Spare a thought for the law officers. Though they are lawyer-politicians, the attorney general and the solicitor general are expected to rise above party politics. They tend not to get much publicity unless they get something very wrong — as Suella Braverman, now on maternity leave, did last August and again in September.
So their press statements tend to be mostly about their successes in having unduly lenient sentences increased by the Court of Appeal. Referrals in which the judges decide not to increase sentences do not generally appear on their website.
Michael Ellis QC MP (pictured), who was appointed attorney general four months ago, has now come up with something different: a campaign to highlight the dangers of committing contempt of court online. It will be running on social media this week with the hashtag #ThinkBeforeYouPost.
His office has created some examples to show the sort of posts he’s worried about:
These aren’t real, of course: the language is too clean and they don’t refer to identifiable people. But you get the idea.
As the attorney general’s office says, writing about a case on social media could amount to contempt of court if it:
comments on facts or evidence that may be heard during a forthcoming criminal trial
mentions the defendant’s previous convictions or bad character ahead of a trial
identifies someone in breach of an injunction or court order
names alleged or convicted offenders who are under the age of 18
names a complainant in a sex crime at any time
shares any information about a case that a judge has ordered to be kept private
includes images, video content or sound clips recorded at a trial without permission
publishes a court judgment in breach of an embargo
That’s not exactly how today’s announcement puts it, incidentally; I have suggested a few clarifications to the published list.
Why this matters
The attorney general’s office lists a number of cases where things have gone wrong.
Foremost among these is the is was the conviction of two teenage girls for the murder of Angela Wrightson, a vulnerable woman who was battered to death at her home in Hartlepool in 2014. On of her killers was 13 at the time and the other was 14. Now adults, they were granted lifelong anonymity by the High Court this year.
Their first trial, at Teesside Crown Court in 2015, had to be stopped after three days because of comments on Facebook. A new trial at Leeds in 2016 was held under restrictions designed to limit public comments. Broader reporting restrictions ordered by the trial judge had been successfully challenged earlier in 2016 by media organisations. The Court of Appeal said at the time that the attorney general “should be involved in a general analysis of the overall position in order that a wider consultation can take place and appropriate guidance issued”.
Several people have received suspended prison sentences for breaching an injunction protecting the current identity of Jon Venables, one of two 10-year-olds who murdered James Bulger, aged two, in 1993. Richard McKeag, 28, published a photograph on his website in 2017. Natalie Barker, 36, published a picture on Twitter. Tina McGuire, 53, posted a picture on Facebook in 2017. Tina Malone, a television actor, shared a Facebook post in 2018.
Emma Hamilton-Toogood, 23, received a suspended sentence in February after she recorded an hour of her partner’s jury trial in 2019 and streamed it on Facebook.
Also in February, the BBC was fined £28,000 for unlawfully broadcasting a short clip from a High Court hearing on a regional news programme.
Though this is the first publicity campaign of its kind, the attorney general frequently issues warnings to the press and public. Earlier this year, a police officer was charged with the murder of Sarah Everard. In March, Ellis stressed the importance of not jeopardising material that could prejudice “any future trial”:
In particular, the attorney general draws attention to the requirement not to publish material that asserts or assumes the guilt of anyone who has been arrested. That is an issue to be determined by the jury if in due course there is a trial. The attorney general also wishes to remind journalists and members of the public that it can amount to contempt of court to publish information relating to untested and unconnected allegations against the suspect, and matters adverse to his character, the admissibility of which a judge in due course may need to determine.
It is often argued — particularly by prosecutors after prejudicial material has been published in advance of a trial — that juries are robust enough to ignore social media chatter and decide cases on the evidence put before them in court.
Foreign reporters — particularly those from the United States — find it difficult to understand why there are limits on what can be said ahead of a trial. And some individuals are clearly unaware that a blog such as this is subject to the same restrictions as anything I might write in a newspaper or broadcast on the BBC.
My own view is that reporting restrictions are broadly justified and those who break them should face contempt-of-court proceedings or, better still, specific criminal charges. Whether or not an individual trial may be prejudiced by advance publicity, the criminal justice system as a whole would be undermined by a media free-for-all.
For once, then, the attorney general’s message is definitely worth a retweet or two. And I thought about that before posting it.
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A searing attack on the system of closed hearings in security-related cases has been launched by all 33 special advocates who currently take part in these proceedings.
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