Perjury in the law of Scotland is 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 there requires to be evidence from at least two sources.
In a case where the accused has “spun a line” by advancing under oath a case he knows to be untrue, as the jury determined Mr Sheridan had done, the questions that prompt the perjured statements are of lesser importance.
However, where it is alleged that answers to questions have been perjured, then the precise wording of the question becomes vital.
It might, as I explain below, turn out that Mr Sheridan’s decision to dispense with Counsel and to act for himself could let Mr Coulson off a hook he might otherwise have been on.
A few months ago Barry Bonds, a famous baseball player, was tried for perjury in California in connection with allegedly perjured evidence he gave to a Grand Jury about steroid and other drug use. Because many of the questions asked to him were rhetorical, and multi claused, by the end of the case many of the allegations had disappeared from the indictment against him. Put simply, if he was not asked a straight question, it was difficult to prosecute him for giving a false answer, especially where the answers in turn were inspecific and woolly. In a different way Mr Coulson might be the beneficiary of Mr Sheridan’s lack of legal expertise, notwithstanding his undoubted oratorical talents.
I should state that Mr Coulson has at no time accepted that he committed perjury in connection with the Sheridan case and therefore remains an innocent man. These thoughts are entirely speculative, in light of information publicly available to date.
Today, in the midst of the storm regarding the now about to disappear News of the World (NotW) the Crown Office confirmed that it had asked Strathclyde Police to investigate the evidence of “certain witnesses” who gave evidence at the Tommy Sheridan perjury trial.
Clearly the Crown Office has not identified the parties involved, and no action has yet been taken regarding them, so it is appropriate to speculate as to whom, in and in relation to what, the police will be examining.
The first name springing to mind is Mr Coulson, former editor of the NotW and former Director of Communications for David Cameron.
Mr Coulson was called by Mr Sheridan to give evidence for the defence at the High Court in Glasgow in December 2010.
As always, my notes of what took place are based upon James Doleman’s marvellous Sheridan Trial Blog, found at http://sheridantrial.blogspot.com. Some day all trials (of importance) will be covered this way.
So where might Mr Coulson have erred in his evidence?
Payments to Police Officers
This area is, on what has been made public so far, probably the most troubling for Mr Coulson. In connection with this issue, Mr Sheridan asked “did the News of the World pay corrupt police officers?” Mr Coulson replied, “Not to my knowledge”.
Now, according to press reports, the NotW has given confirmation to the police of payments connected to Mr Coulson to police. That, at first sight, seems an open and shut case. If Mr Coulson did authorise such payments, the surely he has committed perjury?
But he was asked if the NotW paid “corrupt” police officers. Therefore he could say that the NotW did not pay “corrupt” officers, but instead paid honest ones. As the wise blogger and Twitterer @loveandgarbage pointed out, the Prevention of Corruption legislation makes payments like this illegal both by the donor and the recipient. However, if Mr Coulson believed these were legitimate payments, tied in perhaps with the “crime fighting” role of the NotW, then the fact that, in law, recipients of the payments were ipso facto “corrupt” would not be enough, in my view, to establish perjury. Ignorance of the law cannot make a statement false where the person believes it to be true.
If Mr Sheridan had still bee represented, then the questioning would probably have been in more depth and detail (if of course Counsel had agreed to call this witness and follow this line).
If Mr Coulson had given the same reply to a question as to whether the NotW had paid any officers, he would be in clear difficulties. After all, he sat beside Rebekah Wade, as she then was, when she told the House of Commons Committee that the NotW had paid police officers.
One interesting practical point is whether or not Mr Coulson ought to have been cautioned by the judge before he answered the question that he was not required to answer it, where there was a risk he might incriminate himself in a criminal act. If so, could he argue that it would be an inappropriate act of the Lord Advocate under the Scotland Act to prosecute him for perjury in connection with that answer, where such a caution was not given?
After some thought, it seems that this would be an issue for any trial, but not a preliminary point. The case of Graham v HMA 1969 SLT 116 seems to deal with the issue. Here a challenge to the competency and relevancy of a perjury indictment failed where the accused had answered a potentially self incriminating question in a murder trial without the judge cautioning him. The court held that, as perjury was a separate matter from the original offence, that it was entirely proper for such a case to be tried in the absence of a caution. The court said that the issue could be addressed at trial, taking account of all the circumstances under which the evidence was given.
On balance therefore, the absence of a caution to Mr Coulson prior to that question did not render his answer inadmissible and so, as mentioned above, a charge of perjury would be competent.
Glenn Mulcaire and Clive Goodman
Mr Coulson was asked about his departure from the NotW. After saying that he had “taken the ultimate responsibility and stepped down” he was asked what the crime committed by his staff member was. Coulson stated that it involved “illegal phone hacking” and that he had “no knowledge of it.”
Can it be proved with corroborated evidence that Mr Coulson did know regarding Mr Goodman at the time? Even if it was proved he knew that there was widespread phone hacking, can it be proved he was aware of the position re Mr Goodman at the relevant time. Mr Goodman would be, one would assume, a probable Crown witness in any such case, although, if it was his position that he was simply one “bad egg” he could be a defence witness, for what that might be worth.
Mr Sheridan asked if Mr Coulson knew of Mr Goodman’s association with Glenn Mulcaire. He replied that he had never had any contact with Mr Mulcaire and had not even known his name until Mr Mulcaire had been arrested. When asked regarding Mulcaire’s company, 9 Consultancy, he insisted, “I never met him, spoke to him or emailed him”.
Again, subject to the exact questions asked, can it be shown he had contacted, or even knew of Mulcaire? The mysteriously re-appearing emails (more of which later) might assist regarding that point. Mr Mulcaire would of course be a compellable witness in any perjury proceedings. Whilst he failed to appear at the Sheridan trial, as a result of medically certificated ill health, one can imagine he would definitely be asked to attend such proceedings as we are contemplating here.
After discussing the £105,000 per annum contractual payment to Mulcaire’s company, Mr Coulson was asked about other payments made to Mr Mulcaire. He told the court that there were other payments but these had happened “without my knowledge”.
One would imagine a paper trail will exist re payments being made to third parties, even for a business with such a large budget as the NotW. Is Mr Coulson’s name on any of these?
Mr Sheridan asked who else had their voicemails “hacked” to which Mr Coulson answered that it was a “matter of record”. He was pressed on this, and Mr Coulson replied that he understood “five other individuals” had been mentioned as having their voicemails intercepted.
The latest information publicised from the police suggests there are thousands of people affected. Was Mr Coulson saying what he believed the position was at the time, or was he stating his understanding as at December 2010? Here again ambiguity of questioning can make it impossible to establish perjury.
On the second day of Mr Coulson’s testimony, Mr Sheridan asked him if the NotW had made payments to Mr Mulcaire and Mr Goodman after their release from prison. Mr Coulson stated that this had happened after he had left the NotW and he had “no knowledge” about any payments.
Short of a smoking gun with his name on it (sorry for the mixed metaphor) it’s hard to see how that answer, could give rise to any case now. He was not denying the payment, strictly, but stating he had no knowledge. Forgetting could be a legitimate reason for having no knowledge.
Mr Sheridan asked if Mr Coulson had emailed Mr Goodman asking him to “take the blame for the good of the paper”. Mr Coulson responded “No, I’m positive, do you have that email, Mr Sheridan?” Mr Sheridan replied that “Mr Goodman has been cited. Perhaps we will hear from him.” However we did not.
On one view, Mr Coulson’s answer could be construed as an admission, but in reality there could only be case re this if the email was discovered, either in the NotW archives, or coming from Mr Goodman. However, stating that he was “positive” might cause Mr Coulson difficulties if it did exist and was discovered.
Mr Sheridan came back to Glenn Mulcaire and the notebook found in his papers by police. Mr Coulson denied that he had any knowledge of this or that the News of the World in London had instructed Glenn Mulcaire to “hack” Mr Sheridan’s phone.
Again, what might Mr Mulcaire say, and what evidence would there be to corroborate that, if he disagreed with Mr Coulson?
News of the World Practices
Mr Sheridan asked Mr Coulson if the “News of the World employed people who broke the law.” The witness replied that “we did not seek to but it is obvious we did with Clive Goodman” but denied he had employed “convicted criminals.”
One of Private Eye’s regular features involved mentioning Fleet Street staff who were convicted of various offences, whether of drunkenness or assault. Sadly I do not have time just now to go through my 30 years’ back issues of the Eye to see whether any of these stories popped up under Mr Coulson’s charge. Interestingly, a perjury charge on this issue might fall foul of the need that the perjured statement needs to be relevant to the case. If therefore it could be shown the NotW employed a convicted criminal under Mr Coulson, then, unless it is connected to the alleged hacking, it would not found a perjury case.
Mr Sheridan asked Mr Coulson if his newspaper “printed lies” to which he responded “We try not to.”
People might disagree, but that answer won’t form part of a perjury charge.
The McNeilage Tape
Mr Coulson was asked about his role in the purchase of “the McNeilage tape.” This was a video tape prepared by Mr Sheridan’s former friend and colleague, Mr McNeilage, where Mr Sheridan was recorded effectively admitting perjury. Mr Sheridan had denied that the voice on the tape was his (the participant not being clearly seen) or stated that it had been concocted from recordings of his voice. Mr Coulson told the court that he had been alerted to the existence of the tape by Bob Bird, the NotW’s Scottish editor (whose own testimony will be addressed later). Mr Sheridan asked Mr Coulson if he had seen him in the tape, to which Mr Coulson responded “I heard your voice” as he had compared that to other recordings of Mr Sheridan speaking. Mr Sheridan asked if the witness had heard “private eye recordings of my voice.” To this Mr Coulson replied “I don’t believe I did.”
Even if it could be shown that Mr Coulson had listened to such recordings, his answer is not specific enough to found a case.
Mr Sheridan then asked the witness about an article in the New York Times which had quoted an ex-NotW journalist Sean Hoare http://nyti.ms/aCuDeN. Mr Sheridan put it to Mr Coulson that Mr Hoare had claimed, in the article, that he had been told to “employ the dark arts” by Mr Coulson himself. To this Mr Coulson replied that he had “no recollection of doing so.”
A failed recollection, even if shown to be wrong, won’t found a perjury case. Again, more forensic questioning about Mr Coulson’s dealings with Mr Hoare might have led him into difficulties.
Mr Sheridan was then asked about another private investigator involved in the matter, Steve Whittamore. Mr Coulson told the court that he had never had any dealings with Mr Whittamore or asked anyone else to deal with him. Mr Sheridan asked Mr Coulson if Mr Whittamore had been used by the News of the World “while you were boss”. Mr Coulson said he did not know. Mr Sheridan then said that Steve Whittamore had been convicted in 2005 and this had happened “under your watch”. Mr Coulson said he had not been involved with Mr Whittamore “in any way, shape or form”.
Mr Whittamore too would be compellable as a witness. Would he state that he had had dealings with Mr Coulson?
Mr Sheridan then asked if News International (NI) was paying Mr Coulson’s legal costs. He replied “I certainly hope so” explaining that as the case related to his employment with News International they would be expected to meet his legal bills. I am sure that was correct at the time. Should he be arrested tomorrow (Friday) will they still be covering his costs? Will NI be funding his defence wither prosecuted in Scotland or England?
Will Mr Coulson face a perjury trial? It is possible that he might. The transcripts of his evidence, and every word thereof, will be trawled over. My thoughts are based on an excellent contemporaneous record of the trial, but one which could not be a verbatim report. There may well be nuances I have missed, or events seen in the trial itself, such as Mr Coulson’s apparent wink to Mr Sheridan as he finally left the witness box.
Is it appropriate that the matter be investigated? Of course it is. Here, in the highest profile perjury case in Scotland for many a year, it is alleged that a senior journalist, with connections to the Government, may have lied on oath. The Crown Office would have been criticised if it had failed to look at these concerns, though since the allegations re the NotW phone hacking have been about for a long time, it might be asked what evidence in particular has prompted the Crown Office decision today, rather than before. Perhaps the front pages of the newspapers qualifies as the necessary “evidence” to prompt the inquiry, bearing in Mind Mr Sheridan’s solicitor, Mr Anwar, stated some time ago that his phone had been hacked by, he suspected, the NotW.
If Mr Coulson is not pursued re perjury, is he in the clear?
Clearly the English courts may well have an interest in connection with the phone hacking and police payment allegations. I will happily leave that issue to commentators better versed in English Law than I am.