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How was Tulisa's case ever allowed to proceed?

There was a series of fail safe points where this trial might have been stopped. None of them worked

“Let me be perfectly clear” said Tulisa Contostavlos outside Southwark Crown Court following the collapse of her drugs trial “I do not deal in drugs and have never been involved in taking or dealing cocaine”.

It was only the machinations of the “Fake Sheikh”, Mazher Mahmood, a Sun on Sunday  journalist that led anyone to think otherwise. Had Tulisa’s trial proceeded the jury would have heard a wealth of evidence that she publicly and privately deplores the use of cocaine. Indeed, the trial collapsed after Judge Alistair McCreath found there were “strong grounds to believe” that Mahmood had “lied” at a hearing before the trial, to “manipulate” evidence from his own driver of Tulisa’s disapproval of Class A drugs. Luckily for Tulisa, this came to light and the trial was stopped.

Had that not happened, the trial would probably have been the longest ever in relation to a charge of this nature, costing both the taxpayer and Tulisa wildly disproportionate sums. A conviction would have devastated one of our leading young creative talents whose work generated significant tax revenue for the UK.

Given the circumstances in which the News of the World closed, it is troubling that the criminal justice system does not approach the Sun on Sunday’s vigilante journalism with a little more scepticism.

Mahmood is an unusual character. On the one hand he is a prize-winning journalist who exposed the Pakistan cricketers’ bid-rigging scandal, the venal conduct of the Duchess of York and many immigration and drug gang leaders. On the other hand he has been caught out lying and altering documents at the Sunday Times and misleading the Leveson Inquiry. Many of his cases have collapsed in ignominy.

There has also been a series of cases from the Earl of Hardwicke in 1999 to Tulisa in 2013 where he confected elaborate sting operations, offering untold riches to persuade his targets to incriminate themselves in minor crimes. In Tulisa’s case the offer of £3.5 million was made in an unrecorded conversation in the toilet of a fancy Mayfair restaurant by an unnamed associate who urged Tulisa to come up with whatever Mahmood wanted. Luckily Mahmood’s own recorder picked up his whispered instruction to his assistant to make the offer, partly in Urdu, partly in Arabic, and our linguistic expert was able to decipher it.

How was such a case ever allowed to proceed? The rules afford a non-state agent rather more latitude than a police officer. The difference allows journalists the right sometimes to use extreme or even illegal means to test serious allegations. Journalists may also claim journalistic privilege to protect their sources, which exempts them from the duty to answer questions in Court. 

But none of this puts journalists above the law. English law does not forbid entrapment, but a Court should not permit a prosecution where wholly disproportionate inducements are offered, or where the sting merely tests the virtue of the innocent. There was a series of fail safe points where this trial might have been stopped. All of them failed.

First and foremost was the police, who took a brief statement from Mahmood before referring the matter to CPS. In so doing, they came under a duty to investigate all lines of enquiry, including those helpful to the defendant. Had they inquired at all, this case should have rung alarm bells. Mahmood told police of one round of drinks at the Metropolitan Hotel. At trial we established that he paid over £500 on drinks for a party of six, of whom two were not drinking alcohol. This case therefore joins the litany of police failures to investigate matters with a media angle, from phone hacking to Jimmy Saville. The police knew of other expensive failures based on Mahmood’s word. Since Leveson, the police should be expected to do better.

Second, and as important, was the CPS who must balance the need to support healthy investigative journalism against individual rights of privacy. I challenged them to no avail on the public interest in prosecuting someone so grossly inveigled, manipulated and intoxicated. It should concern lawmakers as well as the public that the CPS is run so defensively, concerned more with headlines than with justice.

The third line of protection was the judge, whose duty it was to prevent a prosecution which abused the process of the court and to ensure fairness between the parties. In a series of rulings he allowed Mahmood’s claim that his whispering female assistant was a journalistic source and could remain unnamed. He declined to treat the intoxication and the £3.5m inducement as undermining the safety of the admissions, and he refused to make the Crown disclose other known cases where Mahmood had destroyed evidence and hidden the identity of assistants. He refused to let the defence tell the jury of Mahmood’s history of lies and failed cases.

There could be no better recipe for injustice. The Defence were fighting this case with both hands tied behind their backs. It was only by great persistence that the full story in relation to the driver was dug out of the mist of obfuscation.

This must never happen again. No-one wants to undermine journalistic privilege, or interfere with the proper freedom of journalists in our liberal democracy. But we need much more robust guidance from the DPP on the public interest in prosecuting vigilante cases. The Crown should never adopt a case based on large inducements which are entirely disproportionate to the crime at hand, nor should the Court permit it. And newspapers should not employ journalists who tell lies.

Ben Rose is the solicitor acting for Tulisa