Introduction

On 20 December 2010 the Lord Judge, the Lord Chief Justice of England and Wales, issued, with immediate effect, interim guidance on the use of live text-based forms of communication, including Twitter, from court for the purpose of fair and accurate reporting, principally by the media1.

The interim guidance sets out the ground rules which courts must apply when considering whether to allow the use of mobile texts, email, social media (such as Twitter) and internet-enabled laptops for the live reporting by the media (and members of the public) in and from court proceedings. In his guidance the Lord Chief Justice concludes that, whilst the use of such technology would be unlikely to interfere with the proper administration of justice, anyone wanting to engage in tweeting from court should first seek permission of the judge.

There have been conflicting rulings on the possible use of live textbased reporting earlier in December 2010. A High Court Judge, Mr Justice Ousely, banned tweeting from the bail hearing of WikiLeaks’ founder, Julian Assange. This ruling came after a District Judge at an earlier hearing in the same month at a Magistrates Court allowed two journalists to tweet updates from the proceedings, provided that the postings were discreet and did not interfere with the judicial process. Until now it has been unclear whether tweeting or other such live text-based communications were in fact allowed in court or not. The Lord Chief Justice’s guidance aims to clarify the position pending a full consultation on the matter, which will open shortly.

The law

The law expressly and absolutely prohibits the taking of photographs in court2 and the use of sound recording equipment in court is also prohibited unless the judge’s permission has first been obtained3.

There is in fact no rule which expressly prohibits the use of Twitter, as there is no statutory prohibition on the use of live text-based communications in court proceedings which are open to the public and which are not subject to any reporting restrictions. However, as the Lord Chief Justice points out in his guidance, the general rule applied by the courts in England and Wales is that mobile phones and all electronic devices should be turned off in court. The effect of this rule was to make it impossible for devices to be used for live text-based communications whilst sitting in the court’s audience.

The Lord Chief Justice’s guidance

The guidance makes it clear that the rule remains that mobile phones and other devices should be turned off in court in order to prevent any disturbance to the proceedings. However, in providing his guidance, the Lord Chief Justice says that the principles underlying the ban on sound recording in court, which is prohibited unless the court permits it, should be extended to the use of live text-based communications. As such, anybody wishing to turn on their mobile phone, make use of Twitter, email, or web-enabled laptops from court must first ask for the court’s permission.

An individual may ask a judge either with a formal application or informally via court staff for the judge’s permission to switch on a device in order to make live text-based communications of the proceedings. Under the guidance the ‘paramount’ question the judge must ask is whether to permit such use would interfere with the proper administration of justice. The Lord Chief Justice says:

Subject to this consideration the use of 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”.

Considering when live text-based communications could interfere with the proper administration of justice, the Lord Chief Justice said:

Without being exhaustive the danger to the administration of justice is likely to be at its most acute in the context of criminal trial eg where witnesses who are out of court may be informed of what has already happened in court and so coached or briefed before they then give evidence, or where information posted on, for instance, Twitter about inadmissible evidence may influence members of a jury. However, the danger is not confined to criminal proceedings; in civil and sometimes family proceedings, simultaneous reporting from the courtroom may create pressure on witnesses, distracting or worrying them.”

Under the guidance a judge may also, if necessary, limit the use of live text-based communications in court to the media if there is a risk that wide-spread use of mobile electronic devices in the court room could cause interference with the court’s sound recording systems or become a distraction in the proceedings.

Points to note

This interim guidance comes pending a full consultation on the topic involving the judiciary, the Secretary of State for Justice, the Attorney-General, the Director of Public Prosecutions, the Bar Council, the Law Society, the Press Complaints Commission and the Society of Editors. It is be considered by the courts, the press, litigants and their legal representatives when any application is made to the court to permit the use of such live text-based communications and as such is a helpful guide pending the outcome of the full consultation.

Of course whether tweeting, emailing, texting or simply publishing one full article after a day in court, the general rules on contempt apply. The Lord Chief Justice points to the risks under the Contempt of Court Act 1981 which makes any report to the public at large unlawful if it causes substantial risk of serious prejudice to the proceedings in question regardless of the author’s intention. The message is clear: the duties of fairness and accuracy remain in place even if the form of reporting may have changed.

The press has welcomed the guidance and in some parts it has been taken as a sign that the judiciary may be edging closer towards allowing live video feeds from the courts in England and Wales. However allowing live text-based communications by permission is a simple extension of the rule which applies to sound recordings. Relaxing the absolute prohibition on the taking of pictures in court may be a bigger step requiring much more careful thought.