Up with the tweeters
Another small step... towards the Scottish courts embracing digital communications took place this week when Lord Bracadale, judge in the Tommy Sheridan perjury case, permitted media representatives to relay the progress and outcome of the sentencing hearing via Twitter.
Full advantage was of course taken, and the resulting news rapidly repackaged and tweeted of new by those waiting elsewhere - my tweet linking to the Journal online news has been the most clicked on of any of the week's news items.
No disruption to the court proceedings has to my knowledge taken place or been complained of, and we can expect the practice quickly to become commonplace in newsworthy cases. The obvious question then is, what if any limits should we place on it?
Leaving aside for the moment the special position of the jury, is there any more reason to deny the privilege to interested members of the public than there is to members of the media? Possibly, in that they are more liable to tweet about anything they choose, rather than sticking to reporting the proceedings; and once you allow them to start using their mobiles, you open up a much greater likelihood of interruptions from disruptive noises.
Against that, it might be argued that if the principal object is to preserve order in court, the general powers to deal with any disturbance should be enough. However the public are used to being asked to turn off their mobiles in appropriate circumstances - the cinema, for example, so it does not seem unduly restrictive to apply a general rule to court proceedings. People can always nip out of the courtroom.
The Sheridan case also threw up the problem, which has surfaced elsewhere, of a juror or jurors resorting to Facebook to post comments on the jury's deliberations, which quickly become public knowledge in the face of the supposedly absolute rule that nothing should be disclosed of what is said in the jury room. And we have recently had senior English legal figures publicly discussing what if anything can be done about jurors resorting to the internet to try and find out more about a case, and in particular the accused.
Unless we are going to give up on the jury system altogether - and we know what happens whenever any government tries to restrict the right to jury trial in English law, even though Scotland has no such enshrined rights - we are going to have to decide what sort of controls to seek to impose on a jury's private activities.
One problem, it seems to me, is the lax application (even non-application?) of the Contempt of Court Act in England as opposed to Scotland, as regards publication of potentially prejudicial material prior to trial. Am I alone in having been surprised by the freely circulating photos of the man now accused of the Joanna Yeates murder, and the discussions of his background? It was the same when her landlord found himself under suspicion. The more material of this sort is allowed to circulate prior to trial, the more there is waiting to be discovered by an inquisitive juror. Granted that with the internet, data can be hosted anywhere in the world and remain as accessible to people here; but with cases like this it has to originate in the UK and those handling it can be subject to our legal regime.
There is no point in wringing our hands at the point of trial if we are not prepared to be consistent up till then about what can be published. Whether it is feasible to apply much stricter controls than the media have been used to, I do not know, and obviously it is more difficult if an accused has been in other previously publicised cases. It would in any event make sense to emphasise to a jury at the outset of a trial that they must decide a case solely on what they see and hear in court; and not discuss it with anyone outside, by any form of communication; beyond that we probably have to rely on them carrying out their oath.
In short the whole issue of digital communication in relation to court proceedings is best looked at from a broad perspective, rather a narrow focus on any particular incident that has given rise to concern; and it seems unlikely that any single measure will be enough to shore up the integrity of the jury system, if that is what is desired.