Reputation management lessons from the trial of Rebekah Brooks

The traditional advice of lawyers to those subject to criminal investigation is: keep schtum.

The Contempt of Court Act is no longer fit for purpose, argues McBride
The Contempt of Court Act is no longer fit for purpose, argues McBride
Don’t comment to the police, to the press and certainly don’t tweet or Facebook message arguing your case. 

PRs and reputation managers have long found this approach frustrating. The temptation is to engage, put your client’s side of the story and to rebut swirling allegations. 

However, recognising the courtroom’s supremacy and avoiding statements or behaviour which might cause a judge to take a dim view has usually been the safe, and right, response.

The Rebekah Brooks trial has changed all that. 

Reflecting on my experience as her defence lawyer, I am no longer convinced that a strategy of silence is necessarily the only course.  

This trial was exceptional for many reasons – it was the perfect storm involving media, law, politics and Fleet Street rivalry. 

I had seen media maelstroms before, but the vilification of Mrs Brooks, by both traditional and social media, after reports that Milly Dowler’s phone had been hacked by her former newspaper, took things to an entirely new level.

This was partly because she was a successful and influential woman working for Rupert Murdoch and so became a convenient scapegoat for the ills of the industry. 

However reporting was also fuelled by the CPS, politicians and others clearly acting with total disregard to the provisions of the Contempt of Court Act, which kicked in on her arrest on 15 July 2011. 

By the time of trial last year, Mrs Brooks had been publically branded "a criminal in chief", a "witch" and a "figure of hate", without any opportunity to put her side of events. 

Domestic media broke all contempt of court protocol. 

Foreign news reporting made libellous and outrageous allegations and untrammelled vitriol spiralled across social media. 

So my client attended court on day one, not knowing if, whatever the evidence, she could rely on a fair trial and the integrity of the British justice system. 

In the event, of course, she was acquitted. The system works, so you may think. 

Brooks was fortunate – she had an amazingly competent jury, with impeccable attendance, who understood the evidence.  

But is this enough?

I believe the Brooks trial has shown, like no other, that the Contempt of Court Act, in respect of preventing pre-trial prejudice, is not fit-for-purpose. 

Even the Attorney General is impotent to control the behaviour of traditional and social media.  

If the CPS and the police engage in media management, the defence needs to act too. 

It is now inevitable that defendants, their lawyers and PR advisers will need to counteract the allegations against them, perhaps through press conferences, blogs or microsites; setting out the basis of their defence early, and drawing attention to flaws in the prosecution case. 

Through-trial tweeting to emphasise arguments and correct false impressions may also prove beneficial.
The time has surely come for the English system to move towards a less regulated public battle of minds in the lead up to any significant trial. 

I predict we are going to see more aggressive trial-related publicity from those charged, as we do in the American system. 

Only astute and proper reputation management can help those under state investigation to be assured of better protection. 

It is no longer enough to leave everything to the courtroom.

Angus McBride is a criminal law partner at Kingsley Napley LLP

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