The negative impact of social media on the fair running of criminal trials was ‘a manageable problem’, according to a government report published yesterday. The Attorney General’s Office launched a call for evidence in the wake of a 2015 ruling (R v F & D ) in which the judge discharged the jury due following comments posted on social media.
The consultation considered how social media users were breaching anonymity orders and reporting restrictions without knowing the consequences. Such breaches could put victims’ lives at risk and also prejudice jury members during the course of a trial resulting in the social media user being held in contempt of court – an offence which carries a fine or up to two years imprisonment.
According to the report, most respondents ‘agreed that this was a manageable problem, although one which has shown some growth’. The consultation elicited only 24 respondents and the report noted that ‘the relatively low volume of responses’ suggested the scale of the problem was ‘more limited in scope’ than the concerns raised in R v F & D suggested.
‘We launched this call for evidence with the goal of discovering whether the legal process was at risk due to social media, and whether people working in the criminal justice system have the tools they need to manage that risk,’ commented the Solicitor General, Robert Buckland QC. ‘I am pleased to say that our respondents reported that this risk is relatively minor, and that they are already confident that they can mitigate the risk where it does arise. We need to guard against any future proliferation of the threat, however.’
The government has proposed a public legal education campaign to promote the safe use of social media in the context of criminal trials; clearer guidance on what being held in ‘contempt’ really; and ensuring media organisations and the public better understood anonymity and reporting restrictions especially in the context of young people arrested but not yet charged. Current legislation only gives them anonymity post-charge.
It also recommended working with social media companies including Facebook, Google and Twitter to flag up and remove contemptuous or otherwise unlawful posts. Respondents questioned whether such companies should be legal liable where its users’ posts amounted to contempt or a criminal offence’.
The 2015 case concerned two teenage girls on trial for murder and, whilst local and national news coverage was fair, there were concerns about comments were posted beneath articles on Facebook, including threats to the teenage girls and attacks on the court process. Mr Justice Globe held that these formed a serious threat to the fairness of the trial, ordered a retrial and imposed reporting restrictions under the Contempt of Court Act 1981 banning the media from further reporting until the conclusion of the retrial. As a result, the Attorney General launched its call for evidence.
Prosecutors and the judiciary noted that in a limited number of cases in which defendants and interested parties shared information ‘in the full knowledge and intention of disrupting the trial process, which could amount to either a criminal offence or contempt of court, which can be managed by existing powers’.
However, for the majority of contempt cases, social media users were ‘not seeking to maliciously interfere’ with a trial but simply did not appreciate the consequences of their actions. The evidence suggested that most those who posted prejudicial material or breached anonymity might ‘not have given much thought about the potentially serious consequences of their actions’. ‘Public Legal Education can help people understand the rule of law and the importance of an effective legal justice system, as well as ensuring they understand the laws in this area. There needs to be a more widespread understanding about the appropriate use of social media to ensure that people “think before they post”.’
As to whether juries were being prejudiced by what they may saw on social media, judges told the review that they were confident that the directions they provided to the jury about disregarding the comments or posts they might see were effective. Both the judiciary and CPS felt that trial judges had ‘the tools to manage the posts without discharging the jury or imposing stringent reporting restrictions’. Such steps ‘mitigated the risk of prejudice’ but could cause ‘an unnecessary delay and additional drain on resources.’