Ruling

16830-17 Warwickshire Police v Daily Mail

    • Date complaint received

      25th May 2018

    • Outcome

      Breach - sanction: publication of adjudication

    • Code provisions

      11 Victims of sexual assault, 2 Privacy, 3 Harassment

Decision of the Complaints Committee 16830-17 Warwickshire Police v Daily Mail 

Summary of the Complaint 

1.    Warwickshire Police complained on behalf of three people that the conduct of a journalist acting on behalf of The Daily Mail breached Clause 2 (Privacy), Clause 3 (Harassment), and Clause 11 (Victims of sexual assault) of the Editors’ Code of Practice. 

2.    The complainants represented three individuals who had given evidence as victims in a criminal case concerning allegations of non-recent sex offences. The defendants had been found guilty in relation to offences against them. The complainants alleged that during the course of the trial, the journalist’s enquiries had identified them as victims of sexual assault, and had intruded into their privacy. They also said that the journalist’s conduct had amounted to harassment. 

3.    The criminal case in which the complainants were three of the victims was well known and had been the subject of widespread reporting in the national and regional press, as well as the broadcast media. The circumstances of the offences, including the location where they had occurred, and the general profile of the victims were central elements of the story. 

4.    The first and second victims were siblings; they said that a freelance reporter acting on behalf of the newspaper had attended the home of their friend in order to ask him about the [perpetrators’] case, and to find out if he knew how to contact them and their parents. The complainants provided a statement from their friend in which he said that the journalist had shown him a list of names on an electronic device, and he had recognised the names of the first and second victim, as well as their parents. The list did not say that the names were those of victims. The friend had then contacted the parents in order to inform them of what had happened. He said they had been shocked and upset as they had been unaware that their children were victims in the case. The friend also expressed serious concern that the reporter had disclosed this information without knowing whether he would spread it more widely in the community. 

5.    The two victims said that they had not disclosed their association with the criminal case to their parents because they had not wanted to cause them any distress, and their friend had also been unaware of their involvement in the case. They had been assured by the police that their anonymity would be protected, and the journalist had identified them as victims of sexual assault to these third parties. This had caused them and their parents considerable distress and anxiety. 

6.    Later that evening, the first and second victim alleged that the journalist had attended the home of their parents, and had been told to “go away”; the journalist did not return. The second victim also alleged that the same journalist had spoken to their partner at their home and was told that the victim did not wish to comment and no further contact was made. 

7.    The third victim said that their parents had also been approached by a reporter from the newspaper at their home. The journalist had told them that they were seeking a “victim’s story”, had referred to the court case, and had asked if they could contact their child. The third victim said that this enquiry identified them as a victim of sexual assault to their parents. 

8.    While the newspaper expressed regret that the enquiries of its journalists had caused distress, it did not accept that it had breached the Code. 

9.    The newspaper explained that its reporter had asked a freelance journalist to attempt to make contact with various individuals linked to the criminal case. The freelance journalist had contacted the friend of the first and second victims because he had believed that the friend had direct involvement in the case. While the friend had told the journalist that he had been misinformed, the friend had also said that he would “know those involved” as he had lived in the area all his life. The journalist had then asked the friend whether he knew the second individual, and the friend had confirmed that he knew victims one and two. 

10. The newspaper accepted that when the journalist had attended the home of the first and second victim’s friend, he had been in possession of a list of victims connected to the criminal case. The journalist said that the list of names had formed part of an internal memo and at no stage had he deliberately shown the friend this list. While it was possible that the friend may have been able to see it on the journalist’s phone as they had spoken, any disclosure had been inadvertent. 

11. The newspaper said that the journalist had attended the home of the parents of victim one and two twice, and, on both occasions, there was no answer. He had not been told to go away. 

12. The newspaper did not accept that the journalist had told the parents of victim three that they were seeking a “victim’s story” or that their child was an alleged victim of a sexual offence. It said that the journalist had attended the address and had said that he was hoping to get in touch with their child as he understood that he “might have been involved” in the criminal case, or known those who were. 

13. The newspaper did not consider that Clause 11 should apply in this instance: the complaint related to journalistic conduct; no information which might identify a victim of sexual assault had been published. It said that speaking to the relatives or friends of victims of sexual offences, purely in order to establish their whereabouts and contact details, did not necessarily lead to them being identified as victims, as opposed to witnesses. The freelance journalist had not explained the connection between the names on the list and the court case; the newspaper did not accept that making such enquiries represented a failure to respect the victims’ privacy. 

14. The newspaper also argued that finding a breach of Clause 11 in relation to information imparted by a journalist inadvertently would make reporting on criminal cases beyond court reports virtually impossible. This would mean that asking a police press officer about the details of a case, when they happened to be unaware of the identity of the victim, could be found to be in breach of the Code. It also said that this would have posed significant difficulties for journalists investigating notorious cases where the same type of journalistic enquiries had proven that allegations had been made by unreliable witnesses.  

15. It said that any possibility of inadvertent identification to close family members as a result of its enquiries would be justified by the public interest in reporting fully on an important and controversial criminal case. It noted that victims of sexual assault often wished to give interviews; there was no way of knowing whether a victim wished to give an interview without making a discreet approach to them. 

16. While the newspaper did not consider that its representatives had breached the Code, it said that it had raised the complainants’ concerns with those involved and with senior executives. It also offered to write a private letter of apology to the victims, and to make a charitable donation. 

17. The complainants declined the newspaper’s offer of a resolution as they considered that a formal ruling was the only way to prevent victims of sexual assault having the same experiences.   

Relevant Code Provisions 

18. Clause 2 (Privacy)*

i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.

ii) Editors will be expected to justify intrusions into any individual's private life without consent. Account will be taken of the complainant's own public disclosures of information.

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

Clause 3 (Harassment)*

i) Journalists must not engage in intimidation, harassment or persistent pursuit.

ii) They must not persist in questioning, telephoning, pursuing or photographing individuals once asked to desist; nor remain on property when asked to leave and must not follow them. If requested, they must identify themselves and whom they represent.

iii)  Editors must ensure these principles are observed by those working for them and take care not to use non-compliant material from other sources. 

Clause 11 (Victims of sexual assault)

The press must not identify victims of sexual assault or publish material likely to contribute to such identification unless there is adequate justification and they are legally free to do so. 

The Public Interest

There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest. 

1. The public interest includes, but is not confined to: 

·        Detecting or exposing crime, or the threat of crime, or serious impropriety.

·        Protecting public health or safety.

·        Protecting the public from being misled by an action or statement of an individual or organisation.

·        Disclosing a person or organisation’s failure or likely failure to comply with any obligation to which they are subject.

·        Disclosing a miscarriage of justice.

·        Raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.

·        Disclosing concealment, or likely concealment, of any of the above. 

2. There is a public interest in freedom of expression itself. 

3. The regulator will consider the extent to which material is already in the public domain or will become so. 

4. Editors invoking the public interest will need to demonstrate that they reasonably believed publication - or journalistic activity taken with a view to publication – would both serve, and be proportionate to, the public interest and explain how they reached that decision at the time. 

5. An exceptional public interest would need to be demonstrated to over-ride the normally paramount interests of children under 16. 

Findings of the Committee 

19. Victims of sexual assault are granted anonymity both in law, and under the Code, in any reports of a criminal trial for sexual offences. However, this does not generally mean that they are anonymous within the court proceedings themselves. When journalists are present in court, this will mean that they have access to information that is not widely available to members of the public, including the identities of the victims. This is crucial to ensuring that the press is able to fulfil its role in scrutinising the courts and ensuring open justice, but it creates a special obligation to take care over the use of this highly sensitive information. In some instances it is appropriate and justified, as part of reporting on a case involving sexual offences, to seek comment from the victims: they may wish to speak about their experiences and the impact of the crimes on them. However, such contacts must be made with appropriate regard for the sensitivity of the circumstances, and the victim’s right to anonymity. 

20. The reporter should have been acutely aware that, in contacting third parties about the complainants, there was a risk that he would identify them as victims. He had not explicitly stated that any of the individuals were victims of sexual assault. However, he had identified the well-known criminal case he was researching, which related to events that had taken place locally, and said that he was looking for named individuals whom he identified as having been “involved in the case”.  Reporting of the case in the press and broadcast media had explained the nature of the crimes, where they had taken place, and the profile of the victims (sex and rough age ranges). In this context, to identify the complainants to third parties by name as “involved in the case” made clear that they were, or were likely to have been, victims, particularly given that they fitted the general descriptions of the victims in the case that had previously appeared in press reporting. The victims had been identified to their parents, as a result of the enquiries. 

21. The fact of their involvement in the case as potential victims was extremely sensitive and personal information about which the three individuals had a reasonable expectation of privacy. This represented a gross intrusion into their private lives in breach of Clause 2. While there was a public interest in carrying out enquiries in order to report on the criminal case, this did not justify disclosing such private information to third parties without consent, particularly given the three individuals’ legal and Code rights to anonymity. The complaint under Clause 2 was upheld. 

22. The Committee considered at length whether the terms of Clause 11 were engaged by the complaint that the victims were identified to third parties in conversation. The Committee concluded that the wording of Clause 11 was ambiguous on this point. Where the wording was ambiguous, and given that the complaint had been upheld under Clause 2, the Committee declined to uphold the additional complaint under Clause 11. It took the opportunity to draw this issue to the attention of the Editors’ Code of Practice Committee for its consideration as part of the next Code Review.  

23. There was no suggestion that the reporter had failed to respect a request to desist when he approached the parents of victims one and two for comment, or when he visited the home of victim three. He had not engaged in harassment or intimidating behaviour in breach of Clause 3. 

Conclusion 

24. The complaint was upheld. 

Remedial action required 

25. Having upheld the complaint, the Committee considered what remedial action should be required. 

26. In circumstances where the newspaper had breached Clause 2, the publication of an adjudication was appropriate. 

27. The complaint did not relate to any published material, and so the Committee considered carefully where the adjudication should appear. The breach of the Code was serious, and so the Committee decided that the adjudication should appear within the first four pages of the newspaper.  The headline to the adjudication should make clear that IPSO has upheld the complaint, give the title of the newspaper and refer to the complaint’s subject matter. The headline must be agreed with IPSO in advance. 

28. It should also be published on the publication’s website, with a link to the full adjudication (including the headline) appearing in the top 50% of stories on the publication’s website for 24 hours; it should then be archived in the usual way. The terms of the adjudication for publication are as follows: 

Warwickshire Police complained to the Independent Press Standards Organisation on behalf of three people that the conduct of a journalist acting on behalf of The Daily Mail breached Clause 2 (Privacy) of the Editors’ Code of Practice. The complaint was upheld, and IPSO has required the Daily Mail to publish this decision as a remedy to the breach. 

The complainants represented three individuals who had given evidence as victims in a criminal case concerning allegations of non-recent sex offences. 

The complainants alleged that during the course of the trial, the journalist’s enquiries had identified them as victims of sexual assault, and had intruded into their privacy. 

The first and second victims said that a reporter had attended their friend’s home in order to ask him about the [perpetrators’] case. The friend said that the journalist had shown him a list of names, and he had recognised their names, as well as the names of their parents. He had then told their parents what had happened. Before this, they had been unaware that they were victims in the case. 

The third victim said that the reporter had told their parents that he was seeking a “victim’s story”, had referred to the court case, and had asked if they could contact their child. The third victim said that this enquiry identified them as a victim of sexual assault to their parents. 

The newspaper said that its freelance journalist contacted the friend of the first and second victims because he had believed that the friend had direct involvement in the case. The friend had said that he would “know those involved”, and the journalist had asked whether he knew the second individual, and he had confirmed that he knew victims one and two. At no stage had the journalist deliberately shown him the list of victims connected to the criminal case, which he had in his possession; any disclosure had been inadvertent. 

The newspaper did not accept that the journalist had told the parents of victim three that they were seeking a “victim’s story” or that their child was an alleged victim of a sexual offence. The journalist had said that he was hoping to get in touch with their child as he understood that he “might have been involved” in the criminal case, or known those who were. 

While the newspaper did not consider that its representatives had breached the Code, it said that it had raised the concerns with those involved and with senior executives. It also offered to write a private letter of apology to the victims, and to make a charitable donation.  

The Committee considered that the reporter should have been acutely aware that, in contacting third parties about the complainants, there was a risk that he would identify them as victims. He had identified the well-known, local criminal case he was researching, and said that he was looking for named individuals who had been “involved in the case”.  Reporting of the case had explained the nature of the crimes, where they had taken place, and the profile of the victims. In this context, to identify the complainants by name as “involved in the case” made clear that they were, or were likely to have been, victims, particularly given that they fitted the general descriptions of the victims that had previously been reported. They had been identified to their parents, as a result of the enquiries. 

The fact of their involvement in the case as potential victims was extremely sensitive and personal information about which the three individuals had a reasonable expectation of privacy. This represented a gross intrusion into their private lives in breach of Clause 2. While there was a public interest in carrying out enquiries in order to report on the criminal case, this did not justify disclosing such private information to third parties without consent. The complaint under Clause 2 was upheld. 

Date complaint received: 12/07/2017 

Date decision issued: 14/12/2017