01665-22 Paisley v Sunday Life

Decision of the Complaints Committee – 01665-22 Paisley v Sunday Life

Summary of Complaint

1. Denis Paisley complained to the Independent Press Standards Organisation that the Sunday Life breached Clause 1 (Accuracy), Clause 2 (Privacy), Clause 3 (Harassment) and Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice in an article headlined “BOOKIES GUN LOYALIST HAS STORMONT FUNDED JOB”, published on 13 February 2022.

2. The article appeared on the front page and continued on pages four and five. It reported on the publication of a recent Police Ombudsman report which considered the investigations by police into a number of attacks, including one at the Sean Graham bookmakers in 1992. The article focused on the complainant who the publication believed featured heavily in the report, under a cipher, detailing his previous conviction for possessing a weapon used in the incident. Following the publication of the Ombudsman report, the newspaper approached the complainant at his home for comment and took a photograph of him; this image was cropped to show the complainant’s head and bare shoulders and was published both on the front page and again alongside the article in the inside pages.

3. The text on the front page stated: “The ex-UDA man caught with a gun used in the Ormeau Road bookies massacre has refused to apologise to the victims’ families”. The article further stated that the complainant had “refused to apologise to the victims’ families”; “When approached at his Lisburn home last week, Paisley refused to answer when our reporter asked if he would apologise to the families of the Sean Graham victims”; “Paisley also refused to answer any questions regarding his possession of the Browning or what he intended to use it for on the day that he was caught”. An image caption said “SNUB: Denis Paisley refused to speak to us”.

4. The article included an additional image of the complainant which showed him at his workplace. It also reported that the complainant “is referred to as the cipher ‘ZZ’ in the [Police Ombudsman] report” and that “There is no suggestion Paisley used the gun [in the incident].” The article stated that the complainant “was jailed for seven years for possessing the weapon, [and] was suspected by police of being en route to kill a Catholic man at a Lisburn factory.” It also quoted an “insider” who said: “Denis was in his early 20s and was part of a group of young loyalists Alex Kerr wanted blooded as future killers.”

5. The article also appeared online in substantially the same format under the headline “Loyalist caught with Belfast bookies massacre gun has Stormont-funded job”.

6. The complainant said that the article was inaccurate in breach of Clause 1 as it stated that he refused to answer questions and apologise to the victims of the Ormeau Road atrocity. He said this was untrue as the reporter had not asked those questions and was at his door for less than a minute and would not have had the time to ask everything that was stated in the article. He stated that he had never been asked to apologise for the Ormeau Road atrocity prior to the approach from the journalist, as his conviction for possession of the weapon was nothing to do with the Ormeau Road incident.

7. The complainant also said that the article inaccurately claimed that when he was arrested, he “was suspected by police of being en route to kill a Catholic man at a Lisburn factory.” The complainant said this was a fabrication which could be verified by the police as he was never questioned about such activity. He said the Relatives for Justice (RFJ) report, which the publication appeared to have relied on, was “unofficial and steeped with non-factual information” and the claim amounted to speculation, not fact. The complainant further disputed the claim in the article that “’Denis was in his early 20s and was part of a group of young loyalists Alex Kerr wanted blooded as future killers,’ said an insider”, as he said he did know Alex Kerr or recognise the image of him in the article.

8. The complainant also said the article breached Clause 2 as he considered the approach by the publication to be intrusive and an invasion of his privacy. He had been unaware that a photographer was present and had not consented to the photograph being taken, and he considered that the act of taking the photograph at his home was an intrusion into his privacy, particularly as he was partially clothed at the time the photograph was taken. He also considered that publishing details of his previous conviction, as well as linking him and the charity he worked for to the atrocities of the past to which he was unconnected, amounted to a breach of his privacy.

9. The complainant also complained under Clause 3, as he said the journalist had shouted questions at him and gave him no opportunity to respond; he believed the real motive for the approach was to obtain the photograph of him. He said this approach had harassed his family and caused undue hardship. He provided an account of the exchange with the journalist and said the conversation ended when he made clear he did not wish to comment, either directly or through a solicitor, and then closed the door.

10. The complainant also said that the publication had breached Clause 10, as he had not been informed of the journalist’s visit to his house or that a photographer would be taking a picture of him, without his knowledge or consent, for publication.

11. The publication denied any breach of the Editors’ Code. It said the journalist had recorded the exchange at the doorstep – which had lasted for one and a half minutes – for accuracy purposes, and the recording, a copy of which it provided to IPSO, demonstrated the journalist was polite and gave the complainant an opportunity to respond to his questions. The publication said the journalist had given the complainant ample opportunity to apologise for his association with the incident, or to sympathise with the families of the victims, but instead he had repeated that he did not wish to say anything. The publication provided the journalist’s account of the conversation:

From the date and time information attached to the recording of the doorstep conversation I can confirm it took place at Mr Paisley's home address at 8.50am on February 11. Not as Mr Paisley states 8.30am.

We spoke on his doorstep for approximately 1 minute and 26 seconds. Contrary to Mr Paisley's recollection, I did not shout the questions at him but spoke at a normal conversational level.

I introduced myself and began saying I wished to speak to him about his conviction for possession of the Browning 9mm pistol used in the Ormeau Road bookie's massacre.

He replied: "I have no interest in talking to you."

I then asked him if he had anything to say to the massacre victims’ families following the publication of the Police Ombudsman's report into the killings.

He replied: "I have absolutely nothing to say to anybody, other than my solicitor if needs be."

I asked him the name of his solicitor but he told me it was "none of my business".

I then asked him again if he had anything to say about his conviction for possession of the Browning or to the victims' families.

He replied: "I certainly have nothing to say to you or to anybody else."

I then asked him what he was doing with the gun on the day he was arrested and if he was on his way to murder someone.

He replied: "See you later."

I also offered him the opportunity to take my business card and the chance to speak about the matter over the telephone but he declined.

At the end of our exchange I thanked him for his time and left.

12. The publication also denied that it had breached Clause 1 in relation to the claim that the complainant had been suspected by police of being en route to kill a Catholic person at the time of his arrest. It said it had received this information from well-placed sources who had access to documents including notes of the interview between the complainant and the police at the time of his arrest. It also said that this was documented in the RFJ report – a report compiled from evidence gathered from a variety of sources.

13. The publication provided excerpts from the report which it said supported its position: the report suggested that the pistol used in the Sean Graham's attack was recovered from a van, "carrying two men who, it is believed, were on the way to carry out an attack. […] The two men arrested were Denis Paisley, the driver, and his passenger Andrew Webb.” And “it is clear that both Paisley and Webb were scouting the Radication Factory on Church Road, Lambeg. […] It is generally thought that a Catholic member of the workforce at Radication were to have been targeted. It also appears that the van may have been under surveillance as it is mentioned in interview that they had slowed and observed the factory, which was several miles from where they were eventually stopped.” The publication further stated that the reporter had viewed police documents which indicated that police suspected the complainant was planning to shoot a Catholic worker at the factory and that he was questioned by police about that.

14. The publication also believed the complainant was identifiable as “Person ZZ” in the Ombudsman report given the information available in the public domain following the publication of the RFJ report, and information the publication received from trusted confidential sources. It also said that the complainant had been named in connection with the Ormeau Road incident by another publication on 8 February 2022. The publication provided excerpts about “Person ZZ” from the Ombudsman report which said they had been questioned about the Ormeau Road incident at the time of their arrest.

15. In regard to the complainant’s denial that Alex Kerr wanted him to be “blooded” as a UDA killer as reported in the article, the publication said that this information had been provided by its well-placed loyalist sources.  It did not believe the complainant’s claim that he had never heard of Mr Kerr as, it said, he was a commanding officer in the UDA, and well known to the public at large at the time.

16. In addition, the publication did not accept a breach of Clause 2. It stated that the complainant’s past conviction was a matter of public record, and in light of the Ombudsman's report, it considered there was a public interest in identifying a person convicted of possessing one of the weapons involved in the Ormeau Road incident and giving them the opportunity to comment. The publication said that it did not expect the complainant to answer the door bare-chested but, in any event, said he was clearly comfortable opening the door to a stranger while partially dressed and was in full view of anyone passing by. The publication said that this approach had not intruded into his private life, nor was he engaged in a private act, and would have known that he was in public view to anyone on the street.

17. The publication said, prior to publication of the article, the editor and senior staff had discussed whether to use the photograph of the complainant and had decided to crop the image to display only his head and shoulders. It considered that the publication of a cropped image of the complainant to illustrate that he had refused to comment about his connection to the Ormeau Road incident, to be relevant to the subject matter of the article. It did not consider that the image disclosed any private information about the complainant, but simply showed his likeness. It said doorstepping the complainant and using the photo was in keeping with the public interest.

18. The publication did not accept that there had been a breach of Clause 3 as it said the reporter had not engaged in intimidation, harassment, or persistent pursuit nor that he had shouted questions at the complainant. It provided a recording and transcript to support its position. Since the complainant had been identified in the Ombudsman’s report issued a few days prior, as well as being named in the RFJ report, and in light of further information received from the publication’s sources, the reporter was justified in approaching the complainant for comment.

19. The publication did not accept a breach of Clause 10, as it said while the complainant may not have noticed the photographer, he was sitting in a car directly across the street from the complainant’s home in clear view and had not engaged in misrepresentation or subterfuge, and the camera was not “hidden”.

20. While the publication did not accept a breach of the Code, it offered to print the complainant’s denials and also to publish his comments on the Ormeau Road incident.

Relevant Code Provisions

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.

Clause 2 (Privacy)

i) Everyone is entitled to respect for their private and family life, home, physical and mental health, and correspondence, including digital communications.

ii) Editors will be expected to justify intrusions into any individual's private life without consent. In considering an individual's reasonable expectation of privacy, account will be taken of the complainant's own public disclosures of information and the extent to which the material complained about is already in the public domain or will become so.

iii) It is unacceptable to photograph individuals, without their consent, in public or private places where there is a reasonable expectation of privacy.

Clause 3 (Harassment)

i) Journalists must not engage in intimidation, harassment or persistent pursuit.

ii) They must not persist in questioning, telephoning, pursuing or photographing individuals once asked to desist; nor remain on property when asked to leave and must not follow them. If requested, they must identify themselves and whom they represent.

iii)  Editors must ensure these principles are observed by those working for them and take care not to use non-compliant material from other sources.

Clause 10 (Clandestine devices and subterfuge)

i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held information without consent.

ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.

The Public Interest (*)

There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.

(1.) The public interest includes, but is not confined to:

- Detecting or exposing crime, or the threat of crime, or serious impropriety.

- Protecting public health or safety.

- Protecting the public from being misled by an action or statement of an individual or organisation.

- Disclosing a person or organisation’s failure or likely failure to comply with any obligation to which they are subject.

- Disclosing a miscarriage of justice.

- Raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.

- Disclosing concealment, or likely concealment, of any of the above.

(2.) There is a public interest in freedom of expression itself.

(3.) The regulator will consider the extent to which material is already in the public domain or will become so.

(4.) Editors invoking the public interest will need to demonstrate that they reasonably believed publication - or journalistic activity taken with a view to publication – would both serve, and be proportionate to, the public interest and explain how they reached that decision at the time.

(5.) An exceptional public interest would need to be demonstrated to over-ride the normally paramount interests of children under 16.

Findings of the Committee

21. The article claimed that “The ex-UDA man caught with a gun used in the Ormeau Road bookies massacre [the complainant] has refused to apologise to the victims’ families”. The recording of the exchange between the complainant and the journalist confirmed that the journalist had asked whether the complainant had anything to say to the families of the victims, to which the complainant had said he had no comment. The journalist did not ask, expressly, whether he wished to apologise to the families and, therefore, it was inaccurate to report that the complainant had refused to apologise. The distinction between declining to provide a comment and refusing to apologise was significant given that it might be construed as indicating the complainant’s attitude toward the families of the victims and the incident more generally. Misreporting the exchange between the journalist and the complainant, particularly when a recording was available, amounted to a failure to take care not to publish inaccurate information in breach of Clause 1 (i). As the inaccuracy was significant and the newspaper had not offered to publish a correction, there was a further breach of Clause 1 (ii).

22. The article also claimed that at the time of the complainant’s arrest for possession of a weapon, he was suspected by police to have been on his way to kill a Catholic person, which the complainant denied.  The publication said that it had relied on several sources in support of this claim, including the passages from the RFJ report, as summarised in paragraph 13 above, and police documents which it said had been obtained by the victims’ families which it said it had seen. The publication had also invited the complainant to comment on the allegation before publication of the article. The publication had, therefore, taken care not to publish inaccurate information on this point. The article reported only that this had been a suspicion held by the police, from which it was clear that the claim was not being reported as fact. As such, there was no breach of Clause 1 on this point.

23. Turning to the complainant’s concerns about whether an “insider” had said: “Denis was in his early 20s and was part of a group of young loyalists Alex Kerr wanted blooded as future killers.” The Editors’ Code of Practice makes clear the press has the right to publish individuals’ views, as long as it takes care not to publish inaccurate, misleading or distorted information, and to distinguish between comment, conjecture and fact. The claim was clearly distinguished as comment and attributed to the “insider”, rather than being reported as fact. There was no breach of Clause 1 on this point.

24. The Committee then considered whether the newspaper’s approach to the complainant on his doorstep and the published cropped image breached Clause 2. The Committee emphasised that the terms of Clause 2 do not prohibit journalists from approaching people unannounced at their homes. The Committee accepted that, in certain circumstances, an individual may have a reasonable expectation of privacy while standing in his/her front doorway. In this case, following the publication of the Police Ombudsman report – which the publication believed identified the complainant 19 times – the Committee accepted that it was in the public interest to capture the complainant’s reaction when approached for comment, and photographing the complainant in these circumstances was justified. In addition, the photograph did not reveal anything private about the complainant; the publication had taken care to crop the image so that it showed only his head and shoulders. There was no breach of Clause 2.

25. In regard to the complainant’s concerns that publishing information about his previous conviction intruded into his private life, the newspaper was entitled to publish information about the complainant’s previous conviction which was in the public domain. The Committee considered the complainant’s concerns that linking the Ormeau Road incident to the charity he worked for breached Clause 2, however, in this case, where the charity was not an individual and the complainant’s spent conviction was not private information, there was no breach of Clause 2 on these points.

26. In regard to concerns raised under Clause 3, newspapers are generally entitled to approach people for comment at their homes. Having reviewed the recording of the exchange, it found that the journalist identified himself, asked the complainant questions in a polite manner and left once the complainant made clear he did not wish to make comments. Where the journalist had not engaged in intimidating or persistent questioning, there was no breach of Clause 3.

27. While the Committee appreciated the complainant had not seen the photographer, based upon the information provided by the publication which had not been challenged by the complainant, the Committee did not find that the camera was hidden or that the photographer had engaged in misrepresentation or subterfuge in circumstances where the photographs were taken from a car parked on the public street. For this reason, there was no breach of Clause 10.

Conclusion(s)

28. The complaint was upheld in part under Clause 1.

Remedial Action Required

29. Having upheld a breach of Clause 1 (i) and Clause 1 (ii), the Committee considered what remedial action should be required. In circumstances where the Committee establishes a breach of the Editors’ Code, it can require the publication of a correction and/or an adjudication, the terms and placement of which is determined by IPSO.

30. The Committee had found that the publication did not take the necessary care when reporting the complainant’s response to the journalist and that the distinction between the complainant refusing to apologise to the victims’ families and refusing an opportunity to give any message to the victims’ families was significant. Notwithstanding this finding, it remained the case that the complainant had declined an opportunity to comment to the families, and in these circumstances, the Committee considered that the appropriate remedy was the publication of a correction to make clear the precise nature of the exchange. The inaccurate claim had appeared online and in print; the claim appeared on the front page as well as being repeated later in the article. In these circumstances, the correction must be published both on the online article and in print.

31. Where the inaccuracy was found on the front page and on pages four and five, and taking into account the nature and extent of the inaccuracy, the Committee concluded that the correction should be published on page two of the print newspaper and at the foot of the online article. If the publication intends to continue to publish the online article without further amendment, the correction on the article should be published immediately beneath the headline. The wording of the correction should be agreed with IPSO in advance and should make clear that it has been published following an upheld ruling by the Independent Press Standards Organisation.

Date complaint received: 16/02/2022

Date complaint concluded by IPSO: 05/07/2022

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