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Key Points

• The Editorial Guidelines require that any proposal to undertake an investigation into serious crime or serious anti-social behaviour must be referred to a senior editorial figure or, for independents, to the commissioning editor. Editorial Policy and Programme Legal Advice must also be consulted.

• Any proposal to send someone to work as an undercover operative on an investigation into crime or serious anti-social behaviour must be referred to Editorial Policy and Programme Legal Advice. Before any undercover work begins, appropriate members of the production team should be aware of all relevant Editorial Guidelines and guidance, practices to be followed when using secret filming equipment, how to carry out filming in such a way that the footage and its evidential value can be verified by the production team, the contemporaneous note-taking and record keeping required, and legal and safety considerations.

• Appropriate security measures should be used to prevent confidential information or personal data, as defined by UK data protection legislation, from being accidentally or deliberately compromised. This may include data encryption processes and password protection.

• Accurate and reliable note-taking is an essential and prime journalistic craft; it can also be crucial to protecting the reputation of an investigative programme, its production team and the ³ÉÈË¿ìÊÖ. If filmed evidence is later disputed by those under investigation, records and notes documenting what has been captured on camera, how it was filmed and any relevant surrounding events can be an important tool for validating the filming.

• It is important to think through possible scenarios and dilemmas that may be faced by an undercover operative in advance and draw up protocols on how to proceed. At all times, the requirements of the investigation should be balanced with responsibilities to the public and others. The public interest in ³ÉÈË¿ìÊÖ journalism should not be outweighed by public concern about any harm that may have been caused by the methods used.

• If the parameters of the investigation shift significantly during production, this should be confirmed and agreed with the senior editorial figure and discussed as required with Editorial Policy. It may be necessary to go through some of the initial procedures again to ensure the refocused investigation still has the necessary prima facie evidence and public interest.

• When making use of evidence from whistleblowers, it is important to consider any ulterior motives they might have, particularly if they no longer work for the organisation or company concerned and their claims could be discredited by the manner of their dismissal. Whistleblowers should not normally receive any payment or other inducement for their involvement.

• Throughout the editing process, it is important to ensure the finished programme reflects the evidence fairly and accurately, taking account the context in which any secretly recorded incidents took place.

• When the allegations to be made in the film have been identified, the right of reply process should be followed in accordance with the Editorial Guidelines.

Introduction

The term 'Investigation' can be applied to many types of journalistic content, designed to shed light on matters of public interest. All sorts of content may include elements of investigation. However, this guidance is confined to larger-scale investigations that scrutinise an individual, groups of individuals, a business or other organisations to reveal serious crime, serious anti-social behaviour or wrongdoing, or other such matters of significant public interest. They may also contain a significant element of undercover work (and usually ongoing use of secret recording) central to the evidence-gathering - particularly where an individual may be sent undercover to work within or otherwise infiltrate that organisation.

The Editorial Guidelines contain many principles and practices relevant to investigations; the guidance here is some of the best practice learned from a variety of such investigations over the years. Other guidance notes – such as those relating to Secret Recording and Right of Reply – include relevant information too, and it is advisable to discuss all investigations with Editorial Policy throughout the process.

Where possible, investigations should normally be published or broadcast when ready rather than held for scheduling purposes or as part of a series. Any exceptions should be agreed beforehand so the risks of the content sitting on the shelf can be properly assessed on a case-by-case basis.

Start-Up Considerations

The Editorial Guidelines require that any proposal to undertake an investigation into serious crime or serious anti-social behaviour must be referred to a senior editorial figure or, for independents, to the commissioning editor. Editorial Policy and Programme Legal Advice must also be consulted. It can often be helpful to produce a detailed outline laying out the aims of the investigation, the existing evidence and the parameters of the inquiry.

(See Editorial Guidelines Section 8 Crime and Anti-Social Behaviour: 8.4.38 – 8.4.42)

It will normally be necessary to hold a start-up discussion with key members of the production team, undercover operatives, a senior editorial figure and Editorial Policy, Programme Legal Advice and ³ÉÈË¿ìÊÖ Safety, in order to consider the risks and management of the investigation. These discussions should be held at the earliest possible stage and may even be required before a firm commitment is made to production of a programme.

Any proposal to send someone to work as an undercover operative on an investigation must be referred to Editorial Policy and Programme Legal Advice.

(See Editorial Guidelines Section Privacy 7: Secret Recording 7.4.11 – 7.4.14 and Secret Recording for Investigations including Undercover Investigations 7.4.15 – 7.4.23)

Before any undercover work begins, appropriate members of the production team should be aware of all relevant Editorial Guidelines and guidance, practices to be followed when using secret filming equipment, how to carry out filming in such a way that the footage and its evidential value can be verified by the production team, the contemporaneous note-taking and record keeping required, and legal and safety considerations.

Particular attention should be given to any measures that may be necessary to ensure filmed material can be validated and the resulting investigation can withstand the closest scrutiny. This is even more important when using an undercover operative working in the field alone.

(See below: Authentication of Material)

Data Security

Appropriate security measures should be used to prevent confidential information or personal data, as defined by UK data protection legislation, from being accidentally or deliberately compromised. This may include data encryption processes and password protection.

It is recommended that personal or confidential data is stored on a ³ÉÈË¿ìÊÖ approved Cloud service such as Dropbox, particularly if it contains restricted or sensitive personal information.

If that is not practicable because, for example, information needs to be accessed off-premises or needs to be backed up, then an encrypted portable storage device may be used (but only for as long as is necessary).

Most data, including all personal data, held on a portable storage device must be encrypted in compliance with the , and the and kept secure at all times.

Some data, such as editorially sensitive data or children's personal data, must be given an additional layer of security and be pre-encrypted (ie with password protection) before being uploaded to Cloud services or portable storage.

Contact Information Security for more advice. For information about what protection is needed for different types of data see advice on . See guidance on for Windows and Mac.

The ³ÉÈË¿ìÊÖ is legally required to report personal data breaches to the Information Commissioner's Office within 72 hours of becoming aware of the incident.

Conducting the Investigation

Secret Recording

Any secret recording proposals must be conducted in accordance with the Editorial Guidelines andapproved using the established procedures.

The cover story or any invitations to targets designed to encourage them to talk should be carefully thought through, avoiding any unjustifiable entrapment. Advice is available from Editorial Policy and Programme Legal Advice.

(See Editorial Guidelines Section 7 Privacy: Secret Recording 7.4.11 – 7.4.23)

(See guidance: Secret Recording)

Record Keeping

A daily diary should usually kept by the production team, detailing all contacts with the subject of the investigation whether filmed or not.

When making ongoing use of secret recording, secretly recorded material needs to be logged and kept secure and preferably copied, with originals kept in secure storage. Such logs usually contain a brief summary of what is on the material and who filmed it. It is also helpful if the base team review the material and keep a log that is reviewed by the undercover team on return.

(See below: Authentication of Material)

Material from Third Parties

The use of any material recorded by a third party, whether gathered openly or covertly, must be in accordance with the Editorial Guidelines.

(See Editorial Guidelines Section 3 Accuracy: 3.4.10 – 3.4.14 and Section 7 Privacy: 7.4.29 and 7.4.32)

Payments

Any proposed payment to contributors must be in line with the Editorial Guidelines.

(See Editorial Guidelines Section 8 Crime and Anti-Social Behaviour: 8.4.19 – 8.4.20 and 8.4.34 – 8.4.35)

When Plans Change

If the parameters of the investigation shift significantly during production, this should be confirmed and agreed with the senior editorial figure and discussed as required with Editorial Policy. It may be necessary to go through some of the initial procedures again to ensure the refocused investigation still has the necessary prima facie evidence and public interest.

Working Undercover

All proposals to send an undercover operative to work in a business or organisation must be conducted in accordance with the Editorial Guidelines.

(See Editorial Guidelines Section 7 Privacy: 7.4.15 – 7.4.23 and Section 8 Crime and Anti-Social Behaviour 8.4.38 – 8.4.40)

The Editorial Guidelines require that Editorial Policy is consulted over job applications, which includes the use of a CV. This should normally contain as much accurate information as possible, and the amount of false information kept to a minimum. Should the application be successful, an entirely fictitious past and persona creates extra pressures in what is already a uniquely demanding situation, and could jeopardise the investigation.

When someone is working undercover, another member of the production team is normally based nearby in order to provide back-up or other assistance and support (including debriefs and help with record keeping).

(See below: Authentication of Material)

Normally the secret recording will only commence when the operative has gained evidence of or witnessed the behaviour and practices they are seeking to capture. There may be certain occasions where recording can begin immediately, but the parameters for this will need to have been agreed in advance. Operatives should usually keep a daily diary noting the details and context of what was filmed and why.

(See above: Record Keeping, and below: Authentication of Material)

Undercover operatives are in place to gather evidence and record the story, not to create the story. If a manager in the business or organisation under investigation (or someone else in a position of authority) gives instructions to our undercover operative do something that departs from rules, regulations or best practice, it may be appropriate to follow those instructions where this is important evidence showing how an organisation operates and manages their staff. However, care must be taken to assess the possible implications or consequences of an undercover reporter following such instructions. For example, could it have significant negative consequences for innocent members of the public or could it be argued convincingly that the operative should have questioned the instructions or simply refused to comply? Where operatives could face such dilemmas, it is important to think through possible scenarios before going undercover and draw up protocols on how to proceed. At all times, the requirements of the investigation should be balanced with responsibilities to the public and others. The public interest in ³ÉÈË¿ìÊÖ journalism should not be outweighed by public concern about any harm that may have been caused by the methods used.

Operatives whose true identity is discovered and are directly challenged as to whether they are filming should normally respond truthfully, without going into detail or engaging in protracted discussions. It is usually advisable to then leave as quickly as possible, remaining calm and non-confrontational, making clear that the programme's Editor will deal with the matter.

Using Whistleblowers

Investigations may often include evidence from whistleblowers. While corroborating their story, it is important to consider any ulterior motives they might have, particularly if they no longer work for the organisation or company concerned and their claims could be discredited by the manner of their dismissal. Consideration should also be given to what steps, if any, a whistleblower has given to resolving their concerns within the relevant organisation and whether or not it is appropriate for them to take any such steps before the ³ÉÈË¿ìÊÖ acts.

Where whistleblowers still work for an organisation under investigation and their identity needs to be protected, care must be taken not to identify them in any notes or other material that could be seen by third parties (particularly if that material could later be called upon as evidence in a court case or complaint).

(See guidance: Anonymity)

Whistleblowers should not normally receive any payment or other inducement for their involvement.

Using Private Investigators

The Editorial Guidelines state that 'content makers should normally undertake all the tasks associated with investigative journalism themselves'. Any proposal to use a private investigator must be conducted in accordance with the Editorial Guidelines.

(See Editorial Guidelines Section 7 Privacy: 7.4.42)

(See guidance: Use of Private Investigators)

Authentication of Material

Scrutiny

A successful investigation is likely to lead to detailed examination of the content makers' work (including all rushes and recorded material) – particularly when it uncovers wrongdoing that leads to prosecution or may have a commercial impact on the subject of the investigation. Those under investigation, or their representatives, will often seek to undermine the programme's integrity by looking for weaknesses in its evidence or investigative process, or questioning the good faith of those who gathered the evidence. Production teams should bear this in mind at all stages of the investigation and be confident that all material used, supporting evidence (including records and notes) and the processes followed are properly preserved and can withstand the closest scrutiny.

Withstanding such scrutiny will often depend on the ability of the production team to demonstrate the authenticity of any evidence supporting the allegations contained in the eventual content.

Authentication

The Editorial Guidelines state that "Where appropriate to the output, content makers should validate the authenticity of documentary evidence and digital material". The Editor of an investigative programme has overall responsibility for ensuring that all evidential material to be broadcast meets the standards necessary to achieve due accuracy.

(See Editorial Guidelines Section 3: Accuracy: 3.4.1)

Each allegation contained in ³ÉÈË¿ìÊÖ content should be considered in isolation. The weight or quantity of evidence obtained throughout the investigation may not be, on its own, sufficient to overcome any doubts raised about the accuracy of an individual allegation or piece of evidence.

The need to validate the authenticity of filmed or recorded evidence should be considered at the outset of an investigation - for example in a start-up meeting with key members of the production team including any undercover operatives or others working 'in the field'. Consideration should be given to gathering supporting material where possible. This may include consistent and unbroken time-coding of rushes, video diaries, and written records or notes of the events that have been witnessed by the team's undercover operatives.

(See above: Start-Up Considerations and Editorial Guidelines Section 3: Accuracy: 3.4.15)

Records and Notes

Accurate and reliable note-taking is an essential and prime journalistic craft; it can also be crucial to protecting the reputation of an investigative programme, its production team and the ³ÉÈË¿ìÊÖ.

If filmed evidence is later disputed by those under investigation, records and notes documenting what has been captured on camera, how it was filmed and any relevant surrounding events can be an important tool for validating the filming. These notes should normally be made as contemporaneously as operationally possible. It is advisable to give early consideration to what notes will be required, who will make them and how they will be made. This also applies to recorded audio evidence.

(See above: Start-Up Considerations and Editorial Guidelines Section 3 Accuracy: 3.4.15)

In addition, it is advisable to keep a detailed and contemporaneous diary of all other dealings with the subject of the investigation, outside of those that have been secretly recorded.

Remember that all records and notes may become relevant to a prosecution, other legal action or complaint to a broadcast regulator that follows an investigation.

Operatives Working Alone in the Field

It is usually recommended for an undercover operative to be supported in the field by a member of the programme team. This team member can offer production and safety support, as well as assistance with keeping records that validate any filmed material and corroborate the claims of the finished programme.

Where it is not possible for the operative to be supported in the field, the Editor (along with the production team) must subject the filmed or recorded material to the closest possible scrutiny, review the available supporting material and question the operative, in order to consider where any inconsistencies may lie and satisfy themselves as to the circumstances in which evidence was obtained, its significance and ability to withstand the scrutiny that can follow a successful investigation.

Editing

Throughout the editing process, it is important to ensure the finished content reflects the evidence fairly and accurately, taking account the context in which any secretly recorded incidents took place. Achieving this may be aided by keeping detailed notes of what is on all secretly recorded material, including a list of who has been filmed, with the producer reviewing all of the material before editing begins.

Apparently damning events should not be lifted out of context. A transcription of the full surrounding material can help to avoid this.

Where a secretly recorded target has been encouraged to talk by an undercover operative, this should be made clear in the programme.

Use of a 'Second Chair'

When dealing with a large amount of secretly recorded material, where only a small proportion can appear in the finished programme, it is important that the editing process does not distort the overall meaning or significance of the secretly recorded material as a whole. In some circumstances it can be helpful to have a senior editorial figure (an Executive or someone with appropriate editorial expertise agreed by a senior manager) acting as a 'second chair', reviewing the thesis of the programme, the allegations to be made and the editing process in the context of all relevant rushes.

Right of Reply

When the allegations to be made in the film have been identified, the right of reply process should be followed in accordance with the Editorial Guidelines.

(See Editorial Guidelines Section 6 Fairness: 6.4.43 – 6.4.49)

(See guidance: Right of Reply)

³ÉÈË¿ìÊÖ Material and Third Parties

For editorial guidelines about external requests for transmitted or untransmitted material see Section 13 Use of ³ÉÈË¿ìÊÖ Content after Publication or Broadcast: 13.4.31 – 13.4.41.

For editorial guidelines about untransmitted and unused material from discontinued investigations see Section 8 Crime and Anti-Social Behaviour 8.4.43.