Once a year the Attorneys General of the UK, USA, Canada, Australia and New Zealand come together to discuss pressing issues of common concern. This week they are in London, and one question high on the agenda is how they can hope to preserve the integrity of the jury system when information prejudicing a trial is available to anyone at the click of a button.
Reviews of contempt of court procedures are taking place in a number of countries including the UK, and not before time. The Contempt of Court Act presently applied in British courtrooms was passed in July 1981, when Prince Charles was enjoying his final few days as a bachelor before marrying Diana Spencer, and the current leaders of all three major British political parties were still at school.
More significantly, in 1981 Britain was four years away from its first mobile phone call. Today 76 million devices are in use around the country and they are the search medium of choice for vast numbers of users. With so much information so readily available, it’s no surprise that jurors in British courtrooms have been jailed for researching cases on the internet and sharing their findings.
As we reach the mid-point of the second decade of the 21st century, social media channels have made each humble mobile phone an Aladdin’s cave of knowledge. Current figures indicate that Facebook’s 1.25 billion enthusiasts include 950 million mobile users. In addition, of the 650 million people who regularly share information on Twitter, 280 million do so via mobile.
How can juries fairly evaluate a case without being influenced by inadmissible evidence, when online access lays an abundance of such evidence before them whenever and wherever they choose to view it? And how can this area of law maintain its relevance and fairness while information service providers make one giant leap forward after another?
The existing contempt of court law bans any publication that might compromise a fair trial. But where in 1981 “publication” referred to a formal, easily trackable ink and paper process, in 2014 it covers any number of outlets. Those preparing for jury service are legally bound to do so without prior knowledge or opinion, effectively offering themselves to the court as a blank canvas. But their instincts might be to follow the routine so many of us follow almost every day in any number of situations, and run a google search on the case. A 2010 survey indicated that 12% of jurors admitted carrying out online research. It’s unlikely that this percentage has fallen over the past four years.
Discussions of online defamation often point out how thoughtlessly many social media users voice their opinions, treating a worldwide public forum like a gossiping session between friends. If that’s the standard for the information people put in, can we really expect discretion to apply the information that’s taken out?
So what’s the answer? Flexibility that acknowledges a new set of rules for a new set of communication tools? But how flexible should the law be, and how should it keep pace with changes that threaten to make legal updates redundant before they can even be put to the test? Perhaps an intensive period of education is needed, encouraging proper accountability for the things we all say and do. But how do you compel people to change behaviour patterns that are becoming more ingrained with every surf and tweet?
The legal profession is navigating this changing landscape with pragmatism and skill. Translation service providers need to help them through it by conveying their message with absolute precision, regardless of language or medium. If familiarity with information is breeding contempt for the existing law, then it remains the job of support partners to demonstrate that discretion and attention to detail still breed trust, in any language.