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11 Nov 2011

Urgent new guidance needed on use of Twitter in criminal trials

The problems that Twitter can pose in legal proceedings have been highlighted by the recent corruption trial of the Pakistani cricketers. Given that Twitter enables anything said in court to be instantly broadcast, it is surprising that its use does not currently fall under any of the specific statutory provisions which deal with the publication of photographs, sound recording or non-contemporaneous reports of criminal trials. And in criminal trials, where assertions made (no matter how spurious) can be made public before a defence counsel can get to his feet to object, the problems are particularly serious.

The present position is contained within the Lord Chief Justice’s Interim Guidance, published following Julian Assange’s extradition hearings in December 2010. Essentially, the Interim Guidance approves the use of Twitter where the judge is satisfied that its use will not interfere with the proper administration of justice in the individual case, adding that fair and accurate reporting is an important element of this.

Despite this qualification, the power which it affords journalists ‘broadcasting’ from court is both frustrating and concerning. This was demonstrated during the recent trial of Mohammad Asif and fellow player Salman Butt, as part of the cricket Test match ‘spot-fixing’ scandal. Another player, Mohammad Amir and a cricket agent, Mazhar Majeed, had previously pleaded guilty, although the court had ordered that these pleas could not be reported until Asif and Butt’s trial was concluded.

The first instance came when the jury delivered their first guilty verdict on three of the four charges (they would later also return a guilty verdict on the fourth). On hearing the verdict, one of the defending barristers rose and requested that the judge consider whether there should be an order to restrict reporting of the guilty pleas and verdicts in the press. This was, counsel said, in order to protect a defendant (or defendants) who may be on trial for related offences in the future from having their trial(s) prejudiced.

However, before the judge could even consider counsel’s request, a member of the press stood up and announced that the verdicts had already been posted on Twitter. The judge accepted that, as such, there was little value in even considering the application for reporting restrictions.

The second instance came during pleas in mitigation for all four defendants. Mr Majeed’s barrister made damning assertions as to the proportions in which the money received by the defendants was to be shared. Furthermore, he implicated Mr Asif as receiving the lion’s share, alleging that the other three saw a need to ‘buy his allegiance’. None of these allegations had ever been heard in court before and, as this came during a plea in mitigation, there was no opportunity for them to be challenged by the co-defendants.

Shortly after, counsel for Mr Butt requested that the judge consider making an order to restrict reporting of the representations on behalf of Mr Majeed, on the basis that there were substantial grounds for the judge to believe they were untrue. Once again, a member of the press stated that the assertions had already been tweeted. Once again the judge indicated that, as such, even to consider reporting restrictions would be meaningless.

For Salman Butt, Mohammad Asif and Mohammad Amir, the damage has been done. The Interim Guidance may have the administration of justice as its primary consideration. But recent events at Southwark Crown Court have shown that using Twitter in court is enough to deprive a judge of the discretion to rule on the exercise of his own powers. For ‘tweeting’ now read ‘broadcasting’.

New and properly considered guidance which addresses what is effectively live broadcasting from court needs to be produced as a matter of urgency. In particular, it must acknowledge the risk of a trial being prejudiced every time details are divulged by the press. We need to be sure that the court’s approach to Twitter serves the administration of justice more than it serves the demands of 24 hour news.

Corker Binning is a law firm specialising in corruption, fraud and general criminal work of all types. For more information, call us on 0207 353 6000.

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