So you think you can speak out about misconduct in Modern Britain?
As a new wave of widespread misconduct is revealed, it’s time we evaluated what we participating in through complicity
In the wake of @Kelsey_Caine’s activism, and the expose on Tyneside Cinema, why do so many victims stay silent? Why take months, or years to come forward? If you knew how Britain operated around freedom of speech, perhaps you’d see why so many people stay silent about misconduct.
All advice, opinions and legal positions have been provided to me from qualified solicitors. This is a general advice piece and should not be read as referring or inferring specifically to any one case, individual or ongoing investigation.
NDAs and Settlements
For those of you who are fortunate enough not to know, an NDA is a ‘non-disclosure agreement’. When you sign one, in a wider contract or separately, you agree not to publish, repeat or discuss anything that is reasonably covered by the agreement.
This could be innocent and appropriate, such as not discussing a patient’s medical records, or as appalling as staying silent over racism, professional misconduct, workplace bullying or mental cruelty. Employers, politicians and celebrities can, and do, use these to try and cover up wrongdoing in the workplace or within relationships. Some even attempt to threaten or intimidate former staff, partners or spouses into retrospectively signing specific settlements to avoid costly legal action from their employer or partner or just to get their wages.
So what happens if you decide you want to break an NDA? It’s complicated. It looks very bad for a high profile individual to attempt to uphold an NDA when someone is speaking out about their misconduct, and can bring more attention to their behaviour, so they might choose not to uphold it. You might get a legal letter threatening to sue and intimidate you which, if you unrepresented or unaware of the law, might easily bend you into silence from a wealthy, powerful party.
However, under the HRA, Article 12, you are allowed to speak out truthfully over wrongdoing. If you have sufficient grounds to do so, such as criminal activity or reasonable public interest, you should be okay: the NDA should be viewed as invalid and not enforceable. Similarly, if the NDA is too vague (it doesn’t specifically or be reasonably understood to forbid you from speaking out about the matter you are discussing) it will not, usually, be upheld in court. If you haven’t accepted a financial settlement in exchange for the NDA, that may also work in your favour. If you have also been unduly pressured into signing one, such as being provably threatened or manipulated into accepting one, that may also invalidate it in court. The SRA are not supposed to participate in overseeing NDAs that relate to sexual assault, but that doesn’t mean you are in the clear if that is the issue concerned. It’s a gamble you will have to take on: given that many of those who get NDAs in the first place are people in positions of power over you, they may well have more capital to throw at lawyers to cause you serious damage, mentally and financially, for simply speaking the truth.
As horrifying as this is, it is prolific in modern Britain: I suggest you google Aisha Ali Khan vs George Galloway.
Defamation laws in this country (UK) are so appalling that they are the discussion of international debate regarding freedom of speech. Under English Law, the burden of proof is entirely on the defense to prove that what they are saying is true. This means that if you decide to speak up about someone mistreating you or behaving poorly, the burden of proof is entirely on you to prove that it happened.
Unfortunately, this also means that unless you have tangible evidence and witnesses, you can be destroyed in court by an expensive lawyer, bankrupted and publicly humiliated. They can and often will drag up everything you’ve ever done to belittle, intimidate and discredit you in front of the court and the press. Many hire private investigators to uncover any indiscretion or prior behaviour: every former girlfriend, every stupid remark, every silly text you sent to a friend eight years ago. This can be excruciatingly painful, soul-destroying and embarrassing for anyone who has just gone through hell and back over whether they are brave enough to stand up and speak out, and absolutely delightful for any sadist seeking to ‘punish’ a whistleblower. If you aren’t mentally strong enough to endure a complete and total assault on your reputation and the total destruction of your financial position, I strongly advise you to reconsider speaking out at all.
If you cannot afford a lawyer, as many people cannot, you might well be putting your mental health and financial security on the line for being brave enough to tell the truth. If at all possible, I’d advise accumulating a wealth of evidence, lawyering up and identifying prospective witnesses and testimony. Make sure there is not a single line that you do not have evidence for. Sadly, until the laws change, I’d actually advise against speaking out on your own without a national paper backing your story, unless you can fully support the above evidential requirements to fend off a terrifying libel prosecution lawyer.
This is perhaps the most important part of covering up abuse or misconduct: who you know. From Weinstein to Epstein to Savile, all involve cases where people felt intimidated by the suspect’s close contacts to the press, politics and showbiz. Sociopaths and anti-social individuals thrive off using these powerful connections to create a double life: one where they are successful, philanthropic and popular, while getting away with unspeakably evil behaviour behind the scenes.
When powerful people look the other way to abuse, or decide ‘not to get involved’, they add credibility to denials and throw sand in the faces of those investigating. If a charming TV star or investigative journalist stands by them, or stays silent, they must know something we don’t know, right? Unfortunately, this perpetuates doubt towards victims and allows them to continue their behaviour in plain sight.
Yes, this is an impossible but extraordinary fact: the police can be used to intimidate you into retracting your story or staying silent. I too though this would never happen in a country that wasn’t Saudi Arabia, but incredibly, it can happen, and does. How? Very simple.
A good PR stunt, as evidenced by Mr Trump, has always been to throw mud at the other party: in the olden days this was calling the victim a slut or a witch, or questioning a whistleblower’s morality, allegiances or religious beliefs. By implying that the other party has behaved nefariously, you can immediately shut down any criticism they may have and inspire doubt among those on the fence. Angry former partners, in particular, often pick up the phone and report harassment, malicious communications or blackmail, using the police to humiliate and punish their exes for writing about their relationship online, or not giving them something they wanted in the divorce settlement. But surely, the UK police force wouldn’t actually investigate a completely baseless claim, or infringe on freedom of speech? Wrong.
While the bar for criminal prosecution for malicious communications, harassment or stalking is ridiculously high (trust me, I’ve made a complaint myself) an overzealous police constable harangued constantly by a complainant can often be goaded into interviewing a suspect under caution, and even, on occasions, issuing a caution against an accused party without a solicitor. Knowing this is distressing, humiliating and frightening, individuals who seek to punish people coming forward use ‘interview under caution’ to intimidate or bully others into behaving in a way they want.
But that’s not the worst bit.
Under the Malicious Communications Act, making ‘untrue’ statements with the intent to cause distress is a criminal offence. Now, this makes sense, if you don’t really look into it too deeply: if you, for example, called someone a pedophile, a rapist or a violent serial killer knowing that they weren’t, just to upset them and embarrass them, of course you should face serious consequences, that’s horrific. The problem is this: very often, that person claiming to be ‘distressed’ is in fact as guilty as sin of what they are claiming is ‘untrue’.
And astonishingly, or not perhaps given the general gender weighting of the police force, even after cases are confirmed in the national press, evidence emerges and scores of other victims come forward, the police can and do still decide to take the word of the complainant over their suspect. This can result in a person being arrested for simply speaking out online about something they experienced, without ever having their side of the story heard.
Yes: you can be arrested for speaking out about your alleged abuse if your alleged abuser says it’s untrue to the police. And yes, this is happening in modern Britain, after #MeToo. I should say, here, for the avoidance of doubt, that I am fortunate that this has not happened to me: I have never been arrested, or interviewed, or cautioned, although I am aware of this happening in many other cases, having discussed this issue with police officers, activists, barristers and solicitors.
In my opinion, it is not for the police to decide whether a woman, or indeed any citizen, is ‘lying’ about their experiences of misconduct, sexual or otherwise, entirely on the say-so of the complainant, and certainly not to threaten to arrest them on the grounds of such a claim, particularly when their story is evidenced in the national press and by other victims. This leaves spectacular space within police activity for a victim to unduly become the suspect, participate in discrediting their account, and frightening other victims from speaking out. I’m absolutely stunned and appalled that this could happen.
After speaking to a variety of people, I’ve made a petition to review the way in which the Police handle Malicious Communications in regard to people coming forward online about misconduct and mistreatment: I hope we can change the way this country handles those who choose to speak out.