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Last Updated: Tuesday, 19 February 2008, 11:44 GMT
Net news 'threatens court cases'
Ruth Alexander
Reporter, Law in Action, BBC Radio 4

Lord Falconer
Lord Falconer believes the actions would only need to be temporary
Articles relating to high-profile court cases should be removed from online news archives, the former Lord Chancellor has told the BBC.

Lord Falconer believes the action is necessary to avoid news stories written before a case influencing its outcome.

Action would be necessary for around 20 cases a year, he said, in trials which attract a lot of pre-trial coverage.

The Attorney-General would have to be responsible for identifying cases that could be affected, he said.

"I think the state needs to be better at identifying those cases in which they think there's a contempt risk," he told BBC Radio 4's Law in Action programme.

The rules would only apply to cases, such as the Soham murders, which generate intense media interest.

News organisations would have to remove stories from their archives that were written before an arrest was made and a case became active.

If they refused to comply "it would be very strong evidence they'd committed contempt", he said.

History search

Under the Contempt of Court Act 1981, reporters must be careful not to publish or broadcast anything which poses a "substantial risk of serious prejudice" to a fair trial, such as a defendant's previous convictions unless they are mentioned in open court.

The restrictions apply when a case becomes "active", that is when a warrant is issued for a suspect, an arrest is made or charges are brought.

If one hoster is ordered to remove information because it is in contempt, it is very easy for that information to pop up on another website.
Catrin Turner

But a journalist may have legitimately reported this information before the individual was arrested and faced trial, and that article could lie in vast online archives that are easy to access.

Charles Collier-Wright, group legal manager at Trinity Mirror, said taking down story archives would present news organisations with serious practical difficulties:

"I think it would be absurd if anyone seriously argued that newspaper archives should be removed just for fear that somebody might go and do a bit of research on them in relation to a case that might be coming up," he said.

"Newspaper information has always been accessible to anyone who really wanted to do it - you can go to libraries and find it out."

Lord Falconer says articles should only be removed for a temporary period, in the run-up to and during a court case, and that search engines should also be asked to ensure prejudicial material doesn't come up at the top of search results lists.

He also denies that the scheme could be seen as changing history.

'Conviction quashed'

Lord Falconer's intervention comes as concern increases about the role of the internet for the criminal justice system.

"By the click of the button you can go on to the internet and get access to the press coverage there may have been at the time the person on trial was arrested," Donald Findlay QC, one of Scotland's leading barristers, told the BBC.

The internet presented a potentially big problem for the criminal justice system across Britain, he said.

"That might disclose all sorts of speculation about the circumstances of the crime, all sorts of information you are not supposed to have if you're serving on a jury."

Prejudicial material can be easy to come by, appearing all over the web - on blogs and discussion boards, for example.

As a result, Catrin Turner, a partner and online law specialist at solicitors Pinsent Masons, said removing a web page wouldn't necessarily remove the problem.

"Websites are hosted on servers all over the world," she explained.

"If one hoster is ordered to remove information because it is in contempt, it is very easy for that information to pop up on another website.

"There is also something called caches: invisible copies of content are stored in separate places on the internet, so even if content is taken down from a website, there may still be these caches or stores of information which can be accessed."

Judges do warn juries against doing their own research on the internet, but media barrister Rupert Elliott said there was concrete evidence that the temptation is difficult to resist:

"In a 2005 rape case, at the end of the trial some downloaded material from the internet was found in the jury room, which essentially encouraged uncritical acceptance of evidence from a rape victim.

"In that case, the Court of Appeal was so concerned about its content that they quashed the conviction," he said.

Law In Action will be broadcast on Tuesday 19 February 2008 at 1600 GMT on BBC Radio 4.

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