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||Neutral Citation Number:  EWCA Crim 1570
||Case No: CO/3031/11
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE LAKIN
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE OUSELEY
MR JUSTICE HOLROYDE
Hearing dates : 14th June 2011
HTML VERSION OF JUDGMENT
Crown Copyright ©
- This is a troublesome case and we, must do our best to ensure, an exceptional case. It involves misconduct by a juror, Joanne Fraill, and one of the defendants, Jamie Sewart, during the course of a very substantial trial in the Crown Court at Manchester sitting at Minshull Street before His Honour Judge Lakin and a jury in the summer of 2010. Two previous attempts to conclude a trial had failed and in each case the jury was discharged. The third trial began in late May 2010. On 21 May Joanne Fraill was empanelled as a juror.
- This constitution of the court has sat as a Divisional Court to decide whether or not contempt of court has been proved, and then as the Court of Appeal Criminal Division, to decide whether any jury irregularities should result in the quashing of the conviction of Gary Knox, Sewart's partner.
- Gary Knox, together with Jamie Sewart, were tried with six other defendants, Francis Hunt, Anthony Grainger, Philip Meiring, Joanne Greaves and Gail Hadfield on a nine count consolidated indictment. Philip Berry was a police office who at the material time was suspended from duty. He pleaded guilty to count 5 on which he was jointly charged with Knox with conspiracy to commit misconduct in a public office. In summary, Berry provided confidential or personal information held by the Greater Manchester Police. He also pleaded guilty to a similar count in a different indictment.
- All the defendants, except Berry, were jointly charged on count 1 with conspiracy to supply heroin and on count 2 with conspiracy to supply amphetamines. On count 3 Hunt and Grainger were charged together with handling stolen goods (motor vehicles). Grainger had earlier pleaded guilty to this count. On count 4 Knox was charged with Meiring with being concerned in the supply of class A drugs. In count 6 he was charged with Berry with doing acts intending and intended to pervert the court of public justice. Effectively count 6 was an alternative to count 5. He was similarly charged in count 7, with attempting to deter police investigation of his criminal activities. In count 8 Jamie Sewart was charged with possession of class A drugs with intent to supply. In count 9 Hunt was charged with supplying class B drugs, as an alternative to his alleged involvement in count 2.
- These different counts in the indictment provide a sufficient nature of the criminality alleged against this group of defendants. Effectively there were two strands: the first, involvement in a major enterprise to supply dangerous drugs, and the second, the linked activities of and with a corrupt police officer, and an attempt to corrupt another police officer, in order to advance the drug related activities. So far as Knox was concerned, the essence of his defence was that he was the victim of rather than a participant in police corruption. He had been a high profile criminal (and all his previous convictions were before the jury) and a member of serious criminal gangs involved in the supply of drugs, on a major scale. All that, however, was in the past, and the police locally were deliberately seeking to incriminate him in offences of which he was innocent.
- The prosecution case was opened by the Crown on 26th May. The judge gave the jury an unequivocal direction that they must not use the internet. He directed them "you will make your decision about this case based solely upon the evidence which you hear during this trial, in this courtroom and upon nothing else. Most of us these days have access to the internet, it contains lots of fascinating information, some of about the criminal justice system and some it about specific criminal offences. If you do have access to the 'net, members of the jury, please do not go on the 'net during this trial to explore any issues which may arise. That would be wrong. As I have said, you must base your decision in this case solely on what you hear in this courtroom and upon nothing else". He also told them that they must base their decision, "solely on what you hear in the courtroom and upon nothing else." This direction was repeated from time to time throughout the trial. No juror could have been in any doubt precisely what the direction was, and precisely what it meant, and indeed it has not been suggested that Joanne Fraill did not appreciate that references to the internet were prohibited. It is equally clear that none of the defendants, including Jamie Sewart, can have been in any doubt that they should not contact or communicate with any member of the jury
- The Crown's case concluded on 30 June. The defence case began on 2 July. It finished on 19 July. After closing speeches and summing up, the jury retired to consider their verdicts on 28 July. It is worth noting, perhaps in passing, that following this lengthy and complicated trial, no criticism was directed at the careful summing up prepared by Judge Lakin.
- On 29 July the jury found Greaves and Hadfield not guilty on count 1, Hunt not guilty on count 3, Knox guilty on count 5 and Sewart not guilty on count 8.
- On 30 July Grainger was found not guilty on count 1. On 2 August Sewart was found not guilty on count 1, and Knox, Meiring, Sewart and Greaves not guilty on count 2.
- Accordingly by the end of 2 August Sewart had been acquitted of all three charges against her. Knox had been convicted on count 5, acquitted on count 2, but verdicts in his case on counts 1, 4 and 7 were awaited. In the meantime Sewart continued to attend the trial, in effect in support of her partner, Knox.
- On 3 August the majority verdict direction was given. Thereafter Hunt, Knox and Meiring were acquitted of count 1, and Knox was acquitted of counts 4 and 7. That left the verdicts in relation to Hunt, Grainger and Hadfield on count 2, and the verdict against Hunt on count 9 outstanding for the jury's decision.
- While they were continuing in retirement, on 4 August, it became apparent to Judge Lakin that an unknown juror had been in Facebook contact with Sewart, commenting to the effect that she was pleased that Sewart had been acquitted because she was "with her the whole of the way". She also suggested that it was a pity that Sewart had not been in court when the verdicts involving Knox were announced because she was not have been able to see "the look of delight" on Gary's face.
- Judge Lakin was, of course, ignorant of the identity of the juror who had been in communication with Sewart. After hearing counsel he adjourned the jury deliberations for the day, and decided that he should inquire of each juror individually whether there had been any contact with any defendants. Joanne Fraill was the eighth juror. Having explained the issue, the judge asked:
"I have to ask you a question and it is this. Have you at any stage during the period from the retirement of the jury until today contacted or attempted to contact any other person, including any other juror, defendant or former defendant, i.e. a defendant acquitted of allegations made against them, by way of Facebook or email, about either your views of the evidence, your views of the jury verdict so far delivered and any reactions to such verdicts, or any other such matters. In short, I have evidence to suggest that Facebook contact has been made with Sewart. Have you made any such contact; …"
Fraill must have indicated silently in some way that she had, because the transcript continues "You have. I am going to ask that you are separated from the other jurors and I will then bring you into court a little later and give directions as to .." at which the juror interrupted:
"Can I just say I'm really sorry it wasn't meant to - "
The judge responded that at this stage he did not want to hear any explanation but that she must be separated from the other jurors. That was arranged. Like the first seven jurors, the remaining jurors denied that there had been any contact with any defendants. Fraill was returned to court. She was told that her behaviour was grossly improper, and she was released on bail. The judge later concluded that the jury as a whole should be discharged from returning the remaining verdicts.
- Subsequently a new trial was ordered on the counts where verdicts were awaited. When this took place, one of the remaining defendants was convicted and two were acquitted.
- The extent of the contact between Fraill and Sewart was investigated. After Sewart had been acquitted on all the counts affecting her, the first contact was made by Fraill. Accordingly to Sewart's unchallenged evidence, confirming her account in interview, Fraill sent an e mail message to her Facebook account saying "you should know me, I cried with you enough". Fraill had set up a Facebook account in the name of Jo Smilie. Sewart submitted a Friend Request to her at 18.30. Sewart responded, and saw that the Jo Smilie account named Joanne Fraill as a friend and showed a photograph of Fraill. Sewart immediately recognised this as a photograph of one of the jurors who had recently acquitted her, and realised that the message had come from the juror. Sewart then entered into a conversation with Fraill using the Facebookl instant messaging service. Sewart was thus aware that she was communicating with a juror. The conversation took place between 18.31 and 19.07.
- At 18.38 Sewart asked "what's happenin with the other charge??", to which Fraill replied "which" followed by "yours?", which was followed by Sewart answering "no the class b". This was followed by Fraill texting "cant get anywaone to go either no one budging pleeeeeese don't say anything cause jamie they could call mmisstrial and I will get 4cked toO". This led to the response from Sewart "I know I have deleted all the messages", followed shortly by Frail texting "awe fuck nos hw a didnt get caught wiv my nods and blinks hand signals…" Shortly afterwards Fraill commented "don't worry about that chge no way it can stay hung for me lol…" (that is laughing out loud) and "at least then yer all home n dry" and, in reference to the defendant, Gail Hadfield she texted "when we gsve that first on gail I was crying cause they held on to yours because l couldn't make her mind up" and … "ah will nearly fucking there…get all your property back too…" to which Sewart commented "I will be doin ha ha and trying for compo" and later "keep in touch Ill get you a nice pressie if I get anything out of um…".
- After the conversation came to an end Sewart began to have second thoughts or reservations about what she had done. We are inclined to think that her anxieties were inspired less by her concern about the integrity of the judicial processes than by the risk she had run by becoming involved in the conversation. Nevertheless, the following morning she contacted her solicitor, who spoke to counsel who had acted for Sewart in the trial, and counsel arranged for the judge to be given the information about what had happened.
- On 4th August at 15.01 Gary Knox telephoned Sewart from HMP Manchester. He was using the Pin Phone system, and his call was recorded. In a brief conversation she asked whether he had heard what had happened and she said they might all be charged again because a jury member had put something on her Facebook. She told him that it was being investigated and she (that is the juror) was going to be in contempt of court. Seward said it was not her fault because the juror had put something on her Facebook saying something like "bet you know who I am. I've cried for you enough" and that all she had replied was "Oh my God. Thank you so much". His response was that she was to speak to her "brief".
- When she was arrested Fraill provided the investigating officers with her own handwritten diary which was apparently written in anticipation of her being brought before HH Judge Lakin on 2 September. In short, therefore, it was prepared after she knew that she was at risk of proceedings for contempt of court.
- In the diary she explains that she had contacted Sewart because she "wanted her to know that I wished her all the best for the future and that she needed to make up lost time (irreplaceable) with her children and other members of her family". We know now that this was a reference to the fact that when Sewart was arrested she had a 10 month old baby, and that for 14 months she had been separated from her. In addition, the diary admitted that Fraill had conducted an internet search for Gary Knox and a number of other names which had been of importance during the trial.
"I can also honestly say I also searched for Gary Stewart [plainly an error for Gary Knox] which revealed that he had when he was a young man of 18 been shot himself. But I didn't dig deeper searches on the laptop were repeated throughout my service as a Juror – revealed the same, pretty much throughout the trial only finding item linked to previously tried which had to be set to a later date."
"I had admittedly searched names – involved in the trial and mentioned in evidence as I believed if their names had significance to the trial – the only searches which had revealed any info was I think those of seven defenders and a little of Phil corrupt cop Berry especially drugs items – some of which were found at ex PC's Phil Berry's home and of course his corrupt actions". "
- The significance of this material is that research on police computer systems did indeed reveal a report that Gary Knox had been shot in the upper body on 13 September 1995 while in a motor vehicle on Davenport Street in Bolton. The diary is a self-serving document. It asserts that Fraill is "wholeheartedly sorry" for what she had done. In relation to matters currently under consideration she said that she was "absolutely overwhelmed" at the reaction of Sewart when she was cleared of all charges and this led to her need to explain to Sewart that she wanted to express apologies from the jury box for taking so long in deliberation and that she had shared her tears from a distance. The diary ends with an apology to fellow jurors for "my stupidity, which could have led to a wasted 10 weeks, hopefully, having read my four books of notes, which I…" and the diary then runs out. Reminding ourselves for the need for caution against the contents of a self-serving statement, this is in truth an abject account of what she had done.
- Following her arrest, Fraill was interviewed under caution, and provided a "no comment" interview. However a prepared statement was read by her solicitor which recorded:
"At no time whilst as a juror have I agreed with any other person to pervert the course of justice. At no time have I positively or intended to act in a way that would pervert the course of the trial I was a juror of".
- When Sewart was interviewed under caution she denied making any initial contact with the first defendant, confirmed that she recognised Fraill as a juror, but denied that she had attempted to pervert the course of justice, commenting that she believed that she was doing nothing wrong because she had already been acquitted of the charges against her.
- From this evidence it is alleged that both Fraill and Sewart were in contempt of court. It is not alleged, and it has not been proved, that Sewart was guilty of perverting or attempting to pervert the course of justice by interfering with or seeking to interfere with the verdicts which the jury was still considering. We also note that although Fraill spoke in robust terms about how there was "no way" the jury would end up in disagreement, it has not been alleged, and she has not been convicted of perverting or attempting to pervert the course of justice. Where this offence is proved, sentence is at large, and on occasions sentences in double figures are imposed. For contempt of court, the maximum custodial term which may be imposed is two years.
Contempt of court
- "The law of contempt is of ancient origin yet of fundamental contemporary importance…Essentially a creature of common law, contempt has been and continues to be developed and adapted to meet continuing challenges to the 'supremacy of the law'. One result of this continuing development and concern to protect the many facets of the administration of justice is that there are many forms of contempt". (Attorney-General v Newspaper Publishing PLC  Ch 333 citing with approval a passage from Borrie and Lowe's Law of Contempt 2nd Ed (1983)).
- There is nothing new about the proposition that a juror may be in contempt of court. As long ago as the reign of Henry VII jurors were fined both for disobedience to the orders of the judge and also for discussions by one of them about the case they were trying with an external party. (See Bishop of N v Earl of Kent  Y.B.T. 14 Hen 7 pl. 4 (cited in Oswalds Contempt of Court 3rd Edition, 1910 at pg 67-68). The Solicitor General has shown us a number of decisions down the centuries which unsurprisingly confirm this principle. (Foster v Horden  2Leb 205; Langdell v Sutton  Barnes 32; Macrae  the Times November 19, more recently repeated in Schot and Barclay  2 Cr App Re 303).
- When the jury is empanelled, each member individually and personally, either on oath or by affirmation, promises to "give true verdicts according to the evidence". It is elementary that a verdict which is not given by each juror conscientiously in accordance with his or her assessment of the evidence called at trial constitutes a breach of that promise. As the court observed in Thompson  Crim 1623:
"The verdict must be reached, according to the jury oath in accordance with the evidence. For this purpose each juror brings to the decision-making process, his or her own experience of life and general knowledge of the way things work in the real world; that is part of the stock-in-trade of the jury process, and the combination of the experience of a randomly selected group of 12 individuals, exercising their civic responsibility as a collective body, provides an essential strength of the system. However the introduction of extraneous material, that is non-evidential material, constitutes an irregularity. Examples…include telephone calls into or out of the jury room, papers mistakenly included in the jury bundle, discussions between jurors and relatives or friends about the case, and in recent years, information derived by one or more jurors from the internet. "
- As we said, this is familiar territory, reflective of long established common law principles, now universally understood, which underpin the jury system. In every case the defendant and for that matter we add, the prosecution, is entitled as a matter of elementary justice not to be subject to a verdict reached on the basis of material or information known to the jury but which was not in evidence at the trial.
- Judges, no less than any else, are well aware of and use modern technology in the course of their work. The internet is a modern means of communication. Modern technology, and means of communication, are advancing at an ever increasing speed. We are aware that reference to the internet is inculcated as a matter of habit into many members of the community, and no doubt that habit will grow. We must however be entirely unequivocal. We emphasise, even if we do so by way of repetition, that if jurors make their own inquiries into aspects of the trials with which they are concerned, the jury system as we know it, so precious to the administration of criminal justice in this country, will be seriously undermined, and what is more, the public confidence on which it depends will be shaken. The jury's deliberations, and ultimately their verdict, must be based – and exclusively based – on the evidence given in court, a principle which applies as much to communication with the internet as it does to discussions by members of the jury with individuals in and around, and sometimes outside the precincts of the court. The revolution in methods of communication cannot change these essential principles. The problem therefore is not the internet: the potential problems arise from the activities of jurors who disregard the long established principles which underpin the right of every citizen to a fair trial.
- Information provided by the internet (or any other modern method of communication) is not evidence. Even assuming the accuracy and completeness of this information (which, in reality, would be an unwise assumption) its use by a juror exposes him to the risk of being influenced, even unconsciously, by whatever emerges from the internet. This offends our long held belief that justice requires that both sides in a criminal trial should know and be able to address or answer any material (particularly material which appears adverse to them) which may influence the verdict.
- Quite apart from contempt of court at common law, section 8 (1) of the Contempt of Court Act 1981 provides for the confidentiality of the deliberations of the jury.
"(1) …, it is a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings".
- This is a wide ranging statutory provision. The language is entirely clear. Subject to statutory exceptions provided in section 8(2), which do not arise here, the provision applies to everyone, equally, whether to jurors, or witnesses, or defendants, or to the media, or even, to the trial judge. In the statutory provision the word "solicit" is expressly used. It has a simple meaning. It is, as Lord Hope of Craighead demonstrated in R v Mirtza; Connor and Rollick  1AC 1118:
"Directed to persons who seek to obtain information from anyone else who is in possession of it".
As Pill LJ explained in Attorney General and Secerson and Times Newspapers Limited  EWHC (Admin) 1023:
"The words used in section 8 in relation to the "deliberations"; statements made, "opinions expressed", "arguments advanced", and "votes cast" appear to me to cover the entire range of a jury's deliberations when considering their verdict or verdicts in a case."
- As with contempt of court at common law, the objective is simple, reflective of another well understood foundation for the jury system. Just because it is well understood, we can deal with it very briefly. Every member of the jury is entitled in the course of jury deliberations to express his or her views with the utmost frankness and clarity. Beyond the obvious courtesy of the give and take of discussion, there are no degrees or limitations of the views which may be expressed. This process is essential to the way in which juries work towards and finally arrive at their verdicts. Our arrangements proceed on the basis that everything that has been said in the course of these discussions must remain confidential to the members of the jury. And because they remain confidential to the jury, and are known to be so, the exchange of frank views and opinions is encouraged. No one is inhibited by the thought that the expression of an unpopular view, and its source, may become public knowledge.
- The offence therefore is committed by (amongst others) by anyone who deliberately solicits information about any aspect of a jury's deliberations, whether in the course of the trial or after its conclusion.
- Fraill is, as she has admitted, guilty of contempt of court because as a juror she communicated with Sewart via the internet and conducted an online discussion about the case with her when the jury deliberations had not been completed and verdicts had not been returned. During the course of the discussion she provided Sewart with information about the state of the jury's deliberations. This conduct contravened the provisions of section 8 of the 1981 Act and disobeyed the clear and unequivocal series of directions given by the trial judge prohibiting such conduct. She was also guilty of contempt of court for conducting research on the internet into the defendants in the criminal trial in which she was sitting as a juror for the purpose of obtaining further information of possible relevance to the issues at trial.
- Sewart denied that she was in contempt. She was called to give evidence before us. In the course of her evidence she admitted that she knew perfectly well that during the communications between her and Fraill, that Fraill was a member of the jury which had acquitted her, and which was still considering the last remaining verdicts. The substance of the discussions have been set out in paragraphs 16 above. We shall not repeat them. It is clear, however, from the texts that she knew that what she was doing was wrong, and one of the earlier questions, "whats happenin with the other charge??" asked by her is not open to any other interpretation than intentional solicitation of particulars of the jury deliberations. The remaining part simply underlined that the subject of the conversation was the deliberations of the jury. We had no hesitation in finding that Sewart's conduct constituted a clear contravention of section 8(1) of the 1981 Act.
- We shall return to the sentencing decision after dealing with the appeal of Gary Knox.
- First, we shall deal with the renewed ground of appeal. This is misconceived.
- The allegation against Knox is encapsulated in the indictment which alleged conspiracy to commit misconduct in a public office, which stated that between January 2005 and July 2008 Knox conspired with Philip James Berry, a police officer, in order to commit wilful acts of misconduct in a public office particularly of the nature of the misconduct, the provision of confidential or personal information about local drug dealers held by the Greater Manchester Police.
- No one suggested that Berry was not a police officer at the relevant dates. However it was agreed by the Crown that during the period covered by the indictment, Berry was probably suspended from his duties as a police officer, and accordingly the case had to be approached as if he had indeed been suspended throughout.
- From these facts it was submitted that whilst suspended from duty Berry could not properly be described as the holder of a public office.
- For the purposes of this offence, it is clear that a serving police officer does hold a public office. No doubt it may be argued that on retirement or resignation, or dismissal, whatever his continuing obligations of confidentiality and the like in relation to matters which fell within his responsibilities as a police officer, a former police officer ceases to be the holder of a public office. However on the face of it a suspended police officer continues to hold his office. He is indeed suspended, not dismissed. He is not entitled to give notice of retirement or resignation, at any rate without the consent of the Chief Constable. Pending the final determination of the disciplinary process, he continues to be paid, and at the end of that process the suspension may be lifted.
- Undeterred by these, if we may say so, obvious considerations, and basing himself on Regulation 4 of the Police Conduct Regulations 2004 and the Home Office Guidance on Police Officer Misconduct, Mr Barraclough submitted that a suspended police officer does not hold public office for the purposes of this offence. We have considered the regulation and the guidance. That said, the notice of suspension is quite unequivocal that whilst suspended the police officer is "subject to Police Conduct Regulation" and he may not give notice of an intention to retire or resign. The Guidance itself notes that:
"During a period of suspension, officers are not empowered to carry out the duties of a police officer, although they remain subject to Police Regulations and the Code of Conduct and must comply with lawful orders and all instructions contained in force orders. A suspended officer is still subject to part 9 of the Police and Criminal Evidence Act 1984 and may be required to report to a senior officer at a nominated police station."
- There is nothing in the Regulations which suggests that a police officer who is suspended from duty ceases to be a police officer, or anything to suggest that what we may describe as the obvious conclusion that a suspended police officer continues to hold his office no longer applies, or indeed is undermined in any way. Throughout the period of suspension a suspended police officer is required to observe the police Code of Conduct. That is a duty owed to the public which remains in force throughout his period of suspension. He continues to hold this public office.
- We agree with the careful judgment of Judge Lakin on this issue as well as the observations of the single judge. This renewed ground of appeal is refused.
- We can now come to the fresh ground of appeal based on jury misconduct.
- Although some wide-ranging submissions might have been available to be deployed by any of the other defendants who were acquitted, we are required to focus on a single conviction on one count only of one defendant, Gary Knox.
- We have examined the Diary where the juror admits and describes the extent of her consideration of the Internet, and any relevant entries for Knox. It was not thought necessary for her to be cross-examined on the basis that she may have read more than she was prepared to admit, and it was equally not suggested that an examination of the relevant internet material on behalf of Knox would or might have produced any material prejudicial to Knox beyond that described by the juror, or put in evidence before the jury.
- As we have indicated, the Diary is a self-serving statement, and it would be wise for us to approach it with due caution. We would not necessarily assume that the confession would be full and complete, although reading it, that is how it appears. However in the absence of any further material, in this case we have reflected on the facts which were properly known to the jury as a result of evidence or admissions. As we have explained, the essence of Knox's defence was that he had been a serious criminal, with major convictions, but that he had given up that life and was the victim of a police conspiracy to convict an innocent man. As far as we can see there is nothing to suggest that the material considered by the juror was adverse to the defendant in the sense that it undermined this defence, or appeared to add weight to the prosecution case that the defence was nonsense. In other words, what the juror saw on the internet was for the purposes of the conviction of Knox, neither here nor there.
- The outcome might have been quite different if we had been required to examine convictions relating to any other of the defendants. That however did not arise.
- It is worth adding that although these considerations did not affect our reasoning, the conclusion is fortified by the overwhelming nature of the case against Knox on count 5, and by the further fact that the jury which convicted him of count 5, nevertheless acquitted him of the remaining allegations against him.
- Accordingly this appeal against conviction is dismissed.
- The starting point is simple. Misuse of the internet by a juror, or contravention of the contempt of court provisions in section 8(1) of the 1981 Act is always a most serious irregularity and contempt. In the context of a two year maximum custodial period, a custodial sentence is virtually inevitable. The sentence is intended to ensure the continuing integrity of trial by jury
- Quite apart from the broad considerations of sentences which must protect the jury system generally, the particular features of this defendant's actions are that although many verdicts had already been delivered by the jury, the verdicts overall were still incomplete, and the jury was discharged. Significant public resources were wasted. Any one involved was then put through the stresses and strains of another trial. For reasons we have explained, in the result it was not necessary for the only conviction to be returned by the jury to be quashed. That outcome had nothing to do with this defendant. Her conduct in visiting the internet repeatedly was directly contrary to her oath as a juror and her contact with the acquitted defendant as well as her repeated searches on the internet constituted flagrant breaches of the orders made by the judge for the proper conduct of the trial.
- In deciding the appropriate penalty for her contempt we have reflected on the mitigating features drawn to our attention by Mr Peter Wright QC on her behalf. Perhaps the most important is that the defendant was not involved in an attempt to pervert the course of justice. Throughout she was acting on her own initiative, without any oblique motive, and there is no evidence to suggest that she used her researches on the internet in order to exert improper influence on the verdicts of the jury. It is relevant that when the concerns of the judge were raised with each of the individual jurors none hinted at any concern. Without in any way condoning her actions in contacting Sewart after Sewart's acquittal, we carried out an examination of the psychiatric evidence to understand how her own background may have led her to wish to commiserate with Sewart's personal problems arising from the fact that a 14 month period in custody had separated her from her baby. That said, the text of the communications between them went much further than the expression of a compassionate concern.
- Finally, and significantly, it is a feature of this case that when the question of Facebook contact was raised with her in the Crown Court, this woman of good character, immediately and unhesitantly admitted what she had done and apologised for it. During the subsequent investigation she provided evidence against herself of her misuse of the internet throughout the trial. In effect therefore she acknowledged her guilt at the earliest possible opportunity, and for some months now she has been waiting for the present proceedings to take place, and to know what the consequences of her contempt will be. The effect of all these stresses and strains was virtually palpable here in court.
- There will be an order for immediate custody for a period of 8 months.
- This defendant's contempt of court would not have taken place if Fraill had not taken the initiative and contacted her. She responded to the contact made by Fraill in the euphoria of her own acquittal and release from custody, at the same time, knowing perfectly well that her contact was a juror and that conversation about the case was prohibited. Although her conduct was undoubtedly contumacious, she did not take advantage of the contact to make any significant attempt to influence this particular juror's thinking but rather went along with her comments.
- There is this further significant feature of the case. This defendant has spent 14 months in custody awaiting a trial at which she was subsequently acquitted. Of itself that might not have led us to suspend the order of committal, but in the present case it had these added features to which we made reference on Tuesday. The defendant was arrested when her baby was 10 months old. She was separated from her for 14 months. The baby went to live with her grandmother. Unsurprisingly she began to treat her grandmother as her mother. After 14 months, with the baby just about 2 years old, her mother returned to her. The bond between them had to be rebuilt. Another 11 months or so has gone by. If we did not suspend the effect of any custodial order we would once again separate mother and child. We do not believe that the administration of justice needs further vindication by the imposition of a custodial order which, by taking immediate effect would once again separate them.
- The order of the court will be a 2 month custodial term, but its implementation will be suspended for two years and, if nothing further is heard, at the end of that period it will lapse.
- Notwithstanding the clarity of the directions given to the jury on all the matters relevant to this case, we are concerned about two of the other directions given by judge Lakin to the jury at the beginning of the case.
- One of his directions implied that the obligation of jury secrecy might somehow cease to apply after verdicts have been reached and the trial concluded. We do not agree. For the reasons already given in this judgment, the confidentiality requires of jurors throughout the trial continues indefinitely after its conclusion. Our second reservation arises from the direction that Judge Lakin gave to the jury that they should not discuss the case at all until they retired to consider their verdict. Again, we do not agree. Obviously a jury cannot decide a case until it has heard all the evidence. But in principle if all twelve jurors are together, and they are on their own in the privacy of the jury room, they are not prevented, if they wish, from discussing aspects of the evidence which they have heard so far, or reflect together on matters raised in the case or by the evidence. 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.
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