A recent Call for Evidence from the Attorney General, Jeremy Wright QC MP, highlighted a concern about the impact of social media on the administration of justice and a need to understand whether that risk is increasing and how it can be managed.
The consultation reflects recognition of the fact that the criminal justice system must address the challenges posed by the information age.
Existing legislation sets down a clear framework as to what can be published in order to protect the fairness of legal proceedings and the rights of those involved in them.
Mainstream media is well aware of these parameters, in particular the strict liability rule in the Contempt of Court Act, 1981 which prohibits the publication of material creating a substantial risk that the course of justice in the relevant proceedings will be seriously impeded or prejudiced.
The rule applies to all publications, including “any speech, writing, programme included in a programmer service or other communication in whatever form, which is addressed to the public at large“, so encompasses social media in addition to more formal publications.
Journalists are equally aware of the legislative protection afforded to the identity of victims of sexual offences and the protections afforded to juvenile participants in criminal proceedings.
However victims continue to be named on social media, often by the friends and family of the accused. In just one example, nine people were fined in 2012 for naming footballer Ched Evans’ accuser on Twitter and Facebook.
Social media platforms present new challenges; both journalists and members of the public now have the ability to publish comments and broadcast views which can be read almost instantly by a large audience. Misguided posts on these platforms can lead to serious repercussions for the individual and the conduct of proceedings, despite restrictions put in place against the media.
Such issues were illustrated in the 2016 case of R v F and D, a trial of two teenage girls for murder. As a result of adverse commentary published about the Defendants on Facebook, the trial judge in the matter felt compelled to discharge the jury and order a retrial in a different venue, causing considerable stress for those involved in proceedings on top of the cost of a second trial.
In that case, restrictions had been placed on the mainstream media preventing reports of the trial being released on Facebook and requiring the disabling of comments on web message boards.
The case prompted comment by Leveson, LJ, as the President of the Queen’s Bench Division, that:
“… there is no doubt that there are wider issues involved than encompassed by this litigation. We have no doubt that the Attorney General … should be involved in a general analysis of the overall position in order that a wider consultation can take place and appropriate guidance issued.”
The Call for Evidence represents the latest effort by the Attorney General’s Office to grapple with the challenges posed by social media to the criminal justice system.
It follows the decision by the AGO, then led by Dominic Grieve QC MP, in December 2013, to publish advisory notes on Twitter and the gov.uk website to help prevent social media users from committing contempt of court.
This decision marked a change from previous practice, where advisory notes had been issued to print and broadcast media (as the only outlets able to publicise information about a case) on a “not for publication” basis.
The consultation period for the Call for Evidence closed in December and the conclusions are awaited. The resulting report from the Attorney General is expected to address what changes (if any) are required to maintain the balance between the rights of the individual to express their views online and the integrity of criminal proceedings.