Resolution Statement 06777-17 The Transparency Project v The Sunday Telegraph

Resolution Statement 06777-17 The Transparency Project v The Sunday Telegraph

1. The Transparency Project complained to the Independent Press Standards Organisation that The Sunday Telegraph breached Clause 1 (Accuracy) of the Editors’ Code of Practice in an article headlined “This splendid judge who will be sorely missed”, published on 23 April 2017.

2. The article, published in the ‘Review’ section of the newspaper, was a comment piece which praised the head of the family courts, who it said was stepping down next year. In doing so, it examined his latest published judgment, giving details of the case in question and its history.

3. The article said that in this case, a woman had been “imprisoned by the Court of Protection after having, quite legally, moved her older brother, suffering from dementia, from Devon, where he had worked for 50 years, to an excellent care home in Portugal where he was born”. It explained that this woman had refused to sign a document which had been “dictated by another judge”, giving the care home and the Portuguese authorities the authority to “hand over her brother, against his wishes, to Devon County Council social workers, to take him back to a care home in England”.

4. The article said that when she refused to sign this document, she was sentenced to six months for contempt of court. It said that a barrister had been “so shocked by what had happened that he offered to represent her pro bono in taking her case to the Court of Appeal”. It reported that at this stage, the head of the family courts and two other judges ordered her immediate release on the grounds that she should never have been imprisoned.

5. The article said that two more appeals followed, “at the instigation of Devon council with its lawyers…repeatedly complaining about [the woman’s] ‘egregious conduct’”. The article said that “finally, this month [the head of the family courts] was asked to adjudicate on who should pay the costs of these appeals”, and ruled that the woman “should not pay a penny”.

6. The complainant is a registered educational charity whose aims are to make the work of family courts clearer for the public benefit. It rejected the criticism made by the newspaper that it was a pressure group. It said that it was not challenging the opinion expressed in the article, but the underlying facts upon which the opinion was based. It said that the article contained inaccuracies which cumulated in a distortion.

7. The complainant said it was inaccurate to refer to the woman as having moved her brother to Portugal “quite legally”. It said that it was not at all clear that the move was legal, and noted that the move had taken place shortly before a court hearing. It said that the woman’s older brother had been born in Madeira, and it was therefore inaccurate to refer to Portugal as the location of his birth. 

8. The complainant said it was inaccurate to characterise the complainant’s behaviour as an “offence”. In fact, she committed a civil contempt by failing to comply with the terms of a mandatory order of the Court of Protection. It said that punishment of committal is available in any case of willful breach of a court order, and was not a unique to this particular case, as implied by the article.

9. The complainant said it was inaccurate to refer to the court’s order that the woman return her brother to the UK as being “against his wishes”. In fact, the court said that in so far as his wishes could be determined, they would be to return to Devon, and noted that this had been his preference when he had capacity.

10. It said that the reference to there being “two further appeals” was misleading, as it suggested there had been three in total. It said that it was inaccurate to refer to them as being instigated by Devon County Council. The complainant said that, in fact, there had been two appeals, both instigated by the woman. Furthermore, the complainant said it was inaccurate to claim that in both instances, the court ruled “against Devon Country Council”. Only the appeal against the committal for contempt had been successful. In the welfare appeal, the Court of Appeal refused permission to appeal against the substance of the decision, but granted her permission to appeal against the mandatory order. Ultimately, this appeal was allowed by the agreement of all parties, because it had become redundant.

11. The complainant said it was inaccurate to claim that the court ruled that the woman should “not pay a penny”. In fact, the court made “no order for costs”. This means each party would be responsible for their costs. The complainant it was possible that the woman would not “pay a penny” as a result of legal aid, or the fact the some lawyers had worked for free, but this was not an order of the court.

12. The complainant said that the article neglected to mention the significant criticisms that were made of the women by both the Court of Protection and the Court of Appeal, for her defiance of court orders. The complainant said that the article suggested that the woman was vindicated, which she was not. It said that in the final costs judgment by the head of the family courts, which had prompted the article under complaint, the judge had expressed sympathy for Devon County Council’s position.

13. The newspaper highlighted language used by the complainant in correspondence that it said demonstrated the complainant's own bias. It said that the article was an opinion piece, not about the woman at the centre of the legal case, but about the columnist’s praise for the head of the family courts. It said that the columnist has written and commented extensively on the legal case in question, and has always made clear that he is "on the woman’s side" – a view he is entitled to.

14. The newspaper said that even on the complainant’s account, whether the woman had moved her brother legally was in doubt. In any event, it said that its columnist was entitled to adopt the woman’s view, which was that it was legal. It said that from a short historical analysis it can be seen that Portugal and Madeira’s histories and governance are entwined to the point of indivisibility. It said that the fact the brother was born in Madeira, not Portugal, was not a significant inaccuracy given the close connection between the two.

15. It denied that it was misleading to refer to the woman’s civil contempt as an “offence”, which referred to an alleged wrong, rather than a criminal act. It said that in the context of a comment piece about the Family Division, it is clear to the reader that the columnist was referring to the woman’s alleged wrong, not a criminal act. It said that the woman involved the legal case had always believed that she was acting in her brother’s best interests, and its columnist was therefore entitled to complaint that the court’s order was against her brother’s wishes.

16. The newspaper said that the precise number of appeals was not a significant inaccuracy, and that the appeal which was compromised could be characterised as success for the woman. It said that the article was in any event, not a detailed examination of the court cases, and that it remained the case that the woman was subject to a number of court cases concerning objections by Devon County Council to her taking her brother abroad.

17. The newspaper denied that it was inaccurate to report that the court ordered that the woman should “not pay a penny”, in circumstances where she might have been held responsible for some of the costs of the appeal. It said that the article made clear that the woman had had to spend her savings on the case.

18. The newspaper said that its columnist was entitled to select the evidence in support of his opinion for the head of the family courts. The fact that this judge had also expressed some sympathy for the council’s position did not make the article inaccurate. 

Relevant Code Provisions

19. 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.

Mediated Outcome

20. The complaint was not resolved through direct correspondence between the parties. IPSO therefore began an investigation into the matter.

21. Following IPSO’s intervention, the publication offered to remove the claim that moving the brother from Portugal to the UK was “against his wishes” from the online article. It offered to publish the following clarification in print on page 2, and online as a footnote to the article:

Manuel Martins

A 22 April item about an application to return Manuel Martins from Portugal to the UK stated that the proposed move was against Mr Martins' wishes. We wish to clarify that this was the opinion of his sister, Teresa Kirk; Mr Martin was suffering from dementia and a psychiatrist appointed to assess his mental capacity in 2015 concluded that he "lacked capacity to make decisions about where he should live or arrangements for his care".

22. The complainant said that this resolved the matter to its satisfaction.

23. As the complaint was successfully mediated, the Complaints Committee did not make a determination as to whether there had been any breach of the Code.

Date complaint received: 17/03/2017
Date complaint concluded by IPSO: 31/05/2017