[Updated 6/2/14] The most high-profile white collar crime trial in the history of the State got underway today. This post in not about that case, but rather the impact of social media on court proceedings and reporting. Previously, when the jury for that trial was being selected and sworn in, Judge Martin Nolan made a number of interesting comments which hint at the impact social media and the internet can have on court proceedings.

[Judge Nolan] told the panel that it is unrealistic to expect them not to have heard of Anglo but said that anyone who has expressed strong views in public should not sit on the jury.

He said that this includes views expressed on the Internet, including Facebook. Judge Nolan said it would be embarrassing for the jurors if it emerged during the trial that they had expressed views on Anglo on such “permanent forums.”

Once the jury had been selected, he warned jurors that they “should not conduct their own investigations into the case or even read up on it. He said he will regard such activity as a breach of the jurors’ oaths.”

The risk that a juror would engage in independent research is not new but it is heightened by social media and the availability of information online. For example, a university lecturer in the UK was jailed for three months in 2012 for researching a defendant online and sharing her findings with the jury.

It is obvious from the comments of Judge Nolan that the Irish judiciary is alert to the risks. With smartphones in every pocket an array of research resources are available to everyone to an extent unimaginable fifteen years ago. The temptation for a juror to google the accused over lunch could be considerable. [In fact, the issue has already arisen: last year a criminal trial in Cork collapsed when the jury foreman informed the judge hearing the case that a juror had learned of information concerned the accused on Facebook and had discussed it with fellow jurors. Judge Ó Donnabháin warned the juror that she could be facing contempt of court proceedings and granted her legal aid in order to engage a solicitor.]

Research by jurors is an issue which the Law Reform Commission has already considered, in their 2013 Report on Jury Service.

The advent of the internet and social media sites, and in particular their ready accessibility through smart phones or Wi-Fi enabled tablets, now provide access to a wide range of materials such as archives of media reports that may have reported on the factual background to a trial, general information on scientific matters that might arise in a trial (such as DNA evidence) and a huge array of general commentary such as blogs and other material from social media. This information can contain prejudicial material, and has the potential to impact on the right to a fair trial. In recent years, trial judges have incorporated specific comments to the jury not to access information regarding the trial through internet search engines or social media.

The Commission recommended that specific reform was needed to deal with juror misconduct in carrying out “extraneous investigations” using the internet and social media. Their report includes a draft Juries Bill 2013 which includes, in section 39, an offence of making inquiries about the accused or any other matters relevant to the trial. “Making an inquiry” is defined as including “conducting any research, for example, by searching an electronic database for information (such as by using the internet), viewing or inspecting any place or object, conducting an experiment or causing someone else to make an inquiry.”

The proposed penalty, however, is a Class B fine on summary conviction – currently a maximum of €4,000. Under the existing law, referred to by Judge Nolan, such research could be a breach of the juror’s oath and result in a finding that they are in contempt of court. Such a finding could lead to a prison sentence, as has happened in the UK. I suspect that the proposal by the LRC is intended to highlight the issue for jurors and while the draft Bill is only a suggestion, one would think that a stronger maximum penalty is warranted.

Inappropriate contact between parties to proceedings is another risk, referred to by Gerry Curran in the Courts Service News in 2012.

Examples of flagrant abuse of this exist [internationally], including the appearance of disparaging remarks about other jurors on social media sites and jurors ‘friending’ each other on Facebook, trying to ‘friend’ counsel for either side and even ‘friending’ defendants in cases they were serving on.

This might appear unlikely to some readers but anyone who has maintained social media accounts for a few years is likely to have received more than one unexpected friend request. Juries already get warnings about discussing cases, but Judges may have to spell things out for jurors. According to Curran:

“[Studies suggest] that the magnitude of social change caused by social media requires the judge to adopt additional specificity when giving instructions. Brand names of social media need to be used as people are so used to using them as an extension of thought. It is also important to emphasis the fair trial element of the instruction – as the same familiarity might well cause a feeling in the juror of giving up a personal freedom in not communicating.

As if the courts don’t have enough on their plate worrying about the conduct of juries, court orders can of course be broken by members of the public. In the UK in 2013 two men received suspended sentences for posting photographs allegedly showing the now-adult killers of James Bulger, in breach of an injunction, on Facebook and Twitter (AG v. Harkins & Liddle [2013] EWHC 1455 (Admin)). That decision shows the relative speed and success with which the UK authorities have kept on top of the issue and no doubt will act as a deterrent in future.

Whatever about jurors, journalists have certainly taken to social media and many provide interesting updates in between various court hearings. [In fact, the Irish Times is liveblogging the Anglo trial.] Curran notes the risks:

Live ‘tweeting’ is akin to broadcast – it is sent with no delay, there is no taking it back, and no limits to dissemination. But what if soon after a courtroom tweet a judge rules something inadmissible, or to be ignored by the jury, or is patently shown to be a lie? In the UK guidelines effectively limit the use of Twitter to accredited media, who apply to do so and who, of course, are familiar with the court process and the consequences of endangering same.

Again, these risks are not necessarily new: a journalist might deliver an update on radio news during a lunchtime broadcast which includes material which might later be ruled on by the presiding judge. Journalists, of course, have expertise in dealing with court reporting and generally are sensitive to what should and should not be reported depending on the stage the case has reached.

Nevertheless, recent developments certainly suggest an aversion to live tweeting or “contemporaneous reporting”. In the high profile surrogacy guardianship case  (M.R & Anor v. An tArd Chlaraitheoir & Ors [2013] IEHC 91), the appeal of which is currently being heard by the Supreme Court,  Mr Justice Abbott directed that the case be heard otherwise than in public but that certain journalists be allowed to attend and report on the hearings subject to a number of conditions, including that “no contemporaneous social media reporting e.g. by Twitter shall be carried out”. [I am not sure how the Irish Times liveblog of the Anglo trial is maintained but such a blog could constitute contemporaneous social media reporting.]

Similarly, family law proceedings have now been opened up to the media who can report cases so long as the parties are not identified. New guidelines on reporting of such cases prohibit live-tweeting (although the Courts and Civil Law (Miscellaneous Provisions) Act 2013 do not contain the prohibition). Those guidelines appear to have been circulated to judges but not, to my knowledge to date, to lawyers and they don’t appear to be available on the websites of the Minister for Justice or the Courts Service.

As with many areas of the law, it is enforcement rather than any new measures themselves that will be interesting. Recent experience in the UK is of effective detection and prosecution of offences followed by serious penalties. The Anglo trial, which will last for months and be of intense media interest, may provide the first real test for the Irish court system in dealing with these dangers.

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