4B Crime : Payments
Payments to Criminals
No payment, promise of payment or payment in kind may be made to convicted or confessed criminals for interviews or some other contribution to the programme in relation to their crimes, the only exception being where it is in the public interest.
- Generally payments cannot be made
to criminals, whether they have been convicted or not, for interviews about their crimes. The public policy reason for this is to prevent criminals profiting from their crimes. - The Code refers to "payment", "promise of payment" and "payment in kind". This covers making (or promising to make at some future time) cash payments or any other kind of payment e.g. a gift, paying off a debt etc., to the criminal for whatever reason. Only actual and necessarily incurred out of pocket expenses may be reimbursed.
- The payment must be for an interview or some other contribution to the programme related to the crime. Thus it would not be a breach of this section to pay a convicted criminal for taking part in a programme, if the contribution was not based upon the crime he/she had committed e.g. in theory, a convicted burglar could be paid for taking part in a reality game show (but there might be other reasons why that would be inappropriate).
- The words "some other contribution" are included to prevent circumvention of the rule. For example, it would prevent programme-makers paying a licence fee to a criminal for photographs relating to the crime that he/she owns and supplies to the programme.
- Family members or associates of the criminal can be paid if they themselves make a contribution to the programme, as long as that payment does not benefit the criminal in any way e.g. the family member may be the criminal's victim. Where family members or associates do not themselves actually make a contribution to the programme, it is unlikely that payments to them will be acceptable, as this is likely to be seen as benefiting the criminal. Decisions about whether or not to pay family members or individuals close to criminals rather than the criminal him/herself should always be referred to the commissioning editor and programme lawyer.
- Payments, promises of payment and payments in kind can be made to criminals for interviews and other contributions about their crimes, where it is in the public interest. Whether or not there is a public interest will depend on a number of factors including: whether a payment is necessary i.e. would the criminal agree to be interviewed regardless of payment?; the purpose of the interview or contribution to the programme; what benef its there might be in the interview going ahead; the nature and seriousness of the crime; the likely feelings of/the effect on the victims, if any; the time elapsed since the commission of the offence and the programme etc.. Where, after careful consideration, such a payment is made in the public interest, Ofcom states in its guidance that it may be appropriate to inform viewers in the programme that a payment has been made and the reasons why.
Any programmes featuring convicted or confessed criminals should be referred to the legal and compliance department for early advice. No payment or commitment to pay a criminal should be made before this has been agreed to by the commissioning editor and programme lawyer. In the case of serious criminal behaviour, the matter should be referred up for approval in accordance with Channel 4's and Five's internal compliance procedures.
Where Proceedings are Active
Proceedings become active when someone is arrested or charged with an offence. See Chapter 5B, 'Contempt and Reporting Legal Proceedings'.
Payments to Witnesses in Legal Proceedings
No payment or promise of payment may be made, directly or indirectly, to any witness or any person reasonably expected to be called as a witness.
- Payments or promises of payment must not be made to witnesses or those likely to be become witnesses. There is no 'editorial justification' or public interest exception. Clearly this rule only prohibits payments to witnesses/potential witnesses where their contribution to the programme is connected to the legal proceedings in which they are or may become a witness.
- Again, this provision covers direct and indirect payments i.e. that is anything of monetary value to the witness/potential witness or those connected to them that would be of benefit to the witness/potential witness.
Payments Made Dependent on the Outcome of a Trial
No payment to any witness or any person reasonably expected to be called as a witness may be suggested or made dependent on the outcome of a trial.
- This rule is designed to prevent those sorts of deals that have occurred in the past, where media organisations have promised to pay witnesses a sum of money for their story, on the condition that the defendant is found innocent or guilty, more commonly the latter. There are obvious public interest reasons for outlawing this practice, not least that it may call into question the motives of those giving evidence. Will a witness feel pressured to embellish their evidence in order to secure a conviction, thus enabling them to collect their ‘reward'? Whether or not a witness actually does fabricate or exaggerate his/her evidence in order to benefit from the promised sum is not the key issue; the problem arises from the doubt the promise of payment sows in the minds of the jury.
Reimbursing Expenditure and Loss of Earnings
Only actual expenditure or loss of earnings necessarily incurred during the making of a programme contribution may be reimbursed.
- Payments can be made to witnesses/ potential witnesses you are filming with in order to reimburse them for actual expenditure they've incurred e.g. travel costs, loss of earnings as a direct result of the recording.
Programme-makers should refer to the legal and compliance department for advice wherever a witness or potential witness in legal proceedings is taking part in a programme. Any payments to such contributors to cover expenditure or loss of earnings must be approved by the commissioning editor on the advice of the programme lawyer and referred up in accordance with Channel 4's and Five's internal compliance procedures where necessary before any payment is offered or made.
Criminal Legal Proceedings which are "Likely and Foreseeable"
Payments should not be made to people who might reasonably be expected to be witnesses unless there is a clear public interest e.g. investigating crime or serious wrongdoing, and the payment is necessary to elicit the information. Such payments should be disclosed to the prosecution and defence if the person does become a witness in any subsequent trial.
- Where proceedings are not actually active i.e. no-one has been arrested or charged, but where they are foreseeable and likely at some future time, then payments can be made to potential future witnesses but only if it is clearly in the public interest. For a discussion of what constitutes the "public interest" see later at Chapter 4D .
- This rule applies not only to programmes where there is an on-going police investigation but also to those which uncover previously undetected crime and lead directly to proceedings being brought. For example, in a current affairs programme investigating a criminal drugs smuggling gang, the programme-makers may need to make a payment to a business associate of the gang in order to corroborate and prove the allegations, although this would need careful consideration and advance approval from the broadcaster. The programme-makers and broadcaster may well anticipate that following transmission, this person is very likely to be called as a witness in any subsequent prosecution. In such a case, the payment is likely to be justified because without it, the whole programme may fall i.e. the criminal practices being investigated will not be able to be proved. Following transmission, when handing over material to the police, the programme-makers and broadcaster should alert the authorities to the fact that this person has been paid.