Paper No. 2341 CONFIDENTIAL MINUTES of the COMPLAINTS COMMITTEE MEETING Tuesday 7th September at 10.30am Field Fishers, Riverbank House, 2 Swan Ln, London EC4R 3TT Present Lord Edward Faulks (Chairman) Nazir Afzal (remotely) Andrew Brennan David Hutton Helyn Mensah (remotely) Asmita Naik Mark Payton Andrew Pettie Miranda Winram (remotely) In attendance: Charlotte Dewar, Chief Executive Michelle Kuhler, PA and minute taker (remotely) Robert Morrison, Head of Complaints Also present: Members of the Executive: Elizabeth Cobbe (remotely) Rosemary Douce (remotely) Alice Gould Sebastian Harwood Emily Houlston-Jones Natalie Johnson Tonia Milton (remotely) Molly Richards Martha Rowe Observers: Tristan Davies, Complaint Committee member (remotely) Jonathan Grun, Editors’ Code of Practice Committee (remotely) Item 3 1. Apologies for Absence and Welcomes Apologies were received from Alastair Machray. 2. Declarations of Interest There were no declarations of interest received. 3. Minutes of the Previous Meeting The Committee approved the minutes of the meeting held on 20 July. 4. Matters arising , There were no matters arising. 5. Update by the Chairman – oral The Chairman reminded members that Janette Harkess and Peter Wright had recently left the Committee. He shared an email of thanks from Peter. He also reflected on the recent, sad loss of Lara Fielden. The Chairman welcomed new members to the Complaint Committee: Tristan Davies, who was attending the meeting as an observer and Allan Rennie, as editorial member for Scottish publications. The Chairman informed the committee that Lord David Triesman had been appointed as Chair of IPSO’s Appointments Panel and that Victor Olowe and Catherine Steele had been appointed as panel members. The Chairman welcomed Robert Morrison as the new Head of Complaints, and Jonathan Grun from the Editors’ Code Committee as an observer. 6. Complaints update The Head of Complaints updated the Committee on his induction to the role and his priorities for the coming months. He updated the Committee on a few complaints of note. 7. Complaint 01348-21 IPSO v Tatler The Committee discussed the complaint and ruled that the complaint should not be upheld. A copy of the ruling appears in Appendix A 8. Complaint 04659-21 A woman v The Times The Committee discussed the complaint and ruled that the complaint should be partial upheld, under clause 2. A copy of the ruling appears in Appendix B. Item 3 9. Complaint 04917-21 Akhtar v The Sunday Times The Committee discussed the complaint and ruled that the complaint should not be upheld. A copy of the ruling appears in Appendix C. 10. Complaints not adjudicated at a Complaints Committee meeting The Committee confirmed its formal approval of the papers listed in Appendix D. 11. Any other business There was no other business. 12. Date of next meeting The date of the next meeting was confirmed as 12th October 2021. The meeting ended at 13.30pm Item 3 Appendix A Draft Findings of the Complaints Committee – 01348-21 IPSO v Tatler Summary of Complaint 1. On the recommendation of the Board of the Independent Press Standards Organisation (IPSO), the Complaints Committee of IPSO initiated an own- volition inquiry into whether Tatler had breached Clause 16 (Payment to criminals) of the Editors’ Code of Practice in relation to an article headlined “Diary of a Gen-Z prohibition partygoer”, published on 4 January 2021. 2. The article was presented as a series of extracts, taken from a diary of an anonymous “prohibition partygoer”, detailing their social life during a period of time when “social gatherings were banned” due to Covid-19 restrictions. Over the course of the article, the writer described themselves attending a series of indoor events with large numbers of attendees: a “16 person […] dinner party”; a party in a private underground carpark attended by a “throng” of people, where “attendees have been made very aware that if the police turn up, any fine imposed will be split between the guests"; a “night in the country” with “eight […] of my nearest and dearest”; an “illegal rave” where “400 unknowns disregard social distancing […] There’s not a face covering in sight”; and a “fancy dress fiesta” with “40 or so partygoers”. The writer claimed that they had "rebelled" against "draconian restrictions" and described the "illicit thrill I get simply from disobeying the embargo on mixing between households". The final extract from the diary described the writer as feeling “a little peaky”. 3. Between 29 October and 5 November 2020, London was in Tier 2, and the relevant legislation stated that “No person may participate in a gathering in the Tier 2 area which - (a) consists of two or more people, and (b) takes place indoors”. On 5 November the country went into lockdown for the second time, and the relevant legislation stated that “No person may leave or be outside of the place where they are living without reasonable excuse”. Both pieces of legislation allowed for an authorised person to issue a fixed penalty notice where there was a reasonable belief an adult had committed an offence under the regulations. The legislation described a fixed penalty notice as “a notice offering the person to whom it is issued the opportunity of discharging any liability to conviction for the offence by payment of a fixed penalty to an authority specified in the notice”. 4. The publication confirmed that: the article had been commissioned on 29 October 2020; it had been sent to print on 27 November 2020; and the writer had been paid £400 at the time they were commissioned to write the piece. It noted that Clause 16 of the Editors’ Code states that “Payment or offers of payment for stories […] must not be made directly or via agents to convicted or confessed criminals”. It did not consider the writer to be either a convicted or Item 3 confessed criminal: they had not been issued with a fixed penalty notice, and even in circumstances where a fixed penalty had been issued and paid, no criminal conviction or record would have resulted. The publication maintained that it was by no means inevitable that the activities described in the article would have resulted in a fixed penalty notice – for example, it noted that journalists had been given special exemptions from some restrictions to ensure that they could effectively report on the pandemic, or the police may have found there was a reasonable excuse for the activity - so it did not consider the conduct of the writer to be criminal. Furthermore, it noted that the police sort to resolve breaches of regulations through engagement and explanation before resorting to enforcement: the writer had therefore been several steps removed from receiving a fixed penalty notice, and even further removed from receiving a conviction, which would have required non-payment of the fine and a court appearance resulting in a conviction. It also provided information from the Joint Committee of Human Rights who called for a decision that no criminal record should result from Covid-19 fixed penalty notices. 5. The publication also stated that the article did not exploit, glorify, or glamourise crime. It said it was a satirical piece, and that the last paragraph of the article recognised that the writer had been exposed to a health risk. It said that when the article was first discussed, the coronavirus guidelines were changing, with members of the public reacting to them differently and that there was public unrest as a result. It said several writers had contacted the publication regarding the underground party scene in England, and after extensive discussion it decided to commission a feature in order to accurately investigate this scene. The publication said during these discussions it was decided that the events in the article were a social phenomenon occurring at a significant moment in history and that it had decided it was in the public interest to report on these events, and that the writer had to attend such events in order to conduct the investigation. It noted that in the time between the article being commissioned, printed and put on sale, the Coronavirus situation had escalated dramatically and on this basis the article was not published online. Relevant Code Provisions Clause 16 (Payment to criminals)* i) Payment or offers of payment for stories, pictures or information, which seek to exploit a particular crime or to glorify or glamorise crime in general, must not be made directly or via agents to convicted or confessed criminals or to their associates – who may include family, friends and colleagues. ii) Editors invoking the public interest to justify payment or offers would need to demonstrate that there was good reason to believe the public interest would be served. If, despite payment, no public interest emerged, then the material should not be published. Item 3 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 6. The Committee considered Clause 16 in relation to both the letter of the Code as well as the spirit. Clause 16 states that payment must not be made to “convicted or confessed criminals or to their associates” for articles which seek to exploit a particular crime or to glorify or glamorise crime in general. In order to establish a breach of this clause, the Committee must be satisfied that: payment had been made for the story; the story exploited, glorified or glamorised a crime; and the recipient of the payment was – or was an associate of – a confessed or convicted criminal. Item 3 7. There was no question that payment had been made by the publication to the journalist for this article, and that the article detailed behaviour on the part of the journalist which the journalist themselves suggested in the article would contravene Coronavirus legislation. There was some ambiguity, however, as to whether an offence under these regulations amounted to a crime, and therefore whether the journalist could be considered a “confessed criminal” under the terms of Clause 16. 8. The Committee considered this question in detail and concluded, on balance, that they could not, for two reasons. First, the context and nature of the offence was relevant: the status of offences established by the emergency Coronavirus legislation was highly unsettled and subject to differing and changing interpretations. Second, the penalty prescribed under the legislation for such an offence was a fixed penalty notice, payment of which discharged the offender of “any liability to conviction for the offence”. In these circumstances, the Committee did not consider that the journalist could be considered a “confessed criminal” in the sense intended by Clause 16. In light of this ambiguity, the Committee further did not consider that the article necessarily amounted to glorification of “a crime”. For these reasons, it found no breach of Clause 16. 9. The Committee noted finally that in reaching this conclusion, it was not making any finding as to the adequacy of the public interest justification advanced by the magazine for the payment for this material. Conclusions 10. The complaint was not upheld. Remedial Action Required 11. N/A Date complaint received: 14/06/2021 Date complaint concluded by IPSO: 07/10/2021 Item 3 Appendix B Decision of the Complaints Committee – 04659-21 A woman v The Times Summary of Complaint 1. A woman complained to the Independent Press Standards Organisation that The Times breached Clause 2 (Privacy) and Clause 11 (Victims of sexual assault) of the Editors’ Code of Practice in five articles headlined: · “Martyn Percy, dean of Oxford’s Christ Church college, steps aside after new complaint”, published on 19 November 2020. · “College dean Martyn Percy faces sex investigation despite police not pressing charges”, published on 9 December 2020. · “Is the war of Christ Church v the dean at an endgame?”, published on 16 December 2020. · “Oxford college accused of ‘toxic’ bid to paint dean Martyn Percy as a sex pest”, published on 9 January 2021. · “Can there be a truce in the bitter battle of the dean v Christ Church”, published on 17 March 2021. 2. This decision is written in general terms, to avoid the inclusion of information which could identify the complainant. 3. The articles reported on an investigation into a complaint made by the complainant and an ongoing dispute between the subject of the complaint and his employer. 4. The second article reported that an individual had been “accused of sexually assaulting a woman in Christ Church Cathedral after a Sunday service in October” and stated that the police had concluded there was not enough evidence to prosecute him. It also contained a quote from the Thames Valley police which stated that its investigation was concluded and gave the precise date of the alleged sexual assault. The article included a statement from Christ Church Cathedral. 5. The third article appeared online and gave the details of the allegation, saying that the Dean “paid her a compliment about her hair and stroked it for ten seconds without permission”. It also reported an indication of the time of the alleged assault; named the specific location in which it allegedly occurred; and gave information about the woman’s professional role. It described the police investigation in which both parties were interviewed and that a sample of the woman’s hair was taken for DNA analysis. The article reported on the woman’s Item 3 complaint and quoted directly from evidence she gave as part of the process about her emotional reaction to the event. It noted that an investigation had been undertaken by the employer of the subject of the complaint which had concluded that “on the balance of probabilities it is more likely than not that the incident did occur as alleged and that this is a safeguarding allegation”. The article also reported that the allegations were denied. Furthermore, it also commented on the ongoing employment law disputes between the subject of the complaint and his employer and the tensions between them over his approach to his professional role. 6. The fourth article appeared online and reported on accusations against the employer and how it was handling the allegations. It repeated the details, location and gave an indication of the time of the alleged assault. 7. The fifth article appeared in print and reported on the employer’s annual general meeting and the allegations which had been made against the employee, describing the detail of the allegations in addition to the location and indication of the time of the alleged assault. 8. The fifth article also appeared online in substantially the same format. 9. The complainant was the woman who had made the complaint. She said that in this series of articles, information had been published which would lead to the identification of her as a victim of sexual assault in breach of Clause 11. She said this information included: her gender; the date of the alleged assault; the specific location of the alleged assault; more precise information about her job role; specific details of the alleged assault; and that a sample of her hair had been collected by the police for DNA analysis. The complainant also said that other publications had published further details that could identify her: indicating her age and further information regarding her professional role. The details published in the articles under complaint were more likely to identify her as a result of this, via jigsaw identification. 10. The complainant said that the details enabled a wide circle of people with knowledge of the Cathedral and the way in which it was run, as well as those who regularly attended services at the Cathedral, to identify her. The complainant provided a detailed explanation as to how she considered that the information included in the series of articles, such as the location and timing of the alleged assault and other details of the circumstances surrounding the incident, was sufficient to enable those with this knowledge of the cathedral to narrow down the identity of the victim to her. 11. The complainant also stated that the third article intruded into her privacy in breach of Clause 2, as it quoted from the evidence she had provided in support of her complaint and the investigative report of the employer of the subject of the complaint, both of which she said were highly confidential and not available to the public. She said that she had a reasonable expectation of privacy in relation to the information contained in the report, including the comments she had Item 3 made about her reaction to the incident, which had been quoted by the publication. She noted that a redacted version of the complaint was published online on 1 June 2021 which did not include the published information. 12. The publication did not accept a breach of Clause 11 of the Code. It said that the information in the articles, whether considered separately or cumulatively, could not lead to the likely identification of the complainant as a victim of sexual assault. It emphasised that the word “likely” in Clause 11 indicated that there must be a real risk of this being the case. 13. The publication said that the date and nature of the incident had been taken from the police and employer’s public statements on the incident. The publication said that the Sunday services were well-attended and frequented by clergy, choristers, other singers and musicians, liturgical assistants, as well as cathedral staff and volunteers, and therefore giving the date and location of the assault would not lead to the likely identification of the complainant, given the large number of other attendees on the day. Further, it stated that anyone likely to identify the complainant from the articles would have to have special knowledge that would help them to deduce her identity. This was a very small pool of people who would likely already be aware of the complainant’s identity through other means. 14. The publication noted that the complainant wrote an anonymous letter to another publication, in which she described herself as “the woman who made the complaint about [named respondent]’s conduct in Christ Church Cathedral on October 2020” which was published in print and online. The letter repeated the date of the assault, specified who was able to enter the space in which the alleged assault occurred and indicated her approximate age. The publication emphasised that this letter would have been read by thousands of people, and repeated information about the date and location of the alleged assault which had appeared in its own coverage, and contained additional information about her age, connection with the Cathedral and the restrictions in accessing the place in which the alleged assault occurred. The publication said it could therefore be assumed that the complainant was satisfied that there was no likelihood of her being identified on the basis of the information in this letter, as she had chosen to disclose it herself. 15. The publication said it was clear from both the national and specialist press coverage it had attracted that the complaint was the subject of intense discussion amongst those interested in church affairs given the ongoing disputes between the subject of the complaint and his employer, and that knowledge of the alleged incident had been circulating amongst those close to the issues before any press reports were published. The college had felt obliged to release a statement on the subject on 9 January 2021, on the same date as the fourth article. This statement said that “since the complaint was made, there have been numerous attempts to identify, intimidate and gaslight the victim both directly and through the media”. The publication pointed to a number of Anglican blogs which stated explicitly what the college statement had implied: that the complainant’s identity