HM Attorney General v Davey

Contempt by a juror requires proof to the criminal standard that the conduct created a real risk, rather than a remote possibility, of interference with the administration of justice, and that the respondent intended such interference. Deliberately researching the trial online, communicating extraneous information to fellow jurors, or posting about the case on social media may satisfy both requirements where the juror knew the relevant prohibition and understood the obligation to decide the case only on the evidence. Written guidance, videos, notices and oral warnings supplied under the authority of the court may constitute directions which jurors must obey. Pressure, frustration, immaturity or an asserted lack of prejudicial motive does not excuse deliberate disobedience. Restrictions on internet use must nevertheless be expressed consistently and compatibly with articles 8 and 10 of the Convention.

The Attorney General applied for committal orders against two serving jurors. Mr Davey posted a Facebook message about the sexual-offence trial in which he was sitting, while Mr Beard researched his fraud and money-laundering trial online and communicated an extraneous figure to other jurors. In each case the trial judge discharged the jury. The respondents denied contempt, disputed the scope of the directions and argued that their conduct did not create a real risk of prejudice or involve the necessary intention. The Divisional Court had to determine whether the common-law requirements for contempt were established on the evidence.

1. Contempt test. The court applied the established requirements that the Attorney General prove, to the criminal standard, an act or omission calculated to interfere with or prejudice the due administration of justice, meaning a real risk rather than a remote possibility, together with an intention to interfere with or prejudice that administration. Intention may be inferred from all the circumstances and need not be the respondent’s sole intention.
2. Mr Davey. The Facebook post showed that he had deliberately disregarded his duty to act fairly and decide the case on the evidence. His invitation to others to respond amounted to initiating a discussion about the case. The court rejected his explanations and found that the post created a real risk of interference and was specifically intended to interfere with the administration of justice.
3. Mr Beard. The court accepted evidence that he had searched online for information about the case, discovered the approximate number of investors and disclosed it to other jurors. He knew that internet research was prohibited and inconsistent with his duty to decide the case only on the evidence. The judge’s decision to discharge the jury was open to him because the information might have been more extensive than the figure disclosed. The conduct would have interfered with justice even if the jury had not been discharged.
4. Directions and Convention rights. The jury booklet, video, jury-manager’s speech and notices were supplied under the authority of the court and were intended to define and reinforce jurors’ obligations. The court rejected the argument that they were not directions. In the circumstances of Mr Davey’s case, the restrictions were within articles 8.2 and 10.2 of the Convention, although the court observed that inconsistent terminology could create avoidable arguments and invited review by the Criminal Procedure Rules Committee and Judicial College.
5. Both applications succeeded and the respondents were committed for contempt of court.