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the investigation was looking into whether the police had properly investigated the allegations at the time they were originally made.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
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.
The complaint was not upheld.
Remedial action required
Date complaint received: 29/03/2019
Date decision issued: 16/10/2019