Tulisa and the Fake Sheikh: Don't put investigative reporting in the dock
In the clamour surrounding the collapse of the Tulisa Contostavlos trial over an alleged cocaine deal there has been much criticism of the undercover reporter Mazher Mahmood, known as the Fake Sheikh, and the Sun on Sunday for how it operated an undercover sting operation.
Tulisa Contostavlos trial has collapsed
Mahmood, whose speciality is dressing up as a wealthy Arab to offer illegal or immoral deals to personalities, and then exposing them when they take the bait, was the key witness in the police case against the X-Factor judge Tulisa.
She was accused in the Sun on Sunday of brokering a deal to supply cocaine. It appeared on the front page and was a big exclusive for the paper, which is trying to emulate the legitimate successes of its predecessor the News of the World before it closed after becoming embroiled in the hacking scandal.
The police followed up on the story. They interviewed Mahmood, arrested and interviewed Tulisa and her friend Michael Coombs, who was also implicated in the story, and after the results were considered by the Crown Prosecution Service, Tulisa and Coombs were charged.
The case went to court and after a long period of pre-trial hearings, where prosecution witnesses were extensively questioned, it was decided the full trial should go ahead. Tulisa pleaded not guilty and Coombs pleaded guilty to supplying cocaine.
Midway through the trial, the judge put a halt on it. Alistair McCreath, the recorder of Westminster, told the jury the case "cannot go on any further" because there were "strong grounds to believe" Mahmood had lied at a pre-trial hearing.
He said: "Mahmood is the sole progenitor of this case, the sole investigator, the sole prosecution witness, a man who has exercised his journalistic privilege to create a situation in which the identities of others involved in the investigation are unknown of the defence or the prosecution or even me. [He is] someone who appear to have gone to considerable lengths to get Ms Contostavlos to involve herself in criminal conduct , certainly to far greater lengths than would have been appropriate had he been a police investigator."
There is the nub. Newspapers and reporters are not police investigators. They do not press criminal charges against people. It was not the decision of the Sun on Sunday to charge Tulisa and Coombs, and remember he did plead guilty; it was the police and the CPS and they only press charges if there is more than a 50 per cent chance of conviction.
If the media, whether it be the Guardian, the Sunday Times, Panorama, Dispatches, or the Sun on Sunday have to reach the same burden of proof as a criminal conviction then investigative reporting in this country will be dead. Buried with no hope of resurrection.
I have no idea if Mahmood lied during the pre-trial hearing; the judge says there "were strong grounds to believe" he did. But what I do know is that when the Sun lawyer looked at the original story he passed it for publication. Later the CPS looked at the same evidence and underscored that decision by taking it to court.
The case failed and now Mahmood and investigative reporting are in the dock. He has been suspended by the Sun and critics of newspapers are piling in armed with their post-Leveson weapons.
I am not a great fan of Mahmood's Fake Sheikh method of investigative reporting but there is no doubt he has had considerable successes and some great stories. There have also been many instances where he has spent a great deal of his newspaper's money and the decision taken that the story did not stack up. That's tough, but good journalism has never been cheap whether it be dressing up in a dish dash or covering the shooting down of civilian airline over Ukraine.
When I was a News of the World reporter in the early 1990s I uncovered a story that involved hundreds of thousands of counterfeit dollars, thousands of stolen British passports and a countrywide conspiracy that involved a senior prison officer. Arrests were made and a large number of people charged and sent for trial. Some pleaded not guilty and walked free, others were found guilty and some held up their hands. I was a key prosecution witness, thankfully not the only one, and I was taken apart in the witness box by highly-skilled barristers. By the time I stepped down I was a perspiring wreck even though I knew I had told the truth as I knew it.
Bizarrely, one of the defendants who pleaded guilty to charges involving the stolen passports was Eric Allison, who years later became the prisons correspondent of the Guardian and we worked together. He told me he was guilty as charged but given that some of his fellow defendants got off always regretted that he did not fight the case. I bet Tulisa's friend Coombs now regrets pleading guilty even though he was allowed to walk free because the whole case was thrown out.
Tulisa's lawyers were obviously cock-a-hoop at her acquittal but after the trial, while recognising the right of investigative reporting, were anxious to point out that there seemed to be no adequate controls on what reporters were allowed to publish. They are wrong. Newspaper lawyers are zealous but also recognise that publication is not based on the burden of proof in a criminal case. There have always been civil remedies and some are still being sorted out post-Leveson.