Clauses Noted: 16
Publication: Daily Mirror
1. THE COMPLAINTS
The Commission considered three sets of complaints under Clause 16(ii) of the Code of Practice, which prohibits payments by newspapers or magazines for stories to convicted or confessed criminals, except where publication of such stories is in the public interest.
The first set of complaints related to the serialisation by The Times of the book Cries Unheard by Gitta Sereny about the child killer Mary Bell. Serialisation took place from 29th April to 1st May 1998.
The second set of complaints related to articles in The Mirror and The Express setting out the story of Deborah Parry and Lucille MacLauchlan, both convicted of a killing in Saudi Arabia but released from prison there following a Royal Pardon. These articles were published in the week beginning 20th May 1998. For ease, these complaints are referred to throughout the first part of this adjudication as the nurses.
The third set of complaints related to the serialisation by The Daily Telegraph of a book, The Informer, by convicted IRA terrorist Sean O'Callaghan. The serialisation began on 16th May 1998.
2. THE CODE AND THE LAW
"Before dealing with the substance of each case in detail, the Commission wished to set out the general principles which it applies to complaints brought under Clause 16(ii) - particularly against the background of the existing legislative framework and the Government's current review of the issue of proceeds of crime.
Profits from crime. It is a distasteful fact that some criminals can, and do, profit from their crimes and do so in a number of different ways. Some have been known straightforwardly to exploit their misdemeanours by conducting guided tours of the location of their crimes. Others write books: only recently it became clear that the serial killer Dennis Nilsen is writing a book, for which interested publishers are said to be offering up to 100,000 (reported in The Sunday Telegraph, 31st May 1998).
The legal framework. The Code of Practice exists outside, and on top of, the legal requirements on editors. However, the Commission is aware that in dealing with the matter of payments to criminals, it is dealing not with an ordinary complaint - where there is a victim of a breach of the Code - but with a matter of general public policy. In considering the matter, the Commission has therefore thought it right to have regard to the existing legal structures in this area.
It has always been, and remains, a matter for Parliament to set down the framework within which people are not allowed to profit from their crimes. There is a good deal of statute in this area - most importantly, the Proceeds of Crime Act 1995, the Criminal Justice Act 1988 and the Drug Trafficking Act 1994, each of which prevents convicted criminals in certain circumstances from profiting from crime. There are geographical and chronological limits to that legislation. Statute does not stop criminals convicted in foreign jurisdictions from profiting from crime - except in very limited circumstances such as drug trafficking. And it does not apply after six years have elapsed following a crime.
All the cases considered by the Commission therefore fell outside the terms of the law - a point on which the Commission placed some weight. In the case of the nurses, the events and sentencing took place abroad. In the case of Mary Bell, the publication of Cries Unheard took place thirty years after the crime had been committed - well outside the time set in statute; in that of Sean O'Callaghan, the book was published eight years after he was convicted. The Commission was therefore mindful that, in interpreting the Code, it should hesitate before enforcing a censorious regime on newspapers beyond that which Parliament itself has put in place. It was also mindful that newspapers and magazines operate under a tough self regulatory regime to which book publishers and broadcasters are not subject: they are subject to the law alone.
The purpose of the PCC Code. The provisions of Clause 16 of the Code of Practice are not intended to stop all those who have ever been convicted of a crime from being paid for their story in every set of circumstances - for three reasons. First, as set out above, it is for Parliament to establish a legal regime which defines the extent to which criminals should be prevented from cashing in on their crimes through newspaper stories or otherwise. The PCC Code cannot work in isolation from that. Second, it would be unrealistic to demand that all convicted persons should be barred in perpetuity from writing for newspapers or book publishers about their crimes or indeed about other matters. The law itself recognises that offenders can be rehabilitated and convictions spent - and it would be wrong of the PCC to take a different view. Indeed, this point was established in a Commission adjudication on the serialisation by The Guardian of a book by convicted drugs smuggler Howard Marks (McFarquar v The Guardian, PCC Report, October - December 1996). And third, the Commission recognises the importance of freedom of expression and of the publics right to know - both of which are currently being guaranteed by the Human Rights Bill before Parliament.
The public interest. While the Code is not designed to stop criminals being paid for their stories in all circumstances, it is designed to stop newspapers making payments for stories about crimes which do not contain a public interest element. Indeed, the philosophy of the Code is that a payment aggravates the case where there is no public interest, because the glorification of the crime is more of an affront if it is done for gain. The principle behind this is, of course, that it is wrong to glorify crime, not necessarily to write about it: there will be occasions on which the public has a right to know about events relating to a crime or criminals. The key to the Code is, therefore, public interest.
This is a point established by previous PCC adjudications. One adjudication concerned the publication by Hello! magazine of an interview with Darius Guppy, while he was still serving a prison sentence for fraud. The Commission could not accept that there was any public interest served by the article, which merely served to glorify the crimes that Guppy had committed. It therefore upheld the complaint on the grounds of inadequate public interest (Huins v Hello!, PCC Report, August - September 1993).
Another adjudication concerned the case of former Barings' trader Nick Leeson, whose memoirs were serialised by The Daily Mail soon after he had started his prison sentence. Payment arose because of the television advertising of the book by the newspaper - thus increasing the royalties obtained from increased sales. The Commission concluded that, in this case, there was a public interest justification for the way in which the newspaper had dealt with the matter and rejected the complaints (Gordon v The Daily Mail, PCC Report, January - March 1996).
Payments - and exclusivity. In each of these cases, the Commission's judgements were determined on the issue of public interest alone. The Code also makes clear that if payment is to be made for a story that is in the public interest, payment must be necessary for this to happen. The Commission acknowledges that payment is increasingly demanded by people (or their agents) whose stories the newspapers want; and that newspapers - which exist in a fiercely competitive environment - in their turn wish to require exclusivity because of the large sums demanded. Although such payments for exclusivity - and the size of them - may be distasteful and offensive, they do not in themselves involve a breach of the Code, because they must in such circumstances be judged as necessary. Indeed, newspapers are not well known for making payments which are unnecessary.
"The determining factors. In looking at the complaints before it, the determining factors for the Commission are therefore freedom of expression and public interest. The issue of payment - regulated by Act of Parliament, and currently under review by the Government - is only relevant where no arguable public interest can be displayed by the newspaper: if there is no public interest, then payment is in breach of the Code; if there is a public interest, then there is no breach of the Code provided payment is necessary.
3. WAS THERE A PUBLIC INTEREST JUSTIFICATION?
"Mary Bell and The Times. The Commission found the newspaper's public interest arguments in the case of the serialisation of Cries Unheard to be compelling. The newspaper summed up that public interest as something that runs like a spine through [Gitta Sereny's book] and was the reason why Sereny felt impelled to return to the case she covered at the time of the trial. Does the criminal justice system do real justice to such damaged children? If not, how can it be improved?
Many specific issues of public interest were raised by the newspaper. They included: the circumstances in which a child who grew up in surroundings of depravity came to be a murderer; the connection between Bell's own crime and the abuse to which she herself was subjected; and the first authoritative account of how the penal system deals with child criminals. Indeed, the editor had summed up the public interest justification in a way the Commission found highly cogent: Only by trying to understand what could conceivably have driven an 11 year old girl to kill two small boys ... can we come any closer to stopping these crimes.
The Commission also noted that the newspaper was only serialising the work - and an argument of freedom of expression, and the public interest attaching to that, therefore also arose. The material had already been put into the public domain - as a result of the willing co-operation of Mary Bell herself - and what she had to say was original material of relevance to a wide range of issues relating to crime and punishment. As such the public - not just those who would buy her book - had a right to access the material. As the newspaper said, Cries Unheard publishes information which should be put in the public domain for no more specific reason than that it is better for important facts to be available for dissection and discussion than for them to remain hidden.
The Commission noted that a recent review of the book, by Mary Margaret McCabe of the Department of Philosophy at Kings College London, had summed up the issue extremely well. Should this book have bee published? The answer is a firm yes ... The doubt it provokes, both about this case and how we should deal with it, is a vital component of our reaching proper understanding of how we live our family lives, and of how our institutions might correct them (17th July 1998).
Parry and The Express, MacLaughlan and The Mirror. In both cases, it was not for the Commission to make any finding or pass any judgement on the allegations that had been made about the Saudi justice system. The Commission's role was only to decide whether there was any public interest in newspapers promoting a debate about it.
Against that background, the Commission found the newspapers' public interest justifications in both these cases to be substantial.
In the case of Lucille MacLaughlan, the newspaper published evidence that she had allegedly been tortured and sexually assaulted after her arrest by the Saudi police. She had, apparently, been denied access to British Embassy staff and to proper legal representation in advance of a trial in private without a jury and without being allowed to give evidence on her own behalf. Independent experts had analysed her confession and concluded that it was not genuine - as she had always maintained. An independent organisation, Fair Trials Abroad, had been unequivocal in its criticism of the alleged conduct of the police, and made clear its view that the convictions ought not to be sustained. The newspaper believed that the combination of these factors showed that the entire process was carried out by what it described as a primitive court dispensing barbaric justice. The articles, they said, would go some way to prevent such miscarriages of justice in the future and encourage the Saudi government to examine and reform its judicial system. The Commission also noted that the Prime Minister and Foreign Secretary had been instrumental in the sentences being commuted - which itself added a substantial element of public interest to the entire story.
In the case of Deborah Parry, the newspaper said that it was the nurse's family which had convinced it that that the story should be told. There had, the paper said, been a miscarriage of justice. They, too, noted that her story was a warning to other people thinking they might make easy money working in the Middle East. The money that had been given to her, the paper said, would be used almost entirely to pursue this line of public interest: it would be spent on legal costs to assist her in clearing her name; the newspaper would continue to assist her in this.
Having regard to all the matters set out above, the Commission took the view that the newspapers had an abundant public interest justification.
First, the British Government itself had been involved in the case - arguing for the commutation of the nurses sentences and their release. This was therefore a matter of legitimate public interest and debate: indeed, the Government would not have become involved otherwise. To argue that there was no public interest would - in effect - be to say that the public had no right to understand the circumstances of a high profile case involving British citizens abroad, with which their Government was closely involved.
"Second - again emphasising the point that it was not a matter for the Commission to make any judgement whatever about Saudi justice - the Commission noted that 30,000 British citizens currently work in Saudi Arabia. Many thousands of others are no doubt contemplating doing so. Allegations had been made about the way in which justice was dispensed in the country - and it could not be argued that there was no public interest in airing these, whether or not they were well founded. Newspapers have a legitimate role in scrutinising justice in this country, and every other one where British citizens reside. They were fulfilling that role in this case.
Third, as with the case of Mary Bell, the Commission noted that there was an important argument of freedom of expression and the public interest attaching to the story. The two nurses had a right to give their account - especially against a background in which other newspapers were putting the other side of the story. This was particularly important as the nurses had been convicted following a closed trial - in which their side of the story was never heard by the British public.
Sean O'Callaghan and The Daily Telegraph. The newspaper provided the Commission with a strong public interest justification. The book they were serialising provided, they said, a unique inside account - such as no other book or court testimony has ever provided - of the inner workings, thinking and strategy and tactics of the IRA. The newspaper had said that it was proud to provide this account because of the service to truth that Sean O'Callaghan had performed. Everyone in the British Isles, they added, needed to understand how the most important terrorist organisation in Western Europe worked - and the threat to democracy which the fascism of Sinn Fein posed.
The Commission agreed with the newspaper that there was a very strong public interest justification in serialising the book. For the first time, an informer had thrown the spotlight onto the workings of a terrorist organisation that had been responsible for many deaths throughout the United Kingdom. The book was an invaluable work - and deserved the wide audience that serialisation gave it.
4. MARY BELL'S DAUGHTER
"The impact on Mary Bell's daughter. The Commission noted that the publication of the book, and to a lesser extent its serialisation, had caused a number of newspapers to begin a search for Mary Bell herself. This led ultimately to allegations of harassment of Mary Bell and her daughter - and to the apparent fact that Bell was forced to reveal her identity to her daughter for the first time.
The Commission has a very great deal of sympathy for Mary Bell's daughter in this case - although this was clearly not a matter which it could realistically take into account when considering a complaint under Clause 16. Indeed, the Commission had to assume that the furore about payments to Mary Bell would have occurred whether or not there had been a serialisation in the newspaper: concern was being expressed about the book itself in some newspapers long before it became clear that "The Times" was to undertake the serialisation.
The Commission also noted that a number of issues relating to the identification of Mary Bell, and intrusion into the private life of her and her daughter, were covered by an existing injunction. In any event, no complaint of harassment was received - without which it was impossible for the Commission formally to investigate.
The Commission would have welcomed such a complaint from any of the interested parties in order that it could more fully address these issues. That said, the Commission wished to place on record its serious concern about allegations of the harassment of any child - which is always unacceptable - and would have been quick vigorously to censure a newspaper if a complaint had been received, backed up by evidence from one of those involved, and a breach of Clause 4 or Clause 6 proved. This was a point underlined at the time by the Chairman of the Press Complaints Commission in a series of radio and television interviews.
"As set out above, the Code of Practice allows newspapers to make payments for material in the public interest - provided it is necessary for it to be done. There were two ways for the Commission to look at this issue.
On one basis, the mere fact that a payment has been made means that it must, in all probability, have been necessary. Individuals who want to give their story for free are able to do so - while newspapers are simply not in the habit of paying for material if they do not have to.
On another basis, the Commission could have hypothesised about what might have happened if no payment had been made. In the case of the two book serialisations, it would have meant that the material in the books would not have been made available to a wide public audience. In the case of the payments to Parry and MacLaughlan, the material might have emerged in time - perhaps in another country or in another medium - but it might not have emerged at all: the nurses could simply have declined to tell their story until they had written a book. They would have profited from that - perhaps to an even greater extent - and in the meantime the public would have been deprived of information that was in the public interest.
Looking at it either way, payment was - in the phraseology of the Code -necessary to secure material by which the public interest was served so far as it was possible for the Commission to determine.
"On the two matters before it - public interest and payment - the Commission did not find that any case had been made out for a breach of the Code. In each of the complaints there was a strong public interest justification. These were all matters on which the public had a right to know and about which wide debate was legitimate. Furthermore, payment was in all probability necessary in the terms of the Code to secure the material - or at least it could not be proved that payment was unnecessary.
However, there was one further and general matter the Commission wished to address. Like many members of the public - and like many editors - the Commission believes that while payments may in some cases be necessary, they may at the same time be extremely offensive. However, that is a moral and subjective judgement which goes beyond the scope of the Commission and an objective Code at the heart of which is the public interest and the publics right to know. It is a matter of broader public policy for Government and Parliament.
The Government is presently considering whether the existing law (set out in 2.2-2.4 above) is adequate in this regard - a review which, in the light of its recommendation on these complaints, the Commission welcomes and believes is a sensible way forward. The review will of course need to have regard for the terms of the European Convention on freedom of expression, which is currently being enshrined into UK law through the Human Rights Bill. The Commission will seek to co-operate with he Government on the issues it has covered as a result of this debate.
The complaints were not upheld.
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