News broke last week, courtesy of Paul Hutcheon in the Herald that Tommy Sheridan’s appeal against his conviction for perjury had failed.
Was the News of the Failure of the Appeal Leaked?
Initially, there was a flurry of concern on Twitter suggesting that the news had leaked from the court in some way, as it was reported prior to Aamer Anwar, Sheridan’s solicitor, receiving official notification. However, it transpires that it was good, old-fashioned journalism. As Mr Hutcheon tweeted on 4th August in response to a question as to how he had known to ring the court that day “I called them (the High Court) every 2/3 days after Aamer gave me a quote that he wd appeal to the second sift”.
What Happened to the Appeal?
To be permitted to have an appeal hearing, an appellant needs his appeal to “pass the sift” i.e. be granted leave, either by one judge (the first sift) or if failing at the first hurdle, by a panel of two or three judges (the second sift).
The rules for appeals in solemn case (i.e. cases heard by a jury) are dealt with in Part VIII of the Criminal Procedure (Scotland) Act 1995, as amended.
The appeal process is intended to be quick, with notice of appeal being lodged within two weeks of the conclusion of the case. Then the appellant must lodge, within a further 8 weeks, a written note of appeal “containing a full statement of all the grounds of appeal“.
In Mr Sheridan’s case, as we now know, he failed at both hurdles. It has been reported that the judge who refused leave at the first stage was Lord Wheatley and last week Lords Hardie and Emslie and Lady Paton finally refused Mr Sheridan leave to appeal.
Following on the failure to pass the first sift, and prior to the decision of the second sift, the commentator, Lallands Peat Worrier, offered some interesting and valuable thoughts regarding the appeal process in this case including reference to the challenges a “fresh evidence” appeal at a later date might face.
Why Did the Appeal Fail?
There has been speculation about what the grounds of appeal might have been. For example there was press attention given following the verdict to potential new witnesses whose evidence, it was reported, was going to be important in an appeal.
However, according to Mr Hutcheon’s article “Following the conviction, Sheridan’s solicitor Aamer Anwar sought leave to appeal on the grounds that pre-trial publicity denied his client a fair trial.”
If that is correct, then there was little chance that the appeal would succeed and I will be putting up a separate post regarding recent “pre trial publicity” appeals. It may well be that other grounds of appeal were argued but, as far as I am aware, this is the only one which has been publicised.
As is not surprising, “prejudicial” adverse pre-trial publicity is raised in many high profile cases. However, the success rate, either for appeals against conviction, or in asking the court to prevent trial in advance, is very low, if not non-existent.
In general however, the courts have taken the consistent line that a jury can always be carefully directed only to consider the evidence led in court in the course of the trial, and to disregard extraneous material. As such pursuit of an appeal based on nothing other that adverse pre-trial publicity seems a forlorn hope.
What Can Mr Sheridan Do Now?
Mr Anwar issued a statement indicating that the fight would continue He stated that he had asked the High Court to suspend the appeal process pending the Strathclyde Police investigation into matters including the testimony of certain witnesses at the trial.
This request was refused by the High Court. From time to time the Court gets annoyed about the way cases can drag on through the appeal process. In Gordon v HMA [2009] HCJAC 52, for example, Lord Carloway commented on the growing number of cases where there were delays, and he noted that “The procedure is not concerned with considering the prospects, remote or likely, of an appellant seeking to amend his grounds of appeal in the fullness of time. “
On that basis, and until Mr Anwar can produce something concrete for the court, the appeal was going to be dealt with as it stood.
Mr Anwar indicated that, “We will consider if there are grounds for an appeal to the Supreme Court or whether to take the matter to the Scottish Criminal Case Review Commission on the basis of new evidence which may emerge as a result of the police inquiries.”
If Mr Anwar wants to appeal to the UK Supreme Court (UKSC) he will first need to ask the High Court for leave to appeal.
The High Court is the court of last resort in relation to Scottish criminal law, with the only exception being the jurisdiction of the UKSC which extends only to a consideration of a devolution issue which has been determined by two or more judges of the High Court: para 13 of Schedule 6 to the Scotland Act 1998.
The UKSC can therefore only deal with a case where a “devolution issue” has been raised. Under the Scotland Act, all ministers of the Scottish Executive must act in accordance with the European Convention of Human Rights (ECHR). It is illegal to act contrary to the ECHR. As head of the prosecution service in Scotland the Lord Advocate is obliged to act in accordance with the ECHR. Where it is alleged that the prosecution have failed to do so, by acting in a way which infringes the accused’s ECHR rights, then such a minute is lodged.
I have not seen coverage in the press indicating that such a minute has been lodged in this case, although one might expect that there would have been in respect of the pre-trial publicity point prior to the trial. If so, and it was rejected, then the UKSC can be asked to review the handling of the devolution minute.
If one has not been lodged, then there is nothing to be considered by the UKSC.
If the High Court refuses to grant leave to appeal, the appellant can ask the UKSC directly for “special leave” to appeal.
In the recent case of Fraser v HMA [2011] UKSC 24 the UKSC granted special leave on the basis that the refusal of the High Court to receive a devolution minute was itself a decision regarding a devolution minute and that the UKSC considered that there was a “strongly arguable” case that the High Court had got it wrong.
Based on what has been considered above, then it seems very unlikely that the UKSC would grant special leave, let alone grant an appeal.
The second route outlined by Mr Anwar is the Scottish Criminal Cases Review Commission. At any time after the normal appeal process is exhausted, a person who has been convicted can apply to the SCCRC if they consider that they have been the victim of a miscarriage of justice. The SCCRC will investigate the case and determine if they think there is an arguable case. If so, they can refer the case back to the High Court. Effectively this gives the appellant a second appeal, and if the SCCRC refer a case, it is treated as having passed through the sift process.
Therefore, if the ongoing police inquiry into the aftermath of the Sheridan case produces concrete evidence which can get past the hurdles for “new evidence” cases as mentioned by Lallands Peat Worrier and which casts substantial doubt upon the conviction, then there might still be a case for the High Court to consider. That however involves a great leap in speculating about what, if anything, the investigation uncovers and how relevant that might be to the guilty verdict.
Conclusion
Despite the fact that the case of HMA v Sheridan has, for now, formally concluded, I think it is highly likely that we will still be reading and hearing about it for years to come, as long as Mr Sheridan has the stomach for the fight, as I am sure he has.
And it could be said that the disposal of the case now actually works better fro him than if he had been permitted an appeal hearing.
An appeal hearing would have brought the matter back to the public’s attention, and especially if Mr Sheridan represented himself, then the case would probably have lasted some days. The High Court might well have passed adverse comment upon his conduct of the trial. That is not intended as a slight to him, but instead simply a reflection that, when in the dock in the High Court, it is usually advisable to have a Queen’s Counsel of great experience representing you.
Whilst, from all I have read of it, his final jury speech would have been a tour de force from a political platform, it wasn’t the right tone or content for a jury speech in the High Court.
For all his oratorical skill, a lot more than that is needed, especially when trying to keep a grip on a case running for almost three months.
Instead, Mr Sheridan, once he is released from serving his sentence, can say that he has been denied the opportunity to clear his name, whilst those he might perceive as “the guilty men” remain free.
I’m not qualified to say if this will help him politically, but it would be consistent with his political philosophy. He’d remain the underdog, fighting against the system and big business, and penalised, he might claim, for doing so.
And bearing in mind where the reputation of the News of the World now stands, who is to say he might not yet be able to make a comeback, in the same way that the former Labour leader in Glasgow, Pat Lally, kept doing, so as to gain the title “Lazarus?”
Random Thoughts Re Scots Law by Paul McConville 
Hi Paul,
Excellent blog once again and very interesting reading.
For me, one of the striking aspects of the Sheridan court cases has been the conflict between “natural” justice and technical justice. I felt the first jury were right in terms of “natural” justice. The NotW lied about Sheridan drinking, taking drugs and exaggerated the rest, e.g. the spanking. I think £200,000 in damages for labelling someone who is teetotal as a drinking, drug-taker is fair. Had the NotW simply reported on what was eventually found to be proven, there would’ve been little chance of Sheridan even going to court far less winning damages.
Did the first jury believe Sheridan was whiter than white in his sexual liaisons? No, of course not, who would? The idea of the first jury being duped is one of the great fallacies of this whole affair (no pun intended). I think their logic was simple. Has teetotal Sheridan been defamed by stories of drinking, drug-taking and exaggerated sexual antics? Yes. Has he told the whole truth? No. Does it matter. No, not to us the jury it doesn’t, what he has been defamed about is still clear. Have the NotW told the truth under oath? No, and not only that but they’ve knowingly printed lies, paid liars for lies, and encouraged people to tell lies by offering huge financial rewards for telling lies. It was a no contest.
In my opinion the only way out for the NotW was to collude with the authorities and move the goalposts; strip away the lies about drinking, drug-taking, spanking, bribes to witnesses, etc., and make it all about Sheridan’s (lesser) lies. In short, eliminate notions of “natural” justice and get him on a technicality. Oh, and don’t bother with equal justice for all… focus on the Sheridans and turn a blind eye to all the other crimes and criminals, ignore all the collusion, and all at the taxpayers’ not the NotW’s expense.
I look forward to hearing more of your thoughts
Cheers
Joseph
Thank you Joseph. I try to be interesting, if long-winded!
The problem is that, in the first place, Sheridan decided to pursue the case, and then he won it.
Hindsight is always perfect but I think that if he had not pursued the case, then the stories would have been long forgotten, whilst some might have thought they bolstered his “Jack The Lad” reputation. In addition, deciding not to sue the NotW intn the “capitalist” courts would have been consistent with his politics, and finally the cost implications of pursuing such a case have put off almost everyone the newspapers have defamed. In addition, if he belived that the NotW was determined then to destroy him, going to court where the whole matter would need to be dragged up again, simply gave them another chance to do so.
Similarly to Archer and Aitken, no-one forced Sheridan to go to court (as far as we know – personal or family pressure of curse might have been present).
The civil jury found that the NotW had libelled him, and made an award which, frankly, was ridiculously high. To achieve a similar award for personal injury would have needed very serious injuries indeed.
The problem is, as you say yourself, that he told some lies. The net effect of his lies in court, or should I say that the effect of his evidence, including his lies, was that he stood to receive £200,000 he might not have been entitled to.
Any fraudster (and I am not accusing him of fraud) who obtained such a figure would expect to receive a similar sentence, if not longer.
It’s not a defence to a charge of speeding to say others were going even faster.
Undoubtedly there will have been witnesses who lied in the first trial and in the second. But the considerations that go into prosecuting people for perjury lead Crown Office to decide to pursue the man who benfited the most (apart, of course, from Mr McNeilage and his tape). As I mentioned, I’ve got some thoughts re the tape which, if I think it useful, I will post.
I might be naive, but I don’t think that the Crown Office is in Murdoch’s pocket, nor that there was collusion as you suggest. Bizarrely it is still possible that there will be a re-trial of the original civil case. I have some thoughts in process re the NotW appeal and how matters might progress from here too.
It’s taken me a wee while to get back to you, although I have been looking out for your thoughts on the McNeilage tape.
What annoys me about the Sheridan shambles is Scottish justice being brought low by courtroom mudslinging, deletions from the indictment, alleged perjurers charged but never prosecuted, huge payments to witnesses, evidence being withheld, and what is increasingly looking like a malicious, possibly even criminal, conspiracy involving self-confessed liars from a newspaper now defunct (having collapsed under the weight of allegations involving corruption and criminality) and a potentially biased investigation by police.
Perhaps the speeding analogy needs an extra dimension; a speeder being convicted on the evidence of other speeders and all but one speeder getting away with it. I’m not entirely convinced the second jury got it right, but if they did, I think a perjurer was convicted on the evidence of other perjurers, or worse, alleged criminals who bribed witnesses, withheld evidence, hacked phones and perverted the course of justice. I don’t just mean those from the News of the World, or those who had their evidence discredited, or the ones charged with perjury but never taken to court, I’m including the witnesses from the SSP United Left faction who appeared to change their story from one trial to the next, and decided to deliver handwritten notes of SSP minutes to police after the first trial had concluded. Alan McCombes had been to jail for contempt of court for refusing to hand over the minutes, however the handwritten notes had been in Barbara Scott’s handbag the whole time. That’s all just my opinion of course.
The fraud analogy should be attempted fraud, shouldn’t it? Sheridan has never received the £200,000 although, interestingly, I think the NotW still officially owe him the money as their appeal is still pending. Anyway, notions of attempted fraud are a bit of a moot point unless you think Sheridan was motivated by money, and I don’t think he was. It was very much attack as a means of defence. He believed he was defending himself against an evil and corrupt organisation actively engaging in a criminal conspiracy to destroy him both personally and politically. Whether they were out to get him or not, I think he was right about the NotW being an evil and corrupt organisation actively engaging in a criminal conspiracy (of one kind or another, but maybe not necessarily about him). Maybe we’ll know for sure one day, so long as the public inquiries aren’t a huge whitewash.
I think Sheridan was right to go to court. The completely made up drink and drug slurs were outrageous, as was the spanking story. Max Mosely was awarded huge damages. He was into S&M but not with a Nazi twist as made up by the unscrupulous NotW. Maybe Sheridan’s mistake was not doing the same as Mosely, i.e. take any true allegations on the chin and sue over the lies.
As you can probably tell I’ve believed right from the start of the perjury investigation that there was collusion between the SSP United Left, the NotW, the witnesses paid by the NotW, the police, and prosecutors. I’m not saying they were all in a room at the same time plotting against Sheridan, but there was plotting. For example, it has been well documented that the SSP United Left held meetings to agree their party line. The idea that they should be treated as twelve independent witnesses is laughable, especially if you realise that they are well accustomed to operating democratic centralism. Unfortunately, for Sheridan, his conspiracy theory was too grand and he didn’t have the evidence to support it. Two senior officers from the Met hadn’t resigned at that point and the NotW emails allegedly showing collusion were “missing” according to Bob Bird. Not just that but conspiracy theories aren’t believed by the majority of the Scottish public, e.g. no matter how much evidence was presented against Jim Farry nobody would accept institutional bias against Celtic – it was Farry alone not the SFa who was biased and cheating Celtic. Similarly, no matter how many former referees stand up at sportsman’s dinners to tell tales of their bias, people continue to believe there is no bias.
Talking of SFA bias against Celtic, if Sheridan had employed Paul McBride QC I think he’d have had a not proven verdict in the criminal trial. McBride would’ve highlighted all the inconsistencies in evidence from one trial to the next, whereas Sheridan just encouraged personal squabbles to obscure the issues. McBride would’ve done much better on the collusion/conspiracy stuff as well.
Given where we are now with Tom Watson MP describing the conviction as “unsound” and the possibility of the Scottish public finally grasping the concept of collusion and equal justice for all, I imagine many of the police and prosecutors wish they’d simply allowed the NotW appeal against the defamation award to go ahead with no ridiculously expensive criminal trial securing only one conviction and causing much embarrassment (especially the house search and comparing a middle-aged mum with rosary beads to terrorists). With the SSP United Left changing their tune and the McNeilage tape, Sheridan’s damages would probably have been reduced to account for the lies about drinking, drug-taking and spanking, without the other sexual stuff.
What will happen now? Sheridan will be released, the Scottish part of the public inquiry will be a whitewash as will the police investigation into police collusion/corruption, and Sheridan will be back in court looking for his £200,000 which has already gone to pay McNeilage. No doubt Sheridan will be armed with a copy of Alan McCombes book to show exactly what a shady organisation he is up against, and then there’s the NotW.
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