Decision
of the Complaints Committee – 02115-22 Bird v The Press (York)
Summary
of Complaint
1. Neil
Bird complained to the Independent Press Standards Organisation that The Press
breached Clause 1 (Accuracy) of the Editors’ Code of Practice in an article
headlined “Man filmed sex act with a dog”, published on 19th March 2022.
2. The
article reported on court proceedings involving the complainant who was the
defendant. It stated that he “filmed himself in a sexual act with a dog” and
that the prosecution had said he “sent the film to someone he knew via
WhatsApp”. The article also stated, “York Crown Court heard” that “he had also
filmed himself having sex with a teenager - who was over the age of consent -
searched online for extreme pornography and downloaded indecent images of
children”. It quoted the complainant’s barrister who “said of the dog video
found on Bird’s phone: ‘Whilst the defendant accepts he made that video and it
is sexual in nature, his intention was to send it in the course of an argument.
It wasn’t for sexual gratification of him or anyone else’”. The article said
that the complainant had “pleaded guilty to two charges of possessing extreme
pornography and four of having indecent images of children”. It also said that
he had “filmed himself having sex with a teenager” and that “[t]here were a
total of 38 extreme images and five indecent images featuring children aged
seven to 10, plus the video of the teenager”. Regarding the teenager, the
article reported that the complainant had met him on “an internet dating
website and the boy had lied about his age” and claimed he was 18, but “had
later given his true age”. The two “had consensual sex” and “[a]lthough the
consensual sex […] was legal because of the teenager's age, it was illegal to
film it because the teenager had been under 18”.
3. The
article also appeared online but under the headline “Man filmed himself having
sex with dog”. The online headline was changed the following day to “Acomb man
filmed himself in sex act with a dog”. It reported that the complainant “also
filmed himself having sex with a teenager, searched online for extreme
pornography and downloaded indecent images of children”.
4. The
complainant said that the online article was inaccurate in breach of Clause 1
because it reported that he “pleaded guilty to two charges of possessing
extreme pornography and four of having indecent images of children”. He said
the charges related to a single child — the child with whom he had engaged in
consensual sex — and his charge sheet reflected this. He provided a copy of the
MG5 (summary of the police case). He also confirmed that it had been heard in
court that “he was found to have 38 extreme images” as well as “five indecent
images featuring children aged seven to 10”. He also provided a witness
statement from an officer involved in the downloading of his devices.
5. The
complainant said the article was also inaccurate because he had not had sex
with a dog as the headline had claimed. He also said the both the print and the
updated online article were inaccurate as he had not filmed himself performing
a “sex act” with the dog. He said the
video had shown a stud dog mating with a bitch and that he had been touching
the dog’s penis to assist it in mating. He said none of this was heard in court
and all that had been said was that, whilst the video was sexual in nature,
there was no sexual gratification for anyone involved and that the video was
sent as an insult during an argument.
6. The
complainant said the article was also inaccurate in breach of Clause 1 because
it did not make clear that he had met the teenager on a dating app that was
only for those 18 and older.
7. The
complainant said the article also breached Clause 1 because it reported that he
filmed himself having sex with the teenager but omitted why he had done this.
He said it was also inaccurate because it did not include the fact that the
video was only sent to the teenager and was then permanently deleted. The
complainant said the article was also inaccurate because it reported that he
had “searched online for extreme pornography and downloaded indecent images of
children” without making clear that the searches were less than ten minutes in
duration and that the images were thumbnails, not downloads. He said the
prosecution’s expert had said that he could not “say they are not thumbnails”.
He said the articles were inaccurate because they had not explained how the
teenager had communicated with him and who had made the report to the police.
8. The
publication said it did not accept a breach of Clause 1. Regarding whether the
charges related to a “child” or “children”, the publication did not accept a
breach of Clause 1. It said it had recorded the six charges as: “Making
indecent images of children, 1 Category A video between June 24, 2019 and
January 26, 2020. (2) Making indecent images of children, 1 Category A image
and 1 Category A video between June 24, 2019 and January 26, 2020. (3) Making
indecent images of children, 1 Category B image on January 26, 2020. (4) Making
indecent images of children, 2 Category C images on January 26, 2020. (5)
Possessing extreme pornography, 16 images, between January 1, 2019, and January
26, 2020. (In the prosecution opening, it was said this related to images
involving the defendant and a dog). (6) Possessing extreme pornography, 22
images, April 5, 2018. (In the prosecution opening, it was said this related to
images downloaded by the defendant)”. The publication said, therefore, that the
article accurately reported these charges. It also said that the relevant
section of the legislation to which the complainant had pleaded guilty, was
headed “Indecent photographs of children” and that the wording of the charge
always referred to a “child”, irrespective of the number of children involved.
The publication further said that, during the sentencing hearing, the
prosecution barrister had described the images that had been downloaded as
featuring children aged seven to ten.
9. The
publication also provided notes from the court reporter that recorded the
prosecution as saying, “The defendant engaging in sexual activity with his dog
he created, he created these himself. Possession of 16 images, at least some of
these images had been sent by the defendant using What's App". It said it
did not consider that there was a significant difference between “having sex
with” and “performing a sex act on”. However, it said its policy was to always
correct an inaccuracy and so the headline was changed within ten minutes of the
complaint being received, the day after the online article was published. A
clarification below the headline was added to the article four days later. As
the inaccurate headline had not appeared in print, the publication said it was
not appropriate to publish a correction in print:
“This
report was edited to change the original headline which said, ‘Man filmed
himself having sex with dog’ to ‘Man filmed himself in sex act with dog’. Neil
Gareth Bird did not have sex with a dog; he filmed himself in a sexual act with
a canine.”
10. The
publication also did not accept a breach of Clause 1 regarding whether the
images were downloads or thumbnails. It said that whether the images were saved
full-sized or as thumbnails, they were downloaded to the complainant’s device.
It said that electronic devices cache web pages so that they load faster — this
effectively means a snapshot of the page is taken. It was accurate to say the
images were downloaded.
11. The publication
did not accept a breach of Clause 1 in relation to the complainant’s concern
that it had omitted certain details. Regarding the fact the article had not
reported the complainant had met the teenager on an 18 and over site, the
publication said the article made clear that the person he met was over the age
of consent. It also said that the reporter’s notes showed that there was no
mention that the video of the complainant and the teenager having sex had only
been sent to the teenager and then deleted. It further said that it had been
heard in court that “Police also found indecent images of children on the
phone, category A video and still images”. As these images were found, it
suggested that the video was still on the phone. It also said that nothing had
been heard in court regarding whether the teenager consented, and the article
had not said the teenager had not consented to the filming and that the article
explicitly called the sex “consensual”. Similarly, the publication said the
court reporter had no record of either the prosecution or defence stating that
the teenager had created fake profiles or that one of the teenager’s friends
had been the one to report the complainant.
12. During
IPSO’s investigation, the complainant was asked to set out each charge he had
faced regardless of whether he had pleaded guilty to them. He said his position
was that it was heard in court that he was found to have 38 extreme images, but
that it was not stated that these related to children. He said he was not found
guilty of this. He said it was also heard in court that he had been found with
five indecent images of children aged 5 to 7, but that he was also not found
guilty of this. He said he pleaded guilty to four counts of making indecent
photos of a child and two counts of possessing extreme pornographic images. The
complainant also explicitly asked his solicitor whether the charge of making
indecent images of a child related to one or more children, and why it was
heard in court he had been found with images of children aged 5 to 7 if he had
not been charged with this. In response, the complainant provided (via his
solicitor) the basis of plea and the MG22D (streamlined forensic report), but
did not answer the direct question. The complainant said the written basis of
plea showed he recognised that there may have been additional images, but that
they had been deleted and that he believed they were sent unsolicited by a
third party. The complainant also provided his client care letter which
referred to "Possession of Indecent Images and Possession of Extreme
Pornographic Images”.
13. The
publication stated that charges often change from when someone is first charged
to when they are convicted or acquitted. It said the MG5 did not provide
details of the charges and so it was unclear whether they were the same charges
to which the complainant later submitted a plea to, or whether charges had been
altered or dropped. It stated that there were three parts to the case against
the complainant: part A related to the charges involving the teenager, part B
regarded the charges of indecent images from the internet which were described
in court as showing more than one child aged seven to ten, and part C related
to the charge of extreme pornography involving the images of the dog. The
publication also stated that, during the sentencing hearing, the prosecution
barrister had said that the images downloaded from the internet featured
children aged seven to ten. It said the court reporter’s notes showed that the
children in the category B images were aged eight to ten, and the category C
images showed children aged seven to eight.
Relevant
Clause 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.
Findings
of the Committee
14. The
Committee first considered the complainant’s concern that the statement that he
had “pleaded guilty to … four [charges] of having indecent images of children”
was inaccurate. The Committee noted that
the article had explained that the court had heard that the complainant had
“filmed himself having sex with a teenager-who was over the age of consent” and
that “it was illegal to film it because the teenager had been under 18”. In addition, the article explained that the
court had heard that the complainant had downloaded five indecent images of
children aged seven to 10”, which the publication said was supported by the
reporter’s notes of the hearing, and which the complainant accepted. However, despite several requests during the
investigation into the complaint, the complainant did not confirm whether the
images he pleaded guilty to possessing - as opposed to making - were of more
than one child. The Committee,
therefore, considered the information about the offences which had been
provided during the investigation. The Record of Conviction recorded that the
complainant had been convicted of four charges of “Making indecent photos of child”
and two charges of “Possession extreme photographic imag [sic]”. In relation to
the first count, the Basis of Plea recorded that the sexual activity with the
individual had been consensual and that he had told the complainant that he was
18 years old when, in fact, he was 16 years old. Taken together, these two documents suggested
that the offence of ‘making indecent images’ concerned one child, namely the
adolescent with whom the complainant had had consensual sex.
15. In
relation to the second count, the Committee noted that neither the Record of
Conviction nor the Basis of Plea provided detailed information about the images
which were in the complainant’s possession – as opposed to the images he had
made – and the Committee considered the expert evidence of the Forensic
Computer & Mobile Phone Analyst who, in his statement, identified 11 images
of children which fell into categories A, B and C (the categories of
seriousness denoted by the Criminal Division of the Court of Appeal). The Committee also noted that the
complainant’s defence barrister was reported to have said at the hearing that
the “number of indecent images of children was very small”, the accuracy of
which had not been challenged by the complainant. In light of the expert evidence, the
complainant’s barrister’s submission and that the complainant accepted that the
court had heard that 5 images in his possession were of children aged between 7
and 10 years, the Committee found that it was more likely than not that count
2, to which the complainant pleaded guilty, concerned images in the
complainant’s possession which were of more than one child. The article had reported that the complainant
had “pleaded guilty to two charges of possessing extreme pornography and four
of having indecent images of children”. The Committee found that any ambiguity
as to which of the offences the reference to “children” in the article referred
was not significant in circumstances where the nature of the offences committed
by the complainant had been made clear and where he had pleaded guilty to an
offence of possessing extreme pornographic images which the information before
the Committee suggested were of more than one child. There was no breach of Clause 1 on this
point.
16. The
Committee then turned to the point of complaint regarding whether it was
accurate for the headline of the online article to claim the complainant had
filmed himself “having sex with” or performing a “sex act” on the dog. The
complainant had said he was touching the dog’s penis to assist it in mating.
The Committee noted that it had been heard in court that the video was “sexual
in nature”; however, it considered that aiding a dog in mating with another dog
did not constitute the complainant “having sex with”, which implied penetrative
sexual activity. The Committee considered, therefore, it was misleading for the
headline of the online article to claim that the complainant had “ha[d] sex
with” a dog and the publication had not taken care to not publish inaccurate or
misleading information. There was a breach of Clause 1(i). However, regarding
the print article and the amended online headline, the Committee did not
consider it was inaccurate to use the term “sex act” where it was heard in
court that the complainant accepted it was “sexual in nature” and where the
complainant had held the dog’s penis during mating. There was no breach of
Clause 1 in relation to the print article or the amended online article on this
point.
17. The
misleading statement in the original online article had appeared in the
headline and pertained to what was heard in court. It suggested that the
complainant had had penetrative sex with an animal – and then shared a video of
that act – when that was not the case. As such, it was significant and required
clarification under the terms of Clause 1(ii). The publication had amended the
headline immediately after receiving the complaint, which occurred the day
after the article was published. Four days after the headline was amended, and
before IPSO started its investigation, it added a clarification beneath the
headline. This was both prompt and duly prominent and there was no breach of
Clause 1(ii).
18. Regarding
the omission that the complainant had met the teenager on an 18-and-over dating
website, the Committee considered that the article made clear that the teenager
“had lied about his age”. It had also made clear that the sex was “consensual”
and “legal” but that it was the filming that was illegal. Not including that the
dating website was designed for those aged 18 and over, therefore, did not
constitute a breach of Clause 1. Similarly, where the article made clear that
“the consensual sex […] was legal because of the teenager's age” but “it was
illegal to film it because the teenager had been under 18”, the Committee was
satisfied the article reported the information heard in court regarding the
creation of the film. There was no breach of Clause 1 on this point.
19. The
Committee then considered the complainant’s concern that the article did not
report that the video was only sent to the teenager and was then deleted, and
that the teenager had created fake profiles. The Committee noted the
publication’s notes included no record of this being said in court. It concluded
that where the publication had recorded the convictions received by the
complainant accurately, the Committee concluded that the absence of additional
detail was not misleading, especially where it was unclear whether this
information had even been heard in court. There was no breach of Clause 1 on
this point.
20. Finally,
the Committee considered the point regarding whether the images had been
downloaded or were thumbnails. It determined that where the images had been
downloaded in some form (i.e. as thumbnails) and they had been saved to the
device, it was not inaccurate or misleading for the article to not make clear
whether these were images or thumbnails. There was no breach of Clause 1 on
this point.
Conclusions
21. The
complaint was partially upheld under Clause 1.
Remedial
action required
22. The
published clarification put the correct position on record and was offered
promptly and with due prominence. No further action was required.
Date
complaint received: 18/03/2022
Date
complaint concluded by IPSO: 30/03/2023