IN-DEPTH: How Social Media Has Undermined Britain’s Legal Safeguards for Fair Trials

The law in England and Wales forbids people giving their opinions about ongoing or upcoming criminal trials but the principle is under assault on social media.

Police offices outside the Old Bailey, England's Central Criminal Court, as they await the sentencing of British police officer Wayne Couzens for the murder of Sarah Everard in London on Sept. 30, 2021. Daniel Leal/AFP via Getty Images

The law surrounding reporting on criminal trials has not changed for 40 years, but the advent of the internet and social media have changed the landscape beyond all recognition.

In June 2022, the Law Commission of England and Wales was asked by the government to review the law on contempt of court and, “consider reform to improve its effectiveness, consistency, and coherence.”

The current legislation restricting what can and cannot be said about criminal proceedings is the Contempt of Court Act, which dates from 1981.

But the Law Commission said, “There are also growing concerns about the impact of social media and technological advancements on the administration of justice.”

Liz Hull, the Daily Mail’s northern correspondent and co-host of “The Trial of Lucy Letby” podcast, told The Epoch Times, “In general, the Contempt of Court Act works perfectly in protecting trials from being derailed by accredited journalists and publications who understand the law, but judges are increasingly encountering issues with ‘commentators’ on social media.”

Such was the case in November last year when an Old Bailey jury was deliberating on verdicts in the trial of five men accused of kidnapping, torturing and murdering Koray Alpergin in north London.

Several anonymous Twitter accounts had commented on my live tweets from the trial and they had included prejudicial information, including allegations about one of those in the dock, who had given evidence and testified against one of his co-defendants.

The police and prosecutor Crispin Aylett, KC, explained they were powerless to prevent these tweets, even though they were in flagrant breach of the Contempt of Court Act.

Judge Sarah Whitehouse, KC, addressed the court and warned people in the public gallery of the dangers of posting on social media and that they could be jailed for contempt of court.

It felt like she was wasting her breath.

Internet has Changed Everything

In the halcyon days—long before the impact of the internet and social media began to be felt—when the Contempt of Court Act came into force, a judge’s edict meant something and it was unheard of to flout it.

Information was not something global, not something that went “viral” and travelled around the world in the blink of an eye.

As the internet grew during the 1990s, it slowly began to impinge on the British court system, which had hitherto been preserved in a kind of legal aspic.

On New Year’s Day 1995 serial killer Fred West hanged himself in prison while awaiting trial for a dozen murders in Gloucester. The case was being followed by the world’s media and TV reporters from as far as away as Australia and Japan turned up to film outside his notorious home, 25 Cromwell Street.

In February 1995, his wife, Rose West, faced an old-style committal hearing at Dursley Magistrates’ Court.

I was there, and I remember the excitement among the journalists as we heard for the first time the grisly details of the crimes the Wests were accused of.

Because of the Contempt of Court Act the proceedings could not be reported in the UK.

But there was nothing to stop newspapers in Germany, France, the United States and anywhere else in the world from publishing the details.

Fast forward another decade and social media had arrived, making everyone a potential “citizen journalist” who thought they could write about and opine about every subject, including upcoming and ongoing criminal trials.

Twitter and the Ched Evans Case

Twitter—which was rebranded as X last year—was launched in 2006 and became widely popular in the UK between 2010 and 2011.

It was not long before it was being used by some users to break legal restrictions.

In Apr. 2012 footballer Ched Evans, who played for Sheffield United and Wales, was jailed for five years for raping a 19-year-old girl in a hotel. Evans’s conviction was later quashed on appeal and he was acquitted after a retrial.

A few days after Evans was convicted at his first trial, his cousin, Gemma Thomas, and eight others named the woman on Twitter, contrary to the law, which gives lifelong anonymity to rape complainants.

Thomas called her a “money-grabbing [expletive]” and accused her of “ruining lives.”

Thomas and the eight others later admitted breaching the Sexual Offences (Amendment) Act 1992 and were each ordered to pay the woman £624.

Ched Evans at Deepdale in Preston, England on on April 15, 2022. Lewis Storey/Getty Images

Although that case did not involve the Contempt of Court Act, it highlighted the ignorance of many members of the general public about the rules surrounding criminal trials.

Under English law, it is a long-held principle that a defendant is “innocent until proven guilty,” and nothing should be said or written that would prejudice their right to a fair trial.

Newspapers, news websites, and broadcasters are usually scrupulous about obeying the Contempt of Court Act, but sometimes they make mistakes.

In 2002, the Sunday Mirror was fined £75,000 after it published an interview with the family of the victim of an assault before the end of the trial of Premier League footballers Lee Bowyer and Jonathan Woodgate.

Activist Stephen Yaxley-Lennon, who goes by the name Tommy Robinson, leaves the Old Bailey after his contempt of court charge was referred to the Attorney General, in London on Oct. 23, 2018. Reuters/Henry Nicholls/File Photo

Because of the Sunday Mirror article, the trial had to be abandoned. A jury at a second trial cleared the pair of causing grievous bodily harm but convicted Woodgate of affray.

Tommy Robinson Falls Foul of Contempt of Court Act

Another famous victim of the Contempt of Court Act was Tommy Robinson, the former leader of the English Defence League, who was jailed for nine months in 2019 after posting a Facebook Live video in which he revealed details—which were covered by reporting restrictions—in the case of an Asian grooming gang during their trial at Leeds Crown Court.

The case involved 29 defendants and had therefore been separated—or severed” as it is known in the legal world—into several trials, one after the other.

This is often the case, and the verdict from the first trial is often banned—under the Contempt of Court Act—from being published so as not to prejudice the juries in the second or third trials.

But Robinson wore a t-shirt which said “convicted of journalism” to his sentencing hearing and his supporters—ignorant of the legal niceties—pelted the police with bottles and cans.

In 1981, newspapers were published daily and there was no such thing as 24-hour news or the internet.

But in the past decade, it has become commonplace for journalists to tweet live during criminal trials and several regional media outlets, like the Liverpool Echo, will update live pages almost instantaneously during high-profile trials.

The Daily Mail went a step further last year and began the first weekly podcast from a criminal trial.

But “The Trial of Lucy Letby” podcast still had to adhere to the Contempt of Court Act and could not mention any information which was not before the jury.

‘Has the Jury Heard This?’

Ms. Hull said: “Navigating the act while producing a podcast of a live trial during the Lucy Letby case was a challenge and the script of each episode was carefully examined by the Mail’s lawyers. But, like with any other forms of publication, whether that be print, online or broadcast, my rule of thumb is always to ask myself, ‘has the jury heard this?’ and if there is any doubt to exclude it.”

“Obviously, the stakes were high because of the length and cost of Letby’s trial, which ran into many millions, so we were extremely careful not to do anything that might jeopardise or prejudice it.”

The podcast was a success and the Mail followed it up by producing one from the trial of two teenagers who were eventually convicted of murdering Brianna Ghey.

Two undated images of Brianna Ghey, who was stabbed to death in Culcheth Linear Park in Warrington, England on Feb. 11, 2023. Family of Brianna Ghey/PA

Ms. Hull said: “In this case, the judge faced an issue because—even though the mainstream media was banned from naming the two defendants because of their age—their identities were widely circulated online, in particular on TikTok.”

She said: “In most instances, the police can trace the person responsible and get the posts taken down, but the judge was made aware of one website, whose server was based in Moscow, that had published the names that the police were unable to find or do anything about.”

‘Making a Mockery of the Law’

“The jury will always be directed to ignore what they read in the media and online and only try the case on the evidence presented to them, but instances such as this do make a mockery of the law on contempt,” added Ms. Hull.

When it began its review into the law of contempt, the Law Commission had aimed to publish a consultation paper in spring 2023.

But the project has been delayed, and a spokesman for the commission told The Epoch Times last week they were hoping to publish it, “early this year.”

A government spokesperson said: “The right to a fair trial is a fundamental principle of our justice system which is why we have asked the Law Commission to review the law on contempt of court. We will consider the commission’s findings in full once they are published.”