20912-17 Khan v Daily Mail

Decision of the Complaints Committee 20912-17 Khan v Daily Mail

Summary of complaint

1. Shoaib Khan complained to the Independent Press Standards Organisation that the Daily Mail breached Clause 1 (Accuracy) of the Editors’ Code of Practice in an article headlined “Another Human Rights Fiasco”, published on 15 December 2017.

2. The article reported on a High Court judgment, awarding compensation to Iraqi citizens for unlawful imprisonment and ill treatment by British armed forces, during the UK’s military intervention in Iraq. The article was the main story on the newspaper’s front page, and continued on page 4.

3. The subheadline on the front page was: “Iraqi ‘caught red-handed with bomb’ wins £33,000 – because our soldiers kept him in custody for too long”. The first line of the article reported that “taxpayers face massive compensation bills after a suspected Iraqi insurgent won a human rights case against the Ministry of Defence yesterday”. It reported that the court ruled that the Iraqi citizen, Mr Abd Al-Waheed, “was held too long by British troops despite allegedly being found making a bomb”, and that he was awarded £33,000 for “a breach of the European Convention on Human Rights”.

4. The main article, as continued on page 4, reported that Mr Al-Waheed had claimed he was unlawfully imprisoned and ill-treated by British soldiers. The article reported that the judge had said it was “wrong to detain suspects without evidence that they were combatants”, and that there was evidence he had been beaten. It reported that Mr Al-Waheed was awarded £15,000 in respect of the beating, a further £15,000 for ill treatment and £3,300 for unlawful detention, because “it could not be proven he was a threat to security and should have been released after 96 hours”.

5. The main article was accompanied by a separate item on page 4 headlined: “The ‘insurgent’ found in house full of bombs”. This item contained further details on Mr Al-Waheed’s claim, including the circumstances of his detention. It reported that “according to soldiers”, he was “found on a sofa handling a roadside bomb in a house that contained mortars and plastic explosives”, but that according to Mr Al-Waheed, he had been asleep in bed. It reported that Mr Al-Waheed has said that his arrest was a case of mistaken identity, and that his brother-in-law had been the British soldiers’ target.

6. The complainant said that the judge had found that the claim Mr Al-Waheed had been caught “red handed” with a bomb, or that he was an “insurgent” was false. He said it was misleading to place this claim in the front page sub-headline, with no indication that the allegation had been found by the court to be untrue. The complainant said that the sub-headline contained a further inaccuracy, because Mr Al-Waheed was not awarded £33,000 for being “kept in custody for too long”. He was awarded £3,300 for unlawful detention, and a further £30,000 for ill-treatment. The complainant said that the reference to Mr Al-Waheed being compensated for “a breach” of the European Convention was inaccurate. He said that there were in fact several breaches.

7. The newspaper said that while the complainant may well object to the way in which the article was presented, subjecting the decisions of the courts to scrutiny is an important function of the press. It said that providing robust and critical analysis of such decisions is essential to contributing to the system of open justice, and is a valuable public service. The newspaper said that prior to publication it had relied on the High Court’s 3-page press summary, of what was a 239 page judgment. It said that the press summary was identical to the judge’s own summary of his central conclusions, contained in the full judgment. The summary set out that Mr Al-Waheed was found in a house containing a “partly assembled IED and a large quantity of explosives were found in the house”, and that it was lawful for British forces to arrest him, as there were reasonable grounds for suspicion that he may have been involved in bomb-making and was therefore a threat to security. It set out that following extensive interrogation, it was decided on 22 February 2007 that he did not pose a threat to security and should therefore be released. The summary explained that this decision was revoked the next day for reasons which did not withstand scrutiny. It explained that, in consequence, Mr Al-Waheed was detained without any legal basis for 33 days, from 23 February 2007.

8. The newspaper said that British soldiers had claimed that they had found Mr Al-Waheed handling a bomb. It said it was entitled to report that such claims had been made, where they played a central role in his arrest, and subsequent detention. The newspaper said that the subheadline of the article included this allegation in inverted commas, which is a long-standing journalistic convention, used to denote claims made in evidence. It said readers would have understood that it was reporting a claim, rather than making a statement of fact. The newspaper said that in reporting this claim had been made, it had relied on its contemporaneous coverage of the trial in June 2016, which its reporter had attended.

9. The newspaper said that the press summary recorded the details the judge had felt most important, and the summary did not refer to the judge’s finding that the soldiers’ claim that they had caught Mr Al-Waheed with an IED was untrue. It said that while the complainant might feel its article left out important details, there had been no failure to take care not to publish inaccurate information where it had relied on its previous coverage, and the press summary of the ruling. It said the fact the article did not make specific reference to the judge’s finding that the claim was false did not suggest Mr Al-Waheed was still suspected of being a terrorist or bomb maker. Indeed, it said that the article fully explained that the court ruled that Mr Al-Waheed had been unlawfully detained, as it could not be proven he was a threat to security.

10. In relation to the subheadline’s reference to £33,000 of damages “because our soldiers kept him in custody for too long”, the newspaper said that the subheadline must be read in the context of the article as a whole, which clearly and accurately broke down the total award of £33,000 damages.

11. The newspaper said that notwithstanding the fact it did not believe the article was significantly misleading, once specific points raised by complainants were bought to its attention, it published two clarifications.

12. The first was published in response to a complaint by the complainant through the newspaper’s internal process, on 20 December 2017. The following wording appeared in its corrections and clarifications box on page 2:

The secondary headline to an article on 15 December ('Another human rights fiasco!') reported the claim of arresting soldiers that Abd Al-Waheed had been 'caught red-handed with bomb', and that he had been awarded £33,000 for being kept in custody 'for too long'.

We would like to make clear that the judge found that the soldiers' claim was a false embellishment and, as was stated in the article, the £33,000 was the total compensation awarded to Mr Al-Waheed for several breaches of the European Convention on Human Rights: £15,000 for beating, £15,000 for inhuman treatment, and £3,300 for unlawful detention. We are also happy to clarify that, although British troops suspected Mr Al-Waheed of being involved in bomb-making, a review committee found he was not and - after that decision was unlawfully overturned - he was retained in custody for another 33 days.

13. The newspaper said that a second clarification was published on 18 January, in resolution to a complaint raised by Leigh Day, the law firm who had represented Mr Al-Waheed, although it was not representing Mr Al-Waheed in the complaint about the article. The following wording appeared in the page 2 corrections and clarifications box, with the headline “Iraqi abuse claims: Abd Al-Waheed”:

IN OUR December 15 article headlined 'Another human rights fiasco!' about a case in the High Court which saw compensation awarded to four Iraqis for unlawful imprisonment and ill-treatment by British forces, we reported claims made by the soldier who captured him that a 'suspected Iraqi insurgent' Abd Al-Waheed had been 'caught red handed with bomb', and that he was awarded £33,000 for being kept in custody 'too long'.

We are happy to clarify that, while Mr Al-Waheed was captured during a raid on his sister's home, this was in fact targeted at his brother-in-law, who was suspected of involvement in insurgent activity. His brother-in-law was not there at the time, but during the raid a number of explosives were found.

Despite a British Army Review Committee deciding that Mr Al-Waheed had no connection with his brother in-law's activities and did not pose a threat to security, he was detained for a further 33 days, which a High Court judge ruled to be unlawful.

Mr Justice Leggatt concluded that the claim made by the British soldier that Mr Al-Waheed had been found 'handling' a bomb was a 'false embellishment made to strengthen evidence against him', and dismissed similar claims as 'pure fiction'. The judge also found that Mr Al-Waheed was not an insurgent and that 'none of the claimants was engaged in terrorist activities or posed any threat to the security of Iraq'.

Compensation was subsequently awarded against the MoD for the unlawful actions of its soldiers. As we have already clarified, and as the article stated, £33,000 was the total compensation awarded to Mr Al-Waheed, of which £15,000 was for beating, £15,000 for inhuman treatment and £3,300 for unlawful detention. We apologise if any contrary impression was formed.

14. The complainant said that the newspaper had not fulfilled its obligations under Clause 1 (ii) in publishing these clarifications on page 2. He said that the inaccuracies were significant, and central to the story, that they had appeared on the front page, and that it was only fair, reasonable and proportionate that the correction be published on the front page.

15. The newspaper said that its clarifications and corrections box was the most prominent of any national newspaper, and formed part of a longstanding, well-established system. It said it appeared in the same location in the newspaper virtually every day, regardless of whether a clarification was published, and carried IPSO’s contact details, and details of how to complain. It said that in almost every case, the prominent position of its clarifications and corrections box meant that clarifications will appear significantly further forward than original articles that give rise to their publication. It said it would not be fair if page 2 were the appropriate location for clarifications for all articles, no matter how far back in the newspaper they originally appeared, if it could not also be used to clarify material which appears on the front page.

16. The newspaper said that it had resolved a complaint from Leigh Day, the firm which had represented Mr Al-Waheed during legal proceedings, through the publication of the second clarification on page 2. It asked the Committee to consider whether it was appropriate to proceed with consideration of Mr Khan’s complaint, where it had resolved a similar complaint to the satisfaction of the interested party.

Relevant Code Provisions

17. 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

18. Central to the headline’s criticism of this case as a “fiasco” was the description in the front-page subheadline of Abd Al-Waheed as an “Iraqi ‘caught red-handed with bomb’”; in the first sentence as a “suspected Iraqi insurgent”, and in the second sentence as a man who the court ruled “was held too long by British troops despite allegedly being found making a bomb”.

19. Neither on the front page, nor in the main body of the article, was it explained that the claim that Mr Al-Waheed had been caught with a bomb had been discredited shortly after his detention or that the judgment recorded the judge’s finding that the claim he had been caught with a bomb was “pure fiction”. At the time of publication, these were no longer live allegations against Mr Al-Waheed. The judge had also found no evidence that Mr Al-Waheed had engaged in insurgent activity. The Committee rejected the newspaper’s argument that reporting Mr Al-Waheed had been successful in his claim for unlawful detention, because it could not be proven he was a threat to security, had the effect of making this clear; this did not make clear that the judge found that the claim Mr Al-Waheed had been found with a bomb had been established to be untrue. In these circumstances, the reference to these serious allegations against Mr Al-Waheed, without making clear they had been disproven, seriously misrepresented the basis of the judgment reported, in breach of Clause 1 (i) of the Code. It also constituted significantly misleading information requiring correction under Clause 1 (ii).

20. The Committee rejected the newspaper’s explanation that it was reasonable for it to have relied on its previous press coverage, which had referenced the “red-handed” claim, and on the fact that this had not been rebutted in the press summary of the judgment. The press summary did not refer to the allegation (although did refer to it having been determined that Mr Al-Waheed had no connection with his brother-in-law’s activities, did not pose a threat to security and ought to be released), and included a link to the full judgment, which included the judge’s bald and unambiguous finding that the claim that the Mr Al-Waheed had been found with the bomb was false; the reason the judge had found that he had been unlawfully detained was specifically that his detention had continued after this claim was discredited.

21. The front page subheadline claimed Mr Al-Waheed received “£33,000 – because our soldiers kept him in custody for too long” and contrasted this with payments to British soldiers for injuries. In fact, as was accurately recorded by the newspaper in its further coverage, £3,300 of the payment was for unlawful detention; of the remaining £30,000, Mr Al-Waheed was awarded £15,000 for being beaten after his arrest, and a further £15,000 for ill treatment.  The contrast was therefore based in part on an inaccuracy. The newspaper was aware of the true position, which was also recorded in the judgment; it provided no explanation for the front-page inaccuracy.  The front-page inaccuracy constituted a further failure to take care over the accuracy of the article, and a breach of Clause 1 (i). Notwithstanding the fact that the correct information had been published elsewhere, the front-page inaccuracy was significant and required correction under Clause 1 (ii).

22. The remaining complaint, which related to the reference to Mr Al-Waheed receiving damages for a “breach” of the European Convention on Human Rights, as opposed to for “breaches”, did not identify an inaccuracy. There was no breach of Clause 1 on this point.

23. The Committee considered whether the newspaper had, via publication of the two corrections, complied with its obligation to correct significant inaccuracies, under Clause 1 (ii). The Committee has recorded previously its support for the use of established corrections and clarifications columns as a means of making corrections easier to find and more prominent, although this may mean that taken individually, a given correction may appear further back in a publication than the original error. However, it has recognised equally that in some instances the publication of a correction in such a column may be insufficient to remedy an inaccuracy.

24. A newspaper’s front page is a means for an editor to convey to readers what they consider to be the main news stories of the day. Front pages are therefore an important forum for editorial expression. Publication of a correction, or a reference to a correction on the front page, is an interference with this. In applying the ‘due prominence’ requirement proportionately, the Committee therefore considers that front page corrections, or references to corrections, should only be required in the most serious cases, especially where a newspaper has an established corrections column. The Committee closely analysed the particular features of this case, in considering whether to require additional remedy to the breaches of Clause 1 that it had established.

25. The two errors appeared prominently in the main front page article. Both errors seriously affected the meaning of the article as whole. The newspaper was of course entitled to criticise the judgment. However, in this case, it had done so on a false basis. The Committee took into account that the newspaper’s corrections column appeared very regularly, and prominently on page 2 of the newspaper. However, it considered that publication of the two corrections in the corrections column lacked ‘due prominence’. This was a serious case where ‘due prominence’ required publication of a reference to the correction on the newspaper’s front page. The complaint was therefore upheld as a breach of Clause 1 (ii).

26. The Committee recognised that the wording of the first correction was agreed with the complainant, and that the complainant raised no concern about the wording of the second correction. Nonetheless, the Committee considered that the first correction failed to acknowledge the errors with the words “we would like to make clear that…”. Similarly, the second clarification’s statement that “we are happy to clarify that…”, and the reference to the possibility that a “contrary impression” may have been formed, suggested that this was a matter of interpretation, or clarification, rather than that the article contained a factual inaccuracy, and was significantly misleading.   The Committee was concerned that the wordings did not directly and candidly acknowledge that the article had contained what were clearly serious errors, resulting from a failure to take care, which contributed to the breach of Clause 1 (ii).

27. The Committee acknowledged the fact that the newspaper had resolved two complaints in direct correspondence, via publication of the clarifications. It noted that Leigh Day had not made the complaint on behalf of its client, Mr Al-Waheed, but was making the complaint on its own behalf. The complaint under consideration by the Committee related to a general point of fact; the complainant was concerned to ensure correct reporting of a publicly available court judgment. The complainant believed the clarifications published by the newspaper were inadequately prominent, set out his reasons for believing this, and wanted to pursue his complaint. The Committee considered that it was not disproportionate or inappropriate to consider this complaint; it was in the public interest to consider the sufficiency of the remedial action taken by the newspaper.

Conclusion

28. The complaint was upheld.

Remedial Action Required

29. In considering the nature of the remedy that it should require, the Committee took into account a number of factors. The breach of Clause 1 (i) was serious, and led to the  publication of seriously misleading information on an important subject. The misleading information was in a prominent position both in the article under complaint, and in the newspaper as a whole, and it substantially changed the meaning of the article. In one instance, the newspaper had published a front-page inaccuracy in relation to material that was accurately recounted in its coverage elsewhere; in the second instance, the accurate information was easily obtainable from information that had been provided to the newspaper by the court. The newspaper’s response to the complaint did not demonstrate it understood the seriousness of the breach. While the Committee gave considerable weight to the fact the newspaper had published two corrections in its established and prominent corrections column, it had ruled that these corrections had not been sufficient under Clause 1 (ii).

30. IPSO’s regulations require that the Committee take account of any comments before requiring publication of an adjudication. In this case, the newspaper responded to the Committee’s decision to describe the steps it had taken in response to the errors it accepted were contained in the article. The newspaper said that a major internal investigation was conducted, and as a result, strongly worded disciplinary notes were sent to seven senior members of staff, making clear that if errors of the same nature were to happen again, their careers would be at risk. The Committee welcomed that the newspaper had taken these steps. It gave further consideration to the remedial action required, with the benefit of this information.

31. Taking into account all of these factors, the Committee concluded that the appropriate remedial action was the publication of an adjudication. The adjudication should be published in full on page four, or further forward. The headline of the adjudication should refer to IPSO, refer to the name of the newspaper, make clear that IPSO has upheld a complaint, or has ruled against the newspaper, and refer to the subject matter of the complaint. The headline must be agreed with IPSO in advance. The headline must also be published on the newspaper’s front page, directing readers to the adjudication on the page it appears. The front page headline should appear in the same font size as the front page sub-headline on the article under complaint. A border should appear around the headline, to distinguish it from other editorial content.

32. The terms of the adjudication to be published are as follows:

Shoaib Khan complained to the Independent Press Standards Organisation (IPSO) that the Daily Mail breached Clause 1 (Accuracy) of the Editors’ Code of Practice, in an article headlined “Another Human Rights Fiasco”, published on 15 December 2017.

The article reported a High Court judgment, awarding compensation to an Iraqi man for unlawful imprisonment and ill treatment by British soldiers, during the Iraq War. It was the main story on the front page, and continued on page 4. The front page subheadline was: “Iraqi ‘caught red-handed with bomb’ wins £33,000 – because our soldiers kept him in custody for too long”. The first line reported that “taxpayers face massive compensation bills after a suspected Iraqi insurgent won a human rights case against the Ministry of Defence yesterday”.

The complainant said that the judge had found that the claims that this man had been caught “red handed” with a bomb, or that he was an ‘insurgent’, to be false.  He also said that he was not awarded £33,000 for being “kept in custody for too long”. He was awarded £3,300 for unlawful detention, and a further £30,000 for being beaten at the time of his arrest, and inhuman and degrading treatment when in custody.

The newspaper said that it had relied on the court’s press summary of the judgment, which did not include the finding that these claims were false. It said the article did not suggest the man was still suspected of being a terrorist or bomb maker; it fully explained that he had been unlawfully detained, as it could not be proven he was a threat to security. It said that the full explanation of the damages award was included elsewhere in the article, which had to be read as a whole. In response to complaints, the newspaper published two clarifications on these points in its page 2 corrections column. The complainant said that the inaccuracies were significant, that they had appeared on the front page, and that the correction should be published on the front page.

IPSO’s Complaints Committee said that central to the article’s characterisation of the judgment as a “fiasco” was the front-page subheadline’s description of one of the claimants as an “Iraqi ‘caught red-handed with bomb’”, and the reference to it being case where “a suspected Iraqi insurgent” had “won a human rights case”. However, the article never explained that the claim he had been caught with a bomb had been discredited shortly after his detention, or that the judge had found the claim was “pure fiction”, and that there was no evidence that the man had engaged in insurgent activity. These details were in the full judgment, which was available to the newspaper.  The repetition of these serious allegations against the man, with no indication they had been disproven, seriously misrepresented the judgment, and breached Clause 1 (Accuracy) of the Editors’ Code.

The claim that the Iraqi man received “£33,000 – because our soldiers kept him in custody for too long”, was inaccurate. As the newspaper knew, only £3,300 was for unlawful detention; the remaining £30,000 was for ill treatment. The contrast the article drew between the Iraqi man’s damages, and the payments to British soldiers for injuries, was therefore based in part on an inaccuracy. This was a further failure to take care over the accuracy of the article.

Both these errors were serious and significant in the article. The previously published corrections did not directly acknowledge the errors, and were not prominent enough. The Committee required publication of this adjudication as a remedy, with a reference on the front page of the newspaper.

Date complaint received: 28/12/2017

Date decision issued: 04/04/2018

Review

The publication complained to the Independent Complaints Reviewer about the process followed by IPSO in handling this complaint. The Independent Complaints Reviewer decided that the process was not flawed and did not uphold the request for review. 

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