“In the back bedroom the duvet was half off the bed and neatly folded clothing on the bed, a bathrobe on the floor too
#spy #spook“, @JonClementsITV, crime correspondent, ITV News
We are long used to abridged sensitive or traumatic information in broadcast soundbites and scrolling news tickers, but court tweeting is still in its infancy as a medium, and can feel more intimate and immediate.
The dominant “#spook” Twitter hashtag used by the major news organisations tweeting the Gareth Williams inquest seemed almost flippant in tone on Monday morning, although no more so than ‘spy in a bag’ headlines.
The Norwegian trial of Anders Breivik for the murder of 77 people has also brought the live-tweeting question to the fore. Cameras were banned from filming Breivik’s testimony for fear of losing context but as Daniel Bennett observed last week, “tweeting [Anders] Breivik’s evidence inevitably strips away even more context from it“.
He drew attention to the approach taken by journalists at the Breivik trial and the Guardian’s Helen Pidd, who said: “I’m not tweeting all of Breivik’s statement because some of what he is saying is too heartless“. The Norwegian example was also explored in this thorough piece on Journalism.co.uk and a comment by the Guardian’s Readers’ Editor, Chris Elliott.
While the legal and ethical approach to court reporting are connected, the two are not necessary mutual: a journalist may choose to withhold certain information on ethical grounds, even if it is legally permitted to publish. Pidd chose to save some information for her reports, so she could add further context. Additionally, she decided not to tweet anything which she “wouldn’t put in the conventional stories [she] write[s] about the trial each morning and afternoon”.
Journalists could of course exercise the same discretion when selecting broadcast material, but the focus to date has been whether the media should be able to film at all in the English and Welsh courts.
Last week STV declared what is thought to be a legal first for TV News in Scotland (and the UK): it was permitted to film the sentencing remarks in a criminal trial for murder. The footage was shown online and shared with other broadcasters.
The announcement brought the ‘cameras in court’ debate back on the news agenda and it is likely to remain so in May; it is reported that the justice secretary’s plans for cameras in court (restricted to the judge’s summing up and sentencing) will be included in the Queen’s Speech.
Penny Marshall, social affairs editor for ITV News reflected recently (in a piece praising the court sketcher) that it is hoped televising court “will change the way justice is seen to be done and open one of the last bastions of privacy to public scrutiny”. In her view, “there are some reservations about how the scheme will actually work, but few real opponents“. Opponents can be found, however, especially regarding the filming of witness evidence in criminal trials.
Cameras appear to have been successfully used in the UK Supreme Court, but of course the concerns of the lower courts do not apply: no juries, witnesses or cross-examinations, as the UKSC’s deputy head of communications pointed out in a comment for PR Week.
The issues at play are complex. Edward Thompson, a solicitor based in Australia, has dealt with them adeptly in the most recent issue of the Journal of Media Law (Vol. 3, No. 2, December 2011, pp. 211-236(26)), asking whether the open justice principle in fact requires cameras to be permitted in the courtroom. In conclusion he found that the reforms proposed by the justice secretary do not go far enough:
“If open justice requires ‘the provision of adequate facilities for the attendance of members of the public’, [Jaconelli, 2003, 2] then it would appear that public galleries and press reporting no longer guarantee public access.”
“In permitting viewers to see and hear the oral and visual dimensions of legal proceedings, television and the internet have the unique capacity to allow the public to ‘judge for itself the quality of justice administered in its name’ [Home Office v Harman  All ER 532, 547].
But Thompson does not go so far to argue for its “wholesale” import of cameras in court: it may be necessary to depart from broadcasting if this approach obstructed justice. However, if appropriately regulated, the impact on participants (as discussed in the article) “may be an acceptable price for truly open and public proceedings“.
A balancing act
Could Thompson’s argument be applied to Twitter too, and also be extended to include the ethical question? Live-blogs and Twitter should be welcomed in court, in accordance with the open justice principle, but not if they get in the way of the administration of justice – and they must be appropriately regulated.
Further still, a news organisation should consider the ethical as well as the legal position, as Pidd did when covering the Breivik trial. Just because it is legally permissible to tweet, it doesn’t mean a journalist is obliged to. The underlying question is: what best serves the public interest? As ever, it’s a balancing act.
Judith Townend is a freelance journalist and PhD researcher at the Centre for Law, Justice and Journalism, City University London, where she is also co-ordinating the ‘Open Justice in the Digital Era’ project. She is @jtownend on Twitter.