Mazher Mahmood’s failed bid to stop the broadcast of a Panorama show revealing his current appearance brings into focus competing articles of the European Convention on Human Rights.
Mazher Mahmood (the ‘fake sheikh’) is well used to court proceedings. In addition to his recent unsuccessful attempt to prevent the BBC broadcasting parts of its Panorama programme exposing his identity, which was finally aired last night, he has been a witness in a number of criminal trials, civil proceedings and, of course, the Leveson inquiry.
It was at Leveson that I was one of the few to see him give evidence. Extensive preparations were put in place to allow Mahmood to attend court to give evidence without revealing his identity. A gigantic bodyguard emerged from the judge’s door in advance of Mahmood, and while Mahmood made his familiar way to the witness box the bodyguard plonked himself uncomfortably close to where I was sitting to hear the evidence.
When giving his evidence before Leveson, on the first of two occasions, Mahmood remained a feted investigative journalist. He was then with The Sunday Times having been rescued following the closure of the News of the World. His skewering of corrupt Pakistani cricketers was the NotW’s last great scoop and his stock was high. His evidence told of the 253 criminal convictions he had secured by way of his famous disguises and, given those numbers, it was hardly surprising that Leveson was happy to accede to his request for evidence to be heard in private.
BBC’s Panorama intends no such deference. The programme-makers successfully resisted Mahmood’s injunction and expedited permission to an appeal hearing in the Court of Appeal against last friday’s ruling in the High Court that the expose could be shown. Mahmoud’s application was described by his own silk as a ‘supercharged’ privacy application to protect his current image from being broadcast.
He relied on articles 2 (the right to life), 3 (the right to be protected from torture/violence) and 8 (the right to privacy) of the European Convention on Human Rights and cases including Venables v News Group Newspapers  Fam 430. The court was told that his identity should not be exposed, unlike those he exposed during the course of his long career, because it posed a threat to the safety of him and his family.
It is not an unreasonable argument on its face. Investigative journalists, like undercover policemen and spies, use subterfuge to immerse themselves in the lives and activities of individuals who, if the truth was known, may well turn to violence. In Mahmoud’s case the court had to weigh up the risk to safety with the BBC’s right to freedom of expression (article 10) in broadcasting Mahmood’s true identity.
The circumstances of Mahmood’s application were very different from when he made his arrangements to appear in private before Leveson LJ. Mahmood’s stock has taken a dramatic tumble. After his Leveson evidence Mahmood’s carefully constructed façade began to crumble: his evidence of securing 253 convictions was challenged and News International was forced to concede that it could only find 94. Furthermore he had to admit leaving his first job at The Times under a cloud.
Mahmood apologised to the inquiry for his untruths. Soon afterwards he joined the Sun on Sunday.
At the Sun on Sunday Mahmood turned his sights to singer and TV star Tulisa Contostavlos and his story of her alleged involvement in a drugs deal - which she has always denied - was a significant splash. The case reached trial but the trial judge dramatically ended the proceedings deeming Mahood’s critical evidence unreliable. The Crown Prosecution Service, red-faced, had to abandon not only this case, but also reconsider the many cases it had co-operated in with Mahmood, and he is currently suspended from the Sun on Sunday. Last night, Panorama exerted similar scrutiny.
At the time of writing there is no benefit of a written judgment from the High Court’s ruling. Reports suggest that the hearings may have turned on practicalities as much as legal argument. Mahmood’s identity is already reasonably well known not least by virtue of his own publicity, and, politician George Galloway also famously turned the tables on Mahmood when he was in the journalist’s sights. Was Mahmood’s privacy concern more likely to have been driven by a wish to prolong his career than his safety?
The Panorama broadcast alleged Mahmood tricked celebrities into criminal acts, luring his unwitting victims into his elaborate stings, and thereby public disgrace on a Sunday front-page. The BBC had argued in court that the public have a legitimate interest in knowing who he really is.
Mahmood maintains that he never acted wrongly and that Panorama is misleading.
Eady J’s decision in the High Court last week had to be an evaluative one within the range open to him on the evidence he had heard. He was entitled to conclude that there was not ‘clear evidence’ that showing Mahmood’s appearance would ‘materially increase’ the risk to his safety having regard to the information about his identity and appearance already available in the public domain.
Dominic Crossley is a partner at Payne Hicks Beach