Monthly Archives: June 2011

“Trial by X Factor”? – Juror faces Contempt conviction after contacting Defendant through Facebook during Trial-UPDATED

In the first case of its kind, Joanne Fraill will today appear in the High Court in London to stand trial for Contempt of Court after she allegedly contacted and exchanged messages with Jamie Sewart, the defendant in a drug Trial in which she was a Juror. Sewart is also being prosecuted for contempt over allegations that she asked Fraill for details of the Jury’s deliberations.

The allegations, first made in April 2011, led to what Attorney-General Dominic Grieve referred to as the “collapse” of a major drug Trial at a cost of £6 million. He obtained permission to pursue Fraill for contempt after Sewart had already been convicted but whilst other defendants were still awaiting their verdict. Fraill is also said to have researched details of the defendants via the Internet, despite a direction from the Judge to decide the case solely on the basis of the evidence before the Court.

As a result, one of the Defendants in the original case is challenging his conviction as a result of the online conversation between Fraill and Sewart, alleging “jury misconduct”.

Contempt of Court is a serious offence, and one which is becoming more and more relevant to the online world after recent online media reporting of high-profile trials and the large-scale “civil disobedience” of thousands of Tweeters who revealed the identities of various celebrities (including a very high-profile footballer referred to as “CTB”) who had obtained superinjunctions to protect their privacy by restraining newspaper reports into their private lives.

Contempt has become a very live issue for social media sites and platforms after the recent conviction of the Daily Mail and The Sun for contempt after a photograph of the Defendant in a murder trial at Sheffield Crown Court holding a pistol with his finger on the trigger was posted on their websites on the first day of the prosecution’s case. Even though it was accepted that the posting of the photograph was a mistake, both newspapers were convicted.

Tweeting from Court is, however, now permitted in certain circumstances after a ruling made by the Lord Chief Justice following the bail hearing of Wikileaks founder Julian Assange and provided that the Judge hearing a case is satisfied that it will not interfere with the administration of Justice; it is never usually contempt to produce a fair and accurate contemporaneous report of proceedings in good faith.

Most recently, the Attorney General indicated that anyone using Twitter to breach the terms of a superinjunction could also face contempt proceedings. In an interview with Radio 4 on 7 June, he made it clear that social media users were not exempt from the obligation to comply with Court orders and that, although it is usually up to the Claimant obtaining the original order to initiate action to enforce them, he would take action in his own right if to do so would be in the public interest, proportionate and necessary to uphold the rule of law.

The Contempt of Court Act 1981 contains a “strict liability” offence (which does not require the prosecution to show evidence of intent) offence of communicating a “publication” (i.e. any communication in whatever form) to the general public which creates “a substantial risk that the course of justice in the proceedings in question would be seriously impeded or prejudiced”.

The case in question must be “active”, the Defendant would need to know this and be aware of that facts surrounding it at least in general terms even if they weren’t aware of the exact terms of any order which the Court had made as part of the proceedings – they can still breach it. It may be enough to show that they were merely aware that the information which they refer to in the “publication” was protected by a superinjunction for the Prosecution to secure a conviction.

Of course, if any comment on alleged Court proceedings is NOT true, such as the allegation that Jemima Khan had obtained a superinjunction to suppress an extramarital affair, then whoever made the “publication” could also be sued for libel and have to pay substantial damages if the subject of the publication’s reputation was seriously affected.

The Fraill case deals with a very specific offence under Section 8(1) of the 1981 Act which confirms that it is a contempt of court and an offence “to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings”.

The Court has always made it very clear that jury deliberations must remain confidential and it’s hard to see how Fraill can successfully defend this case, even if she tries to rely on an argument based on her right to freedom of expression under Article 11 of the European Convention on Human Rights – that right is restricted by a number of other considerations, including maintaining the authority and impartiality of the Judiciary.

Not only that, but in this case every message which Fraill sent will be able to be printed out and admitted in evidence. Facebook will probably prove to be the one witness which will not crumble under cross-examination. The Government has become increasingly concerned that Jurors are regularly using the internet to research defendants in Trials, and this case will probably lead to very tough new guidelines being issued to try to ensure that the genie is, if not put back in the bottle, at least kept in the Courtroom.

Some reports have even described Jurors using Facebook to set up polls to determine the guilt of defendants. For now at least, this kind of “Trial by X Factor” appears relatively limited, but Jurors will be made aware that this kind of activity is strictly prohibited. Even though the Courts may not be able to stamp it out altogether, in future Jurors may increasingly find the (Face)book being thrown at them. What these cases show is that Social Media is not lawless, and that hiding behind a profile may not be enough to escape liability.

UPDATE-Fraill admitted contempt during today’s hearing and will be sentenced on Thursday. She had been told that she faces jail-in the words of Lord Judge: “there are no circumstances that (did) not mean immediate committal. Sewart was told that she would receive a suspended sentence.

UPDATE- 16th June

Frail was sentenced to 8 months in prison today-a stark reminder that online activity could have serious online consequences.

Britain’s Got Damages? – Cowell takes legal action over “malicious” blog in “fix” claims

Simon Cowell is never far away from the Headlines, especially after rumours of a falling-out with Cheryl Cole that may have led to her being dropped from the Judging Panel on the US version of the X Factor, the announcement of the UK version’s own new judging panel and the airing of the live finals of “Britain’s Got Talent”.

Every year, many of Cowell’s shows come under attack for apparent bias towards certain contestants but this series of Britain’s Got Talent has been hit with a more serious allegation – that the “angelic” 12-year old singer Ronan Parke has been under contract to Cowell’s management company Syco for two years and that the outcome of the show has been “rigged” for him to win after he was “restyled” for the public audience.

The allegations came in an anonymous blog allegedly written by an executive at Sony Records, which has already been read by over a million web users that has been described as part of an organised “hate campaign” to derail Parke’s chances of winning tonight’s live final of the show. The blog went on to claim that Parke was “discovered” at a birthday party in 2009, but that nerves kept him from appearing in the 2009  or 2010 series.

Sony’s reaction has been unequivocal. They intend to “take legal action” against whoever is responsible for the blog and have reported it to the Metropolitan Police in the hope that they take steps to prosecute the culprit for an offence of “malicious communications”. Unsurprisingly, Sony have denied any truth to the rumour, which has spread like wildfire over Twitter.

So, after a month where we’ve seen superinjunctions broken over Twitter, user details handed over to potential claimants and a general outcry over the attempts of the rich and powerful to stamp out negative commentary on social networks, are we likely to see the Britain’s Got Talent “Mole” outed or prosecuted any time soon?

The offence of sending a “malicious communication” comes from Section 1 of the Malicious Communications Act 1988, which states that “anyone who sends to another person a message which is indecent, grossly offensive, a threat, which contains information which is false (or believed to be false) by the sender or is in some way “indecent or grossly offensive” and which is intended to cause distress or anxiety to the recipient is punishable by a fine or a six month custodial sentence.

Serious stuff – the 1988 Act was intended to cover poison pen letters  along with, writing of all descriptions, electronic communications, photographs and other images in a material form, tape recordings, films and video recordings. It certainly covers a blog post. – what’s “grossly offensive” in this case will be decided on the basis of its usual ordinary meaning.

This case raises similar issues to the infamous “Twitter Joke Trial” which saw Paul Chambers prosecuted for a similar offence under Section 127 (1)of the Communications Act 2003 after a tweet which “jokingly” described his plans to blow up an airport. Chambers’ was convicted for the offence of  “misus(ing) a public electronic communications system to send a message  which was grossly offensive or of an indecent, obscene or menacing character.” The blog in question may not fit this criteria, but some of the tweets which followed it may.

Section 127 (2) contains an offence which may be more suited to the Parkes case, at least as far as the contents of the Blog are concerned: sending by means of a public electronic communications network, a message that he knows to be false or persistently making use of a public electronic communications network for the purpose of causing anyone annoyance, inconvenience or needless anxiety.”  It carries the same punishment as the Malicious Communications Act 1988 Offence and the 2003 Act has already been used to bring Paul Chambers at least to book, but this section is a “catch all” to see up virtually any objectionable content on social networks.

So, what’s the point? As I’ve said a thousand times before – what you say online is every bit as punishable as what you say offline. If one criminal offence can’t get you then another one may. Not only that but what you say online can be downloaded and held against you as well as used in evidence which is easy for a Judge to read. Simply put, there’s no such thing as a Tweet without consequence. It’s doubtful that we’ll see a conviction of the Blogger here and if you were particularly cynical you could see this entire exercise as yet another PR stunt from the Cowell machine. That doesn’t, of course, take into account Parkes’ feelings but it won’t stop commentators from reaching that conclusion. As it turns out, some of the comments made about Parke have been homophobic and beyond abusive, so no amount of cynicism can excuse them.

Of course, there’s nothing to stop Cowell and Sony taking civil proceedings in relation to the “fix” allegations or claims that they “sexualised” Parjke to broaden his appeal if they can find out out who’s behind the blog. They’d need to go to the website or host on which it was based and obtain an order to release their details (as CTB has recently tried to and South Tyneside Council successfully have done in relation to Twitter) and then sue for defamation on the basis that his comments lower the reputation of Cowell/Sony in the eyes of the man in the street and have damaged public confidence in the competition being decided fairly.  It’s hard to see how they wouldn’t win as some of the claims may be almost impossible to defend, but there’s no guarantee that the person behind the blog could pay costs or damages even if they lost the libel case. If there is any truth to some of the allegations, the Blogger may have a defence which covers them in either justification or qualified privilege. Even then, the more serious and less defensible allegations would cancel those defences out  – the more serious the allegation, the higher the award in damages. 

Much ado about nothing? I suppose that depends on your point of view. It may well be in Cowell’s interest to pursue the Blogger to prove a point and restore a reputation that is taking something of a beating over the past few days by “sticking” up for the little guy. Some of the Tweets which have followed the blog are completely inexcusable and it may be time to show some of the more cowardly Tweeps involved that this kind of abuse simply won’t be tolerated online or anywhere else – those who comment on the blog and take the allegations further may end up in far more trouble then the writer.

If you ask them later whether or not tweeting the allegations or making them in the first place was a good idea, they may be forced to say “no”. Four times.