High-profile cases: speak or be forever damned

8 October 2015

In the court of public opinion it’s easy to be ‘convicted’ by social media, which is why some are taking a proactive approach. The recent high-profile cases of Cliff Richard and the rumoured Westminster paedophile ring share more than their common subject matter of historic sexual abuse.

They provide examples of tactical decisions to confront intense media scrutiny with detailed public denials and, in effect, a demand that their investigators “put up or shut up”.

In general, criminal defence practitioners will advise clients (whether public figures or not) to shun publicity where possible at all stages of investigation and prosecution, largely to keep their powder dry for any eventual trial. Stuart Hall is an example of a suspect making matters significantly worse — in terms of sentence — by publicly denying allegations and castigating his accusers only to be later convicted.

Maintaining silence at an early stage minimises the risk of additional, perhaps opportunistic, allegations emerging as a direct result of media attention. Opportunism also lies behind the trend for police to leak — or actively publicise — details of their investigation in the hope that new complainants will emerge. This “shaking the tree” approach is devastating for reputations and all too easily leads to an explosion of potentially prejudicial comment on social media, with the risk that no one obtains justice.

Richards and others have taken the calculated decision to speak out in the hope that they will sway public opinion and discourage the police. Though words must be chosen carefully, there is value to such suspects of on the one hand, public affection and, on the other, the power of articulate and controlled fury. The increasing trend to speak out comes against the backdrop of growing disquiet over the investigating and prosecuting authorities’ management of these cases, which often leads directly to blanket, and usually irresponsible, social media comment.

Such proactive media strategies are also motivated by a natural desire not to remain passive throughout police investigations of ever-increasing duration. As inquiries drag on, so the deleterious effects on the subject — emotional and financial — grow heavier. These damaging consequences are often accompanied by disruptive bail conditions that make any “normal” life all but impossible.

Paul Gambaccini compellingly told of the misery he endured over the course of a year. It is not unusual for “complex” police operations of this sort to last even longer. It’s little wonder that individuals on the receiving end of both police investigation and media intrusion should decide that attack is the best form of defence.

I understand their concern, as do other practitioners. So much so that these days we are far more likely than ever before to condone clients giving strong public rebuttals and a counter-narrative in an attempt to limit their reputational damage. Better than simply trusting in an ex post facto restoration exercise after enduring months of damning, inaccurate and prejudicial speculation becoming “fact” if repeated often enough.

Citizen journalism requires the tearing up of old truisms. To badly paraphrase, it cannot always be better to remain silent and be thought guilty, than to speak out and prevent all doubt.

This article first appeared in The Times law section online 8/10/2015

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