On 14 December 2011 the Lord Chief Justice of England and Wales issued guidance on the use of 'Live Text-Based Forms of Communication (including Twitter) from Court'. He noted that there is no general prohibition on the use of this type of communication in the courts of England and Wales. This position is based on the premise that justice must be seen to be done and that accurate, live reporting is one way in which this can be achieved. In contrast, the position in Scotland is that judicial permission is always required before this type of communication may be utilised.

The Positions

The Lord Chief Justice's (the 'LCJ') guidance on the use of social media in the courts of England and Wales is very clear. The LCJ set out that the judge has the ultimate responsibility for ensuring that the 'proceedings are conducted consistently with the proper administration of justice, and to avoid any improper interference with its processes'. He argues that 'open justice' is a fundamental aspect of the court system and that live reporting from court may help to ensure that justice is seen to be done.

Live reporting from court by journalists is presumed not to interfere with the administration of justice as it encourages fair and accurate reporting of the proceedings. Therefore, journalists do not require the permission of the court before using a mobile phone, in silent mode, or a laptop or other such device.

All others who wish to use these devices must seek permission beforehand. The judge must decide whether or not to allow their use by determining if permission would interfere with the administration of justice. In criminal proceedings, and some civil/family actions, the use of live reporting from court may put undue pressure on witnesses. In these cases, journalists and legal commentators may be given permission, but that the wider court may be prohibited. These particular considerations aside, the LCJ argued that live reporting from court would not normally hinder the proper administration of justice.

The position in the Scottish courts is somewhat different. Anyone who wishes to use a device which allows live text-based communication in a Scottish courtroom must first seek the permission of the judge.

This position was confirmed by Elizabeth Cutting, head of communications for the Judicial Office for Scotland, during a recent debate on the issue at Strathclyde University. She argued that the courts of England and Wales have opened themselves up to tweeters and bloggers without any effective controls. She stated categorically that she would not be recommending a similar approach in Scotland. She also argued that judges in Scotland should follow the lead of American judges and give specific directions to juries regarding use of the internet and information about the trial that they pick up outside of the courtroom to avoid proceedings being prejudiced.

The Pros and Cons

Live reporting from court allows the public greater insight into the workings of the legal system and helps to demystify the legal process. During the Tommy Sheridan perjury trial James Doleman kept a detailed blog of the proceedings. These blog entries provided the public with a more in-depth account of a trial than is normally available.

In contrast, during the hearings on the application to liquidate Rangers Football Club, Lord Hodge became aware that someone in the courtroom was tweeting live updates from the court as the hearing progressed. Lord Hodge had to remind the court that this activity was prohibited and that anyone found tweeting without permission would be found in contempt of court.

It is understandable that the Scottish courts want to guard against the possibility of proceedings being prejudiced or witnesses being intimidated. However, it is important for the courts to embrace modern technology and the principle that justice must be seen to be done. The public have a right to know, up to a point, what is argued in our courts. If a balance can be struck between this right and the rights of parties involved in proceedings which are not prejudiced by live reporting, then its use could potentially be positive for Scottish justice.