Legal Opinion: How accusations of TV fakery led to a libel action

The makers of Channel 4's Dispatches investigation "Undercover Mosque" last week won their libel action against West Midlands Police and the Crown Prosecution Service.

The story began as one of a string of fakery stories last summer during British television's annus horribilis – only this time it was not a "fair cop" and it was the cops who ended up in the dock, apologising in the High Court to the programme-makers for getting it wrong. The public apology and six-figure libel pay-out was the ultimate vindication for Hardcash Productions and their programme.

The documentary exposed extremism in a number of mainstream British mosques. The West Midlands Police investigated the programme's evidence and ended up investigating the programme's makers. In August 2007 it concluded its investigation and issued a press release jointly with the Crown Prosecution Service explaining why no one was to be charged but claiming my clients had completely distorted the views of Muslim preachers and clerics featured in the programme by misleading editing.

It was a great story in a summer of scandals which ranged from "Queengate" to premium-rate phone lines and was eagerly seized on by print and broadcast media alike – but it wasn't true and for the programme-makers the allegations were potentially career-ending. They had no choice but to sue.

Channel 4 (fronted by their indomitable Controller of Legal and Compliance, Jan Tomalin) backed them to the hilt, funding a libel action the channel saw as fighting an important point of principle.

There are several odd aspects to this case. Above all, this: journalists are used to having to beware of the law of libel. Fear of attack by libel claimants has kept many an important (or merely juicy) story on the spike or on the edit-room floor. Defamation law is usually associated with restraint on freedom of expression.

But here, the journalists' only weapon to protect their freedom of expression and restore their reputations was to use the law of defamation – to sue for libel.

It's also not every day that the CPS and the police are on the receiving end of legal proceedings. And why had they resorted to TV criticism? (We never got a proper answer to that question.)

The case is, as far as I am aware, the first time the CPS has been sued for libel. The police, however, have been in this position once before. I was also involved in that action, when my client Donal MacIntyre saw his BBC programme about care homes publicly trashed by Kent Police. We sued them for libel, and likewise won an apology and a six-figure settlement.

In each case, litigation was absolutely a last resort. It was not about money (my clients are donating the damages to charity, as did Donal MacIntyre). No one wants to divert funds from the crucial job the law enforcement authorities have to do.

The police and CPS in the Hardcash case had every opportunity to apologise and avoid a libel action when Ofcom dismissed the West Midlands Police's complaints and vindicated the making and broadcast of the programme. Ofcom went out of its way to say the programme served an important public interest. But the defendants failed to take up our offer of resolving the matter without any damages and with minimal legal costs.

Next time a police force finds itself tempted to pass judgement publicly on the making of a television programme, it is to be hoped that they think more carefully and even consider doing what all good journalists do as a matter of course – putting the allegations to the subject in advance of publication – a good practice that has avoided many an untrue story and many a libel claim.

Nick Armstrong is a partner in the media team at Charles Russell LLP, who acted for the claimants and Channel 4