Jeremy Wright QC MP, the Attorney General, has issued a call for evidence on the impact of social media on criminal trials.  “Our Contempt of Court laws are designed to prevent trial by media, however, are they able to protect against trials by social media?”

This is not the first time the AG has asked this sort of question.  That previous call for ‘urgent reform’ related to several issues concerning contempt of court in the digital age, such as the ‘monstering’ of Christopher Jefferies and the mistrial of Levi Bellfield.  Specific to juror use of social media, it concerned the AG’s case against Theodora Dallas, the juror who had ignored the trial judge’s strict instruction not to seek or rely upon evidence found outside the court room.  Not only had Dallas disregarded this instruction (she researched the defendant using the internet) but also then shared this new information with the other jurors.  She was subsequently sentenced to six months imprisonment for contempt of court.

Consequently, in January 2012, the AG asked the Law Commission to prioritise the issue of juror misuse of social media in criminal trials, which it did, leading to recommendations, which were published on 9 December 2013.  These included the “creation of a new statutory criminal offence for a sworn juror in a case deliberately searching for extraneous information related to the case that he or she is trying”; “a specific defence where a juror discloses deliberations to a court official, the police or the CCRC in the genuine belief that such disclosure is necessary to uncover a miscarriage of justice”; a ban on jurors having internet-enabled technologies in court (and the power to remove them from jurors); and a range of measures to ensure jurors received more information about the prohibition on conducting their own research.

These recommendations became law in 2015 through the Criminal Justice and Courts Act 2015.  Section 69 amended the Juries Act 1974 to give judges the power to order jurors to surrender their electronic devices.  Section 70 amended the Courts Act 2003 to empower court security officers to search for electronic devices.  Section 71 made it an offence to conduct research into the case using electronic devices, including the internet, whilst section 72 made it an offence to share that information with other jurors. Breach of either provision can result in imprisonment of up to two years or a fine.

This new call for evidence is more general.  The AG asks for evidence relating to: active proceedings in which social media ‘has had a significant impact’; breaches of anonymity orders due to social media; or breaches of reporting restrictions due to social media.  Presumably, if there is evidence of a wide-scale problem, the AG will press the Law Commission to conduct a new investigation.

A partial explanation for the AG’s new call can be found in R v F ex parte BBC, which concerned the public reaction, expressed through social media, to the murder of Angela Wrightson, and its impact on the trial of those accused.  It will be remembered that the case attracted much media interest, especially in Hartlepool, where the crime happened.  The victim was discovered naked from the waist down with over 100 injuries, sustained in twelve separate locations, from various objects.  It was made especially shocking given those accused of her murder were two teenage girls.  The Hartlepool Mail posted its report of the trial online, which included, in its comments section, a link to a Facebook page (ostensibly, a site for expressing condolences).  The defendants’ legal team became aware that this link contained numerous prejudicial comments about the defendants.  Further comments, of the same nature, were found on the public comments section of various other media outlets.  Despite an order being made to remove the comments and prevent further comments being created, the trial judge accepted the posts created a substantial risk of serious prejudice to the administration of justice and discharged the jury.  A new trial was ordered in a different location (Leeds).  He further ordered a ban on any reporting of those proceedings until the rescheduled trial was concluded.

On appeal, the Court of Appeal agreed to vary the order so that news outlets could report the trial, but could not post reports on their associated Facebook pages nor allow comments to be posted under its online publications.  The Court of Appeal also invited the AG to investigate the extent of this sort of problem.

Thus, this call for evidence raises additional issues to the previous Law Commission investigation.  Specifically, the risk that a substantial risk of serious prejudice may be created through social media postings discussing the case.  This raises practical issues as well as principled ones.  Any recommended change to the law must not chill freedom of expression.  In high profile cases, a strong community reaction to the crime is inevitable.  At its core, such expression is important to protect.  Communities must be able to discuss what has happened so that they can come to terms with it, as part of their right to self-determination.

This process is bound to provoke strong emotional reactions.  Such a broad understanding of free speech is discernible in the DPP’s guidance on social media offences: ‘Just because the content expressed in the communication is in bad taste, controversial or unpopular, and may cause offence to individuals or a specific community, this is not in itself sufficient reason to engage the criminal law’.  This reminds us that the right to freedom of speech will be at stake, even though the speech is unhelpful, ill-informed or irrelevant.

We should not think, either, that such speech is less important to protect than press reports.  We should recall the parity that both the UK and European Court of Human Rights attaches to the free speech rights of individuals and the press.  For example, the House of Lords has previously said:

‘The media have greater powers of disseminating information widely than other people have, but it has not been suggested by any party to this appeal that the media have any special privileges in law in the matter of freedom of speech. They have the same rights of free speech as anyone else, subject to the same constraints” (AG v Observer Ltd [1990] 1 AC 109, 201).

Similarly, the European Court of Human Rights has previously refused to accept the UK government’s claim that journalists should receive a higher level of protection under Article 10 (freedom of expression) than non-journalists (Steel and Morris v UK [2005] EMLR 15, [89]).

does not mean that popular reactions to criminal activity should receive absolute protection from state interference.  All it means is that it should not be concluded that such speech, even though ostensibly ‘worthless’, ‘vile’ or ‘offensive’, etc, has no value in free speech terms.

In such cases, amongst the range of possible responses open to a court, one means of securing the right to a fair trial, whilst protecting freedom of speech, is to hold the trial away from that local community, i.e, the eventual court approach in R v F ex parte BBC.  As in that case, such an order, could work alongside an order to prevent media outlets from allowing public comment on its postings, and the prospect of a further take-down order against social media outlets where seriously prejudicial comments (of a type generating a substantial risk) are discovered.

This may represent not only the best principled solution, but also the most pragmatic one.  Whatever evidence is unearthed, the difference between trial disruption by the press and that caused by social media is important to recognise.  By its nature, the press is a smaller and more controllable group of individuals.  The threat of imprisonment or fine may have a more predictable effect upon a professional journalist whose livelihood depends upon his profession.  This threat is less predictable for the non-journalist.  Social media is ubiquitous.  There is no editorial filter to prevent instant communication.  And, therefore, no check upon the passions where an individual inflamed by criminal activity lets loose his anger.  This is not to say that a journalist is rationalism embodied and the non-journalist the reverse, but it is to recognise the different influences and thought-processes that attends the speech of both.

I say all this to point to what seems to me an inevitable conclusion: that trial disruption due to social media is not something the law can cure or prevent; it is something the law must come to live with.  In that sense, it would be naïve to think the Law Commission can eradicate the problems associated with a case like R v F ex parte BBC.  Moreover, there is a fiction here, deserving of recognition: any preventative measure presupposes that potential jurors from the local community would not hear the seriously prejudicial comments through non-electronic means and/or would not hold them, regardless.  Although the public may like to believe that behind the curtain the justice machine is perfect, the reality must be something different.  The aim of law, therefore, must be to remedy injustices as they occur and not to pretend that injustice can be absolutely prevented, by newer and greater legal measures.

Dr Paul Wragg, Editor in Chief, Communications Law, Associate Professor of Law, University of Leeds, Associate Academic Fellow, Inner Temple