Not Upheld
Complaint by Mr Jeremy Bamber
Killing Mum and Dad: The Jeremy Bamber Story, Sky Three,
14 September 2010
Summary:
Ofcom has not upheld Mr Bamber?s complaint of unfair treatment and
unwarranted infringement of privacy in the making and broadcast of the programme.
The programme profiled Mr Bamber who was convicted in 1986 of the murder of his
mother and father, his sister and her two young sons. It examined the police
investigation and included a number of contributors who had been involved in some
way with the case or the Bamber family. One of the principal contributors was Ms
Kerry Daynes described in the programme as a“Consultant Forensic Psychologist”.
Throughout the programme, Ms Daynes commented on Mr Bamber?s character and
gave her opinion that his behaviour displayed “psychopathic” traits. The programme
also included interview footage with Ms Barbara Wilson, the secretary of Mr Bamber?s father, who said that she had witnessed Mr Jeremy Bamber with “other men” and “putting his arm around them and kissing them”.
Mr Bamber complained to Ofcom that he was treated unfairly in the programme as broadcast and that his privacy was unwarrantably infringed in the making and thebroadcast of the programme.
Ofcom found the following:
?
Ms Daynes? contribution to the programme was clearly presented as her professional opinion of Mr Bamber and the broadcaster had taken reasonable care to ensure that the programme did not present, disregard or omit material facts in a way that resulted in unfairness to him.
?
Although Mr Bamber had a legitimate expectation of privacy in the circumstances, Ofcom concluded that the broadcaster?s right to freedom of expression and the genuine public interest in examining the evidence against Mr Bamber and the possible motivation for the murders outweighed the intrusion into his privacy. Therefore, there was no unwarranted infringement of Mr Bamber?s privacy in either the making or the broadcast of the programme.
Introduction
On 14 September 2010, British Sky Broadcasting Limited (“BSkyB”) broadcast on its
channel Sky Three an edition of a series of programmes entitled
Killing Mum and Dad which profiled murderers convicted for killing their parents. This particular edition
profiled Mr Jeremy Bamber who was convicted in 1986 for the murder of his mother and father, his sister and her two young sons. Mr Bamber is currently serving a life sentence with a whole - life tariff.
The programme began by showing a text caption stating that “Jeremy Bamber wasfound guilty at a trial in 1986. This programme is based on evidence from that trial, including photographs used in the proceedings”. It then examined the police investigation into the murders and profiled Mr Bamber?s life leading up to the murders, his arrest and his conviction for the crimes. In doing so, the programme
featured archive footage and still photographs of Mr Bamber.
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A number of contributors were interviewed in the programme. One contributor was
former police officer, Mr Christopher Bews, who explained in the early part of the
programme the circumstances in which the police had been called to the home of Mr
Bamber?s parents and found them murdered. Another contributor to the programme was Mr David Boutflour, Mr Bamber?s cousin, who was shown being interviewed and describing a period in Mr Bamber?s life when he was living“quite a high life. He was going up to Stringfellows in London, and
clubbing it, and having a little bit of a whale of a time. He was living way beyond his
agricultural wages that?s for sure.” He later described Mr Bamber?s reaction to his
parents having bought a flat in London for his sister to help her recover from a mental breakdown. Mr Boutflour also described how he and other relatives had found a“silencer”in the house of Mr Bamber?s parents. The programme also included other contributors talking about aspects of the lifestyles of Mr Bamber and his sister, which were said to have caused concern to their parents, and had caused Mr Bamber?s mother to become increasingly religious.The programme?s commentary explained that Mr Bamber started to do farm work on his parents? farm in “full new romantic clubbinggear”.The programme then featured the former secretary of Mr Bamber?s father, Ms Barbara Wilson, saying (over
reconstructed footage of a person dressed in new romantic? costume driving atractor) that:
“I did see him at odd times dressed in various apparel and also make - up. I think this was to shock people and it was done to annoy Mr and Mrs Bamber, which it did”.
The commentary then explained that Mr Bamber had started a relationship with a local woman, called Ms Julie Mugford. It included an extract from an interview with Mr Mike Fielder, a former crime reporter for „The Sun? newspaper, who described Mr Bamber as a “sexual predator” and interview footage of Ms Wilson recalling that she had seen him with“...other fellas” and that “he would put his arm round and
kiss themand really go to town to impress you.”
Another contributor to the programme was Ms Kerry Daynes who was introduced by
the programme as a “Consultant Forensic Psychologist” with expertise in “what early events can put a child on the road to becoming a murderer”. At various intervals throughout the programme, Ms Daynes commented on Mr Bamber?s character and conduct and gave her opinion that his behaviour displayed psychopathic traits. The final stages of the programme addressed the trial and conviction of Mr Bamber,
after which the judge was said to have commented that Mr Bamber was “evil beyond
belief”. The programme concluded by explaining that, after the trial, the then Home
Secretary extended Mr Bamber?s sentence to the maximum possible, i.e. life without parole.
Following the broadcast of the programme, Mr Bamber complained to Ofcom that he
was treated unjustly or unfairly in the programme as broadcast and that his privacy
was unwarrantably infringed both in the making and the programme as broadcast.
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The Complaint
Mr Bamber’s case
Unfair treatment
In summary, Mr Bamber complained that he was treated unjustly or unfairly in the
programme as broadcast in that:
a)
The contribution by Ms Danes unfairly and inaccurately portrayed him as a psychopath when (according to Mr Bamber) she had never met him or read any of the numerous psychological reports in his possession which stated that he was not a psychopath. Mr Bamber complained that Ms Danes presented her opinion that he showed “all the signs of a psychopath”, and thereby misled the audience into thinking that she had carried out a psychological assessment of him. (She failed to state at
any point that she had not in fact carried out such an assessment or read any professional psychologists? reports on Mr Bamber.) By way of background, Mr Bamber explained that he has been subject to assessments by 27 expert psychologists (most recently in 2009), none of which
concluded that he showed “any traits consistent with psychopathy”. On that basis, Mr Bamber maintained that he was treated unfairly in the programme by not carrying out the research consistent with accurate programming.
Privacy
In summary, Mr Bamber also complained that his privacy was unwarrantably
infringed in the making of the programme in that:
b)
The programme makers had obtained personal information about Mr Bamber?s sexual
orientation by asking intimate questions of people who knew or know him.
Mr Bamber maintained that his sexual orientation was not a feature of the court
case against him, that it should have played no part in the programme, and that
he was entitled to have his sexual orientation kept private. (It was implicit in Mr Bamber?s complaint that he did not give his consent to the obtaining of information about his sexual orientation.)
Mr Bamber further complained that his privacy was unwarrantably infringed in the programme as broadcast in that:
c)
The programme and its contributors discussed at length, and ridiculed, intimate details about his sexual orientation which had no relevance to the offence of which he was convicted. Mr Bamber complained that the issue of whether he was a transsexual, a cross - dresser, gay or straight should have played no part in the programme. It was never part of the criminal case against him and he is entitled to have his sexual orientation kept private.
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BSkyB’s case
Unfair treatment
In summary, BSkyB responded to Mr Bamber?s complaint that he was unfairly treated
in the programme as broadcast as follow:
a)
In response to Mr Bamber?s complaint that Ms Kerry Daynes? contribution in the programme unfairly and inaccurately portrayed him as a psychopath, BSkyB said that Ms Kerry Daynes was a leading forensic psychologist and author who had made various programmes on the subject of criminal activity. BSkyB said that she was introduced in the programme as a “Consultant Forensic Psychologist” and that her contribution pertained to a discussion of general psychopathic? types and behaviour, based on her professional experience and observations of Mr Bamber from evidence used in trial. It said that the programme, at no point, suggested that Ms Daynes had met Mr Bamber. It was therefore clear according to BSkyB that her comments were based on her interpretation of the evidence presented
during the trial and from the interviews of the other contributors in the programme. This was also made clear by a visual slide at the start of the programme which stated:
“Jeremy Bamber was found guilty at trial in 1986. This programme is based
on evidence from that trial and photographs used in the proceedings.”
BSkyB said that it was clear from the programme that Ms Daynes? views were those of a professional forensic psychologist reviewing evidence from the murder trial and interviews with police officers and
those acquainted with Mr Bamber at the time. For these reasons, BSkyB believed that the contribution of Mr Daynes was not unfair to Mr Bamber.
Privacy
In summary, BSkyB responded to Mr Bamber?s complaint that his privacy was unwarrantably infringed in the making of the programme as follows:
b)
In summary and in response to Mr Bamber?s complaint that his privacy was unwarrantably infringed in the making of the programme in that intimate questions pertaining to hissexual orientation
were asked of people who knew him, BSkyB said that it did not agree that the issue of Mr Bamber?s
sexual orientation featured prominently in the programme. The programme contained interview footage with people who knew Mr Bamber which were then used to provide background and context to his case. This included observations about Mr Bamber?s dress sense at the time (e.g. wearing “full new romantic clubbing gear”, “various apparel and also make up”) and wild behaviour (“he was rampant around bars and clubs insouth east Essex”, kissing “fellas and really go to town to impress you”).
However, BSkyB said that at no point did the programme draw conclusions as toMr Bamber?s
sexual orientation. These observations were made to illustrate Mr Bamber?s alleged attention - seeking and grandiose behaviour. BSkyB said that the extent to which the programme could be deemed to make a direct reference to Mr Bamber?s sexual orientation, it stated that he had“ numerous girlfriends”
including Ms Mugford who was featured in the programme as having given evidence against him at the trial. The observations made in the programme concerned behaviour that Mr Bamber exhibited in public and,
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therefore, do not constitute personal information. Furthermore, BSkyB said that it disputed that Mr Bamber?s sexual orientation was a feature of the programme. For these reasons, BSkyB said that it did not believe that Mr Bamber?s privacy was unwarrantably infringed during the making of the programme.
In summary, BSkyB responded to Mr Bamber?s complaint that his privacy was unwarrantably infringed in the programme as broadcast as follows:
c)
BSkyB said that for the reasons already given above in head b) above, it did not believe that the programme contained intimate details of Mr Bamber?s sexual orientation. Observations of Mr Bamber?s behaviour were used to illustrate his attention - seeking and grandiose behaviour which, as explained by Ms Daynes, were psychopathic traits and, therefore, relevant to understanding the background and context to his case BSkyB said that at no point in the programme was it suggested that Mr Bamber was transsexual, gay or a crossdresser. For these reasons, it said that it did not believe that the programme, as broadcast, constituted an infringement of Mr Bamber?s privacy.
Decision
Ofcom?s statutory duties include the application, in the case of all television and radio services, of standards which provide adequate protection to members of the public and all other persons from unfair treatment and unwarranted infringement of privacy in, or in the making of, programmes included in such services. In carrying out its duties, Ofcom has regard to the need to secure that the application
of these standards is in the manner that best guarantees an appropriate level of freedom of expression. Ofcom is also obliged to have regard, in all cases, to the principles under which regulatory activities should be transparent, accountable, proportionate and consistent and targeted only at cases in which action is needed. In reaching its decision, Ofcom considered all the relevant material provided by both parties. This included a recording and transcript of the programme as broadcast and
written submissions from both parties.
Unfair treatment
a)
Ofcom considered the complaint that Ms Daynes unfairly and inaccurately portrayed him as a psychopath (according to Mr Bamber) she has never met him or read any of the numerous psychological reports in his possession which state that he is not a psychopath. Ofcom considered whether the broadcaster? actions were consistent with its obligation to avoid unjust or unfair treatment of individuals or organisations in programmes as set out in Rule 7.1 of the Ofcom Broadcasting Code (“the Code”). In particular, Ofcom had regard to Practice 7.9 of the Code which states that before broadcasting a factual programme, including programmes examining past events, broadcasters should take reasonable care to satisfy themselves that material facts have not been presented, disregarded or omitted in a way that it unfair to an individual or organisation. Ofcom noted the following commentary and contribution from Ms Daynes that appeared in the programme following a description by Mr Boutflour of Mr Bamber?s experiences as an adopted child sent to an English public school by his
parents:
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Commentary:
“Kerry Daynes is a consultant forensic psychologist. She
studies what early events can put a child on the road to
becoming a murderer”.
[Caption:“Kerry Daynes, Consultant Forensic Psychologist”]
Ms Daynes: “It?s likely that he felt incredibly rejected on many different fronts and that this caused him to feel that he desperately wanted attention, he wanted to be loved but if he actually attempted to get this he would be rejected again. This causes a terrible conflict for a child and one way of coping with
it may be simply to detach. You detach from your emotions so you can?t be hurt and sometimes what
happens is the emotional switches in Jeremy?s brain may have been permanently jammed in the off position”. Ofcom noted that in the segment of the programme dealing with Mr Bamber?s behaviour described by Ms Wilson (i.e. kissing other men), Ms Daynes stated: “It?s possible that these are the early signs that in actual fact he has got psychopathic traits. So: breaking rules, constantly breaking rules, in many different ways, also being sexually promiscuous and really needing a highlevel of stimulation. They?re very prone to boredom.” A later section of the programme addressed Mr Bamber?s behaviour at the funeral of his parents. Following interview footage with Mr Boutflour in which he
described how he had seen Mr Bamber smiling at one point after the service (which Mr Boutflour said prompted his brother - in-law to say “he did it, didn?the...”), Ofcom noted that Ms Daynes gave her opinion that: “I think that that is classic behaviour of a psychopath. I think that in essence Jeremy painted on his emotions, the emotions that he felt he should portray for that day. And then, when he felt nobody was watching him, or nobody who mattered was watching him, he simply took the mask off and put it to one side.”
In the final section of the programme, the commentary stated Ms Daynes? belief that Mr Bamber
“could kill his family so coldly because he has a personality disorder”. At this point Ms Daynes was featured saying: “He certainly ticks an awful lot of the boxes for a psychopath. Here issomebody who is grandiose. He?s arrogant. He seems to have very little emotion. And what he does is very shallow and rather fake. He manipulates other people, and he?s quite happy to use people to meet his own needs”.
The commentary then explained:
“Psychopaths have very little fear or empathy. They do not understand morality. So killing even their own families is easy for them. Being a psychopath would not make you insane. Bamber is still legally guilty of his crimes. But even after 20 years, Bamber says he is innocent...”.
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Ofcom noted that the programme concluded with the commentary that stated “some people believe that Mr Bamber is appealing not because he is innocent, but because he is bored,” and featured Ms Daynes saying: “I believe that in the past, he has coped with overwhelming emotions by simply cutting off from them, and really he?s done the same thing in response to his offences. Denial of his offences is the biggest form of cutting off you can have. In his mind he probably believes that he really didn?t do it.”
Ofcom noted that Ms Daynes had not carried out a personal assessment of Mr Bamber or read his psychological reports or had met him or in her professional capacity as a psychologist. However, it is not Ofcom?s role to establish whether the substance of Ms Daynes? contribution to the programme was correct or not, but to determine whether, in broadcasting her opinions, the broadcaster took
reasonable care not to present, disregard or omit material facts in a way that was unfair to Mr Bamber. In doing so, Ofcom considered the contextual basis for Ms Daynes? opinion as expressed in the programme and whether the programme?s presentation of her opinion resulted in unfairness. Ofcom noted that Ms Daynes commented throughout the programme on the behaviour that other contributors claimed to have observed of Mr Bamber at “first - hand” and gave her views as to why she believed that Mr Bamber continued to be in “denial of his offences”. Ofcom took the view that it was clear from the programme?s introduction of Ms Daynes that “she studies what early events can put a child on the road to becoming a murderer” that the purpose of her contribution to the programme was
to express her expert opinion on the case and the possible motives that drove Mr Bamber to commit murder. Based upon Ms Daynes? own professional experience as a consultant forensic psychologist and on her examination of information provided to her by the programme makers (for example, the other interviews included in the programmeand the evidence from the trial) Ofcom considered that it was legitimate for the programme to include Ms Daynes? expert opinion. In these circumstances, Ofcom went on to consider whether not the presentation of Ms Daynes? opinion resulted in any unfairness to Mr Bamber. Ofcom again noted the manner in which Ms Daynes was introduced by the programme (see
paragraph above) and was shown expressing her expert opinion. Ofcom also noted that Ms Daynes had used phrases such as “it is likely”, “it is possible”,“I think”, “I believe”, “he probably believes” and
“he certainly ticks a lot of boxes” in giving her opinion. Ofcom considered that the language used by Ms Daynes in giving her opinions was couched in terms that would have left viewers in little doubt that her comments constituted her opinion only and were not stated as fact.
In Ofcom?s view, this introduction and the nature and content of her comments would have made it clear to viewers that she was a professional psychologistgiving her expert opinion on a given set of factors relating to Mr Bamber and the case. Ofcom considered that her opinion was not presented in such a way that viewers would have been misled into thinking that Ms Daynes had carried out a
personal assessment of Mr Bamber. Taking into account all the factors referred to above, Ofcom considered that the presentation of Ms Daynes? opinion of Mr Bamber?s possible motivation for the
Ofcom Broadcast Bulletin, Issue 190 26 September 2011' 50 - murders, his character traits and whether he was a psychopath was unlikely to have materially affected viewers? understanding of Mr Bamber in a way that was unfair. It also considered that the broadcaster had taken reasonable care to
ensure that the programme did not present, disregard or omit material facts in a way that resulted in unfairness to Mr Bamber. Ofcom therefore found no unfairness to Mr Bamber in this regard.
Privacy
b)
Ofcom considered the complaint that Mr Bamber?s privacy was unwarrantably infringed in the making of the programme in that the programme makers had obtained personal information about Mr Bamber?s
sexual orientation by asking intimate questions of people who knew or know him.
In Ofcom?s view, the individual?s right to privacy has to be balanced against the competing rights of the broadcaster to freedom of expression. Neither right as such has precedence over the other and where there is a conflict between the two, it is necessary to focus on the comparative importance of the specific rights. Any justification for interfering with or restricting each right must be taken into account
and any interference or restriction must be proportionate. This is reflected in how Ofcom applies Rule 8.1 of the Ofcom?s BroadcastingCode (“the Code”), which states that any infringement of privacy in programmes or in connection with obtaining material included in programmes must be warranted. Ofcom also had regard to Practice 8.5 of the Code which states that any infringement of privacy in the making of a programme should be with the person?s and/or organisation?s consent or be otherwise warranted. It also took into account Practice 8.9 of the Code which states that the means of obtaining material must be proportionate in all the circumstances and in particular to the subject matter of the programme.
In considering whether or not Mr Bamber?s privacy was unwarrantably infringed in the making of the programme, Ofcom first considered whether Mr Bamber had a legitimate expectation of privacy in respect of information about his sexual orientation. Ofcom noted that, according to Mr Bamber, intimate details relating to his sexual orientation had no relevance to the offence which he has been convicted of and played no part in the court case. Ofcom considered that the nature of an individual?s sexual orientation is extremely personal and sensitive and that information pertaining to it attracted an expectation that it would remain private and not be sought after or obtained by programme makers for the purpose of making a television programme. Ofcom therefore considered that Mr Bamber had a legitimate expectation of privacy in respect of information about his sexual orientation.
Given this conclusion, and acknowledging that Mr Bamber?s consent had neither been given nor sought by the programme makers in relation to obtaining this information, Ofcom went on to consider whether the infringement of Mr Bamber?s privacy was warranted. With regard to privacy, “warranted” has a particular meaning. It means that where broadcasters wish to justify an infringement of privacy as warranted, they should be able to demonstrate why, in the particular circumstances of the case, it is
warranted. If the reason is that it is in the public interest, then the broadcaster Ofcom Broadcast Bulletin, Issue 190 26 September 2011 51 should be able to demonstrate that the public interest outweighs the right to privacy.
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Ofcom first noted that that the programme included interview footage of Mr Fielder, a former reporter for „The Sun? newspaper who said of Mr Bamber: “He was a sexual predator. On his nights off from Julie, he was rampant around the bars and the clubs in south east Essex”. The commentary then suggested that it “wasn?t only girls” in whom Mr Bamber was interested, and was followed by further interview footage of Ms Wilson recalling that: “I did see him with other fellas, and if he saw you looking, then he would put his arm round and kiss them and really go to town to impress you. But it didn?t
seem genuine to me”. Ofcom also took note of the comments made by Ms Daynes about Mr Bamber?s
possible psychopathic traits: “So breaking the rules, constantly, breaking the rules in many different ways, and being sexually promiscuous and really needing a high level of stimulation.” Ofcom considered that from the content of the contribution of Mr Fielder, Mrs Wilson and Ms Daynes, it was clear that during the making of the programme that the programme makers had discussed elements of Mr Bamber?s sexual orientation with contributors and had sought their views on it. Ofcom recognised,
however, that the focus of the interviews in which Mr Bamber?s sexual orientation may have been raised had intended to draw out as background possible traits in Mr Bamber?s personality that may have been motivated him and how his behaviour was perceived by other people, not to explore Mr Bamber?s sexual orientation as the focus of the programme. Ofcom recognised that Mr Bamber?s case was high - profile and had generated significant interest not only at the time of his trial and conviction in 1986, but also in successive years as his case and sentence have been the subject to a number of appeals and case reviews. Also, Ofcom took the view that the nature of the offences for which Mr Bamber was convicted was such that his case would retain public notoriety. Given these factors, Ofcom considered that there was a genuine public interest in the programme?s examination of the evidence presented against Mr Bamber at his trial and aspects of his life that the programme suggested may
have been relevant to understanding the motivation for the crimes. Ofcom considered that it was legitimate for the programme to explore these issues and to interview and discuss aspects of his character with those who had known him or who were able to give their professional opinion. Ofcom also took into account that the contributors in the programme themselves have the right to impart their
personal recollections of Mr Bamber and to give their first hand testimony to the programme makers when being interviewed for the programme without undue constraint. In these circumstances, Ofcom
considered that the obtaining of the
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Examples of public interest would include revealing or detecting crime, protecting public health or safety, exposing misleading claims made by individuals or organisations or disclosing incompetence that affects the public. Ofcom Broadcast Bulletin, Issue 190 26 September 2011 52 material had been proportionate and was particular to the subject matter of the programme. On balance and given all the factors referred to above, Ofcom concluded that the broadcaster?s right to freedom of expression and to receive information and ideas without interference, in the circumstances of this particular case, outweighed the intrusion into the privacy that Mr Bamber would have expected.
Ofcom therefore found that there was no unwarranted infringement of Mr Bamber?s privacy in the making of the programme.
c)
Finally, Ofcom considered the complaint that Mr Bamber?s privacy was unwarrantably infringed in the programme as broadcast in that intimate details about his sexual orientation were discussed by the programme and its contributors. In considering this head of complaint, Ofcom had regard to Practice
8.6 of the Code which states that if the broadcast of a programme would infringe the privacy of a person or organisation, consent should be obtained before the relevant material is broadcast, unless the infringement of privacy is warranted. Ofcom first considered the extent to which Mr Bamber could have legitimately expected that details about his sexual orientation would not be discussed and
disclosed to a wider audience without his consent. Again, as already considered in head b) of the Decision above, Ofcom considered that the nature of an individual?s sexual orientation is extremely personal and sensitive. Such information, in Ofcom?s view, attracted an expectation that it would remain private and that it would not be broadcast to a wider audience in a television programme.
Taking these factors above into account, Ofcom concluded that Mr Bamber had a legitimate expectation of privacy in relation to personal information about his sexual orientation being broadcast in the programme. Given this conclusion, and acknowledging that Mr Bamber?s consent had neither
been given nor sought by the programme makers in relation to the disclosure of this information in the
programme, Ofcom went on to consider whether the infringement of Mr Bamber?s privacy was warranted. Ofcom noted again the segment of the programme that included extracts of
interview footage of Mr Fielder, Mrs Wilson and Ms Daynes (set out in head b) of the Decision above) which discussed elements of Mr Bamber?s sexual orientation with contributors and presented their views on it. Ofcom took into account that the behaviour displayed by Mr Bamber and discussed by the contributors related to behaviour that had apparently taken place in public. Ofcom recognised that the
focus of the interviews in which Mr Bamber?s sexual orientation may have been raised had intended to draw out as background possible traits in Mr Bamber?s personality that may have been motivated him and how his behaviour was perceived by other people, not to explore Mr Bamber?s sexual orientation
as the focus of the programme. Ofcom again recognised that Mr Bamber?s case was high - profile and had generated significant interest not only at the time of his trial and conviction in 1986, but also in successive years as his case and sentence have been the subject to a number of appeals and case reviews. Also, Ofcom took the view that the nature of the offences for which Mr Bamber was convicted was such that his case would retain public notoriety. Given these factors, Ofcom considered that
there was a genuine public interest in the programme?s examination of the
