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Complainant Name:
Florence Bright and others

Clauses Noted: 16

Publication: Daily Mail

Complaint:

1. THE COMPLAINT

1.0
"Florence Bright of Stewart Road, Bournemouth and others complained that the Daily Mail had paid Louise Woodward, then convicted of the murder of a child in the United States of America, in breach of Clause 16 (Payment for Articles) of the Code of Practice.

1.1
The payment was made in return for interviews with Mrs Woodward. As a result of these interviews, the newspaper carried a number of news stories relating to the conduct of Louise Woodward's trial, the circumstances that had led to the death of Matthew Eappen, and the family's decision to accept a manslaughter conviction if it meant the release of their daughter from prison. The articles appeared in the week beginning 3rd November 1997 and formed a part of the newspaper's campaign to have Louise Woodward's sentence quashed.

1.2
The payment was made after Louise Woodward had been convicted of murder but before her conviction was reduced nine days later to manslaughter. At the time the sentence was a subject of public and political debate on both sides of the Atlantic.

2. THE CODE

2.0
"The case falls for consideration under the Code because a payment was made indirectly to a person convicted of a crime. The Code says that such payments are permissible if the material concerned ought to be published in the public interest and payment is necessary for this to be done.

2.1
In its last adjudication under Clause 16 of the Code in July 1998, the Commission laid down certain general principles to assist newspapers in interpreting the Code (although it ought to be noted that this adjudication was clearly not available to the newspaper when it decided to make a payment to Mrs Woodward in November 1997). Among those general principles were these - that: Parliament itself has set down a legal framework within which people are not allowed to profit from their crimes, the Commission needs to bear the terms of that framework in mind when adjudicating on ethical matters of public policy such as this, where there is no victim of a possible breach of the Code; the provisions of the Code are not intended to stop all those who have ever been convicted of a crime from being paid for their story - only to stop those stories which do not contain a public interest element; and if there is a public interest element, then payment - including for exclusivity - is permissible, even though such payments may be distasteful and offensive. The Commission recognised that payment is increasingly demanded by people, for a variety of circumstances.

3. PRECEDENTS

3.0
"The Commission has always set great store by consistency and by a case law approach to adjudications. For that reason, it considered it important - even before examining the substance of the arguments - to identify potential similarities between this complaint and previous decisions (notably Mary Bell and Parry and MacLaughlan).

In the case of Deborah Parry and Lucille MacLaughlan, conviction took place outside of the UK. In its decision on that case, the Commission argued that it is the role of newspapers to scrutinise the way in which justice is dispensed to British citizens abroad.

Again in the case of Parry and MacLaughlan there was a substantial public interest element which derived from a high profile campaign to get a conviction altered, with a number of British newspapers, lawyers and politicians supporting the case of the nurses.

In such cases, payment may be offensive and abhorrent to many, but the Commission understood why it was, in some circumstances, necessary (as the Code allows).

4. THE NEWSPAPER'S DEFENCE

4.0
"The newspaper said that its case was quite straightforward: a teenage girl, in a highly emotive trial in a foreign country had - to the astonishment of many - been convicted of the second degree murder of a baby. It had made a payment to her mother to highlight her plight, the background to the trial, and to aid her campaign for justice.

4.1
The verdict had caused uproar in the United Kingdom because of a widespread belief that pre-trial publicity (which would have been illegal in Britain) had brought about a miscarriage of justice. A campaign was launched to have the verdict reviewed in which many politicians, lawyers and newspapers took part. Four reserve jurors at the trial also indicated their doubts about the verdict, as did opinion polls in the USA and UK. The Commission, independently, also received evidence from Louise Woodward's Member of Parliament that he still maintains her innocence.

4.2
The newspaper argued that the campaign run by them and by others was successful: within nine days the verdict had been reduced from murder (with a mandatory 15 year sentence) to manslaughter, and Louise Woodward was released from jail. In many ways, the newspaper had been acting in the tradition of other newspapers which had fought for justice in the Guildford Four, Birmingham Six and Carl Bridgewater cases.

4.3
The newspaper made clear that the payment was made after the original sentence but before the conviction was reduced to manslaughter - in other words, at a time when there was significant public debate about and interest in the fate of Louise Woodward.

4.4
The newspaper also made one other point about the timing of their payment to Mrs Woodward - that it was made before a Trust Fund was established to enable Louise Woodward to have the support of her parents. Had the Trust Fund been in existence, the newspaper would have made its payment direct to the Fund, and not to Mrs Woodward. In those circumstances, there may have been no case to consider under the Code of Practice. Mrs Woodward herself gave testimony to the Commission (set out in 5.10 below) that the newspaper's payment was made at a particularly bleak financial time. There was no Trust Fund in place and the Au Pair agency had indicated that it could not meet the costs of appeal or of supporting Mrs Woodward. In such circumstances, the only source of funds available to Mrs Woodward - to allow her to support her daughter, on suicide watch in jail, was to sell her story. The newspaper pointed out that neither Mr nor Mrs Woodward were independently well off.

4.5
As a result of the payment, the newspaper was able to publish new material about the case, which had not been made available at the trial. This included new detail on life inside the Eappen household and the relationships between Louise Woodward and her employers. Other new material related to Louise Woodward's ordeal in prison and the fact that she had decided to accept the possibility of a manslaughter conviction. Her mother - through the newspaper - was able to clarify that this was by no means an admission of guilt. In this way the interviews, and news stories, were a key part of the campaign.

4.6
Finally, the newspaper underlined the fact that there was no possibility of Louise Woodward or her parents in any way profiting from her crimes - which were, in any case, at that point the subject of an appeal. Her parents needed money to be with her, and were prepared to accept it from the newspaper in return for exclusive rights to an interview. It is impossible to believe, the newspaper made clear, that any of that money was not used on the Woodwards' enormous expenses in the United States. If they had not offered money somebody else would have: indeed, several other newspaper groups were offering to pay for interviews.

5. THE DETERMINING FACTORS

5.0
"In determining this complaint, there were four key factors that the Commission took into account.

5.1
The first of these factors was that the newspaper itself had clearly thought through the issue of payment, against the background of the Code, before making a decision to offer it. The newspaper's own thorough defence showed that it had identified issues of public interest - concern about miscarriage of justice and pre-trial publicity, as well as a more general issue of warning those who were thinking about a career of nannying in the United States of the potential perils. It had also assessed whether payment was necessary - taking into account the plight of the Woodwards and other offers of payment being made to them. And it had ascertained that the payment for interviews with Mrs Woodward would make new material available to the public. This related in particular to Louise Woodward's tactics at the time of appeal.

5.2
The fact that such a thorough analysis had been made shows that the Code was working. The Commission has often made clear that it will seek to support editors - particularly on ethical issues such as this, where there is no victim - provided that they can demonstrate that they have taken the Codes requirements into account. This had obviously happened in this case.

5.3
Second, the Commission paid great attention to the time at which the payment was made. It was not made before Louise Woodward went on trial or during it, when there was no concern about the outcome of that trial. Nor was it made after the murder verdict had been reduced to manslaughter, and it was clear that Woodward was going to remain a convicted criminal, albeit it at liberty.

5.4
The payment was made in that narrow window between the first and second verdicts when there was genuine controversy about the course of the trial. That controversy was being stoked by lawyers - including former Appeal Judge Sir Frederick Lawton and Jonathan Caplan QC - as well as newspapers. The Commission noted campaigns being run in other newspapers, including The Mirror, to have Louise Woodward released from jail. This was therefore a matter of contemporary legal, political and genuine public interest.

5.5
Just as importantly, there was political controversy about the verdict and conduct of the trial. MPs from across the political divide expressed concerns about possible miscarriage. The Woodwards own MP - Andrew Miller - was supporting the campaign. In a letter to the Commission, Mr Miller said:"I am quite satisfied that, amid an atmosphere of widely shared absolute conviction that a murder verdict was improper, it was appropriate for The Daily Mail to make payment to the Woodwards for [an] interview. This was reflected in every newspaper that I saw at the time and I was in receipt of literally thousands of communications to this effect ... I say that as someone who normally, as a matter of principle, would be opposed to people being paid for stories."

5.6
In all these circumstances, and without the benefit of hindsight, the Commission concluded that the newspaper made the right judgement that this was a matter of controversy which it was right to discuss - and the interview for which it paid as part of its campaign was at the time part of that process.

5.7
Third, the Commission believed that the matter on which the newspaper was commenting was in the public interest. A number of specific issues were raised: the possible miscarriage of justice, identified by British lawyers; the effects of pre-trial publicity which would be illegal in the United Kingdom; a warning to other girls who may be considering a nannying career in the United States; and the likely effect of a prison sentence on Louise Woodward, then on suicide watch in prison.

5.8
It should also be noted that the campaign run by the Woodwards actually had its desired effect - something which underlined the public interest arguments of the newspaper. Nine days after the original verdict, Judge Zobel quashed the jury verdict of second degree murder, substituting it for manslaughter and releasing Louise Woodward from jail. That decision made clear that there was real substance to the concern of the parents and the newspaper, who were therefore acting in the public interest.

5.9
On a final issue of public interest, Andrew Miller MP told the Commission that: "for your information, work is continuing within the USA to find ways to expose the abuse of science which took place in the courtroom. I am confident that Ms Woodward will eventually clear her name."

5.10
"Fourth, the Commission considered the question of whether payment was necessary - and in particular the reasons why a mother should need money in order to campaign for justice for her daughter. The answer to that was the very obvious financial plight of Louise Woodward's parents. There was concern about the verdict and about her daughter - but her parents had no way of mounting a campaign or indeed paying for Mrs Woodward to remain in the United States with her daughter. In a letter to the Commission, Mrs Susan Woodward made this clear:
"I would confirm that in November 1997 we received payment for expenses related to the fight for justice for our daughter, Louise. Payment was offered at a time when there was no trust fund established to help finance appeal procedures [and] the Au Pair agency had at that time indicated that they were not able to offer any financial assistance for any appeal procedures."

5.11
As the newspaper itself made clear, there was no possibility of Mr and Mrs Woodward - of limited financial means - supporting themselves in the United States. Their MP underlined the point to the Commission:
"At the time Sue and Gary Woodward decided to give an interview the au-pair agency [which] had been a crucial player in funding their legal costs had told them they were withdrawing finance, despite having given me an assurance to the contrary. I do not believe there was ever a question of the Woodward family seeking to profit in any way but in the interests of justice for Louise they needed to raise the money to maintain her defence. They had to keep their daughter's plight in the public eye and faced uncertainty as to how they would fund the legal fight and for how long that fight would have to go on. This, in my view, totally vindicated their decision to seek payment for an interview which added significantly to the publics understanding of the case."

5.12
It is quite clear, therefore, why payment was necessary. It is also clear that - in these circumstances - there were plenty of offers available to the Woodwards, which is why a newspaper was entitled to make a payment on the basis of exclusivity.

5.13
The Commission also noted that at the time payment was made, there was no mechanism for supporting the Woodwards other than direct payment to them. The Au Pair agency had withdrawn funding, and no Trust Fund was yet established. Had that been the case, the newspaper indicated a payment would have been made to the Fund - but such an option was not open to them at the time.

5.14
In considering the question of whether payment was necessary, the Commission also considered what new material - if any - the interview with Mrs Woodward had brought to light. Among other things, the newspaper revealed exclusively that Louise Woodward had decided to accept a manslaughter conviction - if that meant being released from jail - but that this in no way amounted to an admission of guilt.

5.15
Finally, on the issue of payment, the Commission considered whether there was any possibility that the Woodwards had profited from the interview - and therefore from the crime. It was possible only to reach a hypothetical conclusion on this point - namely that the Woodwards need for funds was so great that there could have been little left from the 40,000 paid by the newspaper. Indeed, there were still significant demands on the Trust Fund when it was eventually established. The Commission therefore concluded - so far as it reasonably could - that the Woodwards could not have profited from the payment.

5.16
Indeed, if the prime objective of the Woodwards had been to profit from the crime of their daughter, then it is arguable that they would have accepted one of the more substantial offers for payment that was being made to them by other newspapers and broadcasters. However, they always maintained that their prime concern was to cover their expenses to allow them to support - and campaign for - their daughter. The Commission was satisfied that the newspapers assessment of the sums necessary for this was of the right order.

Decision:
Not Upheld

Adjudication:

6. CONCLUSION

6.0
"The Commission had to make its judgement on the basis of the information that was available to the newspaper at the time - and in doing so applied four tests. Was there a public interest? Was payment necessary? Was new information obtained? And was there are any profit?

6.1
The answer to each of these was yes. At the time there was clear public interest in the questioning the murder conviction: the interviews - which contained new information - were integral to that campaign, and there was evident need for payment for them. The newspaper's assessment of the sums necessary for this was of the right order. The newspaper was entitled to take these factors into account in reaching its decision under the Code - and, without needing to endorse every detail of the newspaper's argument, the Commission could not fault that decision.

6.2
Testimony both from Mrs Woodward and, independently, from Andrew Miller MP strongly underlined all these points.

6.3
In reaching its decision, the Commission was also mindful of the precedents it had already established in this area. It therefore applied the benchmarks set out in previous adjudications (and summarised in 3.0 above) and again concluded that the newspaper's decision under the Code could not be faulted.

6.4
The Commission recognised that hindsight has played a significant role in public perception of this case since November 1997. Such hindsight can play no role in a Commission decision under the Code. Although such an opinion can only be hypothetical, it is possible that, had any payment been made before the first verdict, or after the second, then the Commission might have reached a different decision. But the payment was made between the two verdicts when the public interest, and need for payment, was at its greatest.

6.5
For all these reasons, the complaints were not upheld.

Report:
44



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