The same editorial rigour about contempt of court which applies to the printed press should also apply to online publications, Attorney General Dominic Grieve QC has said.
The growth of the internet, blogs and social networking, 24-hour TV news and newspaper websites strengthened the rationale underpinning contempt laws, Grieve told the Criminal Bar Association at the Old Bailey, earlier this week.
Delivering the annual Kalisher Lecture, Grieve stressed the importance of free speech and open justice, saying: “The press inform the public about what is going on in our courts and in so doing contribute to public confidence in them.
“If the public feel disquiet about certain topics, a free press can in turn help to identify and express it.
But two particular issues had given him food for thought. One was the impact of the internet, the other the impact of the decision to allow evidence of a defendant’s previous convictions to be put before a jury, which had raised concern that it might affect the media’s approach.
Grieve said he was not suggesting that the media was awash with articles breaching the law by detailing a defendant’s previous convictions – but it was an issue which needed to be kept under review.
The growth of the internet had not reduced the importance of the contempt laws, and there was still a need for fair and contemporaneous reporting of courts, he said.
While a jury could be trusted not to research a case online that did not permit news organisations to publish potentially prejudicial material, Grieve said.
“To allow that could lead to the rapid growth of news campaigns and widespread dissemination of prejudicial material during the most sensitive time of a criminal case, namely when it is at trial.”
The spread of such material during a trial would almost inevitably cause problems.
The way in which material could be spread on the internet was demonstrated in the Baby P case, when the identities of two of the convicted defendants – who were subject to anonymity orders because they were to face a second trial – became widely known.
“The established media did not breach, I stress, the terms of that order, but the case itself drew considerable public attention and, understandably, disgust,” Grieve said.
“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 to friends.”
The process was stopped through work by the prosecution and the Metropolitan Police’s eCrime unit.
In other cases, high profile victims who were granted anonymity were identified on the websites of publishers outside the English jurisdiction, Grieve said.
Such cases had led to criticisms that the contempt of court jurisdiction was out of date, and that technology could simply evade the legislation.
But the problem of potential prejudice might not be as great as some people suggested, for two reasons – the contempt legislation and safeguards inherent in the legal system, and because only a fraction of cases received the sort of publicity that might be a cause for concern.
“The test is that of risk: a substantial risk of serious prejudice to the fairness of the trial. The reality is that the majority of people don’t rely on such blogs for their news; they rely on television, radio and national newspapers, either in hard print or increasingly their online sites,” Grieve said.
While there were recent cases indicating that some jurors had looked at material on the internet during a trial, one had to beware of jumping to conclusions that this was a widespread practice.
There was also a distinction between “looking at contemporaneous reports from recognised national media during a trial and actively looking for extraneous, archived material through the use of search engines”, Grieve added.
He said: “If it is increasingly easy for individuals to act as unofficial journalists and publishers, the greater the need for general understanding about why restrictions are sometimes necessary.
“This extends particularly to those who run websites upon which members of the public place their opinions. I understand that there is no clear authority in relation to their legal obligation but there must, I feel, be an argument that they too have to ensure that a trial is not prejudiced by what is posted.
“Further discussion with such organisations is perhaps another area that needs to be explored with a view to increasing their understanding of those potential risks.”
He wanted to develop a good working relationship with the media, to “chart a course that reduces the likelihood of problems in future”, Grieve said, adding: “I am open to suggestions and indeed criticism, preferably constructive, on how best open justice and trial by jury can be protected and facilitated by the necessary restraint of the unqualified freedom of expression that can on occasion threaten it.”