Anthony Scrivener: A case that shames press, police and prosecution

However you fix the rules on payments to witnesses, you are left having to rely on the ethics of the media
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The Independent Online

It began with a bang on 3 November 2002 with front page headlines in the News of the World: "World exclusive: we stop crime of the century". It ended with a whimper on 2 June 2003 at Middlesex Crown Court with the prosecution offering no evidence against the alleged perpetrators of the "crime of the century".

The case depended upon the reliability of the evidence given by one Florin Gashi to someone described by the News of the World as one of their most experienced reporters. It was a triumph for Rebekah Wade, the News of the World editor who then got promoted to the position of editor of The Sun. It was yet another triumph for Mazher Mahmood the newspaper's veteran investigations editor.

But the problem was that it was all rubbish. The newspaper had paid £10,000 to Mr Gashi, which they believed would "oil the wheels" or "loosen the tongue", but which instead inspired him to concoct an imaginary but dramatic tale. It could have been about anyone really, but a kidnapping story involving the Beckhams was obviously worth more than one about kidnapping Prince Charles, although perhaps rather less than one involving JK Rowling.

But to Mr Gashi, a man with previous convictions and little opportunity for gainful employment, £10,000 was a real snip.

There will be repercussions, of course. The alleged co-conspirators will all be entitled to damages for wrongful arrest and false imprisonment. Some if not all of the five are asylum-seekers, so the other tabloids are likely to go ballistic at their getting rich at the expense of the poor British public in this way.

Then there is the proud boast of Mr Mahmood that his "work" in the past has led to more than 100 successful convictions. Even as you read this, those usual human rights solicitors you see on television are rummaging through the files to see how many of them involved the News of the World dishing out handsome gratuities to a prosecution witness.

The first question is who was the more naive - the police, who received the information from Mr Mamhood, or the CPS, who received the information from the police. Surely the police were aware that the newspaper had paid their only witness £10,000. The newspaper claims that "no information was concealed or held back".

Then they found that there was absolutely no other evidence that any such crime was planned, let alone that any of the suspects were involved in it. There was just Mr Gashi and his £10,000. Having thus successfully completed their investigation, they passed the file over to the CPS.

The CPS are entrusted with the responsibility for bringing crooks to court where there is sufficient evidence to justify it. It is a position of heavy responsibility, and it might be reasonably expected that when the CPS receives a file from the police alleging a most serious crime involving one of the nation's most famous footballers and there is no evidence other than from a man with previous convictions who has been persuaded to cough by a gift of £10,000 from Mr Mahmood of the News of the World, they might well chuck the file straight into the waste paper bin with a few words of salutary advice for the policeman in charge of the case.

But this did not happen. The weeks and months went by and the evidence, or lack of it, remained the same, and there were these asylum-seekers languishing in jail eating wholesome British prison food for free and the case went on.

Seven months later the case got to court and someone on the prosecution at last appreciated what a first-year law student would have taken around five minutes to realise: that this grave and serious case was not going anywhere and was bound to fail. The CPS said, "We are now of the opinion that he is an unreliable witness after receiving financial gain from the News of the World." It is unclear as to the precise date "now" refers to. It looks as if it took seven months for the realisation to dawn. The suspects should never have been kept in custody during this time - the charges should have been dropped months ago.

In many serious criminal cases the prosecution have to rely upon the evidence of an accomplice who expects to receive something in return for shopping his mates. There are strict rues about this. Cash does not change hands and the defence and the court are given full details of the deal. Usually it involves the prosecution letting the judge know that the accomplice has been "helpful", and this will be reflected in a reduced sentence: in rare cases a complete indemnity from prosecution will be given.

The "deal" is assessed and approved at the highest level and everything is revealed at the trial. In one notorious case some years ago, a bank robber called Bertie Smalls agreed to give evidence against his former bank robber colleagues, and the Court of Appeal criticised the deal he was given as being too generous.

The obvious and real danger is that payments by a newspaper to a prosecution witness may well lead to that evidence being excluded. This may cause the trial to collapse, as in this case. What is to stop the media and police working together - media money and police powers? Quite often the money is paid before anyone has been actually arrested, and to someone who at the time has not been identified as a prosecution witness. It is very difficult to ban such payments in such circumstances, even though it is obvious that there will be an arrest and that the person will be a witness.

The Press Complaints Commission has sought to address the problem by issuing some fresh guidelines this year. Payments or offers of payments to witnesses or potential witnesses are banned once the suspect has been arrested. However payments can still be made where no one has been arrested where there is "demonstrable public interest".

It is difficult to lay down more precise guidelines than these, and these guidelines will not prevent such payments being made in all circumstances. However you fix the rules, you are left having to rely on the ethics of the media. The media will always be able to blow a prosecution by lavishing gifts on someone whom everyone knows will be a prosecution witness. There is little the Press Complaints Commission can do and there is nothing the court can do, as it is not a contempt.

The most important thing is that all should be revealed to the defence and to the court. There are three protections. The first should be the CPS, who have to weigh up all the evidence including the payment before they allow the case to go for trial. The second is the trial judge, who can exercise his discretion and stop the case where he believes it is inevitable that the payment could affect a witness's reliability. The final protection is the jury, who must weigh up all the evidence, including the payment, as the juries did in the Moors Murder case, the Jeremy Thorpe case and many others, and decide whether despite the payment they should believe the witness.

But it is just as bad acting as an agent provocateur. Never accept a smoke from a sheikh is good advice as dressing up as a sheikh is Mr Mahmood's favourite disguise, as many famous people have discovered to there cost. Better to accept a cheque. You can't be done for that.

The writer is a QC and former head of the Bar Council