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Broadcast Bulletin Issue number 50 - 19|12|05

Piccadilly Radio, Bloomberg LP, All New Newlyweds trail, Ramadan Radio, Coronation Street, Big Brother 6, Breakfast, Maths Test, Rome, Complaint by Mr Peter Halsey The National Trust, National Car Parks,Hypnotism Ruined My Life

Standards cases

Sanctions

Piccadilly Radio
Key 103 FM (Manchester), 10 & 19 October 2004 and 5 & 23 November 2004

On 24 November 2005, Ofcom published its decision to impose a financial sanction on Piccadilly Radio, in respect of its service Key 103 FM (Manchester) (“Key 103”) for breaches of the rule concerning offence to public feeling (1.1) of Ofcom’s Programme Code (ex-Radio Authority) and also of the rule concerning presenters’ views (1.4) of Ofcom’s News and Current Affairs Code (ex-Radio Authority).

For the reasons set out in the Decision, and taking into account two previous fines concerning similar breaches of the Codes by this licensee, Ofcom decided that Piccadilly Radio should be fined the sum of £125,000 (all fines are payable to HMG and once received by Ofcom are forwarded to The Treasury). Ofcom also directed the licensee to broadcast a statement of Ofcom’s finding at 17:00, 20:00 and 23:00 daily for a week, in a manner and form to be determined by Ofcom.

The full text of this decision can be found at: http://www.ofcom.org.uk/tv/obb/ocsc_adjud/key103.pdf


Bloomberg LP
28 April 2005

On 29 November 2005, Ofcom published its decision to impose a sanction on Bloomberg LP (Bloomberg TV) for breaching the requirement that licensees should maintain due impartiality on major matters (Section 3.3) of Ofcom’s Programme Code (ex-Independent Television Commission).

Taking all relevant factors into account, the Committee considered that a proportionate and appropriate sanction in this case was to direct Bloomberg TV to broadcast a statement of Ofcom’s finding on three consecutive days at 11:00 in a manner and form to be determined by Ofcom.

The full text of this decision can be found at: http://www.ofcom.org.uk/tv/obb/ocsc_adjud/bloomberg.pdf


In Breach

All New Newlyweds trail
TMF (The Music Factory), 20 October 2005, 16:11

Introduction

TMF is a pop music channel owned by MTV. A trail for the series All New Newlyweds featured a woman explaining to a shop assistant the meaning of ‘teabagging’. The complainant, who understood the term was slang for a form of sexual activity, considered that the material was unsuitable for broadcast at a time when children were particularly likely to be viewing.

Response

MTV replied that it checked the content of all trails before broadcast. The content of the Newlyweds trail had been edited, removing the reference to ‘balls’, to prevent viewers, especially children and young people, from understanding the definition of ‘teabagging’. The edited trail was not intended for broadcast when large numbers of children could be expected to be viewing unsupervised (typically between 16:00 and 19:00). The broadcaster considered it unsuitable for this “after school” slot because of the remaining mild sexual innuendo.

Unfortunately, the trail was incorrectly entered as “unrestricted” for broadcast in the TMF scheduling database and it was inadvertently broadcast at 16:11.

As a result of the complaint, MTV reminded the TMF scheduling team of the importance of double-checking broadcast restrictions. Furthermore, although it believed the restriction originally placed on the trail was appropriate, in light of the viewer’s complaint, the broadcaster withdrew it from daytime transmission to prevent any further offence.

Decision

We acknowledge that the trail was broadcast in error, and welcome MTV’s decision to withdraw the trail from daytime play. However, we consider that the original scheduling restriction placed on the trail was inadequate. The focus of the trailer was the explanation of the term ‘teabagging’. This term is used to describe a form of oral sexual activity and this was evident from the trail, despite the editing of the word ‘balls’. Such content is not suitable for broadcast at a time, and on a channel, that is likely to attract a child audience. The trail was, therefore, inappropriately scheduled.

Breach of Rule 1.3 (appropriate scheduling)


Ramadan Radio
Sheffield 87.7 FM, 9 October 2005, 22:00

Introduction

The licensee was granted a 28 day Restricted Service Licence in Sheffield from 4 October 2005 to 4 November 2005.

We received two complaints from people who had been offended by what they felt were unacceptable comments and music on the station.

Response

We wrote to the station on two separate occasions requesting a recording of the relevant content. The broadcaster failed to supply the recording we requested or to reply to any of Ofcom’s enquiries.

Decision

It is a condition of a licence that the licensee makes recordings of its output, retains them for 42 days and provides Ofcom with any recordings it requests. We are extremely concerned that the licensee failed to acknowledge receipt of our letters which made clear how serious this matter is, despite the letters having been sent by special delivery to all of the licensee’s known addresses. Of the three sent, one was confirmed delivered by Royal Mail, one remained uncollected by the licensee from the Post Office despite notification and one was returned marked “addressee unknown”.

The failure to supply recordings or to respond to correspondence from Ofcom is a serious and significant breach of a licence and will be held on record and taken into account should the licensee make any future licence applications.

Breach of Condition 8 of the Restricted Service Licence (Retention and production of recordings)


Coronation Street
ITV1, 3, 12 & 16 October 2005, 19:30

Introduction

In this popular soap, a storyline concerned Danny Baldwin’s affair with Leanne, his son’s girlfriend. His wife, Frankie, found out and confronted him. In later episodes, Danny’s ex-wife, Carol, arrived to find out what was happening as she believed their son Jamie was going to marry Leanne. Frankie broke down telling her about the affair and then Carol challenged her ex-husband about his behaviour.

In the episode on 3 October 2005, Frankie called Danny a “bastard”, having found out about the affair. In subsequent episodes on 12 and 16 October 2005, Carol referred to Danny as a “bastard” when goading Frankie and then called Danny a “bastard” during a row with him.

Viewers were concerned about the use of this language in a drama, which many watch with their children. In total, forty-one viewers complained about the use of this language. The majority referred to specific episodes:

  • 3 October 2005: 14 complaints
  • 12 October 2005: 3 complaints
  • 16 October 2005: 22 complaints

Response

ITV explained that such strong language was very rarely featured in a soap. When it was included, it was used sparingly and strictly in context. It must be compatible with both the nature of the character and their circumstances, and be justified editorially in maintaining plausibility and dramatic veracity.

The broadcaster stated that this was an intensely emotional storyline, which had been building for some time. When Frankie found out about the affair, inevitably there was an explosive scene with Danny. As a straight talking character, it was entirely appropriate for her to use this expletive as she lashed out at him.

In Carol’s case, ITV said that she was an embittered ex-wife, whose marriage had broken up due to Danny’s past affair with Frankie, and she was now an alcoholic. Carol saw her opportunity for revenge. Not realising whom Danny had been having an affair with, she accused Frankie of interfering in Leanne and Jamie’s lives just because Danny had been a “bastard”. At this, Frankie broke down and told her the real reason she objected to Leanne was because of her affair with Danny.

The broadcaster then explained that the final use was when Carol visited Danny and he rejected her drunken advances. Once again, a humiliated Carol retaliated by calling him a “bastard”.

ITV considered that each case was entirely justified, given the context and character involved. It was almost a year since this language had been used and, for this reason, the episode on 3 October 2005 had a pre-transmission announcement informing viewers that there would be “strong emotions and language”. Given the storyline, the broadcaster believed that such language had been used sparingly.

Decision

The Broadcasting Code states that there should not be “frequent use” of offensive language before the 21:00 watershed. The word ‘bastard’ has only been used infrequently in this type of drama. Last year we raised this issue with ITV, when the word was used in an episode involving Todd and Jason Grimshaw. We were assured by ITV that it would not become a frequent occurrence and that it had not been used in the previous two years.

We appreciate that this was a major storyline. The emotionally-charged scene between Danny and Frankie was the culmination of the dramatic tension that had been building as the affair progressed. We accept that the occasional use of this strong language may be justified within a dramatic storyline. The scenes with Carol, whilst confrontational, appeared more measured. While dramatically the use of this language may be plausible, the audience and the viewing environment is an important factor when assessing the suitability of offensive language. We know from audience research that viewers, when watching with children, are less tolerant of offensive language.

We concluded that the use of the word “bastard” in three episodes during a two-week period went beyond occasional use in a drama that appeals to a wide ranging audience including a significant number of children.

Breach of Rule 1.16 (Offensive language)


Resolved

Big Brother 6
Channel 4, various dates and times, 2005

Over this series there have been a number of complaints on various issues. On certain issues we requested a response from Channel 4. These are included below where applicable.

In summary, the substantive complaints were as follows:

Throughout the series

A number of viewers expressed concern about the welfare of the housemates. While acknowledging those concerns, we recognise that the participants in Big Brother are consenting adults who have actively agreed to take part in the programme, which is by now a well-established series. The majority of adults can make informed judgements about participating in such programmes and it is not for Ofcom (or the general public) to make that decision for them. People who participate in a programme (and others directly affected by a programme) do have recourse, if they feel that they have been treated unfairly in the programme or their privacy has been infringed without justification, to complain to Ofcom. In the course of considering such complaints, Ofcom may consider the circumstances surrounding the complainant’s agreement to participate. However, the legislation in terms of the area of fairness and privacy does not permit Ofcom to consider complaints made by the general public on the behalf of participants in programmes. We are therefore not able to consider complaints made by members of the public that these scenes/programmes infringed the privacy of the housemates or were unfair. Nevertheless, Channel 4 has acknowledged its duty of care towards the participants. Subject to the restrictions outlined above, it is still open to Ofcom, if it considers it appropriate, to consider complaints from viewers concerning issues of alleged “humiliation, distress or violation of human dignity” under Rule 2.3 (generally accepted standards) of the Broadcasting Code.

25 June 2005 , 21:10 (Maxwell & Science)

Introduction

In this episode Maxwell claims to have put scabs from his feet into Science’s breakfast.

32 viewers complained that:

  • the action was racially motivated;
  • Channel 4 had a duty of care and should have intervened on health grounds; and
  • this particular element should not have been broadcast as it was offensive.

Response

Channel 4 was not asked to comment on this issue.

Decision

In examining the offence likely to be caused by the suggestion that Maxwell had put scabs into Science’s food we noted that although Maxwell said that he put the scabs in Science’s food, this was not shown, there was no evidence that he did and he later denied it. There was nothing to support the suggestion that this was, in any event, racially motivated.

The Big Brother audience expect to see all aspects of inmates’ characters exposed during their stay in the house. They do not expect Channel 4 to keep key character information from them as they decide who to vote for. By including the suggestion by Maxwell that he had put scabs into Science’s food, Channel 4 offered viewers an insight into Maxwell’s character. This was, in the context of Big Brother, the sort of insight that viewers expect.

The programme was not in breach of the Code

3 July 2005 , 21:00 (Makosi & Anthony)

This episode featured a sequence in the pool which left some viewers with the impression that Makosi and Anthony had had sex.

In subsequent episodes, Anthony consistently denied that sexual intercourse had taken place. At one point, Makosi told other housemates that she could be pregnant and asked Big Brother to provide a ‘morning-after pill’. She later denied that she had had sex and discussed this with Anthony.

23 viewers complained that:

  • the scenes were unsuitable for children watching;
  • the sexual content was unacceptable, exploitative and/or in bad taste;
  • Channel 4 had a duty of care for the health and welfare of the housemates - particularly if Makosi were to become pregnant; and
  • the sequence itself, and Makosi’s later request for a ‘morning-after pill’, caused offence on moral and/or religious grounds (five complainants).

Response

Channel 4 said that the scenes were appropriately scheduled and advance information was provided to viewers, so that they could make an informed decision whether to view or not. Viewer expectation was also an important consideration.

The sequence in question occurred right at the end of the hour-long post-watershed programme, at approximately 21:56 . An on-air announcement informed viewers to “Expect strong language and scenes of a sexual nature here on 4” immediately prior to the start of the programme. At the start of the programme itself, a short sequence was shown of Makosi and Anthony kissing in the pool, with Craig heard to say “it’s just disgusting”, in order to both trail what was to come later in the programme and serve as a further indication to viewers of the nature of the programme. In part 3 of the programme, there was some sexual conversation between the housemates and the three female housemates were seen in the diary room clearly expressing an interest in sex that night, again alerting viewers to what was to follow in part 4.

Before the start of part 4, the on-air announcer reminded viewers to “Expect scenes of a sexual nature”. Fairly early in the part, some of the housemates were seen in the pool, with both Makosi and Orlaith topless. There was a gradual development of sexual tension and activity between Craig, Orlaith, Makosi and Anthony. Other housemates were sitting around the pool. The early scenes in the pool, prior to Craig’s arrival in it, were inter-cut with shots of an upset Craig talking to a sympathetic Derek inside the house. Later, the four housemates in the pool began to kiss each other (save for Craig and Anthony) and so it was clear to viewers that it was likely to develop from there.

Channel 4 said that Makosi and Anthony began to kiss passionately, with only their head and shoulders visible, and there was a close up shot of them doing so. This was at almost an hour after the start of the watershed, and Craig was heard to say “it’s just disgusting”, before getting out of the pool, laughing at what Makosi and Anthony were doing. However, apart from “some very slight movement” and shots of continued kissing between them, there was no clear indication at all (and certainly no view) of any form of genital contact and certainly not specifically of penetrative sex.

Immediately after this scene, Makosi was seen leaving the pool wearing her bikini bottoms (she had removed them much earlier), and Anthony, in conversation with Maxwell, denied having had penetrative sex with Makosi. Makosi was later heard telling Orlaith in the toilet that she did not have an orgasm. In subsequent episodes, Makosi expressed concern that she may have been pregnant, but Anthony consistently and steadfastly denied having had sex with her. In any event, what was actually seen by viewers almost an hour into the episode was not explicit by any means, and the sexual context had been very clearly and carefully warned of at every stage, such that viewers could not have been under any misapprehension as to the nature of the episode.

Decision

Despite wide speculation about whether Makosi and Anthony actually had sex, this is not the issue in question here. Much of television is artificial, leading viewers to believe they have seen something that did not occur.

The Code in force at the time of broadcast (ex Independent Television Commission) does refer to the need for care following the watershed in that: “there should be a gradual transition and it may be that a programme will be acceptable at 22:30 , for example, that would not be suitable at 21:00 . Decisions will also depend on the nature of the channel and the audience it attracts. Material which is particularly adult in nature should be scheduled appropriately and clearly signposted.”

Given the sexual content, we do have some concerns about the episode’s scheduled start at 21:00 , when the broadcaster could have anticipated that a number of children would be available, and eager, to view. However, we note that the more explicit scenes occurred at the very end of the hour long programme and there was not, therefore, an abrupt transition in the nature of the programme after the watershed. The information provided by Channel 4 both before the programme and before part 4 was clear and would have informed viewers of the likely content. Furthermore, the sexual scenes were not explicit and viewers were left to draw their own conclusions about what had taken place.

Although we recognise that some viewers were offended by this episode, and by the later request for a ‘morning-after pill’, the content of this series is by now well-established. We consider that the inclusion of this scene, following the development of the evening set out in the first three parts and combined with the information coming out of the preceding advertising break, would have been within the likely expectation of viewers.

We consider that, on balance, this episode was not in breach of the Code.

The programme was not in breach of the Code

28 July 2005 , 22:00 (Anthony & Craig)

Introduction

In this programme, the housemates were involved in a fancy dress event. At one point, Anthony was led from the dining area to a separate room by Craig.

53 viewers complained that:

  • Craig was making unwelcome advances towards Anthony who, they believed, was in no fit state to either consent or resist successfully;
  • there were issues related to the general misuse of alcohol; and
  • Anthony may have been at risk of having the effects of any alcohol made worse through being constricted by his costume (a wet suit).

Response

Channel 4 was not asked to comment on this issue.

Decision

In considering this material we examined whether the programme condoned, encouraged or glamorised the misuse of alcohol.

Soon after Anthony had been taken from the dining area by Craig, Big Brother called Eugene into the Diary room where he was asked to look after Anthony as he had, it would appear, drunk a lot of alcohol. We consider that Anthony’s demeanour made clear the effects of too much alcohol. As we explained earlier in this bulletin the welfare of a consenting adult participant is a matter for Channel 4 and the participant and not one for Ofcom, unless the individual concerned wishes to make a complaint about unfairness or infringement of privacy.

Although there is a risk in consuming alcohol when in a wet suit, we do not believe that the scenes depicted in this programme would have encouraged viewers to copy the behaviour.

The programme was not in breach of the Code

2 August 2005 , 22:00 (Kinga)

Introduction

This episode, which contained highlights from the previous day, prompted complaints when Kinga, who had been behaving outrageously throughout the evening, purportedly inserted the neck of an empty wine bottle into her vagina, to the shock of her housemates.

259 viewers complained that:

  • the sequence was inappropriate when children might have been watching;
  • the scenes were offensive and unacceptable for broadcast; and
  • Kinga could have injured herself.

We also asked Channel 4 to comment on concerns about condoning or glamorising dangerous behaviour and the likelihood of encouraging others to copy such behaviour.

Response

Channel 4 said that with this year’s Big Brother in particular, viewers were primed to expect the unexpected and the housemates’ behaviour was at times relatively extreme. Kinga was a latecomer to the house - another housemate’s voluntary departure allowed her to become a housemate proper with only 12 days of the competition to go. By Kinga’s own admission at her eviction interview with Davina, she had “watched a lot” of Big Brother before she went in because she “wanted to know what [she] would be in for”. Kinga was therefore uniquely placed to see how the housemates’ antics were being portrayed and perceived in this series.

The incident itself occurred when the housemates had been drinking. Anthony and Craig had had a heated argument some hours beforehand. Kinga began “behaving outrageously, making herself the centre of attention”. In simulating the beginning of a strip tease, Kinga took an empty wine bottle and said “shall I stick it up my fanny?” Kinga then appeared to insert the wine bottle into her vagina, despite the shocked reaction of her two housemates, Soon afterwards, Kinga said “I can’t believe I’ve just done that” and then claimed she was going to the garden with the wine bottle to “masturbate”. Kinga went into the garden and lay down. The programme ended with Anthony’s shocked face.

Channel 4 said that the incident with the wine bottle was discussed at a senior editorial level and was also referred up for legal advice. It was agreed that it was necessary to portray the behaviour, as not to have included any reference to or portrayal of the scene at all would have denied viewers, who may well have been voting in significant numbers, sufficient information about a significant event in the house at that time. Channel 4 accepted that this incident was a shocking one - that much was plain from the response of Craig and Anthony themselves. However, Channel 4 said a series of careful edits were agreed to ensure that only the minimum amount of potentially offensive footage was actually shown in the programme. Furthermore, the incident was shown in the final part of the programme, at approximately 22:45 .

The broadcaster said that its obligation was to ensure that, in consultation with the programme makers, it edited the sequences responsibly and appropriately and properly warned its viewers about the nature of the material they might see. To this end, the programme was preceded with the announcement “Here on Channel 4, tonight’s Big Brother. Expect strong language and things get a bit out of hand tonight, so expect some sexual scenes.” The warning was repeated into part 3, the announcer stating: “Back to Big Brother now, expect sexual scenes.” Channel 4 believed that it had given more than adequate information to help viewers understand that there would be sexual, but not sexually explicit, scenes.

Channel 4 said that the scene was responsibly edited and defensible by its context. The broadcaster said that, given the reaction of her fellow housemates, it did not accept that anything in the programme “condoned or glamorised dangerous or seriously antisocial behaviour” . It did not believe that anyone would be encouraged to copy such behaviour; if anything, quite the reverse.

In the programme broadcast the following night, it was clear that Kinga very much regretted her actions. Upon waking she told her housemates that she feared that her mum would think she was “a whore”. Craig said “don’t worry about it babes. It’s only watched by millions.” He then went on to tell Derek that he “missed a performance last night”. Makosi told Derek what Kinga was supposed to have done and that she had warned Kinga that she was “making a fool” of herself. Kinga then went to the diary room and told Big Brother that she had done “something awful yesterday – absolutely terrible”. She added that she regretted it and was embarrassed. Eugene later advised Kinga not to drink so much. It was clear from the following day’s events in the house that Kinga’s “performance” was a significant event which continued to affect the moods of the housemates and their reactions to her. In addition it was obvious that Kinga thoroughly regretted her behaviour and that the housemates concurred that it was a bad thing to have done. In Channel 4’s view, this reinforced the editorial importance of reflecting this event in the previous night’s programme and underlined the clear messages that this was not behaviour to be condoned or encouraged.

Decision

On the issue of exploitation:

While acknowledging these concerns, we recognise that the participants in Big Brother are consenting adults who have actively agreed to take part in the programme, which is by now a well-established series. The majority of adults can make informed judgements about participating in such programmes and it is not for Ofcom (or the general public) to make that decision for them. People who participate in a programme (and others directly affected by a programme) do have recourse, if they feel that they have been treated unfairly in the programme or their privacy has been infringed without justification, to complain to Ofcom. Of course, as Channel 4 agrees, this does not absolve the broadcaster from its duty of care towards those individuals, however for the reasons noted at the start of this Finding, we are not able to consider complaints made by members of the public that the scenes infringed Kinga’s privacy or exploited her.

On the issues of protecting the under eighteens and of Harm and Offence:

Channel 4 contend that younger viewers were protected by scheduling. In light of the time of transmission (the scene occurred at approximately 22:45 ) and the information given to viewers ( “Here on Channel 4, tonight’s Big Brother. Expect strong language and things get a bit out of hand tonight, so expect some sexual scenes.” and “Back to Big Brother now, expect sexual scenes.”) , we consider that the broadcaster had taken appropriate measures to protect younger viewers.

Big Brother is now in its sixth series and, as Channel 4 points out, the housemates are known to exhibit outrageous behaviour, including sexually outrageous behaviour. The sequence was carefully edited so that what occurred was relatively visually inexplicit. What Kinga was purportedly doing could only be deduced from her commentary and her housemates’ reactions. While the sequences may certainly have been shocking to some, it was broadcast late at night, in the context of a well known series which is dedicated to showing viewers what actually occurs within the house (however unpalatable that may be), and information was given by Channel 4 to alert viewers before the programme and also in the commercial break preceding the scene. For these reasons, the scenes in this programme were not in breach of the Rules concerning Offence in the Code.

Rule 2.4 of the Code states that “programmes must not include material… which, taking into account the context, condones or glamorises violent, dangerous or seriously anti-social behaviour and is likely to encourage others to copy such behaviour”.

We considered the question as to whether this incident amounted to dangerous behaviour. Even though the neck of the bottle did not break, Kinga clearly had been drinking, was precariously balanced on one of the sofas, and bearing down on the neck of a wine bottle. In our view this did amount to potentially dangerous behaviour.

As required by the Code, we then considered whether this behaviour was glamorised or condoned. Channel 4 argued that it was Anthony and Craig’s reactions that discourage Kinga’s behaviour. However, whilst shocked, (as Channel 4 say), Anthony and Craig are also amused by Kinga’s antics and do not intervene. Unlike the episode involving Anthony and Craig (28 July 2005), where the production team saw fit to intervene, there was no such intervention on this occasion either when Kinga was on the sofa or when she went to the garden saying she was going to masturbate with the bottle. It could therefore be argued that Big Brother’s failure to condemn such actions had the indirect effect of condoning them.

In considering finally whether it was likely that others would be encouraged to copy this behaviour we believe it was crucial that Kinga’s actions were not glamorised by the programme. She was depicted as being out of control and willing to give the impression (at the very least) that she was using the bottle to masturbate, in full view of the other housemates and the cameras. Later programmes made clear that she regretted this. For this reason, we consider that it was unlikely to have encouraged others to copy such behaviour.

In the event, we consider that, on balance, this episode was not in breach of the Code. However, we should stress that we only decided this ‘on balance’ and that our concerns were serious. This programme, in our view, along with the 3 July 2005 (Anthony and Makosi in the pool) programme, operated at the limits of acceptability in terms of potential harm and/or offence for a programme of this nature, broadcast on this channel and at this time.

The programme was not in breach of the Code

10 August 2005 , 20:00 (Craig & Anthony)

Introduction

In this episode, in the final week of the series, Craig was evicted. Despite warnings from Davina McCall not to swear, Anthony was heard to say "fuck” twice.

Three viewers complained that this level of language was unacceptable at this time of the evening.

Response

Channel 4 said that this episode in the final week of Big Brother 6 was broadcast live (with a five minute delay) as it involved the eviction of a housemate.  The majority of the programme comprised of edited inserts of action from the House from the previous day and apart from Davina McCall's links, the amount of live footage from the House and during the eviction amounted to approximately five minutes in total.

Although the amount of live material that was to appear in the programme was relatively short, it was considered prudent to record the programme with a five minute delay in order to ensure that any strong language could be edited out.  The live transmission was viewed prior to transmission, so that the precise time codes of strong language used by the housemates could be noted and the soundtrack dipped manually on the five minute delayed broadcast. 

Davina’s usual warning to the housemates not to swear, "Big Brother House this is Davina, you are live on Channel 4, please do not swear" has become her catch phrase. It was decided that, since the housemates would not necessarily be expecting an eviction on a Wednesday night, that this should be strengthened. Therefore when she addressed the house live, Davina said "Big Brother house, this is Davina, you are live on Channel 4. You must not swear. I repeat, you must not swear". Unfortunately, despite the reinforced warning the housemates nonetheless did use the f-word eight times when the programme went to the House to announce the eviction.  The precise time codes for all these instances were picked up and carefully recorded but regrettably, the editor failed to press the button at the correct time (which dips the sound during transmission) on two occasions and the word "fuck" could be heard by viewers.  The editor’s failed attempt can in fact be heard on both occasions, as there is a dip in sound immediately after the offending word is transmitted.

The word was spoken by Anthony on both occasions, one under his breath and one slightly louder.  Clearly, when Craig was unexpectedly evicted, Anthony was both shocked and disappointed. He obviously expressed his feelings with the use of strong language but the word did not appear in an aggressive or intimidating context. 

Immediately on hearing the use of strong language in the broadcast, Channel 4 took steps to arrange for the on-air continuity announcer to apologise at the conclusion of the programme (which was under five minutes later).  The following clear apology was made by the continuity announcer at the end of the programme:  

 ' Channel 4 would like to apologise for the strong language that you may have heard in this programme'

This was a case of simple human error rather than a failure in compliance procedures or in the Channel’s technical procedures.

Decision

While we understand the circumstances which led to the broadcast of swearing, the use of this language (“fuck”) was inappropriate pre-watershed. However extensive procedures had been put in place to try to avoid the broadcast of swearing and its inclusion was clearly the result of human error. In the circumstances we consider the complaints resolved.

Complaints resolved

12 August 2005 , 22.10 (Davina & Makosi)

Introduction

This was the series finale, in which the four remaining housemates were either evicted or, in Anthony’s case, declared the winner.

517 viewers, many of whom appeared to have written as part of a campaign, complained that:

  • Makosi was subjected to racial abuse on the catwalk outside the house
  • Davina MaCall treated Makosi unfairly and that this amounted, in their view, to racial discrimination

Response

Channel 4 was not asked to comment on this issue.

Decision

The coverage of Makosi’s exit interview, as broadcast, did not contain any audible racially offensive abuse from the crowd. While Davina McCall questioned Makosi’s deliberately provocative stance while she was in the house, there was no suggestion that any comment or criticism of her by the presenter was racially motivated.

The programme was not in breach of the Code

Racially offensive content – various dates

Introduction

During the series there was, for a time, a split between two groups of housemates. This was ostensibly along racial lines.

40 viewers over the series complained that:

  • racist elements were introduced or at least condoned by Channel 4 in order to increase ratings; and
  • various comments made by the housemates were racist in tone and consequently unacceptable.

Response

Channel 4 was not asked to comment on this issue.

Decision

In our view, due to the way the groups split, viewers were sensitised to the possibility that some of the comments that were uttered in the heat of the moment were racist.

It is not clear whether any of the comments made were in fact racially motivated. They could be seen as simply angry retorts. However, we considered whether the inclusion of such comments was justified by the context of the programme. The series’ editorial purpose is to explore how people behave when under pressure and cooped up with people of greatly differing personalities, backgrounds and outlooks. Being attacked in different ways, many of the housemates reveal their true selves, their insecurities and underlying feelings. Bigotry, expressions of racial differences and other antisocial behaviour may come to the surface.

In this regard, it is Channel 4’s function to observe and not to intervene, unless, in its view, the language becomes clearly unacceptable. Viewers spend many hours and a considerable amount of money voting for individuals; it is the broadcaster’s responsibility - as it argues elsewhere - to ensure that the viewer gets an accurate picture of each housemate and not one editorialised by the producers. It also offers viewers, unpalatable though it may be, a window on what some complainants believed to be the unacceptable attitudes of some members of society.

In this context and on balance, we do not believe that the programmes in which they appeared (either before or after Ofcom’s Broadcasting Code coming into effect on July 25 2005 ) breached the ex- ITC Code on matters of offence against minority groups, or the Broadcasting Code on offence.

The programme was not in breach of the Code


Breakfast
BBC1, 4 October 2005, 07:48

Introduction

A viewer complained about offensive language during an interview on BBC Breakfast . In an item about the dangers of children being exposed to adult themes, an interviewee made reference to the FCUK advertising that appears on some children’s clothing and described it as “an anagram of fuck”.

The complainant was also concerned at the delay in making an on-screen apology.

Response

The BBC said that it had no reason to suspect that this particular interviewee would use offensive language on air, and its transmission was regretted.

Nevertheless, the word was not in any case used in a gratuitous or abusive way. Instead, it went to the heart of the issue in question – the pressures imposed on parents by an “anything goes” society. For that reason, it was decided not to interrupt the interview to make an immediate apology, but to wait until the end of the item to apologise.

The BBC also spoke to the interviewee, who was very apologetic after the programme. The editor of the Breakfast programme also apologised on the BBC ’s feedback programme, Newswatch.

Decision

Although certainly regrettable, we accept that the BBC could not have foreseen its use in this particular case. In the circumstances, we believe the incident was handled appropriately by the editorial team.

Complaint resolved


Maths Test
Quiz Call, 7 September 2005, 16:23

Introduction

The Maths Test game showed on-screen graphics which asked viewers to “find the solution” to the following equation: 2 ? 2 = 4. Four symbols were shown below the question: +, -, x and /. A viewer complained that the presenter had misled viewers by asking, “Which symbol is correct?”, when the required correct answer was two symbols (+ or x).

Response

Channel 4 confirmed that, where more than one symbol could have been used, internal Quiz Call rules specified that the presenter should have asked: “Which symbols are correct?” It confirmed that all producers are instructed to brief the presenters on what must be stated on-air for each game and that, regrettably, the producer had failed to do so in this case. However, the broadcaster assured us that both the producer and presenter had been briefed at a senior level and provided with further training. It added that no future Maths Test games would have more than one symbol as a possible solution. In future, it would also apologise on air for mistakes where callers had provided correct answers that had not been recognised as such on air, requesting those callers to use the customer care number so that they could be awarded the prize money.

The broadcaster was keen to assure us that it sought to provide “engaging programming that has integrity.” It believed that its quizzes were conducted fairly, prizes were described accurately and rules were clear and appropriately made known, as required by Rule 2.11 of the Broadcasting Code. However, it sought to respond to viewers’ perceptions, always

Decision

After the presenter had asked, “Which symbol is correct?” three callers who had successfully reached the studio gave one of the correct symbols as their answer. Following the presenter’s clarification that he was looking for more than one symbol, a further caller stated only one of the correct symbols before the challenge was finally solved. The presenter’s initial question therefore appeared to have misled some callers. However, we welcomed the broadcaster’s actions and assurances, which we believe minimise the risk of a similar occurrence and consider the matter resolved.

Complaint resolved

Information about the ICSTIS consultation concerning TV quiz channels/programmes using premium rate lines was published in Bulletin 46


Not in Breach

Rome
BBC2, 2 November 2005, 21:00

Introduction

The first episode of this new 11-part drama attracted 25 complaints. Most viewers objected to the general tone of the drama, some describing it as pornographic. Some viewers also considered that the violence was unacceptable in a programme shown immediately after the 21:00 watershed - one viewer complaining about a rape scene and another the religious sacrifice of a bull.

Decision

The first episode set out the historical context of the power struggle between Julius Caesar and Pompey. Julius Caesar’s victorious war in Gaul was undermining Pompey’s political power in Rome.

With this background established, the Roman soldiers were seen in battle defeating the tribes in Gaul . The violence showed the brutality of war but it was not gratuitous and did so without dwelling on any graphic images. A scene of rape was not shown in detail. No close up shots were shown and the focus was on the other soldiers’ impatience to return to Rome . The other scenes of violence were limited, set in this historical context and were unlikely to encourage imitation.

The sexual elements in this episode were frank, but not overly explicit for this time of evening. The drama showed the matter-of-fact attitude to sex of the ruling class as, in some cases, sex was used to further political or social aspirations. One of the main female characters, Atia, sister of Julius Caesar, appeared to have no scruples in using sex as a bargaining tool to achieve her ends. Although there was some nudity in these sexual encounters, the scenes did not concentrate unduly on the sexual activity. Atia’s son, Octavian, was a teenage boy and his mother discussed political matters with him whilst taking a bath. She saw no embarrassment in the situation, whilst he was not comfortable with his mother’s attitude towards nudity and sex, as well her political machinations. Following her son’s dispatch to Gaul , Atia is seen praying for him as a bull was sacrificed above her, covering her in blood. This was presented in the context of a religious ritual. The sacrifice was not seen in detail.

Later on in the episode, Pompey attended a play in a marketplace. On stage, a character wore an exaggerated phallus. As the play continued in the background, Pompey was introduced to a potential wife, who commented on the crudity of play to signify that she was highborn.

We appreciate that this content may not be to every viewer’s taste, as it attempted to portray Roman life. However the drama had received widespread publicity about this approach. An announcement informed viewers that:

The battle to rule an empire begins now, and with so much at stake, it gets pretty bloody. So, expect language, sex, violence and scenes of ritual animal slaughter as an epic new drama unfolds and BBC 2 enters Rome .

We considered that the pre-publicity, the announcement and the build up within the drama would have given parents and carers sufficient information to make a considered decision about whether to allow children to view this programme. After 21:00 it is generally accepted that more adult material may be shown and, in our view, the content did not go beyond viewers’ expectations for programming at this time of the evening, in the context of this historical drama set in Rome .

The programme was not in breach of the Code


Fairness and Privacy Cases

Upheld in Part

Complaint by Mr Peter Halsey
The National Trust, BBC4, 17 & 18 April 2005

Summary: Ofcom has upheld one part of this complaint of unfair treatment.

Mr Halsey complained that he was treated unfairly in The National Trust. The programme told the story of the, eventually successful, attempts of the National Trust to buy Tyntesfield House. The programme included the story of Mr Peter Halsey, who, during the course of the National Trust’s negotiations, spoke to newspapers of his belief that he was related to the recently deceased Lord Wraxall (the second Lord Wraxall), owner of the house, and therefore perhaps the heir to the property. Lord Wraxall was a member of the Gibbs family. During the filming both Mr Halsey and an unidentified male member of the Gibbs family underwent DNA testing to see whether it could be established that Mr Halsey was correct in his belief. The results of this testing were included in the programme, which also included footage of interviews with Mr Halsey.

Ofcom concluded that:

  1. Viewers were unlikely to have formed the impression that Mr Halsey was himself illegitimate. He explained in the programme that he believed his father was the illegitimate son of the first Lord Wraxall.
  2. The programme gave the false impression that Mr Halsey accepted the results of the DNA testing as conclusive proof that he was not related to the first Lord Wraxall, when it was clear from the rushes that he did not accept this. The extract of his interview included in the programme did not fairly represent the views he expressed in the full interview.
  3. A reference by Mr Halsey to Tyntesfield having “gone forever” was not taken out of context or edited unfairly.
  4. The somewhat dismissive manner of Mr Tim Knox, an architectural historian at the National Trust, was the same throughout the programme. Mr Halsey was not treated any differently and was able to give his side of the story in a dignified manner.
  5. The relatively light tone of the programme and the music that accompanied it remained the same throughout. Mr Halsey was not treated any differently, nor was he ridiculed. He was able to explain in the programme his motivation and his feelings about Tyntesfield.

Introduction

This programme told the story of the, eventually successful, attempts of the National Trust to buy Tyntesfield House, a Victorian property of historical significance, and to open it to the public. The programme included the story of Mr Peter Halsey, who, during the course of the National Trust’s negotiations, spoke to newspapers of his belief that he was related to the recently deceased Lord Wraxall (the second Lord Wraxall), owner of the house and therefore perhaps the heir to the property. Lord Wraxall was a member of the Gibbs family. During the filming both Mr Halsey and an unidentified male member of the Gibbs family underwent DNA testing to see whether it could be established that Mr Halsey was correct in his belief. The results of this testing were included in the programme, which also included footage of interviews with Mr Halsey.

Complaint

Mr Halsey’s case

In summary, Mr Halsey complained that he was treated unfairly in that:

  1. He was referred to in the programme as an “illegitimate claimant” to Tyntesfield, when he was not illegitimate and had not made any claim to the property, whether legitimate or illegitimate.
  2. Viewers were led to believe, wrongly, that the DNA testing carried out on Mr Halsey and the anonymous member of the Gibbs family proved that he had no connection with the Gibbs family. Although it was made clear by the consultant haematologist who appeared on the programme that no conclusion could be drawn from a negative result where a third party was involved, the programme gave the impression that the results proved positively that there was no connection between Mr Halsey and the first Lord Wraxall, who Mr Halsey believed was his father’s father. It was clear from the untransmitted footage that all involved were made fully aware that it was not the case that the results showed that the relationship claimed was impossible. A remark Mr Halsey made when receiving the results from the haematologist, “that says it all really”, was used out of context in the programme.
  3. A remark in the programme, in which Mr Halsey said “It’s gone forever now”, was edited unfairly, as what he actually said was “It’s gone forever now from private ownership”. It was clear from the untransmitted footage that he was not interested in being the owner of Tyntesfield, but was interested in the welfare of its folk and the preservation of it as part of the UK ’s heritage.
  4. Mr Tim Knox, an architectural historian at the National Trust, made disparaging remarks about Mr Halsey, saying that he felt sorry for him and referring to him breaking rocks for a living in Cornwall . He queried why Mr Halsey was making the claim when he said he would give the estate away anyway if he were successful in his claim. What Mr Halsey had said was that, if successful, he would give the estate to the National Trust.
  5. The tone of the programme and the music that accompanied it ridiculed him.

The BBC ’s case

In response, the BBC said :

  1. The programme did not directly describe Mr Halsey as an “illegitimate claimant”. The phrase was used in a line of commentary that said “The press hijacked the event with the story of an illegitimate claimant to Tyntesfield, a Cornish carpenter”. The commentary was a fair summary of newspaper coverage. There was no implication that Mr Halsey was himself illegitimate. He explained less than two minutes later in the programme that it was his father who he believed was the illegitimate son of the first Lord Wraxall.
  2. During the making of the programme, Mr Halsey and an acknowledged direct descendant of the first Lord Wraxall underwent the same DNA test. The result showed that the claimed relationship was impossible. The haematologist who carried out the test said, in response to the complaint,
  3. “The differences we found means that this person and Mr Halsey CANNOT share a common paternal ancestor. Of course the problem is that we have to depend on the truth that the other man we tested is paternally related to the ancestor in question – and there seems to be no reason to doubt that”.
  4. There were only two possible explanations of the DNA test results. Either Mr Halsey was not a direct male descendant of the first Lord Wraxall or a female forbear of the individual concerned bore an illegitimate son. The Gibbs’ family assured the programme makers that there were no illegitimate sons in the family. The DNA results undermined Mr Halsey’s claim and that fact had to be reported accurately in the programme. The rushes show Mr Halsey receiving the news that the DNA test had not turned out well for him. Two small sections of the interview where he expressed regret at the result were edited out, but his remark “I think that says it all really” was his genuine reaction. This editing was not unfair.
  5. Untransmitted footage was also available in relation to the section of the programme in which Mr Halsey said “It’s gone forever now”. In this interview, he expressed his feelings about Tyntesfield. Although he qualified his remark, he did so only belatedly, perhaps realising he had unintentionally revealed his true feelings, and went on to say “Well, not gone, I mean, it’s never going to be on the market again”. The interviews with Mr Halsey left no room for doubt that what he regretted most of all was the fact that he did not inherit Tyntesfield.
  6. Mr Knox made no deliberately disparaging remarks about Mr Halsey and, although his tone might be taken as somewhat mocking, it was the same throughout the programme. However, Mr Knox began by expressing sympathy and then going on to speculate as to what might be behind Mr Halsey’s claim.
  7. The tone of the programme was not deliberately disrespectful to Mr Halsey. The same light tone was used in relation to almost everyone and everything in the programme. The programme makers meant no disrespect to him and went to considerable lengths to help him and to construct the programme to respect his feelings. The programme did not ridicule Mr Halsey. It adopted a generally light tone and the music chosen matched that tone.

Decision

Ofcom’s statutory duties include the application, in the case of all television and radio services, of standards that provide adequate protection to members of the public and all other persons from unfair treatment and unwarranted infringements of privacy in programmes included in such services.

In carrying out its duties, Ofcom has regard to the need to secure that these standards are applied in a manner that best guarantees an appropriate level of freedom of expression. Ofcom is also obliged to have regard in all cases, to principles that require regulatory activities to be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.

In this case, Ofcom found the following:  

  1. Ofcom noted that the programme referred to Mr Halsey as an “illegitimate claimant” to Tyntesfield, suggesting, as had various newspaper reports that the programme makers relied on, that his claim to the property was illegitimate. Ofcom considered that viewers were unlikely to have interpreted this phrase as suggesting that Mr Halsey was himself illegitimate and, in any event, he explained a minute later in the programme that it was his father who he believed to be the illegitimate son of the first Lord Wraxall. This was not unfair to Mr Halsey.
  2. The impression was given in the programme that Mr Halsey accepted the DNA test results as conclusive. The edited version of the interview after Mr Halsey had received the DNA result cut from the haematologist saying “…all that means is that you don’t share a common paternal ancestor” to Mr Halsey saying “Well that’s a shame”. This and the following comment by Mr Halsey, “Well that says it all really”, in Ofcom’s view, gave the impression that he accepted the results as proof that he was not related to the first Lord Wraxall. In fact it was clear from the untransmitted footage that he was aware of potential limitations on the results, based on testing only two people, and he did not accept that the results proved he was not related to the first Lord Wraxall. The edited exchange omitted comments by Mr Halsey, which in the context of the wider interview indicate his awareness of the limitations of the test. After the haematologist explained “…all that means is that you don’t share a common paternal ancestor,” Mr Halsey interjected twice as follows “Yes, with this person...“ and “whoever it might be...”. Irrespective of the broadcaster’s interpretation of the result, this did not fairly represent Mr Halsey’s views as given in the full interview. This resulted in unfairness to Mr Halsey in the programme as broadcast, since the programme did not fairly represent Mr Halsey’s view on this issue.
  3. Having viewed the untransmitted footage, in which Mr Halsey appeared to express regret that the property was being sold to the National Trust, Ofcom took the view that his reference to Tyntesfield having “gone forever” was not taken out of context or edited unfairly. Although he went on to say “Well, not gone, I mean it’s never going to be on the market again”, he did give the impression in the untransmitted footage that he felt some disappointment that he would not inherit Tyntesfield. It was therefore not unfair for this to be included in the programme.
  4. Mr Knox’s manner throughout the programme was somewhat dismissive. He treated the story of Mr Halsey in the same way. This was in keeping with the light tone of the programme generally and was not unfair to Mr Halsey. The footage of Mr Halsey in the programme showed him contributing to the programme in a dignified manner and giving his side of the story. This reduced any negative impact of Mr Knox’s reference to him.
  5. The relatively light tone of the programme and the music that accompanied it remained the same throughout. Mr Halsey was not treated any differently from others who appeared or were referred to in the programme, nor was he ridiculed. The rushes were extensive and the programme makers could not include everything he said, but he was given an opportunity to explain in the programme his motivation and his feelings about Tyntesfield.

Accordingly, Ofcom upheld one part of the complaint of unfair treatment.


Not Upheld

National Car Parks
Whistleblower, BBC1, 1 June 2005

Summary: Ofcom has not upheld this complaint of unfair treatment about ‘Whistleblower’ which documented the experiences of an undercover journalist who worked as a Parking Attendant and included serious allegations about the conduct of a Parking Attendant employed by National Car Parks Limited (“NCP”).

Ofcom found the following:

  1. The BBC provided NCP with an appropriate and timely opportunity to respond to the allegations made against it in the programme.
  2. Ofcom considered that NCP’s statement, although edited for broadcast, was presented in a fair and appropriate manner. The statement, as broadcast, faithfully represented the views of the NCP in relation to the allegations made against it in the programme.

Introduction

Whistleblower documented the experiences of an undercover journalist who worked as a Parking Attendant (“PA”) with the firm APCOA for four months. During the course of his investigation, the journalist secretly recorded other PAs who appeared to be involved in a range of inappropriate behaviour including corruption, criminal activity, illegal tickets, theft of vehicles and bribes. Part of the programme featured a PA called Joseph who worked in Westminster for National Car Parks Limited (“NCP”). In the programme Joseph was shown apparently clearing parking fines for a cash fee. An edited statement made by NCP was also featured in the programme.

NCP complained that it was treated unfairly in the programme as broadcast.

Complaint

NCP’s case

In summary, NCP complained that it was treated unfairly in the programme as broadcast in that:

  1. the programme-makers failed to provide NCP with sufficient information, about the allegations that were to be made in the programme, for it to make a “considered response” to them. Specifically, the BBC failed to tell NCP the nature of the fraud the NCP staff member was carrying out, though it was clear from the broadcast that it was a credit card fraud. Had NCP been given this information before broadcast they would have been happy to go on camera to respond fully; and,
  2. NCP’s written statement was edited to omit the point that the programme-makers had given it too little information about the allegations included in the programme for NCP to respond in any meaningful way.

The BBC ’s case

In summary the BBC responded to NCP’s complaint as follows:

  1. NCP was not disadvantaged by the fact that the programme team did not tell the company what they knew of Joseph’s ‘modus operandi’. Details of the fraud were immaterial to NCP as employer of the perpetrator, and the information provided to NCP was sufficient for them to give a meaningful response on what was, for the company, a serious disciplinary matter. The fact that credit cards were apparently involved in the fraudulent behaviour did not invalidate any of NCP’s statement, nor was it detrimental to the company’s ability to provide a response addressing the allegations made in the programme.
  2. b) The BBC did not agree that there was any unfairness to NCP in omitting their point about being given too little information to respond in a meaningful way. The substantive part of NCP’s statement was included in full, which was sufficient information to reply to the allegations.

Decision

Ofcom’s statutory duties include the application, in the case of all television and radio services, of standards which provide adequate protection to members of the public and all other persons from unfair treatment in programmes included in such services.

In carrying out its duties, Ofcom has regard to the need to secure that the application of these standards is in the manner that best guarantees an appropriate level of freedom of expression. Ofcom is also obliged to have regard in all cases, to the principles under which regulatory activities should be transparent, accountable, proportionate and consistent and targeted only at cases in which action is needed.

In this case Ofcom found the following: 

Where a programme alleges wrongdoing or incompetence, or contains a damaging critique of an individual or organisation, those criticised should normally be given an appropriate and timely opportunity to respond to or comment on the arguments and evidence contained within that programme. This programme included serious allegations relating to the actions of one of NCP’s employees which were capable of adversely affecting the reputation of NCP.

  1. In the circumstances, Ofcom examined whether the programme-makers provided NCP with an appropriate and timely opportunity to respond. In particular, Ofcom considered whether NCP were given sufficient information about the allegations to be included in the programme to enable NCP to make a considered response. Ofcom noted that programme-makers first wrote to NCP on 13 May 2005 (2 weeks prior to broadcast) and again on 16 and 18 May 2005 . In Ofcom’s view, the correspondence clearly outlined the allegations which the programme intended to make, including details of the evidence collected from their undercover investigation. In particular, Ofcom noted that on 18 May 2005 the programme-makers informed NCP that:

    “The allegations are twofold: Firstly, that one of NCP 's parking attendants repeatedly took our cash to clear parking tickets or remove clamps. He did this in public places, while on duty and in uniform. We allege that he is using his position as a parking attendant to engage in criminal activity for personal profit.

    Secondly, we allege that the fact that the parking attendant is able to do this in such a public way points to serious mismanagement by NCP in failing to properly supervise its staff.”

    In Ofcom’s view, the programme-makers provided NCP with sufficient time and information concerning the allegations to be included in the programme to enable NCP to respond properly. Ofcom therefore found no unfairness to NCP in this respect.

  2. Ofcom considered that NCP’s statement, although edited for broadcast, was presented in a fair and appropriate manner. In reaching this decision, Ofcom noted that the statement, as broadcast, faithfully represented the views of the NCP in relation to the allegations made against it in the programme. As Ofcom found that NCP were provided with sufficient information to respond properly it was not necessary, in the interests of fairness, to broadcast NCP’s claim that they had been given “too little” information. Ofcom therefore found no unfairness to NCP in this respect.

Complaint by Mrs Pauline Connorton on her own behalf and on behalf of Mr Brian Perry

Brinks Mat – The Greatest Heist, Channel 4, 24 November & 1 December 2003

Summary: Ofcom has not upheld a complaint of unfair treatment and unwarranted infringement of privacy about this two–part dramatised documentary examining Britain’s biggest robbery at the Brinks Mat warehouse in 1993. The programme examined, among other things, the role played by Mr Brian Perry who was found guilty of conspiracy to handle stolen goods and was sentenced to nine years imprisonment.

Ofcom found the following:

  1. it was fair for the programme to state that Mr Perry made money from prostitutes. Court transcripts demonstrated that Mr Perry did receive money from prostitutes for services provided;
  2. it was reasonable for the programme to suggest that Mr Perry was responsible for intimidating key witnesses in the trial of Mr McAvoy given that it was supported by police sources;
  3. the programme fairly portrayed the belief of Mrs Kathy Meacock that Mr Perry was tapping her phone;
  4. it was reasonable for programme-makers to suggest that Mr Perry took part in the Brinks Mat Robbery, given the information available to them from Mr Perry’s own legal Counsel Jonathan Goldberg QC, senior police sources and Mr McAvoy, the ring-leader, and given Mr Perry’s proven close ties to the robbery;
  5. it was fair for the programme to show Mr Perry speaking on the witness stand and taking medication whilst in prison. Court transcripts showed these events did occur;
  6. the programme did not portray Mr Perry as an uncouth, unshaven, foulmouthed individual; and,
  7. there was no unfairness to either Mr Perry or Mrs Connorton by the inclusion or depiction of Mr Perry’s murder.

Introduction

Brinks Mat – The Greatest Heist , a two-part dramatised documentary, looked at the planning, execution and aftermath of Britain ’s biggest robbery (that took place in the Brinks Mat warehouse near Heathrow airport in 1983). The programme was introduced as a “true story” and included contributions from investigating officers and witnesses as well as dramatised reconstructions using actors. The programme examined, among other things, the role played by Mr Brian Perry who was found guilty of conspiracy to handle stolen goods and was sentenced to nine years imprisonment. Mr Perry was murdered in 2001. Mr Perry was described in the programme as being an old friend of robbery ring leader Mr Michael McAvoy and a “gentleman villain”, who made his money from “taxi cabs and prostitutes”. It was suggested in the programme that Mr Perry had been responsible for intimidating the key witness, the bugging of telephones, management of the trading of stolen gold, laundering of the proceeds and as a possible participant in the robbery itself. Using an actor, the programme depicted Mr Perry after his arrest and following his trial. The programme also included a re-enactment of his murder.

Mrs Pauline Connorton, Mr Perry’s sister, complained on her own behalf and on behalf of Mr Perry that they were treated unfairly in the programme as broadcast. Mrs Connorton did not appear in the programme.

Complaint

Mrs Connorton’s Case

In summary, Mrs Connorton complained that she and Mr Perry were treated unfairly in that:

  1. the programme claimed that Mr Perry made money from prostitution when Mr Perry had never been associated, charged or convicted with soliciting. Mr Perry offered a taxi service for an escort agency, Eve International. He admits being paid by the “girls” or “clients”, but as a driver only. Mr Perry denied any knowledge of the escort girls being prostitutes and that he never ‘lived off immoral earnings”. There was no evidence that Mr Perry made his money from prostitutes;
  2. the programme stated that Mr Perry sent intimidating letters to the mother and girlfriend of the key witness in the McAvoy trial. The programme stated as fact that Mr Perry committed these activities when there was no solid proof. Mr Perry had never been associated, charged or convicted of such acts;
  3. the programme stated that Mr Perry “bugged” telephones. The programme failed to clarify whose phone was bugged, why it was done or how. Mr Perry had never been charged or convicted of bugging telephones;
  4. the programme showed Mr Perry as one of the violent, hooded gunmen who committed the Brinks Mat robbery, and stated he was one of the robbers. Mr Perry was never questioned, charged or convicted of such an offence. At the time of the robbery, 20 years ago, he could not have participated as he was being treated for a severe back problem and was being heavily medicated with morphine. He attended hospital and was under supervision by a doctor;
  5. Mr Perry was shown taking the stand and being questioned in the witness box. Mr Perry was never in the witness box. The programme also showed Mr Perry sitting in a police cell taking medication, which was totally untrue. Mr Perry was allowed bail and spent every evening at home;
  6. Mr Perry was depicted as an uncouth, unshaven, foulmouthed smoker and drinker. The programme took the “ Hollywood ” idealism of a “ South London gangster”. Mr Perry was a man who was always immaculate in his appearance and dress. He never smoked in his life and was tee-total;
  7. the final shot of the depicting the murder of Mr Perry was totally inaccurate, unnecessary and insensitive towards her, as a person present at the murder scene. Mrs Connorton maintained that Mr Perry’s body had no marks and there was no blood or gore.

Channel 4’s case

In summary, Channel 4 responded that:

a) Detailed research had been carried out by the programme-makers who considered that Mr Brian Perry’s inclusion in the programme was appropriate as he was a criminal convicted for his involvement in the Brinks Mat robbery and sentenced to 9 years imprisonment for conspiracy to handle stolen goods. Channel 4 and the programme-makers considered that the portrayal of Brian Perry and his death in the programme were responsible, fair and accurate.

The allegation that Mr Perry made money from prostitutes was made by Brian Perry’s own defence Counsel Jonathan Goldberg QC: “He didn’t ever quite like to admit that the prostitutes were prostitutes, I think he used a euphemism for them “escort girls” or whatever he would have called them”. Earlier in 1992, Jonathan Goldberg QC in his opening speech during Brian Perry’s trial, stated: “Escort agencies, members of the jury, is unhappily a front for high class prostitution in London, as you probably know, and he (Mr Perry) would supply drivers who would take the girls to the clients”;

b) Channel 4 said police sources told the programme-makers that Brian Perry was responsible for the letters of intimidation, sent during the original trial of Michael McAvoy, as part of a concerted plan to ensure his old friend, Mr McAvoy was not convicted. Mr Perry also arranged for a helicopter to try and spring Michael McAvoy from Brixton prison. The programme-makers were told by the Police that they didn’t arrest or charge him in connection with these activities because they wanted to protect their intelligence sources;

c) in the programme, Kathy Meacock (McAvoy’s girlfriend and future wife) was heard telling McAvoy that: “They’re bugging my phones Mick. Brian says it’s the police but it’s Brian, isn’t it”. The programme’s reference, came from Cathy Meacock herself and police sources. During their investigation, the police discovered hundreds of audiotapes of tapped conversations from Ms Meacock’s residence and elsewhere, in the home of Mr Killick, who had once worked for Brian Perry at his cab company Blue Cars. Many of the recorded conversations involved the police who spent nearly 2 weeks searching the residence after Kathy Meacock’s arrest and regularly used the telephone;

d) the identification of Brian Perry as one of the Brinks Mat robbers was not introduced until the second episode. The accusation was made by Mr Perry’s own defence Counsel Jonathan Goldberg QC . The programme-makers also obtained independent corroboration from Michael McAvoy himself who told the programme-makers that Brian Perry was in the gang that raided the Brinks Mat warehouse;

e) Mr Brian Perry did spend several days in the witness box at his 1992 trial. He was specifically questioned about his mental health and Brian Perry described how he had been under medication and antidepressants, for a number of years;

f) the portrayal of Brian Perry was not out of keeping with the portrayal of a south London criminal and when compared with the portrayal of his criminal acquaintances, Brian Perry’s portrayal is generally that of a smartly dressed and articulate man. His barrister Jonathan Goldberg QC , refers to him in the programme as “an impressive man. I would say he was quite a gentleman villain”. The images of Brian Perry smoking a cigar and drinking champagne are hardly uncharacteristic for a criminal who was handling millions of pounds worth of stolen money. It was noted by Channel 4 that Brian Perry admitted at his trial to running an illegal drinking club at the premises of his cab company;

g) in response to the complaint of the programme’s portrayal of Mr Perry’s murder, Channel 4 referred to newspaper descriptions of the murder as reported at the time. All articles gave varying accounts of the injuries to Mr Perry and the way in which he was found. Channel 4 maintains the shooting itself was not dramatised and in particular, deliberately did not show the gunman himself or the three shots to the back of Brian Perry’s head. As a matter of courtesy, the programme-makers wrote to Brian Perry’s son, Mark Hayhurst, prior to transmission to inform him that the programme would include a scene of the aftermath of his father’s murder.

Decision

Ofcom’s statutory duties include the application, in the case of all television and radio services, of standards which provide adequate protection to members of the public and all other persons from unfair treatment in programmes included in such services.

In carrying out its duties, Ofcom has regard to the need to secure that the application of these standards is in the manner that best guarantees an appropriate level of freedom of expression. Ofcom is also obliged to have regard in all cases, to the principles under which regulatory activities should be transparent, accountable, proportionate and consistent and targeted only at cases in which action is needed.  

In the circumstances of this case Ofcom found the following:

  1. After reviewing the programme along with the transcripts, Ofcom was satisfied that the programme claimed Mr Perry made his money from “prostitutes”, not “prostitution”, as Mrs Connorton complained. Though it appeared that Mr Perry had not acknowledged that his clients were prostitutes, it was clear from court transcripts and from the comments of his own legal Counsel, that he was profiting from the activities of prostitutes. He provided cars and security for, and received money from, prostitutes. In these circumstances, Ofcom considered that it was reasonable for the programme to state that Mr Perry made his money from “cabs and prostitutes”. The programme’s presentation of this issue did not result in unfairness to either Mr Perry or Mrs Connorton.
  2. Ofcom is not a fact finding tribunal and has no remit to decide whether Mr Perry had in fact intimidated key witnesses. In these circumstances Ofcom considered whether it was reasonable for the programme to include such a claim on the information available to the programme-makers and whether the claim resulted in unfairness to the complainants. In this case, Ofcom considered that it was reasonable for programme to suggest that Mr Perry was responsible for intimidating key witnesses given that it was supported by police sources. Ofcom also took the view that it was unlikely to have materially affected viewers’ opinion of Mr Perry in a way that was unfair to him given his close ties with Mr McAvoy and his conviction for the handling of the Brinks Mat gold.
  3. Ofcom found that the programme fairly portrayed Mrs Meacock’s belief that Mr Perry was bugging her phone. In coming to this conclusion Ofcom looked at the context of the scene, which was a dramatic representation of Mrs Meacock’s own concerns (confirmed by police sources) and the inclusion of the counter argument that the police may have been responsible for the bugging of the phone. “Brian says it’s the police”. Ofcom concluded that the inclusion of the scene was fair and relevant to the subject matter, as Mrs Meacock’s residence had been tapped.
  4. Ofcom was asked to consider if it was reasonable for programme-makers to state that Mr Perry took part in the Brinks Mat Robbery, given the information available to them. When coming to its decision Ofcom reviewed information provided by Mr Perry’s legal Counsel Jonathan Goldberg QC and information provided to the programme-makers by senior police sources and Mr McAvoy. Mr Perry’s Counsel said that Mr Perry indicated privately to him that he had taken part in the robbery and that police sources had always believed that Mr Perry was one of the robbers and not just a handler. Mr McAvoy himself, told programme-makers that Mr Perry was in the gang that raided the Brinks Mat warehouse. Ofcom noted that the fact that Mr Perry was not charged with involvement in the actual robbery. However, in the light of the information detailed above and given Mr Perry’s proven close ties to the robbery, Ofcom concluded that it was reasonable for the programme to suggest that Mr Perry took part in the Brinks Mat robbery.
  5. Court transcripts showed that Mr Perry did take medication while in prison and that he did spend several days in the witness box during his 1992 trial. Ofcom therefore found that the programme’s presentation of these matters was accurate and not unfair to either Mr Perry or Mrs Connorton.
  6. Ofcom did not agree with Mrs Connorton, that the programme portrayed her brother as an uncouth, unshaven, foulmouthed individual. Upon viewing the programme, Ofcom found that Mr Perry was depicted as being well mannered, articulate and intelligent, which was reinforced by his Counsel’s description of him as a “gentleman villain”. Ofcom was satisfied that Mr Perry’s portrayal drinking champagne and smoking a cigar was unlikely to have materially affected viewers’ opinion of him given that court transcripts suggested that he owned an illegal drinking establishment and had and gone for a drink on a number of occasions.
  7. In relation to the murder scene, Ofcom acknowledged that such a scene was likely to be distressing to any member of Mr Perry’s family and especially to Mrs Connorton who was with Mr Perry when he was murdered. However, Ofcom considered that the inclusion of the scene and the programme’s portrayal of the murder was not unfair to either Mr Perry or Mrs Connorton. In reaching this conclusion, Ofcom considered that the Mr Perry’s murder was relevant and significant. The scene was not unnecessarily gory or unrealistic and was in keeping with contemporaneous descriptions of the murder Ofcom noted that the programme-makers did write to Mr Perry’s next of kin, his son Mr Patrick Perry, to inform him that this father’s death would be depicted in the programme.

Complaint by The Simkins Partnership (solicitors) obo The Federation of Ethical Stage Hypnotists
Hypnotism Ruined My Life, Five, 19 May 2004

Summary: Ofcom has not upheld this complaint of unfair treatment from T he Federation of Ethical Stage Hypnotists (FESH), finding that:

  1. It was legitimate for the programme to examine concerns raised, by members of the public, about the potential dangers of stage hypnotism and to include the testimony and opinion of those people who believed that stage hypnotism had harmed them or a member of their family. In Ofcom’s view, it was likely to have been clear to viewers that stage hypnotism, when practised properly and within the current legislation, was considered to be safe.
  2. The programme-makers took all reasonable care to ensure that all material facts had been considered and so far as possible fairly presented in the programme, seeking to fairly balance allegations about the dangers of stage hypnotism with authoritative views to the contrary.
  3. The programme accurately and fairly presented the coroner’s verdict that stage hypnotism did not play a part in the death of Mrs Tabarn and that she died of natural causes.
  4. The inclusion of Mr Derek Crussell in the programme was unlikely to have materially affected viewers understanding of FESH or its members in a way which was unfair to them.

In all the circumstances, Ofcom considered that the programme presented a balanced account of the cases which it examined and did not misrepresent the alleged dangers of stage hypnotism when practised properly. Ofcom found no unfairness to FESH or its members in the programme.

Introduction

This programme looked at stage hypnotism and suggested that some people believed that stage hypnotism “can ruin your life.” The programme included interviews with stage hypnotists, participants of stage hypnotism shows and relatives of participants.

The Simkins Partnership (solicitors) complained on behalf of The Federation of Ethical Stage Hypnotists (FESH) that it was treated unfairly in the programme

Complaint

FESH’s Case

In summary the Simkins Partnership complained as follows:

  1. The programme failed to distinguish between ethical practitioners, like members of FESH, who comply with the relevant guidelines and those that do not. The programme gave the impression that the type of performances shown, which were clearly irresponsible and in breach of Home Office conditions, were typical of stage hypnotists including members of FESH. There was an ethical and unethical manner in which to conduct stage hypnosis and this is an absolutely key distinction. This distinction was not made in the programme.
  2. The programme failed to present balancing factors by way of either ethical stage hypnotists or relevant experts. There was a considerable body of expert opinion which considered that the claims made in the programme did not have a scientific basis. Given that the programme suggested that stage hypnotism causes death or serious mental injury, it was essential that such views were presented in the programme. The Chairman of FESH, Mr Johnny Hillyard, was invited to participate in the programme but was reluctant to do so as it appeared that the programme amounted to an indiscriminate attack on stage hypnotism. However, Mr Hillyard agreed to participate on the condition that he was properly compensated by way of a fee. The programme-makers refused to re-numerate Mr Hillyard so he decided not to take part.
  3. The programme included claims made by Mrs Margaret Harper that stage hypnotism caused Sharron Tabarn’s (her daughter) death without making clear that her claims had been discredited by three official independent bodies. The programme failed to present the following information:
  • Mrs Harper’s campaign was not supported by Mrs Tabarn’s husband.
  • There was clear evidence that excessive drinking on the part of Mrs Tabarn was a likely factor in her death.
  • The government appointed expert panel concluded that Mrs Harper’s claims were not well founded.
  • Independent experts at the inquest were unanimous in their view that stage hypnosis played no part in Sharron Tabarn’s death.
  • The Court of Appeal concluded that there was no basis to doubt the Coroner’s verdict and refused Mrs Harper’s appeal against the Coroner’s verdict.
  1. In 1998 Five broadcast a full apology to Mr Paul McKenna following allegations made by Mr Derek Crussell in an interview on Five. Despite this clear warning as to the reliability of his views, this programme included an interview with Mr Crussell, playing on his expertise as a hypnotherapist to aid the programme’s thesis. This was despite the fact that the BBC were recently obliged to apologise for and retract statements made by Mr Crussell on this issue.

Five’s case

In summary Five responded as follows:

  1. The programme was never intended to be a discussion about all facets of stage hypnotism, including ‘ethical’ versus ‘unethical’ stage hypnotism. The programme did not suggest that all stage hypnotists were dangerous and unethical, but rather presented a series of case studies featuring those who believe they have been adversely affected by an experience with stage hypnotism.
  2. The programme did not require the views of FESH members to provide a balanced view, as suggested by the complainant. In the programme each case was dealt with fairly and the salient facts surrounding the case were set out. It was not asserted by the programme that hypnotism actually caused the problems faced by the individuals featured, rather, each participant was allowed to provide their testimony about their experiences. Five accepted that the programme contained some expert opinion from those who believed that hypnotism may cause problems in a vulnerable minority, however this was balanced by the inclusion of a summary on the current state of government and medical thinking which said: “A Home Office expert panel considered the medical evidence in 1995. It concluded that stage hypnotism presents no serious risks to the public and though it proposed tighter regulation it saw no need for it to be banned”.

    The producers worked very hard to elicit the help of FESH, in particular their Chairman, Mr Hillyard and The British Council of Professional Stage Hypnotists, both of whom declined to take part.

  3. While Mrs Harper set out her belief that her daughter died as a result of being hypnotised, the legal position was included in the programme which set out that “…the Coroner’s inquest had determined that they hypnosis had played no part in Sharon’s death; concluding that she had died of natural causes through choking on her own vomit, possibly after suffering an epileptic fit”. There was no need to include further information, as FESH suggests, as the key fact was established in the programme, namely, the Coroner’s finding that hypnosis was not the cause of death and that Mrs Harper has not established a causal link with hypnotism.
  4. Derek Crussell’s role within the programme was minimal. He was featured in the programme in order to introduce Irene Carbin who was one of his clients and to show that hypnotism can be used to treat those with stress, panic attacks, anxiety, lack of confidence and fears.

Decision

Ofcom’s statutory duties include the application, in the case of all television and radio services, of standards that provide adequate protection to members of the public and all other persons from unfair treatment and unwarranted infringements of privacy in programmes included in such services.

In carrying out its duties, Ofcom has regard to the need to secure that these standards are applied in a manner that best guarantees an appropriate level of freedom of expression. Ofcom is also obliged to have regard in all cases, to principles that require regulatory activities to be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.

In this case Ofcom found the following:

a) Ofcom considered that it was legitimate for the programme to examine concerns raised by members of the public about the potential dangers of stage hypnotism and it was reasonable for the programme to include the testimony and opinion of those people who believed that stage hypnotism had harmed them or a member of their family.

In Ofcom’s view it was likely to have been clear to viewers that the programme presented a small number of cases where, in the personal opinion of those featured, participation in stage hypnotism shows had resulted in harm to them or a member of their family. The programme did not present this as evidence that it was established as fact that stage hypnotism, in general, was harmful. The programme did not claim that the type of performances shown were typical of stage hypnotists or that all stage hypnotists, including members of FESH, practiced in a manner that could harm participants.

In our view, it was likely to have been clear to viewers that stage hypnotism, when practised properly and within the current legislation, was generally considered to be safe. This was supported by the programme’s reference to the findings of the Home Office’s expert panel, set up to consider the effects of participation in performances of stage hypnosis, that “stage hypnotism presents no serious risks to the public”.

b) In our view, the programme-makers took all reasonable care to ensure that all material facts had been considered and so far as possible fairly presented in the programme. In reaching this conclusion Ofcom took into account the programme’s presentation of the findings of the expert panel set up by the Home office (referred to above), that stage hypnosis was safe. Ofcom also took into account the efforts made by the programme-makers to seek the participation of FESH in the programme as broadcast. An invitation which FESH declined. In all the circumstances, Ofcom considered that the programme sought to fairly balance allegations about the dangers of stage hypnotism with authoritative views to the contrary.

c) Ofcom considered that the programme accurately and fairly presented the coroner’s verdict that stage hypnotism did not play a part in the death of Mrs Tabarn and that she died of natural causes. The programme portrayed Mrs Harper as a grieving mother who was understandably distressed by the death of her daughter and, despite convincing evidence to the contrary, continued to believe that stage hypnotism played a part in her daughter’s death. Viewers were likely to have understood that her comments were simply an opinion and not evidence of the cause of Mrs Tabarn’s death.

In this context, we did not consider it unfair not to refer to Mrs Harper’s unsuccessful application for a new inquest into the death of her daughter or any role that alcohol might have played in Mrs Tabarn’s death. Nor was it relevant, in our view, that Mrs Tabarn’s husband did not support Mrs Harper’s campaign.

d) Ofcom noted the limited role played by Mr Crussell in the programme. In Ofcom’s view the programme’s presentation of Mr Crussell appeared to be a straightforward examination of his own practices. Notwithstanding the complainant’s views on Mr Crussell’s ability or judgment, Ofcom took the view that his inclusion in the programme was unlikely to have materially affected viewers understanding of FESH or its members in a way which was unfair to them.

In all the circumstances, we considered that the programme presented a balanced account of the cases which it examined and did not misrepresent the alleged dangers of stage hypnotism when practised properly. Ofcom found no unfairness to FESH or its members in the programme. The complaint was not upheld.


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