10439-21 The Family of John Patrick Cunningham v The Daily Telegraph

Decision of the Complaints Committee – 10439-21 The Family of John Patrick Cunningham v The Daily Telegraph

Summary of Complaint

1. The Family of John Patrick Cunningham complained to the Independent Press Standards Organisation that The Daily Telegraph breached Clause 1 (Accuracy) of the Editors’ Code of Practice in an article headlined “'This is not just about clearing my name before I die'”, published on 2 October 2021.

2. The article was an interview with a former soldier facing trial for the attempted murder of John Patrick Cunningham in Northern Ireland, who was killed in 1974 whilst running across a field. The accused was arrested in 2015 and his trial was due to start a few days after the article was published. The article stated that “Another soldier – known only as Soldier B and who has since died – is thought to have fired the fatal shots. No ballistics evidence exists.” It included quotes from the defendant who spoke about his desire to attend the trial in person, life in Northern Ireland at the time Mr Cunningham died, and the circumstances of Mr Cunningham’s death. The article reported that the accused was “insistent he shot high over John Patrick Cunningham’s head, purely in an attempt to get him to stop. The shots he fired, he said, were ’all in the air‘, adding: ’I had to aim in the air,’ pointing out that his men were converging on the field and there was a great danger of one of them being killed in any crossfire.” The article also stated that “As Cunningham lay dying, [the accused] tried to save the young man’s life, applying a field dressing to the wounds. At this point, Soldier B told him he had fired the fatal shot”. It also made clear that the man on trial “was investigated at the time and subsequently cleared of all wrongdoing”. A caption under a photograph stated that “The former staff sergeant in the Army tried to save John Patrick Cunningham’s life, after, he says, he was hit by a bullet fired by Soldier B, one of his colleagues”.

3. The article also appeared online under the headline “Dying former soldier banned from wearing uniform at Belfast trial”, in substantially the same format. It did not contain the photo caption as in the print version.

4. The complainant, the family of the man who had been killed in 1974, said that the article was inaccurate in breach of Clause 1. They said that it was misleading to report that Soldier B “[wa]s thought to have fired the fatal shots”, as this claim had been made recently by the defendant but had yet to be tested in a court of law. The complainant said that the article had presented as fact that it was “thought” that Soldier B had fired the shots, when it was for the judge to decide whether it was a fact or not.

5. The complainant also said that it was inappropriate for the article to be published shortly before the start of the trial, and that the claims made by the accused should not have been published, as they were contested and should be tested in the trial process. They said this also amounted to a failure to distinguish between comment, conjecture and fact. The complainant also said that the editorial view of the paper as to whether former members of the armed forces should be prosecuted should not impact the accuracy and fairness of their reports.

6. The publication did not accept a breach of the Code. It said that the article relayed the defendant’s opinion on the events that took place in 1974, his own prosecution and the issue surrounding Troubles prosecutions generally, and that the matters disputed in the complaint had to be considered in that context. It said that the defendant was entitled to make his views known, and the newspaper was entitled to publish them. It had taken care through the presentation, tone and format of the article to make it clear to readers that this was the defendant’s views and included accurate factual background to further inform readers of the context in which he made those claims.

7. It said that it was not misleading to report that Soldier B was “thought to have fired the fatal shots”, as this was a summary that was later explained within the article: firstly where the same paragraph made clear that “no ballistics evidence exits” and then giving the accused’s full account of what happened – that he had only aimed in the air to try and get Mr Cunningham to stop, that he had tried to treat him in the field, and that at the time Soldier B had told him that he had fired the fatal shot. It said that the photo caption in the print version of the article also made clear that it was the accused who claimed Soldier B fired the shot, “The former staff sergeant in the Army tried to save John Patrick Cunningham’s life, after, he says, he was hit by a bullet fired by Soldier B, one of his colleagues”. The publication also stated that the phrase “it is thought” did not suggest a high evidential burden, but indicated to readers that it was a theory which had clearly not been definitively proved. In any event, it said that two other soldiers had signed statements stating that “Soldier B” had admitted that he had fired the fatal shot, which further reinforced the point that “it was thought” to have been Soldier B. The newspaper provided an article from another publication that had referred to these witness statements and noted that the statements would not be made public due to the defendant dying prior to the continuation of the trial.

8. The publication also said that the article made clear that the trial had not yet begun; the exact charge the accused was facing; that he denied this charge; and that no ballistics evidence existed. Therefore, the article was not misleading in breach of Clause 1.

9. The complainant disputed the accuracy of the publication’s position and said that there was ballistics evidence that showed that the accused had fired three shots and that Soldier B had fired twice. The complainant said that this had been heard during court proceedings, and provided the relevant judgment of an earlier, associated hearing from 2018.

10. The publication said that it was clear that there was “no ballistics evidence” that set out whose gun, and therefore which person, had fired the fatal shot. It said it was not inaccurate to report this, even where other ballistics evidence had formed part of the trial.

11. The publication declined to comment on the timing of the publication of the article, or the editorial position of the publication as it said this fell outside of IPSO’s remit.

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

12. The Committee accepted the publication’s position that the factual disputes over elements of the article should be considered within their context: an article that presented the defendant’s perspective on the proceedings against him. Nonetheless, the publication was obliged to clearly distinguish between comment, conjecture and fact when presenting this material.

13. The article had reported that Soldier B was “thought to have fired the fatal shots”. This did not form part of a quote attributed to the defendant, and there was some ambiguity in the reference. However, the word “thought” suggested that this was not an absolute statement, but rather conjecture, and the article as a whole made clear that this issue had not been conclusively settled and was expected to be contested through the proceedings. During IPSO’s investigation, the publication had provided support for the claim, in the form of witness statements suggesting that at least another two people connected to the case said they had also heard Soldier B’s confession and “thought” that he had fired the shots, in addition to the accused’s defence. On this basis, while the reference was vague, it was clearly presented as conjecture, for which the publication had provided a basis during IPSO’s investigation. It was not, therefore, misleading to report that it was “thought” to have been Soldier B and nor was there a failure to distinguish conjecture from fact. There was no breach of Clause 1 on this point.

14. With regards to the inclusion of the defendant’s account, whilst the complainant may have disagreed with this version of events, the newspaper had clearly attributed this to the accused as direct quotes and had provided relevant context about the legal proceedings, the status of the claims, and the charges against the defendant to enable readers to evaluate his claims. There was no breach of Clause 1(iv).

15. The complainant had only raised his concern regarding the statement that “no ballistics evidence exists” both within the article and the publication’s defence after the investigation had started. He said this was inaccurate as ballistics evidence in both this and a previous trial had stated that both the accused and Soldier B had fired their guns. It was accepted that no ballistics evidence existed to prove conclusively who had fired the fatal shot. Evidence was available that the accused and soldier B had fired their guns however, in the context of the quote this was not inaccurate. There was no breach of Clause 1 on this point.

16. The complainant had also raised concerns regarding the timing of the article’s publication and that the editorial focus of the newspaper had impacted the accuracy and fairness of reporting. The Committee noted that the Editors’ Code makes clear the press has the right to be partisan, to give its own opinion and to campaign, as long as it takes care not to publish inaccurate, misleading or distorted information, and to distinguish between comment, conjecture and fact.  As concluded above, the publication had satisfied these obligations under Clause 1. In addition, the timing of the publication of the article relative to the legal proceedings did not raise issues that fell within IPSO’s remit, and the Committee was unable to make a finding on this point.

Conclusion(s)

17. The complaint was not upheld.

Remedial Action Required

18. N/A

Date complaint received: 06/10/2021

Date complaint concluded by IPSO: 23/02/2022