Thu, Dec 02, 1999 page9

• The reporter as agent provocateur

  Entrapment, if it is to have any future at all in the field of journalism, can only be used sparingly and in cases which are overwhelmingly in the public interest

  • By Roy Greenslade / Guardian News Service, London
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  From newspaper reports after the first day of the case against the Earl of Hardwicke it looked as though the aristocrat was bound to go to jail.

  He and his friend, Stefan Thwaites, had arranged for cocaine to be delivered to a hotel. Hardwicke was heard to say: "Come on, bring on the charlie. I want a big fat line."

  He was then videotaped snorting the drug.

  

  Illustration: Mountain People

  The evidence was overwhelming and it might be thought that jurors would be somewhat prejudiced against a privileged young peer indulging in such hedonistic, and illegal, activities. Instead, the jury showed both men great sympathy.

  They pondered over their verdict for seven hours and when they eventually returned last Wednesday they handed the judge a note explaining that they had found it difficult to reach their decision.

  It said: "Had we been allowed to take the extreme provocation into account we would undoubtedly have reached a different verdict."

  The jurors were upset at the way in which the evidence against the men had been obtained. The prosecution case rested entirely on video footage shot by an undercover team from the News of the World and on the word of the paper's investigations editor Mazher Mahmood.

  Judge Timothy Pontius, sitting at south London's Blackfriars Crown Court, could hardly ignore the message and sentenced the pair accordingly. Hardwicke and Thwaites escaped jail and were given suspended sentences.

  The judge told them: "Were it not for that elaborate sting you would not, I accept, have committed these particular offenses."

  He then added: "Journalists in general, and those involved in this case in particular, should carefully examine and consider their approach to investigations where it involves no police participation, or indeed until after the trap has been sprung and the story reported in the press."

  A landmark moment

  These remarks, along with the jury's unprecedented rider, suggest that the episode should be viewed as a landmark moment. What the 11 representatives of the public (one juror was excused early in the trial) have done is set a new scale of values. Drugs may be bad.

  Drug dealing may be worse. But journalistic subterfuge is even worse still. By extension therefore, tabloid investigators are greater sinners than drug dealers.

  This case puts a question mark against the practice, and the ethics, of the use of such subterfuge. Entrapment may delight readers on a Sunday morning, especially when many of the details behind the operation are concealed from them, but once the depth of deceit and the elaborate nature of a sting is revealed in a courtroom over days, its sinister nature arouses public acrimony.

  Consider the bait offered to Hardwicke and Thwaites, who were then running a scooter franchise. A couple of "Arab businessmen" arrive out of the blue and offer a lucrative deal. They want to buy scooters worth ?100,000. To celebrate, they then take their "victims" on a hugely expensive night out at the Savoy. The Arabs -- Mahmood, who loves to dress up in flowing robes, and a colleague -- encourage them to drink and then to talk about, buy and eventually take, cocaine. All of this is secretly filmed.

  Three days later the young men find themselves "exposed" in the News of the World as drug dealers and are subsequently charged by the police.

  Mahmood's evidence, given over three days, was obviously crucial but the jury found him unconvincing. I was supposed to testify on behalf of the defense but Hardwicke's lawyers stood me down just a couple of hours before I was due to appear because they thought it unnecessary to pursue him further.

  I would have stated that Mahmood was dismissed 10 years ago from his job as a reporter at the Sunday Times after trying to cover up for a mistake he had made when writing a story. I was the paper's managing editor at the time and conducted the investigation which uncovered his dishonest and inappropriate behavior.

  That does not mean that Mahmood was not a good reporter. He often performed very well indeed and his sacking did not inhibit the Sunday Times's Wapping stablemate, the News of the World, from hiring him.

  Identity concealed

  He has since built a reputation as the paper's leading investigator, responsible for almost 100 people going to jail for a variety of offenses. But Mahmood, whose identity is deliberately concealed from readers, has developed the art of subterfuge to the point at which it has become highly questionable. Sometimes, his targets don't appear to deserve being entrapped, as in the case of the Newcastle United directors Douglas Hall and Freddie Shepherd, "exposed" for drinking too much and shooting their mouths off.

  Too often, the sophisticated nature of his sting operations carry Mahmood dangerously close to unfair entrapment. Yet he is perceived within the News of the World as a success and his methods are regularly used by other staff reporters.

  A string of high-profile News of the World stings have recently raised eyebrows, including those of London's Burning star John Alford, DJ Johnnie Walker, former Blue Peter presenter Richard Bacon, Tom Parker Bowles and England rugby captain Lawrence Dallaglio.

  News of the World editor Phil Hall and his executive team passionately defend the paper's use of subterfuge. They view it as an essential part of proving the truth of their stories.

  "We don't go in for this kind of thing unless we have prior knowledge of a person's behavior," says Hall. "But it's no good just wandering up to a celebrity who you know is dealing in coke and asking if they wouldn't mind selling you a gram or two. We have to get hard evidence and that's why we use subterfuge."

  He agrees that every case has to be taken on its merits and that the key is determining whether or not there is a legitimate public interest. According to the editors' code of practice "subterfuge can be justified only in the public interest and only when material cannot be obtained by any other means."

  Since the code's prime definition of public interest is "detecting or exposing crime or a serious misdemeanor" then the News of the World's predilection for drug stories is amply covered.

  But it isn't quite as straightforward as that. First, note the paper's targets: usually celebrities who, almost always, deal in relatively small quantities. Second, take account of how they are trapped: on virtually every occasion they are induced to deal by the paper's undercover reporters.

  Incitement to commit a crime is a crime in itself. It is hard to imagine any other kind of offense, except drugs, in which a journalist would be able to plead innocence to encouraging a person to take part in an illegal act to its conclusion. Why, I wonder, is this so?

  As Hardwicke's counsel, Alun Jones, pointed out after the case, the misuse of drugs act makes "no allowance for a private person to encourage another to supply drugs." In other words, Mahmood himself broke the law.

  Hall always stresses that he does not view himself or his paper as society's moral guardian. He is only interested in "good stories" which will maintain and win readers. By experience, and by tracking sales, he knows which stories his readers most appreciate.

  Specifically, these are salacious tales involving celebrities. But sex alone is much harder to justify under the code. Kiss-and-tell stories are still part of the package, but Hall is aware that by linking sex to drugs he can be certain of attracting no formal complaint. He is protected by a public interest defense.

  Next comes the difficulty with drugs. Britain is at a point not dissimilar to the 1920s prohibition of alcohol in the US.

  There is widespread use of drugs in all sectors of society. Whatever journalists may say in public, many of them have indulged or still do. In the wealthy world of the entertainment industry, drug-taking is so commonplace that entrapping almost anyone is relatively easy, though I accept it is more difficult to carry out the sting on video.

  That takes the kind of rat-like cunning which has long been part of a journalist's armory and has a particularly long history at the News of the World.

  Generally, rival red-top tabloid editors are sympathetic to Hall, as are their lawyers. One told me, predictably, that the messenger was suffering for the message. But he also admitted that the public now held journalists in such contempt that juries were bound to be prejudiced against evidence given or obtained by reporters.

  Judicial hostility

  Running parallel with public revulsion at the press is both judicial hostility and a growing police antipathy. In February last year, Appeal Court judges halved the jail sentence on a woman who had admitted supplying heroin to a journalist from the News of the World.

  Lord Justice Otton pointed out that sentences could be mitigated when entrapment was used by police and "even more consideration" should be given when it was used by journalists.

  Hardwicke's solicitor, Nicola Finnerty, had this in mind when she said after the trial last week: "Entrapment raises fundamental issues of fairness in criminal trials. By its rider to the verdict, the jury clearly felt that justice had not been done. I hope this will prompt the appellant courts to reconsider the law that entrapment is irrelevant to a defendant's innocence and applies only to mitigation."

  But the News of the World has suffered from some unfair judgments too. In July 1997, the paper was fined ?50,000 for contempt of court after the paper's reporters, led by Mahmood, had exposed a gang which planned to flood the market with fake currency.

  As was customary in such cases, the paper had informed the police in advance of publishing the story so that the men could be arrested.

  But when the case against them came to court 10 months later, the judge said the trial had been prejudiced and freed them.

  That fractured an informal agreement between the paper and police about tip-offs. Now there are signs of an increasingly tense relationship between tabloid journalists and the police. News of the World reporter Neville Thurlbeck is facing a trial on a charge of offering a police officer a "gift" for obtaining information.

  On Sept. 24, the Sunday Mirror's Douglas Kempster was also arrested for allegedly procuring police documents.

  None of this should hide the fact that the News of the World must reevaluate the ethics of obtaining stories by using an agent provocateur. It is surely time for Mahmood to hang up his jellaba.
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