Legal Checklist - Criminality

Think very carefully before agreeing to film people talking about criminal activity they have undertaken and especially before actually filming criminal activity taking place.

People may be willing to be filmed talking about crimes they have committed. Whilst this in itself is not problematic and you will not have committed any offence by simply receiving the information, there are a number of things you must consider.

Firstly, the person admitting the criminal behaviour to you could be prosecuted after transmission of your film and your film, including all your rushes, could be obtained by the police by a court order and used as evidence. You should ask yourself why the person is willing to talk on camera about their criminal activity. Do they understand the potential consequences? Or, perhaps, they are trying to have you on.

From time to time television documentaries film interviews with criminals and in some cases actually show those people committing criminal offences. However, such filming is normally only undertaken by very experienced film makers and only after seeking expert advice. There are many dangers for the film maker when carrying out such filming, not least the very real risk that they themselves may end up being arrested for aiding, abetting or assisting the commission of a criminal offence. Something as seemingly innocent as giving a criminal a lift on your bike might be deemed to be assisting the commission of a criminal offence.

We strongly advise you, therefore, not to undertake the filming of criminal activity. However, if you do or if, whilst filming, you unwittingly get caught up in some criminal activity, you must always remember to remain as impartial observers and do nothing that could be deemed as encouraging or inciting criminal activity or as aiding or abetting it.

Here are some basic rules you should always follow:

• You must be absolutely scrupulous to avoid a charge of incitement or aiding or abetting any criminal behaviour.
• Avoid creating the impression of condoning criminal activity in your film
• Avoid demonstrating criminal techniques, e.g. how to make a bomb or steal a car
• Drug abuse should not be portrayed as problem free or glamorous
• You must make a careful distinction between observation and participation and keep any criminal behaviour at arms length
• You must never provoke behaviour which would not otherwise have occurred

Police Enquiries

In general, there is no duty to answer police enquires. You can refuse to answer their questions. However, you should NEVER answer dishonestly. In addition, remember that the police may be able to seize your film and rushes.

Generally, documentary filming and rushes are classified as "journalistic material", which is given special protection from the police. In practice, this means that if they want to seize such material, they must apply to a judge first. The judge then weighs up whether or not to make the order. In most cases though, judges do order disclosure of the material.

Payments to criminals

Whilst there is no law that prohibits making payments to criminals or those with a criminal past, there are broadcasting industry regulations in relation to making payments to criminals that appear in films broadcast on television. Whilst, strictly speaking, these rules do not apply to films shown on the FourDocs site, we do expect all film-makers to adhere to their spirit. The rules are as follows.

No payment should be made for an interview about his/her crimes, to a criminal whose sentence has not yet been completed.

Former criminals should not be paid for interviews about their crimes unless an important public interest is served.

No payment, promise of payment, or payment in kind, should be made to convicted or confessed criminals whether directly for an interview or other programme contribution by the criminal (or any other person) relating to his/her crime/s. The only exception is where it is in the public interest. While criminal proceedings are active, no payment or promise of payment should be made, directly or indirectly, to any witness or any person who may reasonably be expected to be called as a witness. Nor should any payment be suggested or made dependent on the outcome of the trial. Only actual expenditure or loss of earnings necessarily incurred during the making of a programme contribution may be reimbursed.

Example

You are making a film about the disaffected youth in your home town and you are filming with a group of young people that live on a nearby estate. One teenager admits on camera that he sell drugs, saying he’s proud of what he does. He offers to sell you some cannabis at a discounted rate and also invites you to film him selling drugs to others. You agree and ask him where you can film this. He says he knows a pub on the other side of town where he'll be able to sell some gear. However, he doesn't have transport so says that if you want to film this, you’ll have to give him a lift in your car. He also says he’s hard up so would need paying, £20 to cover his time. He asks if he can have the money up front now as he is meeting his supplier, Mr Big, in half an hour and he's £20 short of cash for his next supply. What do you do?

If you are an inexperienced film-maker we advise you decline all his offers and concentrate on filming with other contributors. Filming criminals and criminal activity should not be undertaken by novice producer/directors.

However, if you are more experienced and feel confident that you are able to undertake such filming, you must be aware of the potential risks.

Firstly, ask yourself: is he telling the truth? Is he wasting your time? Why would he lie? Does he fully understand that what he is saying is being recorded and is likely to be seen by others? What might be the consequences for him and you?

He's offered to let you film him actually doing drug deals? Why is he letting you do this? What about the other people, those that are buying the drugs from him? They're not likely to be best pleased at being filmed. Are you safe to go with him? How long have you known him? Are you on your own? What danger might you be putting yourself in?

He's also offered to sell you cannabis at a discounted rate. Obviously, if you accept, you will be in possession of a controlled substance and will have committed a criminal offence, so politely but firmly refuse his offer.

He asks you for a lift to a place where he can ply his trade. He hadn't intended going there today but is willing to do so, so you can film him. In such circumstances, the contributor is doing something that he would not otherwise have done had it not been for your intervention and, by giving him a lift, you may be assisting the commission of a criminal offence i.e. taking him to a place for the specific purpose of selling illegal drugs. Make excuses and decline giving him a lift.

If, and only after very careful thought, you decide that it is really important to film such a scene that it's safe to do so, you might say that you would like to film him selling drugs but only when he would be doing it in any event. He could perhaps tell you of a suitable opportunity to film him. In these circumstances, you're not causing something to happen that wouldn’t have otherwise, you’re merely there observing.

Finally, he's asked you for £20. You might be inclined to pay it but think again. Not only is it likely that it would breach our best practice guidelines since there would not be an important public interest in making such a payment, but think about how the payment might be perceived by others e.g. the police. What if your contributor is later arrested and the police are quizzing you about your involvement. You would have to admit that you had paid this person £20 knowing that money was to be used to buy drugs. Again, this may be seen as assisting the commission of a criminal offence. In short, decline to make any payment. If he then refuses to be filmed, then so be it. Find another contributor to film.

Summary

• Always ask yourself why people are willing to admit to criminal behaviour on film?
• Where a contributor is admitting to criminal activity on film, assess the seriousness of what they are telling you and what the reaction is likely to be when people see your film. For example, how serious are the offences that the person is admitting to; are the comments relevant to an on-going police enquiry or are viewers likely to alert the police to the admissions being made. In addition, has your contributor thought through the possible consequences of making such admissions on camera? Do they understand what could happen to them?
• Generally, unless you are an experienced film-maker, do not film criminal activity actually taking place. This may be dangerous and it may even result in you being accused of aiding or abetting the criminal behaviour. Always use your common sense.
• If you do find yourself in a position in which you can film criminal activity taking place, try not to get involved and always remain as an impartial observer. Never provoke behaviour that wouldn't have otherwise occurred and think very carefully before making any payments to criminals.
• Generally, there's no duty to help the police with their enquiries but if you do, never be dishonest.
• Always think about your own safety and those of your crew. Do not take any risks!