The detectives who need watching

When journalists turn sleuths and go undercover they may find that they are breaking the law. By Simon Smith
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The Independent Online

Eleven pilots and three cabin crew have been removed from duty by British Airways pending the outcome of an internal investigation.

Eleven pilots and three cabin crew have been removed from duty by British Airways pending the outcome of an internal investigation.

The airline took immediate action following allegations by Channel 4's Dispatches programme that its regulations governing alcohol consumption before a flight may have been breached.

BA called for the programme-makers to hand over any evidence that would assist its inquiry as a matter of urgency, but made clear that to avoid any prejudice there would be no comment until the conclusion of that inquiry process.

The Pilots' Association protested at the "underhand and disgraceful methods which could be described as entrapment", that the programme seemed "rigged from the start" and the fact that ex-cabin crew members had been used to "befriend, entice and entrap crew members", then film them secretly. Channel 4 denied entrapment, and soundly argued that, if true, the matter is surely so much in the public interest that it deserves to be exposed.

The Deputy Prime Minister, John Prescott, is reported to have expressed concern that Channel 4 appeared to have had the information for some time but only made it public after the flights had taken place. The passengers would not have known of the risk at the time of flight, if a risk is shown to have existed.

The Court of Appeal reaffirmed on 11 October that entrapment is no defence in English criminal law. (Regina v Shannon). The unsuccessful appellant had supplied two grams of cocaine and a small amount of cannabis, together worth £240, to a tabloid journalist from the News of the World posing as an Arab sheikh in a sting operation designed to obtain evidence of a drug offence. The trial judge, it was said, had rightly found that the evidence fell short of actual incitement or instigation of the offences concerned and the sentence of nine months' imprisonment was upheld.

The classic definition of an agent provocateur is one who, having enticed another to commit a crime, then informs on him. It invariably involves an invasion of privacy, that recognised fundamental human right. The press or broadcaster justifies it on the basis that the public interest has been served in exposing the wrongdoer. Usually that exposé takes the form of a sensational front-page story, or highly publicised primetime television broadcast, but the profit reaped by the media who acted only in our, the public's, best interests is left unmentioned.

Rather than just immediately pass the information to the police or relevant authority to deal with the matter, which would adequately serve the public interest, the media consider they are entitled to their reward, manifesting itself in the sensational article or broadcast. Often, the tone of the report is that of moral judge, jury and executioner, which pass sentence well before the police or regulatory authorities are able to conclude proceedings, if any, brought as a result. The damage has by then been done, but the amateur detectives move quickly on and are unable to devote much space to the aftermath of personal devastation.

The regular abuses of the media's privileged position must be kept in check. We are fortunate that our courts will sensibly strike the balance. There are already indications of this. Dixons successfully argued before Lord Woolf in the Court of Appeal in April of this year, that the expression "privacy" in the Broadcasting Act 1996 was not restricted to individuals, but could also be enjoyed by a company in circumstances where its employees had been secretly filmed for the BBC's Watchdog programme.

The court did not as a result need to consider whether a company enjoyed the right of privacy as enshrined in the Convention of Human Rights, and it is not clear whether this would be a natural extension. Critics say it is an individual or human right, not a corporate one - but chief executives, managing directors and their employees are individuals.

The media organisation, meanwhile, as a company, not the individual journalists, relies in court on the human right of freedom of expression, and does not necessarily carry the mandate of the individual viewer or reader to champion the right to receive information.

The author is a partner in law firm Schilling & Lom and Partners