Mr Mark Pollock of HM Prison Shotts complained that a photograph published in the Daily Record on 25 May 1998 next to an article headlined "Murder charge couple conceive baby in jail van" was obtained from his mother-in-law in breach of Clause 11 (Misrepresentation) and intruded into his daughter's privacy in breach of Clause 6 (Children) of the Code of Practice.
The complainant has been sentenced to ten years in prison for his part in killing a man. While on remand, he and his common-law wife Jennifer Stewart managed to conceive a child in the back of a prison van. The complainant alleged that a reporter researching the story had asked Miss Stewart's mother if he could look at some family photographs and that while the woman was out of the room had removed some negatives. The complainant said that the photograph which was subsequently published had therefore been obtained in breach of Clause 11 and that its publication, because it included his infant daughter, breached Clause 6.
The newspaper denied that it had employed subterfuge to obtain the photograph and said that Miss Stewart had volunteered both the story and the photograph. It supplied a copy of a letter sent to the newspaper by solicitors acting on behalf of Miss Stewart which sought payment for the material that she had supplied. The newspaper said that it had explained to the woman that she would not be paid as to do so would have breached Clause 16 (Payment for articles) of the Code.
The complainant said that he did not dispute that Miss Stewart and her mother had co-operated with the story but he said that Miss Stewart had opposed the use of any image of their daughter appearing in the newspaper.
The Commission noted that the complainant accepted that Miss Stewart had co-operated with the newspaper and that he had not denied that payment had been sought for the material supplied. For the newspaper to have made such a payment would have breached the Code and the Commission welcomed the fact that the editor had recognised this and had explained to Miss Stewart in terms of the Code of Practice his refusal to pay her. The Commission was pleased to note this example of the success of the Code in restricting criminals and their associates from benefiting financially from crime, and also noted that it would not have come to light had a complaint not been received about another matter. In the circumstances the Commission did not find that there was any case for the newspaper to answer under Clause 11.
The Commission noted that the solicitors' letter to the newspaper had been written following publication and that the objections contained in it were solely about the lack of payment rather than the inclusion of the infant in the published photograph. That letter had said that "our client advised us that she provided your Peter Laing with the story...". The Commission therefore accepted the editor's explanation that the material had been volunteered to the newspaper. The Code of Practice exists to afford protection to children from unnecessary intrusion but it also makes clear that there is a role for parents in consenting to details of their children being published. Although the complainant himself may not have been aware of the circumstances, the material had been given with the consent of the parent who was responsible for the child. The Commission was therefore satisfied that the terms of Clause 6 had not been breached.