QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATON OF JONATHAN BOYD HUNT||Claimant|
|- and -|
|INDEPENDENT TELEVISION COMMISSION AND |
GRANADA TELEVISION LIMITED
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Solicitors) for the Claimant
David Pannick QC and Jonathan Moffett (instructed by Simmons & Simmons, Solicitors) for the Defendant
Gerard Clarke (instructed by Christopher Wissun, Programme Legal Affairs, Granada Media, for the Interested Party
AS APPROVED BY THE COURT
Crown Copyright ©
Mr Justice Newman :
“This issue is exhaustively gone into in a document which I have not been responsible for producing (and I am grateful to the authors for pointing all this out to me), in a document which I shall be giving to the Committee, produced by two independent journalists wholly unconnected with me, who after the General Election, decided there was a story here worth investigating because they wanted to make a TV programme about it. They have been working at their own expense, without income, putting their own money from their own meagre resources into the investigation. I have given them free run of all the papers that everybody produced for the enquiry and they have gone on and done it ….”
In addition to it being supplied to the Standards Committee, the claimant supplied Granada with a copy and informed Granada that it was to be formally released at a Press Conference on 29 October 1997. Granada sent a journalist to the Press Conference, but not a camera crew, and did not report the occasion. On 6 November l997 the Standards Committee published its report and concluded that Mr Hamilton had received cash from Mr Fayed in brown paper envelopes, which had been handed to him.
“The Neil Hamilton affair serves as a case study of Granada Television’s reporting of a political controversy, revealing Granada in the worst possible light. The weight of evidence proves that Granada’s failure to discharge its obligations for impartial reporting of news is deliberate, showing it to be a politically biased organisation unwilling to report news dispassionately. The transgression is so grave, and sustained, it warrants the ITC commission considering the withdrawal of Granada’s television broadcasting licence at the first appropriate juncture.”
Some five pages of the letter under the heading “Our findings in essence” led to the conclusion:
“And that, in a nutshell, is the true story of the cash for questions affair.”
“Unless there is draconian action taken by the Commission, which clearly ought to include news monitoring, it is certain that Granada will not report the new legal action of Neil Hamilton faithfully, nor the role of Mark Hollingsworth therein, nor Hollingsworth’s premeditation as demonstrated by his attendance at the launch of my book alongside his World in Action colleague David Leigh, there is also every prospect that Granada will try to influence ITN, as seems to have happened over the launch of “Trial by Conspiracy” in October l998. Unless the Commission takes action, it is impossible to envisage Granada reporting Hollingsworth’s former tie-up with Charles Tremayne and Granada. Nor can one see Granada reporting Hollingsworth’s alliance with Leigh, nor Leigh’s alliance with Granada, nor Leigh and Rusbridger’s role in the cash for questions affair – especially as Leigh produced the World in Action documentary on former Conservative MP Jonathan Aitken, which won Granada so many plaudits.”
“The evidence shows that Granada’s news blackout on our work has been prompted by its alliance with The Guardian, revealing it to be a similar politically motivated organisation, unworthy of its broadcasting licence. Regardless of whatever spin Granada might care to put on these events, the stark facts cannot be denied. They are, in total, a damning indictment of Granada’s tenure, of its ITV franchise and its attitude to news journalism.
It is clear that the shared political beliefs of The Guardian and Granada Television have prompted their suppression of news about our investigation and our findings … I therefore call on the ITC Commission to respond to this complaint … The fact remains, the research undertaken by Malcolm Keith-Hill and myself has been assessed and vindicated by some of the best brains around, and is available to be examined further by any independent experts the Commission may appoint. We have stumbled across and uncovered an audacious, enduring, sprawling, criminal conspiracy, perpetrated by the most influential organisation in the British media, The Guardian, and spilling over into the legal profession and Parliament itself…. Granada Television ignored all calls to consider the evidence unearthed by Malcolm Keith-Hill and myself, despite their previous experience of my competence…. The Commission should take account of the fact that I have made no complaint about Granada’s behaviour in this affair previously, although there have been solid grounds for doing so on numerous occasions since Granada’s first obvious example of news censorship in October l997. The appendices, video tape, and the attached summary of events relating to this complaint, are proof enough of my restraint.”
“It should also be noted that a large part of your complaint deals with matters outside the remit of the ITC. The ITC cannot examine or discuss, for example, matters pertaining to newspapers, newspaper journalists or the BBC. In particular, of course, it is not for the ITC to comment on the merits or demerits of the arguments on either side of the case (that is, the Al Fayed- Hamilton affair). Your complaint focuses on Granada and, for the sake of this enquiry, we have considered Granada’s records of its transmissions, from 20 October 1994, (the date the first set of allegations against Neil Hamilton were published in The Guardian) to the present day. However, we should make the point that the requirement for due impartiality applies across Granada’s television output, including regional and network programming and network news and, therefore, ITN News and any other coverage available to viewers via Granada is relevant. This issue, as you point out, has been a major political controversy. Granada has reported it on at least 23 occasions, in its regional news service. It has not produced any material for the ITV network. The broadcaster also wishes to point out that it has only covered this as a new story, that is, it has not sought to investigate the quality of the claims and counter-claims, or in any sense to drive the story. While it has broadcast no details of your book and investigation, neither has it reported on the details of The Guardian’s book “Sleaze”.
Our programme code states that:
‘ Licensees may make programmes about any issues they choose’.
We therefore believe that Granada’s decision not to commission a documentary about your investigation is not in breach of the code.
It appears to us that from the evidence that Granada reported factually on the Hamilton story as it developed, on relevant occasions, stating Mr Hamilton’s position and giving coverage to his statements, press briefing and point of view. It appears that the broadcaster has reported every major development of the story. On various occasions, it had interviews (both live and pre-recorded) with Neil Hamilton. As you well know, Mr Hamilton at various times during this period produced new evidence that he believed would exonerate him. Granada covered these major developments along with explanations of how and why Mr Hamilton believed he was a victim of a miscarriage of justice …. The ITC does not involve itself in the decision making process of individual programmes, before transmission. Broadcasters are at liberty to make their own decisions on what to cover, and who to interview. However, the licensee must still fulfil its requirements under the programme code. In this case, it appears to us that while some broadcasters gave coverage to your new angle on the story, others (including, but not restricted to Granada) did not. We are satisfied that this decision did not in itself mean that Granada’s coverage overall was in breach of the Code….
In summary, therefore, we have concluded that the coverage of the Al Fayed-Hamilton affair, within the Granada service, did not involve a breach of due impartiality requirements and complied with the Programme Code.”
(1) that the complaint raised matters which were outside the remit of the ITC, in particular the complaints about newspapers, journalists and the BBC;
(2) that it was not for the ITC to comment on the merits or demerits of the arguments in the Al Fayed-Hamilton affair;
(3) that Granada had reported on the Al Fayed-Hamilton affair but had done so only as a news item and had not engaged in investigative journalism into the respective merits of each protagonist;
(4) that in reporting on the affair as a news item, Granada had given time to Mr Hamilton and reported his denials of the allegation. Mr Hamilton had been able to make his case as to why he was innocent, which as a matter of fact though not of report, had included his reference to the claimant’s research before the Standards Committee of the House of Commons;
(5) that the ITC had concluded that the matters which had comprised the claimant’s research, his interim report and his book, reflected a “new” angle on the Al Fayed-Hamilton story, but which did not give rise to an obligation on the part of Granada to report in order to satisfy its obligation under the programme code.
“The basis of my complaint is Granada Television’s consistent failure, since first being informed in July l997, to report in its news bulletins the existence and findings of an independent investigation conducted by myself and my colleague, TV producer/director Malcolm Keith-Hill, clearing former Conservative MP Mr Neil Hamilton of all essential allegations levelled against him by Mohammed Fayed and The Guardian Newspaper.”
The appeal document referred to the Broadcasting Act l990 and to the ITC Code made under that Act, to which provisions I must come in this judgment. The claimant identified the issues as follows:
“(1) Is the cash for questions affair a “political controversy”?
(2) If so, was it active during the period that Granada was informed about our investigation?
(3) Was Granada’s reporting of Neil Hamilton’s denials to the allegations sufficient to satisfy the definition “a full range” (as in the Act’s requirement that ‘justice must be done to a full range of significant views and perspectives’)?
(4) Does our investigation into the cash for questions affair represent(i) a significant view?
(ii) a significant perspective?
(iii) a main differing view?
(5) If so, did Granada(i) ensure that justice was done to our investigation?
(ii) give due weight to our investigation?
His answer then and now, in this court by counsel, Mr Berkeley QC, to both questions numbered 1 and 2 has been “yes”. No issue arises in connection with those suggested answers. The issue raised by the claimant’s question 3 has been addressed in the course of argument in slightly different terms. It has been accepted by the ITC that at the first stage (Mr Perkins) and on appeal, the ITC equated the position of the claimant and Mr Hamilton in the political controversy, in that no distinction was drawn between the position of the claimant and Mr Hamilton in deciding how to report the affair. It regarded the protestations of innocence on behalf of Mr Hamilton by the claimant as representing the same view as the protestations of innocence by Mr Hamilton himself. In answering the question in his appeal document the claimant contrasted the reporting of the case against Neil Hamilton, which was widely reported by the whole media, and particularly commented upon by The Guardian and others, with as he described it, the “cries of innocence which were all but solitary by Mr Neil Hamilton, having been left to fend for himself by the Conservative party hierarchy”. Thus he argued that when he and Mr Keith-Hill emerged with their investigation in favour of Mr Hamilton’s claims to innocence, Granada were, as he put it, under an immediate legal obligation to report that event with due weight. His answer to the fourth question was in substance that his investigation did represent a significant view and perspective or a main differing view within the meaning of the Code because he had uncovered copious indisputable evidence showing that “Neil Hamilton’s accusers lied and fabricated evidence against him in an audacious sprawling conspiracy to mask the fact that Fayed had made his allegations out of spite ….”
“11. It is not a matter for the Commission to judge the merits or demerits of Mr Boyd Hunt’s work or specifically whether Neil Hamilton was innocent of the allegations.
12. The sub-committee believe that Granada Television was able to maintain due impartiality on the Hamilton “cash for questions” affair without broadcasting Jonathan Boyd Hunt’s research. While this was covered on the regional BBC News and BBC News 24, and in the Daily Telegraph, it was not given sufficient credence to be reported on any terrestrial network television news service, Sky News or the majority of national newspapers.
13. Neil Hamilton’s position was adequately covered by Granada.”
“In particular, after careful consideration of the evidence, the Commission took the view that Granada reflected a sufficient range of points of view in reporting this case and that due impartiality was accordingly maintained in its news service. We are of course aware that you feel there was an obligation on Granada independently to examine the claims made by The Guardian. However the ITC does not have a statutory locus to intervene in editorial judgments of this nature. We took account of the fact that your research received some coverage on regional BBC News, BBC News 24 and in the Daily Telegraph. But we also noted that Granada Television was far from being the only news outlet not to cover it. It has not been, of course, for the Commission to reach a view on Neil Hamilton’s guilt or innocence, nor is the Commission’s decision in any way a judgment on the quality of your work. We appreciate the dedication you have shown over the years to this issue.”
The legal issue
- Was the ITC’s decision that Granada did not breach the requirement of due impartiality by not reporting the claimant’s investigation one which no reasonable regulator could reach, properly addressing itself to the material before it?
The statutory background
“6. (1) The Commission shall do all that it can to secure that every licensed service complies with the following requirements, namely –(a)…… (b) that any news given (in whatever form) in its programmes is presented with due accuracy and impartiality;
(c) that due impartiality is preserved on the part of the person providing the service with respect to matters of political or industrial controversy or relating to current public policy;
(2) In applying subsection l(c) a series of programmes may be considered as a whole.
(3) The Commission shall –(a) draw up, and from time to time review, a code giving guidance as to the rules to be observed in connection with the application of subsection l(c) in relation to licensed services; and
(b) do all that they can to secure that the provisions of the code are observed in the provision of licensed services;
and the Commission may make different provisions in the code for different cases or circumstances.
(6) The rules as specified shall, in addition, indicate to such extent as the Commission considers appropriate –(a) what due impartiality does or does not require, either generally or in relation to particular circumstances;
(b) the ways in which impartiality may be achieved in connection with programmes of particular descriptions;
and those rules shall, in particular, indicate that due impartiality does not require absolute neutrality on every issue or detachment from fundamental democratic principles.”
“Licensees may make programmes about any issues they choose. This freedom is limited only by the obligations of fairness and respect for truth, two qualities which are essential to all factually based programmes, whether on controversial topics or not. Impartiality does not mean that broadcasters have to be absolutely neutral on every controversial issue, but they should deal even-handedly with opposing points of view in the arena of democratic debate. Opinions should be clearly distinguished from fact”.
As to due impartiality it points out:
“The term “due” is significant; it should be interpreted as meaning adequate or appropriate to the nature of the subject and the type of programme. While the requirement of due impartiality applies to all areas of controversy covered by the Act, it does not mean that balance is required in any simple mathematical sense or that equal time must be given to each opposing point of view, nor does it require absolute neutrality on every issue. Judgment will always be called for. The requirement will also vary with the type of programme; the considerations applying to drama, for example, are different from those applying to current affairs programmes. News and personal view programmes are also different in kind and bound by separate sets of rules.
“3.4 Programme content: ‘major matters’
The Act requires the Code to take particular account of the impartiality due to major matters of political or industrial controversy or relating to current public policy.
What is a major matter will vary according to the current public and political agenda, whether national or regional. It would in most circumstances include political or industrial issues of national importance, such as a nationwide strike or significant legislation currently passing through Parliament. For licensees serving a regional audience, it would also include issues of comparable importance within their region. Clearly, a regional newsroom will have a different set of priorities from that of a network programme serving the nation as a whole.
In dealing with major matters of controversy, licensees must ensure that justice is done to a full range of significant views and perspectives during the period in which the controversy is active.
The treatment of major matters should not obscure the fact that due impartiality is required on all matters of political or industrial controversy or current public policy. The ways in which this may be achieved in relation to different programme types is dealt with in the following sections.
In addition to the general requirements relating to matters of political or industrial controversy or current public policy, the Act requires that any news, given in whatever form, must be presented with due accuracy and impartiality.
Reporting should be dispassionate and news judgements based on the need to give viewers an even-handed account of events. In reporting on matters of industrial or political controversy, the main differing views on the matter should be given their due weight in the period during which the controversy is active. Editorial discretion will determine whether a range of conflicting views is included within a single news item or whether it is acceptable to spread them over a series of bulletins.
Licensees may make programmes about any issues they choose. This freedom is limited only by the obligations of fairness and a respect for truth, two qualities which are essential to all factually-based programmes, whether on ‘controversial’ topics or not”.
If the freedom to choose the issue is to be given full effect then it extends to the choice the broadcaster makes in defining and limiting the issue. Having made the choice the broadcaster is then required to exercise due impartiality in handling the issue which has been identified.