HM Attorney General v Joanne Fraill and Jamie Sewart

Hearing dates: 14 th June 2011

This is a troublesome case and we, must do our best to ensure, an exceptional case. It involves misconduct by a juror, Joanne Fraill, and one of the defendants, Jamie Sewart, during the course of a very substantial trial in the Crown Court at Manchester sitting at Minshull Street before His Honour Judge Lakin and a jury in the summer of 2010. Two previous attempts to conclude a trial had failed and in each case the jury was discharged. The third trial began in late May 2010. On 21 May Joanne Fraill was empanelled as a juror.

This constitution of the court has sat as a Divisional Court to decide whether or not contempt of court has been proved, and then as the Court of Appeal Criminal Division, to decide whether any jury irregularities should result in the quashing of the conviction of Gary Knox, Sewart's partner.

Gary Knox, together with Jamie Sewart, were tried with six other defendants, Francis Hunt, Anthony Grainger, Philip Meiring, Joanne Greaves and Gail Hadfield on a nine count consolidated indictment. Philip Berry was a police office who at the material time was suspended from duty. He pleaded guilty to count 5 on which he was jointly charged with Knox with conspiracy to commit misconduct in a public office. In summary, Berry provided confidential or personal information held by the Greater Manchester Police. He also pleaded guilty to a similar count in a different indictment.

All the defendants, except Berry, were jointly charged on count 1 with conspiracy to supply heroin and on count 2 with conspiracy to supply amphetamines. On count 3 Hunt and Grainger were charged together with handling stolen goods (motor vehicles). Grainger had earlier pleaded guilty to this count. On count 4 Knox was charged with Meiring with being concerned in the supply of class A drugs. In count 6 he was charged with Berry with doing acts intending and intended to pervert the court of public justice. Effectively count 6 was an alternative to count 5. He was similarly charged in count 7, with attempting to deter police investigation of his criminal activities. In count 8 Jamie Sewart was charged with possession of class A drugs with intent to supply. In count 9 Hunt was charged with supplying class B drugs, as an alternative to his alleged involvement in count 2.

These different counts in the indictment provide a sufficient nature of the criminality alleged against this group of defendants. Effectively there were two strands: the first, involvement in a major enterprise to supply dangerous drugs, and the second, the linked activities of and with a corrupt police officer, and an attempt to corrupt another police officer, in order to advance the drug related activities. So far as Knox was concerned, the essence of his defence was that he was the victim of rather than a participant in police corruption. He had been a high profile criminal (and all his previous convictions were before the jury) and a member of serious criminal gangs involved in the supply of drugs, on a major scale. All that, however, was in the past, and the police locally were deliberately seeking to incriminate him in offences of which he was innocent.

The prosecution case was opened by the Crown on 26 ^th May. The judge gave the jury an unequivocal direction that they must not use the internet. He directed them "you will make your decision about this case based solely upon the evidence which you hear during this trial, in this courtroom and upon nothing else. Most of us these days have access to the internet, it contains lots of fascinating information, some of about the criminal justice system and some it about specific criminal offences. If you do have access to the 'net, members of the jury, please do not go on the 'net during this trial to explore any issues which may arise. That would be wrong. As I have said, you must base your decision in this case solely on what you hear in this courtroom and upon nothing else". He also told them that they must base their decision, "solely on what you hear in the courtroom and upon nothing else." This direction was repeated from time to time throughout the trial. No juror could have been in any doubt precisely what the direction was, and precisely what it meant, and indeed it has not been suggested that Joanne Fraill did not appreciate that references to the internet were prohibited. It is equally clear that none of the defendants, including Jamie Sewart, can have been in any doubt that they should not contact or communicate with any member of the juryxs

The Crown's case concluded on 30 June. The defence case began on 2 July. It finished on 19 July. After closing speeches and summing up, the jury retired to consider their verdicts on 28 July. It is worth noting, perhaps in passing, that following this lengthy and complicated trial, no criticism was directed at the careful summing up prepared by Judge Lakin.

On 29 July the jury found Greaves and Hadfield not guilty on count 1, Hunt not guilty on count 3, Knox guilty on count 5 and Sewart not guilty on count 8.

On 30 July Grainger was found not guilty on count 1. On 2 August Sewart was found not guilty on count 1, and Knox, Meiring, Sewart and Greaves not guilty on count 2.

Accordingly by the end of 2 August Sewart had been acquitted of all three charges against her. Knox had been convicted on count 5, acquitted on count 2, but verdicts in his case on counts 1, 4 and 7 were awaited. In the meantime Sewart continued to attend the trial, in effect in support of her partner, Knox.

On 3 August the majority verdict direction was given. Thereafter Hunt, Knox and Meiring were acquitted of count 1, and Knox was acquitted of counts 4 and 7. That left the verdicts in relation to Hunt, Grainger and Hadfield on count 2, and the verdict against Hunt on count 9 outstanding for the jury's decision.

While they were continuing in retirement, on 4 August, it became apparent to Judge Lakin that an unknown juror had been in Facebook contact with Sewart, commenting to the effect that she was pleased that Sewart had been acquitted because she was "with her the whole of the way". She also suggested that it was a pity that Sewart had not been in court when the verdicts involving Knox were announced because she was not have been able to see "the look of delight" on Gary's face.

Judge Lakin was, of course, ignorant of the identity of the juror who had been in communication with Sewart. After hearing counsel he adjourned the jury deliberations for the day, and decided that he should inquire of each juror individually whether there had been any contact with any defendants. Joanne Fraill was the eighth juror. Having explained the issue, the judge asked:

"I have to ask you a question and it is this. Have you at any stage during the period from the retirement of the jury until today contacted or attempted to contact any other person, including any other juror, defendant or former defendant, i.e. a defendant acquitted of allegations made against them, by way of Facebook or email, about either your views of the evidence, your views of the jury verdict so far delivered and any reactions to such verdicts, or any other such matters. In short, I have evidence to suggest that Facebook contact has been made with Sewart. Have you made any such contact; …"

Fraill must have indicated silently in some way that she had, because the transcript continues "You have. I am going to ask that you are separated from the other jurors and I will then bring you into court a little later and give directions as to .." at which the juror interrupted:

"Can I just say I'm really sorry it wasn't meant to —"

The judge responded that at this stage he did not want to hear any explanation but that she must be separated from the other jurors. That was arranged. Like the first seven jurors, the remaining jurors denied that there had been any contact with any defendants. Fraill was returned to court. She was told that her behaviour was grossly improper, and she was released on bail. The judge later concluded that the jury as a whole should be discharged from returning the remaining verdicts.

Subsequently a new trial was ordered on the counts where verdicts were awaited. When this took place, one of the remaining defendants was convicted and two were acquitted.

The extent of the contact between Fraill and Sewart was investigated. After Sewart had been acquitted on all the counts affecting her, the first contact was made by Fraill. Accordingly to Sewart's unchallenged evidence, confirming her account in interview, Fraill sent an e mail message to her Facebook account saying "you should know me, I cried with you enough". Fraill had set up a Facebook account in the name of Jo Smilie. Sewart submitted a Friend Request to her at 18.30. Sewart responded, and saw that the Jo Smilie account named Joanne Fraill as a friend and showed a photograph of Fraill. Sewart immediately recognised this as a photograph of one of the jurors who had recently acquitted her, and realised that the message had come from the juror. Sewart then entered into a conversation with Fraill using the Facebookl instant messaging service. Sewart was thus aware that she was communicating with a juror. The conversation took place between 18.31 and 19.07.

At 18.38 Sewart asked "what's happenin with the other charge??", to which Fraill replied "which" followed by "yours?", which was followed by Sewart answering "no the...