Today started with the final two barristers questioning Olivia Davies, the BBC reporter who worked as a support worker at Whorlton Hall and covertly filmed the footage that this case is built upon. You can read about that in a separate post here. After a morning break, Mr Joe Plomin was called as the Crown’s second witness. He gave an affirmation and told the court that he was a Producer Director working for the BBC and had worked for them since 2001. He was the producer of the BBC Panorama programme on Whorlton Hall.
Asked by Ms Richardson, when they first began to plan a programme about Whorlton Hall, he responded:
JP: In Summer 2018 myself and an assistant producer began to gather evidence about a range of allegations about Whorlton Hall. The reason I hesitated is because we didn’t at that stage know whether they’d be a programme.
HHJ Smith asks Mr Plomin to pause while he to takes a note [Mr Plomin speaks very quickly and was asked to pause a number of times, for ease of reading I’ve not referenced those in what follows]
JP: We enter into evidence gathering, genuinely hoping issues we’re told about will be resolved without us having to use secret filming
MsR: Did there come a time when you decided to use secret filming?
JP: Having gathered a body of evidence about fairly serious allegations, abuse, mistreatment, we decided, we realised the only way to prove it would be if someone got a job there working undercover
MsR: In order to have someone working under cover, do you need to effectively recruit that person?
JP: Umm, we interviewed at least 12 candidates, was extensive recruitment process. Olivia was the stand out candidate.
MsR: Right, I’ll just pause there please, others may ask you why, I’m not going to. Putting somebody in effectively as an undercover reporter, is that something that is undertaken by the BBC without any formal application, or not?
JP: The BBC has strict guidelines around the use of secret filming, so we filled out what’s called a secret filming form… very extensive and detailed risk of what allegations told about were, what evidence for those allegations is, that has to go to very senior editorial people in the BBC
MsR: If those senior figures in the BBC had said no, would you have been able to make a programme?
JP: No. We would not have been able to make a programme if senior editorial figures had felt our case wasn’t justified. What I was going to say before you asked me to pause, was approaching senior editorial figures comes after extensive consultation with lawyers… editorial policy advisors, ethical advisors… senior figures… it’s a long process
MsR: Are you able to assist us with how long that process took? From beginning where you received allegations to authorisation being granted?
JP: Standing where I am now I could say it’s months, I could go out and find out for the court if it’s useful, but it was a period of months.
MsR: Thank you. You’d decided to go down the route of secret filming or undercover filming, had you and your team considered other ways of retrieving the evidence you believed was there?
JP: Not only did we start out hoping the issues we were looking at would be resolved through other means, there could be other ways to gather evidence. On the secret filming form we submit we have to specifically address is there any other way of gathering this evidence. Was clear the sort of behaviours being alleged wouldn’t happen if you filmed openly and people could see the camera.
MsR: Pause there. You’ve told us this process took months, was it one pitch or meeting with senior hierarchy of the BBC, or was it a moving process over those period of months?
JP: That’s the reason a second ago I said about consultation with editorial policy advisers and ethical advisors and lawyers. Is a rolling series of discussions, it’s not a one off… is repeated and detailed, was a lot of them
MsR: Did there come a time when the authorisation sought was granted?
A discussion about when Olivia Davies was identified followed, with HHJ Smith asking whether she’d been identified as the potential undercover reporter at the stage of sign off. Mr Plomin explained that people are regularly suggested to him as potential undercover operatives:
JP: Because for 22 years your honour this is pretty much all I’ve done, people around the BBC are suggesting people to me. By pure chance had been introduced to Olivia earlier in the summer, so I was aware of her while the evidence gathering was going on, but that wasn’t specific to this, was just someone who might be good for an undercover candidate at some point.
HHJ asked part of the application process required the team to have a reporter in place ready to go if given green light, or whether they set out finding them after.
JP: Right at the end, once the Deputy Director of News and Current Affairs and one of most senior editorial figures in the BBC, the Director of Editorial Standards, at the last meeting they want to know who we propose because they want to know how much deception will be required in their application. So for final sign off we will need to tell them about the person.
Ms Richardson asked Mr Plomin about the training that was provided to Ms Davies, and he commented that given this was a secure hospital for people with learning disabilities and autism, they took training “very seriously and went about it in a methodical fashion”. Mr Plomin explained that he’d worked undercover himself, and written a book about it, so a fair bit of training was provided by himself and the Panorama team.
JP: A lot of the training involved looking at past similar films, understanding what we expected of Olivia, how she was expected to behave, what she should and shouldn’t do. We tried to formalise that in the guidance document, we called it a protocol to help her be clear what was expected of her. She was shown video setting out what she could expect from us and us from her, shall I pause there?
MsR: Yes, thank you.
JP: But then perhaps more significantly, for the court, we provided her with training from outside contractors, specialists in care, restraint, in terms of keeping herself and others safe while continuing to fit in while working at the hospital.
The training, also including training from secret camera contractors, took place over a number of months.
“The evidence gathering was a period of months, the training was a period of months, all overseen not just by me, but by senior editorial figures, my boss, their boss and their boss”.
He told the court that he conducted a very extensive, and dynamic risk assessment, throughout the evidence gathering period and after, to ensure that Ms Davies’ training was “geared towards the evidence we had about what was likely to occur at Whorlton Hall”. Asked what the purpose of the risk assessment was he responded:
When undertaking an undercover investigation, in a locked hospital, we want to ensure we’ve thought through, carefully and based on intelligence, the implications for the undercover operative we’ve hired, for the patients, for other staff. So the purpose was to make sure we very fully thought through the implications of what we were doing, and what training was required.
He was asked about the training that Whorlton Hall provided to Ms Davies, and he confirmed from his statement that she was provided with 7 days of in-house training. Asked by Ms Richardson about the arrangements when filming Mr Plomin explained that the team lived nearby in a “production flat”, a small flat which they rented nearby to Whorlton Hall. Asked the purpose for other members of the team, other than Ms Davies, to be near and present to Whorlton Hall Mr Plomin explained:
The way I, and the BBC in general, run undercover investigations, the undercover operative is seen, debriefed and prepared before each shift; met after each shift, talked through what occurred. Primary focus is keeping safety and welfare, but also understanding what has gone on in real time, so the undercover operative is never acting alone.
He explained that wherever possible the team would endeavour to ensure the person has enough time to rest and decompress, so they “endeavour to keep the morning briefing to 15mins, the team check and reduce to the smallest number of things. After, after a shift it does tend to be more like 2 hours”.
JP: It might assist the court most if I explain that obviously Olivia’s primary evidence is the secret filming, the footage she records. She then has a verbal debrief with the team which takes us through everything that’s happened in that day, immediately straight after a shift. Then she writes a detailed handwritten note, setting out everything that happened in the day.
Those, her footage, her debrief, her notes are her primary evidence. Then once that’s done, and we’ve downloaded the footage and taken care of production processes, we’ll record video diaries which certainly are contemporaneous record where she’s filming, but to large extent they’re for TV production so she can help the audience through what’s happened.
MsR: Throughout time Olivia was deployed at Whorlton Hall, and you and your team were having this process you’ve described within the production flat or production place, what oversight over and above you and your team was there by the BBC?
JP: I’m the most senior member of the immediate team making the film, but above me there’s an executive producer who usually daily have some sort of oversight, input in brief. There’s a Panorama editor, their boss, who’d have intermittent briefings. And repeatedly across the production, I’d have to check how many times, the Deputy Director of BBC News and Current Affairs, as well as the BBC Director of Editorial Standards, were briefed in detail.
The BBC took, and put, a large amount of oversight into every step of this.
After asking further about the risk assessment process, Ms Richardson starts to ask about the editorial process but HHJ Smith considers it’s not really needed.
MsR: Now obviously this is a Crown Court trial, but your role was as producer of a film, a programme at the end of this. Was there a lot of footage that was filmed, that did not appear in the final programme?
MsR: When considering the editorial process, what were your parameters? In deciding how the final programme was to be edited, did you have any guidelines to work by to ensure it was fair?
HHJ interjects: I’m just wondering whether we need this Ms Richardson? The programme is the programme, what really the ladies and gentlemen of the jury are considering, is some of the material captured during the programme making process.
MsR: It may be others ask the question your honour, I’ll leave it there. We know for Olivia Davies she was filming for 38 days at Whorlton Hall. We know she was wearing a secret camera, had you or someone briefed her on how to use it?
JP: Her training was extensive, included a lot of training on how to use the secret camera, but we also helped her throughout, during filming and after.
MsR: Did the camera always work?
JP: No. Secret filming kit will always have breaks or faults and that did occur with Olivia on a number of occasions
HHJ: so I understand it she’s already told us camera wouldn’t be constantly running, its triggered on and off?
JP: That’s correct sir
HHJ: And you’re also saying sometimes it didn’t work, she may press record and it didn’t?
JP: That’s effectively right your honour. On switching on and off, we want to minimise invasion of privacy, so she’s switching on where there’s cause.
Usually, it would be she’s recording and some break, or kink, or strike on a cable would cause it to stop.
In a discussion about how much could be recorded at any point in time, Mr Plomin explained that there are two limitations, battery life and storage space, and while kit develops over the years at the time the limitations were roughly 4hrs for each “a bit more for battery and a bit less for the memory card”.
Mr Plomin confirmed to the court that the BBC Panorama on Whorlton Hall was broadcast on 22 May 2019. Ms Richardson asked whether any of those staff seen in the programme were given notice that it would be aired, and Mr Plomin confirmed that they wrote to the company running Whorlton Hall and staff members stating they intended to show it, and offering them the opportunity to respond.
Cross examination was started by Mr Normanton, counsel for the registered nurse, Karen McGhee. He checked that Mr Plomin had a copy of the protocol for undercover operatives, he did. His questioning started like this:
MrN: Reducing this to its very basics, what you were doing, when you decided to have secret filming within Whorlton Hall, was you were putting a reporter into Whorlton Hall, do you agree?
JP: We put a reporter into Whorlton Hall
MrN: And what that reporter would do was to act as a support worker?
JP: I don’t quite understand act as, she was a support worker.
MrN: She was a support worker, that’s your evidence?
MrN: In every way in which a support worker should act, that’s your evidence?
HHJ: it’s a fact isn’t it Mr Normanton, she was employed as a support worker, she put the shifts in, at the same time she was acting as a reporter.
MrN: Let’s look at it, test what you’ve said. Page 2 behind tab 10 this is your ‘protocol for undercover operative’ did you draft this?
JP: I did
MrN: Within this document you included at Section 2 employer guideline, our operative must consider?
MrN: So page 2, 18 top right hand corner, post title Support Worker, accountable to hospital or residential home manager?
MrN: And if we look together at the obligations of a support worker you’ve reduced into this document, at top, to record patient clinical notes, NB significant events, incidents or conversations relating to patient and ensure record is endorsed by a staff nurse?
JP: That’s from the job description provided by Whorlton Hall
MrN: So can we agree that’s one of the obligations of a support worker as you knew it?
JP: That is one of the job description points provided by Whorlton Hall
MrN: OK. Next one, to observe and report any changes in patient condition, physical, emotional or psychological to staff nurses or nurse in charge and record in clinical notes. Can we agree that’s job description point?
JP: Whorlton Hall provided all of these, as the job description
MrN: Very well, if we leap over to report hazards but go to no 4 to ensure any incidents or accidents recorded in accordance with Danshell procedure… you agree?
Mr Normanton checked Mr Plomin’s understanding that the patients detained at Whorlton Hall were vulnerable, he agreed and Mr Plomin confirmed that they were in hospital because they needed support. The cross examination then continued:
MrN: Where you’ve got patients who need support and Olivia Davies is going in to provide that support, presumably you want to reflect in this document that you want to reflect she should provide that support, do you agree?
JP: I don’t quite understand your question. I’m very keen to assist the court…. Is a protocol, as it says on page one, is guidance, it’s not prescriptive. I was seeking to set out what sort of guidelines for her activities and behaviour I expected from Olivia. This document is not primarily about the care provided to patients, this document is as it says, guidance, cant outline every possible scenario, this is about the behaviour we expect from Olivia, not the risk assessment.
MrN: Ok let’s go on to third page, 19 in the top right hand corner
HHJ: sorry, third page, yes?
MrN: We’ve come to the end of the job description points.
JP: We haven’t actually counsel. It says here at the end of that, “except where discussed with production team and agreed to maintain effective undercover cover”… we knew for example the point you read out about confidential information in the job description, would be inconsistent with carrying out an undercover operation.
MrN: Thank you. I think we’ve got to the same place, what’s written here is undercover operative is to meet all those benchmarks
JP: Except where discussed with the production team and agreed to maintain undercover character or cover.
This line of questioning continued, with a discussion about the occasions where the role of undercover operative would potentially conflict with that of support worker.
MrN: Which benchmarks might not be able to be fulfilled? Let’s return to page 18. First one to record in notes… if was incident perhaps you’ve described as abusive, then what may happen is that was not revealed in records at that stage but may be revealed later in your programme.
JP: By who?
MrN: Olivia Davies
JP: I’m not conscious of a time she was expected or asked to write a note, where she didn’t, are you?
HHJ: Counsel will ask the questions, counsel can’t answer your questions
Mr Plomin apologised
HHJ: What you’re asking as I understand it, is there’s a job description which on paper the management of Whorlton Hall expect their staff to be doing?
HHJ: Sometimes that would conflict with her role as an undercover journalist?
JP: More than that, conflict with her ability to fit in with other care workers she was around. So yes your honour. I wasn’t trying to be interrogatory with that, I’d have to check but my memory was every note she was asked to write she did do, I’m not conscious of any occasions when she didn’t.
HHJ: I don’t know that this counsel can help with what she did or didn’t do
MrN: No I’ve gone as far as I can.
The questioning moved onto a discussion about whether Ms Davies could report abuse without losing her cover. Mr Plomin confused by Mr Normanton’s confusion over a sentence in the protocol asked HHJ Smith for assistance. Between the three of them they established that it was possible for Ms Davies to raise concerns without causing her to ‘imperil’ her cover. Asked how that would happen Mr Plomin confirmed it was not stated in the paragraph Mr Normanton was focusing upon.
MrN: It’s one of the final sentences, says, operative will wherever possible and as soon as possible first discuss with producer or executive producer the best course of action. Is that discussion with you, is it?
JP: I’m not conscious during Whorlton Hall of their being an incident, I’m trying to rack my brains to think if was necessity, of such discussion. On many of the incidents the jury will have seen, staff did write notes, it’s just unfortunately inaccurate. Trying to think if was incident occurred where was no report, where discussion was necessitated in this case.
MrN: One example which may assist you, towards end of January Olivia Davies in her video diaries says that Patient 1 was cared for twice by men that week and it affected her behaviour, it made her unhappy.
HHJ: It made Patient 1 unhappy?
MrN: Thank you your honour, that wasn’t contained in notes prepared by Olivia Davies, was that something that was discussed with you?
JP: I don’t know what was contained in her notes or wasn’t
MrN: that’s not what I’m asking you, was that discussed with you?
JP: I can’t now remember 4.5yrs later, as much as I can assist you I suppose we were constantly concerned and thinking about given the extremity of XXX’s upset at the way men were sitting in her room repeatedly, we were constantly concerned about her welfare and what needed to be reported, felt clear to us we needed to gather a body of evidence such that a pattern could be shown….
MrN: Do you know, you’re aware there’s this issue going on. Did you direct Olivia to report it in a specific way so it wouldn’t blow her cover? Did you report that?
JP: Its 4.5 years later, not knowing which date you’re talking about, were quite a few dates where men were sitting in her room, men outside…
MrN: Was there a date when you said to her you need to report that?
JP: There were a number of discussions about what notes were written down, by who, where and what was said to which managers when.
MrN: Is the answer you can’t remember a specific date when you asked her to report that incident?
JP: I’m not sure I can assist the court. I can tell court was a lot of discussion at time, about XXX’s welfare, who knew what, need to gather body of evidence to put before regulatory authorities and others
HHJ: So was a of discussion about XXX’s welfare, that’s what it was?
MrN: But you don’t recall, I’m not going to go there again Mr Plomin. The objective in relation to Patient 1 was to build a body of material, and provide it in due course to the regulator and for it to appear on your programme as well.
JP: As we outlined, once we knew we had to film undercover, and gone through the stages described, we knew we had to gather a body of evidence to show it wasn’t a one off.
Mr Plomin confirmed that he watched every frame that Olivia Davies filmed, as did a second person, an outside person. In response to one of Mr Normanton’s questions he confirmed that they “finished the investigation as early as we felt we could having gathered a body of evidence, that felt like right point balancing considerations”. Mr Normanton suggested that was on 4 March, when Olivia Davies last filmed at Whorlton Hall.
MrN: What sort of time on the 4 March did you wrap up and leave the flat?
JP: I don’t remember 4.5 years later what time of day it was
MrN: Was it then you went straight to the police station with this body of evidence?
JP: No, the court has already heard was significant amount of material amassed. In order to translate that into a form that can actually be delivered… I believe the court has had my second exhibit, was right to reply letter sent to company and national regulator.
MrN: When were those sent?
JP: Can I finish my last sentence counsel?
JP: So in order, can I finish my last answer your honour or do you want a new question?
HHJ: I suppose simple answer to Mr Normanton’s question, framed narrowly, may be good reason for that, Mr Normanton wants to know when you went to the police, he’ll look at process, or someone else will, what happened after you finished filming? He’s described as wrapping up.
JP: When we finished filming we couldn’t immediately go to the authorities, we had to go back over the material she’d filmed
HHJ: pausing there. Mr Normanton.
MrN: You’ve given evidence throughout January to March you’d been watching this footage, so you were aware of what was going on?
JP: I knew what was in the footage
MrN: So, on 4 March, you Joe Plomin, there’s nothing stopping you heading off to the police station was there?
JP: There was
MrN: What’s stopping you?
JP: Having already discussed the large amount of footage that had been recorded
HHJ: how many hours?
JP: Think it’s in my statement your honour
MrN: Think we’ve had a figure of 201 hours
JP: knowing what’s in large numbers of hours of footage, isn’t the same as being able to say, the events we feel are proven are these, the allegations we know to be fact are these. And particularly also, we got the key footage reviewed by two of the country’s leading experts on learning disability and autism, to ensure we had correctly understood what was occurring and also what it had meant.
MrN: you’ve gone beyond the scope of my question
HHJ: well I asked him what was stopping him going to the police and what he’s doing is describing the process, part of it was going to two experts. Did you go to them before you wrapped up in March or afterwards?
JP: We could only go to them once we re-reviewed, and selected chunks that needed expert review. They couldn’t watch hundreds of hours of footage, and we’d broken it down to detailed list of what individual had done so could be absorbed by the authorities.
MrN: The date you went to the authorities was early May?
JP: That’s correct
MrN: Panorama programme came out in mid to late May?
JP: That’s correct
MrN: As far as you knew Patients 1 and 6 and 4 were in the same conditions as when you did filming?
JP: I was acutely aware of getting footage to authorities as swiftly as we could, but we knew we had to be able to say what it was we’d seen, we worked as quickly as we could. Those two months were 7 day weeks, 20 hours a day, I believe I got it to the authorities as quickly as I realistically could.
HHJ: Seven day week, very long days?
MrN: Why not take an hour out, write down in your view these patients were at risk and provided that as note to police on 5 March?
First, was that something you could have done?
JP: I don’t believe that would be effective or useful. The police would come back and say what’s the evidence and what’s the basis… I don’t think the short note you describe would have been helpful counsel.
MrN: So what happened was those 2 months were left there, you informed Cygnet and then almost immediately brought out your programme?
JP: We assessed… got expert advice… tabulated… and got to the authorities as quickly as we could.
MrN: Is there a reason everything was done that coincides with the date you brought out your programme?
JP: As I tried to say, maybe I’ve not been clear, the process of getting material to authorities in way assessed and tabulated, once done, getting information to the company and getting out the film is also more progressed as well.
No further questions from Mr Normanton.
There were no questions from Mr Knox for Ryan Fuller, none from Ms Brown for Darren Lawton, none from Mr Dryden for John Sanderson, none from Mr Rooney for Sabah Mahmood, none from Mr Rutter for Peter Bennett, none from Mr Constantine for Matthew Banner and none from Mr Walker for Sarah Banner.
The only other counsel to question Mr Plomin, was Mr Patton for Niall Mellor, who questioned him before and after the lunch break. His questioning started like this:
MrP: You’ve made something of a living of doing undercover films haven’t you?
JP: It’s been my profession for 22 years
MrP: You started as far as Panorama was concerned at Winterbourne View
JP: No i’d worked for Panorama for some time before Winterbourne View counsel.
HHJ: Winterbourne View, not heard very much about it Mr Patton, what we did hear was it was an undercover documentary
MrP: In 2011
MrP: It was using hidden cameras?
MrP: And you made a programme about the place?
JP: About Winterbourne View Hospital? I made a film in 2011.
MrP: Using undercover footage you’d taken?
JP: I hadn’t filmed it myself counsel, it was an undercover operative by the name Joe Casey in that case,
MrP: You’ve written books about undercover work using cameras
JP: I wrote a book, it’s not had a large amount of sales
Mr Patton says he bought it: It’s a book in which you describe your methods.
JP: No the book Hidden Cameras, included two halves. Half of it was stories from when I was wearing secret cameras, 21 years ago. The other half of it was advice for members of the public who were thinking of conducting filming using secret cameras. At the time there were a lot of people using so called nanny cams, doing their own filming.
MrP: You also have a section saying how to do this work.
JP: It wasn’t my methods
MrP: Tips and advice on how to use a camera?
MrP: So if they were to film a document, they record the document.
JP: I don’t follow sorry
MrP: So if person was writing a document, the person films the form they’ve written?
JP: I don’t remember writing that. I don’t have my book in front of me, I’m not doubting you counsel.
Mr Patton then switched back to discussing Winterbourne View, suggesting it led to a public inquiry.
JP: No I don’t believe it did. It led to a serious case review.
MrP: By Stephen Bubb
JP: His inquiry was broader than Winterbourne View I believe
MrP: How we cater for people in this country with learning difficulties and autism?
JP: Learning disabilities
MrP: How we fund and provide their care?
MrP: I presume you’ve read that?
JP: It’s a while since I read it but I have in the past
MrP: At Winterbourne View staff used physical violence, like kicking, punching , hair pulling
JP: They did
MrP: They took patients outside and left them in zero degrees?
JP: Yes, having doused them in water
MrP: They did things like put mouthwash in their eyes?
JP: That happened once
MrP: That sort of behaviour
MrP: It led to an inquiry didn’t it?
JP: It led to a serious case review and a criminal trial. Stephen Bubb’s review was more broader than Winterbourne but it led to that.
Mr Patton suggested that one of Bubb’s recommendations was to stop putting people in hospital.
JP: Sadly counsel… for a long time that had been government policy… Stephen Bubb’s review reiterated that.
MrP: So this would be a fantastic opportunity for you to revisit wouldn’t it?
JP: I’m hesitating because I get approached by lots of people, I don’t ever enter into any investigation, you say, I forget your phrase but an opportunity, I’m always approaching with sadness hoping I don’t need to make a film
MrP: I am sure you are but this would be a fantastic opportunity to revisit how people in a private health facility are dealt with who suffer, forgive me I said suffer, with autism and learning disability.
JP: Sorry. Can you help your honour, that phrase?
HHJ: it’s the phrase ‘fantastic opportunity’ causing difficulty I think Mr Patton
MrP: This was a story to see if there was any improvement since 2011
JP: It was a response to people raising serious concerns about the treatment of very vulnerable people in a hospital. I’m not trying to be obstructive, it did also reflect back to an earlier film, sure.
MrP: Comes a time you and your team focus on the care taking place at Whorlton Hall, you keep calling it a hospital, it’s not a hospital is it.
JP: I believe it’s a hospital
MrP: It’s a privately run healthcare facility
JP: I think if we look up the registration at the time it was a hospital, but I could be wrong.
HHJ: the semantics might not matter a great deal, Mr Patton, your questions, there comes a time your focus turns…
Mr Patton went on to discuss what Mr Plomin knew about the financial situation in relation to Whorlton Hall. He confirmed that the team had access to Companies House data and were aware that Whorlton Hall was owned by an American firm, through their UK arm Cygnet. Mr Patton suggested that Mr Plomin knew that the company was paid £1million to look after one patient, Mr Plomin says he’s not sure if he knew that specific fact but he remembered that they were paid an awful lot per patient. Mr Patton suggested he was aware because it was in his proposal for undercover filming.
MrP: You knew about that. Presumably that figure had come to you from somebody with inside knowledge?
JP: No, information on patient costing isn’t secret
JP: The sort of sums paid, because I didn’t remember that figure, I should be careful. I can go back and check that figure and the form and where it’s from, certainly from 2010 onwards I heard from lots of people in the industry broadly stating what sort of figures these patients attract.
Mr Patton proceeded to give Mr Plomin a document he referred to as the ‘X Y Document’ which was introduced to the jury in cross examination of Olivia Davies. The questioning went like this:
MrP: I’m going to give you a document, we’re not going to name these people in public. Do you see that document?
JP: I do
MrP: Do you see those two names?
JP: I can’t comment
MrP: Have you met them?
JP: I can’t comment
MrP: You can’t comment, is that because of your role as a journalist not disclosing sources and things, that sort of thing?
JP: I can’t comment
MrP: Olivia has told us you used to talk about certainly X
JP: I can’t comment
MrP: Well I’m not going to take it any further your honour
HHJ: alright, ok
MrP: What I’ll suggest is people within that company had access to private financial information and other information which they gave to you
JP: Would you mind repeating that counsel?
MrP: Private information about patients, private information about costings for specific patients
JP: I’ve just said I don’t remember the figure you’re quoting, I certainly can’t remember now, I could go away and check for the court if it’s useful your honour?
Mr Patton said that wasn’t necessary because there was a video diary showing Mr Plomin and Olivia discussing the amount paid to Whorlton Hall to look after Patient 6.
JP: Your question was you were putting to me information was provided to me about private financials?
MrP: I’m asking how you would get the information that a patient was being charged to the NHS at a million pounds a year
HHJ: Mr Patton I’m not sure what issue this goes to in the case, might be helpful to retire, we’ll invite the jury back at 14:10 and see if there’s another way of dealing with this issue.
On return from lunch Mr Patton decided he did not wish to ask anything more about that area. He then turned his attention to how Olivia Davies was recruited, telling Mr Plomin he’d told the court that she was one of several people he had spoken to.
JP: I interviewed at least a dozen people
MrP: Were they all female? Let’s start with that
MrP: There were males as well?
JP: There were
MrP: You decided to have a female?
JP: No I decided to have Olivia. She was the standout candidate, regardless of gender, she wasn’t chosen because of her gender.
Asked what her interview consisted of Mr Plomin explained it wasn’t a formal interview, but was a “period of conversations” with him, his boss, their boss, and with psychologists from outside the team. He said that they had a whole range of discussions with the candidates, including Olivia.
MrP: Was there an evaluation by the psychologist?
JP: There was a number of interviews with myself and others on which we impressed on Olivia the nature of the job and nature of the work, we try to ensure as part of a duty of care to people who work with us
MrP interrupts: Can I pause you there, do you remember the question I asked you?
JP: Yes I do
MrP: Was there an evaluation by the psychologist?
Mr Plomin explains that the task for the psychologist was to assess whether she’d understood the risks and tasks involved, as outlined in the discussions with the team.
HHJ interjects to ask how this is helping the case; I didn’t catch Mr Patton’s response
MrP: Presumably you made her aware others were being considered for the role?
JP: I can’t remember now whether I brought that up with her
MrP: That’s why I have concerns
HHJ: I don’t know you need to have any concerns Mr Patton. We know how she was selected, I’m not sure how this helps us.
MrP: I’ll not say how it happened in the front of this witness, but the jury will remember what she said
JP: I’m assuming she was assessed, that’s standard practice, I can go back and check?
Mr Patton moved on to asking how long Ms Davies had been told that she was likely to be undercover for, and Mr Plomin confirmed that he generally tells people they are likely to be undercover for 2 to 3 months. Mr Plomin also explained to the court that the length of time which they are authorised to conduct covert filming is kept under constant review. In discussing how long filming continued for and why, Mr Patton suggested that the purpose of filming was:
MrP: Obtaining the material you want
JP: Establishing whether there’s a culture and pattern of behaviour
MrP repeats: Obtaining the material that you want
JP repeats: Establishing whether there’s a culture and a pattern of behaviour.
Mr Patton’s questioning then moved on to how the decision was made to stop filming and Mr Plomin explained again that it was a decision made by a group of people.
MrP: You get to see these people every day, don’t you on camera?
JP: I see footage
MrP: And you make notes on what’s happening
JP: I don’t know what you mean by making notes
MrP: You don’t know what is meant by making notes?
JP: What sort of notes do you mean? We make notes of the debrief with Olivia
MrP interrupts: Sorry to interrupt you, is that a debrief of the day’s events?
JP: The reason I asked about notes, is I make lots of notes. I review footage each day
MrP: Let’s say Olivia has been in, she’s got footage with her, makes hand written notes of what’s seen, then goes on camera and explains what happens
MrP: Let me finish the question before you answer. I presume you make your own notes because you have to report to people higher up than you?
JP: I think I said earlier, when she comes back, she first does debrief with myself and assistant producer going through all the events of the day. Then she makes hand written note as well, that debrief with team, note and footage she’s recorded is primary evidence. She then does subsequently do a video diary.
MrP: Every day you have that for the time she’s in there?
MrP: So you’ve got 38 days of debriefs in writing. When you wave goodbye, Patient 6, Patient 1 and Patient 4 is still in there, with all the staff you filmed them with?
JP: That’s correct
MrP: So is there a safeguarding issue that needs urgent attention?
JP: Which is why we moved as quickly as we could to turn our raw bundle into something
MrP interrupts: Do you understand what I mean by urgently?
JP: I moved as quickly as could, to review evidence, shown to experts… needed to assess evidence we’ve got, get it into a form authorities could take action over, which they did when they received it
MrP: Do you remember the question I asked you?
JP: I’m trying to answer
HHJ: Mr Patton. The question I’ve got is was there a serious safeguarding issue
HHJ: I’ve got serious. Do you mean threat to life and limb?
MrP: No I don’t mean that. Is this something the authorities needed to know about on 4 March?
JP: Authorities did need to know and did as soon as I could assess, manage and get expert input so they could take action over
MrP: Any reason you couldn’t contact CQC say you were filming at those premises, we’ve got footage, there are safeguarding issues?
JP: We did do that, after we got it into a form they could take action over…. Court will understand if you turn to authorities and say there’s issue here, they’ll say what’s your evidence? What’s your proof? You need to turn into a form they can take action over, and you need expert input what you’ve seen, you’ve understood correctly and put into form can take action
MrP: Who made the decision to go to the authorities?
JP: I hope I’ve impressed on the Court throughout the entire process, including this point, going to the authorities, at every step we took was overseen by the most serious editorial figures, through to myself. BBC lawyers, editorial policy makers [lists others, didn’t catch]
MrP interrupts: Who was responsible for the decision, who said yes do it now?
JP: The group of people I’ve outlined
MrP: Not one person?
JP: It’s a group decision
MrP: There’s not one person at the top of the chain who can say yes do it?
JP: The decision about doing secret filming
MrP interrupts: I’m not asking about that. Who made the final decision to notify the authorities?
JP: Your honour can I explain?
HHJ: Let’s break it down, to see if we can find some assistance to Mr Patton to these questions. Was the decision to go to authorities made by a single person or a group?
JP: It was made by a group your honour, whereas secrete filming form is signed by one person, this is not a single person decision.
HHJ: That’s not what he’s asking about but the comparator may help
Mr Patton asks again who makes the decision
JP: The decision to inform authorities is based purely around our assessment of the evidence, and it being tabulated, in extreme detail of everything that Olivia saw, which is much wider than what went into the programme.
MrP: Had the programme been completed when you went to the authorities?
JP: It wasn’t completed until the day it was broadcast, I don’t know what you mean by completed, we were working on it
HHJ: Assume being prepared for broadcast is quite a long, slow complicated process?
MrP: No, I don’t accept that. What’s left at the end of production you have to wait whether you’ve got responses from people?
JP: No, we continue to make fundamental changes up until broadcast
MrP: Fundamental changes?
JP: Depending on what experts have said, what responses we get, what goes into the film isn’t settled
MrP: Are you saying there were fundamental changes right until the last minute?
JP: All I can say to assist the court in response to your questions is no the programme was not complete at the point we went to the authorities
MrP: Did you ever approach the CQC about this?
HHJ: About what?
MrP: About what went on in these premises
JP: At the same time we wrote to the local authority and Danshell/Cygnet
MrP: Two months after you left there?
JP: Once evidence had been assessed, and prepared in a form they could take action over.
MrP: In May, you accept it was in May?
JP: I can go back and check the date?
HHJ: I think Mr Patton is saying, look there came a point when a decision was made by the group, to bring this to the attention of various people and authorities, was that all done on the same day? Or a couple of days?
JP: It was all done on the same day. We always knew, and were always guided by wanting to get to authorities as soon as we could, whilst getting it in a form with which they could take action.
Asked whether the Panorama team had contacted relatives of those patients featured in the documentary Mr Plomin confirmed that they had contacted some families, all before the programme was aired.
That was the end of Mr Patton’s questions.
There was no re-examination from the Crown and no further questions from HHJ Smith. Mr Plomin was released shortly after 14:30.