Many of us remember the good old days – say 5 years ago (!) when a jury in a criminal trial knew nothing of a defendants’ background. They simply heard the evidence and made their decision.
In the age of the internet this is becoming increasingly difficult to achieve. The dilemma was illustrated in the recent trial of Simon Harwood who was cleared of the murder of Ian Tomlinson during the 2009 G20 demonstrations. Some newspapers had archived stories on their websites referring to previous incidents during the police career of Mr. Harwood. Mr. Justice Fulwood was concerned that jurors might access these stories and be influenced by them so he asked the relevant papers to remove them from their sites.
One can see the concern. Viewing such incidents could indeed affect their view of the defendant. But there is a real problem in trying to control what gets onto the web. If it is not on these sites it will be somewhere and it is near impossible to police.
Remember the all encompassing injunction obtained by Ryan Giggs to prevent publication of details of his private life? He was forced to waive his anonymity after over 75,000 posted his details on twitter –
So while the judges have a genuine concern where does leave us in an age where it is effectively not possible to conceal events from a defendants past? We have contempt laws to ensure that a defendant has a fair trial based on the evidence. That has been a cornerstone of our justice system and should certainly be protected. But has the time come for society to acknowledge that material is going to be out there so we need to trust jurors to be able to make their decisions on the basis of the real world in which we all now live?
I can see why judges will need to carefully explain to the jury the dangers of taking notice of anything they might have seen online. But I do not see how they can even begin to try and block such information which will inevitably turn up elsewhere.
I have said before that sites like Twitter are not all good and they can cause injustice. But equally I think that it is unrealistic to censor the internet which, for the time being, seems to be more powerful than maybe we would like.