England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London WC2A 2LL
		23 January 2012

THE LORD CHIEF JUSTICE:

1. This is an application by the Attorney General under Order 52 of the Rules of the Supreme Court for the committal of Theodora Dallas (the defendant) for contempt of court. The alleged contempt arose during her service as a juror in the trial of Barry Medlock at Luton Crown Court in July 2010. It is alleged that she conducted internet research about the case and thereafter disclosed the results of that research to her fellow jurors.

Trial on indictment

2. These proceedings are brought under the Rules of the Supreme Court Order 52. This gives power to the High Court or the Court of Appeal to punish for contempt of court which may be exercised by an order of committal. Mr Charles Parry for the defendant invited us to consider whether the Rule was apt to deal with a contempt arising in the circumstances which obtain in this case. It was, he suggested, at least possible that, unless the Crown Court proceeded by way of a summary hearing, the appropriate process for examining the alleged contempt was by way of trial on indictment before the Crown Court. Mr Parry acknowledged that this method of proceeding was obsolescent, but suggested that nevertheless it was not beyond revival.
3. We examined the authorities. The last known occasion when an alleged contempt of court was tried on indictment was over 100 years ago in 1902 (R v Tibbetts [1902] 1 KB 77). The indictment included a number of counts arising from publications which constituted contempt of court. They included an attempt to pervert the due course of law and justice and conspiracy to obstruct the due course of law and justice. Among other features of the case it was argued on behalf of the appellants that the publications constituted contempts of court and accordingly that they could not have been tried on indictment. Instead they should have been dealt with for contempt of court alone. The appeal was dismissed. The offences alleged against the appellants could be charged on indictment as misdemeanours.
4. Some 50 years later, in Attorney General v Butterworth [1963] 1 QB 696, an application was made by the Attorney General for the committal of members of a trade union for contempt of court under the Administration of Justice Act 1960. Although suggesting that the process of trial of contempt on indictment could be revived, Pearson LJ recognised that such a process had fallen into disuse. In Balogh v St Albans Crown Court [1975] 1 QB 73, the Court of Appeal considered an appeal against the decision of a trial judge that the appellant was guilty of contempt and sentenced to imprisonment. In his judgment Lawton LJ referred to the powers of the court to commit for contempt under Order 52 of the Rules of the Supreme Court and suggested that contempt could be dealt with in this way "or even by indictment". This observation did not attract the support of Lord Denning MR or Stephenson LJ, who focused on the provisions in Order 52 of the Rules of the Supreme Court.
5. The problem has been addressed twice in the House of Lords. In R v D [1984] 1 AC 778, the issue before the House of Lords was contempt of court in the context of a parent kidnapping his 2 year old daughter and falsely imprisoning her mother, together with allegations of contempt of court arising from the same material. In the Court of Appeal it was suggested that this "by now almost ancient way of proceeding" should not be resurrected. An appeal by the father against his convictions for kidnapping and contempt was allowed. The issue before the House of Lords was confined to the common law offence of kidnapping, and its proper ambit. The issue of contempt did not arise for consideration. Nothing in the judgment of Lord Brandon, with whom the other members of the House agreed, suggested that the observations of this court in relation to trials for contempt on indictment was inappropriate.
6. The issue was reconsidered in the House of Lords in In Re Lonrho plc [1990] 2 AC 154. After considering the ancient jurisdiction of the House of Lords to direct trial on indictment for breach of its privileges, and the contention that it was possible for the House of Lords to order that an alleged contempt should be tried on indictment in the Crown Court, Lord Keith, giving the reasons for the decision of the Appellate Committee, observed:

".... because the first proposal to your Lordships was for prosecution on indictment, it is appropriate to take the opportunity, thereby endorsing the statement in Archbold's Criminal Pleading, Evidence and Practice, 43rd Ed. (1988) volume 2, page 2449, paragraph 24-22 and approving the observations of the Court of Appeal in R v D [1984] AC 778, 791-792, of saying that, given the jurisdiction, the proper and convenient remedy in the case of alleged contempt of court by the media is by way of committal proceedings in the High Court. The last reported example of a prosecution of a newspaper for contempt was R v Tibbetts and Windust [1902] 1 KB 77 and this method of proceeding ought not to be revived."

7. Contempt may take many forms. In the context of alleged contempt by or affecting a juror or jury in the Crown Court, in our judgment unless it is appropriate for the Crown Court to deal immediately with the contempt of its own motion (which in the light of many judicial warnings about the dangers inherent in a rushed process would be very exceptional), such cases of contempt should continue to be left to proceedings by the Attorney General under Order 52 of the Rules of the Supreme Court. It should now be clearly understood that trials for contempt of court on indictment are obsolete, and of historical interest only. Neither the Attorney General, nor the alleged contemnor, has any right to seek trial by jury on indictment.

The facts

8. Medlock was charged with two others with causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861. The allegation was that the three men had subjected the victim to torture over an extended period, which left him scarred for life and for which he is still undergoing major surgery. Medlock was not alleged to be the worst of the three offenders, but in particular it was alleged against him that he obtained boiling water which was used as a solvent for caustic soda. The soda was poured over the victim. At some point in the assault he also attacked the victim with a broom handle.
9. The defendant is a native of Greece. She is a woman without previous convictions and of positive good character. These considerations were fully in mind when we evaluated her evidence and whether it was likely that she would have deliberately disobeyed a court order. She came to England in 1996 when aged 19. She graduated at the University of Luton, as it then was, in 1999 with a degree in psychology. In 2001 she was awarded a Masters Degree in Health Psychology, and a year later she was invited to be a guest lecturer in psychology. She then began to study for a Doctorate of Philosophy in Health Psychology. In 2005 she was appointed a part-time lecturer. In 2008 this appointment became permanent and full-time. She was due to submit her doctoral thesis on 24 June 2011. There were a number of delays. In due course, however, after she had taken a viva voce examination she was successfully admitted to her degree. Throughout all these studies the language of her education, and her written and oral exams from her first degree to her most recent degree, was English. Her teaching and lecturing were also conducted in English.
10. From the evidence of events which occurred when the jury was in retirement she is plainly capable of communicating in English. Her subsequent police interviews underline her skill. In her evidence before us her grasp of the English language and her ability to communicate by comprehending what she was being asked and to respond appropriately was most impressive. Any suggestion that she might have been at a disadvantage during any part of her jury service would be without foundation.
11. When the defendant was first summoned for jury service, she questioned whether, as a non-British citizen, she was eligible for service. She was told that she was. She recollected that none of the written material sent to her made reference to the use of the internet. The trial of Medlock began on 4 July 2011. The defendant was one of the jurors summoned for jury service on that date. It was her first week of service. She told us that she was overwhelmed by the honour.
12. When the defendant arrived at the jury waiting room she was shown a video about the responsibilities of the jury and given verbal instructions by the jury officer of the court. The defendant recollects being shown the introductory video. She again remembers, correctly, that nothing said in the video, suggested that the use of the internet was prohibited. At court the jury officer, speaking after the showing of the video, expressly told the jury in waiting that they must not discuss the case or the evidence with anyone outside the court. She said that this applied to internet and social networking sites. The jurors were instructed in terms that they must not research the case on the internet or research the defendant or any of those involved in the trial. Having concluded these instructions, she asked the jurors whether they understood what had been said and invited questions. On this particular occasion there were questions about expenses and the answer phone service, but none about the video or the instructions she had given. The defendant told us that she could not really remember anything said by the jury officer about the internet. She said that because of the delay in the submission of her doctoral thesis, she was not fully focused on the introductory video. However, she remembered reference to Facebook or Twitter but even now she would not know what she was supposed to do about the internet.
13. Unequivocal notices are posted in the jury retiring room and the jury waiting room. Having alerted the juror to the possibility of proceedings for contempt of court leading to a fine and/or imprisonment for disclosing the contents of jury deliberations, they read:

"You may also be in contempt of court if you use the internet to research details about any cases you hear."

14. At about 2.30 in the afternoon of 4 July, and before the case was opened by the prosecution, the judge gave the jury a number of directions. These underlined the importance of deciding the case only on the basis of what the jury saw and heard in the courtroom. Two consequences were identified by the judge. The first was that they should not speak about the case to anybody, including their nearest and dearest. He went on:

"The second consequence is a newer one: that you do not go on the internet. You have probably read in the last few weeks about a juror who did go on the internet; went on Facebook and severe problems followed for that juror. I am sure you will not want any of those. So, the rule is -– and it is told to every jury -– that not only do you not discuss it, but you do not go on the internet; you do not try and do any research of your own; you do not discuss it on Facebook; you do not tweet about it; or anything of that nature. So, simply, once you leave this room you do not talk about it or deal with it in any way with anybody."

The judge continued by informing them that the evidence would be put before them in a "carefully considered way". That, he explained, was why the jury were "not to discuss it with anybody else or do your own research, or discuss it on Facebook".

15. The defendant remembers the reference by the judge to the juror who went onto Facebook and that the judge had told the jury not to discuss the case on Facebook or Twitter or with anyone else. She believed that the manner of the delivery of these words was advice rather than as an order. The judge spoke, according to her account, politely and rather quietly, and formally, with a good accent, but she says that this created difficulties for her in fully comprehending everything that he said. If she had been given an order by the judge she would have expected it to have been said with greater emphasis.
16. On the following day, 5 July, the judge ruled on the Crown's bad character application relating to Medlock's previous conviction for assault occasioning actual bodily harm on 7 April 2009. Medlock had been charged with rape, together with a co-accused. His co-accused was convicted of rape. Medlock was acquitted. The judge allowed the application to a limited extent, following which an admission was made. This referred directly to Medlock having been sentenced in relation to an offence of assault occasioning actual bodily harm committed on 3 November 2007:

"It was a prolonged assault on his then female partner and involved a younger male who played the major role. The defendant accepted that he joined in the assault and kicked his then partner causing her bruising."

17. The evidence unfolded. The jury was informed about the conviction in the limited terms permitted by the judge. After the jury left court for the day, the appellant went home. From what she says in her affidavit, and in her evidence, it was on that evening that she made a search on the internet. Her account was that she looked at the internet because she was unsure of the meaning of the word "grievous". She wanted an exact translation, but rather than ask the judge to explain its meaning, and because she did not want to look a fool, she consulted the internet. She wanted to know exactly what the man was accused of. She looked the word up in Greek and the word was equated with "dangerous". She then moved her search to look up "Luton" and "crime", apparently because of concerns about problems with crime in the town. During this search she came across a link to a Luton newspaper article about Medlock's previous conviction. She recognised his name, and she read it. She did not think she was doing anything she was not allowed to do because a newspaper is in the public domain. The object of the trial was to discover the truth and the whole truth.
18. In her police interview she was asked on three occasions whether she "might" have searched Medlock's name. Three times she said that she might have entered his name. In her affidavit she said that she could not remember if she searched the name "Medlock", adding that she did not think she remembered his name or how to spell it. It was only when she saw the link to the newspaper report that she realised that it was about the defendant at the trial. When she gave evidence to us on this issue, it was noticeable that, by contrast with much of the remainder of her evidence, she became very hesitant. She said that she did not remember how she found the name, or whether she had put the name into the search engine. She claimed that if she had put his name in, she would have had no specific intention to research it.
19. The trial continued on 6 July. The judge summed up the case. He directed the jury to look at all the evidence presented to them in court: the evidence from witnesses, and the evidence that had been read together with admissions and documents. Having directed the jury to be dispassionate and objective he added:

"What you must not do, however, is speculate or guess about what other evidence there might have been. Do not start worrying when you deliberate about well, what would X have said or what would you have said? That is speculation, guesswork. You simply act upon the evidence that you heard."

After the conclusion of the summing-up, the jury retired to consider their verdict shortly before lunchtime. They were unable to reach a verdict that day. The court did not sit on the following day, and the jury was asked to return to court on Friday 8 July.

20. After the court had risen on 6 July the usher was approached by one of the members of the jury. She was in something of a state, "in a panic". She reported that one of the jurors had been on the internet, had found out about the previous conviction and that it involved rape. She identified the defendant as the juror in question, and continued that as soon as the defendant had started to talk about it she told her to shut up and said she did not want to hear. Other members of the jury were unhappy too, and it had become quite heated in the jury retiring room. The usher made a note of what she had been told. In due course it was drawn to the attention of the trial judge.
21. The court reconvened on Friday 8 July. The defendant and the juror who had reported the problem were kept apart from the rest of the jury and from each other. The judge informed counsel of the report made by the juror.
22. The foreman of the jury was called into court and she was asked about the incident. She confirmed that there had been some reference to the matters reported by the juror, but it was plain that she was reluctant to give any further details.
23. The judge then arranged for the defendant to be provided with legal advice if that became necessary. She was invited into court. He explained the allegation that she had gone onto the internet and found information concerning the defendant's previous conviction which she had shared with other members of the jury panel. In her own interests, he suggested that she should not say anything, but should speak privately with a lawyer, defence counsel, who was available to assist. After their conference, counsel informed the judge that the defendant stated that her behaviour regarding the use of the internet was not deliberate; thus, counsel suggested, she had a defence to any allegation of contempt. The judge then explained that the matter would be referred to the Attorney General. The defendant was bailed unconditionally and discharged from her current and any future jury service.
24. The remaining members of the jury were called into court. They were formally discharged. They were warned that there might be a police investigation. Medlock would be retried.
25. In due course the retrial began on 12 October and concluded on 20 October. The complainant gave evidence again, for an entire day. In due course Medlock was convicted. He is now subject to an eleven year extended sentence.
26. In the meantime the issue was investigated. It is clear from the evidence that while the jury was deliberating in the afternoon of Wednesday 6 July the defendant told her fellow jurors that she had been onto the internet and discovered that the circumstances of Medlock's previous conviction included an allegation of rape.
27. We take the statements of four jurors as representative. The first is the juror who made the initial complaint. She described how during the deliberations a male juror, whom she described in detail, asked whether anyone had looked the case up on the internet. The general response was that they were not allowed to do so because the judge had told them not to. The defendant, however, replied, "I did". She stated that she looked it up on the internet and that it was public knowledge. "She read it on the internet and it was from a newspaper article". The juror said immediately that they were told not to look up anything on the internet and she felt very uncomfortable about what the defendant was saying. Her comments were ignored. The defendant continued to tell the members of the jury what she had read and the juror clearly remembered her telling them that "the defendant had previously been involved in a rape of a female with a third party. He had not raped the female himself, but he had used violence against her". The defendant spoke for about two to five minutes about the information she had read on the internet. The juror was extremely unhappy because there had been evidence about the defendant's bad character but no mention of rape in the information.
28. A second juror described a loud disagreement which arose between the first juror whose account we have just narrated and the defendant. She heard the lady say something about the internet, "something about the previous case between the defendant in our case and another person, and his partner". I heard the word "rape", but did not hear exactly what she said. I interpreted that she meant the previous case for the defendant in our case had been a rape. I heard her say that she had seen or read it on the internet. A lot of people then told her she was not supposed to say that .... when the lady talked about the defendant's previous case and she mentioned rape, everybody in the jury stopped and listened to what she said. I think it is wrong what she said as it could cloud people's judgment."
29. A third juror understood that the defendant had gone to the Court Service website and obtained information that the defendant in the trial, Medlock, had previously been involved in some capacity in an offence of rape. According to this juror the defendant said that the website had lots of information about the current case and the defendant. It also contains details of the current trial and the barristers involved. As soon as the word "rape" was spoken, "I could see the faces of the other jurors drop". The juror said she did not want to hear it, she did not think they should take any of it into account. The defendant protested that she had obtained the information from the court website and that the information was in the public domain anyway. A male juror said that he had read something similar in the newspaper.
30. A fourth juror described how when they were in the jury room together one female member of the jury asked whether anyone had researched the case, whereupon another female member of the jury who from her accent was believed to be "maybe Cypriot" said "I did", or simply "Yes". She said that she had researched all three people involved in the case and that it was in the news. She had looked on line. She had seen the previous conviction. It was then pointed out that the jury had been made aware of that conviction in court. She said "Yeah, but actually his wife was raped during the assault". This led members of the jury to say that they could not hear this, it was not part of the case.
31. None of this evidence was challenged. It was agreed that the statement of each juror could be treated as his or her evidence. It is clear not merely that the defendant had indeed consulted the internet, and discussed Medlock's previous conviction and the fact that it involved an allegation of rape, but also that the remaining jurors were extremely disturbed, to put it no higher, by what they had been told. That, if we may say so, is greatly to their credit. They were obviously concerned to ensure that their responsibility as jurors was properly discharged. It also demonstrates that they had fully understood the prohibition against the use of the internet.
32. On 26 July the defendant was interviewed by the police. She was told that she was entitled to legal advice. She was happy for the interview to continue without a solicitor and no interpreter was required. Summarising the effect of her answers, she admitted that she had conducted an internet search and admitted that she had stated to other members of the jury that the previous conviction had also involved an allegation of rape. However, she denied deliberately flouting any instructions and directions regarding misuse of the internet. Something of the flavour of her response can be taken in an early part of the interview:

The defendant: ".... do you want me to concentrate on what the judge said?"

The defendant said that she "took away",

".... that we should not look, we should not publish anything on Facebook or Twitter, we should not tell anybody outside the court about the case .... and I think he mentioned as well that if we are approached by anybody we should report that outside the court, this is the message I took away. .... not to publish anything on, on Facebook, on Twitter, and, and not to talk to anybody .... outside the court .... about the case."

She could not recall the judge's instruction not to use the internet.

33. Later, discussing the reference to the internet and what she was doing on it, she said:

".... you know obviously I'm Greek and, and I always do that, I need to have exact translations, you know, how the things translate and obviously the charge of that defendant was Grievous Bodily Harm, which obviously I wanted to know what it translates to .... I wanted to see what exactly is the meaning in Greek, I always do that .... I always do that with, you know, psychology and, and everything all the time. So I put in Greek translation, and obviously it translates as dangerous bodily harm in Greek .... so to have an idea of, you know, what sort of charge is that and then .... the frequency of that thing in Luton, because obviously I am aware that Luton is a really bad town and I always wanna really move out this time .... and it came up .... obviously the offence."

She then said she looked at many results and then on the internet

".... the newspaper was saying it was exactly what the prosecution gave us. However, I mentioned the word rape in it .... but I did make clear to the jury that that wasn't the defendant's previous conviction .... that is not related, somebody else .... charged with that. As for the defendant, the information was what the prosecution gave us."

34. The defendant in her affidavit, and in her evidence, repeated that she had tried to explain to the police that sometimes her grasp of English was not all that good, and that she had not taken the message from the judge that she was to do no research on the internet at all. She wanted to make it clear that she had no intention to influence anybody or somehow to prejudice the jury's decision. She had, she said to us, no idea that she would be disrupting the trial process. She emphasised more than once that if she had not been prompted by a comment by another juror she would have said nothing at all.
35. We have carefully reflected on the defendant's testimony. She struck us as a highly intelligent woman, extremely articulate in English. She skilfully avoided the difficult questions by finding refuge in carefully prepared answers. Her memory was selective. She was, for example, perfectly well aware that the booklet sent to her as a juror did not include any reference to the internet; nor did the jury video. At the time that she could not recollect references to the internet by the jury officer or the judge, she could nevertheless recollect references to Facebook and Twitter. Notwithstanding the honour she felt at serving on the jury, she was unable to concentrate sufficiently to absorb the information about the internet. She sought to persuade us that there was a significant difference which she as an academic would attach to "search" and "research". During her evidence she referred more than once to the "truth, the whole truth". At one stage she might have been saying that somehow this provided some kind of justification for what she had done, but, as it emerged at the end of her evidence, she appeared to be saying that what she had found on the internet coincided with what the jury had been told, in which case her search would be of no moment. Her attempt to blame another member of the jury for raising the issue of the internet and thereby prompting her disclosure of what she had found, even if true, did not advance her defence.
36. On her account, effectively, she came across the newspaper reference to Medlock's previous conviction in the local newspaper in Luton by following a route from the word "grievous" through to "Luton" and "crime" and in effect, somehow she stumbled across the newspaper entry.
37. We do not believe that the defendant did not seek information about "Medlock" on the internet. Her inability to remember this particular feature of the case, when she has a detailed recollection of so much else, was not credible. We do not believe that she could have just stumbled across the link to Medlock's previous conviction in the way she described.
38. We have no doubt that the defendant knew perfectly well, first, that the judge had directed her, and the other members of the jury, in unequivocal terms, that they should not seek information about the case from the internet; second, that the defendant appreciated that this was an order; and, third, that the defendant deliberately disobeyed the order. By doing so, before she made any disclosure to her fellow jurors, she did not merely risk prejudice to the due administration of justice, but she caused prejudice to it. This was because she had sought to arm and had armed herself with information of possible relevance to the trial which, although not adduced in evidence, might have played its part in her verdict. The moment when she disclosed any of that information to her fellow jurors she further prejudiced the administration of justice. In the result, the jury was rightly discharged from returning a verdict and a new trial was ordered. The unfortunate complainant had to give evidence of his ordeal on a second occasion. The time of the other members of the jury was wasted, and the public was put to additional unnecessary expense. The damage to the administration of justice is obvious.
39. This contempt is proved to the criminal standard.

Sentence

40. This species of contempt of court involves contempt of the jury, and of the jury system. The jury man or woman is vested with the heavy responsibility of doing justice according to law and returning a true verdict in accordance with the evidence produced in court. No more, and no less. We repeat what has already been said in R v Fraill [2011] EWCA Crim 1570:

"In every case the defendant and for that matter we add, the prosecution, is entitled as a matter of elementary justice not to be subject to a verdict reached on the basis of material or information known to the jury" (as we would add now for emphasis, or to any individual juror) "but which was not in evidence at the trial".

41. Jurors who perform their duties on the basis that they can pick and choose which principles governing trial by jury, and which orders made by the judge to ensure the proper process of jury trial they will obey, or who for whatever reason think 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. In the long run any system which allows itself to be treated with contempt faces extinction. That is a possibility we cannot countenance.
42. Judges are perfectly well aware of the value of modern technology, and the use of the internet as a modern means of communication. Again, we repeat what was said in Fraill:

"We emphasise, even if we do so by way of repetition, that if jurors make their own enquiries into aspects of the trials with which they are concerned, the jury system as we know it, so precious to the administration of criminal justice in this country, will be seriously undermined, and what is more, the public confidence on which it depends will be shaken .... The revolution in methods of communication cannot change these essential principles. The problem therefore is not the internet; the 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."

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.
44. In his submissions to us on behalf of the defendant, Mr Parry acknowledged that a custodial sentence would normally be imposed, but invited us to consider matters by way of mitigation which, he suggested, should lead us to take the merciful course of suspending the effect of the custodial sentence. He drew attention, rightly, to the fact that this was not a case in which the defendant was motivated by any form of possible personal gain; nor indeed for that matter by any personal or political agenda.
45. We acknowledge the point, but if she had been so motivated this would have become a very much more serious crime. As we have already said, the defendant is a woman of positive good character. We acknowledgement her achievements thus far in her relatively young life. We recognise that she has now resigned from her appointment and has undoubtedly put her long-term academic career into jeopardy. We also fully appreciate the stresses of the prolonged proceedings and the understandable concerns about her health. We recognise that she has apologised for the disruption that her contempt has caused, but she lacks any mitigation in the form of an admission of guilt or what would in effect have been a guilty plea.
46. We have considered all these circumstances. We have made due allowance for them, together with the remaining matters drawn to our attention by Mr Parry. We have set them against the very serious features of the case which we have outlined in the judgment we have given. We have come to the conclusion that there is no sufficient basis to comply with Mr Parry's request that the sentence should be suspended. In this case an immediate custodial sentence is the appropriate sentence for the contempt which has been proved.
47. We have considered the length of that sentence and concluded that there should be a sentence of six months' imprisonment. That will be the order of the court.
48. The defendant will serve three months' imprisonment. The defendant will surrender.
49. There are two matters before we end this case. Mr Parry, first, it is in the best traditions of the Bar that you acted pro bono. We are very grateful to you, and indeed to your junior.
50. Mr Grieve, we have your letter about the circumstances in which this investigation took place. We have no criticism of any part of it, but we will consider further what happened.

MR GRIEVE: I am obliged, my Lord.

THE LORD CHIEF JUSTICE: There will be no order for costs, Mr Grieve.

MR PARRY: Before your Lordship rises, may I just mention another matter? I do so with some hesitation. It is a rather delicate matter and I do so courteously. It is to do with the issue of section 13 of the Administration of Justice Act.

Your Lordships on Thursday afternoon outlined the test that you would apply to this case. For those of us who followed, that will be a great help to understand the basis upon which your Lordships moved to conviction. That test was, as I hope I correctly noted it: Where a juror deliberately disobeys a direction of the judge and -- I am not sure whether the word "thereby" attracted your Lordships' approval -- creates a risk of prejudice to the due administration of justice.

For the basis of this submission, I work on the basis that that was the test that the court applied.

THE LORD CHIEF JUSTICE: You will find it in paragraph 38, Mr Parry. That is the test we applied.

MR PARRY: I am grateful. The test that, with respect, I outlined in my submissions at the outset -- because when defending any case every lawyer wishes to know what he has to face -- was a different test than, as your Lordship knows -- it is in my submissions -- gleaned from the judgments in other cases. I understand, of course, that that test did not find approval with the court.

However, in the submissions of the Attorney General, the intent was, as outlined by my learned friend Mr Mably's note, an intent of creating such a risk (paragraph 6 of the note of 9 January). Your Lordships, in discussion with my learned friend for the Crown, alluded to the fact that the intent is a deliberate disobedience of the direction. That was, of course, a different intent to the intent we were addressing as we prepared the case. We were not warned or guided -- indeed, there was no comment either by my learned friend for the Crown after he received my submissions, or the court at the early stage of the hearing before evidence was heard -- that the test would be different.

The test is, in my submission, significantly different on three --

THE LORD CHIEF JUSTICE: Mr Parry, I am sorry to interrupt you, I thought that you and the Attorney both agreed with the test that we put to you in argument.

MR PARRY: No. I actually said, "This is new".

LADY JUSTICE HALLETT: Mr Parry, when I said to you, "Are you trying to suggest there is an additional intent by the use of the words 'thereby risking prejudice to the administration of justice'?", you specifically said "No".

MR PARRY: What I said was actually, if I remember rightly -- and I am sorry to contradict your Ladyship, but I do so with respect -- "I had not intended to be that subtle", and I suggested that the word "thereby" would create a causative link. But I also said that this was a very serious stage of the trial and for counsel to be given this without time to think about it quietly is .... Well, I leave it there. Very frequently counsel is given a moment to reflect -- particularly a senior court like this -- to reflect upon the words that the court used. If I had not adequately warned the court, I must take responsibility for that, but I have a duty to my client and I say now that I did not agree to that test.

THE LORD CHIEF JUSTICE: You did agree to it, Mr Parry. You may not have given your full mind to it, and you may have agreed with it inadvertently; but there is no doubt in our minds that you agreed with it. But, in any event, continue.

MR PARRY: I do not wish to -- I must not, I cannot, it might even be a contempt --

THE LORD CHIEF JUSTICE: It is never a contempt of counsel to advance submissions that he thinks are appropriate.

MR PARRY: I am concerned that the test that I was addressing -- that we were addressing in preparation of this case -- was a different test. We conducted the defence to a different test, and the reasons why it was a different test, I suggest, are threefold. First, the intention is different. Secondly, the risk has been diluted from "real risk" -- and, after all, "risk" on the authorities simply means "a possibility of occurrence" to "risk". Thirdly, may I make this submission? This is the first occasion -- I do this with some hesitation for I can find no authority -- where there has been a contempt of court flowing from a judicial direction.

May I just expand on that for a moment? When a judge is communicating with counsel, the court or a defendant, there are various levels of communication. I work from the bottom. The indication -- we are all familiar with that. Guidance. Directions -- we are all familiar with that; usually used by masters in trial preparation. And finally, order. It has always historically been the order which has attracted contempt, not the direction, and the idea that a judge gives directions to a jury in the summing-up which could attract contempt and imprisonment is, in my submission, a novel one.

I therefore submit this question rhetorically: whether this reformulation that this court has applied in this case is consistent with the common law of contempt. I therefore invite -- I do not ask your Lordship, I do not believe that this court has to certify a point for appeal -- but I therefore apply to this court for leave to appeal to the Supreme Court on this point. That, too, I hasten to say, will be pro bono.

THE LORD CHIEF JUSTICE: Mr Grieve?

MR GRIEVE: My Lord, I am a little surprised to hear this because I must say that I was under the impression when we had the discussion that there was common ground between us. When I opened the case I said: "Common law contempt of court is an act or omission which creates a real risk of prejudice to the administration of justice done with the intent of creating such a risk". I accept that. I have to say that when we had the discussion I was wholly happy and comfortable with the way in which the court approached it, and I thought my learned friend was as well. I really cannot say more than that. It was not raised with me subsequently or before as being an issue.

THE LORD CHIEF JUSTICE: Thank you very much. We will retire.

(The court retired to confer)

THE LORD CHIEF JUSTICE: Mr Parry, it is unfortunate that your recollection is not the same as ours, or, indeed, for that matter the Attorney's. We understood that the way in which the test was formulated was agreed by you and we understood that the particular issue which you drew attention to, and which we discussed for some time, involved the insertion of the word "thereby".

There it is. We have applied that test. That is to be found in paragraph 38 of the judgment. We do not think that this is an appropriate case for us to give leave. Thank you for your assistance.

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