Miss Jane Andrews of HMP Bullwood Hall, Essex, complained to the Press Complaints Commission that an article headlined “Marti sings for killer Jane in jail” published in The Mirror on 2 June 2001 was inaccurate in breach of Clause 1 (Accuracy) of the Code of Practice and that an accompanying photograph was obtained in breach of Clause 11 (Misrepresentation) and that its taking and publication was in breach of Clause 3 (Privacy).

The complainant, who had been convicted of murder two weeks previously, was photographed as she was in the audience during a pop concert that took place at HMP Holloway. The accompanying article described the event and said that there was concern from a number of quarters that a prisoner convicted so recently of such a crime should be entitled to this privilege.

The complainant - initially through solicitors - said that the photograph had been obtained by using subterfuge in breach of Clause 11. She said that the photographer had been allowed access to the prison for the event only after having signed a contract which required him, among other stipulations, not to take photographs of prisoners without their written consent. A copy of the contract was sent to the Commission. The complainant said that the photograph intruded into her privacy and that the caption inaccurately suggested that the concert was held for her.

The editor replied that he would not comment on whether or not the contract had been breached because this was clearly a legal matter and not one that fell for the Commission to consider. With regard to the complaint about accuracy, he said that any reading of the article would have made clear that the concert was attended by 300 inmates and that its purpose was to support the prison’s work against drug dependency. He said that publication of the photograph was in the public interest and asked the Commission to consider the comments of the President of the Victims of Crime Trust, who had said that to allow a woman so recently convicted of murder to be treated to a free pop concert in prison was ‘totally wrong’ and a ‘shocking insult to the memory of Mr Cressman [the victim]’. The editor thought that such a privilege should have been given as a reward for signs of rehabilitation and maintained that the only way to illustrate the point that she was being allowed such privileges so soon was to have published the photograph of her.

The Commission wrote to the Director-General of the Prison Service, Martin Narey, to enquire about the protocol for inviting the media into prisons. He replied that the media were occasionally invited to see how initiatives were working but that access was closely controlled. In particular, a member of the prison’s media relations team would contact the journalist or photographer in advance of the visit to establish certain conditions - including not photographing or interviewing a prisoner without their consent. Such conditions were contained in a contract which the journalist was required to sign before entering the prison. In this case, reporters from The Mirror and the Press Association were invited to the concert which was given to support the work of the Prison Service in tackling drug misuse and dependency among offenders. Photographs of the complainant and another prisoner subsequently appeared in The Mirror and Daily Mail and were published without permission. Mr Narey enclosed a letter from the Prison Service’s Head of Media Relations to the editor of The Mirror, in which she complained that the contract had been breached. However, Mr Narey said that the Prison Service’s legal advice was that it would difficult to sue the newspaper.

Regarding the complaint under Clause 1, the Commission did not consider that readers would have been misled into thinking that the concert was staged for the complainant. The article, which the Commission read in conjunction with the headline, made quite clear that the event took place because the performer was interested in supporting efforts at drug rehabilitation and that many inmates had been present.

The Commission turned next to the complaint that the taking and publication of the photograph breached Clause 3, which entitles everyone - prisoner or otherwise - to respect for his or her private and family life.

The Commission sympathised with the view that any prisoner has an expectation that they will not be exposed to unwanted press photographs while they are in prison, although it understood that circumstances will vary and that there may be occasions where such photographs are permissible in the public interest. However, responsibility for ensuring that the prison was somewhere where prisoners had a reasonable expectation of privacy rested with the prison authorities which exercised absolute control over the prison environment. As they had apparently not secured the complainant’s privacy and not taken action against the newspaper despite the existence of the contract, it was not for the Commission to criticise the newspaper.

For similar reasons, the Commission was unable to find a breach of Clause 11. While the newspaper had not accepted that it had breached the contract and the Prison Service had indicated that it would not sue the newspaper, there was nothing to suggest that the Commission was a more appropriate forum for considering what in essence was a complaint about breach of contract. The Commission could not take a view under Clause 11 without effectively concluding whether or not the contract had been breached, which would have intruded into legal issues that would more appropriately be dealt with in court between the parties to the contract. It remained for the prison authorities to pursue the matter if they thought that their contract with the journalist had been breached.

The Commission did not find a breach of the Code.