Richard Holden is a former Special Adviser and former Deputy Head of Press for the Conservative Party. This is the second of two pieces – the first, published earlier this week, recounted Richard’s horrifying experience at the hands of the police and CPS.
The case brought against me is not unique. It is one of many that has raised severe issues with how complaints in cases, particularly those with a sexual dimension, are dealt with by the criminal justice system. In a way, I am very fortunate. I have had the support of a lot of friends and family. I am also, clearly, a very robust person. But the last 15 months pushed me to the limit.
I can only imagine being the young lad or lass from back streets of Preston, where I was the parliamentary candidate in 2015, from facing similar accusations. It is for them that I decided to speak about what has happened to me.
But this is not a situation of “taking sides”. We desperately need to get beyond the point where people are considered to be either on the side of complainants or the accused. People are perfectly able to be in favour of victims coming forward as well as to stand up for those they believe to be wrongly accused.
There’s a lot of talk about pendulums swinging one way and another. Some will say it’s about “striking a balance”. I’m very clear in my own mind where that is, and I thought society had come to a settled view centuries ago: we want as many people as possible to be convicted, up to the point where we start convicting innocent people. This is why our system says magistrates, judges and juries have to be “sure”, in old parlance, “beyond all reasonable doubt”.
But this should not mean that the backstop, court, is the first time evidence is challenged, sought, or questioned.
I did not see any break in our criminal justice system, or anyone in the police or CPS at any point looking at the account with which they were provided and asking if it was true. In the end, in my case, it was left to a dozen “good men and true”: four black women, four white men, two Asian men and two black men from South London, aided by a formidable and experienced female judge. The last backstop of our criminal justice system, a full trial, should not have been the first point when anyone stopped to question the veracity of the claims made against me. Thank God it does exist, though. The fact that it is there means that, even when other parts of the system fail, justice prevails.
But how can the system ensure that the last line is not the only line? What I suggest is not exhaustive, and others with greater experience of the criminal justice system than me have spoken, too, but these are my personal views. The worst thing that can happen is if this issue becomes embroiled in party politics. Justice, in a democratic society, is much more than that.
In order to save innocent people going through horrendous ordeals and to ensure resources are spent on pursuing reasonable cases, there are a few basic things that need to change across five areas raised by my case:
- The police and CPS,
- Employers’ response to allegations,
- and the media.
What needs to change
The Police and The CPS
It’s clear from my case, and others, that new procedures need to be followed.
I do not believe that this is purely a “resourcing” issue. Basic steps, in the case they were investigating in this instance, would have saved time and resources for the state. It’s basic. They just needed to do their job and pursue ‘reasonable lines of inquiry’ i.e. asking people who were there what happened. A couple of basic things, which I cannot believe I have to suggest to people with decades of experience in policing, would have been very useful and should form the basis of best practice in investigations:
- Taking fuller statements from people they did interview. The practice of asking closed questions with yes/no answers and then producing a statement based on that is clearly utterly flawed and does not reflect a search for truth. If one of the prosecution witnesses had been asked: “Could you describe what happened” – as occurred in court – the investigation would probably have ended at the first stage. The practice pursued in this case was clearly not an attempt to achieve best evidence, but an attempt, by whatever means, to build a case and in doing so hid crucial information.
- Taking statements from everyone present at an event, regardless of whether their evidence backs up the complaint. Surely they most reasonable line of inquiry concerning an allegation as clear, in an open space, would be to ask the people present what occurred. By the description of what happened it would have been impossible for others not to have noticed if it had occurred. This will be the situation in some other cases. The fact that they took multiple statements from people (including the now Home Secretary) who were not at the party but so few from people who were beggars belief. While one witness saying that nothing untoward occurred isn’t massively helpful, if the police had paused for a moment to consider the allegation and that no-one saw anything at all (and that’s what they got in phone-call after phone-call to people who had been present), surely that should have given them pause for thought.
- Performing basic searches and getting, early, evidence from mobile telephones (that was later lost or deliberately destroyed). The fact that the police didn’t even attempt to recover a mobile telephone within weeks of it being handed in but only sought to look at electronic communications 13 months later, at the request of the defence, is a disgrace.
Issues around disclosure have been present in many recent cases. My case raises even greater concerns over pre-interview screening (i.e. witnesses weren’t spoken to unless they were “helpful to the case” – totally contrary to the duty of the police to pursue reasonable lines of inquiry as an investigatory, not a prosecutor, organisation). And over an utter failure to gather basic electronic information – totally disregarding best practice. How can you have disclosure if the police don’t even bother investigating material that can be disclosed?
These three basic policing measures could have saved taxpayers tens if not hundreds of thousands of pounds, prevented a possible miscarriage of justice and ensured resources were instead spent on pursuing actual crimes and helping victims.
On a personal note, it’s not just taxpayers’ general monies that are wasted in cases like this. Lawyers refer to the ‘innocent tax’ – the difference between the costs of defending yourself and what you get back from the state when found innocent. I might get back as little as 20 per cent of the money I had to spend. It will take years for me to pay back the money I had to borrow. This was made far worse by the lack of police investigation – the more innocent you are, usually the more evidence you can get to back you up, but the more you have to pay for your lawyers to gather it.
It is also crucially important that the accused should not be treat differently because of their profile or the job they do. Nor should the fact that someone makes a complaint to someone in high office, before they go to the police, result in a higher likelihood of investigation or charge. Every case should be treat on its merits: weak and non-existent cases are weak and non-existent cases, regardless of the profile of the individuals involved.
Cressida Dick, the Metropolitan Police Commissioner, has already said that she’s changing the way investigations in sex cases are pursued. The proof of the pudding will be in the eating, but it is certainly a welcome acknowledgement from our most senior police officer that things need to change.
As far as the CPS are concerned, it was clear from the start that they could have done much more to ensure one of the basic premises of prosecution in English law. That is: to prosecute, not persecute. The most basic tenet of that is to ensure that prosecutions are not pursued when it is clear that the evidence does not exist, or is incomplete. They should have asked much more serious and searching questions of the police at a much earlier stage. I hope that Alison Saunders and whoever replaces her take this criticism seriously. The CPS have a difficult and important job to do in regaining the public’s trust in what they choose to do.
I support lifelong anonymity for accusers, unless a court decides otherwise or they waive their right. Anonymity for an accuser, for life, regardless of the outcome of a trial, is a perfectly reasonable stance to take and I support it. It removes a barrier to victims of horrendous crimes coming forward.
But it does mean something very dangerous can occur. That is that someone can make a false or malicious allegation in the full knowledge of lifelong anonymity. There is no incentive, at all, in the system for those who do make false allegations to stop once they start rolling the snowball down the hill, save their own conscience.
Rightly, sex crimes carry a particular social stigma. But that means we as a society have to be very careful about what we allow to happen to those accused before conviction. It is time, therefore, that anonymity for defendants, until conviction, is again considered in sex cases.
We have default anonymity for juvenile defendants (under 18, able to be waived by a judge), and for defendants in a limited number of other circumstances. In order to ensure the anonymity of victims of blackmail they are always granted anonymity, as often are those convicted in blackmail cases – in order to protect the identity of the victim. There is clearly a case for reviewing this now, ensuring ‘innocent until proven guilty’ for the many, not the few.
One of the most serious issues raised during my case was the attempt to use the information from my Developed Vetting (often colloquially known as ‘Deep Vetting’) – gathered as a security requirement for my role as a Special Adviser – in an attempt to attack me in court. It was an utter disgrace – not just as a tactic, but also in that it calls our entire vetting system into question.
It leaves a gaping threat to our national security if people in future will not trust that things they disclose about themselves, and others they have known or had relationships with, will not remain private but could be used against them, perhaps even decades hence.
I believe that if the opportunity arises, a clause should be considered to be added in primary legislation that would formally restrict the disclosure of vetting forms from individuals, references and information about someone received from others, and any associated correspondence to authorities only if, and only in the most serious cases if:
- They reveal an imminent risk of a serious injury to another person (i.e. investigations when someone applied for vetting showed they have deep-seated psychological issues in which they’re planning the murder of their partner);
- There is a real threat to national security (i.e. terrorism or that someone is the agent of a foreign power);
- A very serious previously undisclosed crime revealed has been revealed during their vetting process.
Employers’ response to allegations
I had a variety of experiences with employers, ranging from the utterly excellent to the totally appalling.
Some form of ‘best practice for employers’ guidance from one of the business organisations would be useful for employers who find themselves with employees going through the criminal justice process. People should not be forced out of their jobs (which often means crippling financial issues on top of the financial issues they’re already facing) – and innocent until proven guilty should be the default setting. Obviously there are circumstances in which that is not possible, but in the majority of situations it is.
Overall, the press in Britain is clearly a force for good. There are crimes that would have never been solved, or even known about, if it wasn’t for their input and they aid in the public debate by using their influence to usually help check those in power. There are many examples. Lord Rees-Mogg’s famous Times ‘Butterfly on the Wheel’ editorial, or the same paper’s exposure of child abuse in Northern Cities in recent years. The Mail‘s role in pursuing the killers of Stephen Lawrence. The reporting by sports journalists from many papers, particularly the Guardian and Mail, of the football paedophiles.
But they also have a duty to not prejudice cases. And they have a duty not to defame people by omission.
There were issues during my trial which the judge found so serious that it almost caused the dismissal of the jury. A newspaper report for a national paper, published online during the trial, linked the resignation of Sir Michael Fallon to me, which was extremely prejudicial. It shouldn’t be down to an eagle-eyed judge to keep watch for press reports which would have meant the case was dismissed and rescheduled for six months down the line, at the cost of further tens of thousands of pounds. In a world of quick-moving online news, basic editorial controls and oversight should not be allowed to give way to speed and colour.
Defamation by omission. Perhaps unsurprisingly, newspapers like to report politically against the ‘other side’. The Guardian shamefully only reported on the evidence against me. Not the fact that I was acquitted, or the fact that the judge said I leave “without a stain on my character and hopes that I can pick up my career where it left off.” I wrote to The Guardian a couple of weeks after the case and asked them to put something up which reflected the outcome. What they did is here:
That article is still top of the searches for my name. Judge for yourself if this seems even vaguely fair.
Without further attempts to regulate the press, surely it is not beyond reasonable editors and leadership teams to be balanced when it comes to the lives of individuals, and their need to move on after being found innocent, without constantly forcing them to seek legal redress?
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Finally, for me:
I joined the Conservative Party as a young teenage volunteer, when William Hague was leader. I happened to be the Special Adviser to the Leader of the House of Lords when he joined it 17 years later. I have been blessed with a good life and career in politics.
While this trial will never leave me, I desperately hope to be able to move on with my life and, as the judge said, “Leave the court without a stain on my character and…pick up my career where it left off.” I’ve done enough interviews and pieces about the case (the last ones are coming out in the next few days) and a couple of long articles (my apologies). I don’t really want to have to talk about the ins and outs of what happened to me it in great depth ever again!
I would very much like to run for Parliament again and am glad that my suspension from the candidates list was lifted at the earliest opportunity. The experience that I have been subjected to has ensured the healthy questioning of the state, particularly of its powers over people, has been ‘topped up’. While criminal justice is an issue in which I will now always have a strong interest, it isn’t the one that I intend to let dominate my life.
The entire process has certainly changed me; I hope for the better. I’m certainly much calmer and more methodical than I was, and – I hope – more mature and understanding. My greatest fear was of becoming horrifically cynical and bitter, but think I’ve managed to avoid that. I can now look to the future again which, at times, was something that seemed impossible.