On the basis that, at the time of posting this piece, Andy Coulson, former editor of the News of the World and former spin doctor to the Prime Minister, David Cameron, remains detained by Strathclyde Police in Govan Police station in connection with alleged perjury in the Tommy Sheridan trial, but not yet charged with any offence, I thought I could update and revise two pieces I wrote last year regarding the issues which might be of assistance to my readers.
I will repeat here – (well actually I will repeat it lower down the page) – Mr Coulson is innocent of any crime, unless and until convicted by a court. There might even not be any criminal proceedings at all.
Part 1 – Mr Coulson’s Evidence in Detail
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 must 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.
Last year Barry Bonds, a famous baseball player, was tried for perjury in California in connection with allegedly perjured evidence given 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.
Back in July 2011, in the midst of the storm regarding the now defunct 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.
One of these 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.
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”.
According to press reports since then there are allegations of payments to police by the NotW and possible criminal proceedings in relation thereto. If true that, at first sight, seems an open and shut case. If Mr Coulson authorised such payments as Editor, then surely he has committed perjury?
However 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 been 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 clearer difficulties. After all, he sat beside Rebekah Wade, as she then was, when she told the House of Commons Select Committee some years ago 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.
That was wrong. Thousands of people were 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 is 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 will not 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. 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. 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, will not 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. However News International and Mr Coulson fell out and the matter has gone to court. Mr Coulson has been granted leave to appeal the court’s decision that NI need not ay his legal costs.
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 last July, 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 former solicitor, Mr Anwar, stated some time ago that his phone had been hacked by, he suspected, the NotW.
Part 2 – The Law on Perjury in Scotland
Some Essential Elements of Perjury
In light of the detention of Mr Coulson in connection with a possible perjury case, there has been interest in what actually constitutes “perjury”.
If a person, having sworn the oath or having affirmed, wilfully makes a false statement in evidence, such evidence being competent in the case in which given and relevant to proof of the charge or credibility of the witness, then perjury is committed under the Law of Scotland.
In this post, I propose to examine the final part of the definition, namely the relevance of the “falsehood”. Formerly the word “materiality” was used, but the High Court, in 1986, sought to discourage use of that term.
There is a requirement that the false evidence be relevant to the case at issue.
As regards Mr Coulson, former editor of the News of the World (NotW) at the Sheridan trial how might this requirement of “relevance” apply?
The most authoritative recent statement came from the High Court in 1986, in the Lord Advocate’s Reference No 1 of 1985, cited below, where Lord Emslie stated, “All that is required is that it should be clearly understood that a charge of perjury will not lie unless the evidence alleged to be false was both competent and relevant at the earlier trial, either in proof of the libel or in relation to the credibility of the witness.”
(I have noted my thoughts below as regards how this might affect any prospective perjury case, and have “shown my workings” below that for those interested in a detailed review of the jurisprudence.)
Practical Applications of the Authorities
I have looked above at the specifics of possible perjury charges against Mr Coulson.
There have been conflicting views expressed regarding whether or not his evidence at the Sheridan trial satisfies the “relevance” test.
Perjury cases in Scotland are comparatively rare, but seem to fall into certain distinct categories. Firstly, we have evidence given in a civil case (as indeed was the situation for Mr Sheridan) designed to put forward a false version of events, whether to succeed in a claim or to defeat one. Secondly, there is the situation where a defence witness in a criminal case gives perjured evidence with a view to having the accused acquitted (and the accused can commit perjury himself). Thirdly, there are cases where a Crown witness gives evidence at trial which varies from statements made previously to the police, again with a view to having the accused acquitted.
This case is therefore unusual because of the position of the witnesses. Three witnesses from the NotW gave evidence. Mr Coulson was called by the defence. Mr Wight was, formally, a Crown witness, but in fact only had that role as a courtesy to the defence and as soon as the formalities of Mr Wight’s identification had been dealt with, Mr Sheridan commenced his questioning. Finally Mr Bird was a Crown witness, but his cross examination by Mr Sheridan roamed far and wide, significantly beyond the area where his evidence was investigated by the Crown.
Neither Coulson nor Wight’s evidence had anything, formally, to do with Mr Sheridan’s conviction.
There are cases where the defence will call a witness, let us call him “Smith” for the purpose of blaming them for the crime of which “Jones” is accused. The fact that Smith is not a Crown witness means that his evidence is not needed by the prosecution for the case against Jones to be proved.
Let us assume Smith commits perjury in the witness box by denying he committed the crime. If Jones is acquitted, then that might indicate that the jury did not believe Smith’s denials and so found in favour of Jones. Justice has been done, and it is highly unlikely that Smith would be charged with perjury. Instead Smith might well face prosecution for the offence itself.
If Smith commits perjury, and Jones is convicted anyway, how likely is it that Smith would be charged? There would have to be credible evidence available to show that Smith lied, and by implication, that Jones was innocent. If there was enough evidence to convict Smith for perjury, that would appear to suggest that there was enough to clear Jones’s name on appeal.
In this example therefore there is (a) enough evidence to convict Jones without the testimony of Smith and (b) Smith, if he told the truth, would give evidence which would exonerate Jones.
The Effect on Mr Sheridan
However, with the exception of Mr Bird’s evidence regarding the “McNeilage Tape” none of the three witnesses were giving evidence with direct connection to the charges on which Mr Sheridan was convicted. Imagine for a minute that all three had agreed (which they denied) that the NotW paid “corrupt” police; that the paper had a culture of “phone hacking” and “criminality”; and that Mr Sheridan had been targeted on their instructions by Mr Mulcaire.
Would this have altered what Mr Sheridan was convicted of?
The final indictment put to the jury is linked to here. The jury passed verdicts of guilty on all charges under deletion of paragraphs (n), (N), (o) and (O) (being the Anvar Khan and Katrine Trolle affair charges).
As far as the remaining charges are concerned, there were a number of witnesses who gave evidence against Mr Sheridan. By implication, the jury believed them sufficiently to find him guilty beyond reasonable doubt on some of the charges, but not others.
None of the charges depended on the evidence of the NotW 3. Mr Bird’s role was simply to offer a link in the chain as to how the “McNeilage Tape” got to the NotW and thence to the authorities. Other than that, none of the three witnesses were there to make allegations against Mr Sheridan.
Therefore their evidence was not “relevant” to the case brought to the High Court as regards “proof of the libel”. Was it “relevant” as regards credibility? As has been mentioned above, the effect, in practice, of discrediting the NotW witnesses was almost a matter of PR rather than law. Mr Sheridan, as he had in the original trial in Edinburgh, painted a picture of himself as the principled politician, fighting for the working man, whom the NotW, a symbol of all wrong with capitalism, wanted to destroy by whatever means possible.
If the only witnesses against him had been from the NotW, then the “relevance” of the NotW 3 might well be different, but there were many witnesses against him in connection with the charges of which he was convicted.
The only specific area where there might be an argument regarding relevance, I think, relates to evidence about missing emails, which the defence team had wanted to access. Beyond that, I see little or nothing that could properly be classed as “relevant” as per the analysis of Lord Emslie. That evidence was not given by Mr Coulson.
In addition, the fact that the evidence was heard at the trial, and either not objected to, or any objection being over-ruled, is of no moment here. It is a matter for the judge at any perjury trial to decide on the relevance of the evidence for this purpose. It seems clear that Lord Bracadale, the trial judge, gave Mr Sheridan far more leeway in his defence than he would if counsel had been acting for him. Judges generally give “party litigants” far more latitude than a professional adviser gets, for reasons of fairness. I suspect (though we will never know the answer) that if Mr Sheridan had retained counsel all through the trial, then the questioning of the NotW 3 would have been limited significantly by the judge.
To assist, I offer a further example as to how, in practice, these issues would be dealt with.
Let’s imagine we have Mr Bloggs facing a perjury charge. For now, we will ignore all issues other than the relevance of the charge against him. His legal advisers wish to argue that the alleged falsehood was not relevant to the case in which it was made by him.
As we have seen, this is a legal question, rather than a jury one. In these circumstances the defence for Mr Bloggs would raise a preliminary plea that the charge against him was legally irrelevant (by way of what is known as a “plea to the relevancy”). Confusingly this is not quite the same meaning as “relevant” as regards the allegedly false evidence.
A hearing would take place before trial and, if the judge ruled the allegedly false evidence was not “relevant” to the original case, then Mr Bloggs would be acquitted. If not, then he would later proceed to trial.
Because the matter is raised as a preliminary, the defence can reserve its position about whether or not the statement was false till after the “plea to the relevancy” has been dealt with.
Perjury strikes, as judges have often said, at the heart of the justice system. Witnesses in court must be aware that there are consequences for them if they lie. Witnesses ought not to be feel that they can lie with impunity.
However, the law, as it has been seen in Scotland for over 200 years, is quite clear. If false witness is borne, irrelevant to the case, then this is not perjury.
The Lord Advocate prosecutes in Scotland “for the public interest”. It is generally not seen as being in that interest for the Crown to pursue a case to trial where there are no reasonable prospects of a guilty verdict, even if, politically, it might be seen as advisable to proceed. It would be entirely inappropriate for a prosecution to proceed where political considerations were put ahead of legal ones.
It was my opinion last year, and remains so today, that I have grave doubts as to whether any of the NotW 3, with the exception I have mentioned, can competently face a perjury trial regarding the evidence given at the Sheridan Trial.
Some might view my conclusion that little or nothing in the evidence of the NotW 3 can be classed as “relevant” as in some way giving them carte blanche to have lied. That is not the case at all. I am looking at this whole matter objectively, and have not started from the position of having already decided my conclusion.
From what has been published elsewhere, Mr Coulson may well face court in connection with matters other than his evidence in the Sheridan Trial, but that is a discussion for elsewhere.
Detailed Analysis of the Authorities
Some cases, from time to time, have analysed the Scots law of perjury in recent years, and I will refer specifically to two, one now forgotten, if indeed ever noticed, and the other related to one of Scots Law’s causes celebres.
Aitchison v Simon
The first, which provides a helpful analysis of the historical basis of the crime is Aitchison v Simon 1976 SLT (Sh Ct) 73 where Sheriff S Scott Robinson dealt with a charge of perjury against Mr Simon arising from a trial where a charge of poaching had been laid. Sheriff Robinson considered the history of the crime in detail as he viewed the law as being, to his surprise, one where there was “a considerable measure of uncertainty”.
Sheriff Robinson applied the principles cited below to the case of Mr Simon. He decided that, as Mr Simon was alleged to have been an eyewitness to the events which were the subject of the original trial, his version of events was, of necessity, an important factor ion that trial. The question of his credibility as a witness must have been material to the decision in that trial. Accordingly the charge was a relevant one, and the trial of Mr Simon could proceed.
The law regarding perjury in Scotland can be traced back, as can many parts of the Scottish Criminal Law, to Baron Hume whose Commentaries were published in 1797.
Hume, who was the nephew of the famous philosopher of the same name, stated at i, p369, that the part of the oath which is challenged as false must be pertinent to the point at issue, and be relevant to some substantial facts which influenced the decision in the proceedings where the oath is made. False statements relating to minute or insignificant particulars which are not likely to affect the opinion of the judge of the oath are not to be deemed malicious. “Certainly however it is not meant to be said that a charge of perjury will not lie against a witness who is false in initialibus as one who is so in causa.”
The last sentence refers to the old Scottish practice where a witness was first asked “in initialibus” a series of questions to establish the following: whether he knew the parities; bore ill will to any of them; had received or been promised any reward for what he may say; whether he might lose or gain by the cause; and whether he had been told by any person what to say. If these preliminary questions were answered to the satisfaction of the court, then the witness proceeded to give evidence “in causa” that is, in the case itself.
It should be noted that, where the early writers refer to the “oath” this is in fact what we would now refer to as the sworn testimony.
John Burnett’s “Criminal Law” published in 1811, the year after his death, at i, 206, states that it is not essential in every case that the falsehood challenged be, strictly speaking, material to the matters in issue. “The intent…to falsify may be as manifest in a trivial or collateral circumstance, as in the material fact to which the oath applies; while such apparently trivial circumstance may, from its relation to others, be of substantial importance in the cause…It may be different however with respect to an oath regarding a fact not pertinent or relevant to the issue. In such case, the oath being irregular and incompetent ought not…to be the ground for a prosecution for perjury.”
Sir Archibald Alison published his work on “Criminal Law” in 1832. He states at i, 469, “That it is only essential to perjury that the subject matter of the oath should have commenced with a relevant and competent subject of investigation…It is impossible, too, to say that anything is irrelevant to the question at issue which goes to convict the witness of concealment or falsehood; because the maxim immediately applies, falsum in uno, falso in omnibus, and the witness whole testimony is set aside in consequence of his perjury, even in an inconsiderable particular.”
Lord Justice Clerk MacDonald, as he became later, published “Criminal Law” in 1867. He stated at p 241 that the falsehood charged must be material, being pertinent to the party’s own qualification to make the oath or “credibility in making it.”
Sheriff Robinson then goes on to look at some of the old authorities.
In HMA v Smith 1934 SLT 485, Lord Justice Clerk Aitchison held a perjury charge to be incompetent where the allegedly perjured evidence related to a conversation Smith had had with third parties outwith the presence of the accuse in the original trial. Even though this evidence had not been objected to at the initial trial, LJC Aitchison held that it was in fact evidence which ought not to have been admitted and as such it was incompetent to charge Mr Smith with perjury in relation to it. He considered that Messrs Hume, Burnett, Alison and MacDonald were all in accord in this regard.
In Angus v HMA 1934 SLT 501 Mr Angus appealed having been convicted of suborning perjury in the trail of a woman Ritchie for procuring an abortion upon a Miss Slaven. The case centred upon allegations Mr Angus had, outwith the presence of Ritchie, tried to persuade Miss Slaven to omit reference to himself in connection with her account of how she met Ritchie. Again this evidence was admitted at the original trial without objection. Mr Angus failed to have the verdict overturned. Interestingly, the court had a note of LJC Aitchison’s decision in Smith, but not a reasoned judgement at that stage. They reserved their views thereon.
Lord Blackburn noted that apparent conflict between Hume on one hand and Burnett and Alison on the other, stating, “For my own part…I prefer to views of Alison and Burnett to those of Hume.” He went on,” All I consider it necessary to hold in deciding this case is that, without any doubt, in a charge of procuring abortion, evidence as to how the person operated upon came into communication with the person charged with having procured the abortion is necessarily competent and relevant to the charge at issue.”
The authorities were reviewed by Professor Gerald Gordon who, at p995 of his 1968 text “Criminal Law” expressed the view that evidence touching credibility of a witness will be regarded as a proper subject for a perjury charge unless it is strictly incompetent and should never have been give at all (as in the Smith case). However, as regards materiality he states, “A false statement which is unimportant and trivial and has no bearing on the result of the process in which it is made, does not constitute perjury. Materiality is a question of fact to be decided by reference to the circumstances of each case.”
The Lord Advocate’s Reference No 1 of 1985
We now turn to the second principal case, the Lord Advocate’s Reference No 1 of 1985 1987 SLT 187. This case related to the trial for perjury of a witness at the so-called “Ice Cream Wars” trial . Six men were tried in connection with a vendetta with the Doyle family and the fire which killed six members of the family. Thomas “T C” Campbell and Joe Steele were convicted of murder. In 2004, after a long campaign to clear their names, their convictions were quashed .
The Lord Advocate’s Reference arises from a procedure where after an acquittal, the Lord Advocate could ask the Appeal Court to decide upon a point of law arising from the case, although this did not affect the acquittal of the accused. In this case, a witness “A” at the trial denied making a statement to the police implicating the accused, claiming that the statement was fabricated and that it had been obtained unlawfully. The judge at A’s trial directed the jury that, if they were persuaded that the statement had been obtained unfairly, then it must be treated as inadmissible and therefore any evidence regarding it could not found a charge of perjury and they must acquit. Later the judge, whilst explaining the nature of perjury, told the jurors that the falsehood must be material and relevant to the issue in the proceedings in which the statement was made. He stated that whether the statement was material and relevant was a question of fact for the jury. A was acquitted n one of four charges.
The Lord Advocate, Lord Cameron of Lochbroom, referred two questions of law to the High Court. The first related to whether, where the accused in a perjury case was not an accused in the original trial, it was relevant that a statement made by him and falsely denied under oath was allegedly obtained by unfair means and, secondly and most importantly for our purposes, whether in a trial for perjury the materiality of the false evidence to the issue in the earlier trial is (a) a prerequisite to conviction and in any event (b) a matter of fact to be left to the jury.
The case was heard by Lord Justice General Emslie , Lord Dunpark and Lord Brand.
Lord Emslie issued the opinion, with which his colleagues concurred, deciding that, in relation to the second question, the “materiality” of false evidence to the issue in an earlier trial was a prerequisite to conviction but only insofar as the word material is taken to mean nothing more than “pertinent” or “relevant” and that the question of whether the false evidence was material was not a question of fact for the jury, but was a question of law for the judge to determine.
Lord Emslie pointed out that the trial judge had erred in declaring the materiality and relevance of the falsehood to be a question for the jury. It was, as Sheriff Robinson had held, a question of law for the judge. Lord Emslie noted that the issue for the court in the second question was “whether false testimony which was not only competent and relevant in proof of the substantial facts in the trial (i.e. whether the crime libelled had been committed and if so whether the accused are identified as the perpetrators) must also, in order to amount to perjury, have had a ‘material’ bearing on the result of the trial, and, if so, whether ‘materiality’ in that sense is a question of fact for the jury at the trial for perjury.”
He indicated the problems which would be caused by the question being one for the jury. Prosecutors in the original trial would become more involved as witnesses in perjury cases, and there would be evidence led to argue for and against the evidence being material. He stated, “There will clearly be logical difficulties when the evidence is directed solely to the credibility of a witness who may in the end give no useful evidence against the accused.”
Lord Emslie noted that until 1935, there was no support in the authorities for the proposition that “material” meant anything other than “relevant” or “pertinent”.
The court then reviewed the authorities in the same way as Sheriff Robinson.
Taking the passage from Hume referred to earlier, Lord Emslie indicated that he felt the passage must mean no more “than that the oath which is challenged as false must be pertinent i.e. relevant, to the point at issue in the sense that it relates to some of the substantial facts which may have an influence in the decision (or to the credibility of the witness).”
The reference to “minute or insignificant particulars” he took to be referable to the jury’s right to decide whether the falsehood was wilful and corrupt, and helped indicate circumstances where the Lord Advocate would not elect to institute proceedings for perjury. This, Lord Emslie felt, was entirely on all fours with the passage from Burnett referred to above. He stated that the passage from Alison quoted earlier put the matter “beyond doubt” and the section from MacDonald was in agreement too.
He then referred to Strathern v Burns 1921 SLT 128 where the Lord Justice General, Lord Clyde said “It is quite true that the pertinence or relevancy of the false testimony is necessary to a conviction; but the only matter of fact on which the pertinence or relevancy of the false testimony turns is that it was given in evidence in the course of proceedings in a cause which is sufficiently described in the complaint. Once that fact is established, all that remains is a question of law.” He identified that the “heresy” regarding materiality being a jury question arose from the dictum of Lord Morison in Angus.
Lord Emslie then noted that the passage in Gordon was not supported, in the view of the court, by the authorities cited in relation thereto.
To conclude, Lord Emslie indicated that “in light of all that has been said in my review of the law of perjury since the time of Hume it would be well if the word ‘material’ ceased to be employed in describing the crime. All that is required is that it should be clearly understood that a charge of perjury will not lie unless the evidence alleged to be false was both competent and relevant at the earlier trial, either in proof of the libel or in relation to the credibility of the witness.”