Tulisa Contostavlos trial thrown out: What is journalistic subterfuge and can it remain a useful tool?

Judge's damning conclusion about 'Fake Sheikh' Mazher Mahmood's evidence puts the practice in spotlight

The collapse of the Tulisa Contostavlos trial yesterday, and the subsequent suspension by The Sun of its reporter Mazher Mahmood, will inevitably raise questions about the role of the ‘sting’ in British journalism.

If you ask a random sample of people what journalistic subterfuge looks like, a fair proportion would probably come up with a description of Mahmood’s ‘Fake Sheikh’ routine. And it has had its successes, notably the exposure of spot-fixing by members of the Pakistan cricket team in 2010. On the other hand, there have been previous question marks too. There was the ‘Red Mercury’ trial, another predicated on a Mahmood undercover job, which collapsed in 2006. And in 1999, a clandestine operation led to the conviction of the Earl of Hardwicke on drugs charges but the judge handed down a suspended sentence, telling the Earl and his co-defendant: “were it not for that elaborate sting you would not, I accept, have committed these particular offences.”

Mahmood’s methods divide opinion and have done for many years. But the conclusion by Judge Alistair McCreath yesterday that the journalist had given inconsistent evidence is damning, even though it did not relate directly to the way in which Contostavlos was initially snared.

Nevertheless, it is important not to lose sight of the fact that subterfuge (basically the use of any technique which conceals the real journalistic endeavour behind it) can play a vital role in public interest journalism – and might not always require its proponents to dress up in an elaborate disguise. It can, after all, be the only way to confirm that a story is true.

There are two basic tests which have to be passed before subterfuge can be justified. First, are there sufficient grounds for believing it will uncover material that it is in the public interest to obtain: in other words, can it be shown that the subterfuge is not part of a ‘fishing expedition’, done more in hope than expectation? And second, is it reasonable to believe that the information being sought cannot be obtained by conventional methods? Recording the process by which the decision to use subterfuge is reached is a fundamental part of the operation.

The Independent’s ‘Sponsor-a-Scholar’ exposé two years ago was a good example of how important undercover work can be. In that case, we were investigating an online scheme which appeared to offer the chance for wealthy men to ‘sponsor’ female university students in return for what was euphemistically described as ‘intimacy’. But as the paper’s team delved deeper into the story, it started to look more and more like a scam. A male reporter posing as a potential ‘sponsor’ was told by email that there were no places available. Meanwhile, a young female journalist was told that she might be eligible for the scheme but would first have to undergo an ‘assessment’, which included a ‘practical’ aspect. The question remained, who was behind the scheme?

We had already been engaging in subterfuge by pretending to be potential ‘clients’ and the logical conclusion was to maintain the pretence and arrange a meeting between our female reporter and the mystery ‘assessor’, which we would film covertly, before – in the phrase made famous by tabloids – making our excuses and leaving. The operation worked perfectly and enabled us to expose the actions of a man who was subsequently convicted for voyeurism and trafficking offences.

If journalists are to continue to hold to account those who commit crimes, who abuse positions of trust, who put public health and safety at risk or who otherwise act against the public interest, subterfuge must remain a tool of the trade. But it must be employed wisely and sparingly if its use is to retain public trust.

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