FOURTH SECTION
Application no. 38395/12
Theodora DALLAS
against the United Kingdom
lodged on 13 June 2012
STATEMENT OF FACTS
The applicant, Ms Theodora Dallas, is a Greek national, who was born in 1977 and lives in Luton. She is represented before the Court by Mr C. Parry, counsel practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 4 July 2011 the applicant was summoned to attend jury service at Luton Crown Court.
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 ...”
The notices made it clear that contempt of court was punishable by a fine or by imprisonment.
In the afternoon of 4 July 2011 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.
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, including their nearest and dearest. 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 ...”
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 ensuing disclosure involved 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.
On 6 July 2011 the jury retired to consider their verdict. At the end of the court day the judge called the jury into court and sent them home to return on 8 July 2011.
After the court had risen, the court usher was approached by another of the jurors in the case. That juror informed the usher that one of the jurors, 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 juror explained that as soon as the applicant started talking about it, the juror told her to “shut up”. She said that the other members of the jury were also unhappy about the applicant’s disclosure. The trial judge was informed.
Upon the jury’s return to court on 8 July 2011 the judge ensured that the juror and the applicant were kept apart and away from the rest of the jury. He advised counsel in chambers of the juror’s report. After hearing from the juror, the judge summoned the jury foreman, who confirmed that there had been some reference to the matter to which the juror had referred, but did not give further details.
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. The applicant was bailed unconditionally to return to Luton Crown Court on 29 July 2011.
The judge subsequently discharged the jury and the trial was aborted.
On 26 July 2011, after having obtained statements from the eleven other jurors at trial, 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 ...”
She did not recall that the judge had instructed jurors not to do internet research.
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 wished to know the exact translation of the charge facing the defendant. She therefore searched for “grievous bodily harm”. She 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 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 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.
By letter dated 27 July 2011 from the Attorney General’s Office, the applicant was informed that the evidence collected by the police would be passed to Treasury Counsel for formal advice. The Attorney General would then decide whether civil law proceedings for contempt of court ought to be instituted. The applicant was told that she need not return to Luton Crown Court on 29 July 2011, as she had previously been instructed.
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 “Relevant domestic law and practice”, below). The applicant was informed of the application by letter dated 3 November 2011.
On 29 November 2011 the Divisional Court granted permission to make a committal application.
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.”
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”
Reference was made to further details set out in a sworn affidavit by a legal adviser at the Attorney General’s office.
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.
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.”
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.
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 ...”
On 19 January 2012 a hearing took place. At the conclusion of the evidence and submissions, the court raised the question 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.”
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.”
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. It is otherwise not clear whether he agreed to the test proposed.
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.”
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.”
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.”
It found that the contempt was 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.
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.”
The court retired to consider the matter before confirming that the appropriate test was applied in paragraph 38 of its judgment, and that it had been understood that applicant’s counsel had agreed to that test. Leave to appeal was refused.
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 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.
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 the suggested distinction between “direction” and order” was not tenable.
From 23 January 2012 to 20 April 2012 the applicant was detained at HMP Holloway.
B. Relevant domestic law and practice
1. The rules on proceedings for contempt of court
The applicable procedure for contempt of court proceedings was at the relevant time set out in Order 52 RSC at Schedule 1 of the Civil Procedure Rules. Rule 1 of the Order provided in so far as relevant:
“(1) The power of the High Court or Court of Appeal to punish for contempt of court may be exercised by an order of committal.
(2) Where contempt of court–
(a) is committed in connection with–
...
(ii) criminal proceedings, except where the contempt is committed in the face of the court or consists of disobedience to an order of the court or a breach of an undertaking to the court; ...
...
then ... an order of committal may be made only by a Divisional Court of the Queen’s Bench Division.”
Rule 2 requires that permission be sought before an application is made to the Divisional Court.
2. Relevant case-law on contempt of court
(a) Attorney-General v Sport Newspapers Ltd [1991] 1 WLR. 1194
The case of Attorney-General v Sport Newspapers Ltd concerned the publication by a newspaper of details of the previous convictions of an absconded suspect in a murder investigation, despite a prior warning from the police that any such publication would be likely to prejudice future criminal proceedings. The Attorney General subsequently applied for the publishing company to be fined and the editor to be committed to prison for contempt of court.
On 24 May 1991 the Divisional Court dismissed the application. It found that the publishers and editor of the article could only be liable for contempt under the common law. A common law contempt was committed if there was publication of an article which caused a real risk of prejudice to the due administration of justice and it had been published with the specific intent to cause such a risk to the administration of justice. In this case, it had not been shown that the editor had that specific intention when he caused the article to be published. As a consequence, neither the publishers nor the editor was guilty of common law contempt of court.
(b) R. v. Schot and Barclay [1997] 2 Cr. App. R. 383
R. v. Schot and Barclay concerned proceedings for contempt of court brought against two jurors who had been identified by the jury as having declined to reach a verdict against the accused for personal reasons. Explaining the contempt proceedings that the jurors faced, the trial judge said:
“[I]n so far as those two jurors are concerned ... I want them to come before this court for the direct contempt that they have shown to this court and show cause why they ought not to be fined substantial amounts of money ... That is ... show cause why you should not be fined for the deliberate contempt you have shown to this court in wasting so much of court time and leading us into this situation.”
The judge subsequently found both jurors guilty of contempt, concluding:
“[A]ll I have to decide is having heard what the defendants have had to say and having taken account of what the jury did say to the court through their notes, I have no hesitation in saying that both defendants are guilty of a contempt of court because both of them in their own way have intentionally disrupted this entire trial by their refusal. Therefore, I hold them in contempt.”
The finding was later overturned by the Court of Appeal. The court pointed to a sequence of errors in the trial judge’s approach. On the test for contempt, the court explained:
“[C]ontumacious refusal to reach a verdict because of reluctance to judge another person, may, in an appropriate case, establish the actus reus of contempt, though it may be difficult or impossible to prove. The mens rea, namely an intention to impede or create a real risk of prejudicing the administration of justice, must also be proved ... This can be established by foreseeability of consequence. But the judge in the present case does not appear to have given any consideration to this, save to say ‘both of them in their own way have intentionally disrupted the entire trial by their refusal’. In the light of Barclay’s evidence that she did not want to disrupt the court’s process or be disrespectful towards the court, and Schot’s evidence that she wanted, or had tried, to reach a verdict, this is a difficult conclusion to sustain in the absence of any finding by the judge that he rejected that evidence ...”
(c) R v. Fraill and Sewart [2011] EWCA Crim 1570
In R v. Fraill and Sewart, the trial judge had directed a jury at a criminal trial as follows:
“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.”
Following acquittal verdicts in respect of one of the defendants at trial (Ms Sewart), and while the deliberations were continuing in respect of other defendants and charges, one of the jurors (Ms Fraill) contacted Ms Sewart on Facebook, a social networking site. They had a conversation over that site. It later emerged that Ms Fraill had also researched once of the defendants on the internet. Contempt of court proceedings were subsequently brought against Ms Fraill and Ms Sewart.
Ms Fraill pleaded guilty to contempt of court. In its judgment of 16 June 2011, the court noted:
“35. 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 [Contempt of Court Act] 1981 ... 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.”
Turning to sentencing, the court explained:
“53. 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.”
The court considered Ms Fraill’s conduct in visiting the internet repeatedly to be directly contrary to her oath as a juror and constituted a flagrant breach of the orders made by the judge for the proper conduct of the trial. Noting, in mitigation, that she had assisted in the investigation into contempt and had pleaded guilty at the earliest possible opportunity, the court imposed an order for immediate custody for a period of eight months.
COMPLAINTS
The applicant complains under Article 6 §§ 1 and 3 (a) of the Convention of a failure to particularise the offence until judgment was given and a failure to inform her promptly of the nature and cause of the contempt application.
Under Article 7 she complains that she was found guilty of a criminal offence on account of an act which did not constitute a criminal offence at the time when it was committed, referring in particular to the new test for liability formulated by the Divisional Court; the lack of clarity of the trial judge’s direction on internet use and the absence of any penal warning by the trial judge; and the legal distinction between an order and a direction.
Finally, she complains under Article 5 § 1 that, in light of the alleged violations of Articles 6 and 7 of the Convention, her detention did not fall within the lawful grounds set out in Article 5 § 1 (a) or (b).
QUESTION TO THE PARTIES
Did the act of which the applicant was convicted constitute a “criminal offence under national law” at the time when it was committed, for the purposes of Article 7 of the Convention, having regard to the test for contempt of court set out and applied by the Divisional Court in paragraph 38 of its judgment and the test outlined in previous domestic judgment judgments (see X. Ltd. and Y. v. the United Kingdom, no. 8710/79, Commission decision of 7 May 1982, DR 28, p. 77; and S.W. and C.R. v. the United Kingdom, 22 November 1995, Series A nos. 335‑B and 335‑C)?
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