Claire Adams: There’s no silence from court as social media gets the nod

Published on 19/12/2011 00:00

AS SOCIAL networking increasingly pervades our lives, for those of us of the older generation (anyone over 30) there was something almost peaceful about the quiet and reverence of a courtroom.

Being “locked away” from the outside world, even for a short time, meant you could concentrate on the matter in hand without the long fingers of mobile phones, the internet, Twitter, Facebook etc being able to reach you. As a trainee solicitor, it was with a sense of reverence that you went to court, notepad and pen in hand, to take down every word of carefully thought-out arguments and then the ultimate decision from the bench, racing back to the office to report to partner and client.

But not even the scales of justice are able to dodge the digital age. The Lord Chief Justice of England and Wales, Igor Judge, last week issued guidance for the use of live text-based forms of communication such as mobile email, social media and internet-enabled laptops in and from courts in England and Wales. The Lord President, Lord Hamilton, pledged to give it “full consideration … with a view to formulating suitable guidance in Scotland”.

Of course, being “locked away” is perhaps not advisable for a 21st-century legal system. Advanced technology already exists in courtrooms, with real-time transcription services taking the place of a well-loved shorthand writer, video links, videoing of witness evidence and sophisticated document database and management systems for case productions.

This English guidance is not a radical change but, in the main, clarification of the current position. Interim guidance for England and Wales was issued a year ago, after which the Lord Chief Justice consulted widely. This new guidance is the result of that consultation.

In England, for members of the public the position remains unchanged from the interim guidance. An application must be made to the court should they wish to use live text-based communications during proceedings. Journalists, as “a representative of the media or a legal commentator” will be allowed to use live, text-based communications from court without having to seek permission.

The logic is that this group of people does not pose a danger of interference to the proper administration of justice in the individual case. The intention of the guidance is to enable them to produce fair and accurate reports of the proceedings.

In Scotland, the court’s permission must be sought by any person (general public or media) seeking to use devices that allow live text-based communications in court. It will be the distinction between the general public and media that Lord Hamilton will have to carefully consider.

It is unlikely, either north or south of the border, that this will lead to free rein for mass tweeting and the constant rumble of mobile phones during court proceedings.

The guidance promotes the overriding responsibility of the judge to avoid any improper interference with the administration of justice.

What has been specifically recognised in Lord Judge’s guidance is the risk that this poses to the conduct of criminal trials, and even certain civil cases. The danger is that witnesses who are out of court might be informed of what has already happened in a criminal trial and so be coached or briefed before they give evidence. An additional concern is that information posted on, for instance, Twitter about inadmissible evidence could influence members of a jury. In civil cases, simultaneous reporting from the courtroom may create pressure on witnesses, distracting or worrying them. Under the new guidance in England, while the judge may still allow live, text-based communications to representatives of the media for journalistic purposes, he may disallow its use by the wider public in court. Again, this is an important consideration for any guidance issued in Scotland.

Is this social media gone too far? Unlikely. And, of course, the guidance for England and Wales has the overriding provision whereby permission to use this technology may be withdrawn by the court at any time, something which will undoubtedly, and quite rightly, appear in any Scottish guidance. You might not be in a position to tweet the judge just yet.

• Claire Adams is an associate with Burness LLP