Juror who accessed Facebook to check identity of witness fails in appeal to Nobile Officium against contempt of court finding

Elizabeth Howden accessed Facebook to check a friend’s profile only to confirm whether the witness was her friend’s brother, but her petition to the Nobile Officium of theHigh Court of Justiciary challenging the sheriff’s contempt finding was refused.

Lord Brodie, Lord Bracadale and Lord Matthews heard that prior to being selected for jury service at Kilmarnock Sheriff Court on 23 February 2015, the petitioner and all the other prospective jurors were 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 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, and the petitioner did not indicate that she did.

Before she adjourned the court after the oath had been administered to the jury, and in the course of her preliminary remarks after the adjournment, 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 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 – an instruction which was reiterated at the end of each day of evidence with a specific warning that they should not use Twitter or Facebook to make any reference to the case.

However, during the second day of the trial a Crown witness gave evidence and on the morning of the third day the sheriff was informed by her clerk that the petitioner had told him that she had checked Facebook the previous evening because she thought she knew the witness’s sister who had been a work colleague.

The petitioner was brought to the sheriff’s chambers, where she explained her reasons for doing so, but the agents and counsel involved in the case were concerned that the petitioner may have seen something online or have had some connection with the witness which was prejudicial and the sheriff agreed that she 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.

When she returned to court, the petitioner was represented by a solicitor who explained that when the petitioner initially heard the name of the witness it did not mean anything to her, but after he had given evidence she thought she knew him and thought it would be best to confirm her suspicions before causing unnecessary difficulties.

However, the sheriff found the petitioner in contempt of court because she considered her 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 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, and instead imposed a fine of £500 as penalty, payable by instalments of £80 per month.

But the petitioner appealed by way of petition to the Nobile Officium seeking that the sheriff’s finding be recalled, arguing that the sheriff erred in law in determining that she had been in contempt.

The petition stated that Ms Howden had checked the Facebook profile of the sister of the witness 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, and had simply looked at a photograph of the witness on the Facebook page of the witness’s sister.

It was accepted that the petitioner had been advised that she must not carry out any enquiry on the internet with regard to the trial proceedings, but it was submitted that her conduct was not an enquiry with regard to the nature of the charge or any matter surrounding the allegations in the indictment.

It was argued 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”.

However, the judges disagreed with the submission that the precise thing that the petitioner had admitted to having done - that is accessing the internet, looking at her friend’s Facebook page with a view to ascertaining and thereby confirming her suspicion that the witness was the brother of someone with whom she had worked - was not something that had been forbidden by the sheriff.

In a written judgment, the court stated: “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.”

The judgment added: “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.”