., chthonic, earthy, bound to the animal shadow, the instinctive foundation of the psyche; and “guest of eagles”- one who may also soar at will in the light of consciousness). He glories in his new position as pivotal figure in the drama, the link between worlds (Ringwinner) and the key to fortune (Luckwearer) by possession of the magical transcending treasure.

 But Bilbo succumbs to a near fatal weakness at this critical point. He has in the euphoria of the moment reveled too thoughtlessly in Belladonna’s triumph, ignored the conscious part of him, which would have been more cautious and circumspect in talking to dragons. Smaug is sure-footed in the dark world, he has dwelt there long; Bilbo is a stranger in the perilous realm, and he has barely stepped into it before the incautious foot is thrust in his mouth, tipping off the wormto dangerous details of the plan. “Thief in the Shadows!” snarls the beast, “my armour is like tenfold shields, my teeth are swords, my claws spears, the shock of my tail a thunderbolt,my wings a hurricane, and my breath death!”

 This uncouth outburst is one that reveals the volume and fury of the long-repressed libido, the surging, powerful energy that has for so long been denied conscious symbolization.Smaug has for the moment ceased to be a transcendental, transforming symbol and become pure animal power, untamed psychic drive. But transforming symbol is his major role still, the winged serpent, and like St. George, Bilbo must slay or outwit the beast to pave the way for the Self’s advent. He has already done this, though he has no way of knowing it, with his careless clues – Smaug is soon up and around for the first time in years, and Bilbo has provided the clue through the help of the magic thrush that allows Bard the Bowman to finish the monster and quench his flames. The black arrow pierces the gap in Smaug’s armor, and the treasure is now lying unguarded in the darkness under the mountain.

What O’Neill does is that he takes the themes of myth and weaves them into consciousness in a way that allows the reader to exclaim “of course!” But the starting point must always – always – be myth. For this is what Tolkien wrote and this was the object of his creation and he weaves his mythic creation into his narrative tales of the Third Age of Middle-earth.

Peter Jackson has assisted in the creation of a sub-myth. Part of that is to describe New Zealand (or parts of it) as Middle-earth and we immediately recognise Jackson’s re-creations of Tolkien’s creation. In some respects, Jackson has added extra layers to the myth and has re-visualised it, for reading Tolkien activates the mind’s eye. For that reason, making a movie adaptation is difficult and fraught with risk, because it may challenge an internal visualisation by the reader. For me, Jackson’s  movies work. There is a part in “The Return of the King” when the Rohirrim arrive with the dawn at Minas Tirith. Tolkien is probably at his best, and it is one of my favourite passages. It is a long way from “In a hole in the ground there lived a hobbit” to the Homeric majesty of the Ride of the Rohirrim.

“But at that same moment there was a flash, as if lightning had sprung from the earth beneath the City.  For a searing second it stood dazzling far off in black and white, its topmost tower like a glittering needle; and then as the darkness closed there came rolling over the fields a great boom.

At that sound the bent shape of the king sprang suddenly erect.  Tall and proud he seemed again; and rising in his stirrups he cried in a loud voice, more clear than any there had ever heard a mortal man achieve before,

Arise,arise, Riders of Theoden! 
Fell deeds awake: fire and slaughter! 
spear shall be shaken, shield be splintered, 
a sword-day, a red day, ere the sun rises! 
Ride now, ride now! Ride to Gondor!

With that he seized a great horn from Guthlaf his banner-bearer and he blew such a blast upon it that it burst asunder.  And straightway all horns in the host were lifted up in music, and the blowing of the horns of Rohan in that hour was like a storm upon the plain and a thunder in the mountains.

Ride now, ride now! Ride to Gondor!

Suddenly the king cried to Snowmane and the horse sprang away.  Behind him his banner blew in the wind, white horse upon a field of green, but he outpaced it.  After him thundered the knights of his house, but he was ever before them.  Eomer roder there, the white horsetail on his helm floating in his speed, and the front of the first eored roared like a breaker foaming to the shore, but Theoden could not be outpaced.  Fey he seemed, or the battle-fury of his fathers ran like new fire in his veins, and he was borne up on Snowmane like a god of old, even as Orome the Great in the battle of the Valar when the world was young.  HIs golden shield was uncovered, and lo! it shone like an image of the Sun, and the grass flamed into green about the white feet of his steed.  For morning came, morning and a wind from the sea; and darkness was removed, and the hosts of Mordor wailed, and terror took them, and they fled, and died, and the hoofs of wrath rode over them.  And then all the host of Rohan burst into song, and the sang as they slew, for the joy of battle was on them, and the sound of their singing that was fair and terrible came even to the City.”

Jackson’s rendering was brilliant and he added stuff that wasn’t in the text, but could have been. The scene where Theoden rides up the line of the assembles Rohirrim, touching their spear tips with his sword is sheer genius. My young companion at the premiere leaned over to me and said “someone has dreamed the same dream”

The apparent hopelessness of the task ahead – the phrase “ride now to ruin and the world’s ending” carrying echoes of Ragnarok and the eschatological myth also summon up the ntaure of sacrifice for a cause epitomised by Macaulay

Then out spake brave Horatius,
The Captain of the Gate:
“To every man upon this earth
Death cometh soon or late.
And how can man die better
Than facing fearful odds,
For the ashes of his fathers,
And the temples of his gods?”

There can be no doubt either that along with stereotyping, advertising uses its own archetypes and develops its own mythic backstories.  Although it is a blatant piece of commercialism a very clever “pre-flight briefing” as been developed by Peter Jackson and Air New Zealand. It is entitled “An Unexpected Briefing.” Enjoy.

Along with the book I reckon I might just grab some tickets for “The Hobbit”. They are on sale now and the movie opens on 12 December.

An International Criminal Tribunal for Cyberspace – Judge Stein Schjolberg’s Recommendation

At the 13th International Criminal Law Congress in Queenstown Judge Stein Schjolberg of Norway presented a paper on and the arguments for an International Criminal Tribunal for Cyberspace.

Stein Schjolberg is an extraordinary Court of Appeal Judge in Norway. He was appointed as a Judge in 1984 and as the Chief Judge of Moss Tingrett Court from 1994-2010. Until 1984 he served as a prosecutor and Assistant Commissioner of Police in Oslo.

Judge Schjolberg is an international expert on cybercrime, and one of the founders of the global harmonization on computer crime     legislation. He was a Fulbright-Hays Scholar at Stanford Research Institute (SRI International) in 1981-1982. In cooperation with INTERPOL he organized the First INTERPOL Training Seminar for Investigators of Computer Crime in Paris, 1981. Judge Schjolberg has served as an expert on cybercrime for several international institutions.

He has published widely on computer crime and cybercrime legislation, in addition to court technology issues. He was appointed by the National Center for State Courts, United States, as a member of the International Think Tank on Global Court Technology in 1999-2001.

Judge Schjolberg was in 2007-2008 appointed by ITU in Geneva as the Chairman of the global High-Level Experts Group (HLEG) on cybersecurity, including almost 100 experts from around the world. The HLEG published two reports in 2008, The Chairman´s Report and the Global Strategic Report on Cybersecurity. Judge Schjolberg was awarded the ITU Silver Medal, in recognition of his contribution as the Chairman of the HLEG.

Judge Schjolberg is the Chair of the EastWest Institute (EWI) Cybercrime Legal Working Group. This post is an outline of his September address. His website is Cybercrime Law. This note outlines Judge Schjolberg’s paper

The Need for an International Criminal Tribunal for Cyberspace

At the moment there is no recognised international substantive cybercrime law although the European Convention on Cybercrime (see below) is a start.  The difficulty is that several Governments, international organisations and vital private institutions in the global information of financial infrastructures have been targeted by global cyber attacks in the recent years.

These cyber attacks of the most serious global concern that intentionally cause substantial and comprehensive disturbance of critical communications and information infrastructure should be within the jurisdiction of an International Criminal Tribunal.  Other cybercrimes such as illegal access, illegal interception, data interference, system interference, misuse of devices, forgery, fraud and offences related to child pornography could also be included in the statute.  Those acts may be prosecuted domestically as well as internationally whenever the conduct is considered as cybercrime of global concern. Any intrusions upon religious or political values in cybercrime legislation is a matter that Judge Scholberg considers should be avoided.

Judge Scholberg considers

“the International Tribunal should have the power to prosecute persons committing or ordering to be committed the most serious violations of international cybercrime law, namely the following acts committed wilfully against computer systems, information systems, data, information or other property protected under the relevant international criminal law; by destroying damaging or rendering unusable critical communication and information infrastructures, causing substantial and comprehensive damage to or interference with national security, civil defence, public administration and services, public health and safety, or banking and financial services.”

International Initiatives

In 2010 four main working groups were established in order to make recommendations for new international legal responses to cybercrime.  The United Nations initiated a comprehensive study of the problem of cybercrime. The Twelfth United Nations Congress on Criminal Prevention and Criminal Justice in Salvador Brazil April 2010 recommended in the Salvador Declaration, article 42, to invite the UN Commission on Crime Prevention and Criminal Justice to convene an open ended intergovernmental expert group to conduct a comprehensive study on the problem of cybercrime as well as the response to it.  The recommendation was adopted by the Commission, and by the United Nations General Assembly in its Resolution 65/230.  This comprehensive study is to examine the topics “with a view to examining options to strengthen existing and to propose new national and international legal or other responses to cybercrime”.

On June 27^th 2010 the EastWest Institute established a cybercrime legal working group in order to advance consideration of a treaty or a set of treaties on cybersecurity and cybercrime.  The members are independent non-governmental global experts on cybersecurity and cybercrime.  The working group is to develop recommendations for potential new legal mechanisms on combating cybercrime and cyber attacks and develop a consensus building set of proposals related to international law.  The group had its first meeting in Brussels on March 1-2 2010.  To obtain the widest range of input it is desirable to include in such working groups the global private sector and industry in the process of establishing a global treaty or a set of treaties on cybersecurity and cybercrime.

The United States and the European Union established a working group in cybersecurity and cybercrime at the EU/US summit in November 2010.  The group is tasked with developing collaborative approaches to a wide range of cybersecurity and cybercrime issues. Among its efforts is advancing the Council of Europe Convention on Cybercrime, including a programme to expand accession by all EU member States, and collaboration to assist States outside the region in meeting its standards and becoming parties.

Commonwealth leaders at a meeting for Law Ministers and Attorneys General from 44 countries in Sydney July 2011 recommended that the Commonwealth Secretary establish a multi-disciplinary working group of experts.   The purpose of this group is to

“review the practical implications of cybercrime in the Commonwealth and identify the most effective means of international co-operation and enforcement, taking into account, amongst others, the Council of Europe convention on cybercrime, without duplicating the work of other international bodies”.

The Convention on Cybercrime

The 2001 Council of Europe Convention on Cybercrime was an historic milestone in the war against cybercrime and came into force on 1 July 2004.  32 States have ratified the Convention.  However, Russia has not signed the Convention and has made a statement that they do not accept all of its articles.  However by ratifying or acceding to the convention, States agree to ensure that their domestic laws criminalise the conduct described in the substantive criminal law section.

The Convention on Cybercrime is an example of a legal measure. Although of a regional nature it could well be that other countries might consider the possibility of acceding to the Convention or use the convention as a guideline or at least as a reference for developing their internal legislation and by implementing the standards and principals it contains in accordance with their own legal system and practice.

However the Convention, it should be remembered, is based upon criminal cyber conduct of the late 1990s.  New methods of conduct in cyberspace underpinned by criminal intent must be addressed by the criminal law.  Phishing, botnets, spam, identity theft, crime in virtual worlds, terrorist use of the internet and massive co-ordinated cyber attacks against information infrastructures must be considered.

Governmental and vital private institutions in the global information and financial infrastructure have been targeted by global cyber attacks.  In 2011 the UK Government was a target when cyber attacks were launched on Whitehall and the defence industry. Both the Canadian and South Korean Governments suffered global cyber attacks.  In Australia the computer system in the Parliament was accessed in March 2011 by global cyber attacks and the Prime Minister’s and several Ministers’ computers may have been compromised.   The European Union has been targeted by cyber attacks and the Commission of the European Union and in 2011 the EU External Actions Service became the victim of a large scale cyber attack that severally affected email systems.  The French Government experienced cyber attacks on the countries finance economy and unemployment ministry in 2010 and 2011 over a 2 month period before the G20 meeting and in private industry the UK and US Stock Exchanges have been the targets of global cyber attacks aimed to spread panic and leading global financial markets.  The parent company of NASDAQ in New York has been one of the victims and in conjunction with Wikileaks, global cyber attacks were launched against Visa, Mastercard and Paypal.

These are only a few examples that some countries demonstrate that critical information infrastructures maybe under attack.  The issue of cyber attacks and the nature of cyber crime and the threat to critical information infrastructure is not imaginary.  It is here and now.  Cyber attacks on sensitive national information infrastructure are rapidly emerging as one of the most alarming national security threats that may be faced by a State and are becoming matters of global concern.

Setting Up the International Criminal Tribunal for Cyberspace

Judge Scholberg has proposed a Tribunal to deal with criminal global cyber attacks against critical Government and private industry information infrastructures, or where such cyber attacks endanger peace.  He proposed one way that this could be achieved is by expanding the jurisdiction of the International Criminal Court whilst recognising that any such ratification would have to be accepted by China, Russia, and the United States to have any realistic effect.  He considered that some form of Tribunal is currently the only global alternative. It may be that in the future the global community could then try for a more permanent global court solution for cyberspace.

Judge Scholberg considered that under Chapter 7 of the United Nations Charter, the UN Security Council could establish an International Criminal Tribunal for Cyberspace for the investigation prosecution and sentencing for global cyber attacks.  He considered that the framework of the United Nations charter was the most effective means for this, given that it would be binding on all members of the United Nations.

There are precedents for such activity.  The Security Council asserted its rights, authority and jurisdiction based on the Charter when it established the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia. In the case of the International Criminal Tribunal for Cyberspace, the UN Security Council would have the authority to refer cases to it and could request an investigation.

Judge Schjolberg considers cyberspace the fifth common space after land, sea, air, and outer space.  There is great need for co-ordination, co-operation and legal measures among all nations.  Superintendance of behaviour with global consequences to information or information infrastructure is largely uncoordinated and limited to local or domestic law. Judge Scholberg considers that it is necessary to make the international community aware of the need for a global response to urgent and increasing cyber threats and acts of cyber warfare.

An International Criminal Tribunal for Cyberspace would be fully independent and would be established to ensure that the gravest global cyber attacks in cyberspace do not go unpunished.

Judge Schjolberg considered that the chamber of an International Criminal Tribunal for Cyberspace should consist of 16 permanent Judges all appointed by the United Nations.  These Judges could be divided between 3 trial chambers and 1 appeals chamber.  Judges would be appointed for a period of less than 4 years.

Another alternative may be that 5 of the permanent judges be appointed from each of the 5 veto holding permanent members of the United Nations Security Council.  He considered that the seat of the International Criminal Tribunal could be the Hague or Singapore or both.

Prosecution of International Cybercrime

The prosecutor would be a separate part of the International Criminal Tribunal for cyberspace and be responsible for the investigation and prosecution of the most serious cyber attacks or cybercrimes of global concern.  The prosecutor’s office should be independent not only of the Security Council, but also of any state or any international organisation or other organs of the Tribunal.  The prosecutor should not seek or receive instructions from any Government or from any external source but could be advised by the prosecutor’s advisory board that may consist of 5 prosecutors appointed from the 5 veto wielding permanent members of the UN Security Council.

Judge Schjolberg proposes another possibility. Perhaps the advisory board members could have the power of each to veto any indictments before the International Criminal Tribunal for Cyberspace. However, abstention should not be regarded as a veto.

Procedural matters would not be subject to a veto and the veto should not be used to prevent a decision by the prosecutor to open any investigation or to avoid discussion of an issue.

The prosecutor’s office would be assisted in the investigation of cyber attacks by global enforcement through co-ordination with Interpol and a global virtual task force.

The Global Assembly of Interpol has approved the establishment of the Interpol Global Complex for Innovation (IGCI) which includes a digital crime centre based in Singapore.  It is expected to go into full operation in 2014 and to employ a staff of 300 people.

The Interpol Digital Crime Centre (IDCC) would be active in 3 main areas – cybercrime investigative support, research and innovation and cybersecurity.  The IDCC is expected to

“serve as a global hub for cybercrime issues, co-ordinating with national cybercrime investigators and authorities in Interpol’s member countries and with private partners in the technology industry.  The IDCC will bring all affected groups together to generate innovative solutions leading to the ultimate goal of creating a secure cyber world”.

In addition the prosecutor’s office would have the power to seek the most efficient assistance from experts in a global virtual task force established with key stake holders in the global information and communications technology industry, the financial services industry, the private sector, non-governmental organisations, academia and global law enforcement through Interpol.  Experts could be sourced from Google, Facebook, You Tube, Apple, Microsoft and similar organisations.  The global virtual task force should work together in a strong partnership to co-ordinate integrate and share information for the prevention and effective combating of global cybercrimes and deliver real time responses to cyber attacks.  Their goal should be to ensure that all global means and resources available are used to prevent identify and take real time actions against cyber threats.

Conclusion

Judge Schjolberg’s proposals are an example of the incremental growth of international institutions designed to deal with conduct that has a global impact. It seems that there is a recognition of the problem by the international community. Judge Scholberg’s proposed solution is on the table. We await further developments or proposals with interest.