As the song goes :

Fact checking across the universe
On the Starship Booker in search of the truth re Kirk
Fact checking across the universe
Only going forward to IPSO if he won’t amend his words

Lt. Uhura, report.
There’s Klingons on the starboard bow, starboard bow, starboard bow;
There’s Klingons on the starboard bow, starboard bow, Jim.

Analysis, Mr. Spock.
It’s law Jim but not as we know it, not as we know it, not as we know it.
There’s facts Jim but not as we know em, not as we know em, not as we know em.

There’s Klingons on the starboard bow, starboard bow, starboard bow;
there’s Klingons on the starboard bow, starboard bow, Jim.

Fact checking across the universe
On the Starship Booker in search of the truth re Kirk
Fact checking across the universe
Only going forward to IPSO if he won’t amend his words

Medical update, Dr. McCoy.
It’s worse than that, he’s wrong, Jim, wrong, Jim, wrong, Jim;
it’s worse than that, he’s wrong, Jim, wrong, Jim, wrong.

It’s law Jim but not as we know it, not as we know it, not as we know it.
There’s facts Jim but not as we know em, not as we know em, not as we know em.

Engineer, Mr. Scott:
Ye cannot change the laws of family, laws of family, laws of family;
ye cannot change the laws of CoP, laws of CoP, Jim.

Ah! We come in peace, correct your facts, correct your facts, correct your facts;
we come in peace, correct your facts; Scotty, beam me up!

There’s Klingons on the starboard bow, starboard bow, starboard bow;
there’s Klingons on the starboard bow, better calm down!

Ye cannot change the script Jim.
Och, #!*& Jimmy.

It’s worse than that, it’s secret, Jim.

Bridge to engine room, warp factor 9.

Och, if I give it any more we;ll blow, Cap’n!

Fact checking across the universe
On the Starship Booker in search of the truth re Kirk
Fact checking across the universe
Only going forward to IPSO if he won’t amend his words

Fact checking across the universe
On the Starship Booker in search of the truth re Kirk
Fact checking across the universe
Only going forward to IPSO if he won’t amend his words

We might have slightly changed the lyrics. But what’s a few words between friends?

Anyway, the point of this blog post was (before we got distracted) to tell you that since Barbara Rich wrote her recent blog post about the various inaccuracies in Christopher Booker’s column on 22 April (about the T Kirk case in case you were wondering what inspired our riff), we have lodged a correction request with The Telegraph via their complaints procedure.

Barbara’s blog is here :Christopher Booker’s St George’s Day Myth.

Our complaint is set out below, but largely mirrors Barbara’s blog. We will update when we hear back (See also our other recent forays into this territory : IPSO No Facto) :

Complaint Re Mr Booker’s article 22 April ‘A judge who will be sorely missed’

Our complaint is under section 1 Editors’ Code : inaccuracy.

 

Inaccuracies in Mr Booker’s article :


The assertion that Mrs Kirk moved her brother “quite legally” to Portugal.  Although Mrs Kirk had a personal welfare power of attorney for her brother, Mr Martins, it isn’t clear from any of the published judgments whether this had been suspended on the date of travel to Portugal.  In any event the move took place after the Court of Protection proceedings had started, and shortly before a hearing was due to take place on 30 April 2015.    In paragraph 11 of his judgment of 10 June 2016 in Devon County Council v. Martins, Mr Justice Baker said “… on the morning of the hearing before the district judge [on 30 April 2015], it emerged that Mrs Kirk had in fact taken Mr Martins out of the jurisdiction without notice to any professionals in the case. It is recorded that she had informed her solicitor that she was unhappy with the recommendations of the independent social worker. It is important to note that these travel arrangements were made without notice to the Official Solicitor, the local authority or the court and certainly without the permission of the court then entrusted with the decision-making responsibilities in respect of Mr Martins”.    The case was transferred to a High Court judge in June 2015 and between June and September 2015 orders were made for Mrs Kirk to return her brother to England, which she did not comply with. Therefore it is not at all clear that the move was legal and in the absence of evidence it is inappropriate to assert categorically that it was.


The assertion that Mr Martins was removed to Portugal “where he was born” is inaccurate. He was born in Madeira and had not previously lived in mainland Portugal. This is important because Mr Martins was not “going back” to the place of his birth.


Mr Booker characterizes Mrs Kirk’s “offence” as “refusing to sign an extraordinary document…to hand over her brother”. In fact it is incorrect to characterize Mrs Kirk’s behaviour as an “offence” : She committed a civil contempt by failing to comply with the terms of a mandatory order of the Court of Protection. She did not commit a criminal offence. The punishment of committal is available in any case of willful breach of a court order and not unique to the particular scenario (or to the Court of Protection) as the choice of words implies.


Mr Booker asserts that the court had ordered Mrs Kirk to return her brother to the UK “against his wishes”. This is inaccurate : the Court of Protection had determined in June 2016 that it would be in his best interests to return to Devon and that insofar as his wishes could be determined they would be to return to Devon, where he had made his home for many decades.  Mr Justice Baker accepted that a factor in favour of returning to Devon and placement in a care home in Sidmouth was that it would coincide with Mr Martins’ preferences when he had capacity.


It is inaccurate to state that there were three appeals (“two further appeals”) and that the appeals were instigated by Devon County Council. There were only two appeals in total, both instigated by Mrs Kirk herself appealing against judgments or orders made against her: one appeal against Mr Justice Baker’s decision of 10 June 2016 that it would be in Mr Martins’ best interests to return to Devon (“the welfare appeal”), and one against the judgment of Mr Justice Newton on 18 August 2016 on committal for contempt of court which led to her imprisonment (“the committal appeal”).


It is inaccurate to state that “each time” (i.e. on each appeal) the court ruled “against Devon County Council”.   Only the committal appeal was successful.  On the welfare appeal, on 8 November 2016 the Court of Appeal refused Mrs Kirk’s application for permission to appeal against the substance of the welfare judgment but granted her permission to appeal against the mandatory order to sign the discharge authorisation to the care home in Portugal in order for Mr Martins to return to Devon.   Ultimately this appeal was not determined on its merits but allowed by agreement of all parties (including Devon) because it had become redundant in the face of Mrs Kirk’s refusal to comply with the mandatory order.   


The following is significantly inaccurate : “Finally [Munby] ruled that Mrs Kirk, who since 2014 has spent all he savings over this dreadful episode, should not pay a penny.” The court ordered “no order for costs” in respect of the welfare application, meaning each party is responsible for their own costs. This would leave Mrs Kirk responsible for her own costs of this part of the proceedings. It is possible she will not in fact “pay a penny”, but this would be as a result of lawyers working for free and/or the grant of legal aid on the committal – and not as a result of any order to the effect that Mrs Kirk “should not pay a penny”.  On the committal application, Devon was ordered to pay Mrs Kirk’s costs, but on the standard basis, not the indemnity basis which she requested.  This costs order will leave her responsible for the difference between costs assessed on the standard basis and the full amount which she may have actually paid her lawyers.  Again, it is wholly inaccurate to paraphrase this as a ruling that she “should not pay a penny”.


Finally, the article is inaccurate in that it neglects to mention the significant criticism of Mrs Kirk in the various judgments of the Court of Protection and Court of Appeal for her open defiance of court orders made to (1) secure his return from Portugal after she had taken him there without the permission of the Court of Protection which had decision-making power over him in April 2015 and (2) to give effect to the Court of Protection’s decision in June 2016  that it would be in her brother’s best interests to be placed in a care home in Devon and not in Portugal.  Overall the article creates an impression that Mrs Kirk was entirely vindicated by the Court of Appeal. She was not.  She was released from imprisonment for contempt of court, and awarded the costs of her successful committal appeal.  As Lord Justice Munby observed, her success on the committal appeal “had little if anything to do with the underlying merits (or otherwise) of Mrs Kirk’s stance; it was largely to do with process”. Ultimately Mrs Kirk’s defiance of a court order was successful in that Mr Martins was not in fact returned to the UK before his death, but this was a success of obduracy, not of advocacy. In the final costs judgment which prompted Christopher Booker’s article, Lord Justice Munby expressed sympathy for Devon’s position, commenting “Devon County Council no doubt found itself in a very difficult position, conscientiously doing its best both to uphold the Court of Protection’s orders while seeking to perform its important safeguarding duties.”


In our view each of these individual factual inaccuracies is material, but taken together they are very significant. They all lend themselves to the tendentious reporting of this case. Mr Booker is entitled to a view on the case but we ask that his many factual inaccuracies are corrected with equal prominence to the original piece. All of the inaccuracies we have highlighted would be apparent to anyone who cared to read the publicly available judgments in the case and our commentaries on it at The Transparency Project. For further detail and links to all the judgments see our blog posts :


‘Teresa Kirk and the Court of Protection – the end of an “astonishing story”’, 20 February at https://www.transparencyproject.org.uk/teresa-kirk-and-the-court-of-protection-the-end-of-an-astonishing-story/ and ‘Christopher Booker’s St George’s Day Myth’, 23 April at www.transparencyproject.org.uk/christopher-bookers-st-georges-day-myth

UPDATE : We’d scarcely breathed before The Telegraph resoundingly rejected our complaint (first thing on 5 May). They said :

We are in receipt of your complaint on behalf of The Transparency Project concerning Christopher Booker’s comment within this article entitled “A Judge who will be sorely missed”.
 
The complaint is one of inaccuracy under clause 1 of the IPSO Editor’s Code. It is worth recalling at this stage two important elements of clause 1, firstly that the inaccuracies complained of must be significant and secondly that a distinction is made between comment, conjecture and fact.  
The article was clearly Mr Booker’s opinion as to the work and legacy of Lord Justice Munby and his impact in trying to reform the perceived failings in the Family Division and the Court of Protection. Mr Booker chose to illustrate why he personally holds Lord Justice Munby in such high regard, by reference to aspects of the case of Teresa Kirk, specifically her imprisonment for contempt of court. This is a topic of significant public interest and one on which Mr Booker is entitled to express his opinion. The right to freedom of expression includes the right to hold and express opinions with which others may disagree. It is also part and parcel of holding an opinion that you are entitled to select evidence or take a view on evidence that supports that opinion.
 
Responding to each element of your complaint:
 
1.       In respect of the comment that Mrs Kirk moved her brother “quite legally” to Portugal, you acknowledge that “…it is not at all clear that the move was legal ..” i.e. there remains doubt even on your expert analysis that the move may have been legal.  Mrs Kirk believed at that time that what she had done was legal and it was perfectly appropriate given his (well documented) support for Mrs Kirk for Mr Booker to adopt her view of the situation.
2.       The fact that Mr Martins was born in Madeira and not Portugal is not a significant inaccuracy.  The Portugese were in fact the first settlers in Madeira in 1419; Spain ruled Madeira and Portugal from 1580 to 1640; the British occupied Madeira with the agreement of Portugal from 1807 to 1814. In 1940 Portugal granted limited local autonomy to Madeira and regional autonomy from 1976. Even on this short historical analysis it can be seen that Portugal and Madeira’s histories and governance are entwined to the point of indivisibility.
3.       We do not accept that the use of the word “offence” in the context of a comment piece about the Family Division could or would be interpreted as meaning a criminal act.
In any event the definition of the word “offence” is not simply a criminal act but more colloquially “wrong doing” or simply ”wrong”. In our view it is clear to the reader that Mr Booker is referring to Mrs Kirk’s alleged wrong, not a criminal act.
4.       Mrs Kirk always believed that she was acting in the best interests of her brother and Mr Booker was therefore entitled to opine that the court’s order was against Mr Martin’s wishes as put forth by Mrs Kirk.
5.       The precise details of how many appeals there were (2 rather than 3) and the outcome in each hearing do not amount to significant accuracies. The fact that one hearing was compromised as opposed to not being determined on its facts is a minor point in respect of this comment piece and could in any event be characterised by supporters of Mrs Kirk as a win. The fact is that Mrs Kirk was subject to a number of court cases concerning objections by Devon County Council to her taking her brother abroad. As stated above this article was a comment on the legacy of Lord Justice Munby illustrated by a specific matter, namely the arrest and imprisonment of Mrs Kirk. No reader could be misled into thinking this was a detailed analysis of those court cases.
6.       We do not agree that the reference to the costs judgment is inaccurate. Mr Booker makes clear that Mrs Kirk has had to spend all her savings in dealing with this case i.e. she has incurred costs, but that in respect of the Court of Appeal, Colin Challenger represented her on a pro bono basis. Nevertheless, Mrs Kirk might have been held responsible for some of the costs of the appeal but she wasn’t, as Lord Justice Munby chose to make “no order for costs” i.e. “she should not pay a penny.”
7.       When commenting on his chosen example to illustrate the legacy of Lord Justice Munby, Mr Booker is entitled to select the evidence to support his opinion of Lord Justice Munby. In doing so there was no obligation upon him to reflect that Lord Justice Munby expressed some level of sympathy for Devon County Council’s position, nor did this make his view inaccurate.
In all the circumstances we do not believe that there has been any breach of clause 1 of the Editors’ Code.
We respectfully disagree. We’ve just submitted a complaint to IPSO. We will report back when we get rejected a response.
[Update 21 June : In fact, as a result of the involvement of IPSO, The Sunday Telegraph amended their article and issued a clarification saying :
CLARIFICATION: This article originally referred to Mr Martin’s proposed return to the UK as being “against his wishes”.  We wish to clarify that this was the opinion of his sister; Mr Martin was suffering from dementia and a psychiatrist appointed to assess his mental capacity in 2015 concluded that he “lacked capacity to make decisions about where he should live or arrangements for his care”. The reference has been removed. 

You can read the amended article and clarification here.

We understand that IPSO will publish a “resolution statement” in due course. We regret that we cannot publish the correspondence from The Telegraph that accompanied the above concession as The Telegraph has declined to give us permission to do so, and confidentiality of correspondence is a condition of IPSO becoming involved (ironic for a regulator dealing with a journalist who campaigns against secrecy). However we have asked that the resolution statement should set out these details. It should appear here in due course.]

UPDATE 30 July : IPSO recently published the resolution statement here.

Feature Pic : saturn by nasa goddard space center on flickr (thanks)