Keeping cutting-edge Channel 4 TV shows on the rails calls for some radical action by its in-house lawyers. No wonder they are award-winners
Courtroom dramas have long been a staple of our TV diet. Rumpole of the Bailey, Judge John Deed, Silk and Law & Order have been entertaining viewers – and annoying real-life lawyers – for years.
But would the real thing have told a more gripping story? When Channel 4 invited The Lawyer to preview The Murder Trial earlier this month, it wasn’t just the broadcast of a real-life courtroom drama that caught our attention. Alongside documentary commissioner Nick Mirsky and director Nick Holt, it was Channel 4 in-house lawyer Dominic Harrison who got the idea through a normally closed door.
For those who did not see the programme, the first entire case to be filmed in the UK, The Murder Trial showed the retrial of Nat Fraser after he was convicted in 2003 of murdering his wife. With more than 70 witnesses and 104 pieces of evidence, but no weapons, body or crime scene, The Murder Trial gave the public a rare glimpse into a system most will never see.
“There’s a charge of murder, but there’s no body,” said Edinburgh-based court reporter Brian Horne. “How on earth does the prosecution deal with something like that?”
Whichever side you take on cameras being allowed in court (Holt had to squeeze a six-week trial into a two-hour television slot), the programme was groundbreaking. Like many of Channel 4’s TV series – Drugs Live: the Ecstasy Trial, The Plane Crash, Derren Brown: Plays Russian Roulette, Big Brother or One Born Every Minute – The Murder Trial sits among three decades of controversial documentaries.
But who enables these boundaries to be pushed? For every programme broadcast on Channel 4 there’s an in-house lawyer working frantically behind the scenes. With The Murder Trial, in-houser Harrison negotiated with the Scottish High Court for three years to get permission to film.
“The criterion for filming a trial is to do it without risk to the administration of justice,” Harrison, a qualified Scottish solicitor, told us earlier this year. “When Lord Bracadale wanted further reassurance and information we were able to satisfy the court that we could film first, then get consent from all involved later.”
This was an obvious risk for Harrison and his team, given that they could have filmed five weeks’ worth of evidence without getting consent from the 70 witnesses to broadcast. In the end, only one is thought to have declined.
While a risk-taking private practice lawyer might be unusual, in-house lawyers at TV companies need to wear the hat of both producer and lawyer.
“Our reputation stands and falls as a team, so we all need to have a good working relationship with our producers,” says Harrison. “We can’t walk around in stuffy suits and demand to look over their shoulders – we are not censors but enablers.’’
In that strand, enabling the broadcaster to go ahead with programmes such as Plane Crash, which crashed a Boeing 727 to study the effect on test dummies, and Drugs Live, which tested 25 volunteers after they took the class A drug MDMA, has kept Channel 4 cutting-edge. But where do the legal team even begin when these ideas land on their desks?
“We’re sort of like a barristers’ chambers but without the competition,” says head of legal and compliance Prash Naik, who celebrated his 19th year at the broadcaster on the day of our interview. “For example, Mark [Lambert] does a lot of drugs – not personally but in terms of his expertise in this type of programming – while Theo [Dorizac] specialises in difficult access documentaries. Dominic [Harrison] is our Scots law expert, while Heather [Jackson] has carved out a speciality in filming and working with children.
“It’s important to care about the programmes you’re working on, but you don’t have to like everything we make – I’m not so keen on [TV series] Embarrassing Bodies, but it’s good for our new lawyers to cut their teeth on the challenging content in the programme.”
When Naik first read the pilot script for what became the popular teen series The Inbetweeners, he admits he found it provocative.
Has the channel become more controversial over the years?
“Over time the producers [of The Inbetweeners] continued to push the boundaries of taste,” he says of the show. “And we’re here to help them do that.”
They have certainly done a good job. The Inbetweeners won an award for Outstanding Contribution to British Comedy in 2011 and has twice been nominated for a Bafta. Its spin-off movie went on to take £13.2m in its opening weekend, beating Bridget Jones sequel The Edge of Reason to the highest opening weekend for a UK comedy.
But the type of programmes we watch on Channel 4 today, The Inbetweeners included, seem miles away from the C4 world that launched with Countdown in 1982. Have the issues changed for its lawyers?
“When I started we had one channel that only broadcast during daytime and the evening. Now we have four channels, including three digital ones, broadcasting 24 hours a day,” says senior lawyer Mark Lambert, who has been with the network since 1987. “However, the Channel 4 remit is still essentially the same – to be innovative, experimental and creative, to appeal to a culturally diverse society and to promote alternative views and new perspectives. The industry has refined and expanded but the issues and challenges for Channel 4 and, consequently, its lawyers, remain the same.”
Indeed, controversial TV programmes such as Drugs Live and Plane Crash are not just inventions of the noughties. In 1986 the channel began broadcasting its ‘Red Triangle’ series of 18-certificate late-night avant-garde films, while in 1994 it made headlines when it broadcast the first pre-watershed lesbian kiss on Brookside, the broadcaster’s first soap opera.
Although Channel 4’s experimental side has not changed that much, you cannot ignore what has been going on in the outside world.
“There’s a lot of legislation out there which hasn’t catered for public interest journalism,” points out Channel 4 lawyer Theo Dorizac. “Leveson has brought data protection and personal information into focus. Privacy is much more on our radar now – libel and privacy are on an even keel.”
This is particularly relevant for Channel 4’s flagship current affairs strand, Dispatches.
“Advising on Dispatches inevitably takes up a large amount of our time,” adds Naik. “Those under investigation increasingly tend to defer to their lawyers, some of whom take the view that attack is the best form of defence, when in many cases they would be better advised to address the allegations put to them.”
Just hours before an undercover Dispatches investigation was due to be broadcast last year, the legal team managed to overturn a High Court injunction brought by ticketing giant Viagogo.
“[Viagogo] tried to injunct our Dispatches investigation into hidden practices in the secondary ticketing market, which we defeated,” explains Channel 4 in-houser Emily Barber. “Then they rushed off to the Court of Appeal hours before the programme was being broadcast and lost.”
The rift between Channel 4 and the Church of Scientology is another example. In 1997 the sect is reported to have hired a private eye to spy on the Channel 4 makers of a documentary on Scientology. Years later, with the channel broadcasting one-hour documentary Scientologists at War, that relationship looks unlikely to repair.
“For the Scientology programme it was important we got a balanced view and included their response,” says Barber, who advised on the latest show.
“However, [giving them] the right to reply opened the gates to a deluge of argument. After a long drawn-out correspondence, the Church of Scientology said they didn’t want to be interviewed and got their firms [understood to be Carter Ruck and Johnsons Solicitors] to bombard us with letters.
“We had to make sure the allegations were framed fairly and that their full statement was included at the end of the programme.”
What about the legal issues with other – some potentially dangerous – documentaries? Lambert was the lawyer advising on Plane Crash, which took four years to make. Deliberately crashing a plane had only ever been attempted – unsuccessfully – by NASA.
“For [Plane Crash] we had long negotiations over where to do it with the relevant government authorities, eventually moving the plane and project from the US to Mexico,” explains Lambert.
“This project was a totally new challenge for me, ensuring that the appropriate permissions had been obtained by the Mexican authorities, that we had the necessary insurance and that we had the proper safety protocols and procedures in place so that we were able to crash the plane safely in the Sonoma Desert.
“The data Channel 4 and the producers obtained from the crash would, said the scientists, keep them busy for years.”
Lambert also advised on another science-led show, Drugs Live, which saw critics accuse Channel 4 of glamourising the Class A drug.
“It was important that the Drugs Live programmes complied not only with the relevant drugs legislation but also the Ofcom Broadcasting Code and did not condone,
encourage or glamourise illegal drug use,” he continues.
“Since the subject of illegal drug use is a matter of public policy, we had to ensure that there was an appropriate range of views about the risks and effects of the use of the drug. There’s often a significant overlap when it comes to editorial desires and legal desires for achieving a balanced debate on a subject. It was all-important in this case that we took steps to ensure the welfare of those who contributed to the programmes.”
The unique nature of these shows makes picking external counsel a bit of a headache.
“We specifically do not use large firms, partly because big firms tend to act for a lot of the companies we investigate, they can be unimaginative in litigation and their costs are prohibitive,” Naik says. “It’s always about the individual lawyer and not the firm or brand they worked for.”
For media advice the team uses a group of West End lawyers. For libel this includes Wiggin consultant Amali De Silva and Aslan Kousetta Charles name partner Susan Aslan (who is ex-Olswang), while Simons Muirhead & Burton partner Louis Charalambous and Burton Copeland partners Paul Morris and Ellen Peart advise on criminal matters.
The channel’s US attorney is partner Russell Smith at New York’s Smith Dehn, while barristers include Heather Rogers QC at Matrix, Jonathan Caplan QC at 5 Paper Buildings and Matthew Nicklin QC and Adrienne Page QC of 5RB.
“Unlike advising on a newspaper or a book where it’s largely just words on paper, here you’ve got to think about the juxtaposition of images, music and incidental references as the scope for potential claims,” Harrison adds. “Complaints can be vast.”
The success of The Murder Trial, which garnered critical plaudits and prompted viewers to praise the advocates who appeared in court, is testament to the skills of Channel 4’s own lawyers and their ability to triumph in the cauldron of television’s courtroom.
BBC Worldwide: all-round complexity
A PhD student is probably sitting in a dark room somewhere running up a thesis positing that if the BBC were a country, its influence and budget would make it a permanent member of the UN Security Council. If that is the case, Martyn Freeman (right) would be general counsel to that country’s foreign office.
As GC of BBC Worldwide, Freeman orchestrates the legal and business affairs division of the BBC’s commercial arm, involving around 150 staff in London, Paris, the US and Australia.
He oversees an annual legal spend that ranges from £500,000 to £1.5m, with the main beneficiaries being London-based firms Field Fisher Waterhouse (FFW), Olswang and SJ Berwin, and US global practice Reed Smith.
A significant challenge for Freeman’s team is to juggle a multi-platform, multimedia, multi-territory and multi-format environment. At its UK headquarters, the legal team sits in seven operating divisions: magazines; consumer products; sales and distribution; channels; content and production; digital entertainment; and brands, consumers and new ventures.
Freeman has certainly served his time with Auntie – racking up 17 years in various roles before being appointed the corporation’s first GC for BBC Worldwide in November 2011.
As for external law firms, BBC Worldwide uses BBC panel players – phoning Olswang, FFW and SJ Berwin for competition and regulatory advice, and Reed Smith for litigation.
“Day-to-day stuff we deal with in-house,” Freeman told The Lawyer about a year ago. “But if we’re doing a joint venture, a merger, a high-value transaction or want their perspective on how to deal with an issue, we’ll go to [outside counsel].”
Dealing with and protecting global brands is a powerful issue for Freeman and his team. Programmes such as Top Gear, Strictly Come Dancing (Dancing with the Stars in the US) and Doctor Who have won huge followings around the world, requiring his lawyers to advise on issues ranging from BBC Live Events to new products such as console games.
The light-speed pace of change in media also concentrates the mind.
“[It]’s fascinating the way that digital is transforming the way and the speed at which everything works,” says Freeman. “The most challenging things
are the international complexity of the business and all the compliance and legal issues that this throws up, and the pace of digital change and the way it’s affecting what we do, how we do it and how we pay people for it.”
Channel 5: taming the Big Brother beast
Big Brother devotees will have looked on a while ago with all the salivating obsession of a Roman coliseum crowd when Daley Ojuederie threatened to “nut” fellow contestant Hazel O’Sullivan before allegedly slapping her posterior, getting ahold of her neck and pinning her to a bed.
All grist to the reality telly culture mill, but next to O’Sullivan, the person potentially caused the most pain by the 28-year-old boxer’s aggression is Marcus Lee, Channel 5’s director of legal and commercial affairs.
Run-ins in the Big Brother house are arguably the biggest professional nightmare for the station’s top lawyer. Ojuederie got the boot – a process that meant the C5 legal team had to spring into action in the middle of the night.
“But don’t get the wrong impression,” emphasises Lee, “that doesn’t happen all the time.”
Indeed, BB has been a godsend to the station’s executives and a boon to the legal department. Pinching the programme from Channel 4 in 2011 was a coup that is beginning to pay dividends.
Viewing figures for the highlights regularly hit 1.3 million, with the bear-pit show driving the station’s bid to overtake its main rival in the chase for overall viewers.
Bagging the BB deal required a huge effort from Lee and his team, not least as he had only been in the top legal slot for about a year when negotiations hotted up.
“It was massive for us – like bolting a business on top of the existing business,” he says.
Lee brought in a spot of outside advice from City commercial specialists Rosenblatt, but says: “I’m proud that we handled so much of that deal within our team. It was a complicated long-form agreement that involved a few late nights. Credit to my team for getting the result, as the programme is doing great things for us.”
Lee qualified in 2002 at private client specialist Charles Russell before jumping in-house. First,
he went to a subsidiary of Viacom before moving to Paramount Pictures, where he spent three years as counsel for Europe.
Then it was off to Richard Desmond’s publishing giant Northern & Shell, which bought C5 three years ago.
Lee’s team at the broadcaster consists of 10 lawyers, a group of paralegals and a seven-strong non-lawyer compliance function.
Cutting the BB deal with mostly in-house resources is not unusual for Lee’s department. He maintains that some 97 per cent of legal matters are handled by his team, with only the most complicated and obscure farmed out.
“I have a rough yearly target for fee expenditure which is pretty meagre,” explains Lee. “But we feel, for the areas we work in, we are the experts. Sometimes you get a firm claiming it can do work, and are then let down as its lawyers may know the field on paper but don’t have practical experience.”
Data protection is one of the fields in which Lee seeks outside expertise, along with some types of litigation. There is no panel for C5 but he has his favourite law firms – along with Rosenblatt, Olswang and DLA are on an informal list, as is a team of three baby barristers from Lincoln’s Inn media chambers 5 Raymond Buildings – at least for the duration of BB – complementing three lawyers from Lee’s content legal team.
“Those six take it a week at a time on the rota – and it’s pretty full-on when you’re in the middle of it.”
Especially when the punches start to fly.