Scottish Sun cleared by PCC over payment to witness made after murder trial finished

The Scottish Sun has been cleared of breaching the Editors' Code by paying a witness in a murder trial.

The Press Complaints Commission has accepted the paper's explanation that the payment was made after the case had concluded.

Unusually, the investigation was launched on the PCC's "own volition". This means there was no specific complaint, but the PCC investigated off its own back after being made aware of the matter.

Here is the PCC adjudication in full:

The Press Complaints Commission investigated, on an own-volition basis, whether a payment by The Scottish Sun to a witness in a criminal trial breached Clause 15 (Witness payments in criminal trials) of the Editors’ Code of Practice.

No breach of the Editors’ Code was established.

On 21 August 2013, Joseph Townsley was convicted for the culpable homicide of Frank Baxter in May 2012. The Commission was made aware, via a separate complaint to the PCC, of an allegation that the newspaper had paid a witness in the case for associated material. It determined that this matter was best investigated on an own-volition basis.

The newspaper confirmed that it had made a payment to a witness in the trial, but denied any breach of Clause 15 on the basis that no payment or offer of payment had been made until the trial’s conclusion. It explained that in April 2013 the witness had provided material to the newspaper which was subsequently used for an article published in May 2013 (during the trial) and in the 22 August article. At this stage, the journalist had not offered a payment, nor had the witness requested one. On 22 August, the newspaper had been approached by a freelance journalist seeking to contact the witness in order to arrange for her to tell her story, for payment, to another publication. The newspaper contacted the witness seeking her consent to pass on her details. It was at this stage, it said, that she raised the issue of payment for the first time, asking if she might be paid by The Scottish Sun for the material she had previously provided. To support its account, the newspaper supplied a recording of its reporter’s conversation with the witness in April, in which no reference to payment was made by either party. It also obtained a statement from the freelance confirming that he had contacted the newspaper that day after seeing its coverage of the verdict and had contacted the witness via text that afternoon, having received her details from the newspaper with her consent. It stated that the call in which payment had first been mentioned – initiated in order to obtain her consent for her details to be passed on – had not been recorded.

The newspaper said that after the 22 August telephone call, senior editorial figures – including its Editor – had discussed whether a payment would be permissible under the Code and concluded that it was, because the case had concluded. It explained that it had agreed to the witness’s request for a retrospective payment because it hoped to maintain a positive relationship with her, potentially leading to future stories. It made clear that whilst such payments are not common, it was not a unique case.

The newspaper provided screenshots of its payments system to demonstrate that the witness’s details had been added to its payments system on 27 August 2013 and that the payment had been released in September 2013. The payments system contained three entries for payments to the complainant, each with a “payment due” date in September 2013. One payment contained a reference in the database to the May 2013 article; a second contained a reference to the 22 August article; and a third had no reference.

Adjudication
A payment, or offer of payment, made to a witness while proceedings were active would not only breach the Editors’ Code, but might affect the reliability of the witness’s evidence in court, with potentially serious consequences for the administration of justice.

The newspaper had accepted that it had paid the witness and was therefore obliged to demonstrate that in doing so it had complied with its obligations under Clause 15, which prohibits payment or offer of payment to a witness “until the suspect has been freed unconditionally by police without charge or bail or the proceedings are otherwise discontinued; or has entered a guilty plea to the court; or, in the event of a not guilty plea, the court has announced its verdict.”

The newspaper had made clear that a retrospective payment was not unprecedented and stated that the payment had been made with the intention of maintaining a strong relationship with the witness. The Commission was seriously concerned, however, that no contemporaneous record appeared to have been made of the timing or reasons for its decision. The newspaper’s payment system recorded that payments had been made for material published whilst the trial was ongoing; this had the clear potential to give rise to confusion. The Commission cautioned the newspaper that internal records should accurately and fully reflect the reason and timing of any payments made in cases that potentially engaged the terms of Clause 15. Whenever a payment is made to a person who has been a witness in a criminal trial – particularly when the proceedings are recent – a full contemporaneous record should be made.

Nonetheless, in this instance the Commission was satisfied on the basis of the evidence the newspaper had provided that the criminal proceedings were not active when payment was made to the witness.