Cries Unheard (56 page)

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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.

2. 5 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 public’s right to know both of which are currently being guaranteed by the Human Rights Bill before Parliament.

2. 6 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

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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.

2. 9 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.

2. 10 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?

3. 00 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

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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? “

3. 1 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 eleven-year-old girl to kill two small boys … can we come any closer to stopping these crimes.”

3. 2 The Commission also noted that the newspaper was only serial ising 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.”

3. 3 The Commission noted that a recent review of the book, by Mary .

Margaret McCabe of the Department of Philosophy at King’s College London, had summed up the issue extremely well.

“Should this book have been 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.” (TLS, 17th July 1998).

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4. Mary Bell’s daughter

4. 0 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 harrassment 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.

4. 1 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.

4. 2 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.

4. 3 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.

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5. Payments

5. 0 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.

5. 1 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.

5. 2 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.

5. 3 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.

6. 0 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

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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.

6. 1 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 public’s right to know. It is a matter of broader public policy for Government and Parliament.

6. 2 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 the Government on the issues it has covered as a result of this debate.

6. 3 The complaints were not upheld.