Tuesday, 28 December 2010

Communications from the court room

Open justice is a fundamental principle and fair and accurate reporting of court proceedings is a part of that principle.

The Lord Chief Justice has issued "Interim Guidance" on "the use of Live Text-based forms of communication (including twitter) from court for the purposes of fair and accurate reporting."

The guidance certainly does NOT permit anyone to simply go into a court and "twitter."  The permission of the judge is required.  Any form of photography is prohibited (Criminal Justice Act 1925 s.41) and sound recording may only take place with leave of the court (Contempt of Court Act 1981 s.9).  The guidance stresses the duty of the judge to avoid any improper interference with the court's processes.

It is stated that there is to be a consultation about this matter but then the guidance appears
to pre-empt the outcome of any such consultation by stating (para. 11) that twittering using modern, unobtrusive, hand-held equipment is unlikely to interfere with the proper administration of justice.  Having said this, the judge is supposed to bear in mind problems such as whether twittering might inform other witnesses of what has already been said and the guidance also refers to simultaneous reporting as creating "pressure on witnesses", distracting or worrying them.  Furthermore, the guidance talks of the potential of electronic interference with the court's own sound recording equipment and "widespread use of such devices may cause a distraction to the proceedings."

An article on Halsbury's Law Exchange (here) generally welcomes the guidance and considers that the law of contempt of court ought to control matters.  However, the article refers to the possibilities of anonymous twitter and the fact that, once on the internet, the information is disseminated internationally.

Should such interim guidance have been issued at all?  Would it have been preferable to maintain the status quo (which was probably against the practice) and hold a consultation first?  Is the guidance a recognition that the technology genie is out of the bottle anyway and it is preferable to try to keep some control over matters?  Are "twitters" too short to be able to actually give a "fair and accurate" report of proceedings?  Short messages by way of summary can be very misleading and even misinterpreted.

There is force in the "genie argument" but a consultation could have been commenced sooner rather than later and, pending the outcome, matters could have been left alone.  Given the various "concerns" relating to witnesses included in the interim guidance it is somewhat difficult to see why judges would wish to run such risks.  Whilst permission to "tweet" can be withdrawn, the fact would remain that any damage would be irrecoverable.  Attendance at court as a witness is, for many, a highly stressful experience and there is no need to add anything to that stress such as the testimony being "tweeted" beyond the courtroom and, possibly, being received by other witnesses or friends of the accused etc.  It is also difficult to see why there has to be such immediacy of reporting and why a "fair and accurate" report cannot be disseminated during breaks in the court proceedings concluding reports with, if necessary, the time-honoured words "the case continues."

There seems to be a reasonable case against the use of "twitter" but the case hardly seems to have been heard.  As ever, well considered comments from readers are welcome.

Interestingly, in 2009, the High Court gave permission for notification of an injunction to be put on Twitter - see BBC (Blaney's Blarney Order). The injunction related to breach of copyright.

Addendum 5th February 2011:  The UK Supreme Court has decided to permit certain live text-based electronic communications from their court rooms.  See the Guidance.  

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