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  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  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.
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?”