Britain's Got Talent winner's use of extra dog in Jules & Matisse act breached Ofcom code over misleading viewers

The swap was only revealed by Jules the next morning during an interview on Lorraine which prompted a viewer outcry and 1,175 complaints to Ofcom.

Today's ruling does not carry a fine – which is only issued by Ofcom for repeated breaches of its broadcasting code – but it is embarrassing for the network which admitted in its submissions to the watchdog that it was not made aware of the switch by the production team behind the scenes.

Ruling that the incident breached rule 2.14, which is about misleading viewers, the regulator said: "We did consider that the combination of a range of factors served to mislead a number of viewers as to which dogs participated in the BGT final. In particular, these were:

- the editorial decision made, after the televised audition of "Jules O’Dwyer & Matisse", to maintain the name of the act for its performances in the semi-final and final of the series, so as to ensure that the introduction in each of another dog, in a subsidiary role, surprised viewers;

- various comments in the final which reinforced the audience’s perception that "Jules O’Dwyer & Matisse" was likely to feature only a single dog. This included the fact that the presenters introduced the performers as a “double act” and that a short recorded segment featuring Jules O’Dwyer and Matisse focused on Matisse’s role to the exclusion of other animals (“When we go on that stage tonight, we’re going to give it our all; we’re going to do our best. Let’s go get ’em, eh, boy…”);

- the set design and the timing of the exit and entrances of the dogs in the final, which contributed, as ITV recognised, “to the belief of many viewers that Matisse’s ‘character’ had been performed throughout by one dog”; and

- the fact that Chase did not appear alongside Jules O’Dwyer, Matisse and Skippy after the performance with the result that “the contribution of the third dog Chase was not disclosed explicitly to viewers during the [final]”.

Ofcom concluded: "Taking all of these factors into account, we considered that, although the Licensee may not have intended to deceive viewers, the presentation of the act "Jules O’Dwyer & Matisse" not only had the potential to mislead, but was likely to have done so."

In its defence to the regulator, ITV said that had its representatives been advised about the use of Chase in the tightrope walk on the day, “they would have ensured that the dog was brought on stage, or that his role was at least referred to after the performance, in the interests of complete transparency to viewers.”

ITV will also be heartened by Ofcom's insistence that it had "no reason to believe that there was any intention to deceive viewers that the tightrope walk actually involved a second dog". The regulator also noted that O'Dwyer was open about the switch when she appeared on the Lorraine programme the following day.

"She was shown with both Matisse and Chase, and spoke openly about the role that the latter had played in the previous night’s performance," Ofcom noted.

BGT head judge Simon Cowell admitted afterwards that he was furious about the error. "The moment I found out I literally put my head in my hands. I spoke to a lot of people after and I did raise my voice," he said.

“But it was mainly people owning up to it. They felt embarrassed, they felt frustrated, they felt stupid, but you’ve got to man up to this stuff. I could hear in their voices, some were in tears, just mad at themselves.”

Cowell added that if O’Dwyer’s act was called “Jules, Matisse and friends” it would have easily avoided the scandal over the so-called “fake Matisse”.

Jules and Matisse won £250,000 for their winning sketch which revolved around a string of stolen sausages which Matisse had purloined for three-legged dog Skippy. The act will perform in front of the Queen at the Royal Variety Performance this year.

O'Dwyer beat magician Jamie Raven with 22.6% of the vote to his 20.4%.

ITV has not been ordered to refund viewers who paid to vote over the telephone, but the broadcaster has agreed to do so via its web-site.

It said in a statement: "The Britain’s Got Talent production team apologised at the time for not making it clearer to the judges and viewers at home that three dogs were involved in the final performance. There was never any intention to mislead viewers and in their decision Ofcom said they have no reason to believe that there was any intention to deceive viewers that the tightrope walk actually involved a second dog.

"The majority of votes cast for Jules’ act were received through the free voting app. However, we accept that some viewers who voted for the winning act by a paid voting route may wish to seek a refund, or that the cost of their vote be donated in full to the Royal Variety charity.

"Details about how to obtain a refund, or to request that a refund be donated to the charity, are now on our website".

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