Written by Matthew Claughton, 28th September 2023
Following the Times and Channel 4 reports into allegations against Russell Brand, this week I appeared on BBC Radio and was asked a number of questions by presenter Phil Upton. I have had some interest in my radio appearance and decided to expanded upon those questions and my answers in the paragraphs below.
How can The Times and Channel 4 report the allegations without any formal charges being brought so far against Russell Brand?
My response was and remains as follows. The starting point is that they can report these allegations. It’s ultimately a judgement call for their media lawyers and the law of defamation and of course a matter of the journalistic integrity of those involved. The remedy for an individual who faced false accusations would be an expensive one, in a High Court libel trial.
Watch below: Matthew Claughton discussing the Russell Brand allegations on the BBC CWR Breakfast show
I know many of you in the last 24 hours or so have asked us the question here on CWR, how are we allowed to broadcast this, these allegations labelled at high profile public figure without any formal police charge being made? Certainly not so far anyway. Matthew Claughton is the managing director of Olliers Solicitors, specialises in rape and sexual assault cases.
He is himself a lawyer, joins me this morning on CWR. Matthew, morning to you. Morning, Phil. Appreciate you coming on this morning. Lots of people would have seen the Channel 4 Dispatches program, might even have read the articles in the Times and the Sunday Times, either online or read them in the newspaper themselves.
How are they able to make these allegations so publicly, you know, with such a headline grabbing attention, without actually charges being brought before Russell Brand? I think the starting point is that they can report this. This is ultimately a judgment call for their media lawyers and the laws of defamation.
And it’s ultimately a matter of the journalistic integrity of those involved. So from that perspective, yes, they can report it. The question is, what the implications would be for a future police investigation. I suppose so. Yeah. When you have reporting as widespread of this, you know, if there, if there are charges and then ultimately I suppose, you know, any kind of trial, there are dangers aren’t there in prosecuting that because the public may potentially have already have made up their mind.
You’ll never be able to get a proper, you know, set of jurors together, would you to, to judge on this if already such open and closed? Yeah, if this matter were to be prosecuted, there’s no doubt that a defence team would argue that there was no way that their client could have a fair trial and that he’d already been tried in the media and that would be an abuse of process argument. So, yeah, that’s the danger that the Dispatches team and Channel 4 team that’s a risk that they run, and they must have thought about that before publishing and broadcasting.
Yeah, it’s a general question, I suppose, Matthew, when we deal with these stories. How difficult does it, I mean, in your case as a lawyer, to defend your client facing criminal charges of this nature? If Russell Brand was your client right now, what would you be doing? Well, it makes it a lot more complicated because there’s such a complicated history to the investigation. Ordinarily, if the police receive a complaint they get an initial account from a complainant and then a specially trained officer, as distinct from an experienced journalist, a specially trained officer interviews a complainant in a recorded interview and there’s no room for criticism of the process or very limited room and the integrity of the process of capturing evidence can’t really be criticized.
What we have here is the polar opposite of that, because we have an investigation that’s gone on for, I believe, many years and in that situation, there will be lots of room for criticism of the capture, the process in which the evidence was captured and different versions of events were obtained, and it’s not just the defence. The police will want chapter and verse about what’s happened in the in the build up to any police complaint. The Crown Prosecution Service would want the same. And then during the course of the investigation and later, so would the defence team.
I was just trying to understand, again, from, you know, you’ve given a defence position there, we’ve heard the Metropolitan Police this morning, for example, now have got involved because of complaints that have come in subsequent to the broadcast of the Dispatches Program and the articles in the Times and the Sunday Times.
What requirements are there in a sexual assault case that have to be established before a police force can press charges against an individual? Okay, the test is whether or not there’s a realistic prospect of a conviction and so they will have to look at the versions of events that come from complainants, they would also have to look at the risk of an unsuccessful abuse argument for post charge.
But it’s really, is there a realistic prospect of a conviction and the defence may well make representations against charge during the investigation process, and they may draw attention to inconsistent version of events that have been made to journalists throughout the process on what the defence would want access to all the material obtained by journalists and the contact between journalists and complainants during the period of the investigation.
They would be looking to establish contradictions in the complainant’s version of events so that they could argue that there is not a realistic prospect of a conviction here. Matthew, appreciate it. Thanks very much indeed. Matthew Claughton. It’s a pleasure. Olliers Solicitors specializing in rape and sexual assault cases.
What are the dangers of this for any future prosecutions if it came to that?
Were this matter to be prosecuted I have no doubt that a defence team would argue that there was no way their client could have a fair trial and that they had already been tried in the media. In essence, the defence argument would be that to proceed to trial would be an abuse of process. After all, how many jury members would approach a trial without preconceived notions about a defendant’s guilt or innocence.
In a case such as this where the first port of call is to a journalist, any defence team would want to know the full history of journalistic involvement, versions of events given to journalists, any incentives or assurances given by journalists.
During the investigation stage of the case defence lawyers would initiate ‘pre charge engagement’ with investigators. They would ask investigating officers to retrieve as much information as possible relating to the contact between journalists and alleged victims. This would, as a minimum include emails, messages, notes taken between parties, draft statements, recordings. It may involve requesting both journalists and witnesses to allow the examination of their phones, laptops and other electronic devices.
The important point to remember is that had a complaint been made to the police, then strict procedures would have been followed. I very much doubt whether the records kept by journalists, who are of course not trained investigators, would be of the standards expected of police offices responsible for preserving the integrity of evidence.
It is likely that the defence would argue that to prosecute would be an abuse of process. They might then remind the prosecutor of the contents of the Code for Crown Prosecutors which provides at 3.5:
“Prosecutors should not start or continue a prosecution where their view is that it is highly likely that a court will rule that a prosecution is an abuse of its process, and stay the proceedings.”
Explain what else the defence would be looking for
During the pre-charge stage of any case, and specifically during pre charge engagement, the defence would be keen to obtain or draw to the attention of investigators, any material that supports the defence case, including:
- Text messages, emails and other forms of electronic communication
- Voice notes/recordings
- Video recorded evidence
- Social media activity
- CCTV enquires
- Internet and other research
- Relevant medical evidence
- Timelines and chronologies supportive of the defence
- Tracking down and taking accounts from witnesses who will support the defence case and subsequently invite the police to speak to these individuals.
On occasions we may draw to the attention of investigators information that sheds light on why a complaint has been made.
Can any future trials ever be fair when it has been in the media?
There are two different issues about publicity. Where details of alleged are published in the media based upon a version given to a journalist, then there is a risk of serious prejudice to an individual if they are later prosecuted.
If one the other hand, it is merely the fact of an arrest that is disclosed in the media and not the facts alleged then there is less risk of prejudice at trial, especially when the complaint has been made to the police in the first instance and there is no media involvement. Here the issue is whether the individual under investigation has a right to remain anonymous, something that is the subject of ongoing debate.
How difficult does it make your job to defend your client who is facing criminal charges of this nature?
It makes it a lot more complicated because there is a far more complicated history to the investigation. Instead of an initial police complaint, the complaint would have started with journalists and then were it to become a police matter the procedure would start again with the police
I have to say that in my view, a case like this could get so messy that the chances of a prosecution and ultimately a conviction are probably reduced, although I say this not knowing whether those who have come forward have made police complaints or any have intention of making police complaints. It’s likely that those making complaints to journalists did so following advice as to the likely impact this might have on the prospects of a successful prosecution.