Ruling

02114-22 Bird v thesun.co.uk

    • Date complaint received

      13th April 2023

    • Outcome

      Breach - sanction: publication of correction

    • Code provisions

      1 Accuracy

Decision of the Complaints Committee – 02114-22 Bird v thesun.co.uk


Summary of Complaint

1. Neil Bird complained to the Independent Press Standards Organisation that thesun.co.uk breached Clause 1 (Accuracy) of the Editors’ Code of Practice in an article headlined “PERVERT FREED Sex offender who filmed himself raping a dog and sent the video to a friend on WhatsApp walks free from court”, published on 17th March 2022.

2. The article reported that the complainant had “filmed himself raping a dog and sent the video to a friend on WhatsApp [and] has walked free from court”. It said he “also filmed himself having sex with a teenager, searched online for extreme porn and downloaded indecent images of children, York Crown Court heard”. The article stated, “Andrew Finlay, prosecuting, said that once Bird had engaged in the sexual act with the defenceless pup, he sent the footage onto someone he knew through Whatsapp”. It also quoted the defence which stated that the complainant “accept[ed] he made that video, and it is sexual in nature, his intention was to send it in the course of an argument. It wasn't for sexual gratification of him or anyone else”. The article reported that the complainant had “pleaded guilty to two charges of possessing extreme pornography and four of having indecent images of children” and that “he was found to have 38 extreme images and five indecent images featuring children aged seven to 10” in addition to the video of the teenager. The article said that the prosecution had stated that the complainant met the teenager though an “internet dating website” and that the teenager had “lied about his age” and claimed he was 18.  The two had engaged in “consensual sex” but that police “found a film of the two of them engaging in sex when they searched [the complainant’s] tablet and mobile phone”. The article stated the complainant “was given a 20-month prison sentence suspended for two years on the condition that he completed 20 days' rehabilitative activities”.

3. The complainant said that the article was inaccurate in breach of Clause 1 because it reported that he had “pleaded guilty to two charges of possessing extreme pornography and four of having indecent images of children”. He said the charges only related to one child – the teenager with whom he had engaged in consensual sex. He provided a copy of his conviction sheet which showed he had been convicted of four counts of “making indecent photos of [a] child” and two counts of “possession [of] extreme pornographic imag[es]”. He also provided a copy of the MG5 (the police report of the case) Thee complainant also confirmed that it had been heard in court that “he was found to have 38 extreme images” as well as “five indecent images featuring children aged seven to 10”. He also provided a witness statement from an officer involved in the downloading of his devices.

4. The complainant also said the article was inaccurate because he had not “rap[ed] a dog”. Rather, he said he had touching the dog’s penis to assist it in mating with another dog. The complainant stated that, whilst it was heard in court that the video was “sexual in nature”, there was no sexual gratification resulting from the video for either party as it was sent as an insult during an argument.

5. The complainant also said it was inaccurate for the article to report that the prosecution had said “once [the complainant] had engaged in the sexual act with the defenceless pup, he sent the footage onto someone he knew through Whatsapp”. He asserted that the prosecution had not used the word “pup” or “defenceless”.

6. He also said the article breached Clause 1 because it reported that “he was found to have 38 extreme images and five indecent images featuring children aged seven to 10”. He said that this implied that the “38 extreme images” were also “indecent images of children aged seven to 10” and that there should have been a clearer distinction, as he had been found to possess only 5 indecent – not extreme – images of children aged seven to 10.

7. The complainant said the article further breached Clause 1 as it said he had been “freed”. He said this was inaccurate as it implied that he had been imprisoned, which was not the case. He also disputed the term “pervert” as this had not been heard in court.

8. The publication said it did not accept a breach of Clause 1. The publication did not accept that referring to multiple “children” instead of a singular “child” was inaccurate and it cited the court reporter’s notes which referred to “children”. The reporter’s notes, which the publication provided, explicitly stated that during the sentencing hearing, the prosecution had said that “police also found indecent images of children on the phone” and that there were Category B images showing children aged eight to ten, and Category C images showing children aged approximately seven or eight, and that these were distinct from the images of the teenager. The publication also said that the relevant legislation (Section 1 Protection of Children Act 1978) was entitled “Indecent Images of Children” and created an offence of possession of an indecent image of a “child” because the singular form was used in the description for legal clarity and said that this was why the complainant’s conviction sheet had referred to “making indecent images of [a] child” and “possession [of] extreme pornographic imag[es]”. It said it had been heard in court from the prosecution that the term “indecent images of ‘children’” was used. The publication also disputed that the complainant had provided his full charge sheet and stated that it appeared he had only shown charges 5 to 7 as this is what the numbers seemed to suggest.

9. The complainant said the charge sheet he had provided was all he had been given and that the police had confirmed it was correct. However, he did not provide evidence of the police’s statement on this point.

10. Regarding whether the complainant had “filmed himself raping a dog” and “defenceless pup”, the publication provided part of the court reporter’s notes that said images showing the “defendant engaging in sexual activity with his dog he had created these himself […] at least some of these images had been sent by the defendant using What’s App [sic]”. The publication also said that there was no significant difference between “raping” a dog and masturbating a dog as described by the complainant. It stated that the concept of rape in UK law is limited to humans and so applying it to a situation involving a dog, which could not consent, could not be significantly misleading or inaccurate. Notwithstanding this, it offered to amend the article to say the complainant engaged in a “sex act” with the dog.

11. Regarding the point of complaint about the word “pervert”, the publication said the article did not suggest that this had been heard in court. It asserted that it was clearly the publication’s characterisation of the complainant’s actions in relation to what he was charged with. Similarly, the publication did not accept it was inaccurate for the article to state that the complainant had been “freed”. The article did not state that the complainant had been imprisoned and, in the context of the court report, “freed” meant he had avoided a custodial sentence.

12. The publication also did not accept a breach of Clause 1 regarding the reference to “38 extreme images and five indecent images featuring children aged seven to 10” being found. It said the article accurately reflected the reporter’s notes and what was heard in court on this point.

13. During IPSO’s investigation, the complainant was asked to set out each charge he had faced regardless of whether he had pleaded guilty to them. He said his position was that it was heard in court that he was found to have 38 extreme images, but that it had not been heard that these related to children. He said he was not found guilty of possessing indecent images of children. He said it was also heard in court that he had been found with five indecent images of children aged five to seven, but this was not what he had pleaded guilty to and he was not convicted of this. . He said he pleaded guilty to four counts of making indecent photos of a child and two counts of possessing extreme pornographic images. The complainant also explicitly asked his solicitor whether the charge of making indecent images of a child related to one or more children, and why it was heard in court he had been found with images of children aged 5 to 7 if he had not been charged with this. In response, the complainant provided (via his solicitor) the basis of plea and the MG22D (streamlined forensic report), but did not reply further on this point.. The complainant said the written basis of plea showed he recognised that there may have been additional images of children, but that they had been deleted and that he believed they were sent unsolicited by a third party. The complainant also provided his client care letter which referred to "Possession of Indecent Images and Possession of Extreme Pornographic Images”.

14. The publication stated that it believed the documentation provided supported the claim in the article that the charges related to more than one child. It said that the statement from one of the officers involved in the downloading of the complainant’s devices referred to additional images from the complainant’s phone, and there was nothing to suggest they showed the teenage boy with whom the complainant had engaged in consensual sex. It also said the basis of plea referred to “other material” that was recovered from the complainant’s devices that the complainant may have been sent and that he had “no recollection of searching for or possessing”. The publication said such an expression was unlikely to be used if the content showed the teenage boy.

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.

Findings of the Committee

15. The Committee first considered the complainant’s concern that the statement that he had “pleaded guilty to … four [charges] of having indecent images of children” was inaccurate.  The Committee noted that the article had explained that the court had heard that the complainant had “filmed himself having sex with a teenager”.  The article further explained that they had had consensual sex and that the teenager had initially told the complainant he was 18 when he was, in fact, younger. In addition, the article explained that the court had heard that the complainant had downloaded indecent images of children, which the publication said was supported by the reporter’s notes of the hearing.  The complainant also accepted that it had been heard in court that he had been in possession of 5 indecent images of children aged 5 to 7.  However, despite several requests during the investigation into the complaint, the complainant did not confirm whether the images he pleaded guilty to possessing- as opposed to making- were of more than one child.  The Committee, therefore, considered the information about the offences which had been provided during the investigation. The Record of Conviction recorded that the complainant had been convicted of four charges of “Making indecent photos of child” and two charges of “Possession extreme photographic imag [sic]”. In relation to the first count, the Basis of Plea recorded that the sexual activity with the individual had been consensual and that he had told the complainant that he was 18 years old when, in fact, he was 16 years old.  Taken together, these two documents suggested that the offence of ‘making indecent images’ concerned one child, namely the adolescent with whom the complainant had had consensual sex.  

16. In relation to the second count, the Committee noted that neither the Record of Conviction nor the Basis of Plea provided detailed information about the images which were in the complainant’s possession- as opposed to the images he had made- and the Committee considered the expert evidence of the Forensic Computer & Mobile Phone Analyst who, in his statement, identified 11 images of children which fell into categories A, B and C (the categories of seriousness denoted by the Criminal Division of the Court of Appeal).  In light of the expert evidence and that the complainant accepted that the court had heard that 5 images in his possession were of children aged between 7 and 10 years, the Committee found that it was more likely than not that count 2, to which the complainant pleaded guilty, concerned images in the complainant’s possession which were of more than one child.  The article had reported that the complainant had “pleaded guilty to two charges of possessing extreme pornography and four of having indecent images of children”.  The Committee found that any ambiguity as to which of the offences the reference to “children” in the article referred was not significant in circumstances where the nature of the offences committed by the complainant had been made clear and where he had pleaded guilty to an offence of possessing extreme pornographic images which the information before the Committee suggested were of more than one child.  There was no breach of Clause 1 on this point.

17. The Committee then turned to consider the point of complaint regarding whether it was accurate for the headline to claim the complainant “filmed himself raping a dog”. The complainant had stated he had touched the dog’s penis to assist it in mating. The Committee noted that it had been heard in court that the video was “sexual in nature”; however, it considered that “masturbating” a dog to enable it to mate with another dog did not constitute “raping a dog”; where there was no indication of penetrative sexual activity. The Committee also considered the article did not elaborate on what was shown in the video or add further contextual information beyond that it was “sexual in nature”, meaning no additional clarity was provided. The Committee considered, therefore, it was misleading for the headline to claim that the complainant had “rap[ed]” a dog and the publication had not taken care to not publish inaccurate or misleading information. There was a breach of Clause 1(i).

18. The inaccuracy had appeared in the headline and pertained to what was heard in court. It suggested that the complaint had had penetrative sex with an animal - and that he had then shared a video showing that act – when that was not the case. As such, it was significant and required correction under the terms of Clause 1(ii). Whilst the publication had offered to amend the article to change the headline to say the complainant engaged in a “sex act” with the dog, it had not offered a clarification. There was also a breach of Clause 1(ii) on this point.

19. The Committee then turned to the use of the term “freed”. Where the complainant had received a “suspended” prison sentence, it was not inaccurate for the article to state he had been “freed” or had “walked free from court”. There was no breach of Clause 1 on this point. The Committee then considered the use of the word “pervert”. The article had reported that the complainant had “pleaded guilty to two charges of possessing extreme pornography and four of having indecent images of children”; this provided sufficient basis to support its characterisation of the complainant as a “pervert”. Regarding the reference to “defenceless pup” and what had been said by the prosecution, the Committee noted that this part of the article did not appear in quotation marks and was not presented as a direct quote of what the prosecution had said. Instead, the article paraphrased what had been heard in court. Notwithstanding the Committee’s concerns, above, about the article’s inaccurate description it was not in dispute that the complainant had committed some level of sexual activity with an animal. In that context it was clear that “defenceless pup” represented the publication’s characterisation. There was no breach of Clause 1 on this point.

20. The Committee noted the complainant’s concern that the article implied that the “38 extreme images” were all of children aged seven to 10. The Committee was, however, satisfied that the article had made the position clear: it had referred expressly to five indecent images featuring children aged seven to 10.  There was no breach of Clause 1 on this point.

Conclusions

21. The complaint was partially upheld under Clause 1.

Remedial action required

22. Having upheld a breach of Clause 1, 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 an adjudication, the terms and placement of which is determined by IPSO.

23. The Committee considered that the headline and text of the article inaccurately reported that the complainant had “rap[ed] a dog” where it was only heard in court that the content of the video was “sexual in nature” and the details of the video were not discussed. The Committee considered that the appropriate remedy was the publication of a correction to put the correct position on record.

24. The Committee then considered the placement of this correction. This correction should be added to the article, where it remains online, directly beneath the headline. If the article is removed, the correction should appear as a standalone article. The wording of the correction should include information required to correct the misleading information: that whilst the video of the complainant and the dog was “sexual in nature”, it did not show him “raping” the dog. The wording should be agreed with IPSO in advance and should make clear that it has been published following an upheld ruling by the Independent Press Standards Organisation.

 

Date complaint received:  18/03/2022

Date complaint concluded by IPSO:  28/03/2023