16741-23 Cunningham v dailyrecord.co.uk

Decision of the Complaints Committee – 16741-23 Cunningham v dailyrecord.co.uk

Summary of Complaint

1. Fiona Cunningham complained to the Independent Press Standards Organisation that dailyrecord.co.uk breached Clause 1 (Accuracy), Clause 2 (Privacy), Clause 4 (Intrusion into grief of shock), Clause 5 (Reporting suicide), and Clause 11 (Victims of sexual assault) of the Editors’ Code of Practice in an article headlined “Scots drug dealer raped unconscious woman after he injected her with heroin”, published on 16 February 2023.

2. The article – which appeared online only – reported on a criminal court case against a named individual who had been found guilty at the High Court in Dundee of raping the complainant’s daughter. The complainant’s daughter was named in the article. It said that a “drug dealer was found guilty of raping an unconscious woman he injected with heroin after his victim gave evidence from beyond the grave.“ It went on to report that: “The court was told that [the named woman] had reported being raped by [the defendant] in August 2020 and had died from an overdose the following year.” The article included an image of the complainant’s daughter and quoted parts of her witness statement, which had been read out in court following her death. The statement reportedly said: “We started smoking kit. I don't know how much I had smoked. I just remember being away with it. We were both chasing the dragon.”

3. The complainant said that the article had breached Clause 11 as it identified her daughter as a victim of rape.

4. The complainant also said the article breached Clause 4. She said her daughter had died by suicide prior to the court case and article’s publication, and publishing her name and details of her rape had intruded greatly into the family’s grief. During IPSO’s investigation, the complainant shared her own victim impact statement which she said would be read out during the man’s sentencing - she said this statement demonstrated how upsetting her death had been for everyone who loved her daughter. The complainant further added that her daughter had a child who would be able to find the article one day and learn the circumstances of her mother’s death.

5. The complainant also said the photograph included in the article had been taken from her daughter’s funeral notice and the order of service without permission. The complainant also provided a Facebook post which included this photograph – this also showed post was viewable to the public.

6. The complainant also said the article had breached Clause 2 as it named her daughter and included parts of her daughter’s witness statement – which included details about her rape. She said her daughter had chosen not to disclose the fact that she had been raped to anyone except herself and the police and her privacy should have been respected by the publication. The complainant provided email correspondence from the Crown Prosecution Service (CPS), which confirmed that her daughter’s evidence had been read out in closed court. This said:

I [...] can confirm that the court minutes in respect of the trial detail that on the 2nd day of the trial […] the Court on the motion of the Advocate Depute directed that the evidence of [the complainant’s daughter] be taken within closed doors. Once [her] evidence had been taken, the court was then opened to the public.

7. The complainant did not dispute that the remainder of the court proceedings against the defendant occurred in open court.

8. The complainant said that the article was inaccurate in breach of Clause 1 as it reported her daughter had “smoked heroin”. The complainant said her daughter had said she had taken some pills, and then was injected with heroin by her rapist because the pills had affected her judgement. She said it had not been heard at court that her daughter had smoked heroin, and the inclusion of this information in the article was very distressing.

9. She also complained under Clause 5 as the article revealed that her daughter had taken an overdose which had resulted in her death.

10. The publication did not accept a breach of the Code. In regard to Clause 11, the publication said that it was legally free to identify the complainant’s daughter, as the law does not prevent the identification of deceased victims of sexual assault. It said that its justification for identifying the complainant’s daughter was the fact that her name was disclosed in court; therefore, to accurately report on the facts of the court case, the inclusion of her name was justified. It further argued that identifying the complainant’s daughter would allow readers to connect to the story and evoke an emotional reaction.

11. Turning to Clause 4, the publication said it appreciated that the article contained sensitive details, however it said the subject of the article – criminal proceedings against a named individual – did not engage the terms of Clause 4. It said the case was heard in open court and the publication was entitled to report on it. It also said it had focused its reporting on the fact that the complainant’s daughter’s testimony had helped secure a conviction and therefore the contents of her witness statement were necessary to include to illustrate this.

12. Regarding the image of the complainant’s daughter, the publication said Clause 4 does not prohibit the use of photographs. It said the photograph was readily available and in the public domain, and while it understood that the article may have been upsetting for the complainant, it is usual for publications to include photographs of victims. It said the publication also took care to only use photographs that presented the daughter’s likeness, and did not include any excessive or unnecessary information.

13. In response to the alleged breach of Clause 2, the publication said it was entitled to be present and report on the court proceedings. It said a closed court meant that members of the public were not allowed into the court room, however the press were not prohibited from being present during closed court sessions. It said no reporting restrictions had been made, as no Section 4 or Section 11 order had been made. It did not therefore consider the terms of this Clause to be engaged, where the article was based on court proceedings and there did not appear to be any reporting restrictions in place.

14. The publication did not accept a breach of Clause 1; it said that the report represented an accurate account of what was heard in court. It said the reference to smoking heroin came from evidence given by the complainant’s daughter, and this was subsequently heard in court – the phrases “smoking kit” and “chasing the dragon” was a reference to heroin. During the investigation, the publication provided a court transcript which supported its position that the reference to smoking heroin was heard in open court.

15. The publication did not consider the terms of Clause 5 to be engaged.

16. During direct correspondence with the complainant, the publication confirmed it had removed all references to the complainant’s daughter’s name and the image of her, as a gesture of goodwill and in an attempt to resolve the complaint.

17. After reviewing the court transcript, the complainant accepted that the reference to smoking heroin had been heard in court via the daughter’s evidence statement. However, the complainant reiterated that this information had been heard in closed court.

Relevant Clause 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.

Clause 2 (Privacy)*

i) Everyone is entitled to respect for their private and family life, home, physical and mental health, and correspondence, including digital communications.

ii) Editors will be expected to justify intrusions into any individual's private life without consent. In considering an individual's reasonable expectation of privacy, account will be taken of the complainant's own public disclosures of information and the extent to which the material complained about is already in the public domain or will become so.

iii) It is unacceptable to photograph individuals, without their consent, in public or private places where there is a reasonable expectation of privacy.

Clause 4 (Intrusion into grief or shock)

In cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion and publication handled sensitively. These provisions should not restrict the right to report legal proceedings.

Clause 5 (Reporting suicide)*

When reporting suicide, to prevent simulative acts care should be taken to avoid excessive detail of the method used, while taking into account the media's right to report legal proceedings.

Clause 11 (Victims of sexual assault)

The press must not identify or publish material likely to lead to the identification of a victim of sexual assault unless there is adequate justification and they are legally free to do so. Journalists are entitled to make enquiries but must take care and exercise discretion to avoid the unjustified disclosure of the identity of a victim of sexual assault.

Findings of the Committee

18. The Committee wished to offer its sincere condolences to the complainant for the loss of her daughter, and offered its sympathies that the article under complaint had caused the complaint further distress.

19. The Committee acknowledged that the article had identified the complainant’s daughter as a victim of sexual assault, and that the terms of Clause 11 were therefore engaged. It noted that its role was not to make a moral judgement on the content included in the article, but to determine whether this content had breached the terms of the Editors’ Code. It therefore had regard for the terms of Clause 11, which states that the press must not identify or publish material likely to lead to the identification of a victim of sexual assault unless there is adequate justification, and they are legally free to do so.

20. The Committee first considered whether the newspaper was legally free to identify the complainant. It acknowledged that no Section 11 or Section 4 order – which would prevent the publication from publishing specific details of the case – had been issued during court proceedings. While the court had been closed during the reading of the complainant’s daughter’s witness statement, it appeared that the press were permitted to remain in court. The Committee noted that, absent a reporting restriction or statutory protection, newspapers are generally entitled to report on court proceedings which are closed to the public. It further recognised that the article reported on legal proceedings in Scotland, and that in Scottish law there is not automatic statutory anonymity for victims of sexual offences – rather, the anonymity of victims of such offences in Scotland is established by way of a protocol, where editors generally do not identify victims of sexual offence; it is not established that such a protocol would persist after a victim’s death. The Committee therefore considered that the newspaper was legally free to identify the complainant’s daughter.

21. While a publication may be legally free to identify a victim of a sexual offence, the Code places a higher obligation on publications, and requires that there is adequate justification for any such identification. The Committee considered that there was a fine balance to be struck, given that granting anonymity may encourage more victims of sexual assault to report these crimes, yet anonymising a victim after their death may contribute towards stigma and shame, and depersonalise them.

22. The Committee noted the context of the article when considering whether there was such justification: it set out how the complainant’s daughter had brought the defendant to justice, and identified her in this context. It further noted that the daughter’s witness statement was central to the article’s report of the conviction of her assailant, and that identifying her grounded the story in a human context. The Committee considered this to be adequate justification, as required by the terms of Clause 11. There was no breach of Clause 11.

23. The Committee then considered whether the article’s publication had been handled sensitively, as required by the terms of Clause 4. The Committee recognised that the article contained references to the complainant’s daughter’s assault and prior interactions with the defendant which the complainant had found distressing. While publication of articles should be handled sensitively, Clause 4 does not restrict the right to report legal proceedings – this included naming the complainant’s daughter, where it did not appear to be in dispute that her name had been heard during court proceedings against the defendant. The Committee appreciated how these references would be upsetting to the complainant, however it noted that the article was a factual account of the assault as heard during court proceedings, which did not seek to make light of or minimise the crime in question. The Committee also considered the article use of a photograph showing the complainant. It noted this simply depicted the complainant’s daughter’s likeness and did not consider its inclusion to be insensitive. For these reasons there was no breach of Clause 4, however it welcomed the action the publication had taken to try to resolve the complaint.

24. Turning to the alleged breach of Clause 2, the Committee considered the inclusion of the daughter’s statement in the article, as well as her photograph. While the Committee understood that the daughter’s statement had been read out during a closed court, the Committee noted that the Editors’ Code does not apply to people who have died; rather, it is the rights of those who are closest to them to not have their grief unduly intruded into which is protected by Clause 4. In such circumstances, the Committee did not consider that the terms of Clause 2 had been breached.

25. The complainant said the article had inaccurately stated that her daughter had smoked heroin, and that this was never heard at court. However, the complainant later accepted that this reference had been heard at court and therefore there was no breach of Clause 1 on this point.

26. The Committee considered the concerns raised under Clause 5. Clause 5 relates to the inclusion of details which might result in simulative acts of suicide. In this instance, while the Committee acknowledged that the article had stated the complainant had died from an overdose, it did not consider that the article had not included the level of detail which would breach the terms of this Clause; for instance, the substance she had taken or the amount. Therefore, this did not give rise to a breach of Clause 5.

Conclusions

27. The complaint was not upheld.

Remedial action required

28. N/A

Date complaint received: 20/02/2023

Date complaint concluded by IPSO: 24/10/2023