Facebook contempt trial begins tomorrow
13 June 2011
Tomorrow sees the beginning of a contempt of court prosecution against a juror who allegedly communicated on the social networking site Facebook with a defendant who had already been acquitted.
The co-editor of this blog, Angus McCullough QC, is representing the Attorney General in the case; he is not the writer of this post. Isabel McArdle has already posted on the case – for background, see Silence please: A Facebook contempt of court – allegedly.
Deliberations of a jury must remain confidential. 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.
For more on contempt, including tips for avoiding it when blogging or tweeting about ongoing trials, see my post Avoiding contempt of court: tips for bloggers and tweeters.
As Isabel wrote in her post, 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 case has been generating some interesting commentary. The Times have apparently found over 40 examples of jurors posting messages on Facebook which could lead to contempt proceedings, and even found one user posting an online poll to assess the outcome of the case.
Christopher Kinch QC, chairman of the Criminal Bar Association told the newspaper that the situation is a “potential time-bomb” for the jury system, and “Left unchecked, we could move towards trial by X-factor-type online polling; or jurors might find themselves put under pressure by correspondents online.”
According to The Telegraph, the Lord Chief Justice Lord Judge is expected to issue “tough new” guidelines on internet use by jurors. That sounds sensible to protect the trial system, but also from the jurors’ perspective it is important that the rules are clear and unambiguous. That said, some jurors may still choose to ignore them. After all, the judge in this case gave a warning not to use the internet to research the trial.
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I’m appalled that this juror has been jailed for merely exercising her basic human rights of freedom of expression and association.
Further to the comment by MTPT – there is no doubt at all that jurors have discussed cases with their “nearest and dearest” and this has gone on since time immemorial. Generally, it makes no difference to the case because it goes no further.
The allegation against Friell is that she, whilst being a juror, contacted a defendant in the case. No matter how that is done it is wrong.
I am assuming that this “trial” is before the Queen’s Bench Division and that the Lord Chief Justice will sit with another judge? If those assumptions are right then I would have a serious concern,
The present LCJ has expressed quite stern views about this subject in speeches It would, in my respectful view, be preferable if he did not try this case. The LCJ is no longer President of the QBD and, at this stage, the matter should be left to the judiciary of that Division. Of course, in taking this view, I may be ploughing a lone furrow.
The elephant in the room – which I suspect the Court will be in no hurry to acknowledge, let alone confront – is that the use of Facebook to discuss jury deliberations differs from “bar room conversation” only in the availability of a (semi-)permanent record.
This case is being treated by the press as being about the medium used, not the alleged messages between juror and defendant. I fear it will be similarly treated by a court largely ignorant of how that medium – social networks – is actually used by the public.
There are plenty examples of previous cases where jurors disclosed in breach of the CoCA, and were punished for it. See, as one example which sticks in my mind, the Keith Scotcher case: http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd050519/scot-1.htm I see no great clamour for jurors to be denied access to mail services.
IMV, the inability, or unwillingness, of the (senior) judiciary to appreciate that social networks are generally used as an analogue of conversation (and not – as the law wishes to insist – as an analogue of publishing and distributing fliers) damaged the reputation of the Courts (and the LCJ!) in the recent privacy incidents.
Christopher Kinch’s comments start from the same assumptions. Why should “pressure from correspondents online” be any greater than pressure from friends and relatives? Does Kinch believe that prior to Facebook no juror ever discussed a case with their spouse, their children, their parents, or their friends?
Hopefully, the LCJ’s guidelines will avoid the trap of assuming it is the medium that is the problem, rather than the message, but his recent behaviour does not fill me with confidence.
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