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CMS Cameron McKenna LLP
i Cannon Place
The Editorial Complaints Unit 78 Cannon Street
Room MC3 D3 London
BBC Media Village ECAN 6AF
201 Wood Lane DX 135316 LONDON CANNON PLACE
London
W127TQ
and
ecut_,
11 January 2016
Your ref CAS-3485119-74B6PG By Post and Emaii
Our ref SCB/THRE/MIT/111850.00038
Dear Sirs
NOT FOR BROADCAST
Panorama - Post Office Limited
We write further to the correspondence with Andrew Head, Executive Producer for BBC Panorama,
regarding the Panorama programme broadcast on 17 August 2015 which related to our client, Post Office
Limited.
For reference, we have enclosed copies of the previous correspondence with this letter, including our
client’s Stage la and 1b complaints.
Stage 1b response
Our client remains dissatisfied with the responses provided by Mr Head (on 19 October and 9 December
2015) to the issues raised in our client’s Stage 1a and Stage 1b complaint letters and therefore wishes to
escalate its complaint, in certain key areas, to Stage 2.
The previous correspondence deals with a range of different areas of complaint. This Stage 2 complaint is
focused on two key elements of Mr Head’s response.
However, it is important to recognise that, although certain aspects of our client’s complaint are not
pursued further in this Stage 2 complaint, our client does not agree with the conclusions drawn by Mr
Head on any of the matters raised and does not accept that the programme was prepared or broadcast in
compliance with the BBC Editorial Guidelines. Rather than investigating and reporting this matter ina
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neutral manner, as is clear from our previous correspondence, our client’s input or offer of further
information was either declined, without good reason, or ignored. The result was a programme which was
neither balanced nor fair.
In relation a number of the areas of complaint, the disagreement appears to boil down to a difference of
opinion regarding the manner in which the programme and its content is likely to have been perceived by
viewers and the manner in which our client (and its broadcast statement) was treated. Inevitably, Mr
Head, who effectively ‘marked his own homework’, adopted a position which led him to the conclusion
that our client was treated fairly and that the viewers were not misled. Our client strongly disputes this.
Contributors
Paragraph 6.4.1 of the BBC Editorial Guidelines states as follows:
“We should treat our contributors honestly and with respect. Our commitment to fairness is
normally achieved by ensuring that people provide ‘informed consent' before they participate.
"Informed consent' means that contributors should be in possession of the knowledge that is
necessary for a reasoned decision to take part in our content,
Before they participate, contributors should normally know:
e why they are being asked to contribute to BBC content and where it will first appear
e the context of the content
e the nature of their involvement.
The more significant their contribution, the more detail we should provide. However, we should
normally expect to explain the following:
© The kind of contribution they are expected to make, We should tell them in advance
about the range of views being represented in the specific content to which they are
contributing and, wherever possible, the names of other likely contributors...”
In our letter of 15 September 2015, we referred to paragraph 6.4.1 in support of our complaint that our
client was:
© never provided with sufficient information about the allegations to be made against it,
nor was it provided with relevant details of the evidence upon which the BBC was
basing its allegations;
e not provided with the identity of Mr Roll prior to broadcast, or indeed sufficient details
of his role, involvement with Horizon and period of employment; and
e not provided with details of the nature of the contributions being provided by the other
contributors.
In his response, dated 19 October 2015, Mr Head stated the paragraph 6.4.1 of the BBC Editorial
Guidelines “refers to the informed consent of contributors who take part in the programme” and,
furthermore, that “‘since Post Office declined an interview this does not apply and the relevant guidelines
are 6.4.25 and 6.4.26”.
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Our letter of 16 November 2015 queried this interpretation of the word “contributors”. The response
received on 9 December stated:
“it is for the BBC to ultimately interpret and apply its own guidelines....I have confirmed that
it is indeed the BBC’s position that the intended meaning of the term “contributors” in
guideline 6.4.1 governs the informed consent of people taking part in the programme and not to
the fair treatment of organisations who are criticised (that being governed by other
guidelines).”
The interpretation that is therefore relied upon by Mr Head is that our client is not, and was not, a
“contributor” to the programme.
However, we fail to understand how Mr Head can reach the conclusion.
In particular:
e We do not consider “people taking part in the programme” and “organisations who are
criticised” to be mutually exclusive groups. It is perfectly possible for an organisation to be
criticised in a programme and yet still take part in the programme and its preparation.
e We fail to see how the term contributor can be interpreted to relate to parties who provide a
contribution by means of a recorded interview and not parties who provide a contribution by
means of a written statement. Under the simple dictionary definition of the term, both parties, in
this example, are providing content for the programme for broadcast. Furthermore, in the
introduction to section 6 of the Editorial Guidelines it is stated that “much of this section concerns
the process of recruiting those who participate in or are otherwise involved in our content”
[Emphasis added]. It is unclear whether this is intended to be a definition of “contributor” but, if
so, it clearly envisages that there are a range of ways in which a party may “be involved” in the
content.
e In any event, our client’s contribution was broader than a simple written statement. A detailed
and lengthy on-the-record briefing (which we understand was recorded, albeit not filmed for
broadcast) was provided to members of the Panorama team in advance of broadcast. If the nature
of possible contributions is a spectrum ranging from a recorded interview (which is clearly a
“contribution” for the purposes of paragraph 6.4.1 of the Editorial Guidelines) and a written
statement (which Mr Head purports is not a “contribution”), then it is wholly unclear where the
tipping point lies on the spectrum to turn a contribution into a “contribution”. In our view, even if
a written statement is insufficient (which we strongly dispute), the on-the-record briefing should
be sufficient to render our client a “contributor”. Certainly, content provided by our client
contributed to and was used in the programme.
e Furthermore, if one follows Mr Head’s interpretation of paragraph 6.4.1, it is unclear precisely
when a party ceases to become (or, indeed, becomes) a “contributor”. Paragraph 6.4.1 clearly
envisages that a party can be a “contributor” in advance of providing a contribution and, indeed,
in advance of such party reaching a conclusion over whether to provide a contribution at all.
Logically, all parties who are approached with the request to provide an interview (or, more
precisely, a “contribution” either are contributors or should be treated as if they are contributors
given that a contribution is being sought. In other words, until the relevant party has come to a
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definitive reasoned decision not to take part in the content at all, such party should be treated in
accordance with paragraph 6.4.1. Our client’s definitive decision not to provide a representative
for interview was only provided to the Panorama team on 4 August 2015. Therefore, even if a
recorded interview is the benchmark for a “contribution”, up until such date, the BBC was
required to comply with paragraph 6.4.1 in its dealings with our client. This time period covers
the vast majority of our complaint regarding the level of information and disclosure that was
provided to our client in advance of broadcast.
For the purposes of our Stage 2 complaint, we are therefore seeking clarification from the Editorial
Complaints Unit regarding:
(a) the meaning of the term “contributor” for the purposes of paragraph 6.4.1 of the Editorial
Guidelines and the nature of the “contribution” that is required to render a party a “contributor”;
(b) the approach that the BBC is required to adopt with parties from whom it is seeking a
contribution prior to any such party reaching a reasoned decision on whether to take part in the
BBC’s content (i.e. should the BBC comply with paragraph 6.4.1 in such a situation?);
(c) whether our client was, at any stage, a “contributor” for the purposes of paragraph 6.4.1 and, if
so, precisely when this definition applied to our client (bearing in mind that the material it
provided was used in the programme).
In this regard, we would also note the following:
e The corresponding section of the Ofcom Broadcasting Code (July 2015 edition) states at
paragraph 7.2 that “broadcasters and programme makers should normally be fair in their
dealings with potential contributors to programmes...”. Furthermore, under paragraph 7.3,
“where a person is invited to make a contribution to a programme...they should normally, at an
appropriate stage...be informed about the areas of questioning and, wherever possible, the
nature of other likely contributions...”. The Ofcom Code therefore clearly envisages that the
requirement to provide relevant information to contributors relates not only to people who
provide a recorded interview for a programme but also people who are invited to make a
contribution. Our client would fall within such a definition of a contributor.
e It is also noteworthy that the Ofcom Guidance Notes to Section 7 contain some guidance on the
term contributor (albeit in the context of a different paragraph (7.9)). The guidance states that
“[the term] “contribute” can include an interview, live or recorded, or a report of a written or
oral statement or comments”. By extension, a “contributor” would include a party that provides
an interview and also a party that provides a written statement or comments for inclusion in a
programme.
Our client strongly disputes that it was ever treated in a manner which was in compliance with paragraph
6.4.1 of the Editorial Guidelines, either before or after it reached the reasoned decision not to provide a
recorded interview.
For the avoidance of doubt, our client does not agree that paragraphs 6.4.25 or 6.4.26 of the Editorial
Guidelines were complied with for reasons clearly set out in our Stage 1a and 1b complaints.
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Mr Roll’s identity
Linked to the above point is our client’s complaint regarding the refusal to disclose Mr Roll’s identity to
our client prior to broadcast and, furthermore, the failure to provide other pertinent details about Mr Roll
such as the dates of Mr Roll’s employment which, for reasons explained in our previous correspondence
was highly pertinent. Paragraph 6.4.1, if applicable, specifically refers to providing “wherever possible,
the names of other likely contributors”.
By his letter dated 19 October 2015, Mr Head states that “/paragraph 6.4.1] does...give programme
makers the right to withhold names [of other likely contributors] where appropriate”. This is not what
paragraph 6.4.1 states. Paragraph 6.4.1 states that the names should be provided “wherever possible”, not
that these details may be withheld “where appropriate”. Mr Head’s letters have failed to explain why it
was not possible to provide such details to our client. Even if Mr Head’s test of ‘appropriateness’ is
adopted we have received no valid justification for the argument that it was appropriate to withhold such
details.
Mr Head’s letter of 19 October 2015 stated that:
“You were concerned that the BBC did not provide the name and employment dates of Richard
Roll.,.As you may know, a solicitor from the Post Office did contact two of our contributors
(Professor Mark Button and Ian Henderson) prior to broadcast. We wanted to report the
whistleblower’s honestly held beliefs because we believed they were important and in the public
interest. Therefore we were keen to ensure that this testimony was not unduly affected by
external pressure”.
The clear inference from the reference to the contact made with Professor Button and Mr Henderson and
its position in this paragraph was that, in light of this contact, the BBC was concerned about the sort of
approach that our client would be likely to make to Mr Roll if his identity was revealed. When it was
subsequently pointed out to Mr Head that the correspondence with Professor Button postdated the refusal
to disclose Mr Roll’s identity and that the correspondence with Mr Henderson was in respect of a
contractual obligation owed by Mr Henderson to our client (where no such contract exists between our
client and Mr Roll) and so could not have impacted on the decision not to provide Mr Roll’s name or
details, Mr Head stated that the contact with Professor Button and Mr Henderson “did not form the basis
of our justification for withholding Mr Roll’s identity”. This statement is patently inconsistent with the
wording of his letter of 19 October 2015 and, if it did not form the basis of the justification, then it is
unclear why this was even mentioned in the 19 October 2015 letter.
Furthermore, it has never been explained to us on what basis the BBC reached the conclusion that “Post
Office might...approach [the BBC's] interviewees and apply pressure to them’. Nor has it ever been
explained why the evidence which enabled the BBC to reach this conclusion was sufficient to mean that it
was not “possible” to provide Mr Roll’s identity or sufficient to mean that it was “appropriate” to
withhold disclosure.
We would request that the BBC provide this explanation.
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“External pressure”
Mr Head’s letter of 9 December 2015 states that “Post Office may not be in the best position to judge
whether or not [external pressure] should be brought to bear upon interviewees in our programme, What
the Post Office regards to be “due pressure” and what a contributor to a BBC investigation experiences
when subjected to it, may not be equivalent”,
Any allegation, whether by inference or otherwise, that our client places “undue pressure” on third parties
to attempt to influence their contribution to a BBC programme or otherwise is an extremely serious
allegation. The BBC has not justified the making of such an allegation, nor is it able to justify such an
allegation.
If such an allegation is to be repeated, published or broadcast, it is important to recognise that our client is
fully prepared to take all necessary steps to protect its reputation.
Other points
As noted above, our client’s complaint in respect of the BBC Panorama programme clearly extends
beyond the limited elements of the complaint that we are taking forward to Stage 2. Our client,
nonetheless, maintains its position and disagrees with the arguments put forward by Mr Head in his letters
of 19 October and 9 December 2015. The omission of reference to any of the other elements of our
client’s complaint should not be misconstrued as agreement with or acceptance of Mr Head’s stated
position.
Next Steps
Our client considers that the issues described above were not dealt with appropriately at Stages 1a and 1b.
Our client therefore wishes to escalate these aspects of its complaint to Stage 2. If no satisfactory
response is received our client reserves its right to further escalate its complaint to the BBC Trust.
We look forward to receiving your response within the targeted 20 working days.
Yours faithfully
I CMS Cameron McKenna LLP
CMS Cameron McKenna LLP
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