Is it possible to keep information from the public when websites such as Wikileaks seem to be beyond reach of the law?
The man previously known as Jon Venables pleaded guilty to child porn offences and his new name was not published by reporters who heard it read out in court. Photograph: PA
The attorney general has dismissed calls to scrap laws that prevent publication of prejudicial information about unconvicted defendants.
Delivering the annual Kalisher lecture to the Criminal Bar Association on Tuesday, Dominic Grieve QC rejected claims that contempt of court laws were no longer fit for the age of Twitter, blogs and online news archives.
The government’s senior legal adviser acknowledged the problems that can arise now that damaging information may circulate so freely. In the Baby P case, a judge had banned the identification of three people convicted of causing the death of Peter Connelly because two of them were subsequently due to stand trial for another offence.
“It was not long before their identities were being distributed on social network sites, external websites and even via text messages with an instruction to pass them on,” Grieve said.
Scotland Yard’s electronic crime unit had been reasonably effective in getting the names removed from UK-based sites, he explained, but dealing with foreign sites was more difficult. In the end, other measures were taken to ensure that Steven Barker and Tracey Connelly received a fair trial last year.
Is it still possible to keep information from the public when websites such as Wikileaks seem to be beyond reach of the law? Little more than 20 years ago, in those far-off days before the internet, the UK’s highest court saw some point in banning publication in Britain of a former MI5 officer’s memoirs even though Spycatcher was on sale in the United States and anyone could bring a copy into Britain.
Nowadays, the information in a US-published book would be regarded as being in the public domain and no court would block reports of it. But our judges regularly order journalists not to publish information that would prejudice forthcoming trials. And these orders are surprisingly effective: as Grieve said, no media organisation wants to be responsible for bringing a trial to a premature end. Nor is it normally in the media’s interests to leak information to an off-shore website.
The bigger question is whether there is still any point in restricting the publication of information that might improperly influence a jury. Recently, the former director of public prosecutions Lord Macdonald said that trials should not be invalidated simply because jurors were found to have done online research.
It is hard to believe that the 27-year-old man formerly known as Jon Venables could have received a fair trial this summer on charges of downloading child pornography if a jury had known that, at the age of 10, he had murdered James Bulger. In the event, the man we know as Venables pleaded guilty and his new name was not published by reporters who heard it read out in court. I have forgotten it already.
In the US, of course, there are virtually no restrictions on what can be published about a forthcoming – or current – trial. But Grieve pointed out that juries in the US are vetted to exclude individuals who may have prejudged the case that they have been called to try. In England and Wales we no longer permit defendants any choice in who is to try them and we no longer sequester juries in hotels and expect them not to read newspapers or watch television.
But judges do tell jurors that they should not allow themselves to be influenced by media reports. And juries are certainly not meant to do their own online research into cases they are trying.
The attorney general drew a distinction between coverage of a case on a news organisation’s website, which would be expected to comply with the contempt laws, and trawling through the blogosphere, which is not.
He suggested that those who ran blogs on which the public posted comments might be under an obligation to avoid prejudicing trials. He did not explain how the authorities could tell these sites what information was covered by court orders without running the risk that this information would become public as result. His hope was that people would understand the importance of not prejudicing a fair trial.
Grieve is right to maintain restrictions while taking a largely non-interventionist approach to contempt of court. Despite the growth in social media, it is still possible for juries to try defendants without knowing facts about them that would render acquittals impossible.
Freedom of expression is essential but delaying the publication of prejudicial information is a small price to pay for an even nobler ideal: a fair trial.
Joshua Rozenberg is a freelance legal writer, commentator and broadcaster