CASE OF DALLAS v. THE UNITED KINGDOM
Remainder inadmissible;No violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Nullum crimen sine lege)
Aleš Pejchal;Guido Raimondi;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano
6. The applicant was born in 1977 and lives in Luton. 7. The applicant was summoned to attend jury service at the Crown Court on 4 July 2011. 8. On the morning of the 4 July the jurors were shown a video in relation to their service and were given verbal instruction from the court’s jury officer that they were not permitted to research their cases on the Internet or to research the defendants or any of the individuals involved in the trial. Notices in the jury waiting room contained the following warning: “You may also be in contempt of court if you use the internet to research details about any cases you hear along with any cases listed for trial at the Court ...” 9. The notices made it clear that contempt of court was punishable by a fine or by imprisonment. 10. The applicant was selected to serve on a jury in a trial of a defendant charged with grievous bodily harm with intent. The trial commenced that afternoon. When the jury were sworn, the applicant took an oath or affirmation that she would faithfully try the defendant and give a true verdict according to the evidence. 11. Before the case was opened by the prosecution, the judge gave a number of directions to the jury. These underlined the importance of deciding the case only on the basis of what the jury saw and heard in the courtroom. Two consequences were identified by the judge. The first was that they should not speak about the case to anybody. He continued: “The second consequence is a newer one: that you do not go on the internet. You have probably read in the last few weeks about a juror who did go on the internet; went on Facebook and severe problems followed for that juror. I am sure you will not want any of those. So, the rule is – and it is told to every jury – that not only do you not discuss it, but you do not go on the internet; you do not try and do any research of your own; you do not discuss it on Facebook; you do not tweet about it; or anything of that nature. So, simply, once you leave this room you do not talk about it or deal with it in any way with anybody. We ask you to observe what goes on in this room. The evidence has been carefully considered. It is put before you in a carefully considered way. That is why you are not to discuss it with anybody else or do your own research, or discuss it on Facebook – because it is carefully controlled ...” 12. The trial continued on 5 and 6 July 2011. On 5 July the trial judge allowed a prosecution application to adduce evidence of the defendant’s bad character. The disclosure gave details of a previous sentence for assault occasioning actual bodily harm. It was not disclosed that the defendant had also been charged with rape in respect of the same offence but had been acquitted. 13. On 6 July 2011 the jury retired to consider their verdict. At the end of the court day the judge sent the jury home to return on 8 July 2011. 14. After the court had risen, one of the jurors in the case informed the court usher that a juror, whom she identified as the applicant, had been on the Internet and had found out about the previous conviction and that it involved rape. The trial judge was informed. 15. On 8 July 2011, after hearing from the juror in court, the judge summoned the jury foreman, who confirmed that there had been some reference to the matter to which the juror had referred. The judge then called the applicant into court. He informed her of what had been said and that she should not say anything at that stage. He gave her the opportunity, which she accepted, of speaking to a barrister in order to take advice on the question of contempt of court. After discussion with the applicant, the barrister informed the court that the applicant’s position was that her behaviour regarding the Internet was not deliberate. She therefore claimed to have a defence to the allegation of contempt of court. The judge explained to her that the matter would be referred to the Attorney General and that there would be a police investigation. 16. The judge subsequently discharged the jury and the trial was aborted. 17. The police obtained statements from the eleven other jurors at trial. The statements showed that during the jury deliberations the applicant stated that she had conducted Internet research and that her research had showed that the previous conviction also included an allegation of rape. Most of the other jurors had reacted to this by making it clear that the applicant had introduced extraneous and impermissible facts into their discussion, contrary to the instructions and directions that they had been given. 18. On 26 July 2011 the police interviewed the applicant under caution. During the interview, the applicant explained what had happened at the commencement of the trial and set out her recollection of what the trial judge had said as follows: “The judge said ... that we should not look, we should not publish anything on Facebook, on Twitter, we should not tell anybody outside the court about the case ...” 19. She said that did not recall that the judge had instructed jurors not to do Internet research. 20. She explained that she had seen a newspaper article concerning the defendant on the Internet on the evening of 5 July 2011. When asked what she was doing on the Internet, she replied that, as she was Greek, she had wished to know the exact translation of the charge facing the defendant. She had therefore searched for “grievous bodily harm”. She had then wished to see how frequent such incidents were in Luton so added “Luton” to the search terms. The article concerning the defendant’s previous conviction had appeared in the list of results. She explained that her recollection was hazy but that she did not remember searching for the defendant by name. She admitted that she had informed the other members of the jury of the information she had found. She said that she was not aware that she had missed any element of the judge’s instructions and that she had had “absolutely no intention” of going against the instructions or directions of the judge. 21. The Attorney General subsequently applied to the Divisional Court for permission to make an application for an order of committal under Order 52 of the Rules of the Supreme Court (“SCR” – see paragraphs 45-46 below). The applicant was informed of the application by letter dated 3 November 2011. 22. On 29 November 2011 the Divisional Court granted permission to make a committal application. 23. On 2 December 2011 a claim form was issued by the Attorney General seeking an order of committal against the applicant for: “contempt of court in conducting Internet research on the case she was trying as a juror in the Crown Court and thereafter in disclosing the extraneous information she had obtained to other members of the jury.” 24. The grounds on which the applicant’s committal was sought were that “her acts created a substantial risk of seriously prejudicing and/or impeding the course of justice in the proceedings with which she was concerned.” 25. Reference was made to further details set out in a sworn affidavit by a legal adviser at the Attorney General’s office. In the affidavit, it was submitted that the evidence in the case demonstrated that the applicant: “deliberately and in breach of instructions given by the jury officer, a warning contained in a written notice, her jury oath or affirmation and directions given by the trial judge, (a) conducted internet research on the case she was trying, and thereby obtained extraneous information about the case, and (b) imparted that extraneous information to other members of the jury whilst the jury were in deliberation.” 26. In her position statement dated 5 December 2011, the applicant accepted that she had searched on the Internet for the words “grievous” and “Luton” while the trial was underway and that she had discussed with other jurors a newspaper report concerning the defendant. She did not accept a specific intent to impede or to cause a real risk of prejudice to the due administration of justice. 27. In a note on behalf of the Attorney General dated 9 January 2012, the test for contempt was set out as follows: “At common law, a contempt of court is an act or omission which creates a real risk of prejudice to the administration of justice, done with the intent of creating such a risk.” 28. The note went on to claim that the applicant’s Internet research and subsequent conduct in relation to it had created a real risk of prejudice to the administration of justice and had been done with the intent of creating such a risk. 29. In written submissions on behalf of the applicant dated 10 January 2012, it was submitted that the offence of contempt of court could be stated as follows: “Where a person knowingly does an act which he specifically intends to impede, or create a real risk of prejudicing, the due administration of justice ...” 30. On 19 January 2012 the application for committal was heard. Counsel for the applicant submitted that the key element that the prosecution had to prove was “specific intent”, that is intent to impede or create a real risk of prejudicing the due administration of justice. He referred to the Attorney General’s position that intent could be inferred from foresight of the consequences and indicated that, while that might be appropriate in some cases, it did not sit so easily with the kind of intent required in the applicant’s case. An exchange then took place between the court and counsel for the applicant, as follows: “[Court]: Can we get this down to the reality of the case. The Crown’s case is that your client deliberately disobeyed the order of the judge. Is that not the same as what you are saying? You disagree with it and you are going to submit to us why the Crown’s case is wrong, but if a juror deliberately disobeys the order if a judge, is that not contempt of court? [Counsel]: Certainly, yes. [Court]: The ‘deliberate’ is the point that matters. [Counsel]: Yes. Yes.” 31. The Attorney General was subsequently asked whether he accepted that in the context of the case he had to satisfy the court, to the criminal standard, that the applicant had deliberately disobeyed the order of the judge. He confirmed that he did. 32. At the conclusion of the evidence and submissions, and after the court had already adjourned, the judges returned to seek further clarification of the correct test for contempt of court. The following test was put to counsel by the bench: “It is a contempt in the context of jury misconduct within the jury room, for a juror deliberately to disobey the direction of the judge and create a risk of prejudice to the due administration of justice.” 33. The judge added: “What that removes is a specific intent in relation to the creation of the risk. The intent is directed at the deliberate disobedience.” 34. The Attorney General expressed himself to be content with the test proposed. Counsel for the applicant requested that the word “thereby” be added following “disobey the direction of the judge and ...”, in order to create a link between the two elements. The Attorney General fully accepted the proposed modification. Counsel for the applicant was pressed on whether he was content with a definition whereby the intent was the deliberate act of disobeying the order, which then had a causative link in creating the risk. It was noted by the judge that this was a slightly different test from the one counsel had earlier proposed. He replied that he was content with the proposed test, and added: “I am reacting as I stand. I hope I can venture to submit that actually, if this is the test, it is perhaps redefining an old law but it is new.” 35. On 23 January 2012 an order for committal was made. The Divisional Court summarised the applicant’s version of events as follow: “36. On her account, effectively, she came across the newspaper reference to [the defendant’s] previous conviction in the local newspaper in Luton by following a route from the word ‘grievous’ through to ‘Luton’ and ‘crime’ and in effect, somehow she stumbled across the newspaper entry.” 36. However, the court rejected her account, explaining: “37. We do not believe that the defendant did not seek information about [the defendant] on the internet. Her inability to remember this particular feature of the case, when she has a detailed recollection of so much else, was not credible. We do not believe that she could have just stumbled across the link to [the defendant’s] previous conviction in the way she described.” 37. The court concluded: “38. We have no doubt that the defendant knew perfectly well, first, that the judge had directed her, and the other members of the jury, in unequivocal terms, that they should not seek information about the case from the internet; second, that the defendant appreciated that this was an order; and, third, that the defendant deliberately disobeyed the order. By doing so, before she made any disclosure to her fellow jurors, she did not merely risk prejudice to the due administration of justice, but she caused prejudice to it. This was because she had sought to arm and had armed herself with information of possible relevance to the trial which, although not adduced in evidence, might have played its part in her verdict. The moment when she disclosed any of that information to her fellow jurors she further prejudiced the administration of justice. In the result, the jury was rightly discharged from returning a verdict and a new trial was ordered. The unfortunate complainant had to give evidence of his ordeal on a second occasion. The time of the other members of the jury was wasted, and the public was put to additional unnecessary expense. The damage to the administration of justice is obvious.” 38. It found that the contempt had been proved to the criminal standard. On sentence, the court explained that misuse of the Internet by a juror was always “a most serious irregularity” and that an effective custodial sentence was virtually inevitable to ensure that the integrity of the process of trial by jury was sustained. A sentence of imprisonment for six months was imposed. The judge noted that pursuant to rules on early release, the applicant would serve three months in prison. 39. Following the handing down of the judgment, an exchange took place between the applicant’s counsel and the bench. The applicant’s counsel sought clarity on the test for contempt of court, explaining: “I am concerned that the test that I was addressing – that we were addressing in preparation of this case – was a different test. We conducted the defence to a different test, and the reasons why it was a different test, I suggest, are threefold. First, the intention is different. Secondly, the risk has been diluted from ‘real risk’ – and, after all, ‘risk’ on the authorities simply means ‘a possibility of occurrence’ to ‘risk’. Thirdly, may I make this submission? This is the first occasion – I do this with some hesitation for I can find no authority – where there has been a contempt of court flowing from a judicial direction. ... It has always historically been the order which has attracted contempt, not the direction, and the idea that a judge gives directions to a jury in the summing-up which could attract contempt and imprisonment is, in my submission, a novel one. I therefore submit this question rhetorically: whether this reformulation that this court has applied in this case is consistent with the common law of contempt.” 40. The court retired to consider the matter before confirming that the appropriate test was applied in paragraph 38 of its judgment (see paragraph 37 above), and that it had been understood that applicant’s counsel had agreed to that test. Leave to appeal was refused. 41. The applicant applied for permission to appeal to the Supreme Court. She argued, inter alia, that the test of contempt of court reformulated by the Divisional Court was not consistent with the common law of contempt of court; and that the reformulation of the offence, after evidence had been led and final submissions concluded, was not compatible with human rights principles and in particular with Articles 6 and 7 of the Convention. 42. On 26 January 2012 the applicant’s petition to appeal to the Supreme Court was refused because the application did not raise an arguable point of law. In particular, the Supreme Court concluded that a suggested distinction between a “direction” and an “order” was not tenable since the meaning of each depended on the context and both could mean the same; and that the deliberate disobedience of a specific order of the judge not to use the Internet in connection with the case unquestionably amounted to contempt of court at common law. 43. From 23 January 2012 to 20 April 2012 the applicant was detained at HMP Holloway.