IPSO have rejected our complaint about Christopher Booker’s 11 March article concerning legal aid in Human Rights Act claims running in family proceedings. We had promised to publish the details of the complaint once the process had completed. We have asked IPSO to confirm they don’t object to us doing so. They haven’t replied so we assume they don’t mind.

The original blog post about this can be found here :

Just add this one to the pile…

The Booker article itself was charmingly entitled : In Britain’s secretive family courts, the lawyers always win.

We set out our original complaint here. It was based on Section 1 of the Editors’ Code : inaccuracy. Our updates to that post track the rejection of our complaint by The Telegraph (but in a small victory the addition by them of a link to the judgment itself), and the rejection of the matter by IPSO on 3 April.

The rejection says this :

I write further to our earlier email regarding your complaint about an article headlined “In Britain’s secretive family courts, the lawyers always win”, published by thetelegraph.co.uk on 11 March 2017.

On receipt of a complaint, IPSO’s Executive reviews it to ensure that it falls within our remit, and discloses a possible breach of the Editors’ Code of Practice. The Executive has now completed an assessment of your complaint under the terms of the Code. Having considered the points you have raised in full, we have concluded that your complaint does not raise a possible breach of the Code.

We noted your concern under Clause 1 (Accuracy) that the article was misleading because it implied that the conduct and outcome of cases in family law courts are driven by the financial interests of the lawyers and that it inaccurately characterised how family law works in practice.

You said that it was inaccurate to report that parents can have four or more teams of lawyers arguing against them, and that the lawyers can claim additional payments dependant on the number of documents used. The article was an opinion piece which discussed the payment of lawyers via legal aid funding in the family courts, and drew upon two examples which demonstrated the columnist’s opinion that lawyers are “at the front of the queue” when damages are distributed in family law cases. It is not disputed that it is possible for parents to have several teams of lawyers working against them, and that the lawyers can claim extra payment for documents. The newspaper made clear that this was a possibility, and not a certainty, by reporting that “…[lawyers] can claim extra payments…” and that “parents…can have four or more teams of lawyers…”. We did not consider that the omission of the exceptions to these rules rendered the article inaccurate, misleading or otherwise distorted. Your complaint did not raise a possible breach of Clause 1.

You also said that the article was misleading because when reporting on the awarding of damages, the article did not report that pursuant to Parliamentary regulations, the Legal Aid Agency receives fees from damages which the lawyers cannot control, and that lawyers in one of the cases in question made efforts to ensure that their clients received some damages. In circumstances where it is not disputed that under these regulations parents do not usually take precedence over lawyers in the awarding of damages, we did not consider that the omission of reference to this information rendered the article significantly misleading. Your complaint did not raise a possible breach of Clause 1.

You are entitled to request that the Executive’s decision to reject your complaint be reviewed by IPSO’s Complaints Committee. To do so you will need to write to us in the next seven days, setting out the reasons why you believe the decision should be reviewed. Please note that we are unable to accept requests for review made seven days after the date of this email.

We would like to thank you for giving us the opportunity to consider the points you have raised, and have shared this correspondence with the newspaper to make it aware of your concerns.

Best wishes, [our emphasis]

In other words, a polite “Go to Jail. Go directly to Jail. Do not pass Go. Do not collect £200”.

On 5 April we wrote as follows in response :

…We would like to request that your decision to reject our complaint is reviewed by the Complaints Committee.

We refer to our previous submissions but expand below.

Firstly, we would like to draw to the Committee’s particular attention the following extract from the Code itself :

The Code – including this preamble and the public interest exceptions below – sets the framework for the highest professional standards that members of the press subscribing to the Independent Press Standards Organisation have undertaken to maintain. It is the cornerstone of the system of voluntary self-regulation to which they have made a binding contractual commitment. It balances both the rights of the individual and   the public’s right to know.

To achieve that balance, it is essential that an agreed Code be honoured not only to the letter, but in the full spirit. It should be interpreted neither so narrowly as to compromise its commitment to respect the rights of the individual, nor so broadly that it infringes the fundamental right to freedom of expression – such as to inform, to be partisan, to challenge, shock, be satirical and to entertain – or prevents publication in the public interest. (our emphasis)

As previously indicated, whilst we may not agree with some of Mr Booker’s opinions, we have no interest in stopping him from holding or expressing those opinions, providing he does so accurately and without misleading or distorting on factual matters.

We are disappointed that your response appears to state, but then ignore, our overarching complaint that the article as a whole “was misleading because it implied that the conduct and outcome of cases in family law courts are driven by the financial interests of the lawyers and that it inaccurately characterised how family law works in practice”. Instead, the response to our complaint relies upon a narrow textual analysis of sentences taken in isolation without acknowledging the overall message behind the article, which we have made clear is what is inaccurate / very likely to mislead the public.

We would invite the committee to consider whether the average reader would understand from the article that the source of the identified injustice (claimants in Human Rights Act cases arising from family proceedings not receiving their damages) was the conduct or avaricious / self interested behaviour of lawyers or whether they would be able to understand that the injustice arises entirely from the operation of law. We don’t think they would understand that at all, and the text of the article, taken with the headline “In Britain’s secretive family courts, the lawyers always win” (where the use of the word “win” suggests that there is some element of competition or conflict between lawyers and their clients) and the picture of a multitude of lawyers gives the very clear pointer to the reader that lawyers are placing themselves at the front of the queue for payment.

Referring back to the preamble to the code, we think that if a journalist quite properly identifies and complains about an injustice, the public have a right to know what that basic facts underlying that injustice actually are. We would not expect an article of htis sort to go into any detail, but it would have been very easy to ensure the misleading impression was not created. It is not a matter for us to suggest how that could have been achieved, but to illustrate the point, for example it could have been achieved by identifying (as stated in the judgment e.g. pa 37) that it would be the state, via the Legal Aid Agency who would recoup their costs from the damages, rather than the lawyers (who would get paid in any event through legal aid) – or by identifying that in this particular case the claimants lawyers tried to avoid the damages being recouped (eg pa 53-54 but also elsewhere), and that the judgment gives examples of similar efforts in different cases. Or it could simply have been stated that this is what the law currently says must happen.

Mr Booker is well known to be antipathetic towards lawyers (indeed many of his columns are directly critical of them). He is entitled to be so, but this article must be read in the context of his known position on such matters. Even without that context – but particularly with it – the clear subtext of the article is that lawyers are behaving disreputably and taking money which ought to be going to their clients. For any readers who have not got this particular message by the end of the article, Mr Booker draws a direct comparison between family lawyers and the solicitors who were found guilty of serious misconduct in connection with coalminer compensation cases where they took fees out of compensation. The comparison is misleading, because in the coalminers example the misconduct arose from private contingency fee contracts the consequences of which were inadequately explained to clients, whereas in publicly funded cases it is the legal aid agency who controls the terms and funding structure. The subtext is misleading.

Although we are pleased that a link to the judgment has been added, we do not think that this cures the problem at all, because this is a technical and lengthy judgment which lay readers will not immediately understand or be able to use to identify independently of clear explanation where the article misrepresents the situation.

We request correction of the article and an apology with due prominence. We look forward to hearing from you / the panel in due course.

As previously indicated, we would like to publish the correspondence relating to this complaint in due course in the interests of transparency, but will not do so until the matter has been dealt with by IPSO.

Yours Sincerely,

Sadly, our further submissions reminding the Executive Committee about the importance of the spirit of the code and (to borrow a phrase from the Court of Appeal) the importance of “avoiding a narrow textual analysis” seems to have fallen on deaf ears :

…The Committee has considered your complaint, the email of 3 April from IPSO’s Executive notifying you of its view that your complaint did not raise a possible breach of the Editors’ Code of Practice, and your email of 5 April requesting a review of the Executive’s decision.

The Committee decided that your complaint did not raise a potential breach of the Code, for the reasons already provided by IPSO’s Executive. As such, it declined to re-open your complaint.

The Committee would like to thank you for giving it the opportunity to consider your concerns. 

Best wishes, [our emphasis]

Not even a potential breach of the Code? Really? We are concerned about how the inaccuracy provisions of the Editors’ Code are being apparently very restrictively interpreted by The Telegraph / IPSO.

Feature Pic courtesy of Mark Strozier on Flickr (Creative Commons) – thanks!