The trial of PC Harwood raises an important issue unrelated to the outcome of the criminal trial (for what its worth, here is a very good summary from the crimsolicitor blog of why it ended with a “not guilty” verdict).
As reported by the Guardian, the trial judge requested two news organisations to “take down” from their online archives articles that he thought created a risk of prejudice to the trial if read by the jury.
These were articles that had originally been published online before the trial began. The articles were lawful when first published, which I believe occurred before the “active proceedings” contempt guillotine came down.
Yet the judge still felt that those articles risked prejudicing the outcome of the trial and asked for them to be removed from the Internet during the trial.
Now maybe this isn’t the time for the media to be getting on its high horse as the Leveson Inquiry hearings conclude and with several recent contempt own-goals scored by the press in the Chris Jeffries and Levi Bellfield cases. But I’m afraid this is an issue worth getting on one’s high horse about.
Throughout Leveson and the civil phone hacking proceedings, for all the condemnation of the media, for all of the various regulatory models put forward to make “the press” behave, nobody has sought to argue against the basic principle of freedom of speech. Or dare I put it stronger and talk in terms of freedom of the press. It seems to be generally recognised that freedom of the press is a “good thing” even if there is disagreement as to the system the UK needs to ensure that freedom is not abused.
Yet here we have a judge seeking to introduce, albeit on a voluntary basis (whatever that means), some kind of retrospective censorship of long published news reports. If this was China there would be outrage. A court seeking to cleanse news organisations’ websites of information that it suddenly deems unpublishable. Come on.
Of course, it is important not to prejudice the outcome of legal proceedings. But surely this is all about balance and isn’t the Contempt of Court Act there to provide that balance? It appears at face value that the judge was arguably seeking to go further than the statute. If this had become a court order instead of voluntary co-operation, where would it have stopped? At specific written news articles? At written articles covering a certain time period? Would it have extended to video? What about archived news bulletins available on iPlayer? Or journalists’ reports on YouTube? Taking it to the nth degree, would Sky have had to delete any prejudicial recordings that jurors might have made on their Sky+ boxes. I guess whilst we’re at it, we could take the Internet down to completely remove the prejudice risk. As long as we conduct a search of the jurors’ homes to destroy any physical newspapers they might have stored in the garden shed.
The phrase “chilling” can be over-used by those who seek to defend the right of press to say whatever it wants to, we often hear about a so-called “chilling effect on free speech”. If defenders of the faith blithely use that phrase too much more, it will cease to have an impact. But, retrospective take down orders, retrospective censorship, that is pretty chilling. And that is to ignore the practicality of news organisations having to continually monitor material as cases come to trial, yet although the time and cost implications of locating and dealing with such material online is a real practical point, it is the wider principle of the matter that is worrying.
I’m afraid one can’t discuss this topic without peering into the window that is the Twittersphere. The Tweets per second-ometer always jerks to the right when a court pronounces judgment in a trial that has caught the public imagination. Sadly, much of it ill-informed. I even saw Tweets post-Harwood that managed to defame John Terry. It is at moments like these that Twitter ceases to be an online liberal Starbucks and turns into the drunken ramblings of a hate mob. So is the judge also going to close down social media too, to prevent prejudice? Of course not, it is impossible.
It is absolutely right that defendants in criminal proceedings should have an expectation of a fair trial. But if the courts don’t think that the existing laws of contempt cut it in a digital world, then surely it is more proportionate to issue an order, not a request, banning the jury from going online for the period of the trial than it is to try and censor the Internet. Better to marginally inhibit the freedoms of 12 people for a week or two, than to inhibit a free press in this way. If it is really necessary, put the jury up in special accommodation so they have no way of going online – that might sound disproportionate, but not compared to the alternative which was apparently under consideration in this case.
This is a difficult time for the press. Yes, it brought this difficult time on itself. But the phone hacking scandal has created a certain climate where there is an under-current of feeling that “the press” needs to be controlled, even to be punished. That leads to a risk that a judge-led retrospective take-down of articles that were not in contempt when published might be seen as okay. Well, it is not okay. This is not a misguided plea for a last chance saloon. It is a plea to avoid a very slippery slope.
As the Guardian report concluded, this aspect of the judge’s ruling will be studied very carefully – the jury is still definitely very much out on this aspect of the Harwood trial.
[As always, this blog post reflects my personal view, and not that of my employer]