The Lord Chief Justice, Igor Judge, outlined interim guidance on the use of live text reporting in court last December, saying that judges can authorise live reporting on a case-by-case basis if a formal or informal application to the court is made.
He is now asking for feedback from interested parties on the circumstances under which instant reporting should be allowed, who should be covered and what the potential risks are.
The consultation document, published this week, raised a number of potential concerns about disruption to court proceedings, fairness and witness protection.
It said: "Platforms such as Twitter (which allows a maximum of 140 characters per post) by their very nature usually involve less measured remarks, which are presented in a manner which invites commentary and opinion from other users, and are posted in real time with no opportunity for review.
"The use of live, text‐based communications from court may fuel the potential for jurors, whether accidentally or otherwise, to encounter prejudicial or inaccurate material online.
"Live, text‐based communications from court may be used by witnesses to find out what has been said in court before they give evidence themselves."
The report also raises the issue of how allowing Twitter and mobile internet access for the media could be policed alongside the "normal and almost invariable rule that mobile phones must be switched off in court".
Accredited media could be required to sit in a designated area of the court room so that it is clear who can - and cannot - use communications devices during the hearings. This, however, raises a big question about who is considered to be "the media".
"Certainly accredited journalists and representatives would be included, though the identity of those wishing to participate in reporting is evolving with the technology by which those events are reported," the document said.
"Student newspapers, bloggers and social commentators may wish to engage in live, text‐based communications from court, but would not necessarily have media accreditation.
"Non‐accredited members of the media can not be presumed to have the same appreciation of the legal framework surrounding court reporting, or the industry standards set out by the Press Complaints Commission, as accredited media representatives must be presumed to have."
Legal writer and commentator Joshua Rozenberg says courts should "no longer pretend that we can protect juries from being influenced through modern communications".
"Without relaxing our contempt laws, we must simply acknowledge that there is an increasing risk that juries will have read and seen things that are prejudicial to defendants they are trying. Judges must put much greater emphasis than they do now on explaining to juries why they are required to try cases only on the evidence they hear in court," Rozenberg writes on the Guardian's law blog.
The Supreme Court has already given journalists the green light to use Twitter to report from cases, provided they do not disrupt the running of the court.
Exceptions will apply however, such as cases where there are formal reporting restrictions in place, family cases involving the welfare of a child, and cases where publication of proceedings might prejudice a pending jury trial.
The six key questions to which the consultation is seeking responses are as follows:
- Is there a legitimate demand for live, text‐based communications to be used from the courtroom?
- Under what circumstances should live, text‐based communications be permitted from the courtroom?
- Are there any other risks which derive from the use of live, text‐based communications from court?
- How should the courts approach with the different risks to proceedings posed by different platforms for live, text‐based communications from court?
- How should permitting the use of live, text‐based communications from court be reconciled with the prohibition against the use of mobile telephones in court?
- Should the use of live, text‐based communications from court be principally for the use of the media? How should the media be defined? Should persons other than the accredited media be permitted to engage in live, text‐based communications from court?
Image of the Supreme Court by Rev Stan on Flickr. Some rights reserved
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