Monthly Archives: July 2011

Sheridan, Coulson and James Murdoch – Lessons from Barry Bonds and Roger Clemens?

What, allegedly, connects the former Director of Communications at 10 Downing Street, the former leader of the Scottish Socialist Party, the all time home run leader in Major League Baseball, the man hailed as possibly the best pitcher ever to play baseball and one of the leaders of probably the world’s biggest media conglomerates? I hope to answer this conundrum below.

 

Problems with Perjury Cases

It is probably the case that perjury is the important crime most committed, but least prosecuted.

Perjury, to be clear, is, in the law of Scotland, the making of false statements under oath, the statements having to be competent evidence in the case in which they were made, and material to the subject of the case or investigation. There requires to be proof beyond reasonable doubt that the statement or statements are false and that they are made wilfully and there requires to be evidence from at least two sources.

As Alistair Bonnington, former solicitor for BBC Scotland put it in an article  after Tommy Sheridan succeeded in his damages claim against News International in 2006, “Traditionally, we have very few perjury persecutions in Scotland – despite the fact that an application of elementary logic tells you that perjury must be committed every day in almost every court in Scotland in criminal trials.”

Despite this, prosecutions for perjury are remarkably rare, not because it is an unimportant matter, indeed quite the reverse, but because (a) proof beyond reasonable doubt of the charge might be difficult and (b) if an accused person has already been convicted and sentenced, then there might be little or no “public interest” in a further prosecution for perjury. In Scotland the Lord Advocate and Procurator Fiscal prosecute “for the public interest”.

It is far more common to see witnesses, especially in the High Court, punished for contempt for prevarication when, miraculously, all memory of an incident disappears from their mind just as they take the oath in the witness box. Unfortunately, for them, they will often have given a signed statement to the police in the aftermath of the incident, thus rendering their loss of memory less “useful” than it might otherwise have been.

The courts make it clear to witnesses that a wilful failure to answer properly will be met with a couple of hours in the cells “to consider one’s position” and if the witness fails to “purge their contempt” then an appearance before the judge at the case’s conclusion for punishment awaits.

Perjury cases are far rarer, in part because they cannot be dealt with in the same summary way as prevarication.

If suspected perjured evidence results in an acquittal, then a prosecution might be brought, although this would need to be more than an attempt to re-try the original case by other means.

In a civil case, if perjured evidence is advanced to advance a claim, then, depending on the result, the course of justice requires that steps are taken to maintain the dignity of the courts.

It is clearly more serious to invent evidence than simply to answer “yes”, when the true reply is “no”.

 

HMA V Sheridan

 

Perjury is a hot topic in Scotland just now. Tommy Sheridan, the charismatic former Scottish Socialist Party leader and former Member of the Scottish Parliament, was successful in 2006 at the Court of Session in Edinburgh in suing News International, publishers of the News of the World (NotW) for defamation in connection with allegations about his private life. News International is part of the Rupert and James Murdoch empire. Sheridan was awarded £200,000 damages by the jury. This was hailed as a triumph for the working man over the evil press barons.

Four years later Mr Sheridan found himself in the dock at the High Court in Glasgow, charged along with his wife with committing perjury in the original trial. After a lengthy hearing, he was found guilty on certain of the charges and sentenced to three years in prison.

Recent publicity suggest that he has been refused leave to appeal against his conviction, but that he is seeking leave from a second panel of judges, as is normal procedure in the “sifting” process.

In July 2011, following upon the tide of allegations about Andy Coulson (Prime Minister Cameron’s former Director of Communications and former NotW editor) and the NotW “hacking” phones, the Crown Office announced that they had asked Strathclyde Police to look into various matters, including the evidence of certain of the witnesses at Tommy Sheridan’s criminal trial.

It is understood that these witnesses are Mr Coulson, Bob Bird, former Scottish Editor of the NotW and Douglas Wight, one of the NotW reporters involved in the reporting of the story. I have commented at length as linked above re each witness’ evidence. My source material is the excellent Sheridan Trial Blog prepared by the indefatigable James Doleman.

As matters stand, no-one has been charged in connection with this matter and all parties mentioned above maintain their innocence.

Mr Sheridan’s cases are exactly the rare proceedings where perjury proceedings are likely.

The jury at the High Court found that Mr Sheridan had lied about certain specific matters in his earlier evidence. It was not simply that he answered “no” when he should have said “yes” but instead that an alternate reality was created by him and put before the court, successfully as it turned out. I suspect that if he had lost his original claim for damages, no prosecution for perjury would have taken place.

As a comparison, Jeffrey Archer, former Deputy Chairman of the Conservative Party, and best-selling writer, succeeded in his libel claim against the Daily Star in 1987, but when it was suggested that he had asked one of his friends to go along with an “alibi” Archer was creating, he found himself in the dock at the Old Bailey in 2001, and after being convicted of perjury and attempting to pervert the course of justice, he was gaoled for four years.

It is now being suggested that, in light of the scandals surrounding the NotW, phone hacking, payments to police officers and “missing” emails, there might be further perjury charges in connection with the criminal trial of Tommy Sheridan.

 

Before looking at the issues such a case might raise, I think it is helpful to look across the Atlantic, to the recent perjury trials of two of the most famous baseball players of all time, Barry Bonds and Roger Clemens. Both of them have been tried on charges of perjury and associated offences with differing results.

I make no claim to knowledge of the US system of justice, so have based what I say upon the sterling work of Craig Calcaterra, a former practising attorney, who has escaped from the law courts to be a writer for NBC about baseball (yes, that is jealousy you can hear as you read that). He has written extensively about these cases, most recently at “Hardball Talk” but he wrote at length about them before. Following Bonds’ indictment he analysed the case here.

 

USA v Barry Bonds

 

 

Barry Bonds is the all time leader in home runs in baseball. He passed Babe Ruth and then Hank Aaron. The home run king is a long lauded role in the USA. However, outside San Francisco, where he played for many years, few hold Bonds in affection. He was always a great player but after the excitement of 1998 when Mark McGwire and Sammy Sosa “saved baseball” by racing all summer to break the single season home run record, and thus achieving nationwide fame, respect and fortune, Bonds decided that being one of the best was not good enough. He needed to be the best.

Various books, including “Game of Shadows” by Jeff Pearlman, allege that Bonds took advantage of the absence of a drug testing programme in baseball to use steroids from the BALCO laboratory to give him even more strength and stamina. Bonds went on hitting home runs at a rate for his age never seen before, till finally he overtook Hank Aaron. In doing so however, he came across as charmless and egotistical, and was disliked, if not hated, by fans all round the US.

But the seeds of Bonds’ downfall had already been sown.

The US government, in attempting to stamp out illegal drug use in sports, had taken great interest in BALCO. The owner, Victor Conte, ended up in gaol, and several of his clients, including former Olympic gold medal athletes, ended up there too, whether for fraud or impeding the investigation. Bonds, as a suspected BALCO client, was called to testify before a grand jury investigating BALCO. His answers were felt to be misleading, vague, obstructive and prevaricating, and he was in due course charged with perjury.

The legal process ground on and on before finally Bonds went to trial this year. He was acquitted of all perjury charges but found guilty of obstruction of justice in connection with the answers he gave to one set of questions.

As Craig Calcaterra identifies, and this has a bearing, I think, in connection with any case against the NotW personnel here, the problem the prosecutors had was that the answers Bonds gave to the Grand Jury were often vague, off the point and rambling. The questioner failed, generally, to pin the witness down with specific questions. Open ended and rhetorical questions seemed to be the order of the day. Some of the questions did not really look like questions at all.

For example, part of the indictment refers to the following Grand Jury exchange.

Q And you weren’t getting this flax seed oil stuff during that period of time [January 2002]?

A: Not that I can recall. Like I say. I could be wrong. But I’m – – I’m – – going from my recollection it was. like. in the 2002 time and 2003 season.

As mentioned above, it is necessary to show that someone is wilfully telling lies to achieve a conviction for perjury. If the questioning is not specific and offers the witness the chance, for example, to ramble down memory lane, or to offer his opinion rather than facts, then pinning a perjury case can be very hard. The logic behind the jury’s verdict in Bonds’ case whereby he was acquitted of perjury but convicted of obstruction of justice seems hard to understand, and indeed his attorneys will try to persuade the judge that the verdict is perverse and to substitute an acquittal on all charges.

It appears, from reading the transcripts of Bonds’ Grand Jury testimony, that the lawyer for the government was perhaps overawed by the fame of the man he was questioning, or expected that he would confess his use of illegal drugs to order. Instead, Bonds told the Grand Jury he did not know what he had taken, and the only person who could do so, his trainer Greg Anderson, pointedly refused to testify despite repeatedly being sent to prison for contempt. Thus, due to the absence of a forensically focused questioning of Bonds, the chances of a perjury conviction were greatly reduced.

The vast majority of baseball fans in the US believe that Bonds used steroids, despite the absence of proof of failed drugs teats etc.

USA V Roger Clemens

Roger Clemens is the pitcher I mentioned above. For over 20 years he was at the top of his game, at an age by the end where very few pitchers remain effective. Throughout his career in Boston, Toronto, Houston and New York Clemens was successful, earning the affection of his team’s fans, and the almost universal dislike of everyone else. Indeed his manner of leaving Boston and Toronto caused him to be alienated from much of his former fan base. However Clemens was hugely successful, driven by a desire to be the best. He won many honours and awards, and was paid a great deal of money.

The US legislature has taken an active interest in the use of performance enhancing drugs (PED’s) in sport, especially baseball. At a previous Congressional hearing, Mark McGwire, who had, as we have seen, broken the single season home run record n 1998, destroyed his reputation by repeatedly stating he was not there to “talk about the past”. The fact that he was there for that purpose led most to believe that he had been a user of PED’s. Rafael Palmeiro, a very successful layer for Baltimore over many years, looked Congress straight in the eyes and stated, complete with pointing finger “Let me start by telling you this: I have never used steroids, period. I don’t know how to say it any more clearly than that. Never.” Within five months he had been suspended for a failed drugs test. His reputation, like that of McGwire was in tatters. Sammy Sosa, the other participant in the home ruin race of 1998 also appeared. He had been born in the Dominican Republic but he had played in the major leagues in the US since 1989, but now, in 2005, he answered questions through his attorney, claiming his English was not good enough. Clearly he wished to make sure he fell in to no traps by answering questions in his second language. However, again, the court of public opinion found strongly against him.

So, having gained a lot of coverage in 2005, the Congressional Committee kept digging.

In 2008 Roger Clemens appeared at Congress on oath, along with his former personal trainer, Brian McNamee.  By this stage Clemens had been named by Senator George Mitchell in the report  he had compiled into PED use in baseball.  McNamee had accused him of steroid use. Clemens had sued McNamee and McNamee counter-sued Clemens.

Clemens, it appeared, insisted on attending Congress to get his message across. He sat before the Committee and denied any illegal use of drugs. McNamee was castigated as a liar and a cheat. Clemens appeared at first to have made his point.

However matters began to unravel soon after. The Committee realised that either Clemens, or McNamee, or indeed both, were lying to them. The committee insisted on an investigation and now, just over three years later, Clemens has appeared in a Washington court room for trial.

As in the Bonds case, the issue is not whether he used PED’s but whether he wilfully lied in saying he did not.

Whilst in Bonds’ case he did not get himself bogged down in detail or specifics, here Clemens was the opposite. He had some things he wanted to say, and therefore he said them. The problem was that lying to Congress is a serious offence. Further investigations took place and Clemens was indicted.

The case started a few weeks ago with jury selection. There appeared to be a greater chance of a conviction, as a result of Clemens having put forward his hypothesis of himself as a non user, than in the Bonds case where he was answering vague or open-ended questions with vague and open-ended answers.

However, on the second day of the trial, which was expected to last for a month, the case collapsed into a mistrial.

The prosecution were bringing in to evidence a video recording of one of the Congressmen at the hearing by playing the tape to the jury. However, he was talking about the evidence of the wife of one of Clemens’ former team-mates, evidence which the judge had already ruled as inadmissible. The tape should have been edited to remove this, and it had not been. The judge had no hesitation in declaring a mistrial and a hearing is due soon to determine if Clemens will again face trial on these charges.

As with Barry Bonds however, prevailing public opinion is that Clemens was a user, whether or not that is actually proved in court.

James Murdoch at the Select Committee

Next we had the pleasure of seeing Rupert Murdoch and his son James appear last week before the Department of Culture, Media and Sport Select Committee of the House of Commons to answer questions about the phone hacking scandal. Here again the weakness of the questioning system may have allowed wilful errors, if there were any, by the Murdochs to go unpunished. I should say, as a preliminary point, that they were not placed on oath, but “Erkine May” the bible of Parliamentary procedure makes it clear that lying to or misleading Parliament can amount to a contempt of Parliament, which is punishable by Parliament.

The procedure before the Committee is very much in the hands of the Chairman. In this Case Mr Whittingdale, MP, decided that the way to operate was for each member of the Committee to have an allotted period to ask the questions they wanted to ask. Effectively therefore the Murdochs faced 9 or 10 separate prosecuting counsel, all asking questions about different areas. There was however no cohesion in the process, and points were returned to, and gone over more than once, even where it appeared to an outside observer, that the matter had been dealt with already. Each MP on the Committee however wanted to have their chance to question the Murdochs, as was their right, even where that questioning did not really advance matters at all. Only Tom Watson MP, who has been pursuing the phone hacking matter for a number of years, really took the Murdochs through a detailed and logical questioning proves, and it might have been much better if he had been allowed to continue asking questions on behalf of the Committee, but the members were not willing to give up their own chance to interrogate. In fact, the most telling moment of the proceedings, excluding the pie attack on Rupert Murdoch, occurred at the very end, when the Chairman permitted Mr Watson to ask a supplementary question, as I will refer to below.

In contrast, the Home Affairs Select Committee, chaired by Mr Vaz, has taken a far more structured approach with witnesses. Mr Vaz’s practice is to deal with one area at a time, giving the members of the Committee turns to ask about the specific areas identified before moving on to another part of the investigation. This seems to be a more logical way of proceeding, allowing MPs to follow up on and return to issues raised in the answers.

As with the Sheridan case, many of the questions were potted speeches, perhaps designed to be a snappy sound bite for the news, rather than to get meaningful answers from the Murdochs.

There have been various areas in both gentlemen’s evidence which have been looked at, but I want to focus on one.

After the pie incident, and on the completion of all of the questioning, James Murdoch was asked at Q 413 by Mr Watson “When you signed off the Taylor payment, did you see or were you made aware of the full Neville email, the transcript of the hacked voicemail messages?” (The uncorrected transcript of proceedings is the source for these extracts  ) (The Taylor payment refers to the settlement of a claim of phone hacking against the NotW by Gordon Taylor, head of the Professional Footballers’ Association, where James Murdoch authorised a payment of £700,000 including costs to conclude the matter. The “Neville” referred to was a former chief reporter for the NotW who received an email containing transcripts of many of Taylor’s phone conversations.)

James Murdoch replied, “No, I was not aware of that at the time.”

Since that evidence was given, Mr Tom Crone, former legal manager for the NotW and Mr Colin Myler, former editor of the NotW, have issued a statement saying that James Murdoch had seen that email, in contradiction of his evidence to the Committee. Does James Murdoch’s answer cause him problems?

If it transpires that the answer was wrong, and Mr Watson has already asked the police to investigate the evidence given to the Committee, would James Murdoch be in difficulties? There is a difference here between what the legal consequences of any error would be and the public relations and corporate ones. If it is the case that James Murdoch did see the email at the time, then I imagine his explanation would be that he had simply forgotten this, on the basis that many things have happened over the years since the payment was authorised, and that he has seen many items regarding this whole affair. If Mr Watson had been afforded the chance of prolonged questioning on this point, then perhaps James Murdoch would have found himself in a position where it would be hared to explain this as a lapse of memory. Interestingly, the following exchange between Mr Whittingdale and Mr Watson took place just after the above question was asked.

Chair: I am getting galled. We have covered this at some considerable length.

Mr Watson: Actually, Chairman, we have not, but I respect you. Mr Murdoch, your wife has a very good left hook.

Mr Watson was denied to chance of pinning James Murdoch down, although by this stage the Murdochs had been giving evidence, including the interruption, for over three hours.

 

How do these cases bear upon the possible NotW perjury charges?

 

Tommy Sheridan dispensed with his counsel at an early stage of his trial, and proceeded to defend himself. By all accounts, for a lay person, he did a good job. After all, this was not far short of a matter of life and death for him, and he has always been known for his oratorical skills.

However, one disadvantage comes from his lack of court experience. As with the Bonds Grand Jury, Sheridan’s questions were often imprecise and vague. Frequently the questions, especially when asked of his political or media opponents, were barely disguised polemic, perhaps designed to appeal to the jury. In addition, I imagine that, in conjunction with his remaining legal advisers, Mr Sheridan had decided by this stage not to give evidence himself. Therefore some of his questions would, either deliberately or sub-consciously, been designed to get his “evidence” across to the jury, although he would have been aware that the judge would direct the jury that his questions did not amount to testimony.

In addition, there is the problem that the three NotW witnesses were not, by and large, prosecution witnesses. Bob Bird was called by the Crown to give evidence about payments to witnesses and about the video tape purporting to show Sheridan “confessing” to his former friend, George McNeilage.  Sheridan’s cross examination of Bird lasted much longer than his examination in chief. The questioning ranged through many areas. As I have written before, Mr Bird has some questions to answer in connection with his evidence regarding missing emails. He told the court that a large number of emails had been lost when transferred to Mumbai and thus could not be made available to the defence. However, after an investigation by the Information Commissioner, it transpired that the emails were still in existence and that there had been no transfer of them anywhere, especially not to Mumbai. Mr Bird will maintain, I am sure, that he made an innocent mistake. That is one of the issues I imagine Strathclyde Police will be investigating. Clearly also the recovery of evidence sought by the defence is relevant to the case, even if ultimately the emails contain nothing that would have assisted Mr Sheridan.

Mr Bird was asked about the “culture” of the NotW. That is a matter for debate, and not one where an answer can amount to perjury. Subjective questions of that nature have their role in the court process, but cannot, in my submission, found a perjury case.

Mr Wight was called as a Crown witness formally, but this as a courtesy to Mr Sheridan. After confirming his details to the prosecutor, Mr Sheridan began what was, in effect, cross examination of Mr Wight. However he too was not asked the detailed and precise questions a professional advocate would have done, and was not pinned down on areas where otherwise there might have been difficulties.

Finally Mr Coulson was called as a defence witness. His evidence was no part of the case against Mr Sheridan. Mr Sheridan’s case against the NotW at his trial was, effectively, that the paper was against him as he was an effective tribune of the people, holding big businesses like the NotW to account, and that they determined to destroy him by whatever means necessary. This included phone hacking, although it was never made crystal clear how this impinged on the specifics of the case against him. Mr Sheridan had tried to call as a witness an impersonator who could “do” Mr Sheridan’s voice, and who had done so on the radio, perhaps to show that the McNeilage Tape could have been prepared by an impressionist. Alternatively it was hinted that, if his phone had been tapped or hacked, then extracts could have been put together to create the incriminating tape. However Mr Sheridan, whilst suggesting these possibilities did not produce any expert testimony regarding the video, and effectively left it to the jury to determine that one or more of these factors might lead them to disregard it.

Mr Coulson denied that there was a “culture” of phone hacking at the NotW. If he had been asked if there had ever been such an activity, without going into the realms of “cultures” and if the questioning had precisely defined what phone hacking was, and that the questions were looking at whether this was done either by NotW staff or agents for them, this might have been more problematic for Mr Coulson, standing what is now publicly available. However, I don’t understand that the questioning went down such a detailed road.

Press interest has centred on Mr Coulson’s reply to the question asked of him about making payments to “corrupt” police officers. Mr Coulson replied that the NotW did not make payments to corrupt police officers.

Here again the addition of just one word “corrupt” to the question puts a different perspective on how any perjury charge regarding this might go. Let’s assume, for hypothetical purposes only, that the NotW did make payments to police officers (as indeed Rebekah Brooks, former editor of the NotW confirmed to Parliament in 2003). The NotW has over the years worked closely with the police, often providing them with details of their investigations exposing criminality in others. In return, for the purposes of this example, grateful police officers might have provided information to the NotW and been thanked by way of a financial gift. The NotW, in such hypothetical circumstances, might consider these officers to be fine and up-standing members of the force, assisting the NotW in bringing news of wrongdoing to the public’s attention, whilst not compromising criminal processes. These officers, in this example, would not be seen by the NotW as corrupt. This is despite the fact that it is illegal for an officer to receive payments in such circumstances, and, on one view, receipt of such a payment would render them, in law “corrupt”. But if Mr Coulson was aware of payments to officers, his belief, whilst legally wrong, that they were not corrupt, would mean that his answer would not be a wilful evasion.

As with the other witnesses, a more detailed examination of maters might have pinned the witness down clearly and unequivocally. However, as with Mr Bonds, the “killer questions” were not asked, giving the person responding legitimate room for manoeuvre in their response.

 

 

Conclusions

 

 

So where does this take us? The Bonds case shows how important the questions asked are before a person can face charges for perjury or similar matters.

Looking at the possible matters for consideration just now, the normal position applies – namely that it is very difficult to establish perjury to obtain a conviction.

But there is more than the justice system to consider.

Barry Bonds and Roger Clemens have been convicted in the court of public opinion. They might never achieve the goal of being enshrined in the Baseball Hall of Fame, although their performances deserve it.

Tommy Sheridan’s position is polarised. His supporters never doubted him, despite his conviction. His enemies simply took the conviction as validation of their opposition to him. In general perhaps the conviction reinforced the image of Sheridan as a rogue, but a likeable one, complete with his sun tan. Few “neutrals” would have had sympathy for the NotW even after the conviction.

In light of recent events, there will be even less feeling for the NotW.

The Murdochs have been seen on the world stage, and, even if nothing further happens as regards James, there will not be, for a long time, a positive opinion of News International here.

The final question is what criminal proceedings against Mr Coulson, in particular, would mean for the Prime Minister, Mr Cameron? But that is a question to be answered another day.

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Filed under Baseball, Criminal Law, News Of The World, Press

Confessions of a Floating Voter – Part 1 – From the Curse of Peladon to New Labour

Introductory Note – this has nothing to do with legal stuff, and is a personal ramble – think of it as a very extended “About Me” page, and pass over it if that has no appeal (and indeed why should it?)

 

I was brought up in Coatbridge. You might not have heard of it, a dwindling town, formerly dependent on heavy industries, which are now long gone. Staunch Labour territory – one of the places where it was rumoured that a traffic cone with a red rosette stuck to it could be elected.

That characterisation is rather unfair to the two members of Parliament who have represented Coatbridge for my lifetime. First of all there was James Dempsey, a former Provost of Coatbridge, who was the local MP from 1959 till his death in 1982.

Then, in the by-election that followed his passing, Tom Clarke, another former Provost, was elected to replace him. Both of them have had long and distinguished Parliamentary careers.

Indeed, as I will mention again below, I had the chance, when on a university trip to Parliament, to meet Mr Clarke in one of the tea rooms. He was remarkably personable, giving up some of his time to meet a starry eyed law student, whilst representing a constituency where the Labour vote traditionally was weighed, rather than counted.

So one would have expected me to be solidly and staunchly Labour.

However I’d shown an early interest in politics, and I vividly recall watching the news, between power cuts, in the winter of 1973-1974 (and particularly remembering the power going off one dark and stormy Saturday evening whilst watching the Doctor Who story “The Curse of Peladon” – I have never been as terrified in my life as I was by the sudden loss of power).

The Trades Union leaders were regular fixtures on the news (Moss Evans, Jack Jones, Len Murray, Arthur Scargill and the rest were as familiar as Barbapapa, Pinky and Perky and Mr Benn (not the former Viscount Stansgate, but the cartoon character)) – seemingly more than the politicians, and to my recollection they split time not so much with Messrs Heath and Wilson, but with Sheikh Yamani of OPEC and Yasser Arafat, as the 4th Arab Israeli war slogged on. The West Bank, the Golan Heights and the Sinai Peninsula seemed as familiar from the news as George Square in Glasgow. Regular reports from Saigon plotted the end of the Vietnam War, and Richard Nixon was removed after a titanic struggle to make way for Gerald Ford, who promptly pardoned him, whilst making it clear he had not done anything wrong needing a pardon anyway.

I suspect I was a bit more politically aware therefore as I approached my teenage years than some of my contemporaries.

In the early 1980’s the spectre of the Cold War loomed over us. I remember going to sleep at night worried that by morning I would have been vaporised. I knew that the Soviets were not going to attack Coatbridge just for the sake of it, but we were close enough to the Faslane base and the Holy Loch, where British and US submarines were based to find ourselves, literally, caught in the fall-out if missiles had been launched.

Politics in the early 1980’s seemed remarkably polarised. The “Butskellite coalition” whereby Labour and Conservative took turns to be in charge in Downing Street without significantly, it seemed, changing matters had ended on the accession to No 10 of Mrs Thatcher, or the “Milk Snatcher” as she would forever be known.

Mind you, bearing in mind that the school milk was generally served lukewarm, and that on the coldest of days, there were not actually many children who missed it, from a taste point of view anyway.

Mrs Thatcher immediately succeeded in polarising matters, and Labour moved left under Michael Foot. The Labour and TUC conferences were given lots of screen time, and were the stages for massive in-fighting in the Labour movement. The Labour party seemed, to my young eyes, to spend much more time and energy fighting itself than it did fighting Mrs Thatcher.

Then, in 1981, came the political event which sparked my interest most. Up till then the choice was either Conservative or Labour, the SNP and Liberals being irrelevant, and coming from Lanarkshire, the vote would always have gone to Labour.

But the “Gang of Four” of Roy Jenkins, Shirley Williams, Bill Rogers and David Owen split from the Labour Party and formed the SDP. Suddenly poll ratings went through the roof. The political mould seemed to be broken. Many people who had not been active in politics joined the SDP. There were projections that the SDP would have a crushing majority should there be a general Election.

However, the initial excitement faded. General Galtieri decided to invade the Falkland Islands, allowing Mrs Thatcher to dispatch the Task Force and, through the skill and expertise of the British Army, Navy and Air Force, recover them.

A triumphant war leader now, Mrs Thatcher ordered us to “rejoice” and she suddenly was set fair to retaining her position in the 1983 election.

As the election approached, the SDP led by Roy Jenkins formed an Alliance with the Liberals under David Steel. Already the seeds of the SDP’s destruction were being sown. However there still remained anticipation that something remarkable could happen on election day.

I was too young to vote then, and watched the night time coverage with Dimbleby and Day unfold. The Conservatives were left with a thumping majority, and the SDP Liberal Alliance only garnered 23 seats, despite 25% of the vote.

That alone convinced me that a fairer electoral system was needed, and was a topic I studied in depth in the coming years at university.

I was first able to vote in the 1984 European elections, casting my vote for the Alliance. In Council elections (and we had both District and Regional Councillors to choose) there was generally not an Alliance candidate put up, so my “X” went against the Labour candidate.

The next General Election was in 1987. By that stage I was well on my way to finishing my studies. I was reading as much about politics as I could. As the 1987 election came into view, I recall devouring the Alliance manifesto and the joint publication by the Davids, Steel and Owen, setting out their philosophy. Behind the scenes however the two parts of the Alliance were tearing each other apart, and the SDP, under David Owen, with the shallower roots, was the one to lose out.

At the election the Alliance share of the vote fell, although it was still at 23% nationally. However the electoral system meant that the Conservatives again had a sizeable majority, and the Alliance had far fewer MP’s than its votes justified.

In a party political sense, I should have voted for the Alliance that year, having given serious consideration to voting Conservative (this all because of my new political hero, Michael Heseltine.)

However, I had had the good fortune to meet Tom Clarke, as I mentioned, in 1986 and when I reached the polling booth the next year, felt I should vote for the man, not the rosette. My vote went to Labour. That experience helped me see that a strict proportional electoral system by way of party list for example, would be bad in that the personal link between an MP and his constituents would be lost. Politicians should be able to enhance their chances of election by their positive manner and behaviour, and to detract from their chances if negative.

To return to Michael Heseltine however. He had knocked the Roy Jenkins’ posters figuratively off my wall. I had seen him as Environment Secretary on the news tramping round derelict sites in Liverpool, following riots there, and grabbing the Council by the scruff of the neck to get things done. Regeneration was the watchword and he vigorously pursued his goal in a manner that seemed almost semi-detached from the rest of Mrs Thatcher’s Cabinet.

He then became Defence Secretary, a vital role at the height of the old War, but his crowning moment came when he walked out of Cabinet, and through the door of No 10 into Downing Street to tell the press that he had resigned from the Cabinet as a result of the Westland Affair. He then turned to his right and marched down Downing Street, apparently away from power for ever.

The “principled resignation” was not quite as unusual then as it is now, but this was one of the most principled for many a long year. Heseltine quit because it was the right thing to do, not because it was all part of some grand plan of action. The fact that he was a millionaire many times over from his outside business interests made the sting of leaving a bit easier to bear, but I am sure it was not a decision motivated by ambition in any way. It was, as I have said, what he saw as the right thing to do.

He followed that up the next year with a book “Where There’s a Will”. This spelt out his manifesto, effectively a return to “One Nation” Conservatism, with a rejection of Thatcherite dogma.

Public spending was not seen as anathema – to my eyes at least at that time there seemed little difference between the views of Heseltine and of Owen.

I suspect that if the 1987 election had been fought with Heseltine as Prime Minister, I might well have voted for him, but despite the fact that Mrs Thatcher wobbled badly, she survived, and led her party to a third consecutive election win.

By this time the Alliance was effectively no more. The manoeuvrings which led to a merger of the parties was well under way. David Owen, not prepared to accept a merger, led his SDP rump into the wilderness and all but ended his UK political career. From being the youngest Foreign Secretary for many a year, his career fizzled out disappointingly.

This seemed to me to be a dreadful mistake by the Liberals. The impression gained from the news and papers was that some of the Liberal hierarchy had really not liked the prospect of victory, or at least of a substantial role in Parliament. They would rather be big fish in their small Liberal pond, rather than small fish in a big and successful SDP-Liberal Alliance. That may be unfair to many in the Liberal party at the time, but there did seem to be, especially at the Liberal Conference, a fear of being tainted with the merest whiff of power. After all, the thought process seemed to go, the Lib Lab Pact in Callaghan’s premiership had led nearly to a wipe out of the Liberals. Better to keep small and under the radar, they seemed to say. They did not want any truck with the politicians who were striving to make the third force in British politics significant again.

For the next few elections, my vote at local and European elections, where possible stayed, despite what I have said about them, with the Lib Dems, as they became. General elections are different however.

Maybe I would have been happy to support the Conservatives if Michael Heseltine had been able to succeed Mrs Thatcher. However John Major sneaked past to take the prize and Heseltinian Conservatism, which seemed to have far more humanity at its heart than any other brand of Toryism in recent years, failed to catch on.

At the same time, the Labour Party, after its wilderness years, seemed to be getting its act together. Neil Kinnock was prepared to take on the extreme left – his conference speech when he condemned Militant for its running of Liverpool Council being a tour de force. I recall watching Derek Hatton, Eric Heffer and Arthur Scargill marching out of the hall in protest.

Sadly for Kinnock, he was having to devote so much energy to fighting the enemy within, that he could not focus his attacks on the government, and he failed to become Prime Minister, despite his oratorical abilities.

By 1992, he seemed expected to win, but a bit of premature triumphalism led to Major staying in power, and to Kinnock stepping down where he was replaced by John Smith.

Now Smith was the MP for the constituency next to the one I lived in, Airdrie. He was a well known figure locally and nationally. He seemed to be well respected and liked.

It looked as if the new guard of Labour politicians, lining up behind Smith, were poised for victory over a tired Government, ridiculed in the press and by Spitting Image. However in May 1994, John Smith collapsed and died, his known heart problems having claimed him.

The Labour Party then was left with a fateful decision, but in fact the decision was taken out of the Party’s hands by the two front runners.

Gordon Brown and Tony Blair, both comparatively new men of prominence in the Party, saw that if one of them stood for leader, they would win, but if they both did, then another candidate might burst through the middle of them.

As a result the Granita Restaurant in London was the scene for their infamous meeting where Brown agreed to back Blair for leader with, depending on who you believe, some agreement about Blair standing down after he had been Prime Minister for a certain period.

Ignoring the hubristic nature of the “agreement” it can be seen as the cause of much of Labour’s successes over recent years, but equally of their failures.

In 1992 I had become disillusioned by the Liberal squabbling, and the Major government seemed uninspiring and tired. The only choice at the General election therefore was to support Labour in the person of Tom Clarke again. This was, once more, a personal vote, not a party one.

Then came the rise of New Labour.

Tony Blair, with Gordon Brown and Alistair Campbell beside him, grabbed hold of the initiative. New Labour, as the party was re-branded, took control of the news agenda.

The Opposition spokesmen seemed new, keen and energetic, whilst the Cabinet were the opposite. The smell of “sleaze” wafted all round Downing Street. We even had Martin Bell in his white suit challenging Neil Hamilton in Tatton.

“Things Can Only Get Better” blared from the loudspeakers. I felt energised politically, in a way I had not been since the rise of the SDP and the heady days of 1982, prior to the Falklands War, when it seemed that the SDP was heading for power.

Election night 1997 is memorable for many reasons, one of which is because my second daughter was born the day after the voting took place. She came into the world the day New Labour came to power.

By this time I had moved to Hamilton, so the personal vote for Mr Clarke was no longer an issue (though he has survived perfectly well without me). But the rise of New Labour, the promises of radical action and, to my ears, significant echoes of Heseltinianism, made me join the landslide of people voting in the first Labour Government for 18 years.

It was a remarkable moment, and a time ripe with expectation.

 

 

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News of the World, Hackgate and the Police Investigation – Part 2

What Did the Police Uncover and What Did they Make of it?

 

Since I first drafted this post, the news about  developments has kept coming so fast, there has not been time to hit the “Publish” button!

What I wanted to do was to look at the evidence given by DCS Williams of the Metropolitan Police in the Tommy Sheridan trial to see what it told us at that stage (December 2010) about what the police had actually uncovered as part of Operation Caryatid.

In light of the resignations yesterday and today of Commissioner Stephenson and Assistant Commissioner Yates, in part over concerns about the lack of rigour in the inquiries, I find the evidence of DCS Williams rather interesting. It helps, I think, to make clear the dreadfully negative attitude the police had to this whole inquiry. They simply wished it would go away.

As always my notes of the evidence are taken from the excellent Sheridan Trial Blog, put together by James Doleman.

Of course when DCS Williams gave evidence, Andy Coulson was still Director of Communications for the Prime Minister, Stephenson and Yates were still in place, Brooks and Hinton still worked for Rupert Murdoch, and the News of the World was the top-selling newspaper in Britain. How things change!

DCS Williams gave evidence about the search of Glenn Mulcaire’s property and the information discovered about his methodology.

He was asked if, during the search, it was true that  “3000 telephone numbers, 30 audio tapes and 100 PIN codes” had been unearthed.

DCS Williams said this was “not accurate”. Mr Sheridan referred to a parliamentary inquiry having been told there were “2978” numbers recovered, and he had “rounded that up to 3000”. DCS Williams replied, “If that is what the MPs were given it will be correct” and added that he believed the figure for PIN codes was 91.

It is, as an aside, interesting that the first reply was that the figures were not accurate, when, in fact, the correct details were 2,978 not 3,000 phone numbers, and 91 rather than 100 PIN codes.

Whilst I have posted before that Mr Sheridan’s lack of a full legal training and experience has meant that prosecutions for perjury of certain of the witnesses in his case is less likely as his questions were often not sufficiently precise, he deserves credit here for getting DCS Williams to agree that the figures given, whilst not precise, were pretty close. I do not intend to suggest that it was DCS Williams’ intention to downgrade the effect of the numbers put to him – but that, if he had not been pursued further, would probably have been the effect.

DCS Williams then told the court how Mr Mulcaire carried out the hacking. He would obtain the “unique number” of the mailbox belonging to their target and “dial it direct”. Depending on the “level of security” it would sometimes be necessary to obtain a PIN number.

In all the ongoing discussions regarding the “hacking” there has been little clear reporting of precisely what was done by Mr Mulcaire and the other investigators used by the press.

Some writers have even said that it does not amount to hacking where simply someone accesses a phone’s messages because the default PIN code has not been changed.

This evidence is an indication, to my eyes, that there was more to it than a simple reliance on phone users not changing their PIN codes.

Anyone who saw Chris Bryant MP being “interviewed” by Kay Burley some months ago on Sky News would be well aware that there was more to the process than simply relying on default PIN codes.

We next come to the nub of the issue, and that which, effectively, has lead to the end of the police careers of Messrs Stephenson and Yates.

Mr Sheridan asked how many people had been affected. DCS Williams stated that they had only evidence that reached the level of proof for “one victim” whom he identified as James Pinkerton, a “private secretary in the Royal Household.”

DCS Williams could not tell the court how many phones had been hacked or how many voicemails accessed.

We now know that there are around 4,000 possible victims of Glenn Mulcaire’s phone hacking spree (at least). This is based upon the information taken from Mr Mulcaire’s home, and which, by the time of the Sheridan trial, had been in the possession of the Metropolitan Police for over four years. Quite how DCS Williams was able to say that there was one victim, Mr Pinkerton, seems remarkable.

However, standing what Mr Yates said to the Home Affairs Select Committee last week, namely that the police were bound by a very strict definition of the offence given to them by the Crown Prosecution Service, it is easier to see how the effects were so minimised, even if the interpretation seems ridiculously narrow.

The interpretation given to Mr Yates was that an offence could only be proved to have been committed where it could be proved, beyond reasonable doubt, that a message on a mobile phone had been accessed by a third party before the intended recipient had heard it. On the guidance Mr Yates stated he had been given, it was necessary to prove that messages were hacked before the recipient got to them. Understandably that would be something very difficult to prove.

Leaving aside for now my view that that is a nonsensical definition of the crime, it at least helps us to understand why the Met Police seemed to underplay the numbers so much.

Mr Sheridan then asked the witness if the police had discovered the names that related to the phone numbers they had found. DCS Williams turned to the judge, Lord Bracadale, and said “M’lord. I have given answers, I don’t see how this is relevant.” Lord Bracadale directed the witness to answer.

Why would the officer be reluctant to answer that question? Was it a fear that a long police operation might seem to have been ridiculous if there had been so many numbers and only a few names found? Perhaps one of the House of Commons Select Committees looking into this matter, or Lord Justice Levenson’s inquiry might want to ask DCS Williams.

DCS Williams told the court that “the mere presence of a name and address does not mean anything unlawful has gone on.” The witness went on to state that “you would expect” that people who worked in the media would have possession of this sort of information and he “could not assume the purpose it’s held for is interception.” DCS Williams added that this had also been the view of the Crown Prosecution Service when they had reviewed the case last year (2009).

So there we have it in a nutshell. The implication I take from DCS Williams’ evidence is that the police were looking for reasons not to have to enquire into matters. The assumption seemed to be that unless the evidence of “hacking” struck them over the head, they should not really go looking for it.

Many in legal practice have had clients come in after approaching the police about what they, the victims, have perceived to be criminal activity, only to be met with the response at the Police Station desk of “That will be a civil matter, Sir.”

That was generally seen as a euphemism for “I am too busy or cannot be bothered dealing with that matter. Take it to a solicitor and don’t bother me, Sir.”

Here, on an industrial scale, to coin a phrase, the police were attempting to say “It’s a civil matter, Sir” as exemplified by Assistant Commissioner Yates’ review following further allegations by the Guardian where he reconsidered the whole matter of the 11,000 pages of evidence in an eight hour period before coming to the view that there was nothing new to look at or to justify the taking of further action at that time.

This is exemplified by the way that, originally, many of the celebrities and politicians complaining about hacking were told they had not been hacked, yet are now being made aware that they might have been.

Whether this “blind eye” approach was anything more sinister than simple incompetence will, hopefully, be addressed by one of the myriad of inquiries which seem to sprouting daily in connection with these matters.

What seems clear is that the police wanted little or nothing to do with this investigation – it was downplayed as much as possible – the bare minimum action was taken, and the whole sorry mess can be summed up by the picture of Mr Mulcaire’s 11,000 pages of notes lying in plastic bags in a Scotland Yard store room for four years, uncatalogued and ignored.

 

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The Ever Expanding College of Justice in Scotland

 

The erudite and thought-provoking blogger Lallands Peat Worrier has written an interesting post regarding the UK Supreme Court bench, and the damage there might be to the standard of the Senators of the College of Justice left at Parliament House if, continually, the cream is taken down to London.

In addition, Robert Black QC commented about how the numbers had increased, from the days when the entire bench could fit in one court room, if only for ceremonial occasions. Now one thinks that the Usher Hall need be hired to fit them all in.

I thought that a wander through the archives might show how the number of High Court Judges in Scotland has increased over the years.

Apparently, as per Wikipedia, which may not be authoritative on this point, there were 15 Senators in 1689, when the Lord President was Lord Stair.

The numbers varied as the years went by, increasing and decreasing according to circumstances.

In modern times, the Administration of Justice (Scotland) Act 1948 envisaged a maximum number of 13 Senators. At that point the Lord President was Lord Cooper.

This maximum had been increased by the 1968 Act of the same name to 19. In 1968 Lord Cooper’s successor, Lord Clyde, was still in place.

Over the years after that by way of Statutory Instruments, the numbers continued to creep up.

By the time the number had been increased to 24 in 1986, Lord Emslie was in charge of the Court as he was when the following legislation was passed too.

In 1988, after sterling work by the Scottish Law Commission (SLC), the Court of Session Act was passed, as a consolidation of the various statutes dating back many years. This, in Section 1 (1) specified that the maximum number of judges was to be 24.

Since then, the prosaically titled “Maximum Number of Judges (Scotland) Orders” have been forthcoming every few years.

In 1991 the number went up to 25, the Court now being presided over by Lord Hope. In 1993 we saw an increase to 27 and there was a further jump to 32 in 1999 by which time Lord Rodger was Lord President.

The numbers rose to 34 in 2004 under Lord Cullen and that is where the number stands today.

Interestingly there was a temporary increase in 2009, under the Maximum Number of Judges (Transitional Provisions) (Scotland) Order, of the number of judges to 35 for the period from 1st September 2009 till 30th September 2009.

That arose because Lord Bonomy, who had been sitting as a judge on the International Criminal Tribunal for the former Yugoslavia, had come to the end of his term in the Hague, and he was due back one month before Lord Nimmo Smith was due to retire. To allow Lord Bonomy to be sit and to be paid, it was necessary to pass the Order referred to, and the maximum went back to 34 on Lord Nimmo Smith’s retirement.

Why has there been this increase over the years?

Traditionally the blame is placed on the ever growing number of High Court prosecutions, and the additional number of procedural hearings created in an effort to have the High Court run smoothly. The recent changes to personal injury procedure too have caused increased work, as cases are scheduled for proof or trial within around a year of being raised, a vast improvement over previous timescales.

In the SLC report preparatory to the 1988 Act, it was stated that, of the 24 Senators at the time, it was common to have at least 10 of them dealing with criminal trials at a time.

Bearing in mind the need for judges for the civil court, and for the First and Second Divisions for appeals, it was felt that an increase would help solve the problems.

However, as happens when a new motorway is opened, which though initially clear of traffic, is soon gummed up, and the calls for new bypasses start again, each time the numbers have gone up, the Senators have fairly quickly found their days filled.

Indeed if it was not for the presence of temporary judges, now subject to statute under the Judiciary and Courts (Scotland) Act 2008, the High Court and Court of Session would grind to a halt.

There are presently 17 temporary Judges, 11 of whom are Sheriffs, or Sheriffs Principal, the remaining 6 being practising QC’s.

Some years ago there was a controversy about “justice on the cheap” on the basis that a sitting Sheriff could sit as a temporary Judge, at little or no extra cost, and the Sheriff would be replaced in his own court by a part time Sheriff. Thus, for the cost of a part time Sheriff, a temporary Judge in the High Court became available. However, the complaints about that soon fizzled out, as there seemed to be a consensus that the system required suitable and experienced Judges in the Superior Courts, whether from the Bench, the Bar or the Sheriff Court.

There must come a “critical mass” situation however. There are around 400 hundred practising advocates at the Scottish Bar, of whom around 117 are silks.

This is a small pool from which to fund new judges. There seems to be a reluctance to appoint former Sheriffs to the High Court Bench. By my reckoning there are three just now, namely Lords Matthews, Wheatley and Bannatyne (Iain Peebles, as he was).

Standing that 11 of the 17 temporary Judges are Sheriffs, it seems an odd imbalance. Maybe Sheriffs from out of the capital don’t want to have to move to work in Edinburgh? Who knows?

It is also of interest that no solicitor-advocates have yet been appointed as Senators. One assumes that day must come, as the number of solicitor-advocate QC’s increases.

Will we see ever increasing numbers of Senators of the College of Justice? If as the Lallands Pear Worrier thinks, we might need more Scottish judges sitting on, or available for, the UK Supreme Court, then extra bodies may well be required. Does the Scottish legal profession have enough talent for about 10% of the available lawyers to be sitting as Superior Court judges?

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The Daily Mail and its Commenters Fail to Understand Geography

Today’s Daily Mail website has an article which ticks many of the boxes its readers are perceived to want ticked.

http://www.dailymail.co.uk/news/article-2013309/Pregnant-15-daughter-Britains-prolific-single-mother-And-course-shes-benefits–just-like-mum.html#ixzz1RmQGVPoJ

The headline in fact tells you the story, and, knowing the Daily Mail, one can predict the tone of the piece and of the comments.

However, on reading it, there is a tiny reference which seems to have been missed, both by the paper and by the vast majority of the 176 commenters (as at the time of typing this piece).

The article states “She also boasts that she finds it easy to run her huge household and has enough spare time to go to the park or the beach near her home in St Martins, Guernsey.”

Absolutely disgraceful – imagine having 14 children and still having time to go to the park or the beach! Mind you, Guernsey is nice…

Wait a minute. Guernsey, that’s in the Channel Islands?

The Channel Islands are not part of Great Britain, though they are part of the British Islands as defined in the Interpretation Act.

Does this make Joanne Watson “Britain’s most prolific single mother”? No – because she does not live in Britain!

Anyway, it’s still a disgrace, says the Daily Mail, that this woman has all these children paid for by the taxpayer. Surely the benefit budget is stretched too far already without these additional burdens on the state. And she has spent this money on a breast enlargement operation and on a sunbed!

Look at the story – her 15 year old daughter who is expecting is going to receive supplementary benefit and child allowance as well as all the money she gets herself.

A drain on our taxes – terrible!

But, wait another minute, supplementary benefit does not exist in the UK any more by that name, and “child allowance” isn’t a term used either. Why has the reporter made this silly mistake?

In fact it is not a mistake. Guernsey has its own benefit system, http://www.gov.gg/ccm/navigation/social-security and is not part of the UK benefit system at all!

So this story is, in fact, about a lady who does not live in the UK and does not cost the British taxpayer one penny!

The commenters are even better than the article in missing the point though.

One, from Canada, says “No wonder England is declining.”

Another, from Australia, blames New Labour!

Yet another Australian commenter says she is delighted she did not come back to the UK.

China’s policy of population control is praised, and a good few people seem to feel that workhouses never did anyone any harm and we should have them back.

There are also some who state that this is the type of thing that makes them want to leave the UK (and move to Guernsey perhaps?)

Interestingly, a few commenters make the pint I have above, namely that Guernsey is not part of the UK. These however all seem to have substantial numbers of red “dislikes” marked  against them.

And finally Mark from Coventry says “In one article, you capture virtually everything wrong in the UK today.”

No Mark, in one article, you capture virtually everything that is wrong with the Daily Mail and its commenters.

I can’t work out if the reporter (a) did not realise himself about the differences between the UK and Guernsey or (b) was not bothered about them in case they got in the way of the story.

I, of course, am merely pondering the matter. No criticism of the reporter in question is intended or implied.

UPDATE – a quick Google Search reveals that, in October 2010, there was a long and sympathetic article about this family and the fact that Joanne Watson was about to be married again. The piece had an entirely different tone, praising the lady for her “neat as a pin” house and her organisation etc.

The paper that story was in – yes, you’ve guessed it – the Daily Mail!

http://www.dailymail.co.uk/femail/article-1325079/Expectant-father-marry-divorced-woman-15-children-already.html

UPDATE NO 2 – a slightly more detailed Google Search shows that this is, in fact, the sixth article in the Daily Mail about this lady and her family in the last 4 years, yet the first to have taken this tone – I wonder what caused the change?

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