Social media may be putting the right to a fair trial at risk, according to a public consultation launched by the government’s chief legal adviser.
On Friday the attorney general, Jeremy Wright QC, published a call for evidence to assess the impact of social media on criminal cases and establish whether extra reporting restrictions are needed.
The first trial of the teenagers, who were 13 and 14 at the time of the killing, was abandoned by the crown court judge amid a torrent of social media comments and abuse that threatened to prejudice the hearing.
Before the second trial began there was a legal challenge over restrictions imposed on the mainstream media. They were eventually partially relaxed but nonetheless prevented reports of the trial being released on Facebook and compelled editors to disable comments on website message boards.
The case highlighted the increasing problems faced by courts and law enforcement officers in upholding traditional, strict contempt laws designed to ensure that defendants receive a fair trial.
The Contempt of Court Act 1981 sets out what can be published before and during a trial. It is contempt of court to publish anything that creates a “substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced, even if there is no intent to cause such prejudice”.
While journalists are well aware of the traditional restrictions, most of the public posting comments on social media sites are unaware of such limits. For example, juveniles are not normally named in criminal cases.
Launching the consultation, Wright said: “Every defendant in this country is entitled to a fair trial where a verdict is delivered based on the evidence heard in court.
“Our contempt of court laws are designed to prevent trial by media. However, are they able to protect against trials by social media? I am looking for expert evidence on whether the increasing influence and ubiquity of social media is having an impact on criminal trials and, if so, whether the criminal justice system has the tools it needs to manage that risk.”
Wright told the Guardian that he was not approaching the issue with any preconceptions about whether there was a need to change the law. Judges, lawyers, police, victims’ organisations, journalists and human rights groups are being approached for comments.
“We have to keep a balance between the principle of freedom of speech and the integrity of the trial process,” he explained. “What I want to see is how broad the concerns are, then we can start to think about the issues. I want to see whether judges have the tools required or whether they are crying out for some new powers or changes in the law.”
The scope of the inquiry could also extend to any problems caused by archived media content – old stories that remain easily accessible via the internet – as well as the dangers jurors face if they research trials they are hearing online.
Wright said that the Wrightson case demonstrated that social media “is having some impact on the administration of justice in criminal trials, but it does not show to what extent … Was this an isolated incident or are there more examples of trials being affected by social media commentary?”
The consultation asks respondents whether they have been involved in a case in which reporting restrictions have been breached by social media and whether the “risks posed by social media to the administration of justice are greater than five years ago”.
The call for evidence is open until 8 December. The attorney general’s office will produce a report and/or recommendations afterwards.