Trial by media

In March 2015, top flight footballer Adam Johnson was arrested at his home in County Durham on suspicion of having had sexual activity with a 15-year-old girl. A month later he was charged with three counts of sexual activity and one count of grooming. 

Upon the 28-year-old England international’s arrest, his employer, Sunderland Football Club, suspended Johnson’s contract. Johnson was later reinstated by the club in late April following a bail extension. Last week, however, Sunderland sacked Johnson after the player pleaded guilty to one count of grooming and one of sexual activity – kissing – with a child. The winger continues to deny two further counts of sexual activity. As the trial continues, reports indicate the football club was shocked by the player’s admission, after being led to believe he would plead not guilty to any charges.

Sunderland’s initial decision not to cut ties with the player was surely far from an easy one. At the time, the club consulted with the Professional Footballers’ Association, which emphasised that ‘just like any other individual, Adam is entitled to a fair hearing’. Nevertheless, Johnson has, since his initial arrest, endured a trial by media as newspapers sought to quickly fill column inches on the alleged sins of the £60,000 footballer. 

The Mirror noted his arrest came ‘just weeks after becoming a dad for the first time’ and also managed to fit the cost of his mansion – £1.5m, if you didn’t know – into the first two lines. ?The Daily Mail opted for a mixture of photo journalism (showing pictures of Johnson on the pitch, with his girlfriend, and of course his home) along with detailed statistics on his performance as a footballer and cost to the club. The message was clear: let us not be surprised, once again, by overpaid footballers’ inherent immorality and criminality.

Johnson is not, however, the first celebrity to be subjected to – with or without vindication – the tabloid media’s ravenous hunger for salacious headlines. Over the past two years, elements of the press have pushed the boundaries of journalism with their reporting of allegations of sexual offences: Cliff Richard, Leon Brittan, Edward Heath, and – perhaps most prominently – Paul Gambaccini have all found themselves under Fleet Street’s microscope. 

Operation Yewtree

Gambaccini was arrested on suspicion of historical sex crimes in 2013. The US-born 66-year-old spent the next 12 months on police bail after being accused of sexually assaulting two men. Gambaccini’s harrowing account of mistreatment by the police at a time when Operation Yewtree was at its height raises several important questions. How can an individual secure their employment rights while police investigations are ongoing; how far should the media’s right to report extend; what is the psychological harm inflicted on suspects subject to pre-charge extended bail; and is anonymity needed in cases of a sexual nature? 

‘There are two features of bail that were noteworthy,’ explains Gambaccini. ‘The first was that the police, although they always deny it, somehow managed to allow my name to slip into the public domain. I have never accused my actual case officers of leaking my name, but I very much resent the police protesting too much that they never reveal the names of their suspects, because the only alternative is that tabloid reporters have ESP. It doesn’t matter who leaks the name, the effect on the suspect is the same. There are immediate employment consequences.

‘After I was arrested, the upper management of the BBC never got in touch with me. I am convinced it was because they didn’t want to know anything. I thought: “Surely they would want to know, because the BBC is under siege”. The Met and the Murdoch tabloids are picking over the bones of the 1970s BBC to discredit it in favour of Murdoch’s broadcasting ambitions. ?I never heard a peep.’

Speaking at a Radio Festival in London late last year, Gambaccini told delegates that the public service broadcaster became a ‘good German’ following his arrest and explained that the corporation was able to stop paying him immediately – at a time when he needed it the most – through loophole that saw him contracted by a third-party production company. 

Kevin Poulter, an employment lawyer and Solicitors Journal’s editor at large, says that, from a legal perspective, the BBC’s attitude, though disappointing and even distressing on a personal level, is not totally unreasonable: ‘For well-documented reasons, the BBC was particularly sensitive to the allegations made and already under public and internal scrutiny at the time. Most employers will not deal with such high-profile employees, but where an individual is so closely related to an organisation, as with Paul and the BBC, personal and commercial responses to the circumstances may differ. What is said in public and how an organisation is seen to react may be more damaging, but it is not ?unexpected.’

Inconspicuously referred to as the Beeb ‘legend’ who had been arrested, Gambaccini was told by BBC Radio 2 that he could remain on air until he was named, at which time he would agree to a statement. ‘Even though I was not happy that they wanted me off straight away, I thought it was actually in my interests because I was “Yewtree 15”. I had recognised the pattern in earlier cases: the police hold you up – as Stephen Fry said – “like a piece of human flypaper”, hoping to attract more flies.’ >>?>> Public relations exercise

Gambaccini does not hold back in his criticism of the police, believing his prolonged bail and leaked name was a means for the Metropolitan Police to curry favour with a story-hungry press. He even goes as far as to describe the police’s and the Crown Prosecution Service’s (CPS) behaviour as a ‘witch-hunt’. ‘You get your hopes up, and then they’re quashed,’ he says. ‘Finally, after about the fourth [bail], my husband and I got into a zen-like state where we realised, this is the new normal, they’re going to do this until their public relations purposes allow them to release me. So I think re-bails four and five didn’t surprise us in the least.

‘I noticed I was being re-bailed on Yewtree win days – when Max Clifford was sentenced, when Rolf Harris was convicted, when Dr Michael Salmon was charged – so if anybody wanted to write a story about Yewtree on those days, it would not be about me. They would cast Yewtree in a favourable light – favourable from their point of view. I thought, “Okay, I get it: they’ve given up on the case, there’s no progress, but they don’t want to let me go yet, because it doesn’t suit their public relations purposes”. 

‘This is only conjecture, and of course the CPS would utterly disagree with this, but I do believe, unless and until I am shown evidence to the contrary, that I was kept on bail that long so that the Dave Lee Travis jury did not know a former Radio 1 DJ could be innocent. You may recall that [Travis’s trial] was in parallel.’

Asked about the veracity of such an allegation, Miranda Ching, an associate at Peters & Peters and a specialist in sexual allegations, advises that moving bail dates solely for public relations purposes was highly unusual. ‘The police are under a professional obligation to advance their investigation effectively, and, where there are delays, these must be justified,’ she says. 

‘Certainly, it would be the duty of the custody sergeant, in authorising a re-bail, to inquire as to the reasons. It would be hard to justify re-bailing a suspect simply for public relations purposes. Furthermore, the police often work together with the CPS, and it would be difficult to see how any prosecutor would endorse such behaviour if this was made known to them.

‘It is extremely frustrating for clients to have their lives put on hold for such a long period of time,’ comments Ching. ‘One has to play the waiting game, given that the police have absolute authority to conduct investigations as they see fit. We try to establish an open channel of communication with the police from the outset of the case. Some officers are more willing to share information than others. Keeping in regular contact can ensure the suspect is notified of their bail dates being “rolled-over” in a timely manner.’

Inroads have already been made on the thorny issue of bail. On 23 March 2015, the home secretary announced plans to impose time limits on police bail. Effectively, an initial time limit of 28 days, which can be extended by a senior police officer for up to three months, would be enforced.

The veteran broadcaster’s case took another turn when the police re-bailed him after explaining that they had to re-interview one of the accusers. ‘I had a re-bail date of 7 July, but I was re-bailed on 30 June – no surprise there, that was the date that Rolf Harris was convicted – but the reason given was “to re-interview the victim”. I still recoil at the Orwellian misuse of the word “victim”. I was the victim in my case; my accuser was not. Yet the CPS and the police continued to insist on using the word. Whenever you hear the police or CPS talk about “victims”, ignore the rest of the sentence: it’s not valid.’

Gambaccini is angry following his experience of the criminal justice system, which he has described as the ‘rumour and accusation-based system’. However, Gambaccini is resolute that the reputations that have been damaged are that of the police and the CPS, and not himself: ‘Good luck to the police trying to regain the sympathy of the public, which is out the window. This is going to have very interesting implications in the short and medium-term future when the police next need the cooperation and goodwill of the public – it may not be there.’

The damage control needed for any client drawn into such a prominent and media-gawping case is a daunting task, but, as Gambaccini suggests, how do you rebuild trust in the police and prosecution services? ‘Large public bodies are subject to criticism from many fronts. The criticisms range from being too secretive to being too open; too heavy-handed or too ineffectual; doing too little or doing too much, particularly in terms of resource,’ comments Steven Heffer, head of the defamation and reputation management team at Collyer Bristow. 

‘It is a difficult balancing exercise and, ultimately, the police service needs a strong and vocal spokesman in charge who can respond to media enquiries appropriately and reassure the press and the public about its conduct and the reasons for its decisions. It needs to ensure its investigations are impartial and objective and be quick to recognise when it has got the balance wrong. It is an ongoing public relations exercise.’

Reputation lawyers?The issue of whether to name and shame criminal suspects and defendants in sexual offence cases continues to garner press attention – discussion of the subject has been found in such publications as Cosmopolitan and Spiked. 

Meanwhile, the fear of reputational damage and invasion of privacy has even found its way to the House of Commons. The leader of the Commons, Chris Grayling, has called for MPs to no longer be named by the speaker following an arrest, by the invocation of article 8 of the European Convention on Human Rights. 

A rise in cases like Gambaccini’s – where suspects have been made known to the public, faced trial by media, but been subsequently found not guilty or had their investigations closed – has increased the work of the specialist reputation management lawyer. This rise mirrors a culture shift where the pen is, in some ways, far mightier than the sword as it is able to inflict lasting damage, especially online. 

‘With the advent of social media and the internet, reputation lawyers need broader skills and a good understanding of public relations and technology,’ explains Heffer. ‘The lawyer is also competing with numerous corporate PR and other companies. The development of privacy laws in the last 20 years has changed the landscape, with more emphasis on injunctions, which of course were not available in libel cases. The skills are more wide-ranging and complex. The ability to sue for libel has diminished but the opportunities to assert privacy rights has increased, and the use of social media to make a case or defend an individual has had enormous impact.’

Heffer adds that there are numerous problems in bringing claims of libel as newspapers are careful to publish stories that centre on the fact that an individual is under investigation for alleged offences. ‘Provided it is not alleged that the individual actually committed the offences as such, then a libel action is unlikely to succeed,’ he explains. 

Gambaccini recalls: ‘In addition, media has very good protections in the defences available including truth, honest opinion, and journalists reporting responsibly on a matter of public interest. It is actually quite rare for a newspaper to fall foul of these protections and leave itself exposed to a libel claim.’

‘I had a visit from a reputational lawyer – a profession that did not exist when I was a boy – and a libel lawyer. ‘The reputational lawyer said to me: “Do you fear the press?” I said: “I don’t fear the press. The press are s***, I expect them to be s***. What I’m afraid of are bandwagoners”.’

Laura Clenshaw managing editor of Solicitors Journal, interview by Mark Solon, chairman of Wilmington Legal @L_Clenshaw laura.clenshaw@solicitorsjournal.co.uk

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