This article first appeared in Legal Week on 11 November 2011.
The problems that Twitter can pose in legal proceedings have been highlighted by the recent trial of the Pakistani cricketers. Given that Twitter enables anything said in court to be instantly broadcast, it is surprising that its use does not currently fall under any of the specific statutory provisions which deal with photographs, sound recording or non-contemporaneous reports of criminal trials. And in criminal trials, where assertions made (no matter how spurious) can be made public before a defence counsel can get to his feet to object, the problems are particularly serious.
The present position is contained within the Lord Chief Justice's Interim Guidance, which was published following Julian Assange's extradition hearings in December 2010. Essentially, the Interim Guidance approves the use of Twitter where the judge is satisfied that its use will not interfere with the proper administration of justice in the individual case, adding that fair and accurate reporting is an important element of this. However, it arguably goes further and provides a presumption that Twitter should be allowed:
"Subject to [considering the proper administration of justice], the use of an unobtrusive, hand held, virtually silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice."
Despite this assertion that its use is 'generally unlikely to interfere with the proper administration of justice', the power which it affords journalists 'broadcasting' from court is both frustrating and concerning. This power was demonstrated twice during the recent trial of Mohammad Asif at Southwark Crown Court who was found guilty, along with fellow player Salman Butt, of conspiracy to cheat and conspiracy to accept corrupt payments, as part of the cricket Test match 'spot-fixing' scandal. Another player, Mohammad Amir and a cricket agent, Mazhar Majeed had previously pleaded guilty, although the court had ordered that these pleas could not be reported until Asif and Butt's trial was concluded.
The first instance came when the jury delivered their first guilty verdict on three of the four charges (they would later also return a guilty verdict on the fourth). On hearing the verdict, one of the defending barristers rose and requested that the judge consider whether there should be an order to restrict reporting of the guilty pleas and verdicts in the press. This was, counsel said, in order to protect a defendant (or defendants) who may be on trial for related offences in the future from having their trial(s) prejudiced.
However, before the judge could consider the request, a member of the press stated that the verdicts had already been posted on Twitter. The judge accepted that, as the verdicts had almost instantly reached the public domain, there was little value in even considering reporting restrictions. Even if there had been a very good basis for protecting a future defendant, the sheer speed of Twitter had effectively prevented the judge from even considering its merits.
The second instance came the following day (2 November 2011) during pleas in mitigation for all four defendants. Mr Majeed's barrister, making the first plea in mitigation, made damning assertions as to the proportions in which the money received was to be shared. Furthermore, he implicated Mr Asif as receiving the lion's share, alleging that the other three saw a need to 'buy his allegiance'. None of these allegations had ever been heard in court before and, as this came during a plea in mitigation, there was no opportunity for them to be challenged by the players.
Shortly after, counsel for Mr Butt requested that the judge consider making an order to restrict reporting of the representations on behalf of Mr Majeed, on the basis that they constituted 'derogatory or defamatory mitigation' (i.e. there were substantial grounds for the judge to believe they were untrue. See http://www.cps.gov.uk/legal/d_to_g/derogatory_or_defamatory_mitigation/).
Once again, a member of the press spoke up to say that the assertions had already been Tweeted and were public knowledge. Once again the judge indicated that, as such, even to consider reporting restrictions would be meaningless.
For Salman Butt, Mohammad Asif and Mohammad Amir, the damage has been done. If there are future defendants whose trials will be prejudiced by the reporting of this case, they too will have been affected. The Lord Chief Justice's Interim Guidance may ostensibly have the administration of justice as its primary consideration. However, recent events at Southwark Crown Court have shown that the speed and ease of communication which has allowed Twitter to become known and used all over the world, is enough to deprive a judge of the discretion to rule on the exercise of his own powers.
New and properly considered guidance which addresses the reality of what is effectively live broadcasting from court needs to be produced as a matter of urgency. In particular, it must acknowledge the risk of a trial being prejudiced every time details are divulged by the press, and that this risk and its consequences are at their most severe during criminal proceedings.
The Lord Chief Justice needs to consider whether a constant stream of information in just 140 characters at a time (compared with the 'traditional' system whereby the day's events are collated, edited and published as a whole the next day) is actually a more 'fair and accurate' way of reporting criminal trials. We need to be sure that the court's approach to Twitter serves the administration of justice more than it serves the demands of 24 hour news.
Corker Binning is a law firm specialising in fraud, regulatory litigation and general criminal work of all types. For further information go to http://www.corkerbinning.com
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