Filming with criminals

Key points

Seek early advice from your commissioning editor and content lawyer/compliance advisor before any filming involving criminals, crime or hate speech is undertaken.

Content must not include material likely to encourage or incite the commission of crime or to lead to disorder.
Content must not include hate speech or abusive or derogatory treatment of individuals, groups, religions or communities, except where justified by context.
When filming criminal activity, be careful that your actions could not later be construed by the police as unintentionally inciting or assisting the commission of an offence.
The safety of your team is paramount. You must ensure that they are never put at unacceptable risk by the nature of the filming or the subject matter of the content.
For matters involving crime and under-18s, see Filming with Under-18s.

Introduction

(See Section 3 of the Code.)

Much content, including the news, features or deals with criminals and/or criminal behaviour in one way or another. It is a regular feature of popular drama and can crop up in a variety of ways in virtually any factual content.

Content dealing with or touching upon criminal behaviour needs to be handled with care and is likely to require advice from your content lawyer/compliance advisor from an early stage.

There are many legal restrictions when dealing with criminal subject matter, breach of which can result in criminal proceedings being issued against the content creator and Channel 4.

These include but are not limited to:

contempt of court
interviewing jurors
filming within the court precincts
the disclosure of court documents
court reporting restrictions
dealing with witnesses in criminal proceedings
anonymity for victims of sexual offences
legal proceedings involving under-18s
complaints by pupils against teachers
family proceedings

It is therefore essential that early advice is taken from the content lawyer/compliance advisor to ensure that you stay on the right side of the line.

Considerations when filming with criminals

When filming with criminals or filming criminal activity, bear in mind the following:

Proceed with caution. Always seek legal advice from the content lawyer/compliance advisor before filming takes place. Criminals do not tend to be truthful and have a vested interest in their own protection, so it is advisable to remain detached and objective when filming with criminals and not to take at face value everything they tell you.

When dealing with criminals that have a history of violence or intimidation, take appropriate precautions to ensure your team's safety and do not give criminals home telephone numbers and addresses. Such filming should generally be approved in advance by the commissioning editor and content lawyer/compliance advisor. A high-risk filming and security protocol will normally be drawn up.

People may be willing to be filmed talking about crimes they have committed. Whilst this in itself is unproblematic and content creators will not have committed any offence by simply receiving the information (though see 'Terrorism'), there are a number of matters to consider.
Be aware that individuals admitting criminal behaviour on camera could be investigated or even prosecuted after broadcast/publication and the content, including rushes, could be obtained by the police by a court order and used as evidence (see 'Police enquiries' in Factual content guidelines). Criminals tend to deny earlier admissions of criminality if challenged, so be appropriately wary; do not take what they say and do at face value. Be conscious of the fact they may deny what they have said later on and that they may try to blame you in some way.
Content creators should ask themselves why the person is willing to talk on camera about their criminal activity. Do they understand the potential consequences? Are they simply boasting/do they have any reason to lie? Even if what the self-confessed criminal is saying is true, are they likely to deny it later anyway? Content creators should consider what possible effect this could have on the content and generally.
Material which contains hate speech or abusive or derogatory treatment of individuals, groups, religions or communities, must not be included except where it is justified by the context.
Payments to criminals also need very careful consideration and prior approval by your commissioning editor and advice from your content lawyer/compliance advisor.

Any filming that involves criminals that have a history of violence or intimidation should be approved with your Legal & Compliance lawyer/compliance advisor before filming.

Reporting criminal activity

While there is no general legal duty to inform the authorities of potential criminal acts that are either filmed or which contributors have disclosed on or off-camera, in certain limited circumstances there is a legal duty to inform the authorities of specific criminal acts, e.g. where terrorist offences are involved. There may also be circumstances where Channel 4 believes that there is an ethical duty to inform the authorities depending on the facts of a particular case. It is therefore essential that you take early advice from your commissioning editor and content lawyer/compliance advisor when reporting criminal activity.

Encouraging or inciting crime

Material likely to encourage or incite the commission of crime or lead to disorder must not be included in content. This applies to all crime – all criminal law offences punishable by a fine or imprisonment.

Ofcom will treat any breach of this rule extremely seriously.

“Material” may include:

Content which directly or indirectly amounts to a call to criminal action or disorder.

Material promoting or encouraging engagement in terrorism or other forms of criminal activity or lead to disorder.

Hate speech which is likely to encourage criminal activity or lead to disorder.

"Disorder" relates to the criminal offence of ‘civil disorder', but also more generic acts that might lead to or provoke the commission of an offence.

Whether material is "likely" to encourage or incite crime or lead to disorder will depend on a number of factors. Merely filming and broadcasting/publishing criminal activity will not generally, in itself, amount to encouragement or incitement to commit that offence. However, featuring criminal activity and presenting it in a way which arguably glorifies, condones or glamorises it, or which fails to show the negative consequences, for both victim and perpetrator, may be problematic. Direct calls or deliberate provocation to viewers to commit crimes which are left unchallenged in the content, for example giving airtime to a religious extremist actively calling for violent acts to be carried out against members of other faiths, would almost certainly be likely to breach this rule and potentially the criminal law.

Where criminal activity is featured in content, it should normally be made clear that the activity in question is indeed criminal if it is not obvious, in case some viewers mistakenly believe such behaviour is legal and, therefore, acceptable.

In relation to certain types of crime featured in content, it may be appropriate to ensure that the negative consequences of the criminal activity are included (over and above the fact that it's an offence) if there is a risk that the activity might appear glamorous or problem free, for example drug abuse.

In relation to hijacking and kidnapping specifically, Channel 4 must be careful not to broadcast/publish material that could endanger lives or prejudice the success of attempts to deal with the situation.

Descriptions or demonstrations of criminal techniques

Descriptions or demonstrations of criminal techniques which contain essential details that could enable the commission of crime must not be broadcast/published unless editorially justified. This rule applies to common crimes including shoplifting, car- or computer-related crime. Content should not include or demonstrate particular techniques that would assist committing such crime.

The rule will also apply to those crimes that involve generally unknown methods and techniques, that members of the viewing public would be unlikely to be aware of, for example how to commit ingenious types of fraud.

Even in content the very subject of which is to examine these types of crime in detail, it will not normally be necessary to show each and every step and technique involved in the commission of the offence. In those rare cases where it is, thus potentially enabling criminally inclined viewers to copy such behaviour, there should be strong editorial justification; for example, it might be essential to show all the elements of a crime in order for viewers to be able to understand it properly and, thereby, be able to guard against such crime themselves.

Filming criminal activity

Whenever filming criminal activity, content creators must always remember to remain as passive observers and do nothing that could be deemed as encouraging, inciting or assisting criminal activity. If a content creator assists any criminal activity, they too are likely to be guilty of a criminal offence.

It is an offence to "aid, abet, counsel or procure" the commission of most criminal offences, that is liability for a criminal offence may be incurred either as a principal offender or as an accessory. Whilst each of these words has not been authoritatively determined, assisting or encouraging criminal activity is likely to amount to an offence.

What constitutes 'assisting' is often much less than people think. For example, allowing a criminal to use your telephone or giving a criminal a lift in a car could, in certain circumstances, be deemed to be assisting the commission of a criminal offence.

When filming any criminal activity, there is always a risk that content creators may get arrested, particularly if there is confusion about the content creators role and whether they may be involved in the particular criminal activity.

Note: sometimes content creators deliberately undertake activities which put them at risk of being arrested and charged with a criminal offence, for example, journalists working undercover may involve themselves in illegal activity in order ultimately to expose it. Such activities can be justifiable in the public interest. However, they require very careful consideration, research and preparation and must not be undertaken before detailed advice has been sought.

Always refer to your commissioning editor and content lawyer/compliance advisor for advice before undertaking any activity which could amount to a criminal offence.

To minimise the risks involved, here are some basic rules programme-makers should always follow:

Be scrupulous to avoid a charge of encouraging or inciting or aiding or abetting any criminal behaviour. Bear in mind that the criminals being filmed may later allege this. It is important that the rushes can be used to refute any such allegations.

Remember that your role is to observe not participate.

Never provoke or encourage behaviour in those you are filming with, which would not otherwise have occurred.

Think carefully before making any payment to a criminal - is the payment in the public interest? Does it breach legislation? In addition, any payment to a criminal must, save in exceptional circumstances, be approved by Channel 4 in advance.

When filming with criminals and the issue of payment arises and there is arguably a public interest in making such payment, this must be referred to Channel 4 for discussion and approval. Where, in exceptional circumstances, this is not possible or practical, the most senior editorial person present should make the decision whether or not to make the payment. Any such payment must be referred to Channel 4 as soon as reasonably practicable.

See: Payments

FAQs

: Yes. Criminals are often shown admitting to criminal activity. Similarly, from time to time, actual criminal activity is caught on camera, for example drug-taking, violence, criminal damage. The important thing to remember is that a content creator should not encourage, incite or assist criminal activity, otherwise they may be guilty of an offence. Content creators should always remain as passive observers. In addition, remember not to take what you are being told at face value. Is the person who is admitting to criminal activity likely to be telling the truth? Please refer to 'Viewer trust'.
: Whilst prosecutions are rare, any individual admitting to committing criminal activity on camera may be investigated and, potentially, prosecuted following transmission, and the film, including any rushes, could be obtained by the police by a court order and used as evidence. For this reason, content creators cannot give assurances to contributors that they won't be investigated or prosecuted. It is important, therefore, that before filming takes place, they should understand the potential consequences of their actions.

Furthermore, content creators should always ask themselves why a person is willing to admit on camera to criminal activity. Always ask yourself, is the person telling the truth? Do they have any reason to lie? And even if they are telling the truth, is the person likely to deny what they have said later on? Content creators need to consider carefully what possible implications this could have.
: This will depend on what offence has been committed and the nature of the content and the contribution. There may be contempt issues or it may be that it would simply be inappropriate to proceed given the serious nature of the charges. The important thing to remember is to alert your content lawyer/compliance advisor immediately.
: Usually, yes. In many circumstances informing the victim or their family will be appropriate, particularly if the crime is to be referred to or examined in some detail. Again, the content lawyer/compliance advisor will advise on what is required in this regard. See also 'Privacy'.
: Content and rushes are deemed to be 'journalistic material' and, as such, are given special protection in law from seizure by the police. If the police want to obtain such material, they must apply to a judge. If the police ask for your footage, politely inform them that the footage is journalistic material and that they must put their request in writing to Channel 4's Legal & Compliance department. At the first available opportunity, you should make contact with your content lawyer/compliance advisor or another lawyer in the Legal and Compliance department to inform them what has happened. See also 'Police enquiries' (in Factual content guidelines).
: Whilst there is no legal duty to provide information to the police for their inquiries save in exceptional circumstances (if it relates to a breach of the Official Secrets Acts regarding national security, or it relates to terrorist offences), you must never be dishonest or attempt to mislead the police in their enquiries, as this may constitute an attempt to pervert the course of justice - a criminal offence.

If you are approached by the police in relation to any content creating activities, contact your content lawyer/compliance advisor (or another lawyer in the Legal & Compliance department) immediately.
: Wherever possible, this should be agreed by Channel 4 in advance. However, where an undertaking has been given to a source by a content creator, once it appears that such an undertaking may also become binding on Channel 4, content creators must immediately notify their commissioning editor, who will consult with the content lawyer/compliance advisor and, if necessary, refer the matter up editorially. Where there is the possibility that any undertaking may conflict with the law, for example an unqualified undertaking of anonymity has been given to a source by a journalist, this will be referred up to Channel 4's most senior editorial executive who may refer the matter to the board of directors. Generally, content creators and journalists should not make such unqualified undertakings before contacting and seeking the approval of Channel 4.

Internal links:

Harm and offence
Factual content guidelines, particularly 'Police enquiries'
Payments
Public Interest (in Privacy)
Terrorism
Viewer trust
Contempt

External links:

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