Secret TV agents? Why can't the police do their own investigations?

Undercover journalists can make compelling television. But compelling courtroom evidence is another matter
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The Independent Online

The journalists, like the police lawyers who supervised the unsuccessful prosecution of the BNP leader, are more likely to have their heads down in the office, wondering why they got into acting like quasi detectives and then aggravated the situation by agreeing to get into bed with a criminal prosecution.

The answer may well be that the police have signally failed to fulfil this undercover role in the first place, leaving a vacuum into which journalists, hungry for scoops, have increasingly leapt. While this can and has proved a rich vein to tap, there is no doubt that it has also led to its fair share of complications.

The programme makers can, at least, point to the show that started it all off: The Secret Agent. Broadcast 18 months ago on BBC1, the Griffin scoop became the lead story on the Ten O'Clock News and was followed by a succession of other news reports. Given the circumstances, it was therefore hardly surprising that the West Yorkshire Police knocked on the BBC's door shortly afterwards, asking for the tapes and some help. The BBC surrendered the tapes, which under the Police and Criminal Evidence Act would almost certainly have been seized anyway.

It would be churlish to suggest that the police should ignore such a juicy lead, thrown up on national television and researched for free by a group of bright, well-managed and well-schooled journalists. The material would have been reliably recorded and logged.

There was precedent, too. A similar approach by the Metropolitan Police in 2000 had led to the conviction of Chelsea "headhunter" football hooligans following an episode in the series MacIntyre Undercover. The two main culprits were jailed, one for six years and the other for seven. It was the police's most successful prosecution of hooligan ringleaders.

But such joint investigations between media and police can be fraught. While undercover cameras are only wheeled out once the programme makers have identified seriously anti-social or would-be criminal behaviour, and justified the making of the production under the criterion of public interest, there is no doubt where the programme's priorities mainly lie. Journalists want to build a compelling narrative, obtain viewer-friendly material, and ensure that the subject who is unwittingly on camera continues to behave in an appropriately and demonstratively bad manner. Ultimately the aim is to make a watchable, gripping television programme. The aim is not to get somebody locked up.

The relationship between media and police can be strained. Journalists and detectives might be targeting the same criminal fraternity but each camp will do it in their own way. They dress differently, they speak differently. They have a different modus operandi. On the one hand, it's the world of the raffishly dressed media egghead; on the other, the cop in mufti who is probably more comfortable in his uniform. Put the two camps together, and the combination can sometimes prove an extremely unhappy one.

A subsequent MacIntyre programme, involving an exposé of a care home, brought the investigative journalist into direct conflict with the Kent police. Its inquiry, following up MacIntyre's investigations, was destined for the criminal courts but ended up instead in the libel courts after the police made erroneous allegations in a Sunday newspaper.

The main beneficiaries of that collaboration were the libel lawyers and a small care charity to which MacIntyre donated his libel award. In fact, given the BBC's subsequent secret-camera exposé of racism, The Secret Policeman, which involved a BBC reporter posing as a police trainee in the Greater Manchester force, it's a wonder the two organisations can now work alongside one another at all.

Media organisations may have little to gain from such prominent prosecutions. Material already been watched by millions must now go through the courts and measure up to a quite different set of rules - the rules of criminal prosecution.

Court allegations must not only be factually correct (as they would be on screen), but proved beyond reasonable doubt. Control passes from the journalist to the police, but if the case goes wrong, it is the broadcaster that stands to get it in the neck too. Within hours of the Griffin outcome, the first negative remarks about the case appeared on the internet, lambasting all parties for mounting a pointless prosecution.

This makes one wonder why the police don't spend the time and money to pursue their own undercover investigations. It could be a lot simpler than picking up on an investigation set up with markedly different goals by somebody else. It may be they have been deterred by their own failures. The police attempt, long ago, to infiltrate and prosecute Chelsea hooligans, aptly named Operation Own Goal, badly misfired in the Appeal Court. Eventually, some newly rich hooligans left the scene clutching healthy compensation payments.

The police may also be nervous of the ramifications of picking up their material after posing as someone else; defendants' lawyers will jump at the chance to argue that evidence gatherers acted as agents provocateurs. However, journalists have met this argument in the courts and defeated it.

Undercover work should surely be meat and drink to the average police detective. As a legion of camera-carrying journalists and researchers have shown, a little bit of chutzpah and a bit of derring-do can, if you are lucky, take you a long way in the undercover world.

It's difficult to believe that the police could not find volunteers for a home-grown MacIntyre; strapping on an undercover camera and leading a secret life for a couple of months must surely beat sitting behind a desk in the Commercial Branch, or even chasing criminals in powerful police vehicles.

Directly gathered police evidence would get the prosecution off the hook when the defendant reached for the time-honoured argument that his case had been compromised because he had already been hung, drawn and quartered in front of millions of television viewers.

The name of the author, who has experience making undercover documentaries, has been changed.