Decision of the Complaints Committee – 02901-19 McPherson
v The Herald
Summary of complaint
Neil McPherson complained to the Independent Press Standards
Organisation that The Herald breached Clause 1 (Accuracy) of the Editors' Code
of Practice in an article headlined "Father and son lawyers face criminal
probe" published on 27 March 2019.
The article reported that "a father and son who are
both solicitors are under criminal investigation for alleged harassment,
stalking and abuse." The article reported that the father, the
complainant, had "been accused of historical offences when he was a Strathclyde
Police officer" and that the allegations related to "a man who
reported suffering physical and racial abuse at the hands of the police in the
1980's". The article went on to report that the complainant "is also
said to have harassed a fellow lawyer and a journalist". The article then
reported that the complainant's son had been accused of telecommunications
offences "after a former client and a witness in a criminal case claimed
they were stalked and harassed". The article went on to report that cybercrime
officers "removed a number of electronic devices from Mr McPherson's home
in [area], Glasgow". The article included a comment from a Police Scotland
spokesperson confirming that an investigation was under way. The article then
reported that neither of the two men responded to written requests for comment
and that a member of staff had hung up the phone.
The complainant said that the claim that he was personally
under investigation while he was a police officer was inaccurate; he was not
being investigated personally as the investigation was looking into whether the
police had properly investigated the allegations at the time they were
originally made. He said that he was one of many officers to have been involved
in the arrests that were the subject of the investigation. In support of his
position, he produced a letter from Police Scotland, dated 15 March 2019 which
was head "Complaint about the Police". The letter stated:
"I refer to your correspondence dated 12 March 2019
seeking an update. I have contacted the Procurator Fiscal Service, Criminal
Allegation Against The Police Division (CAAPD) who, on 14 March 2019, advised
the case is just about to be reported to Crown Office. I will contact you again
once I receive further information from the Procurator Fiscal"
The complainant said that he had been sent this letter
following a letter he had sent to the divisional commander in August 2018. When
IPSO requested the correspondence dated 12 March referenced in the letter, the
complainant said that he had only ever communicated with the Police Sergeant
who had written the letter via telephone.
He said that on 17 May 2019, the Police Sergeant had told him that no
wrongdoing on behalf of the police had been established in relation to the allegations
which had been made against the Police. Further, the complainant said that he
had received a telephone call from the divisional commander who had confirmed
that was not under investigation. The complainant provided a letter from the
Crown Office and Procurator Fiscal Service dated 27 March 2019, the same day
the article was published, headed "Criminal allegation against the Police
– [name of man] & [redacted]", which he had obtained via a request
made under the Freedom of Information Act 2000. The letter stated that after
considering a report received from the Professional Standards Department, Crown
Counsel had decided that no criminal proceedings would be initiated in relation
to the report on the information then available. The complainant said this
letter demonstrated that no criminal proceedings were being brought against him
or the police and that, accordingly, the article should not have been
published. The complainant emphasised that he was only associated with the
investigation by virtue of having been one of over one hundred officers to have
been involved in the arrests which had been made.
The complainant also said that he was not under criminal
investigation for threatening a journalist. He said that the journalist, who
had also written the article, had made the complaint in September 2016; it was
self-evident that the matter was no longer under investigation and it was
misleading for the article not to have made it clear that the complaint had
been made some two and a half years before publication. The complainant said
there was no active investigation against him. However, he said that it was not
the policy of the Crown Office Procurator Fiscal Service (COPFS) to write to
parties to confirm that a decision had been taken not to pursue proceedings;
those enquiring would receive the same response regarding the status of the
case now as they would in ten years' time.
The complainant also denied that he threatened and harassed
an unnamed solicitor as reported in the article; he had not been contacted by
the police in relation to this allegation. He said that the solicitor had made
a complaint against him in the past, but within two days of making the
complaint the police informed him that they would not be investigating the
matter; the complainant provided an email written by the solicitor dated 18 May
2019 in which he confirmed that they considered that there was no point
investigating the complaint because there were no independent third-party
witnesses.
The complainant also disputed that he did not respond to
written requests for comment or that staff at his office had hung up the phone
when contacted by the publication. He said that he was not contacted prior to
publication and disputed that the journalist would have contacted him due to
their previous history. The complainant denied having seen two e-mails which
the publication said had been sent to him, prior to publication.
The complainant said that the article misleadingly
implicated him in the stalking and harassment investigation against his son. He
said the article was intentionally worded so as to give the impression that his
house, rather than that of his son, was searched by the Police because the
article simply reported that devices had been removed from "Mr McPherson's
home in [area]" without distinguishing which Mr McPherson. He said that
the misleading impression was reinforced by the fact the complainant and his
son reside in the same area.
The newspaper said that it was not inaccurate to report that
the complainant was under investigation in relation to his conduct while a
police officer. The article did not say that only he was under investigation
and the article explained that the investigation was into allegations that the
man had suffered abuse "at the hands of the police", which indicated
that more than one officer was involved. The newspaper said, in line with the
Press and Police Protocol, it had put the complainant's name to the police and
that, in response, it had been told: "'Police Scotland received a
complaint in respect of historical allegations of physical and racial abuse'
and 'A report has been submitted to the Criminal Allegations Against the Police
Division of the Procurator Fiscal for their consideration'". The newspaper
questioned why the complainant had made enquires of the police if he was not
under investigation so as to prompt the letter he received of 15 March from
Police Scotland. The newspaper also highlighted that the complainant had not
produced a letter confirming the Police had found no wrongdoing. The newspaper
provided an email from Police Scotland dated 12 July which confirmed the
journalist “asked if a report regarding allegations of historical physical and
racial abuse against former police officer Neil Forsyth McPherson had been sent
to the procurator fiscal" and which confirmed that this enquiry had
prompted the newspaper's email of 25 March, which confirmed that the
investigation was still in progress.
The newspaper produced an email chain between the journalist
and the Crown Office Procurator Fiscal Service with a reference number, which
it said confirmed that the complainant was under investigation for threatening
and harassing a journalist. The chain included an email dated 22 December 2016
which confirmed that the COPFS had received the report; an email of August 2018
confirming the journalist's complaint was against the complainant; and an email
of May 2019 confirming that the case involving the allegations was still under
consideration. The newspaper said that cases do not ‘time out’ as the
complainant appeared to suggest; the two and a half year time gap was simply
the result of delays. Further, the newspaper produced another email sent by the
solicitor referenced in the article, which featured the same reference number,
asking if the case was still under consideration, to which he received a
response on 13 May confirming that it was. It said that the police had linked
the files as they were similar incidents and the incident involving the
solicitor which the police were not investigating was a separate incident. The
newspaper provided an email chain between the solicitor and the police, which
it said demonstrated that he had made the allegations, because he had sought
clarification on the status of the investigation into his complaints.
The complainant disputed that the response of 13 May
demonstrated that he had harassed a solicitor, as reported. He said that reference numbers are unique and
the allegation made by the solicitor would not have the same reference number
as the complaint made by the journalist. The newspaper rejected the
complainant's position and said that the complainant had produced no evidence
which demonstrated that the two investigations had difference reference
numbers.
The newspaper provided two emails dated 25 and 26 March sent
by the journalist to the complainant, which it said provided him right of reply
in respect of the allegations made in the article. Further, the newspaper said
that the journalist phoned the complainant's office prior to publication and
spoke to a member of staff, who he had known in a professional capacity. It
said that when the journalist identified himself and stated his reason for the
call, the staff member immediately hung up the phone.
The newspaper disputed that the article misleadingly
implicated the complainant in the stalking and harassment investigation against
his son. It said that paragraph five had introduced his son alone and clearly stated
the allegations made against him, paragraph six expanded on this and readers
would understand that the police statement in paragraph seven therefore related
to the complainant's son.
Notwithstanding its position that there was no breach of the
Code, the newspaper accepted that the headline could have referred to
"probes" as opposed to "probe" and offered to publish the
following clarification in print on page two:
"We are happy to make clear that, in our story of March
27, the home of [son's name] was searched during a police investigation into
allegations of telecommunications offences. Neil McPherson, his father is the
subject of separate, unrelated investigations."
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.
Findings of the Committee
Police Scotland had confirmed that the newspaper had made an
enquiry, two days before publication, and had asked if a report regarding
allegations of historical physical and racial abuse against the complainant had
been sent to the procurator fiscal. In response, Police Scotland had confirmed
that it had received a complaint in respect of historical allegations and that
a report had been sent to the Procurator Fiscal for their consideration. By
making this enquiry, the Committee considered that the newspaper had complied
with its obligation to take care not to publish inaccurate information. The
Committee noted that the letter from the Crown Office and Procurator Fiscal
Service (COPFS) dated 27 March, which was sent two days after the date of
publication of the article, confirmed that Crown Counsel were not pursuing
criminal proceedings. However, it was redacted and did not identify the
individual against whom criminal proceedings were not being pursued. In
circumstances where the complainant accepted that he was one of a number of
police officers who were involved in the matters which were under investigation,
and where the letter of 27 March did not demonstrate that the investigation was
not continuing into the complainant, the Committee did not consider that the
article was inaccurate in reporting that the complainant had been accused of
historical offences. There was no breach of Clause 1 on this point.
The complainant accepted that the journalist had previously
made a complaint to the police alleging that he had been harassed by the
complainant. The journalist received an
email on 22 December 2016 which acknowledged that he had made a complaint and
which informed him of the reference number which had been allocated. The
journalist sent a further email to the COPFS on 24 August 2018 asking when a
decision on his complaint would be made. The journalist received a response
from the Senior Procurator Fiscal Depute on 20 September 2018, under the same
reference number, which confirmed that the case was still under active
consideration. This suggested that the complaint to the police made by the journalist
in 2016, which the complainant accepted had been made, was still under
investigation. Given that the same
reference number was quoted in this email, the Committee did not accept that
the email related to a separate investigation into perverting the course of
justice, as argued by the complainant.
Where it was not in dispute that the alleged harassment had occurred in
2016, and where an official source had confirmed that an investigation into the
complaint was ongoing, it was not inaccurate to report that the complainant was
said to have threatened and harassed a journalist and that the complainant
faced a "probe" in relation to the matter. There was no breach of
Clause 1 on this point.
The newspaper provided correspondence between the solicitor
who was said to have been harassed by the complainant and the Police in which
he alleged that he had been subject to threats and harassment by the
complainant. The Committee did not consider that the correspondence
demonstrated that this complaint had been linked, under the same reference
number, to the complaint which had been made by the journalist. However, the
article reported only that the complainant was said to have threatened and
harassed the solicitor and the email chain provided by the newspaper
demonstrated that the solicitor had made such a complaint. Further, the article
did not state that the complainant was under criminal investigation for
threatening and harassing the solicitor. The Committee did not consider that it
was significantly misleading to report that he was "said" to have
threatened and harassed a solicitor in the circumstances. There was no breach
of Clause 1 on this point.
The Committee noted the complainant's position that he had
not seen the two emails to him which had been sent by the newspaper prior to
publication. However, in circumstances where the newspaper had approached the
complainant, by email, for comment prior to publication and did not receive a
response, the newspaper had taken care in publishing that the complainant did
not respond to written requests for comment. There was no breach of Clause 1 on
this point.
The Committee acknowledged the complainant's position that
the opening paragraph of the article implicated him in his son's offences and
that it would be understood that he was under criminal investigation for
alleged harassment, stalking and abuse. The Committee considered that the
opening paragraph had summarised the alleged offences against both men and
noted that the article then detailed the allegations in two halves; the first
half identified the allegations made against the complainant and, save for the
final paragraph which clearly again related to both men, the second half of the
article identified the allegations which had been made against the
complainant's son. The Committee noted, further, that the information about the
search, and that electronic devices had been removed from a home, had been
reported in a paragraph immediately after the details of his son's alleged
telecommunication's offences had been given and, as a consequence, would be
understood to relate only to the complainant's son. The article did not give a
significantly misleading impression that the complainant’s house had been
searched or that he was part of the investigation into his son. The Committee
welcomed the publication's offer of a clarification but there was no breach of
Clause 1 on this point.
Conclusions
The complaint was not upheld.
Remedial action required
N/A
Date complaint received: 29/03/2019
Date decision issued: 16/10/2019