Collapse of Tulisa trial a sting in the tail for Fake Sheikh and the tabloid exposé

No more undercover skulduggery? John Stillwell/PA Wire

The fall-out from the collapse of the Tulisa Contostavlos prosecution in London is the detonation of another anti-media rage in the continuing crisis for British journalism ethics.

The former X Factor judge’s trial for brokering a drugs deal came about because she had been targeted in an elaborate undercover sting by the “Fake Sheikh” investigative reporter Mazher Mahmood.

She said she had been set up, plied with drinks, and in the words of her QC Jeremy Dein: “from start to finish, evidence has been gathered in a background of lies, deceit, manipulation and falsity.”

Judge Alistair McCreath said there were “strong grounds” to believe Mahmood, working on the exposé for the Sun on Sunday, had lied on the witness stand and “had been manipulating the evidence”.

There might be some irony in Tulisa’s celebrity status being enhanced by her transformation from drug offence defendant to tabloid media victim. She will be describing her “horrific and disgusting entrapment” in a BBC Three documentary next week.

Singer and former X Factor judge Tulisa Contostavlos after the collapse of her trial. Justin Tallis/PA Wire

Broadsheet disapproval

Meanwhile the bishops at The Guardian have been banging their staffs in disapproval. The influential journalist-turned-professor, Roy Greenslade, has been in full flow – largely because he has tracked Mahmood’s career since leaving the Sunday Times under a cloud when Greenslade was a news editor there.

Greenslade has produced a frisson of articles headlined in the style of “Mazher Mahmood has finally tripped up after years of notorious stings”. The Sun on Sunday publisher, News UK, has been seeking rehabilitation and post-hacking exorcism through re-branding, and leaving “Fortress Wapping” for the “Baby Shard”. Greenslade’s advice to them is that Mahmood “is an embarrassment, as the Contostavlos episode illustrates, and the paper should now bid him farewell”.

The Fake Sheikh’s stock is therefore very low. In addition to being suspended by his employing paper, he faces an action for civil libel and calls for the Metropolitan Police to investigate his conduct for perjury. While Guardian and Independent books on the phone-hacking and News of the World scandals are best sellers, Mahmood’s 2008 “Confessions of a Fake Sheikh: "The King of the Sting” Reveals All" can be bought second-hand at Amazon for 1p.

Yet again a construction of unethical tabloid skulduggery is being met with the triple jeopardy of dismissal, civil litigation and criminal enquiry. The desire for retribution and revenge against tabloid miscreants is becoming something of fetish.

End of the tabloid “sting”?

Does this latest storm herald the end of the journalism sting? What it does indicate very starkly is that public, judicial and political tolerance is on a very short fuse for media undercover operations that go wrong. It is the most dangerous and costly form of journalism and attracts the deadliest of legal shrapnel.

When the BBC’s Mark Daly infiltrated the Greater Manchester Police in 2003 as a probationer constable to expose racism, he was initially arrested for obtaining a pecuniary advantage by deception and criminal damage to his uniform by impregnating it with a pin-hole so he could fit his secret camera.

In undercover programmes for the BBC, Donal McIntyre had to deal with being the victim of a knife mugging, an attack by soccer hooligans in Copenhagen and libellous allegations from the Kent Police over his 1999 exposure of poor care standards in a residential home in Gillingham. Channel 4’s Dispatches programme also had to sue the West Midlands Police and CPS in 2008 for being accused of fakery in their programme Undercover Mosque.

Breaking the law

Nearly every aspect of the performance in undercover journalism engages breaches of civil privacy law and a myriad of criminal offences. At the top of the list is bribery and fraud.

None of these offences have a public interest or “for the purposes of journalism” defence. Media undercover investigators willing to commit these offences for the good of the story are therefore usually at the mercy of the police, CPS and courts.

As the criminal law is often being broken on a prima facie basis, the offending has to be venial or pardonable under common law. That means the performance of deception, lies and criminality has to be shown to be exposing a greater evil.

The performers of media stings are not obliged to comply with the Regulation of Investigatory Powers Act 2000 which is the duty of all state investigating authorities such as the police, HMRC, Trading Standards and intelligence agencies. The hoaxing of potential targets by journalists and use of agents provocateurs is not something the police could get away with.

Media regulation in the UK does demand, however, that undercover subterfuge is engaged only when all other legitimate journalistic methods cannot achieve the purpose. Fishing expeditions targeting organisations or individuals on the basis of mere suspicion is not enough. The investigation has to be prompted by specific information triggering the public interest to justify any breach of a reasonable or legitimate expectation of privacy.

The concept of a defence of entrapment is not recognised in the English legal system. State prosecution of offenders caught by sting operations may fail if they are shown to breach the Police and Criminal Evidence Act 1984. They can also be judged an abuse of process if it is shown that the investigating authority created a state crime that was an affront to the public conscience.

But these rules do not apply to evidence collected by Fake Sheikh-style media stings. The material generated is by a non-state private third party. It is merely presented by the police and CPS in fulfilment of their duty to prosecute when evidence of crime is brought to them.

There is a clearer crossing-of-the-line point for state investigators. Undercover drugs officers are allowed to pretend to be junkies in cold turkey pleading for a fix in order to arrest somebody whom they suspect of supplying. But it is not permissible to set up a state funded money laundering operation in Spain in order to lure criminals into fencing their ill-gotten gains through it.

Media performers can be more sly, imaginative and the temptations they dangle more exceptional.

It may be the case that Mazher Mahmood’s undercover adventures are more controversial because the tabloid demand to expose the peccadilloes of celebrity no longer chimes with the public’s desire to gorge on gossip and scandal. The News of the World has been shut down, nobody appears to mourn its passing, and his modus operandi faces greater scrutiny from the incisive development and intervention of privacy law.

Public interest defence

If the public is genuinely recoiling from the humiliation of public figures over their private sins, it should not be forgotten that Mahmood has also courageously investigated international terrorism, organised crime and corruption. In 2010 this included exposing Test Match fixing by Pakistani players.

Is it logical that the public interest of the Sun on Sunday has to be the same as that of the Guardian, Independent, Financial Times and BBC?

If the Tulisa sting proves to be Mahmood’s nemesis, British journalism will lose an investigator who can claim to have delivered 134 successful criminal convictions. Is that something that can be claimed by any other journalist in Britain?