Julian Assange, the founder and head of Wikileaks, has succeeded in an initial challenge to last week’s refusal to grant bail in his extradition case. And, in an appropriate nod to the internet age, the judge granted two people the right to tweet from the court.
The tweeters (definition: users of Twitter, a social website which allows people to post 140 character messages to people who chose to follow them) are Alexi Mostrous, a Times special correspondent, and Heather Brook, a writer. Mostrous tweeted at 14:30:
judge just gave me explicit permission to tweet proceedings “if it’s quiet and doesn’t disturb anything”. #wikileaks
Despite the victory, Assange has returned to Wandsworth prison as Swedish prosecutors are appealing the decision. The appeal is to be heard within 48 hours. If he wins, his bail will be subject to a number of conditions, including a cash guarantee of £240,000 and having to give up his passport. He will have to wear an electronic tag and obey a curfew.
The Australian was arrested in the UK on suspicion sexually assaulting two women in Sweden. His lawyers have said that “many believe” the arrest was politically motivated (you can listen to a podcast interview with Mark Stephens, Assange’s lawyer, here). His next appearance in court will be 11 January 2011, as the extradition process continues.
The arrest was under a European Arrest Warrant, with a view to extraditing him to Sweden to face the charges. See our post for the background, or Afua Hirsch’s article on the background to EAWs and the controversial wider harmonization program for European criminal law. Also of interest is this post at the Law and Lawyer’s blog.
Users of Twitter found out the result by way of the tweeters in court, rather than through traditional media. Tweeting in court, and use of the internet in general, has been subject to debate recently, and until now it was unclear as to whether tweeters would be allowed to tweet from court. Technically there is no reason why not, as only photography and sound recording is banned from hearings outside of the Supreme Court, although in sensitive cases express permission might be required from judges in the same way that reporters would need permission to write about the case.
Moreover, jurors in ongoing criminal trials cannot tweet about the case, any more than they can write about it in a newspaper, due to the risk of affecting the outcome of the trial. A former Director of Public Prosecutions said recently that judges are increasingly resigned to jurors researching their cases on the internet. But publicising the details of an ongoing case could lead to heavy penalties for contempt of court, including prison. The Lord Chief Justice addressed the issue in a recent speech about jury trials, saying:
My instinctive reaction is the criminal trial process must always be open. I use the word “instinctive”, but in truth it is deeper than that, it is visceral. But not all tweeting comes from within the court. It is, I have no doubt, all too easy for campaigners for one cause or another, to bombard the system with Twitter which is intended to seek to influence the outcome of the hearing. Some of it will be well meaning, and some pernicious: if it is a campaign, it is unlikely to be balanced, and more likely to be prejudicial to one side or the other. (page 6)
But this was not a jury trial. It appears that the judge in Assange’s case granted “permission to tweet”, although he may have just been responding to a question rather than framing his response to a specific legal application. In any case, it does not follow – it would seem anyway – that permission would be required to tweet in all cases. Members of the public are allowed to observe most criminal and civil cases in person – a key aspect of open justice, which is in part guaranteed by fair trial rights under human rights law - and without contrary guidance from HM Court Services, they could probably tweet too.
New technology has rightly reopened the debate over how much access the public should have to courts. I posted recently on renewed calls to allow TV (or internet) cameras into court, something which is common in the United States but only very limited in the UK. Unlike the US, we have allowed cameras into our Supreme Court for over a year, but as I have also posted, this has attracted little interest from the media and more could be done to give the public better access to the recordings.
For a new technology, Twitter appears basic, as it only allows 140 characters of text to be posted at one time. But its power lies in its system of replies, followers, categories and retweets, whereby people can research and broadcast information in an extremely specific and targeted way to to the world at large.
Despite its sophistication, in an ordinary case with no reporting restrictions in place, tweeting does not, on the face of it, pose any danger to the administration of justice. Rather, the ability for people to produce a live feed of selected information from a hearing could improve public understanding of the justice system. But it is by no means an ideal channel through which to communicate details of a complicated hearing.
It is unsurprising that the case of an man credited with improving transparency in government (while causing headaches for diplomats, soldiers and spies) could result in a watershed for the use of social networking in court. Perhaps the slow but steady opening up to social media by judges will eventually lead to a softening of the attitudes towards live video feeds. And that would mark a huge improvement for open justice.
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