There was a lot of excited noise on Twitter this week after two judges gave different rulings on the use of the messaging service in their courtrooms. It was nicely appropriate that this happened during the extradition case of Julian Assange, who of course is best known for sneaking information into the public domain by electronic means. The first ruling, by Justice Howard Riddle, permitted the use of Twitter in court, seems to have caught the entire judicial establishment – and most of the media – on the hop. For decades journalists have been sternly warned against using electronic recording equipment in the courtroom. Cameras remain strictly off-limits, tape recorders are generally a no-no unless you can prove you’re deafer than the judge, and it is a foolish reporter indeed who allows his mobile phone to interrupt proceedings.
Order seemed to have been restored when Justice Duncan Ouseley, the judge hearing the appeal of Riddle’s decision to grant bail, instructed journalists to switch off mobile phones and laptops. But the cat had already been let out of the bag. Although Riddle’s decision was made in a magistrates’ court, and so was not binding on the higher courts of the land, the whole issue of what should and should not be broadcast from the courtroom was suddenly up for grabs in a way that had seemed inconceivable just days before.
Initially it seemed that this decision would make little material difference. Not only was it made in a magistrates’ court, but it came during an extradition hearing. Since extradition proceedings are held without a jury present and any eventual trial will take place in a foreign jurisdiction, they are pretty much impossible to prejudice. This presumption would surely not hold for ordinary court proceedings, where there is a very real prospect of prejudicial information influencing a jury. The number of cases in which Twitter would be permitted would therefore have to be extremely limited. Or so I thought.
But then came something really interesting from the Lord Chief Justice, entitled Interim Practice Guidance: The Use of Live Text-Based Forms of Communication (Including Twitter) from Court for the Purposes of Fair and Accurate Reporting. It is, in its modest, ermine-lined fashion, a revolutionary document. Lord Judge has to be commended both for his speed in issuing it and his grasp of the issue – the identification of Twitter in the title suggests a man with a far greater understanding of the nuances of technology than is customarily ascribed to his profession. It is, prudently, an interim guideline, subject to a wider consultation with interested parties including the Attorney General, the Secretary of State for Justice and the Society of Editors, all of whom will want to leave their stamp on the final guidelines. But the canny Lord Judge may just have stolen a march on all of them.
He begins by emphasising the absolute prohibition on photographs and the general prohibition on recording equipment, and comments that ‘live text-based communications’ (which means not only Twitter, incidentally, but also laptop computers) would generally fall under the category of recording equipment. Then he loosens the definition slightly by adding: “There is no statutory prohibition on the use of live text-based communications in open court. But before such use is permitted, the court must be satisfied that its use does not pose a danger of interference to the proper administration of justice in the individual case.”
Now comes the key sentence: “Subject to this consideration, 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.”
Essentially, then, the presumption seems to be in favour of allowing Twitter in court. If so, this is a bold leap in the direction of open justice. Traditionally the English courtroom has been seen almost as a sealed chamber, with reporters and artists compiling their records of proceedings outside it, based on handwritten notes. Live updates from Twitter are a radical departure from this solemn process.
It begs a few questions, the first of which must be: if not-quite-silent keyboards are now to be permitted, surely the case against silent sound recording equipment must be next to fall? I fancy there will still be some resistance on this point, but it will be interesting to see how it develops.
The other intriguing question concerns who will be allowed to tweet in court. Lord Judge’s guidelines make it clear that discretion will ultimately rest with the trial judge, and that it should be the preserve of members of the media. But since our concept of a free press includes the principle that journalists are journalists on their own terms, rather than through the patronage of any arm of government or outside agency, the courts will have a hard job defining exactly who this covers. In essence, anybody who turns up in court and claims to be a reporter ought to be admitted as such.
As someone who’s agonised over pages of scrawled shorthand during years as a court reporter, I have to welcome this progressive move. It could almost be called a rash one, except that Lord Judge is no fool: he has added a series of riders, including an explicit reminder that the freedom to tweet can be taken away as readily as it is granted, to keep Twitter’s unruly tendencies in check. But it is unthinkable that the genie could now be pushed back into the bottle. Interesting times lie ahead.
Even so, there are dangers. Since Twitter is a form of publication, anyone wanting to tweet in court will need to familiarise themselves rapidly with legislation such as the Contempt of Court Act. There are potentially stiff penalties for those who breach it, and if your tweets give the defence an excuse to have a trial thrown out of court, expect little mercy. Here, more than anywhere, ignorance of the law is no defence.
With that in mind, here are a few basic guidelines for anyone thinking of tweeting in court. These are intended as a starting point only: I’m writing as a journalist, not a legal consultant, and if you’re really serious about getting into this I urge to to arm yourself with a good handbook such as McNae’s Essential Law For Journalists. Incidentally, if you’re in Scotland, where Lord Judge’s writ does not rule, don’t even think about doing this unless you’re especially fond of gruel [Edit February 2: On January 25 the judge in the Tommy Sheridan perjury trial, at the High Court in Edinburgh, granted STV News permission to tweet from the sentencing hearing. So I should have given Scottish justice more credit. However, in the absence of the kind of explicit guidance issued by Lord Judge, the decision seems to be entirely at the discretion of the trial judge.]
1. Check that the use of Twitter has been permitted in the case. The clerk of court will be able to tell you. They’re usually the person sitting immediately in front of the judge or magistrate. Until you’re certain of this, keep your phone switched off.
2. The basic principle of court reporting is that it must be fair, accurate and contemporaneous. This basically means: stick to what you hear in court and tweet it as it happens. Don’t elaborate, don’t mix up information from different sources and whatever you do, don’t bring in information you’ve heard outside the courtroom.
3. Don’t start speculating about whether a defendant is guilty or a witness is telling the truth. This is liable to be viewed as trying to sway the jury, and judges take a dim view of it.
4. Children under the age of 18 usually cannot be identified unless the judge lifts reporting restrictions (you may remember James Bulger’s killers were known as Child A and Child B until they were convicted). Tread carefully if you see young people in the dock. And remember that it’s not enough to blank out their names: names of schools, details of where they live or their relationship to other family members can all count as identification by the back door.
5. There are other cases, such as rape cases, in which particular individuals cannot be identified, and others where certain information has to be kept secret – for example, if the same evidence is being used in two different trials. It would be astonishing if Twitter were allowed in these cases at all, but if you’re in any doubt at all, check.
6. Pre-trial hearings are a hornet’s nest. Here’s just one pitfall: if somebody pleads guilty to some offences but not guilty to others, don’t report the guilty pleas. The jury might not be told about them.
7. Don’t approach jurors. Don’t speak to them even if they talk to you first. The law on this is unequivocal.
8. Same goes for witnesses who are yet to give evidence.
9. Don’t even think about trying to be funny. The law has a terrible sense of humour, as @pauljchambers will testify.
10. Above all, remember the strict liability rule. Tweeting is publication, and you are solely responsible for what you publish. If you don’t think you could justify a tweet to the judge, don’t send it.