01701-17 Hill v The Mail on Sunday

Decision of the Complaints Committee 01701-17 Hill v The Mail on Sunday

Summary of complaint

1. Max Hill complained to the Independent Press Standards Organisation that The Mail on Sunday breached Clause 1 (Accuracy) of the Editors’ Code of Practice in an article headlined “The terror law chief and the 'cover-up' that could explode UK's biggest bomb trial”, published on 5 March. The article was also published online with the headline “Terror law chief's 'cover up' that could explode UK's biggest bomb trial: Barrister appointed as top legal watchdog used 'faulty evidence' to convict 21/7 bombers despite knowing the expert was discredited”.

2. The article reported that the complainant had been “accused of an alleged cover-up of vital evidence that could cause one of Britain’s biggest terrorist cases to collapse – the convictions of four men for the ‘21/7’ attempted London bombings”. The article referred to the complainant as having led this prosecution. It explained that in order to convict four of the failed ‘21/7’ terrorists of conspiracy to murder, the prosecution had had to demonstrate that the devices they had used were viable as bombs. It explained that to do this, the prosecution had relied on the evidence of an expert, who had conducted forensic tests on the devices.

3. The article reported that the prosecution had been warned by government scientists from the Forensic Explosives Laboratory (FEL) that the expert’s evidence “might be deeply flawed”. It said that the scientists’ concerns about the evidence had been set out in a report before the trial, and that this should have been disclosed to the defence under rules to guarantee fair trials. While the article reported that the complainant had said that he was not aware of this report before the trial, it claimed that “other documents seen by this newspaper show he did know serious issues about forensic evidence had been raised by [FEL scientists]”. It claimed that the newspaper was publishing these documents for the first time, and that they had also not been disclosed before the trial.

4. The article reported that the documents included minutes of a “secret ‘case conference’ held…eight weeks before the trial began”. It explained that in the minutes, the complainant had “personally quizzed [the expert]”, that he “pointed out to the expert that he had made a crucial ‘mistake’ about the chemical composition of the home-made bombs and that ‘a correction’ had to be made over their concentration”. Later in the article, it was explained that following this case conference, the expert “made an ‘amendment’ to his statement, which admitted ‘a number of errors in the original report’. It was the information in this amended statement that formed the basis of his trial evidence.”

5. In addition to this case conference note, the article claimed that another document showed that one of the complainant’s colleagues on the prosecution team, who had attended the case conference, had visited the FEL. It reported that notes of this visit showed that she had been told by the chief scientist that he could “pick lots of holes” in the expert’s work, “especially re quality systems”, that the expert had “used the wrong method to test the explosives”, that he had a lack of experience in forensic work. The article claimed that “when it came to trial [the complainant] did not disclose anything about the problems raised by the [FEL scientists], nor did he mention the case conference notes to the defendant’s lawyers”.

6. The article reported that when the non-disclosure of the FEL report came to light, a fifth member of the 21/7 group, Manfo Asiedu, had appealed against his conviction, alleging that “bad faith” had infected the entire prosecution, and that the non-disclosure of the FEL report amounted to a “cover-up”. The article reported that in considering this appeal, the Court of Appeal said that the non-disclosure of the report had no impact on this individual’s voluntary guilty plea. The article reported that while the Court of Appeal decided that the FEL report should have been disclosed, it said that there was no evidence of a cover-up and no bad faith, or abuse of process. The article said that the newspaper was able to report these claims now, as the case had previously been subject to a “gagging order”, which had now been lifted.

7. The article reported that four of the convicted bombers had submitted dossiers to the Criminal Cases Review Commission (CCRC), asking for a fresh hearing at the Court of Appeal. It reported that the complainant “denied he was party to any cover-up”.  The article had the sub-headline “Revealed: New legal watchdog used ‘faulty evidence’ to convict 21/7 bombers…and knew expert was discredited”.

8. The complainant said that the newspaper had reported damaging allegations against him, which had been fully ventilated and decided during earlier proceedings. He said that the newspaper had sought to rely on what it inaccurately claimed was fresh material, submitted to the CCRC, as justification for rekindling the story, in an attempt to damage his reputation.

9. The complainant said that there was no evidence to support the inaccurate claim that he knew the expert was “discredited” at the time of the trial. He said that the Court of Appeal had given its judgment in light of the case conference notes. It expressly found no evidence of cover-up or bad faith, and it clearly decided that there was no evidence to support the claim that the prosecution had conducted the trial notwithstanding ongoing criticism of the expert. The complainant said that there was no suggestion that the application to the CCRC by the other four convicted-bombers contained anything other than assertion, and claims which had already been fully considered by the Court of Appeal.

10. The complainant said that he had been aware of some issues relating to the content of the expert’s first report, which were dealt with at the case conference. These concerns had been brought to the attention of counsel, including at a visit to the FEL by a colleague on the day of the case conference. The complainant explained that it fell to him to discuss them with the expert at the case conference. The result of this was that the expert wrote an addendum report, clarifying and correcting where necessary, which was disclosed at the trial for all to see. So far as he was concerned, the expert had answered the questions and concerns raised.

11. The complainant said that it was inaccurate for the article to refer to “the prosecution team he led”. He said the prosecution had been led by another barrister, who had called the scientific evidence, but who fell ill after the close of the prosecution’s case. The complainant said that he had therefore made the closing speech to the jury, but that the other barrister had led the team in relation to the subject matter of the article under complaint. The complainant denied that the Court of Appeal judgment had been subject to any “gagging order”, and said that it was wrong to suggest that that an embargo had prevented publication.

12. The newspaper said that it was incorrect for the complainant to assert that everything in the article had been fully considered by the Court of Appeal in 2015. It said the weaknesses in the expert’s evidence, which had been investigated and reported by its journalist, could lead to the convictions of the four convicted bombers being declared unsafe. This matter had become highly relevant following the complainant’s appointment as Independent Reviewer of Terrorism legislation.

13. The newspaper said that the complainant was aware of serious concerns about the expert’s evidence, which he had been told about following a visit to the FEL by one of his prosecution colleagues.  The complainant then raised these concerns with the expert at a case conference. It said that the article did not suggest that the complainant knew about the FEL reports on the expert’s work. The purpose of the article was to reveal two further documents, the notes of the case conference with the expert, and the notes of the prosecutions visit to the FEL, which were belatedly disclosed in Mr Asiedu’s appeal, and which the defence were arguing should have been disclosed at the trial.

14. The newspaper said that while the Court of Appeal considered the case of Mr Asiedu, the article under complaint concerned an application to the CCRC by four of the other convicted-bombers. It said that Mr Asiedu had pleaded guilty, such that the evidence of the expert was less important in his case. While the Court of Appeal had said that the concerns about the expert’s evidence do not appear to cast doubt on his evidence, the court made clear that it had not embarked on any re-hearing of the scientific evidence.   It said that the CCRC might take a different view on the application by the other four individuals. In any event, the newspaper said that the article made clear that in Mr Asiedu’s case, the Court of Appeal found that while the FEL report should have been disclosed before the trial, there was no evidence of a cover up, and no bad faith or abuse of process. The newspaper said that the Court of Appeal had issued an order on 10 February 2015 banning the reporting of Asiedu’s appeal while it was ongoing. This “gagging order” was not lifted until the judgment was issued on 30 April 2015. It said that this had been 8 days before a general election, which is why nothing had been reported on the case conference notes until the article under complaint, when the complainant’s appointment as the Independent Reviewer of Terrorism Legislation gave the issue a new topicality.

15. The newspaper said that the complainant led the prosecution team before the trial ended, that he had taken the lead at the case conference at which concerns about the expert’s work had been raised with him, and that he was in sole charge of Mr Asiedu’s appeal. It denied it was significantly inaccurate to refer to the prosecution team that the complainant led, but removed this claim from the online version of the article.

16. The newspaper said that it had contacted the complainant on the Wednesday before publication, to ask for his comment, but that he declined to do so.

Relevant Code provisions

17. 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

18. The complainant did not dispute that he was aware of issues relating to the expert’s first report, which had been brought to the attention of junior counsel at a visit to FEL and had subsequently been relayed to him. They included errors in calculations used by the expert in the report which were accepted by him and which he amended in a subsequent report, and some more general concerns about the expert’s work. It was therefore not misleading for the newspaper to report in the article that the complainant knew that “serious issues about the forensic evidence had been raised by FEL experts”. However, in the sub-headline of the print article, and the headline of the online version of the article, the newspaper claimed that the complainant “knew” that the expert had been “discredited”. This was a serious allegation in light of the other claims in the article that the complainant had failed to make the disclosures to the defendants’ legal team which would have been required in such circumstances. To claim that he “knew” the expert had been “discredited”, went significantly further than reporting that he had been aware of concerns about the first report. The complainant’s knowledge of these concerns was not sufficient to justify the claim regarding the complainant’s understanding of the expert’s suitability to act and whether it was appropriate for the prosecution to rely on his evidence at the trial.  These headlines were not supported by the text of the article, and represented a failure to take care not to publish misleading information, in breach of Clause 1 (i). The newspaper had not offered to correct these significantly misleading claims, in breach of Clause 1 (ii).

19. The Committee noted the complainant’s concern that the article had been written because of his recent appointment as the Independent Reviewer of Terrorism Legislation. The selection of material is a matter for editorial discretion, and the newspaper was entitled to report on the complainant’s role in the 21/7 prosecutions. However, the article claimed that the issues raised at Asiedu’s appeal “went unreported because the court imposed a gagging order. We can report them now as it has been lifted”. The Committee considered that this statement misleadingly implied that the gagging order had only recently been lifted, allowing coverage of the allegations against the prosecution. The “gagging order” had in fact been lifted 22 months previously.  The Committee took the view that this was a significantly misleading statement in the context of an article reporting that the complainant had been accused of a “cover-up”. This represented a further failure to take care over the accuracy of the article, in breach of Clause 1 (i), and a further misleading statement, which the newspaper had not offered to correct, in breach of Clause 1 (ii).

20. In response to the concerns raised about the expert’s report, the complainant spoke to him at a case conference, at which some queries were discussed. The result of this discussion was that an amended report from the expert was served on all parties, which stated that “a number of errors occurred in the original report”, alongside an additional statement setting out further work undertaken by the expert. However, the nature of the concerns raised with the prosecution on 22 November, which had led to the amended report and were recorded in counsel’s notes, were not disclosed to the defence.  The article stated that “when it came to the trial, Mr Hill did not disclose anything about the problems raised by [the FEL], nor did he mention the case conference to the defendant’s lawyers”, setting out the substance to the allegation of a “cover-up”.

21. The Committee acknowledged the complainant’s position that these matters had been considered by the Court of Appeal, in considering the application from Mr Asiedu, and that the court had found “no evidence of a [deliberate cover up]”. The Committee noted that this was recorded twice in the article. In addition, while the Court of Appeal had given consideration to the matter via Mr Asiedu’s appeal, they remained ‘live’ by virtue of the CCRC application. The Committee considered that the reference to a “cover-up” in the headline, and the article’s reference to the complainant being “accused of an alleged cover-up”, were not significantly misleading, where the article went on to explain the factual basis for this allegation. In referring to this allegation, the newspaper had taken care not to publish misleading information, and no correction was required under the terms of Clause 1 (ii).

22. The Committee acknowledged that the complainant had not led the prosecution until a late stage. However, the claim that he “led” the prosecution team did not substantially affect the allegations which the article contained about his conduct of the case, and the Committee considered that this inaccuracy was not significant, where he had led the prosecution at a later date, such as to breach Clause 1.

Conclusion

23. The complaint was upheld.

Remedial Action required

24. The newspaper had breached Clause 1 (i) and not complied with its obligation to correct under Clause 1 (ii). The appropriate remedial action was therefore the publication of an adjudication. The article had been published on pages 36-37 of the newspaper. The Committee therefore required publication of an adjudication on page 36 of the newspaper, or further forward.  The headline of the adjudication must make clear that IPSO has upheld the complaint against the Mail on Sunday, and refer to its subject matter; it must be agreed in advance.

25. It should also be published on the newspaper’s website, with a link to the full adjudication (including the headline) appearing on the homepage for 24 hours; it should then be archived in the usual way. If the newspaper intends to continue to publish the online article without amendment to remove misleading statements identified by the Committee, the full text of the adjudication should also be published on the article, beneath the headline. If amended to remove the misleading statements, a link to the adjudication should be published with the article, explaining that it was the subject of an IPSO adjudication, and explaining the amendments that have been made.

26. The terms of the adjudication for publication are as follows:

Following publication of an article of headlined “The terror law chief and the 'cover-up' that could explode UK's biggest bomb trial”, published on 5th March, Max Hill complained to the Independent Press Standards Organisation that the Mail on Sunday breached Clause 1 (Accuracy) of the Editors’ Code of Practice. The complaint was upheld, and IPSO required The Mail on Sunday to publish this adjudication.

The complainant had been a barrister for the prosecution in the trial of the ’21/7’ attempted London bombers. The article under complaint explained that the evidence of an expert witness, who had conducted forensic tests on the defendants’ devices, had been “critical to the prosecution’s case”.  A sub headline of the article claimed that the complainant “knew” that this expert had been “discredited”. It went onto explain that “serious issues” had been raised about the evidence, which documents showed the complainant had known about at the time of the trial.

The article also claimed that these issues, which had been raised before the Court of Appeal by one of the defendants, had previously been unreported because the court had imposed a “gagging order”. It claimed that “we can report them now as the gagging order has been lifted”.

The complainant said that there was no evidence to support the inaccurate claim that he knew the witness was “discredited” at the time of the trial.  He said that the Court of Appeal, in considering this issue, had clearly decided that there was no evidence to support the claim that the prosecution had conducted the trial notwithstanding ongoing criticism of the expert. The complainant also denied that the Court of Appeal judgment had been subject to any “gagging order”, preventing publication, and said it was wrong to suggest that an embargo had prevented publication.

The newspaper said that the complainant was aware of serious concerns about the expert’s evidence, and denied that it was misleading to claim that the complainant knew that the expert had been discredited.  The newspaper said that the Court of Appeal had issued an order on 10 February 2015 banning the reporting of Asiedu’s appeal while it was ongoing. This “gagging order” was not lifted until the judgment was issued on 30 April 2015. It said that this had been 8 days before a General Election, which is why nothing had been reported on the matter until the article under complaint, when the complainant’s appointment as the Independent Reviewer of Terrorism Legislation gave the issue a new topicality.

IPSO’s Complaints Committee considered that it was not misleading for the newspaper to report that the complainant knew that “serious issues” had been raised about the expert’s evidence. However, in the subheadline of the print article, and the headline of the online version of the article, the newspaper claimed that the complainant “knew” that the expert had been “discredited”.  This was a serious allegation in light of the other claims in the article that the complainant had failed to make the disclosures to the defendants’ legal team which would have been required in such circumstances.  To claim that he “knew” the expert had been “discredited”, went significantly further than reporting that he had been aware of concerns about the first report.  The complainant’s knowledge of these concerns was not sufficient to justify the claim regarding the complainant’s understanding of the expert’s suitability to act and whether it was appropriate for the prosecution to rely on his evidence at the trial.  These headlines were not supported by the text of the article, and represented a failure to take care not to publish misleading information, in breach of Clause 1 (i). The newspaper had not offered to correct these significantly misleading claims, in breach of Clause 1 (ii).

The Committee also decided that the article misleadingly implied that the “gagging order” on the Court of Appeal hearing had only recently been lifted, allowing coverage of the allegations against the prosecution. The “gagging order” had in fact been lifted around a year and 10 months previously.  The Committee took the view that this a significantly misleading statement in the context of an article which also reported that the complainant had been accused of a “cover-up”. This represented a further failure to take care over the accuracy of the article, in breach of Clause 1 (i), and a further misleading statement, which the newspaper had not offered to correct, in breach of Clause 1 (ii).  

Date complaint received: 06/03/2017
Date decision issued: 18/08/2017  

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