00781-16 Khan v The Daily Telegraph

Decision of the Complaints Committee 00781-16 Khan v The Daily Telegraph

Summary of complaint

1. Shoaib Khan complained to the Independent Press Standards Organisation that The Daily Telegraph breached Clause 1 (Accuracy) of the Editors’ Code of Practice in an article headlined “Abu Hamza and the latest blow to UK sovereignty”, published on 6 February 2016. The article was also published online on 5 February 2016 with the headline “Moroccan criminal fighting deportation is Abu Hamza’s daughter in-law, a Tory MP reveals”.

2. The article reported that an “EU law chief” had “ruled” that Abu Hamza’s daughter-in-law could not be deported from the UK. The sub headline stated: “Terrorist’s criminal daughter in-law cannot be deported because of human rights laws”. The article  explained that the woman, identified only as “CS”, had been jailed for a year in 2012 after “trying to smuggle a mobile phone Sim card” to Abu-Hamza while he was being held in Belmarsh prison. It explained that an Advocate General at the Court of Justice of the European Union (CJEU) had said that her deportation would, “in principle”, deprive her son the right to family life. 

3. The online version of the article was sub headlined: “The European court has ruled that EU law means she cannot be deported unless she is deemed to pose a ‘serious’ threat to society”. The online article also included an account of the legal proceedings to date, which explained that the Advocate General’s opinion, “although not legally binding, is generally followed by the court at a later date”, and that the court’s judges “will now deliberate and deliver a judgement at a later date”. It was otherwise substantively similar to the print version of the article.

4. The complainant said that the role of the Advocate General in the CJEU was to give a legal opinion for the court to consider. He said that this opinion was not a ruling of the court, and that the phrase “EU law chief”, and the reference to a “ruling” were therefore misleading. In addition, he said that the Advocate General’s opinion stated that the deportation of an individual in CS’s circumstances would in principle be contrary to EU law, but that there were exceptional circumstances in which a member state may adopt such a measure; it would be for a national court to decide whether such an exception applied in this particular case. In addition, he said that the child’s right to residence in anywhere in the Union was a legal right, but was not necessarily a human right. He said that it was therefore misleading to claim that the ruling meant that CS could not be deported, and that it was misleading to claim that the Advocate General’s opinion was based on human rights laws.

5. The newspaper said that the print version of the article made no reference to the CJEU considering CS’s case, or reaching any decision or judgment on it. It said that it made clear that the article concerned an “in principle” opinion by Advocate General Szpunar, and the reference to an “EU ruling” by an “EU law chief” referred to this opinion.  It said that the CJEU invariably adopts the Advocate General’s opinion as its judgement, and that in most cases, there is no significant difference between a ruling by the CJEU and the opinion of the Advocate General.

6. The newspaper said that a large body of human rights jurisprudence had been incorporated into EU law via the European Charter of Fundamental Rights of the European Union (The Charter).  This case concerned the child’s rights as an EU citizen, which included his human rights, and specifically his right for respect for family life, as provided for in Article 7 of The Charter, the parallel provision in EU law to Article 8 of the European Convention of Human Rights (ECHR). The newspaper noted that both these provisions were referenced by the Advocate General in the “Legal Framework” section of his opinion, which went on to state that in assessing whether to deport an individual in CS’s position on the grounds of public order, account must be taken of fundamental rights involved, and in particular, Article 7 of The Charter and Article 8 ECHR. The Advocate General then concluded that a state may not deport an individual in CS’s position merely on the grounds of a criminal record, but that it may be legal to do so in exceptional circumstances, which include that the measure is proportionate, and based on the conduct of the individual being a present and sufficiently serious threat affecting one of the fundamental interests of society.

7. The newspaper said that the Advocate General’s opinion was that the deportation of CS would infringe the child’s rights, and that the opinion therefore represented an effective ban on deportation. It was therefore not misleading to summarise the opinion of the Advocate General as finding that the deportation of CS would, “in principle”, be illegal.

8. On 8 February, the newspaper made a number of amendments to the online article in response to this complaint. It replaced the word “ruled” in the sub headline with, “been advised”, and amended the first sentence to make clear that Advocate General had said that CS could not be deported “solely because of her criminal past, an EU Advocate General has advised”. On 10 February, the newspaper offered to publish the following clarification in its corrections and clarifications slot on page 2 of the print edition of the newspaper.  It also offered to append an equivalent clarification to the online article,  making clear what amendments had been made, and why, and to add an item to the home page of its website linking to the article, and explaining that it had been amended.

Deportation of convicted Moroccan national

An article of Feb 6 said that it had been ruled that a Moroccan mother with a criminal past could not be deported because of her British-born child’s right to family life under human rights laws. In fact, an opinion of an advocate general at the European Court of Justice (CJEU) was made under the EU Treaty on the Functioning of the European Union, not human rights laws. The opinion – subject to a final ruling by the CJEU would then be applied by a UK court – said that the deportation would breach her son’s right under the treaty to genuine enjoyment of the substance of his EU citizenship unless the UK could show that the mother’s conduct posed a serious threat to public security. We are happy to make this clear.

9. The complainant said that the wording of the proposed correction was satisfactory, but said that it should be published on the front page of the newspaper, where the article under complaint had been published.

Relevant Code Provisions

10. Clause 1 (Accuracy)

i) The Press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text.

ii) A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving IPSO, due prominence should be as required by the regulator.

iii) A fair opportunity to reply to significant inaccuracies should be given, when reasonably called for.

iv) The Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact.

Findings of the Committee

11. At the time of publication, the CJEU had not made a ruling on this case. Rather, one of the Court’s Advocate Generals had proposed a legal solution in the form of an opinion, which would then be considered by the court. Both articles significantly misrepresented the status of the Advocate General’s opinion by suggesting that the CJEU had “ruled” on this case, and stating that CS “cannot be deported”. While the online article went on to explain the status of the Advocate General’s opinion in the court’s procedure, this did not cure the misleading impression given by the sub headline and first sentence. This inaccuracy required correction under the terms of Clause 1 (ii).

12. The Advocate General had stated that the deportation of CS would, in principle, be contrary to EU law, but that there were exceptional circumstances in which it would be legal to deport her. The sub headline to the online article made clear the qualified nature of the Advocate General’s opinion, and the article went on to state that the decision left the UK’s ability to deport CS “in serious doubt”. However, the print version of the article did not make this clear, and therefore suggested that the Advocate General had decided simply that CS could not be deported. The print version of the article was significantly misleading on this point, and required correction under the terms of Clause 1 (ii).

13. The publication of significantly misleading information about the status of the Advocate General’s opinion in the CJEU’s procedure, and the terms of the Advocate General’s opinion, demonstrated a failure to take care not to publish inaccurate information, in breach of Clause 1 (i).

14. The wording of the clarification the newspaper had offered to publish identified the inaccuracies and made clear the correct position. The newspaper’s offer to publish this clarification was prompt. While the article contained significantly inaccurate statements that required correction, the Committee did not consider that inaccuracies were sufficiently serious such as to require the publication of a correction on the front page of the newspaper. As such, the newspaper’s offer to publish the clarification on page 2 of the newspaper, as a footnote to the online article, and to publish the standalone item on its homepage, constituted sufficient prominence under the terms of the Code. There was no breach of Clause 1 (ii).

15. The Advocate General is a member of the CJEU who proposes legal solutions to the cases before the court. It was not significantly misleading to refer to him as an “EU law chief”.

16. The Advocate General’s opinion concerned whether the deportation of CS was legal where it would infringe on her child’s genuine enjoyment of the substance of his rights as a citizen of the EU, and in particular, his right to reside anywhere in the Union. The opinion states that in making an assessment of whether there are exceptional circumstances to justify deportation, account must be taken of the right to respect for private and family life.  In circumstances where the case concerned the child’s right to reside in the union, and the Advocate General specifically referred to his right to a family life, a right guaranteed by the ECHR, it was not significantly misleading to report the Advocate General’s opinion was “because of human rights laws”.

Conclusions

17. The complaint was upheld.

Remedial Action Required

18. The newspaper had already offered to publish a clarification in its Corrections and Clarifications section on page 2 of the newspaper, as well as amending the online article and offering to publish the clarification online. The publication of the offered clarifications would be sufficient to remedy the established breach of the Code and, in light of the Committee’s decision, they should now be published.

Date complaint received: 15/02/2016
Date decision issued: 14/04/2016