BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Assignment – inaccurate, unbalanced, failed to respect principles of law

Findings
Standard G1 – no uphold

Standard G4 – not unfairly treated in preparation of programme; possible inferences did not constitute unfairness in terms of broadcasting standards – no uphold

Standard G5 – no uphold

Standard G6 – overall not unfair, unbalanced or partial; a new perspective offered on a historical matter – no uphold

This headnote does not form part of the decision.

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Summary

An Assignment programme, broadcast on TV One on 30 March 2000 beginning at 8.30pm, re-examined allegations that Dr William Sutch had engaged in espionage. According to the programme, despite his having been tried and acquitted, fresh evidence existed to show that there was doubt about the justice of the acquittal.

Shirley Smith complained to Television New Zealand Ltd, the broadcaster, that the programme contained inaccuracies, was unfair to Dr Sutch, was unbalanced, failed to respect the principles of law, and used deceptions which took advantage of the confidence viewers have in the integrity of broadcasting. In addition she complained that as a participant she had been misled by the producer as to the purpose of the programme.

TVNZ responded that it was justified in referring to new evidence relating to the trial and to the conclusions drawn in the programme. It maintained that the investigation was justified in the public interest and that no breach of broadcasting standards had occurred.

Dissatisfied with TVNZ’s response, Ms Smith referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority declines to uphold the complaint.

Decision

The members of the Authority have viewed a tape of the item complained about and read a transcript and the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaint without a formal hearing.

That new evidence had come to light casting doubt on Dr William Sutch’s acquittal was the claim of an Assignment programme broadcast on TV One on 30 March 2000 beginning at 8.30pm.

Shirley Smith, widow of Dr Sutch, complained to TVNZ that the programme breached standards G1, G3, G4, G5, G6 and G7 of the Television Code of Broadcasting Practice. Those standards require broadcasters:

G1  To be truthful and accurate on points of fact.

G3  To acknowledge the right of individuals to express their own opinions.

G4  To deal justly and fairly with any person taking part or referred to in any programme.

G5  To respect the principles of law which sustain our society.

G6  To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

G7  To avoid the use of any deceptive programme practice in the presentation of programmes which takes advantage of the confidence viewers have in the integrity of broadcasting.

Preparation of the Programme

Ms Smith complained that she had been misled by the producer of the programme who had told her that it was to be based on information to be gleaned from the Mitrokhin Archives. The Archives hold records from the KGB’s Foreign Intelligence Section which were smuggled out of Russia and are now held in Cambridge. Volume one of "The Mitrokhin File" has already been published, and the second volume is due for publication next year. Ms Smith said that she was told that if Assignment found nothing useful in the Archives, the programme would not go ahead. She said she was later told there was nothing much useful in the Archives about New Zealand, as if to reassure her and persuade her to take part.

In fact, she said, it was apparent that without knowing whether any information would be available from the Archives, the producer and reporter had planned to go ahead with the programme. In her view, her involvement in the programme had been agreed to on false pretences, and she contended this was in breach of standards G1 and G4.

The Programme

Respect for principles of law

Ms Smith contended that the acquittal of Dr Sutch, after a trial conducted according to the principles of law, was accorded no respect, and the report was therefore contrary to standard G5.

New evidence

Ms Smith recorded that at the end of the depositions hearing, the Crown Prosecutor had asserted that at the upcoming trial there would be a good deal more evidence revealed, as extensive inquiries were still being made overseas. In fact, she noted, there had been no more evidence. She objected to a reference in the programme to Dr Sutch having been the person likely to have leaked secret defence information to the Communist journal "The Week" when on a visit to England with Walter Nash in 1935. That, she said, had been dismissed by Mr Nash at the time, and by the Crown after extensive inquiries. She noted that no information that the Assignment team put forward had been used by the prosecution in the trial. Either, she said, it was not, in law, evidence, or it had been tested and found wanting. Ms Smith contended that the claim that the programme was going to reveal new evidence was in breach of standards G1 and G6.

The charge against Dr Sutch

Ms Smith objected to the programme’s claim that Dr Sutch had been charged with "obtaining secrets for the Soviet Union". She noted that the actual words of the charge were that he had "for a purpose prejudicial to the safety and interests of the State, obtained information that is calculated to be directly or indirectly useful to an enemy." She claimed that the programme had thus contravened standard G6.

The "evil empire"

In Ms Smith’s view, the programme had begun very prejudicially, by describing the Soviet Union as the "evil empire", exaggerating Stalin’s "annihilations" and describing the KGB as "the most sadistic secret police in the world". She emphasised that she had no brief for Stalin and the KGB, but contended that those descriptions were designed to create an atmosphere in which condemnation of Dr Sutch would come easily. In her view, this constituted a breach of standard G6.

Rupert Allason and Jim Rolfe

The programme relied on two speakers for whom no credentials were given, Ms Smith observed. She described author Rupert Allason’s statement that he had no doubt that Dr Sutch had been an agent from the 1930s onward as absurd, noting that Mr Allason had never been in New Zealand and that viewers were not told the information on which he based this allegation. She pointed out that he had guessed at the sort of information Dr Sutch would have been able to pass on, but noted that at the time of the trial, the prosecution had not come up with any examples. Reliance upon Mr Allason’s statement, she said, was in breach of standard G1.

With regard to the other speaker, Jim Rolfe, Ms Smith asked why the programme had not said that he had been a member of the SIS. On the programme Mr Rolfe had said that Dr Sutch was "probably" passing information that could be used to blackmail people. Ms Smith responded that "probably" would not have stood up in court. She objected to the programme setting out to "convict" Dr Sutch on such evidence. She then explained what she believed to have been the origin of this remark, noting that no evidence had been produced in court relating to this matter. She contended this was a breach of standard G6.

Holloway Road and Colin Lines

Ms Smith maintained that the story as told by former police officer Colin Lines was inaccurate. She noted that the senior police officer who had been present had never been mentioned in Mr Lines’ account and explained that although Mr Lines had been the first to approach Dr Sutch in the street, the senior police officer had taken charge. She acknowledged that Dr Sutch had given an untrue explanation as to why he was in Holloway Road. Nevertheless Ms Smith pointed out that the fact that Mr Lines believed that Dr Sutch was a Russian spy and that such meetings had been going on for years was not evidence and had not been alleged by the prosecution in court.

Next, she objected to the programme accepting without question that there had been a meeting between Dr Sutch and Soviet official Dimitri Razgovorov in Holloway Road and that Dr Sutch had handed over a package. She emphasised that there was no evidence at the trial of either a meeting or the handing over of a package or even an envelope, despite SIS men having been positioned to observe the meeting. She also noted the sworn evidence of the taxi driver who took Dr Sutch to Holloway Road, that he had been carrying nothing but a rolled up newspaper.

Ms Smith also complained that the photograph of Mr Razgovorov running down Aro Street had been shown twice early in the programme, without explanation, giving an impression that it was Dr Sutch who was running. The third time it was shown, Mr Razgovorov was named but, she said, the false impression had been given by then. The Holloway Road part of the programme breached standards G4, G5 and G6, Ms Smith contended.

"The Hook"

Ms Smith complained that Mr Lines’ report on this subject was untruthful and omitted the fact that it was his senior officer who had conducted the conversation with Dr Sutch. Ms Smith then set the record straight from her perspective, noting that she had been there. She said it was entirely untrue that Dr Sutch had been offered an "out" or a partial one if he would talk. She suggested that Mr Lines had said this in order to give the impression that police had followed instructions. (She referred to a report by the then Ombudsman which when later released had revealed that the police had been told to offer full immunity to Dr Sutch if he would tell them what was going on. In fact, she noted, the police had disobeyed those instructions). This aspect of the programme breached standards G4, G5 and G6, Ms Smith wrote.

Visits to the Soviet Union

Ms Smith recounted that Dr Sutch had travelled to the Soviet Union in 1932, spending two weeks there when he had finished his doctorate in the US. He went twice with Walter Nash on official visits to Britain in the late 1930s as his private secretary and on one of these visits or both had accompanied Mr Nash to the USSR. Ms Smith reported that he had not gone to the USSR when working for the UN Relief and Rehabilitation Agency (UNRRA), as reported in the programme. She also denied that Dr Sutch and she had been friends with Russians when on UN business in New York. Ms Smith contended the report of these matters breached standards G3, G4 and G6.

Alexi Makarov

On the programme Mr Makarov, the Charge d’Affaires at the Soviet Embassy in Wellington at the time, recounted the conversation he had with Mr Razgovorov. He described how, when he asked Mr Razgovorov whether an envelope was from Dr Sutch, he had answered yes. Ms Smith suggested that the Assignment team should have checked what Mr Makarov had said previously about the exchange. She noted that when questioned before the only words he had reported Mr Razgovorov as saying were "this package is for me".

Ms Smith also objected to Mr Makarov’s claim that Mr Razgovorov had told him that he had "inherited Dr Sutch" from the previous KGB officer at the Embassy. Ms Smith advised that she had been told that this officer had not known Dr Sutch and had never met him.

Warren Freer’s evidence

Ms Smith recalled that Dr Sutch liked to meet Mr Freer, a then Labour party MP, unobserved as he did with other business men. Dr Sutch’s meetings with Mr Razgovorov were therefore normal for him and not suspicious, she wrote. She suggested the meeting entries in Dr Sutch’s diaries could well have related to meetings such as those with Mr Freer. She maintained that they were not evidence of meetings with KGB agents. This aspect of the programme, she argued, was contrary to standards G4 and G6.

Dr Sutch’s death

Ms Smith objected to a reference to Dr Sutch having died a wealthy man with considerable assets. She reported that she had been asked by the producer to explain his wealth, and had done so, but her explanation had not been used. She asked for a tape of the full interview to be provided to her.

The interview with Ms Smith

Ms Smith objected to the brevity of the extract from her interview that was used in the programme. She said that she could have provided additional information to make a balanced and well-informed programme.

Spying

As a final point, Ms Smith made a comment about Dr Sutch’s alleged long spying career. She said that when he was first seen with Mr Razgovorov in Karori, the SIS had no idea who Dr Sutch was. She suggested it was obvious therefore that the SIS, which had routine surveillance over the Embassy, had never seen him with anyone from the Soviet Embassy before. She suggested this demonstrated the programme lacked common sense, and was in breach of standard G6.

TVNZ’s Response

TVNZ began by describing the programme as one which looked afresh at the espionage allegations against Dr Sutch. In so doing, it continued, the programme had described evidence not presented to the jury at the time of the trial, and had spoken with "key people" who were no longer constrained by the offices they then held.

It noted that there was still an aura of enigma over the Sutch case, and argued that public interest required that whenever supposedly fresh information emerged, it should be heard and discussed. TVNZ said it did not accept that the purpose of the programme was to show that the court decision was wrong. It noted that the evidence presented at the trial was not sufficient to convict Dr Sutch of the charges. However, the programme suggested that information now available at least raised the question of whether Dr Sutch provided material to Soviet diplomats in Wellington. It was not known what that material was, but the programme indicated that the forthcoming second volume of "The Mitrokhin File" might shed more light on it.

TVNZ identified the following as the key factors which informed the fresh approach described by the programme:

• The contents of Dr Sutch's diaries, which recorded a long series of meetings with Soviet representatives and others. These diary entries had been ruled inadmissible in court.
• The fact that jury members had not been told that Mr Razgovorov was the KGB resident at the Wellington Embassy.
• The fact that jury members were not told of a parcel described in the programme by Mr Makarov.

TVNZ then turned to the specific complaint.

The Preparation of the Programme

TVNZ acknowledged that Ms Smith had been assured by the producer that the programme would not go ahead unless it broke new ground. When Ms Smith was finally contacted for an interview, TVNZ advised that she had been informed that the reporter had spoken to Mr Makarov and others, and that it was made clear to her that a new perspective on the Sutch case had emerged and that the programme would be going ahead.

TVNZ apologised if Ms Smith felt she had not been properly informed of its content, but said it was satisfied that every effort had been made to convey the nature of the item being assembled.

The Programme

Next TVNZ said that the reference to the Communist journal "The Week" had served to explain the then government’s sensitivity in dealing with Dr Sutch. It acknowledged events relating to that had occurred 60 years ago, but maintained they were still an ingredient of a major event which continued to attract wide public interest.

TVNZ then responded to the complaint that Rupert Allason and Jim Rolfe had been presented on the programme without credentials. It reported that the former had been described as "a leading commentator on British espionage" and the latter as "a defence analyst". Both descriptions, it contended, were accurate. Referring to Ms Smith’s criticism of Jim Rolfe using the word "probably", in relation to Dr Sutch’s passing on information, TVNZ commented that her suggestion that such a word would not stand up in court betrayed a misunderstanding of the nature of the programme. It was, it said, intended to relay informed opinions to a lay audience about a matter of public interest.

With respect to the complaint about the interview with Colin Lines, TVNZ responded that the programme had legitimately asked the arresting officer for his opinion. It pointed out that Mr Lines had retained large files on the case and still held to his view that Dr Sutch was guilty on the basis of his meetings with Soviet agents going back for some years. That evidence, which it argued the programme made clear, was disallowed by the trial judge on a "legal technicality", it noted.

In response to Ms Smith’s request for a tape of the full interview conducted with her, TVNZ advised that it was its policy not to grant such requests.

Turning to the specific standards, TVNZ’s view was that Ms Smith had not shown any proven instances where the programme contained errors of fact. It argued that she had not shown that her perspective on the case made illegitimate other perspectives reflected in the programme. It wrote: "Perceived inaccuracies seem to be differences of opinion rather than proven falsehoods."

As far as standard G3 was concerned, TVNZ maintained that viewers would have been left in no doubt of Ms Smith’s views about whether Dr Sutch had been involved in espionage. It noted that it was not unusual to use only a part of the original interview, and argued that the extracts used fairly reflected her views.

As a further point, TVNZ noted that standard G3 not only allowed for Ms Smith’s views to be voiced, but also those of some she criticised, such as Mr Lines and Mr Makarov.

Turning to standard G4, TVNZ responded that in its view Ms Smith had been fairly treated in the programme. It considered the information was soundly based and had been legitimately put before the public.

With respect to standard G5, it advised that it was unable to identify which principles of law were at stake. It did not consider that discussion of a verdict in a court of law 25 years ago represented contempt for the law.

Dealing with the complaint under standard G6, TVNZ said its impression was that Ms Smith believed the standard had been breached because not all of the matters raised in the item had been put to her for response. In fact, it said, the programme was not primarily about Ms Smith’s views, but about the direction that research on the Sutch case was taking now.

TVNZ did not believe that any deceptive programme practice had been employed and found no breach of standard G7. It observed that it was not a deceptive programme practice to suggest that questions still remained over the Sutch case, nor was it deceptive to examine a major historical event in a fresh light.

It apologised if the programme had caused Ms Smith distress, but believed that it contributed to an on-going debate on an issue of considerable and legitimate public interest.

Ms Smith’s Referral to the Broadcasting Standards Authority

Ms Smith began by taking issue with TVNZ’s description of the programme as one which highlighted "evidence not presented to the jury" and to "key people" now no longer constrained by their office. It was a fact, she said, that the so-called evidence not presented to the jury was not evidence and that no "key people" were named. She maintained that Rupert Allason and Jim Rolfe were not key people, and that if Colin Lines was included, he was not a key person either and had never been constrained by the office he held. As for Mr Makarov, she noted that he had given his account of events in 1993, subsequently altering it on one important point, as pointed out in her original complaint.

In Ms Smith’s view, the overriding purpose of the programme had been to "convict" Dr Sutch. She said the following matters and assertions, representing the tone of the programme as well as its content, substantiated her belief:

• the description of the Soviet Union as "the evil empire" and a photograph of Lubianka prison
• using two highly prejudiced people – Jim Rolfe and Rupert Allason as authorities
• Dr Sutch was shown speaking but his words were inaudible because he was talked over
• The statement that Dr Sutch was long suspected of being in touch with the KGB
• The photograph of Mr Razgovorov running down Aro Street, unnamed until the third time. It would have appeared to viewers to have been Dr Sutch
• Allowing Mr Makarov to lie when he said that Mr Razgovorov had said "yes" when asked, "did Sutch give you that?" referring to the envelope
• Using Colin Lines – an untruthful witness – who was not the arresting officer, as implied
• Reference to Dr Sutch’s visits to the Soviet Union, which were described as suspicious
• That Dr Sutch and Ms Smith had "close contact with the Russians" while in New York
• That Dr Sutch was not approved of by the US
• Unsupported allegations that he was "almost certainly paid"
• Rupert Allason’s assertion that he had no doubt Sutch was an agent from the 1930s, and no doubt he was a spy.
• The statement that Dr Sutch had died a wealthy man, which did not take into account the explanation given by Ms Smith for his apparent wealth when he died

Ms Smith clarified that she had not objected to the suggestion that Dr Sutch "provided material" to other diplomats. What she did reject was the assertion that he had sold secrets to the Soviet Union.

Turning to TVNZ’s key factors which it said had informed the fresh approach, Ms Smith responded:

• The dates in the diaries gave only date and place. The dates were not evidence of meetings with Russians. Therefore they were inadmissible as evidence. Ms Smith maintained that when the SIS followed Dr Sutch home from Karori, they had no idea who he was. In her view, that discredited the notion that he had been observed meeting Russians over many years.
• That Mr Razgovorov was a KGB agent was not proof of the charge against Dr Sutch.
• An object referred to in the programme was not a parcel, as claimed by TVNZ. It was an envelope, about quarter of an inch thick. The jury were not told about it for the simple reason that it was not connected with Dr Sutch. Ms Smith noted that his taxi driver had sworn that Dr Sutch had left the taxi with nothing but a rolled up newspaper. Further, she said, Dr Sutch and Mr Razgovorov had not met that evening.

With respect to the preparation of the programme, Ms Smith maintained that she had been misled about the programme’s purpose. She repeated that she had been told that the programme would not go ahead unless there was something worthwhile in the Mitrokhin Archives. She said it was entirely untrue that she had been informed that the team was going to London and Moscow, that the reporter had spoken to Mr Makarov and others and that an entirely new perspective on the case had emerged. She said she had agreed to be interviewed because she knew that she had something to contribute and assumed that the programme would be responsible. She added that it was laughable for TVNZ to claim that it was satisfied that every effort had been made to convey to her the nature of the item being assembled.

Ms Smith complained that the reference to "The Week" had been "magnified out of all reality". She reported that as Walter Nash had dismissed the allegation that Dr Sutch was responsible for the leak referred to, it was nonsense to say it explained the government’s sensitivity in dealing with Dr Sutch, or to say that it remained an ingredient of a major event which continued to attract wide public interest.

Next Ms Smith repeated her complaint that no independent credentials were given for either Rupert Allason, who wrote about espionage under the name of Nigel West, or Jim Rolfe. She noted that Jim Rolfe had already put himself on record as regarding Dr Sutch a traitor. This, she said, must have been known to TVNZ.

With reference to the interview with Colin Lines, Ms Smith repeated that he had not arrested Dr Sutch, but had merely been the first officer to see him in Holloway Road. She maintained that Mr Lines was not a truthful witness because he omitted reporting the presence of his senior officer. She added that the fact that he still believed that Dr Sutch was guilty proved nothing.

Ms Smith asked the Authority to request a copy of her interview with the programme’s producer.

Turning to the standards, Ms Smith responded:

Standard G1 –  the errors of fact were set out in her complaint.

Standard G3 –  she had more to contribute to the programme than the one opinion which she was allowed to express on it.

Standard G4 –  Dr Sutch had not been dealt with justly and fairly in the programme.

Standard G5 –  the programme treated the principles of law applied in a High Court trial as irrelevant. Further, she argued, the principles which applied outside the law courts were not respected.

Standard G6 –  that balance, impartiality and fairness were conspicuously absent, and this was not just a question of what was, or was not, put to her.

Standard G7 –  the way the programme was presented was deceptive, in that it used partial, unsound and in some cases demonstrably untrue information to reach a predetermined end, taking advantage of the confidence viewers would normally have in the integrity of broadcasting in New Zealand.

Finally, Ms Smith pointed out that TVNZ had not responded to her assertion that the one opinion she had been allowed to express on the programme was the one that would make viewers think "she would say that, wouldn’t she, she was his wife". She also objected to TVNZ’s failure to let viewers know that she had fully and frankly answered the question as to how Dr Sutch had acquired such wealth as he had when he died. She noted that TVNZ had not responded to her accusation that, having failed to prove that Dr Sutch was paid as a spy, the programme decided to "drop this poison" into the public’s minds.

TVNZ’s Response to the Authority

TVNZ’s first point was that, contrary to Ms Smith’s assertion, the programme had presented evidence which had not been before the jury. That evidence, which had been ruled out on a "legal technicality", concerned meetings between Dr Sutch and others, including Soviet citizens, going back several decades. As for the reference to "key people", it contended that, in its view, they were Mr Lines and Mr Makarov. Mr Lines, it said, was the arresting officer, and had been second in command of the police operation. Mr Makarov was Charge d’Affaires of the Soviet Embassy. In its view, Mr Makarov had not altered his account, but had simply expanded on what he had said in 1993.

Next, TVNZ denied Ms Smith’s assertion that it was the purpose of the programme to convict Dr Sutch. It argued that the case remained one of considerable public interest, and was a legitimate topic of journalistic investigation.

To Ms Smith’s complaint that the programme had said Dr Sutch sold secrets to the Soviet Union, TVNZ clarified that while it was true that Mr Allason and Mr Rolfe believed he would have been paid, that was their opinion. The programme did not say that he had sold secrets.

In relation to Dr Sutch being known to the SIS, TVNZ advised that it had been informed by Mr Lines that the SIS had witnessed 5 meetings between Dr Sutch and Mr Razgovorov over several months in 1974. It noted that on several occasions, Dr Sutch was seen to open his briefcase and apparently show or hand things to Mr Razgovorov. On the day of his arrest, the police and the SIS had information that Dr Sutch intended to meet Mr Razgovorov later that day. The surveillance plan went awry when Dr Sutch unexpectedly took a taxi to the meeting place, and when police radio equipment broke down. TVNZ suggested that this description of the events threw into question Ms Smith’s assertion that the SIS had no idea who Dr Sutch was when they followed him home. TVNZ also submitted that it was not inaccurate for the programme to report claims by Mr Lines that the diaries contained a record of a long series of meetings with Soviet representatives. It noted that Ms Smith had acknowledged that Mr Allason had reached the same conclusion.

With respect to Ms Smith’s comments on Mr Razgovorov, TVNZ advised that there was no doubt that he belonged to the KGB, as did the driver who was handed the envelope referred to. It said that these facts had been confirmed by Mr Makarov.

With reference to the large envelope, TVNZ reported that Mr Makarov was adamant that the package had come from Dr Sutch. It denied that the programme had described the envelope as a parcel, though it acknowledged that it might have referred to it as a package. In TVNZ’s view, the description of the package had no relevance to the substance of the complaint.

Turning to the approach to Ms Smith regarding participation in the programme, TVNZ advised that after the initial contact had been made, the producer had told her that the programme would not go ahead unless it broke new ground. When Ms Smith was contacted some two months later, she was told that in the view of Assignment sufficient material had been gathered to justify a new story, including an interesting interview with Mr Makarov.

TVNZ advised that the producer denied that the Assignment team had failed to convey to Ms Smith the nature of the programme being assembled. It reported that when she came to TVNZ’s offices to be interviewed she had not expressed any reservations about doing so.

TVNZ made two further points.

First, referring to the statement that Dr Sutch had died a wealthy man, TVNZ noted that that information had come from the autobiography of Jack Marshall. The matter was put to Ms Smith during her interview, and she had not denied it.

Secondly, it acknowledged that Mr Baker had been the senior police officer at the time of the arrest. However as he was now dead, TVNZ considered it perfectly legitimate to speak to Mr Lines, who had been second in command of the investigation, and had been the arresting officer.

Ms Smith’s Final Comment

With respect to the diary entries, Ms Smith maintained that these did not provide any evidence of any meeting with any person, since only the dates and places of meetings were noted in the diaries. Without names, the entries were not evidence, she continued, and had not been presented to the jury. This, she said, was not a "legal technicality", but went to the heart of the matter.

Ms Smith argued that neither Mr Lines nor Mr Makarov were "key people" as contended by TVNZ.

Next, she observed that "For TVNZ not to broadcast evidence that would exonerate Dr Sutch would be in line with their suppression of my explanation of his wealth."

Regarding the meetings between Mr Razgovorov and another person, Ms Smith maintained that it was not until Dr Sutch had been followed to his home that he was identified by the SIS and then it was concluded that he had met with Mr Razgovorov previously. She denied that "on several occasions" he had opened his briefcase and given something to Mr Razgovorov. She said that there was only one occasion when Dr Sutch had opened his briefcase, and that had been proved to be because a container of milk inside it had been leaking. She emphasised that there was no evidence that Dr Sutch ever showed or handed things to Mr Razgovorov.

With respect to Mr Allason’s conclusion about the contents of the diaries, Ms Smith submitted that as he had no first hand knowledge of the case, his opinion was worthless.

Ms Smith acknowledged that there was no doubt that both Mr Razgovorov and the driver were KGB, noting that both went home in disgrace.

As for Mr Makarov’s "lie" that he was told the package had come from Dr Sutch, Ms Smith noted that Mr Razgovorov could not have got the package that evening from Dr Sutch because they had not met. She wrote:

The Holloway Road area was full of SIS agents: I placed them all, from the evidence given at the trial, and I checked their times as given in evidence, and that ruled out a meeting. And why should [Dr Sutch] still be waiting under dripping trees (I know exactly where he was standing) if they had already met?

Describing the envelope as a package and then a parcel was, Ms Smith contended, prejudicial. She argued that the relevance of the police searching for something in the vegetation at the side of the road was that as they knew that Dr Sutch and Mr Razgovorov had not met, and as Dr Sutch had nothing on him, they had assumed he had tossed something away. In fact, they found nothing because, she noted, he had had nothing to hand over.

With respect to her interview, Ms Smith said she stood by her description of the experience as an ambush. She noted that the producer had acknowledged at the time of the interview that she had expected to talk about the programme before filming began.

Dealing with TVNZ’s final two points, Ms Smith described herself as "flabbergasted" by TVNZ’s statement that she had not denied the fact that her husband had died a wealthy man. She noted that not a word of her explanation about his supposed wealth was given, and that viewers were left to think he must have been well paid by the Soviet Union.

Regarding the interview with Mr Lines, Ms Smith acknowledged that it had been legitimate to talk to him, but she objected to the impression given that he had been the senior officer present. She also objected to the inference that he had arrested Dr Sutch in Holloway Road, noting that it was not until after Dr Sutch had returned home that he had been arrested.

The Authority’s Findings

Preparation of the Programme

Ms Smith contended that she had been misled by the producer of the programme. She said her agreement to participate had been on the basis that the programme was to be based on what was revealed by the Mitrokhin Archives. If there was nothing useful in them, she said she had been told that the programme would not go ahead.

TVNZ responded that Ms Smith was told that the programme makers planned to visit London and Moscow, and that she had been assured the programme would not go ahead unless the investigation was found to "break new ground". It maintained that Ms Smith had subsequently been told that a new perspective on the Sutch case had emerged, and that the programme would be going ahead. In its view, the programme makers had made every effort to convey to her the nature of the item being assembled.

Ms Smith complained that TVNZ’s pre-broadcast conduct breached standards G1 and G4. The Authority subsumes the standard G1 aspect under standard G4 as it considers the essence of this aspect of the complaint is that Ms Smith believed she had been misled and therefore had not been treated fairly by the programme makers.

The Authority notes that there is not a significant variation in the parties’ recollection of the initial approach, in that it was agreed that it was conveyed to Ms Smith that the programme would go ahead if new information emerged. However, it is clear that she understood this to relate specifically to material being gleaned from the Mitrokhin Archives. The Authority notes that she denied being informed that the production team was going to London and Moscow, or that a new perspective had emerged after the reporter had spoken to Mr Makarov and others.

The Authority acknowledges Ms Smith’s complaint that she had been treated unfairly by the programme makers. It accepts that there is some ambiguity about the nature of the "new evidence", upon which the programme was purported to be based, and that – despite TVNZ’s assertion to the contrary – Ms Smith claimed that she did not know about TVNZ’s contact with Mr Makarov which constituted part of that "new evidence". She did know, however, that the Mitrokhin Archives yielded no relevant information. Nevertheless, she agreed to visit TVNZ’s offices in Wellington and to being filmed there and it follows that – by her own account – she accepted that new material of some kind was to be presented. Although she has contended that she participated on the basis of incomplete information provided by the broadcaster, the Authority is unable to conclude that she was treated unfairly. It declines to uphold this aspect.

The Programme

Turning to the programme, the Authority notes that there were a number of aspects which were said to have breached broadcasting standards. It considers each of these matters under the relevant standard.

Standard G1 – truthful and accurate

Ms Smith objected to the programme’s reference to Dr Sutch having been charged with obtaining secrets for the Soviet Union. She pointed out that the charge was laid under s.3(1)(c) of the now repealed Official Secrets Act 1951, and that the actual charge was:

…that [Dr Sutch]…for a purpose prejudicial to the safety and interests of the State, obtained information that is calculated to be directly or indirectly useful to an enemy.

While the Authority acknowledges that the charge was not framed in precise language, in the context of a documentary programme about a historical matter, the Authority does not consider that the simplified description breached the requirement for accuracy in standard G1. It declines to uphold this aspect.

In his introductory remarks, the reporter said the Soviet Union had been described as "the evil empire" and, referring to Stalin’s annihilations and the conduct of the KGB (the "most sadistic police force in the world"), that for many years it had been just that. Ms Smith objected to those descriptions, which she said were prejudicial, and to the accompanying photographs, which showed Lubianka prison. She argued that the descriptions were designed to create an atmosphere in which condemnation of Dr Sutch would come easily.

In the Authority’s view, the reference to the "evil empire" and to the KGB as being the "most sadistic police force in the world" helped to establish the historical context in which Dr Sutch was alleged to have operated as a spy. During the Cold War, and at the time he was arrested and charged, this was a typical Western perception of the Soviet Union. As part of the scene-setting introduction to the programme, the Authority finds no breach of standards and accordingly declines to uphold this aspect of the complaint.

Ms Smith complained that the programme relied on two people for whom no credentials had been given. One was author Rupert Allason (also known as Nigel West), who said he had no doubt that Dr Sutch had been "a KGB asset" from the 1930s until "he was arrested handing over a packet to somebody who certainly appears to be his KGB handler." Ms Smith said such a statement was "absurd" and, noting that Mr Allason had never been in New Zealand, asked what information he had been given to make such an allegation. Mr Allason also gave examples of the kinds of information he believed Dr Sutch had passed on to the Russians. Ms Smith noted that at his trial, the prosecution had been unable to provide any evidence that Dr Sutch had passed on any such information.

The second person was Jim Rolfe, identified as a defence analyst, who Ms Smith advised had been a member of the SIS. She objected to his allegation that Dr Sutch had been passing information relating to various trade and commerce issues and that "later in his life he was probably passing information about other prominent New Zealanders, information that could be used to blackmail or compromise those New Zealanders."

The Authority notes that the two individuals were given an opportunity to express their views about their knowledge of the Sutch case. Rupert Allason was described as a British intelligence expert who had studied the case, and Jim Rolfe as a New Zealand "defence analyst". Ms Smith complained about their contribution to the programme, arguing that some of their comments were inaccurate, and that their presence contributed to the programme’s lack of balance. The Authority does not have before it sufficient factual material to enable it to adjudicate on the alleged inaccuracies. However, it considers this aspect of the complaint below when it assesses the complaint that the programme lacked balance.

Ms Smith objected to the programme’s reference to "A meeting in which [Dr Sutch] apparently hands a mysterious package to the Russian." She emphasised that there was no evidence of either a meeting or the handing over of a package, or even an envelope.

The source for this contention, the Authority notes, is Mr Makarov who, when interviewed, stated that Dr Sutch had handed over an envelope or package to Mr Razgovorov which was then taken to the Soviet Embassy. It is the Authority’s view that it was reasonable for that conclusion to be drawn on the basis of what Mr Makarov had said. However, it also notes that Ms Smith was herself given the opportunity to comment on the claim. On the basis of her discussion with the reporter, it was reported on the programme that:

[she] says that [Dr Sutch] had nothing to do with the package that eventually ended up here, at the Soviet Embassy. She says that the taxi driver who drove him to the meeting with Razgovorov did not see anything resembling a package.

Further, Ms Smith was given the opportunity to comment directly on Mr Makarov’s contention that the package handed to him definitely came from Dr Sutch. She said:

[Makarov] always said that he didn’t know what the parcel was. This was simply handed to him by Pertsev, who was another KGB character apparently and Pertsev said that it is KGB material, and you’re not to open it, it is not for you, and Makarov never did, so we don’t know what was in it or where it came from.

While the Authority acknowledges that the fact of a package having been handed over was unproven, it considers that Ms Smith had a reasonable opportunity to cast doubt on the veracity of Mr Makarov’s account. In those circumstances, the Authority finds no breach of standard G1.

Ms Smith complained that the programme was inaccurate when it referred to Colin Lines as being the former Policeman who arrested Dr Sutch. She noted first, that although Mr Lines was the first to approach Dr Sutch, it was his superior who took charge a few minutes later. She also noted that Dr Sutch had not been arrested in Holloway Road.

The Authority notes Ms Smith’s assertion that Mr Lines was not the arresting officer, although it was he who apprehended Dr Sutch in Holloway Road. However, as the senior officer is now dead, and Mr Lines was there, the Authority does not consider it was inappropriate to interview him for his recollections of the arrest and subsequent events. It declines to uphold the complaint that the programme was inaccurate in its recounting of this aspect.

Ms Smith contended that Mr Lines’ recollection of the conversation as to whether Dr Sutch was "on the hook" with the Russians was inaccurate. She said that the whole conversation had been conducted by the senior officer and, she recalled:

Baker [the senior officer] asked [Dr Sutch] ‘Are you on a hook?’ [Dr Sutch] said ‘If I said I was, what would be the consequence?’ to which Baker replied ‘The law would have to take its course.’ [Dr Sutch] said ‘There is no hook’.

She said that it was entirely untrue for Mr Lines to say that Dr Sutch had been offered an ‘out’ if he would talk.

There are two different accounts of this conversation, the Authority notes. The Authority is unable to determine the truth or otherwise of the competing narratives. However, whether or not the recalled conversation occurred as described by Mr Lines, the Authority does not consider it to be critical in the context of the content of the item overall. Rather, it sees Mr Lines’ account as a highly edited recollection of facts recalled many years after the event. In the absence of the senior officer, the Authority does not consider that any broadcasting standards were breached when he implied that it was he who asked the questions of Dr Sutch at the time of the arrest. It declines to uphold this aspect of the complaint.

7. According to Ms Smith, Mr Makarov lied when he said he had asked Mr Razgovorov if the "package" had come from Dr Sutch and that he had responded "Yes". She noted that in previous versions of this story, Mr Makarov had only gone so far as to say that when he handed Mr Razgovorov the package he (Razgovorov) had said "This package is for me".

The Authority is unable to make a finding on the veracity of this version of Mr Makarov’s account of receiving the package. Clearly, it notes, this was Mr Makarov’s recollection of events. Nevertheless, the Authority acknowledges Ms Smith’s argument that the recollection was prejudicial because it added weight to the proposition that a package was handed to Mr Razgovorov by Dr Sutch. It deals with this point below when it considers the complaint that the item lacked balance.

Standard G3 – acknowledge the right of individuals to express their own opinions

Ms Smith complained that this standard was breached throughout the item because, as one of the few with first hand knowledge of events, she had not been asked for her opinions.

In the Authority’s view, this aspect of the complaint can be subsumed under the balance aspect considered below. While it notes Ms Smith’s complaint relating to her own contribution to the programme, it also notes that other contributors, including Mr Lines, Mr Makarov, Mr Allason and Mr Rolfe also had the right to express their own opinions.

Standard G4 – dealing justly and fairly with any person referred to

Ms Smith complained that the programme had been unfair to Dr Sutch because it made inferences about the purpose of his trips to the Soviet Union, it implied that the diary entries were evidence of a series of meetings with Soviet officials, and also implied that he died a wealthy man because he had been paid by the Soviets.

Ms Smith also complained that she was treated unfairly because only a few minutes from her interview of at least half an hour was used on the programme. In particular, she said she was "outraged" by the statement that Dr Sutch had died "a wealthy man with considerable assets", without including her explanation as to how he had acquired his apparent wealth. She argued that there was clear inference to be drawn that Dr Sutch had been paid as a spy.

The Authority acknowledges that while the reference to the trips to the Soviet Union, the diary entries and Dr Sutch’s apparent wealth were capable of being interpreted as supporting the programme’s thesis that Dr Sutch was a spy, it does not consider that this constituted unfairness in terms of broadcasting standards. Furthermore, it notes, the facts were incontrovertible, even if the inferences were potentially unfair. It declines to uphold this aspect.

Standard G5 – respect for the principles of law

Ms Smith contended that this standard had been breached because the programme failed to accord respect to the acquittal of Dr Sutch after a trial conducted according to the principles of law.

Notwithstanding that a trial has been conducted in accordance with the law, it is the Authority’s view that the media nevertheless has a legitimate role to play in questioning the evidence presented there and whether the verdict was fair based on subsequent events and revelations. It concludes that such conduct does not breach the requirement under standard G5 to respect the principles of law, and declines to uphold this aspect of the complaint.

Standard G6 – balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature

Ms Smith complained that inaccurate and prejudicial impressions were given which contributed to the programme’s lack of balance and partiality. These included:

• An impression that a man shown in a still photograph running down Aro Street was Dr Sutch. Ms Smith noted that the picture had been shown twice without explanation and that it was not until the third time that the man was identified as being Mr Razgovorov
• The envelope which was alleged to have been handed over was described as a package by the reporter and as a parcel by Mr Makarov
• Mr Makarov was permitted to lie when he said the envelope/package had come from Dr Sutch
• Warren Freer’s description of Dr Sutch as a most secretive person who liked to meet at different places
• Jim Rolfe’s contention that Dr Sutch "almost certainly" would have been paid by the KGB
• The implication that the diaries provided evidence of meetings with Soviet officials and that the evidence was disallowed at the trial because of a legal technicality
• The inference that Dr Sutch’s apparent wealth was a result of his being paid for spying
• That Mr Lines was the senior officer present when Dr Sutch was arrested
• The description of the Soviet Union as the "evil empire" and the KGB as the most sadistic police force in the world
• Rupert Allason’s belief that Dr Sutch had been a spy since the 1930s
• That Dr Sutch was probably passing information which could be used to blackmail people
• That his visits to the Soviet Union provided the opportunity to establish links with the Soviet Communist Party
• That Dr Sutch had met with Mr Razgovorov and had handed over a package
• That during a visit to London in 1935 with Walter Nash, Dr Sutch had access to secret defence information. Some of this material was leaked to a Communist periodical and Dr Sutch was identified by a subsequent inquiry as being the likely culprit
• That when he worked at the UN, the US wanted him recalled
• That he had close contacts with the Russians while at the UN

Ms Smith provided comment on each of these matters which she maintained all contributed to an impression that Dr Sutch was guilty of spying. She said she regarded it as a fact that the overriding purpose of the programme had been to "convict" him.

The Authority acknowledges Ms Smith’s complaint that some elements of the programme could have given a misleading impression which prima facie demonstrated its lack of partiality and unfairness.

The Authority notes that s.4(1)(d) of the Broadcasting Act 1989, the statutory provision from which standard G6 is derived, specifically provides that the provision of a reasonable opportunity to present significant other points of view satisfies the broadcaster’s obligation to present a fair, impartial and balanced programme. It deals with each aspect of Ms Smith’s complaint under standard G6 separately.

With respect to the complaint about the failure to identify the man photographed running down Aro Street as Mr Razgovorov, the Authority notes that he was eventually identified, albeit on the third occasion he was shown, so that any misleading impression which could have been created was corrected.

In the Authority’s view, the reference to the envelope which was alleged to have come from Dr Sutch as both a package and a parcel was not so prejudicial as to breach the standard. As for the programme maker "permitting" Mr Makarov to change his story and to assert that Dr Sutch was the source of the package, the Authority observes that this was his recollection of events. In reaching its conclusion on these points, the Authority notes that Ms Smith was given an opportunity to refute the notion that Dr Sutch was the origin of the envelope/package, and that she referred to the taxi driver’s evidence in court where he testified that Dr Sutch was not carrying anything of the kind when he got out of the car.

Turning to both Warren Freer’s and Jim Rolfe’s recollections of Dr Sutch’s conduct, the Authority notes that both provided their personal recollections, which it considers the programme-maker was entitled to record.

The Authority acknowledges Ms Smith’s point that the programme said that the diary evidence had been dismissed on a "legal technicality", when in fact it had been inadmissible. However, it does not consider this amounted to a breach of the standard.

The reference to Dr Sutch’s apparent wealth, and to the impression given that Mr Lines was the senior officer present when he was arrested have been dealt with above. The Authority concludes that these comments did not breach standard G6.

The Authority acknowledges that the description of the Soviet Union as the "evil empire" and the KGB as the most sadistic police force in the world helped to create an impression that had the potential to be unfavourable to Dr Sutch. However, for the reasons outlined above in its consideration of standard G1, the Authority does not find any broadcasting standards were breached. In its view, this description conformed with the Cold War perception held by westerners of the Soviet Union and helped to establish the background to the arrest and trial of Dr Sutch.

Next, the Authority turns to the complaint that the programme was partial and unfair when it was stated that Dr Sutch had been a spy since the 1930s, that he was probably passing information which could be used to blackmail people, that his visits to the Soviet Union provided him the opportunity to establish links with the Communist party there, and that he was first suspected of being a communist in 1935 when on a visit to London with Walter Nash. The Authority notes first that it was Rupert Allason who stated that he had no doubt that Dr Sutch was a KGB "asset" and had been since the 1930s. This, it finds, was his personal assessment of the situation and was balanced by Ms Smith’s comments to the effect that Dr Sutch had been a loyal New Zealander who had spent his public life working for New Zealand’s interests. As for the suggestion that he was probably passing information, that was the observation of Jim Rolfe, a defence analyst. In the Authority’s view, that opinion was also balanced by comment from Ms Smith to the effect that Dr Sutch would not have been capable of betraying his country. With respect to the suggestion that his visits to the Soviet Union gave him the opportunity to establish links with the Communist party, and that he was suspected of being a communist after his visit to London in 1935, the Authority notes that Ms Smith acknowledged on the programme that her husband was very sympathetic to communist ideals but emphasised that he was never a communist. In the Authority’s view, her response sufficed to provide balance on this point.

Next the Authority turns to the complaint that the programme was unfair and partial because it implied that Dr Sutch had met with Mr Razgovorov and had handed over a package. Again, the Authority notes Ms Smith’s contribution on this point. It was she who maintained that Dr Sutch did not have anything resembling a package with him when he left the taxi.

Ms Smith also complained about the programme’s assertion that the British and American governments did not trust Dr Sutch when he was posted at the UN because of his close contacts with Communist delegates, especially Russians. The Authority considers this to be a minor point which it does not consider required balance.

Overall in its consideration of the balance standard, the Authority finds that the broadcaster complied with the requirements of standard G6.

Standard G7 – deceptive programme practice

Ms Smith contended that this standard was breached because viewers were likely to accept the "errors and deceptions" of the programme because of the confidence they had in the integrity of broadcasting.

In its application of this standard, the Authority has confined it to situations where deceptive practices such as technical trickery or deceptive editing techniques are used. These are not in issue in this programme. In the Authority’s view the "errors and deceptions" complained about have been traversed under other standards, in particular standards G1 and G6. It subsumes this aspect of the complaint accordingly.

Overall

The programme appears to have been borne out of interest in the second volume of "The Mitrokhin File" due to be published next year, and the expectation that it will deal with Dr Sutch’s connection with the Soviet Union during his years as a senior public servant in New Zealand. By way of background to the programme, the Assignment team interviewed Mr Makarov, who had been the Charge d’Affaires at the Russian Embassy in Wellington at the time of Dr Sutch’s arrest, and had also contacted an intermediary who had hoped to obtain an interview with Mr Razgovorov. In the event, the interview with Mr Razgovorov did not eventuate, but Mr Makarov, the Authority notes, was reasonably expansive in his recollection of the 1974 events. In addition, the programme included interviews with: the police officer who had been present when Dr Sutch was arrested, and who still believed that he was guilty of "some illegal activity"; a defence analyst and a British intelligence expert who both speculated on what "secrets" were allegedly being traded; and Dr Sutch’s widow.

The programme came from a particular perspective. It was clearly predicated on an assumption that Dr Sutch had most likely been a spy. In the complainant’s view, that matter had been put to rest with his acquittal, and proof to the contrary should have been advanced in a legally contestable manner analogous to that required by the formal rules of evidence. However, journalists and lawyers come from a different perspective when analysing a set of facts. The report accepted statements from people knowledgeable about cold war espionage and from others who had been involved in matters leading up to Dr Sutch’s trial. In accordance with usual journalistic conventions, their view of events and recollections formed a narrative which the programme presented as justification for the claims being made.

The Authority emphasises that there is a distinction between legal processes on the one hand and journalism on the other. For example, in counterpoint to the legal principle that a case will not be re-litigated, for journalists, there is no point at which matters of public interest become "finalised": there will always be ongoing review of historical events, including court trials.

While the Authority acknowledges that some facts were interpreted in a light that could be seen as being unfavourable to Dr Sutch, and that there was another version of events which was more favourable to him, on balance it does not find the programme was materially unfair, unbalanced or partial to the extent that it breached any broadcasting standards. In reaching its conclusion, the Authority is aware that when the second volume of "The Mitrokhin File" is published, there will be a further opportunity for the facts to be revisited.

For the reasons given, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Rosemary McLeod
Member
28 September 2000

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.     Shirley Smith’s Complaint to Television New Zealand Ltd – 12 April 2000

2.    TVNZ’s Response to the Formal Complaint – 19 May 2000

3.    Ms Smith’s Referral to the Broadcasting Standards Authority – 1 June 2000

4.    TVNZ’s Response to the Broadcasting Standards Authority – 20 June 2000

5.    Ms Smith’s Final Comment – 26 June 2000