Contempt of court - Misconduct of jury - Juror contacting former defendant during trial

Her Majesty’s Attorney General v Fraill and another; R v Knox: Court of Appeal, Criminal Division (Lord Judge CJ, Lord Justice Ouseley and Mr Justice Holroyde): 16 June 2011

The present case concerned the misconduct of a juror, F, and a former defendant, S, in the trial of the defendant K, and the question of whether that misconduct should result in the quashing of K’s conviction.

The Divisional Court decided whether or not contempt of court had been proved, and then, re-constituted as the Court of Appeal, Criminal Division, to decide the conviction appeal.

K was a high-profile criminal and a member of serious criminal gangs involved in the large-scale supply of drugs.

He was tried with six other defendants, including his partner, S, on a nine-count indictment, alleging conspiracy to supply heroin (count one); conspiracy to supply amphetamines (count two). K was jointly charged with B, a police officer who at the material time was suspended from duty.

B pleaded guilty to conspiracy to commit misconduct in a public office.

That offence concerned an allegation that B had provided K with confidential or personal information held by the Greater Manchester Police.

The prosecution conceded that B had been suspended from his duties as a police officer at the relevant time.

K’s defence was that he had been the victim of a police conspiracy to convict him.

Misconduct by a juror had resulted in the jury being discharged in two trials. At the outset of the third trial in May 2010, the judge gave the jury an unequivocal direction that they should not use the internet.

The jury found the defendant guilty of count five, acquitted him on count two, and verdicts on other counts (one, four and seven) were awaited.

S, who had been acquitted, continued to attend court in support of K.

Following a majority verdict direction, further verdicts were given and K was acquitted of counts one, four and seven.

Verdicts in relation to other defendants were outstanding.

While the jury was in retirement, the judge became aware that an unknown juror had been in Facebook contact with S.

Following an inquiry, it was ascertained that juror eight, F, had been in contact with S. It also transpired that F had conducted research on the internet into the defendants in the case.

In the course of that research, she had discovered that K had been shot when he was aged 18.

The jury was discharged and a new trial was ordered on the counts where verdicts were awaited, following which, one of the remaining defendants was convicted and two were acquitted. Both S and F faced contempt of court proceedings.

K appealed against conviction.

It fell to be considered whether reference to internet communication constituted contempt of court; whether S and F were guilty of contempt of court, and, if so, the appropriate sentences in the circumstances.

Consideration was given to section 8(1) of the Contempt of Court Act 1981. In respect of K, issues arose as to whether: (i) pursuant to regulation 4 of the Police (Conduct) Regulations 2004, SI 2004/645 (the regulations) and the Home Office Guidance on Police Officer Misconduct, B, having been suspended from duties at the relevant time, could be described as being the holder of public office; and (ii) the conviction was unsafe in the light of the misconduct by F.

The appeal against conviction would be dismissed.

It was settled law that a juror might be in contempt of court. It was a long-established principle of common law that the introduction of extraneous material, that was non-evidential material, constituted an irregularity in the jury system.

In every case, the defendant, and for that matter, the prosecution, was 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.

Quite apart from contempt of court at common law, section 8(1) of the act provided for the confidentiality of the deliberations of the jury.

The offence was committed by anyone who deliberately solicited information about any aspect of a jury’s deliberations, whether in the course of the trial or after its conclusion.

Modern technology, and means of communication, were advancing at an ever-increasing speed.

Reference to the internet was inculcated as a matter of habit into many members of the community, and no doubt that habit would grow.

However, it had to be emphasised that if jurors made their own enquiries into aspects of the trials with which they were concerned, the jury system, so precious to the administration of criminal justice, would be seriously undermined, and the public confidence on which it depended would be shaken.

The jury’s deliberations, and ultimately their verdict, had to be based - and exclusively based - on the evidence given in court; a principle which applied as much to communication with the internet as it did 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 could not change those essential principles.

Information provided by the internet, or any other modern method of communication was not evidence (see [27]-[29], [31], [34] of the judgment).

In the present case, F was guilty of contempt of court because as a juror she had communicated with S via the internet and had conducted an online discussion about the case with her when the jury deliberations had not been completed and verdicts had not been returned.

That conduct contravened section 8 of the act and disobeyed clear and unequivocal series of directions by the 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.

S’s conduct also constituted a clear contravention of section 8 of the act (see [35] of the judgment).

The sentence would be eight months’ imprisonment in the case of F, and two months’ imprisonment in the case of S, to be suspended for two years (see [57], [60] of the judgment).

R v Thompson [2011] 2 All ER 83 applied; R v Mirza; R v Connor [2004] 1 All ER 925 considered.

There was nothing in the regulations which suggested that a police officer who was suspended from duty ceases to be a police officer, or anything to suggest that what might be described as the obvious conclusion that a suspended police officer continued to hold his office no longer applied, or was undermined in any way.

Throughout the period of suspension, a suspended officer was required to observe the police Code of Conduct.

That was a duty owed to the public which remained in force throughout his period of suspension.

He continues to hold that public office (see [44] of the judgment).

There was nothing to suggest that the material considered by the jury had undermined his defence or appeared to add weight to the prosecution case.

Accordingly, the conviction was safe (see [49]-[50] of the judgment).

Per curiam: The Court of Appeal does not agree with one of the judge’s directions, which implies that the obligation of jury secrecy might somehow cease to apply after verdicts have been reached and the trial concluded.

The confidentiality required of jurors throughout the trial continues indefinitely after its conclusion.

A second reservation arises from the direction of the judge that they should not discuss the case at all until they retired to consider their verdict.

Obviously, a jury cannot decide a case until it has heard all the evidence.

But in principle if all 12 jurors are together, and 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, then 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 conclusion until the evidence is completed and the summing up has been given (see [62] of the judgment).

Peter Wright QC (instructed by BCL Burton Copeland ) for F; Anthony Barraclough (instructed by Keith Dyson) for S; Edward Garnier QC, solicitor general (instructed by the Treasury Solicitor) for the attorney general; Anthony Barracough (instructed by Keith Dyson) for K; Anthony Cross QC (instructed by the Crown Prosecution Service) for the Crown in K.