Silence please: A Facebook contempt of court – allegedly

28 April 2011 by Isabel McArdle

A juror has found herself facing contempt of court charges, it being alleged that she communicated on Facebook with a defendant who had already been acquitted.

These types of proceedings can have human rights implications in two ways: Article 6, providing the right to a fair trial can be infringed upon by improper communicaton by jurors, and to a lesser extent, Article 10, which provides the right to freedom of expression may be engaged. As Article 10 includes a large number of circumstances where freedom of expression may be lawfully restricted, raising freedom of expression arguments to challenge the bringing of contempt proceedings would be very unlikely to succeed in these circumstances.

The juror, Joanne Fraill, was a member of a jury in a large and complex drugs case. She is alleged to have used Facebook to contact a person who had already been acquitted in the trial, while the jury was still considering verdicts in relation to the other defendants. She is also accused of having used the internet to do research relating to the trial. The acquitted defendant, Jamie Sewart, is also facing contempt proceedings, being accused of soliciting information from Ms Fraill about the jury’s deliberations while it was still considering verdicts in relation to some defendants.

The Attorney General has recently been granted permission to bring contempt proceedings against Ms Fraill and Ms Sewart on the basis of these allegations. The common law provides that deliberations of a jury must remain confidential: for instance, see Lord Hope’s comments at paragraph 94-107 on R v Mirza [1998] 1 AC 1118. Section 8(1) of the Contempt of Court Act 1981 provides,

… 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 the jury in the course of their deliberations in any legal proceedings.

These proceedings are at an early stage, but they highlight the growing problems in preventing juries from conducting their own research and communicating in ways which might improperly influence their decisions in an age of instant electronic communication and when a vast amount of personal data is publicly available. When such communication comes to light the results can (although will not necessarily) be very costly, with trials collapsing.

Angus McCullough QC is representing the Attorney General in this case. He is not the author of this post. 

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