Can the common law be developed by instant blogging? Should precedents be recorded by live updates on Twitter?
That’s the surprising possibility conjured up in a recent Guardian Law Blog:
There is something rather quaint about journalists in the 21st century using pens and notebooks to record what goes on in court hearings when the tools of the trade now include laptops, mobiles, BlackBerrys and other digital paraphernalia. Why not use them in court? In fact, why not report live from the courtroom? The obvious answer is that judges won’t let you.
The blog’s writer, Siobhain Butterworth, goes on to imply that the judges’ resistance engages, if nothing more, the “principle of open justice”. She notes that a number of US judges have been more open to the principle of instant messaging, allowing cases in their courts to be reported as they happen by reporters posting direct from the courtroom.
The difference between scribbling notes (publishing later) and filing copy instantly from the courtroom using an electronic device is self-evidently slight and there’s a lot to be said for the sort of full, accurate, contemporaneous, reports of court hearings that live-blogs and twitter reporting could achieve.
Of course, this argument is really directed towards news reporting of trials in which the public are expected to take an immediate interest, and can’t even wait for the reporter to leave the courtroom periodically to file their copy. And the notion that Twitter, with its 140-character limit, can offer “full, accurate reports” is surely laughable. Nevertheless, I wonder how long it will be before an increasingly web-friendly legal profession starts to demand that important precedents should be flagged up on Facebook and reported “live and direct” on a blog posted directly from the High Court, Court of Appeal or UK Supreme Court.
Not on my watch!
From the point of view of a professional law reporter, this seems absurd. The whole purpose of law reporting is to produce an accurate, authoritative and completely reliable public record of the setting of an important precedent. This is not something that can be done instantly, and certainly not while the case is continuing in court.
Important decisions which set precedents are usually arrived at after reserving judgment, sometimes for several weeks, and then handing down a carefully considered draft judgment. The law reporter, who is a qualified barrister or solicitor, must then read the case carefully and check all the references and quotations against the original published sources. A summary or digest can be produced later on the same day, or overnight (as we ourselves do with our WLR Daily service), but a proper full text report takes longer. It needs to be checked, edited, and proofs sent to the judge for approval. So it’s not a process than can be achieved instantaneously. It can take weeks, or even months.
But maybe on my phone?
That said, we live in a world of instant information. Judgments, however long reserved, appear on websites such as Bailii within an hour or two of being handed down. If a reporter can produce a reliable, accurate summary within a similar period, can they not post it on a blog or extract a short proposition of law in a single sentence and flag it up on Twitter? So long as the reader knows it is only the tip of a potentially far more complex iceberg, might that not be enough (with appropriate links) to point them in the right direction?
To see how it might work, I tried micro-blogging, within the Twitter limit, the propositions established by some of the leading cases reprinted in the ICLR Special Issue, from the 145 years since our foundation in the age of quill pens and parchment.
- “Necessity (in the form of starvation-induced cannibalism) is no defence to a charge of murder” (93 characters, including spaces): R v Dudley and Stephens (1884) 14 QBD 273
- “A contract is formed where an offer advertised to the world is accepted by a person who complies with the stated terms” (118 characters): Carlill v Carbolic Smoke Ball Co 1 QB 256.
- “A manufacturer owes a duty of care and is liable in tort to the ultimate consumer of a product whose latent defect causes them injury” (133 characters): Donoghue v Stevenson  AC 562.
- “It is for the Crown to prove the prisoner’s guilt, and not for the prisoner to prove his defence” (96 characters): Woolmington v Director of Public Prosecutions  AC 462.
- “Court of Appeal is bound by own previous decision unless it conflicts with another of that court or the Lords or was decided per incuriam” (137 characters): Young v Bristol Aeroplane Co Ltd  KB 718.
- “A promise by one contracting party, acted and relied upon by the other, is binding by virtue of the doctrine of promissory estoppel” (131 characters): Central London Property Trust Ltd v High Trees House Ltd  KB 130.
- “Court should interfere with local authority decision only if unreasonable or made on basis of factors wrongly considered or disregarded” (135 characters): Associated Provincial Picture Houses Ltd v Wednesbury Corpn  KB 223.
- “Grant of interlocutory injunction to depend on court’s assessment of the balance of convenience” (95 characters): American Cyanamid Co v Ethicon Ltd  AC 396
- “EEC Treaty and Directive gave individual directly enforceable rights but did not prevent member state excluding him on public policy grounds” (140 characters): Van Duyn v Home Office (Case 41/74)  Ch 358.
- “Cases reported in the official Law Reports published by ICLR must be cited from that source in preference to any rival series” (125 characters): Practice Direction (Judgments: Form and Citation)  1 WLR 142
- “Excessive citation of authority must be avoided: if it is not necessary to refer to a previous decision, it is necessary not to do so” (133 characters): R v Erskine  1 WLR 183.
This shows (I hope without infringing the rule in Erskine’s case) that it can be done. Whether it ought to be is quite another matter. But, frightening as the prospect may seem to a profession that still resists the idea of exchanging court bundles electronically, and for whom the “paperless office” of the future hasn’t impinged much on a world still lit by gaslamps (albiet fake ones), this sort of thing is not going to go away. The time will come when the vibrating smartphone in an advocate’s pocket will alert them to the existence of a freshly-set precedent which might affect the very case they’re currently presenting. Should justice be kept waiting?
Ideally not. As they say, justice delayed is justice denied.