Reality strikes for the Fake Sheikh

Alistair Parker, solicitor at Brett Wilson LLP, considers the fallout from the recent conviction of Mazher Mahmood.

Commentators are not exactly lining up to describe the demise of Mazher Mahmood as that of a fearless undercover journalist who had one brief lapse of integrity. In fact, there are precious few minimising or mitigating at all. Rather, the case feels like the tip of an iceberg which we all knew was lurking. We now all await a deluge of further developments in varying degrees of trepidation or vindication, depending on whether you work for News UK or not.

Mr Mahmood is commonly known as the ‘Fake Sheikh’, although this is just one of the many guises under which he has operated for over 20 years for the News of the World, the Sun, and the Sunday Times. Through his elaborate and covertly-recorded ‘stings’, Mr Mahood made a business of ensnaring hundreds of criminals, and also well-known celebrities, bankers, actors, politicians, sportsmen, models, and even royalty. Predictably, any overlap between the celebrity and the criminality attracted huge attention and became big business.

Mahmood’s demise came via the prosecution of singer Tulisa Contostavlos in 2013-2014. Mr Mahmood had been at the centre of persuading her to arrange the supply of cocaine for two men posing as Hollywood film producers. Keen to impress such glamorous employers, Contostavlos allegedly obliged by arranging the supply of half an ounce of cocaine via her friend, Michael Coombs. That supply took place outside the Dorchester Hotel and so Coombs and Contostavlos were eventually prosecuted for their roles, with Mahmood assuming his familiar role as star prosecution witness. Coombs actually pleaded guilty in July 2014, shortly before the trial. The trial then collapsed within days when it became clear to HHJ McCreath that Mazher Mahmood was lying about a key aspect of the Prosecution case. Contostavlos was cleared, and Coombs had his guilty plea revoked, and was also then cleared. Contostavlos said at the time that she had no involvement in cocaine and the scenario would never had occurred had it not been entirely ‘set up’ by Mahmood’s team, who targeted her in this extensive, well-funded and highly-organised scam.

Two years later, and Mr Mahmood now finds himself convicted of perverting the course of justice and serving a 15 month sentence. The basis for this was that he manipulated evidence that was presented to the police as the full, unfettered truth. The jury found that Mahmood had colluded with Alan Smith, a key witness, to remove any reference of Contostavlos speaking disapprovingly about drugs. Such comments would not have fitted well with the tabloid story about her, and would have bolstered the defence entrapment argument that she was only ‘playing along with the role’ ascribed to her as part of the scam.  The fact that Smith, the one who altered his statement, received only a suspended prison sentence indicates that Mahmood was plainly the leading role.

Many previous targets of Mahmood’s subterfuge are now lining up to sue him and News UK, in a torrent of litigation that could dwarf the phone-hacking scandal.  More generally, the case calls into question the validity of Mahmood’s methods, and of the use of undercover journalism in general.

Ben Rose, the solicitor who defended Contostavlos, has called for a change in the law giving defendants the same protections from journalistic entrapment as they do from police entrapment. In law, undercover police are entitled to present a suspect with an opportunity to commit crime and then record whether the suspect takes it. It would be police entrapment, however, to actively encourage the commission of offences with the promise of financial or career-enhancing inducements, as in Contostavlos.  In this sense, Rose argues, undercover journalists should remain just that, without crossing the line into being an unregulated police force.

Many others also argue that Part 2 of the Leveson Enquiry (concerning the relationship between the media and the police) needs to proceed forthwith.

However, the political cynic can see that no government, particularly the current one, is going to actually regulate undercover journalists in any way adverse to the media it relies on.  Within weeks of assuming power, Prime Minister May held a meeting with Rupert Murdoch. Despite all the lessons from Leveson, the content of this meeting was kept private.  Perhaps they were discussing the timetable and witness running order for Leveson Part 2 but perhaps not.  The reality here is we cannot rely on, nor afford to wait for, a change in the law.  Let us not pin all our hopes on that path.  At best it involves an inquiry lasting years, interspersed with several dozen private meetings between politicians and their various press baron masters.  In the meantime, the newspapers they control will use the delay to shift the public focus onto something else. Frankly, we already know how this ends.

As a general rule going forward, it should now be for independent police officers and the CPS (who thankfully don’t rely on the votes of tabloid readers) to be more careful about the sort of evidence they choose to rely on, including assessing the credibility of certain journalistic witnesses.

More immediately and specifically, there must also be a review of Mazher Mahmood’s previous work. There is a long rap sheet of complaints from Mahmood’s previous targets. All those claims previously dismissed as ‘special pleading’ now sound eerily similar to Contostavlos’ reports, namely that either:-

• Mahmood offered inducements to ‘create’ the commission of a crime that would never otherwise have been anticipated,
• Mahmood manipulated or ‘spliced’ audio recordings, thus providing police with inaccurate impressions about what was said, or the context of it,
• Mahmood misled law enforcement about the ‘originator’ or ‘instigator’ of a criminal enterprise when in fact the origin was either Mahmood, or someone in his pay.

To start with, independent officials at the Criminal Cases Review Commission, the Crown Prosecution Service, and the Metropolitan Police Force ought to review every one of Mr Mahmood’s files, his reports, his witness statements and his testimony – whether or not these files led to a successful prosecution. Compare and review Mahmood’s material in the light of all the other evidence, including the accounts of his targets, and consider whether there are misleading statements or lies from Mahmood or those within his team. In other words, there must now be a case-specific and comprehensive review on whether perverting the course of justice was Mahmood’s modus operandi. This is precisely what was lacking until HHJ McCreath stopped the Contostavlos trial three years ago, and it is the only way to discover whether that case was indeed a one-off, or in fact a ‘Jimmy Savile’ moment.