Why is Twitter seen as such a challenge to the justice system? It’s all about information, and who controls it.
Even in the digital age, the courts still wield enormous power. When a reporter walks into court he or she has to be aware of a series of restrictions.
You can’t give your opinion on a case, you can’t publish information the jury hasn’t heard and you definitely can’t film or record proceedings. If there are children involved, whether as defendants, victims or witnesses, they usually cannot be identified. You definitely can’t name the victims of sexual assault and you shouldn’t really identify blackmail victims. And if a judge has issued a contempt of court order banning reporting of the case, you may have to wait months or even years before you get a chance to publish your story.
Obviously members of the public aren’t aware of these restrictions. In the past this wasn’t a problem – they could tell their friends and family at home or down the pub, but they certainly couldn’t publish their words to the masses. That was left to the limited number of newspapers which could be easily monitored, and punished if necessary.
But with the internet, and especially Twitter (highly visible, highly fashionable), there are now millions of publishers out there. They can dash off a tweet in a few seconds without thinking of the consequences. How can they all be trusted to toe the line? Do you punish all the errant tweeters, or just the tweeters with the most followers? Or do you change Twitter by inserting a ridiculous delay mechanism?
Now that Twitter users have ‘made a mockery of the courts‘ by defying a series of superinjunctions, media commentators are rushing to ask their favourite question: ‘Where will it all end?‘ Will Twitter users wreck trials left, right and centre by spreading 140-character gossip in a global game of Chinese Whispers? Will it threaten the entire justice system?
A lot of people see this as a problem with Twitter. As a court reporter, I believe it is the justice system that is the problem and needs to adjust to the fact that it can no longer control information in the age of the internet.
Before Twitter it was Google that judges worried about. What if juries did a search on the defendant’s name and discovered all kinds of prejudicial information? What if they used it to investigate the crime themselves, or carried out their own research? What if they ignore everything we say and come to their own decisions?
Juries aren’t given much credit in court. They’re treated a bit like children asking questions about the facts of life. No, you don’t need to know about that. You just leave the court while the grown-ups discuss what to tell you. Because if you hear something we don’t want you to hear then you’re going to get up to all kinds of mischief. You can have minds of your own, as long as you follow this list of directions.
If you needed proof that this is wrong, here’s the view of a juror who happened to be a journalist. Because jurors are just like me and you, you see?
When I did jury service for the first time at the Old Bailey a few years ago–a case of aggravated burglary (ie, with violence)–I changed my mind about what one can expect of a jury. I had naively expected high standards of professional competence from the court, but thought the jury might struggle to do a good job. It was just the opposite. The prosecutor seemed to have been handed the brief as he entered the court. He was unacquainted with his own case. The defence dealt pointlessly (or suspiciously) with inessentials. The rules of evidence seemed mainly designed to deny the jury important information that, in its ignorance, it might misunderstand. The jury was engaged, gravely aware of its responsibility, and diligent in filtering out its own prejudices and considering only the facts.
What might a new system look like? Over in America you can comment on court cases. You can film in court. You can even get hold of and publish police charging documents. Juries are told to ignore prejudicial or bad information rather than shielded from it. Is this the reason for their higher crime rate? Has the justice system collapsed?
Here in the UK the Contempt of Court Act 1981, which is responsible for many of the restrictions on court reporting, was brought in to prevent the media undermining a fair trial. It’s meant to stop newspapers and their millionaire owners exerting undue influence, not to restrict access to information. As someone* somewhere once said, knowledge is power. No wonder Wikileaks is so popular.
If Twitter users are defying the rules, it doesn’t mean they are all anarchists and idiots out to distress rape victims and wreck trials. It means that they believe they are unreasonably being denied the facts. It means the rules might just be stupid. Let’s be glad it came to a head over a cheating footballer rather than government repression and state murder.
In the old days the public relied on newspapers to be their voice. Times change. The public are finding their own voice.
* Sir Francis Bacon, in 1597, apparently.