The case against Sun reporter Mazher Mahmood for allegedly tampering with evidence in the collapsed drugs trial of Tulisa Contostavlos is “fundamentally flawed”, a court has heard.
Mahmood, 53, and his driver, Alan Smith, 67, are on trial at the Old Bailey accused of plotting to pervert the course of justice.
The pair allegedly suppressed anti-drugs comments the former X Factor judge made while en route home from meeting the Sun undercover journalist at the Metropolitan Hotel in London in May 2013.
Smith’s recollection of her conversation about having a family member with a drug problem would have been useful to the defence but was deleted from the final version of his police statement of June 2014, the court has heard.
The N-Dubz star’s trial for allegedly arranging for Mahmood to be sold £800 of cocaine by one of her contacts was thrown out of court the following month.
In his closing speech, Mahmood’s lawyer, John Kelsey-Fry QC, told jurors that, far from providing a “compelling” argument for his guilt, the prosecution “defies common sense”.
“The prosecution approach is fundamentally flawed and illogical and defies common sense,” he said.
“These are clearly bold words and I’m going to have to make them stick.”
Mahmood is accused of conspiring to change Smith’s statement to police in order to pervert the course of justice and protect his reputation as the “king of the sting”.
Smith had told police Contostavlos had appeared “anti drugs” during a conversation in his car but the prosecution claims this was later removed from the statement by Smith after a conversation with Mahmood, his employer.
The prosecution alleges Smith sent Mahmood a copy of his draft statement to police and that the two men exchanged a “flurry” of calls and texts about the matter shortly before Smith called police to alter it, removing Contostavlos’s “anti-drugs” comment.
Kelsey-Fry said Smith’s statement was made a full year after the car journey in question.
“It’s obvious that there would be every reason for Mr Smith to have an insecure recollection about what was said by who and it would be quite wrong of him not to say so,” he said.
“When Mr Smith got to see the draft witness statement he was concerned about whether it was right and whether he could be sure of who said what.”
He said Mahmood had previously said in a statement: “I will have had absolutely no reason to ask Mr Smith to add or subtract anything from his evidence because I had gathered irrefutable evidence that Mrs Contastavlos had supplied cocaine and that was all that mattered.”
The barrister pointed out that Miss Contostavlos was not being tape-recorded while she was being driven home to Hertfordshire by Smith following the sting.
Afterwards, Smith made no mention of her negative comments about drugs to Mahmood, only that there was rowing in the car, he said.
He said: “If Mr Smith did not tell Mr Mahmood about the drugs conversation at the time, it cannot have seemed significant – not something he was making a mental note of at the time.”
When he was giving his statement to police more than a year later, Smith had spoken about it “openly and candidly”.
Mr Kelsey-Fry said: “That speaks volumes about Mr Mahmood and Mr Smith and speaks volumes about the logic of the case.”
He went on to say that Mahmood had done “absolutely the right thing” when he advised his long-time associate what to do about his concerns over the accuracy of his initial statement.
He told the jury: “You will note that Mr Mahmood repeatedly insists he did not discuss Smith’s evidence with him and he repeatedly insists he could not discuss Smith’s evidence.
“While Mr Smith discussed his area of concern, Mr Mahmood made clear he could not discuss the evidence of the case.
“You know now that if that is what Mr Mahmood told Mr Smith he would be absolutely right, as the prosecution made clear. Witnesses should not discuss their evidence amongst themselves.
“Likewise, if Mr Smith is concerned about the accuracy of the statement, advising Mr Smith to contact the police would be absolutely the right thing to do.
“What Mr Mahmood has said both on oath in court and in his prepared statement as to what he said to Mr Smith would be absolutely the right thing to do.”
Mr Kelsey-Fry told jurors the fact that they now know that Miss Contostavlos did have a family member with a drugs problem had “no bearing whatsoever” on what Smith could accurately recall in June 2014.
Mahmood, of Purley, south London, and Smith, from Dereham, Norfolk, deny wrongdoing.
Mr Kelsey-Fry told jurors: “Mr Mahmood is not a policeman. He is a journalist.
“Whilst the prosecution may say he boasts of the number of convictions resulting from his work, securing convictions is not actually his job.”
Kelsey-Fry rejected the prosecution’s case that the singer’s anti-drugs stance in the car would have stopped her trial “in its tracks”.
He told jurors it “cannot begin to undermine the clear and incontrovertible evidence – and Mr Mahmood would know it”.
He said: “If there is a criminal trial and the jury find they couldn’t rely on Mr Mahmood’s evidence that too you may think might be a knock to Mr Mahmood.
“But if the criminal case was stopped on the basis of a successful argument founded on entrapment, in other words that she did what the newspaper said she had done – she did supply drugs but was persuaded to do so when she wouldn’t do normally – would that be the end of the world to Mr Mahmood?
“Even if she had done what the newspaper said she had done?
“Yesterday the prosecution relied on Mr Mahmood’s ego and that his success rate is important to him and that a year and a half earlier he went to the Sun on Sunday having been a member of the same group for 20 years that made him sound like he was starting a new job like an intern.
“Even if that was right, any damage that he might receive for a story in any event being true, failing to result in a trial is as nothing compared to the consequences of appearing before a judge himself.
“This whole Tulisa investigation was about her public face. On the one hand Tulisa’s private face when she felt she was among friends and was safe.
“The theme was the exposure of her carefully crafted public image. So privately: ‘I smoke weed and I arrange cocaine fir my mates’. Publicly: ‘I’m a role model and anti drugs”.
“When she was with Mr Mahmood, she thought she was in private. She was successfully duped by the subterfuge.
“When she was in the car, she was no longer with Mr Mahmood in private. She was in a car with a driver, Alan Smith. It’s common sense which face would she have to wear. Even if Mr Mahmood had read that witness statement suggesting Tulisa is generally anti-drugs. Even if it were right, so what? She’s in public.”