SENTENCING STATEMENTS

On issuing the penalty, Sheriff Cubie said:

"You accepted being in contempt of court by accessing the internet to look up information relevant to the trial, and then sharing that information with the other jurors.

This happened on 13^th January 2023 during the final stages of the trial. The matter was drawn to my attention after the crown speech to the jury. The action caused the trial to be deserted when both crown and defence accepted that the fairness of the procedure had been undermined by the information which you obtained.

The context in relation to your role as a juror is this. After jury were sworn in and before the first brief break jurors were given an instruction as follows:

that from this moment until the end of the trial, you must not make any outside investigation or enquiry of your own about this case, the people or places or events involved in it or any issue it raises.

Then during introductory remarks I said:

You are not detectives or investigators. It follows, and I must stress this very strongly, that you must not make investigations or enquiries of your own about anything or anyone connected to this case, or any issue it raises. …. It is vitally important to the administration of justice in this case, and in general, that you do not carry out any outside research or enquiries about this case, the people involved in it, or any issue it raises, through the internet or by any other means, for any reason. This instruction applies from this moment until the trial has finished.

I do not know whether there is any information about the events of this case, or anyone connected with it, out there, but you must appreciate that, even if there is any such information available, there is no guarantee that it is accurate and, more fundamentally, it is not evidence in the case. The evidence presented in the court can be scrutinised and tested; it can be challenged and contradicted by other evidence. It unfolds in the presence of the accused and those advising him. That is at the heart of a trial.

… Such is the importance of this rule that I have to require you to police it collectively…

Having given you this instruction, if I become aware of any juror carrying out such investigations I would have to take a very serious view of it. It could well result in the trial collapsing with all the costs and problems that would involve. It could constitute a contempt of court on the part of the person concerned and, if it did, that could be serious for that person.

… you must not be influenced or even distracted by any outside source of information.

At the end of every court day the jury were reminded not to discuss matters with anyone, not to reach any conclusions, and not to investigate any matter relating to the trial.

The High Court has expressly recognised that such an instruction is not difficult to follow

It may be that some aspects of a judge's charge can be difficult to follow. The direction telling the jurors not to conduct an internet search on the facts of the case or the accused is not in that category. Fraser v HMA [2013] HCJAC 117 2014 JC 115 LJC (Carloway)

I consider that the instructions given were clear and unequivocal; they go further than the suggested remarks in the jury manual.

You accepted looking up information on the internet. It was said to have been shared in the context of a light hearted discussion about the quality of the jury lunches

But you knew perfectly well that you had been directed, along with the other members of the jury, in unequivocal terms, that you should not seek information about the case from the internet. You deliberately disobeyed the order.  The context in which you made the disclosure is of only limited mitigation

By undertaking the research, before any sharing of the information with your fellow jurors, you caused prejudice to the due administration of justice.  This was because you obtained information of possible relevance to the trial which, although not brought out in evidence, might well have played its part in your verdict, bearing as it did on the reliability and credibility of a crown witness. That was in direct contravention of the instruction given

By disclosing that information to your fellow jurors, you further prejudiced the administration of justice.

The remaining jurors were discharged from returning a verdict and a new trial will take place; the crown witnesses, including a vulnerable witness, will have to give evidence on a second occasion. 

As a consequence, the time of the other members of the jury, of the court, the witnesses and of the legal teams was wasted, and the public purse was put to additional unnecessary expense.  The accused continues to have the matter hang over him. The damage to the administration of justice is obvious.

Any juror who performs their duties on the basis that they can select which orders made by the judge they will obey, or who thinks that the principles do not apply to them, are in effect setting themselves up above the jury system and treating the principles that govern it with contempt. 

If jurors make their own enquiries into aspects of the trials with which they are concerned, the jury system is undermined. The problem is not the internet; potential problems arise from the activities of jurors who disregard the long-established principles which underpin the right of every citizen to a fair trial.  Misuse of the internet by a juror is always a serious matter.

Penalty

Considerations to be applied

The objective of such a penalty is to ensure that the integrity of the process of trial by jury is sustained.  Contempt of court is not a criminal offence, but rather is an offence sui generis which may be addressed to civil and criminal courts and is punished by the relevant court, whether civil or criminal (HM Advocate v Airs 1975 JC 64 at 69).

A finding of contempt is not a conviction and punishment for contempt of court is not a sentence (Robertson and Gough v HM Advocate [2007] HCJAC 63 at [31], 2008 JC 146).  Section 307(1) of the Criminal Procedure (Scotland) Act 1995 specifically defines sentence: “whether of detention or of imprisonment, [as meaning] a sentence passed in respect of a crime or offence and does not include an order for committal in default of payment of any sum of money or for contempt of court”.

The penalties for contempt of court are found in section 15 of the Contempt of Court Act 1981; the options for sentencing at indictment level are a fine, or a period of imprisonment. There is no provision for alternative forms of punishment, including alternatives to imprisonment.

I am entirely satisfied that the custodial threshold has been met. Indeed the High Court of England and Wales have said, albeit using the term sentence

43.  Misuse of the internet by a juror is always a most serious irregularity, and an effective custodial sentence is virtually inevitable.  The objective of such a sentence is to ensure that the integrity of the process of trial by jury is sustained.  AG v Dallas [2012] EWHC 156 (Admin)

The question is whether it is necessary, appropriate or proportionate to impose a period of imprisonment. It is regrettable that I cannot impose a direct alternative to custody – the binary choice of fine or imprisonment is, on one view, difficult to reconcile with the sentencing philosophy and principles in a 21^st Century justice system.

So I remind myself of the sentencing principles which govern matters and include

• Protection of the public.
• Rehabilitation of offenders.
• Giving the offender the opportunity to make amends.
• Expressing disapproval of offending behaviour.

The final principle in my view is the main principle in relation to this sentence

Two things determine the seriousness of the offence: the culpability of the offender and the harm caused by the offence. In assessing culpability, the court assesses the blameworthiness of the offender at the time of committing the offence, including:

·        whether the offender intended to cause harm – you did not

·        whether the offender was reckless as to whether harm was caused – you were so reckless

·        whether, and to what extent, there was any planning or premeditation on the part of the offender – there was no such planning

·       whether the offender knew, or should have known, of the risks that might arise from their actions, even although they did not intend to cause the harm that resulted – given the clear instructions you knew or should have know the potential risks to the administration of justice: and

·        the offender’s age, or level of maturity, at the time of committing the offence.

Harm

An offence will, generally, be regarded as more serious the greater the amount of harm. It includes a wide range of different types of harm, including harm to the administration of justice.

Penalty imposed

I have listened to the submissions on your behalf and read the report provided by the social work department. There are a number of mitigating factors, some powerful.

Firstly, you accepted the contempt immediately and through your counsel, you apologised immediately. It was clear as the process unfolded that you became aware of the seriousness of the situation and I have no doubt that it will stay with you. On one view, you have underplayed the significance of the research to the social worker but I recognise that before me you have accepted consistently the nature and extent of the contempt. You express remorse and deep shame.

I also recognise that you made strenuous and proactive efforts to cooperate with the preparation of the CJSW report which I ordered, showing a degree of responsibility and engagement which I take into account and give you credit for.

Personal Circumstances and CJSWR

I have read the report and listened to the submissions made on your behalf carefully; you are the principal carer for your parents who have life limiting conditions. You contribute significantly to the household income. You have made a positive contribution to society; there may be implications for your employment. You suffered the loss of a pet at a time when you were dealing with other stressors which occasioned significant veterinary bills. You have your own health issues.

Had the full range of penalties been available to me I would have imposed a direct alternative to a custodial sentence given the seriousness nature of the contempt and the consequences for the trial. But given the limited options and the information about your personal circumstances, I am satisfied that in the particular circumstances of the case it would not be appropriate to impose a period of imprisonment, so that matter will be marked by a substantial fine, a fine of £1000.