Dr Nicholas Russell complained to the Press Complaints Commission, with the consent of his brother Judge Anthony Russell QC, that an article headlined "Stuart Hall judge visited gay brothel", published by the Daily Mirror on 24 June 2013, had discriminated against the Judge and intruded into his privacy in breach of Clause 12 (Discrimination) and Clause 3 (Privacy) of the Editors' Code of Practice.

The complaint was not upheld.

The front-page article reported that Judge Russell, whose sentencing of Stuart Hall had been criticised as unduly lenient, had in 1996 resigned his position as a Recorder following the publication of allegations that he had visited a "gay brothel". The complainant said that the story insinuated, entirely unjustifiably, that his brother's sexual orientation was relevant to, or had influenced, his judgement in the sentencing of Mr Hall. The coverage was grossly offensive, intruded into his brother's privacy and referred to his brother's sexual orientation in pejorative terms, in breach of the Code.

The newspaper strongly denied that the information published had amounted to details of the Judge's sexual orientation, or that it had referred to the Judge's sexual orientation in a prejudicial or pejorative way. It further denied any intrusion into his privacy. It said the article had made no explicit or implicit claim that the Judge had given Mr Hall a lenient sentence because of his own sexual orientation. Nor had it accused him of any professional impropriety. There had been considerable public debate concerning Mr Hall's sentence, which had ultimately been increased by the Court of Appeal. The newspaper believed that it was relevant to this debate that a judge involved in a high-profile case concerning sexual misconduct had in the past himself faced allegations of sexual activity, albeit of a very different kind, which had led to his resignation. The newspaper said that the location of the activity was part of the narrative of the story, which concerned "a Judge visiting a gay brothel" as opposed to "a gay Judge visiting a brothel". It had been relevant to report that the establishment had openly catered for gay men in order to properly recount the circumstances of his resignation, and denied that this constituted a detail of his sexual orientation. All of the details in the story were well-established in the public domain through their previous publication; there had been no invasion of privacy.

Clause 12 (Discrimination) (i) prohibits "pejorative or prejudicial" references to an individual's sexual orientation; the clause also provides that (ii) "details of an individual's ... sexual orientation ... must be avoided unless genuinely relevant to the story".

The front-page article under complaint included a large photograph of the Judge next to the headline "Stuart Hall judge visited gay brothel". The story had not made a specific claim about the Judge's sexual orientation, and had contained little detail regarding the allegations in the original report regarding his supposed activities at the establishment. Nonetheless, given the prominence afforded to the nature of the establishment in the headline, and the outline of the original allegations that was included in the text, the Commission concluded that the terms of Clause 12 (ii) were engaged in this instance. The newspaper was therefore required to demonstrate that the fact that it was a "gay" brothel was "genuinely relevant".

The complainant said that the Judge's sexual orientation was irrelevant to his sentence in Stuart Hall's case, and the newspaper's attempt to link the two was spurious. Although the newspaper agreed that the Judge's sexual orientation was not directly relevant to the sentencing decision itself, it maintained that it was entitled to draw to its readers' attention the circumstances which had led to his resignation. The nature of the establishment was directly relevant to this narrative.

This was an extremely finely balanced decision, and the Commission was acutely aware of the purpose of Clause 12 (ii): to prevent the risk that prejudice may arise when an individual's characteristics (sexual orientation, in this case) are juxtaposed with their acts (allegedly excessively lenient sentencing decisions) in a context that may imply to readers, wrongly, that a causal relationship links the two.

Nonetheless, the newspaper was entitled to bring to its readers' attention the fact that a serving Judge who was the subject of present controversy had previously had cause to resign from a judicial post. The direct cause of the Judge's resignation was the visit to an establishment which was allegedly the site of sexual activities that were regarded, at least at the time of the original incident, as worthy of comment. While the Commission made clear that it might have taken a different view had the report included gratuitous sexual details - which would clearly have been irrelevant to a report of the circumstances of the resignation - it concluded that the newspaper had been entitled to publish the fact that the establishment had catered for gay men. The Commission had reservations about the manner in which the material had been presented, and in particular the prominence given to the nature of the establishment, but Clause 12 (ii) does not provide for the Commission to uphold a complaint solely based on the prominence given to information in a story which might be held to identify an individual's sexual orientation. The Commission did not uphold the complaint under Clause 12 (ii).

The Commission understood the complainant's position that republishing the allegations in this context constituted a pejorative and prejudicial reference to the Judge's sexual orientation. It noted, however, that the article had recounted the incident in a factual manner, without ridiculing the Judge's sexuality or employing offensive terms. It concluded that the article contained no "prejudicial or pejorative reference" to the Judge's sexual orientation. There was no breach of Clause 12 (i).

Finally, the coverage contained minimal details about the allegations, which had been previously published, and no further information or speculation that could be said to relate to the complainant's private life. The complaint under Clause 3 (Privacy) was not upheld.