The dangers of trial by social media

The recent weeks have seen the release on social media of images and recordings which have prompted the arrest of an individual for serious offences. All of this was conducted in a blaze of publicity and discussion. That individual is yet to be charged and, if they are, the lawyers and judges involved face the invidious task of dusting the case down of all the debris that remains of a trial by social media, to ensure that access to a fair trial is preserved. I suspect even these oblique sentences are sufficient to tip off most readers as to what I am referring and, therein, lie two issues that we should all be rightly concerned about.

The first of these is that the moment we have to deal with the capricious whims of social media, we enter very problematic waters. Those who operate behind the protection of a keyboard often lose all sight of accountability or common sense, this statement can be applied to everyone. There is something about the distance from one’s intended target that can unleash arbitrary cruelty in all of us. So, when material that has clear potential to require police involvement appears on social media, the obvious concern must be to preserve the right to a fair trial and to prevent the modern equivalent of a witch trial. Actually, on closer inspection, a witch trial was sometimes much fairer than trial by social media. We should not forget Sir John Powell, presiding over one of the last witch trials in England, who on being told that the accused had flown to court on a broom, observed 'there be no law against flying'.

Trial by social media is trial by mob rule. Those with professional standing and wide media platforms should know better than to pass judgement on allegations made under such circumstances, but many simply do not. It gets exhausting having to say again and again, in ever terser language, if you wish to improve the conviction rates for sexual offences, do not jump in and pre-judge every party that is accused of them. This hinders justice, this harms victims.

No matter how often the companies that manage Facebook, Twitter and Instagram claim to monitor and police their platforms, the reality is that once someone is held up before the global judges of the wifi-enabled, opinions spread and seep everywhere making the collection of non-contaminated evidence and the selection of a jury difficult on a level hitherto uncontemplated by the Contempt of Court Act 1981. Is it too draconian to suggest that the moment a party is arrested as part of a police investigation, that discussion of that investigation be suspended on social media platforms? Yes, it probably is, but how do we teach responsibility to social media users?

The second issue is an ever thornier one. Why do complainants, or those close to them, feel more comfortable in making allegations on social media, rather than by going to the police? I suspect that most women, ethnic minorities or any member of a marginalised group could answer that question with a bitter laugh. The police and the CPS remain tainted by numerous miscarriages of justice that have, at their root, misogyny, homophobia or racism. In recent months, the drip drip reveal of endemic misogyny within the Metropolitan Police, as well as other forces, has proved that the passage of time does not seem to have taught as many lessons as one might have hoped.

The ultimate conclusion must surely be this. The police must work to restore faith in their ability to investigate these offences and, importantly, to take those who make such allegations seriously. There is something very wrong when a victim is less afraid of the opinion of the mob, than they are of authorities. A restored faith ought to convince those who are complainants in such matters to turn away from the lure of social media with its fallacy that a public complaint allows them to retain a degree of control over their allegations ('I chose what I want to say and I do not have to answer to anyone'). It ought to convince them that a public complaint may lead to swift retribution of a kind, but that that retribution is invariable followed by the hounding of the complainant, as soon as the mob get bored. A complaint leading to a prosecution should be safer on a conceivable front.

Those of us who prosecute and defend in cases involving allegations of sexual offences cling desperately to the belief that the right and proper place for the resolution of such matters, is in the calm and clinical world of a court room. It’s not easy, it’s not pretty but I defy you to come up with a better alternative. These trials by social media are ugly, fickle and fundamentally erode the principle of innocence until proven otherwise.

Francis Bacon once wrote: 'Revenge is a kind of wild justice, which the more man’s nature runs to, the more ought law to weed it out.' We would be well advised to take note. Trial by social media is a dance with Maenads, which leads to nothing but lives ripped apart. Trial by jury at least carries the real potential for resolution.

Bethan Rogers is a barrister at Red Lion Chambers