John Forsyth: Dawn chorus of tweets is wake-up call for judiciary
"IT WAS a bit freaky," says Gavin Millar QC, defence barrister for former Labour Livingston MP Jim Devine at his trial this month on charges of making dishonest expense claims to the House of Commons.
"I had just finished my closing speech to the jury. By the time I spoke to Jim at lunchtime, he'd already had six texts from Labour Party members telling him what a great speech it was."
What was freaky was not that Millar managed a good speech but that within minutes, people from West Lothian to Westminster were offering comments on it based on the summary - tweeted in 140-character chunks - by journalists on the press bench.
"I thoroughly approve," says Millar. "The immediate flow of information on what is being said in court is a return to the concept of justice being seen to be done."
The use of 'live text-based communication devices' from the courts has been like the dawn chorus. The first lonely tweets were in December when the judge in the first bail hearing for Wikileaks founder Julian Assange allowed journalists to report discreetly - but live - from the courtroom.
In the two months since, the chatter has swelled to a competitive crescendo, with kudos claimed by the first journalist to get out a tweet.
The judicial authorities in England and Scotland have been caught up in the rush. Last November the Lord Chief Justice, Lord Judge, wondered aloud - in a lecture in Belfast - whether there is any difference between a journalist filing from the press bench via the internet and sending out messages on Twitter or another live social networking platform.
It was a straw in the wind caught by Howard Riddle, chief district judge at Westminster magistrates court, who agreed on 13 December to allow tweeting from the Assange bail hearing. History, everyone agreed, had been made.
A week later, the Judicial Office for England and Wales issued interim guidance from the Lord Chief Justice that judges should heed in considering media requests for live instant summarising.
The interim guidance emphasised the prohibitions on audio or video recording of proceedings in the Contempt of Court Act 1981 still stand. Photography was prohibited in 1925.While the guidance acknowledged the changing culture and technology of court reporting, it also identified the potential risks: "Without being exhaustive, the danger to the administration of justice is likely to be at its most acute in the context of criminal trials eg, where witnesses who are out of court may be informed of what has already happened in court and so coached or briefed before they then give evidence, or where information posted on, for instance, Twitter, about inadmissible evidence may influence members of a jury."
It seems bizarre that witnesses waiting to give evidence cannot sit in the courtroom lest their testimony be tainted but that they can read tweeted summaries from the next room.
The decisions were to be left to individual judges on a case-by-case basis - and the judge at the next Assange bail hearing refused permission.
In Scotland, STV was first off the mark to submit a formal request for live tweeting from Glasgow High Court on 26 January when Lord Bracadale was due to sentence Tommy Sheridan.
More requests quickly followed.
Elizabeth Cutting, public information officer for the judiciary in Scotland, drafted some permissive guidance for the occasion, largely heeding the approach taken by the Lord Chief Justice. There were no live issues in sentencing that might threaten the administration of justice.
The Supreme Court, in its turn, announced in mid-February that it would, as a general rule, have no objections to tweeting during its proceedings, largely on the basis that it rarely has to deal with evidence and testimony rather than legal argument.
The tweeting from the Jim Devine trial therefore stands out. It was a criminal trial at first instance with witnesses giving testimony that could be viewed as they gave it by witnesses yet to take the stand.
Gavin Millar says the issues were discussed with the judge and the prosecution. "We felt the risk of tainting evidence was not high. I accept there may be dangers in trials where there is a threat of witness intimidation."
In the meantime, the Judicial Office for England and Wales has now issued a formal consultation to identify the benefits and dangers of live tweeting from court. Some issues have already been debated, while additional questions are identified.
For example, the definition of "media" itself is changing with social networking. The consultation asks: "How should the media be defined? Should persons other than the accredited media be permitted to engage in live, text-based communications from court?"
At the Sheridan sentencing diet, police told the public that only journalists were allowed to text but at least one person in the public gallery was seen texting furiously.
While the Contempt of Court Act spells out the meaning of "strict liability" for those whose reporting breaks the rules, the authorities have already struggled to police internet surfing by jurors.What grounds are there for imagining they will fare better with citizen reporters?
The BBC has drawn up its own rules, saying tweeting will be done only by a reporter who attends the whole of a trial to ensure continuity and full knowledge. "That sounds like a very BBC response," says Gavin Millar, "but I can't see it being sustained for very long." The realities of winter flu and the imperative of holidays may soon bump up against long trials.
The claim, therefore, that this is a new era of public access to the courtrooms is likely to revert to the cost-driven pragmatism in which only the highest-profile trials will be covered at all. Press benches and public galleries will often remain deserted and justice unobserved.
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