Tuesday, 14 June 2011

Jurors and the internet: a prosecution for contempt of court

UPDATED 16th June:

It has been reported that Joanne Fraill, who was a juror in a high profile drugs case, will stand before the Lord Chief Justice in the High Court in proceedings brought by the Attorney-General (Dominic Grieve QC) for contempt of court.  The drugs trial, at which she was a juror, was abandoned at a reported cost in the region of £6m - see Telegraph 14th June.  It is alleged that she used Facebook to contact one of the defendants in the trial.  She is also accused of researching the case on the internet.    The relevant law is the Contempt of Court Act 1981 s.8.  This section was considered by the House of Lords in Attorney-General v Scotcher [2005] UKHL 36.

Concerns have been building for some time that some jurors appear to be either unable or unwilling to resist the temptation to research via
the internet the case which they are trying.  In Thakrar [2008] EWCA Crim 2359, a juror looked at the internet and found inaccurate information suggesting that Thakrar has been convicted in 2001 of "money laundering."  In Thompson and others [2010] EWCA Crim 1623 the Court of Appeal - Lord Judge LCJ, Hughes LJ and Bean J - considered six cases of "jury irregularity" and the court gave specific guidance (at para 12) to the effect that internet research was not permissible and that there must be no discussion on social networking sites. Lord Judge said:

"The reason is easy for jurors to understand. Research of this kind may affect their decision, whether consciously or unconsciously, yet at the same time, neither side at trial will know what consideration might be entering into their deliberations and will therefore not be able to address arguments about it. This would represent a departure from the basic principle which requires that the defendant be tried on the evidence admitted and heard by them in court."

The Thompson case was in July 2010.  In November 2010, Lord Judge delivered a speech in Northern Ireland entitled "Jury Trial" in which he expressed, extra-judicially, his views and thoughts about the jury and the use of modern technology.  In the speech, Lord Judge indicated that it might be necessary to go beyond what was said in the Thompson case:

"In the end the issue for discussion is whether, .... , we have to be yet more emphatic against the use of the internet, and whether nowadays the direction to the jury should be backed up with an express warning that breach of the order might constitute a contempt of court, and whether one day it may become necessary to deal with it as if it is, and then to treat it with the seriousness it requires, depending on the consequences to the ongoing trial."

It will be of considerable interest to watch how the Fraill trial progresses and, given the comments of the Lord Chief Justice in the Thompson case and in his Northern Ireland speech, to see the eventual outcome. 

Addendum 14th June:   The Times on 13th June claimed to have found 40 examples of public postings and statements from jurors.  These included a juror (trying a case of sexual assault) who used Facebook to ask her friends for advice about the verdict.  She was removed from the jury.  Other comments could be interpreted as a bias against the defence - e.g. one juror is said to have posted - "stuck in jury duty haha ... Defo Guilty."

Addendum 2 - 14th June:

Fraill admitted the contempt.  Another defendant (Sewart) was found guilty.  Sentence is to be passed at a later date.
See The Guardian 14th June 

Addendum 3 - 14th June:  The Manchester Evening News has more on the hearing in the High Court.   According to this report Fraill has been told that she faces jail whereas Sewart was told that her sentence would be suspended.    It appears that the actual sentences are to be handed down on Thursday 16th.  It will be especially interesting to see just why the judges think that there should be such a difference in treatment given that the charges arose from the Facebook "conversation" between the two of them. A further report on the hearing is at Daily Mail 14th June.

Addendum 4 -16th June:  Joanne Fraill was sentenced to immediate imprisonment for 8 months.  She had admitted the contempt at the hearing on 14th June.  Sewart was sentenced to 2 months imprisonment suspended for 2 years.  She did not admit the contempt but was held to be guilty.  One basis for this disparity in sentence was stated by Lord Judge - i.e. Sewart had been held in custody during the drugs trial (she was acquitted) and thereby parted from her child.  It is reported that Fraill has the care of 3 step-children so she will now be separated from them.  If the conduct constituting the contempt is considered there seems to be little or nothing to choose between the two women who engaged in the Facebook conversation.  The court acknowledged that Fraill was a person of previous good character, had not attempted to pervert the course of justice and there was no evidence that her internet searches (about the defendant Gary Knox) had been used to influence the verdicts.  See The Guardian 16th June  and also see the discussion in The Guardian by Joshua Rozenberg.  BBC 16th June.

What credit (if any) was given for Fraill’s guilty plea?  This is not clear.

A further question is just what was in the psychiatric report which the judges clearly had in relation to Fraill. In the absence of a reasoned decision we may not really get to know how, if at all, that affected the sentence.
Should these women have been treated so differently?  Fraill was the juror and she had taken the oath to deliver a true verdict according to law.  The court was clearly intent from the outset on "sending out a message" that breaches of the juror's oath and disregard of a trial judge's instruction will be met with a severe penalty.  This is surely the real reason underlying the difference in sentence handed down today.  Of course, on the point of "sending out messages", it should be equally necessary to send out the message that defendants or former defendants must not contact jurors.

See The Independent 16th June - reports that Gary Knox's appeal was dismissed with the judges stating that Fraill's misconduct had not undermined his defence. 

Addendum 5 - 20th June:   The court's reasoned decision is now available - see Attorney-General v Fraill and Sewart [2011] EWCA Crim B2 (16th June 2011). 


  1. I am sure the law will be clarified but what about the position where a Juror looks at the internet after the trial and finds something that casts doubt on the verdict? What are they to do? Close their mind to it for fear that they will be prosecuted?

  2. In Scotland there was the juror in the Tommy Sheridan case:

    Contacted Sheridan via Facebook after his conviction and said he was "innocent" and called the other jurors "pure b*******"

  3. @Julian

    I don't see how that would be relevant. If it is new evidence then there would potentially be a new trial via the usual processes - perhaps the Juror would be in the same place as a member of the public.

    AIUI, the direction is to only look at the evidence presented during the trial, and the Juror has to follow that process. Must be frustrating in a long trial :-).

    Why would they be prosecuted for reading the internet when they are no longer under a direction not to do so?

  4. I'm appalled that this juror has been jailed for merely exercising her basic human rights of freedom of expression and association.

  5. @ Lee - as I write this (15th June) - Fraill has not yet been jailed. However, according to the Manchester Evening News report, Lord Judge told her that she is most likely to be. It is reported that Lord Judge warned Fraill, "who had been "distraught" throughout the hearing, the court did not think there were any circumstances in which she could avoid an immediate jail sentence."

    Sewart denied contempt, but the judges ruled the case against her was "proved". However Lord Judge, sitting with two other senior judges, told her she would receive a suspended jail order. The judge said Sewart's own trial had led to her lengthy separation from her baby and it would not be in anybody's interest to "remove the mother from her child again".

    Actual sentences on Thursday 16th.

  6. @ Julian Summerhayes and @ Matt Wardman - I notice that Lord Judge has made it clear in the court's judgment that the confidentiality of jurors continues indefinitely after the trial concludes. (See last para. of the judgment). Of course former jurors will not stop looking at the internet for life! In the situation raised by Julian, the ex juror is in something of a difficulty since it is not clear with whom the concern could be raised without breaching the confidentiality. He/she could just "forget it." Perhaps the defendant might get an appeal or a referral from the CCRC. Not a very public-spirited course however. I think that the ex-juror would be best to seek the advice of a solicitor and then act on that. At least, it might offer some protection.