The Firm Magazine reported on Monday that Tom Watson MP has raised further issues about the Tommy Sheridan trial. He is quoted as saying:-
“It’s now absolutely certain that the judgment is unsound and if Alex Salmond had a shred of decency he would use all the power he has to ensure that this is urgently dealt with.
There have been key revelations about the inadequacies of the original revelations and the methodology used by the executives working for Rupert Murdoch in the Sheridan case.
It’s certain the jury would have reached another verdict if in possession of all the facts and Alex Salmond has to ask the Crown Office to investigate how on earth this case was even brought and why it went to trial.”
As my long time reader will know, I wrote a lot about the Sheridan case last year on this blog, before it became “obsessed” about an SFL3 football team.
Some points arise from the statement quoted above.
“It is now absolutely certain that the judgement is unsound”.
I have not yet seen anything concrete produced by Mr Watson which states in what way the verdict of the jury, who sat through weeks of evidence, was “unsound”. Mr Watson, as far as I am aware, did not attend the full trial. He may have been privy to the records of Mr Aamer Anwar. Mr Anwar was formerly Mr Sheridan’s solicitor. He assisted his ex-client, or more correctly the court, at the trial by acting as amicus curiae once Mr Sheridan had dispensed with the services of Maggie Scott QC. She is now to be elevated to the High Court Bench.
I have relied on the excellent work of James Doleman and his Sheridan Trial Blog, which provides by far the most through, comprehensive and detailed account of the trial.
It is rather presumptuous of Mr Watson to have the certainty he claims in suggesting that the jury verdict was unsound.
The parts of the indictment where the jury convicted Mr Sheridan were primarily unrelated to the evidence of the News International witnesses. As I have mentioned before, only one of them, effectively, was called as a Crown witness.
Mr Sheridan’s appeal against conviction was refused without a hearing on the basis that the grounds argued were unsupportable. Mr Sheridan, it is understood, has applied to the Scottish Criminal Cases Review Commission and has sought their consideration of the case, and the SCCRC might refer the case back to the appeal court.
However none of that shows how the judgement of the jury is now certainly unsound.
“It’s certain the jury would have reached another verdict if in possession of all the facts”
Perhaps oddly I broadly agree with Mr Watson on this point, although not with the confidence he espouses. However, that does not, in my view, make a difference as regards the conviction.
The issue is the relevance of the “facts” he refers to.
It is clear that some people in News International did various things which they ought not to have done, and whether criminal or not (and the process to determine this is ongoing) there were many acts which were reprehensible.
If Mr Sheridan’s trial took place today, or indeed at any time after last summer’s revelations about “phone hacking”, it is likely, in my view, that a jury would not have convicted him. However that would not have been because of the relevant evidence at the trial, but simply that the huge coverage of News International’s failings would have been enough, even subconsciously, to sway sufficient jurors for there not to be a conviction.
Where a party to a case (although technically News International was not “party” to the criminal trial) has a blackened reputation, then it would be human nature for jurors, despite the best directions of the trial judge, possibly to be influenced by this.
That does not mean that the verdict would have been a unanimous “not guilty” after five minutes’ consideration, but instead that there would have been enough of an effect to change the necessary couple of votes to not proven or not guilty.
The problem is, as has been recognised by the High Court in refusing the appeal at both sifts, that the evidence of the wrongs of News International was almost wholly irrelevant to the charges faced by Mr Sheridan.
Therefore, whilst I think it is right that a trial today would arrive at a different verdict, that does not affect the safety of the conviction.
“Alex Salmond has to ask the Crown Office to investigate how on earth this case was even brought and why it went to trial”
One of the issues in this case, which seems to be forgotten from time to time, is that the case arose as a result of Mr Sheridan pursuing a claim for damages and being awarded £200,000. The judge who presided at that case was so concerned by the evidence he heard that he referred the matter for investigation.
If Mr Sheridan had lost his civil claim, there would not have been a perjury case brought against him (you see I can be certain too). However, he won.
Where a judge refers a case for investigation, as happened here, Crown Office will pay a great deal of attention to it, and rightly so. That does not mean that Crown Office will pursue a prosecution simply because a judge suggests a matter be investigated, but the case will have more than a cursory glance.
It seems to be Mr Watson’s position that the case ought not to have been raised, never mind tried, because there were some rotten apples in Wapping. If the criminal justice system is to be based on the morality or criminality of the alleged victim, as seems to be his suggestion, then there are great many areas where this would alter how the law deals with cases. I suspect however that is not in fact Mr Watson’s view.
It also seems a little unfair to Mr Salmond to be roping him into this!
If there is an investigation, who should conduct it?
It was reported today that the Scottish Government said ministers would not personally intervene over Mr Sheridan’s conviction, but said that any concerns about a case “could be taken up with the administration’s top law officer, Lord Advocate Frank Mulholland”.
Professor Black said “For the Scottish Government to suggest to concerned citizens that their remedy is to ask the Crown Office to conduct an investigation into misconduct in a criminal investigation and prosecution when the Crown Office is now headed, not by independent lawyers brought in from private practice, but by career civil servants from that very office, is nothing short of risible”.
Now Mr Watson is calling upon the First Minister to ask Crown Office to investigate Crown Office. As Professor Black has commented previously, when the Lord Advocate and Solicitor General were appointed from the Bar, and the posts had not become the top of the career ladder in the Crown Office and Fiscal Service, as they now seem to be, that might have made sense. The independence of the Law Officers, both from Government and from their own prosecution service were guarantees, as far as such can be guaranteed, that the question of the public interest in prosecuting was always at the forefront of the mind, rather than any more partisan motive.
Now, with career prosecutors as Lord Advocate and Solicitor-General (and this is not intended to be a slight on either of them, as they are both very experienced and highly capable lawyers) the phrase that comes to mind is that of CLR James in “Beyond a Boundary”.
“What do they know of cricket who only cricket know?”
In the same way, as regards the Law Officers, what do they know of prosecution, who only prosecution know?
The “independence” of the prosecution service in Scotland is a much wider question than I will deal with in this post, but I entirely agree with the learned Professor here.
Should there be an investigation at all?
Dealing with the merits of the call by Mr Watson however, why should there be an investigation? There is a review process open to Mr Sheridan, through which he is proceeding. There remains the possibility that the case could end up back at a re-trial.
More likely, if the issue is to go back to court, is a re-hearing of the original civil case. That has been delayed pending further progress in the criminal prosecutions arising from News International.
However, it is perfectly possible that the cases could end up with Mr Sheridan still winning his defamation case, even after a re-trial, but having his conviction remain in place. That is because the two cases, whilst standing on similar foundations, were not on identical issues.
Having an inquiry into why there was a case brought seems to me to be (a) unnecessary (b) a foregone conclusion (for the right reasons) (c) a waste of money and (d) even if none of the above, premature.
Mr Watson has done sterling work in connection with his pursuit of News International, both in the media and on the Culture Select Committee.
He does however appear to have taken the view that, by definition, anyone in dispute with Rupert Murdoch is by definition right.
Mr Sheridan was the author of his own misfortune.
He attended the now infamous “Cupids”.
He chose to sue the News of the World.
He asked his colleagues to lie to support him.
He fought his case so eloquently that he won.
At every step of the way he could have abandoned the fight.
His supporters claim, as does Mr Sheridan himself, that he was victim of a Murdoch-led conspiracy to do him down. Professor Gregor Gall, in his excellent “From Hero to Zero” lays that myth to rest.
Tommy Sheridan’s conviction will remain a cause celebre for many years, always linked to the demise of the News of the World in the public eye. The perception is being raised that he must have been wrongly convicted because of the iniquities of Wapping.
However Mr Watson’s continued pursuit of the matter seems to be missing a huge number of points, and ultimately distracts from what has been his core message over recent years, namely that the reprehensible things were done in the name of News of the World.
Of far greater importance for Scotland is the point made by Professor Black which I have quoted, dealing with the independence of the Law Officers. One cannot expect Mr Watson, an MP for an English constituency, to be beating that drum, but it is an issue which, apart from a few honourable exceptions like Professor Black and Ian Hamilton QC, seems to be of no moment. That is wrong.
Posted by Paul McConville