Urgent New Guidance Needed On Use Of Twitter In Criminal Trials

This article first appeared in Legal Week on 11 November 2011.

The problems that Twitter can pose in legal proceedings have been highlighted by the recent 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 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, which was 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. However, it arguably goes further and provides a presumption that Twitter should be allowed:

"Subject to [considering the proper administration of justice], the use of an unobtrusive, hand held, virtually silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice."

Despite this assertion that its use is 'generally unlikely to interfere with the proper administration of justice', the power which it affords journalists 'broadcasting' from court is both frustrating and concerning. This power was demonstrated twice during the recent trial of Mohammad Asif at Southwark Crown Court who was found guilty, along with fellow player Salman Butt, of conspiracy to cheat and conspiracy to accept corrupt payments, 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...