12247-20 Criminal Cases Review Commission v The Times

Decision: Breach - sanction: publication of adjudication

Decision of the Complaints Committee – 12247-20 Criminal Cases Review Commission v The Times

Summary of Complaint

1. Criminal Cases Review Commission complained to the Independent Press Standards Organisation that The Times breached Clause 1 (Accuracy) of the Editors’ Code of Practice in an article headlined “Watchdog's work was not independent, court rules”, published on 23 July 2020.

2. The article reported on a case heard in the High Court in which a claimant challenged the Criminal Cases Review Commission’s rejection of his appeal, arguing that the Commission was not sufficiently independent from the Ministry of Justice. The headline of the article reported that the court had ruled the CCRC’s work was “not independent” and then went on to report that “the court ruled that the [grounds cited by the claimant] did not undermine the CCRC’s independence, but said that there had been “political interference” in the decision not to reappoint a commissioner”. It reported that “Correcting a civil servant’s assertion that the commission was merely “operationally” independent, the court emphasised the importance for it to be “constitutionally” independent from government.” It also stated that of 1,500 applications, less than 1% of cases are referred back to the Court of Appeal and that “an earlier inquiry into the CCRC in 2015 by the Commons Justice Committee recommended that the Law Commission, the body that advises the government on reform, should review the “real possibility” test on which it refers cases to the Court of Appeal, as well as the appellate court’s grounds for allowing appeals.” The article also contained a statement from an Ministry of Justice spokesperson who stated that the MoJ “welcomes the court’s recognition that the CCRC is constitutionally and operationally independent.”

3. The article also appeared online under the headline “CCRC’s work was not independent, court rules” in substantially the same format.

4. The complainant said that the article was inaccurate in breach of Clause 1 as the court had ruled that its work was both operationally and constitutionally independent of the Ministry of Justice. It provided the publicly available decision. In addition to the headline being inaccurate, the complainant said it was misleading to report that the court had corrected a civil servant and that it had emphasized that the complainant should be “constitutionally” independent and not merely “operationally” independent. In fact, the court had said that, while a civil servant and the counsel for the Ministry of Justice had stated that the complainant was operationally independent,   “in our judgment, following a review of the statute and Framework Document and based on our understanding of the role occupied by the CCRC in the wider criminal justice system, the CCRC is much more than merely operationally independent, it is constitutionally independent of Government too”. The complainant said that the way that the newspaper had presented the quote had obscured the clear meaning of what was said by the court. It said that the court hadn’t just “emphasized” that the complainant should be constitutionally independent, it had said that it was in fact operationally and constitutionally independent. It said that this quote, in conjunction with the inaccurate headline, distorted the actual judgment of the court to give the impression the complainant was not constitutionally independent, when the court had ruled it was.

5. The complainant also said that it was inaccurate to report that only 1% of cases were referred back to the Court of Appeal.  It noted that the correct figures were publicly available on its website and the correct figure was that 2.85% of cases had been referred for appeal, rather than just the 1% that had been reported by the publication.

6. Further, the complainant said it was misleading to report that the Justice Select Committee had recommended that there should be a review of the “‘real possibility’ test on which [the complainant] refers cases to the Court of Appeal, as well as the appellate court’s grounds for allowing appeals”. It said that the report had stated the “real possibility” test should only be reviewed if the Court of Appeal changed its own grounds for allowing appeals after a review.

7. The publication did not accept a breach of the Code. It said that the judgment had been damning picture of the Ministry of Justice, and noted the decision described a “dysfunctional” relationship which “undoubtedly tested the CCRC's ability to remain independent of MoJ, and to be seen to be so”. The publication said that the judgment was criticising the Ministry of Justice, rather than the complainant, and that the article accurately reflected this. It said that the headline, subheading and introduction of the article aimed to summarise the facts, but accepted it did not succeed in doing this. During IPSO’s investigation, the publication amended the headline to read “CCRC had dysfunctional relationship with MoJ, court rules”. It said that reporting that a civil servant had been corrected for saying that the complainant was “operationally independent” and that the complainant’s role must be “constitutionally independent” was not misleading, and accurately reflected the court’s decision. During IPSO’s investigation, the publication amended this statement to include a longer quote from the decision:

Correcting a civil servant’s assertion that the commission was merely “operationally” independent, the court emphasised that it was “constitutionally independent from government, too,  and must be seen to be so, if the public is to have confidence in its decisions.

8. The publication accepted that it had inaccurately recorded the percentage of cases the complainant referred to the Court of Appeal. Prior to IPSO’s investigation it published the following wording in its print Corrections and Clarifications column and as a footnote to the online article:

We said (La, Jul 23) that the Criminal Cases Review Commission referred less than 1 per cent of the 1,500 applications it received per year back to the Court of Appeal. This was the case in 2016-17 and 2018-19 but the commission states that the annual average of referrals since it was created in 1997 is 2.85 per cent, and that this year it referred 1.95 per cent. Thirty-nine of these relate to the Post Office Horizon scandal.

9. The publication said that its description of the Law Commission’s report that recommended a review of the “real possibility” test was accurate, if not as nuanced as the full report. It said it was not intended as a criticism of the complainant, and during IPSO’s investigation it amended the online article to report the following:

An earlier inquiry into the CCRC in 2015 by the Commons justice committee recommended that the Law Commission, the body that advises the government on reform, should review the Court of Appeal’s grounds for allowing appeals. If it were decided to change these, then the effect on the CCRC and the continuing appropriateness of the ‘real possibility’ test should also be reviewed.

10. During IPSO’s investigation, the complainant noted that the correction the newspaper had published was inaccurate, as the Post Office cases were not counted “this year” and did therefore not constitute part of the 1.95% of cases referred in 2019/20, or the 2.85% of cases referred between 1997 and March 2020. The complainant said it had provided this information to the publication prior to the publication of the correction, in addition to it being on their website.

11. The publication said that the error in the correction was due to a misunderstanding by what the complainant had meant by “this year”. As soon as the publication was made aware of the error in the correction it published the following wording in its print Corrections and Clarifications column and as a footnote to the online article,:

We said in a headline that a court had found the work of the Criminal Cases Review Commission (CCRC) to be "not independent" (Law, July 23). This was incorrect. The court described a "dysfunctional" relationship between the commission and the Ministry of Justice [MoJ] which "undoubtedly tested the CCRC's ability to remain independent of the MoJ, and to be seen to be so" but dismissed claims that the commission's independence had been impaired. In clarifying figures used in the same article we said that the CCRC had referred 1.95 per cent of applications to the Court of Appeal in 2019-20 but wrongly added that this included 39 cases related to the Post Office Horizon scandal (Corrections & Clarifications, date). While the decision to refer those 39 cases was taken and announced in 2019-20, they will be counted only in the figures for 2020-21, when formal referral was made.

12. The complainant said that the publication of these two corrections was not sufficient as a resolution to its complaint as the piecemeal nature of the corrections, one of which involved an inaccuracy, did not adequately deal with the inaccuracies in the alleged article as a whole.

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  

13. The publicly available court judgment had found that the complainant was both constitutionally and operationally independent. In this context the publication of the inaccurate claim in the headline that the court had found it was “not independent”  represented a failure to take care over the accuracy of the article under Clause 1(i). Additionally, whilst it was accurate to report that the court had emphasised the importance of the complainant’s being both operationally and constitutionally independent from government, the reference to this finding, in conjunction with the inaccurate headline, misleadingly implied that this was not currently true. This represented a further failure to take care not to publish misleading information under Clause 1(i). Furthermore, the Law Commission had not said in a report that the “real possibility” test should be reviewed, but that it should be reviewed “if” a change was made to the Court of Appeal’s process. The Committee noted again that the correct position was laid out in the judgement. This constituted a failure to take care to publish misleading information under Clause 1(i). Finally, where the statistics referred to in the article, and the following correction, were inaccurate and clearly available on the complainant’s website this represented a further failure to take care under Clause 1(i).

14. The complainant was a public body whose role was to independently review potential miscarriages of justice. The inaccuracies relating to the court’s findings on its independence were serious and significant in the context of its public role. The publication had published two corrections. The first related solely to the statistics in the article. While the Committee acknowledged that this had appeared promptly, it had failed to correct the original inaccuracy, and instead included further inaccurate information regarding statistics. The second correction put the correct position on the record with regard to the statistics, and stated that the court had “dismissed claims that the commission's independence had been impaired”. In the view of the Committee however, this was insufficient to address the inaccuracies it had identified in the article. The Committee also noted that the correction was offered at a late stage in IPSO’s investigation. Taking these points into account the Committee concluded that there was a further breach of Clause 1(ii).

Conclusions

15. The complaint was upheld under Clause 1.

Remedial Action Required

16. Having upheld the complaint, the Committee considered what remedial action should be required. In circumstances where the Committee establishes a breach of the Editors’ Code, it can require the publication of a correction and/or adjudication. The nature, extent and placement of which is determined by IPSO.

17. The Committee considered that there was a serious breach of Clause 1(i). The article had published inaccuracies on matters of significance, in circumstances where the true position was recorded in a publicly available judgement. It had not taken adequate steps to correct these inaccuracies when they had been brought to its attention by the complainant. In light of the newspaper's failure to take care over the article's accuracy, and its failure to correct the inaccuracies in line with its obligations under Clause 1(ii), the Committee concluded that an adjudication was the appropriate remedy.

18. The Committee considered the placement of this adjudication. The print article had featured on page 56. The Committee therefore required that the adjudication should be published on page 56 or further forward in the newspaper.  The headline to the adjudication should make clear that IPSO has upheld the complaint, reference the title of the newspaper and refer to the complaint’s subject matter. The headline must be agreed with IPSO in advance.

19. The adjudication should also be published online, with a link to this adjudication (including the headline) being published on the top 50% of the publication’s homepage for 24 hours; it should then be archived in the usual way. The headline to the adjudication should make clear that IPSO has upheld the complaint, give the title of the publication and refer to the complaint’s subject matter. The headline must be agreed with IPSO in advance.

20. The terms of the adjudication for publication are as follows:

Following an article published on 23 July 2020 headlined " Watchdog's work was not independent, court rules", the Criminal Cases Review Commission complained to the Independent Press Standards Organisation that the newspaper had breached Clause 1 (Accuracy) of the Editors' Code of Practice. IPSO upheld this complaint and has required The Times to publish this decision as a remedy to the breach.

The article reported on a case heard in the High Court in which a claimant challenged the Criminal Cases Review Commission’s rejection of his appeal, arguing that the Commission was not sufficiently independent from the Ministry of Justice. The headline of the article reported that the court had ruled the CCRC’s work was “not independent”. It reported that “Correcting a civil servant’s assertion that the commission was merely “operationally” independent, the court emphasised the importance for it to be “constitutionally” independent from government.” It also stated that of 1,500 applications, less than 1% of cases are referred back to the Court of Appeal and that “an earlier inquiry into the CCRC in 2015 by the Commons Justice Committee recommended that the Law Commission, the body that advises the government on reform, should review the “real possibility” test on which it refers cases to the Court of Appeal, as well as the appellate court’s grounds for allowing appeals.”

The complainant said that the article was inaccurate in breach of Clause 1 as the court had ruled that its work was both operationally and constitutionally independent of the Ministry of Justice. The complainant also said it was misleading to report that the court had corrected a civil servant and that it had emphasized that the complainant should be “constitutionally” independent and not merely “operationally” independent as the court had found the complainant to be both operationally and constitutionally independent. The complainant also said that it was inaccurate to report that only 1% of cases were referred back to the Court of Appeal.  It noted that the correct figures were publicly available on its website and the correct figure was that 2.85% of cases had been referred for appeal, rather than just the 1% that had been reported by the publication. Finally, the complainant said it was misleading to report that the Justice Select Committee had recommended that there should be a review of the “‘real possibility’ test on which [the complainant] refers cases to the Court of Appeal, as well as the appellate court’s grounds for allowing appeals”. It said that the report had stated the “real possibility” test should only be reviewed if the Court of Appeal changed its own grounds for allowing appeals after a review.

IPSO noted that the publicly available court judgment had found that the complainant was both constitutionally and operationally independent. In this context the publication of the inaccurate claim in the headline that the court had found it was “not independent”  represented a failure to take care over the accuracy of the article. Additionally, whilst it was accurate to report that the court had emphasised the importance of the complainant’s being both operationally and constitutionally independent from government, the reference to this finding, in conjunction with the inaccurate headline, misleadingly implied that this was not currently true. Furthermore, the Law Commission had not said in a report that the “real possibility” test should be reviewed, but that it should be reviewed “if” a change was made to the Court of Appeal’s process. The Committee noted again that the correct position was laid out in the judgement. Finally, where the statistics referred to in the article, and the following correction, were inaccurate and clearly available on the complainant’s website this represented a further failure to take care.

IPSO found that the publication had failed to take care when reporting publicly available details of a court case and report in breach of Clause 1.

 

Date complaint received: 06/08/2020

Date complaint concluded by IPSO: 11/12/2020

 

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