PETITION OF ELIZABETH HOWDEN TO THE NOBILE OFFICIUM OF THE HIGH COURT OF JUSTICIARY
HIGH COURT OF JUSTICIARY
[2015] HCJAC 91
HCA/2015-2058-XM
Lord Brodie
Lord Bracadale
Lord Matthews
PETITION
of
ELIZABETH HOWDEN
Petitioner;
to the NOBILE OFFICIUM
of the
HIGH COURT OF JUSTICIARY
Petitioner: Martin, Solicitor Advocate; Patterson Bell Limited for
Finlaysons Solicitors, Kilwinning
Respondent: Niven Smith, AD; Crown Agent
7 October 2015
Introduction
[1] On 27 February 2015 the Sheriff at Kilmarnock found the petitioner to have been in contempt of court and imposed a fine of £500 as penalty, payable by instalments of £80.00 per month. The petitioner now appeals by way of petition to the Nobile Officium of this court, seeking that the sheriff’s finding be recalled. The petitioner contends that the sheriff erred in law in determining that she had been in contempt.
[2] The circumstances in which the finding of contempt was made, as disclosed by the sheriff’s report and the transcript of proceedings on 23 and 24 February 2015, are set out in the following paragraphs.
Circumstances of the case
The petitioner’s selection as a juror and the sheriff’s directions
[3] The petitioner was selected for jury service at Kilmarnock Sheriff Court on 23 February 2015. Prior to her being selected we are advised by the sheriff that the petitioner, along with all other prospective jurors, was told by the sheriff clerk not to make any enquiries in Facebook or other social media websites about the case. After the jury were selected, the presiding sheriff, following the guidance provided by Pullar v HM Advocate 1993 SCCR 514, asked them about whether they knew the accused, anyone else named in the indictment or any person likely to be called as a witness in the case. The petitioner did not respond positively to any of these questions. Before she adjourned the court after the oath had been administered to the jurors, the sheriff told the jurors that from that point on they should not make any enquiries of their own in relation to the case or the accused. The sheriff provided the following directions:
“It is absolutely forbidden that you try and access any information about the case or the accused from here on in so please do not do that, there will be very serious consequences if that happens so please do not do that” (transcript, 23 February 2015, page 1, lines 8 to 11).
[4] After the adjournment in the course of her preliminary remarks the sheriff reiterated the importance of the jury not making any enquiries of their own about the case or the accused:
“You’re not here as detectives, you are here as judges so it is absolutely imperative that you do not make any enquiries of your own. You decide the case solely on the evidence that you hear in court and that’s why I said to you earlier it’s really important that you don’t try and seek any information via the internet about the case or about the accused. I say this in complete ignorance as to whether or not there is anything out there about the case or the accused but in the event that there is please do not try and tap into that information” (transcript, 23 February 2015, page 2, lines 13 to 21).
[5] The sheriff also told the jurors that they should not discuss the case with anyone outwith their number and avoid contact with anyone connected with the case, whether that be the accused, witnesses or solicitors (transcript 23 February 2015 page 4, line 21 to page 5, line 12). This instruction was reiterated at the end of each day of evidence. In particular, at the close of the first day of evidence the sheriff directed the jury as follows:
“I’ll just remind you of what I said earlier, I’m going to add to that as well. I’m assuming that you understand that you don’t tweet or Facebook about anything that’s happened today. I’m hoping I wouldn’t have to say this but I suspect I should clarify absolutely – no indication on anybody’s statuses or twitter accounts as to what is going on in court, all right?” (transcript 23 February 2015 page 6, lines 11 to 16).
At the close of the second day’s evidence, the sheriff gave the following directions:
“Can I just remind you what I said yesterday again – no discussion with anyone else, no tweeting or Facebook statuses changed or anything like that” (transcript, 24 February 2015, page 7, lines 20 to 22).
The petitioner’s online investigations and the finding of contempt
[6] A Crown witness, R McC, gave evidence during the second day of the trial. On the morning of the third day, the sheriff was informed by her clerk that the petitioner had the previous evening checked Facebook because she thought she knew the witness’s sister who had been a work colleague of the petitioner. The petitioner had not mentioned this when the witness R McC started to give his evidence or when he concluded his evidence at the end of the second day. The clerk had learned of the petitioner’s actions because she had informed him with a view to bringing the matter to the attention of the court.
[7] The petitioner was brought to the sheriff’s chambers. In the presence of the sheriff clerk, the sheriff asked the petitioner what had happened and why she had accessed Facebook, having been told not to do so. The petitioner explained that she thought she knew the witness R McC as he was the brother of her friend. She wanted to check to see if it was him. Having ascertained that she knew him, the petitioner stated that she had said hello to him on a couple of occasions but that she considered that she could remain impartial.
[8] The sheriff brought the agents and counsel involved in the case into chambers and told them what had transpired. Their unanimous concern was that the petitioner may have seen something on Facebook or may have had some connection with the witness which was prejudicial. In all the circumstances, the sheriff agreed that the petitioner should be removed from the jury. The petitioner was told to leave and return to court on 27 February 2015 with legal representation as the sheriff was considering the question of her contempt.
[9] On 27 February 2015 the petitioner was represented by a solicitor. He explained that when the petitioner initially heard the name of the witness, it did not mean anything to her. After the witness had given evidence the petitioner thought she knew him; she thought it would be best to confirm her suspicions before causing unnecessary difficulties. The petitioner had gone home and checked her friend’s Facebook account to confirm that she recognised the witness as her friend’s brother.
[10] The sheriff explained to the petitioner’s agent that this had been the third time she had brought something to the attention of the sheriff clerk. On the first day of the trial, having been selected for jury service, the petitioner told the clerk that she was concerned because her son was the same age as the second accused. This was deemed an unacceptable concern. On the second day, the petitioner had indicated to the clerk that she was concerned because one of the accused had looked at her in a “funny” way. Again, this was deemed to be a matter of no concern. The sheriff indicated her concern to the agent that the petitioner had seemed intent on being removed from the jury. The petitioner’s agent was unaware of these previous issues. Having given the agent an opportunity to discuss these other instances with the petitioner, the matter recalled. The sheriff was told that all the reasons given by the petitioner were unrelated to each other. It had not been the petitioner’s intention to be removed from the jury.
[11] The sheriff found the petitioner in contempt of court. She considered the petitioner’s actions to have been a wilful defiance of a court order and that it required to be dealt with in a robust manner. The sheriff decided against imposing a sentence of imprisonment because of the limited research undertaken by the petitioner and the fact that she had volunteered the information about accessing Facebook to the sheriff clerk. The petitioner was in receipt of Job Seeker’s Allowance at the rate of £120 per fortnight and her husband was in full-time employment earning £1500 per month. In the circumstances, the sheriff imposed a fine of £500 payable at a rate of £80 per month.
The terms of the petition
[12] It is stated in the petition that the petitioner checked the Facebook profile of the sister of the witness R McC simply in order to confirm whether he was known to her. She made no enquiry into the nature of the charge or any matters surrounding the allegations in the indictment (paragraph 4). She did not contact any person on Facebook and had simply looked at a photograph of the witness on the Facebook page of the witness’s sister (paragraph 5).
[13] It is accepted that the petitioner had been advised at the commencement of her jury service that she must not carry out any enquiry on the internet with regard to the trial proceedings (paragraph 8). It is submitted, however, that her conduct was not an enquiry with regard to the nature of the charge or any matter surrounding the allegations in the indictment (paragraph 9). It is submitted that the petitioner’s actions did not amount to a contempt of court, rather they were “a legitimate enquiry to ensure that [she] was in a position to fulfil the oath she took at the commencement of the trial” (paragraph 11).
[14] It is further submitted that, esto the sheriff considered that the petitioner’s actions were a deliberate attempt to avoid continued service upon the jury, the sheriff should have called for evidence to be adduced to ascertain whether or not she could hold that the petitioner’s conduct was a deliberate attempt to be removed from the jury (paragraph 12). It is submitted that the sheriff erred in law in determining that the petitioner was in contempt of court and that said finding should be recalled.” (paragraph 14).
Decision
[15] Mr Martin appeared for the petitioner. It became clear from his submissions the issue for the court was a very narrow one. Mr Martin accepted that any deliberate and avoidable disobedience to an order or other clear instruction of the court is a contempt and punishable as such. On the evening of 24 February 2015 the petitioner accessed the internet in order to view the Facebook page of B McC because she wished to ascertain from the information available on that page whether the witness R McC whose evidence she had heard at the trial, was B McC’s brother. The question is simply whether that was something the sheriff had specifically told her not to do. Mr Martin submitted that the precise thing that the petitioner had admitted to having done, that is accessing the internet, looking at B McC’s Facebook page with a view to ascertaining whether the witness R McC was the brother of B McC, seeing a picture there of R McC and thereby confirming her suspicion that R McC was the brother of someone with whom she had worked, was not something that had been forbidden by the sheriff. We disagree. What we would see as the relevant parts of the sheriff’s instructions are summarised above. In general terms and in more specific terms in relation to the internet and Facebook the sheriff gave the jury a clear instruction not to make enquiries in relation to the case. The petitioner disobeyed it. The petitioner was accordingly in contempt of court. This petition must be dismissed.
[16] By way of postscript, we note that no criticism was made of the sheriff’s attempts to restrict the jury’s resort to social media during the trial, and rightly so. The purpose of social media is, in large part, to document and then share very extensive details about the lives and experiences of its users. Accessing the Facebook page of anyone who has contact with or any sort of connection to a witness who has or may give evidence at trial might provide all sorts of information about that witness which would be entirely inappropriate for a jury to know about.