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In October's issue of Connect magazine, Advocate Olaf Blakeley talks about the threat social media poses to fair trials by publishing material kept from the jury, as well as opinions that might influence them.
"The UK Attorney General has announced that he is seeking information from judges, police and victim support groups to come forward with information about cases in which they consider posts on social media may have comprised a criminal trial.
"In years gone by, the greatest control on divulging criminal proceedings was upon the media. Press reporters were warned by judges about parts of trials which must not be reported and the press itself adheres to codes, as well as legislation, to ensure no criminal proceedings are jeopardised. The importance of such rules cannot be understated. It is quite wrong for a defendant facing serious punishment to have his or her trial comprised by publicity which may influence a jury.
"However, now, with social media, practically every individual has the capacity to ‘report’ to a wide audience both things that have happened at trial or, more importantly, their views and opinions on the offences charged, the evidence, the defendant and the witnesses. They also have the ability to bring attention to matters which, without their meddling, would not be in the jurors’ minds and this can, potentially, be the most dangerous of all posts.
"To give an example: except in special circumstances, the fact that a defendant may have committed previous offences is immaterial to his trial for the current offence; his previous convictions are kept from the jury because the rule is that he should be tried on the evidence relating to the current offence and not judged by being presumed to having a predisposition to commit crime. That is right in my opinion. It is entirely possible for a person to have committed (many) crimes in the past but ‘go straight’ and become a law abiding citizen. Even if that is not the case and they still commit crimes it doesn’t mean they have committed the one in question. It is possible, or may appear possible that the jury, or part of it, could be influenced to the prejudice of the defendant if it became aware of their history.
Pictured: The impact of posting comments about a trial on social media is greater in small jurisdictions like Jersey.
"Social media changes all of this. A person who knows a defendant’s antecedents may well be tempted to spout about it on Facebook, or some other site, and this would completely defeat the rules ensuring a fair trial. If you have been watching the recent series ‘Liar’ you will know of the story in which a surgeon is accused of rape, and the alleged victim decides to post all manner of things about him, because she is frustrated by the police investigating the alleged offence. Well, this is not just fiction: it happens in real life.
"About two years ago a murder trial in the UK was halted because of comments/posts uploaded to Facebook. In that trial, two girls had been charged with the murder of a vulnerable woman, Angela Wrightson. By day two of the trial Facebook was littered with comments negative to the defendants (including threats to them) along with many other ‘opinions’ and comments. As a result of the content the judge stopped the trial and it recommenced in a different county. In Jersey we cannot move trials to a ‘different county’ and so the risk in a small jurisdiction like this is greater and more problematic.
"Bloggers and social media posters need to understand that not only is posting comment on the internet dangerous to the trial process, but is also very dangerous to themselves. In one case in the UK, a juror made contact with a defendant on Facebook during the trial and the juror was sentenced to 8 months’ imprisonment. So, you need to be careful. The best way of steering clear of trouble is to not involve yourself with anything to do with a court case underway. Clearly, if you have a friend on a jury you should not contact them while they are serving and ask them about the case. Never pass comment on witnesses or defendants and do not contact any of those either. If you are on a jury you should not undertake your own ‘private investigation’ by looking up press reports or posts on the internet and under no circumstances contact any of the witnesses in the trial.
"With the risks so high, I have no doubt that courts will become stricter in their approach to social media commentary and new legislation will be introduced to specifically tackle the problem. It is a serious problem especially in ‘sensitive’ cases where victims of alleged sexual abuse are identified either directly or indirectly by the revealing of facts which enable a reader to conclude identity. "
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