Treating jurors like grown-ups

How can the courts stop people posting comments on social media that may jeopardise the right to a fair trial? That question was raised for the first time in a judgment published this month by the Court of Appeal.

It arose from the brutal murder in Hartlepool of Angela Wrightson, a vulnerable alcoholic who was beaten to death in 2014 by two schoolgirls aged 13 and 14. Their first trial opened last July and, within a day, numerous ‘vile’ comments about the girls had been posted on a Facebook page linked to the Hartlepool Mail’s reports of the case. The trial judge immediately ordered media organisations to stop hosting or linking to any such comments. Even so, prosecution and defence lawyers asked for the jury to be discharged.

Mr Justice Globe agreed and ordered a retrial, to take place at a different court some months later. News organisations were not allowed to explain why the trial had been postponed. And, to prevent any risk that the same thing might happen again, Globe decided that no reports of the retrial were to be published until it had ended.

This was a draconian order, which the BBC and eight other media organisations were right to challenge. It was lifted by Sir Brian Leveson and two other appeal judges in February, although their ruling in ex parte BBC could not be reported until verdicts were delivered this month: each defendant received a minimum term of 15 years.

Andrew Caldecott QC, for the media organisations, had pointed out that Rosemary West was properly convicted in 1995 of the notorious Cromwell Street murders despite adverse publicity at the time of her arrest. But Leveson, who had prosecuted West, noted that her trial had taken place in those pre-internet days when the ‘fade factor’ meant that juries were not likely to recall what they had read 18 months earlier. Nowadays, jurors could call up prejudicial comments at the click of a mouse. He ordered the media not to publish such comments during the girls’ trial.

Leveson recognised that, although the Wrightson case was the first trial to be put at risk by widespread social media comment, it was unlikely to be the last. Tempting though it was to consider whether the law could or should be developed to deal with the problem, he thought it better to wait until the attorney general had considered whether to issue guidance.

In my view, though, there comes a point when we simply have to trust a jury. I have no problem with media organisations restricting public comments on a current or future trial, whether on their own websites or on their Facebook pages. But what about the Facebook pages of individual journalists? Must I block all public comments in case somebody says something prejudicial about a case I might cover? Or is that Facebook’s responsibility? How is Facebook meant to know if something is prejudicial? And what about Twitter? What if somebody tweets a prejudicial comment and includes my name? Does that become my responsibility?

Leveson’s judgment was published at the very time when thousands of people were using Twitter, apparently with impunity, to thwart an injunction taken out by an individual in the entertainment business whose spouse had been involved in a ‘three-way sexual encounter’. It seemed there was strength in numbers, even though the Court of Appeal had granted an injunction preventing newspapers from naming any of those concerned.

In the same week, the Supreme Court ruled that Ameen Jogee should face a retrial for murder or manslaughter, even though his case had been the subject of considerable publicity in February when the court quashed his conviction after finding that the law of joint enterprise had taken a ‘wrong turn’ in 1984.

In a sign of the times, the Supreme Court warned not only media representatives but also ‘those publishing material on social media channels’ that they should not provide any more information about how Jogee’s alleged victim had died – although ‘academic discussion’ of the judgment would still be permitted and the facts found at Jogee’s first trial in 2012, as well as the court’s order, remained publicly available.

Complicated though this may seem, it is largely common sense. As the court itself said, the publicity given to its judgment ‘does not appear to be such as to prevent a fair retrial’. The trial judge will apply the law as it has now been established and the jurors can be trusted to decide the case on the evidence presented to them, whether or not they are aware of Jogee’s earlier trial.

If we are to continue asking members of the public to decide matters of guilt and innocence, it’s about time we started treating jurors as grown-ups and trusting them to decide cases on the evidence.

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