Saturday, 25 June 2011

Jurors and contempt; the limits of cross-examination; government seeks appeal in Shoesmith case

Joanne Fraill
More on the juror's duty and contempt of court:

The judgment in the juror contempt of court case is available - see Attorney-General v Fraill and Sewart [2011] EWCA Crim 1570 and [2011] EWCH 1629 (Admin).  It explains how the court arrived at a sentence of 8 months imprisonment for juror Fraill but a sentence of 2 months suspended for 2 years for non-juror and acquitted defendant Sewart.  The case is also interesting in  that the judges sat first as a Divisional Court of the Queens Bench Division to deal with the contempt matter and then became a Court of Appeal (Criminal Division) to consider and, in the event, dismiss the appeal by Gary Knox.  His appeal was considered to be "misconceived" - see paragraphs 27-51 of the judgment.

The Lord Chief Justice, who had previously made a speech about jurors researching cases on the internet, was clearly determined to send out a strong message that such conduct would not be tolerated.  His Lordship emphasized that the obligation of jury secrecy does not cease once the trial is over (see para 61).  It is an indefinite obligation.  A final point was that judges should not tell jurors that they are not to discuss the case until they retire to consider their verdict.  The correct approach is for the judge to direct the jury never to discuss the case unless they are all together, and in private, and further to direct them that whatever their discussion at any stage of the case, they will obviously keep open minds and not jump to conclusions until the evidence is completed and the summing up has been given.

See Crown Prosecution Service - Contempt of Court.  Except for certain urgent cases, prosecutions for contempt are brought in the Queen's Bench Division of the High Court.  Here is the law standing on its dignity and seeking to uphold the authority of the courts and the judges.  This was said to be the correct procedure in Balogh v St Albans Crown Court [1975] QB 73 - where the defendant had referred to the judge as a "humourless automaton" - the defendant no doubt discovered that he was right !   For other examples of contempts see "Contempt of Court: Greatest Hits."

Cross-examination in the Levi Bellfield trial :

Levi Bellfield
The trial of Levi Bellfield for the murder of
Milly Dowler resulted in his conviction.  During the trial, Milly's parents were subjected to cross-examination by Bellfield's counsel - Jeffrey Samuels QC.  The nature of this examination has been criticised and described as "cruel and inhuman" - The Guardian 24th June.   The Director of Public Prosecutions has said that the experience of the Dowler family has raised "fundamental questions" about the treatment of victims and witnesses - see Channel 4 News 25th June.   Lousie Casey, the Victim's Commissioner,said the it was appalling that they had to go through a court process where it must have seemed that they themselves were on trial - Telegraph 24th June.  Whatever view the jury took of the cross-examination is something we will never know since the jury room is secret - as the Friall and Sewart case emphasizes all too well.

Bellfield was entitled to have his defence put forward though it is notable that he did not testify himself.  (A defendant does not have to testify - the so-called "right to silence."  However, if he does not, he runs the risk that appropriate inferences will be drawn under the provisions of the Criminal Justice and Public Order Act 1994.  See Daily Mail 16th June 2011 .  Of course, we do not know whether the jury drew any conclusions from his failure to testify).  Cross-examination has legal and ethical limits - see, for example, Conduct of Work by Barristers Part VII - para.708 (Conduct in Court).  Writing in the New Statesman, practising solicitor David Allen Green considers this.  His article is well worth reading.  There has to be sound reason to believe that a witness has evidence to give which will be germane to the side calling that witness.  In the common law adversarial system of trial, the witness is examined by the party calling him or her and is then cross-examined by the other side.  The cross-examination is aimed at probing the evidence for weaknesses, inconsistencies and, sometimes, downright lies.  It is not the purpose of cross-examination to belittle or vilify the person or to unnecessarily reveal all the person's intimate and private life.  At all times, the trial judge has responsibility to ensure that examination of witnesses is conducted properly.

The Guardian 25th June - "Milly Dowler case: Victims' tsar to act following family's court ordeal."   The article emphasises the point that treating victims and witnesses badly will deter people from coming forward.  The Victims' Commissioner is to present a report in the near future to the Ministry of Justice which will contain examples of how victims and witnesses have been treated in recent times and will call for changes.

For a further excellent analysis of the Bellfield case- see Beneath the Wig - in which the author puts up a strong defence of the right of the defence to robustly test the case against them.

Subsequent to the conviction of Bellfield for murder, the trial judge (Wilkie J) dismissed the jury who were considering another charge against him - (the attempted abduction in 2002 of Rachel Cowles).  This was because of the huge amount of publicity which followed Bellfield's conviction for murder.  The Attorney-General is reported to be considering bringing contempt proceedings against news editors - see "Avalanche of Bellfield stories threaten to put editors in dock for contempt."

The Shoesmith case:

The government is asking the Supreme Court to grant leave for an appeal against the Court of Appeal's decision that Sharon Shoesmith was NOT unfairly dismissed - The Guardian 24th June.  Law and Lawyers considered this case in detail - here and here.

Addendum 30th June:  Bar Council stands firm on Bellfield trial backlash - Law Society Gazette 30th June.

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