The BBC has reported this morning that the former editor of the News of the World’s Scottish edition has been detained in connection with the perjury trial of former MSP Tommy Sheridan. The report states that Bob Bird is being held on suspicion of attempting to pervert the course of justice over Mr Sheridan’s defamation action against the newspaper in 2006.
Strathclyde Police said a 56-year-old man had been detained in Glasgow.
Officers are investigating allegations of perjury and phone hacking as part of the Operation Rubicon probe.
Of course, Mr Bird has not yet been charged with any offence and, until a court declares otherwise, he is an innocent man.
I have written on this blog before about suggestions that Mr Bird may have committed perjury in the Sheridan criminal trial. An allegation of attempting to pervert the course of justice regarding the original civil case seems rather to have come out of the blue.
What is Operation Rubicon?
Operation Rubicon is the Strathclyde Police enquiry into allegations of phone hacking, breach of data protection and perjury.
Officers from the Major Investigation Teams under the command of the senior investigating officer, Detective Superintendent John McSporran, have been tasked by the Crown Office to examine aspects of the evidence presented during the Tommy Sheridan perjury trial.
In addition, they will examine specific claims of phone hacking and breaches of data protection in Scotland. Strathclyde Police will review the available information and liaise with the Metropolitan Police in relation to any Scottish dimension to their current investigations, and report their findings to the Area Procurator Fiscal at Glasgow.
This was set up in relation to the Sheridan case and the News of the World hacking allegations.
What Is Detention?
Under section 14 as amended of the Criminal Procedure (Scotland) Act 1995:-
Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment, the constable may, for the purpose of facilitating the carrying out of investigations—
(a) into the offence; and
(b) as to whether criminal proceedings should be instigated against the person,
detain that person and take him as quickly as is reasonably practicable to a police station or other premises and may thereafter for that purpose take him to any other place and, subject to the following provisions of this section, the detention may continue at the police station or, as the case may be, the other premises or place.
Normally detention can last no ore than 12 hours and, as a result of the Cadder case there is a right to receive legal advice prior to being questioned under detention.
As the Act makes clear, detention can only occur where the constable “has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment”.
Therefore detention is not a tool used in relation to witnesses, but rather for suspects.
What Is “Attempting to Pervert the Course of Justice”?
That short question gives, sadly, a long answer, which has been, as noted below, the cause for some concern by learned commentators. It primarily appears in the context of criminal cases, although, as here, it can arise in civil matters too.
My comments below are focussed on its appearance in criminal cases, and are general, rather than directed at the specifics of any particular case.
Not everything which might tend to interfere with the administration of justice falls under the heading of a specific crime, such as subornation or perjury. A tendency has arisen in the twentieth century in cases where it is alleged that the course of justice has been interfered with, but where the behaviour complained of does not amount to one of the recognised nominate crimes, to charge attempt to pervert the course of justice. The phrase is vague in that it does not amount to a description of a form of behaviour, but is a description of a tendency of a number of possible forms of behaviour.
For that reason the precise nature of offences which are charged as attempts to pervert the course of justice is not clear: it is not clear whether attempt to pervert the course of justice is an independent crime or whether it is an element in a number of separate crimes. Perhaps what has occurred is that a number of previously innominate crimes have now been joined under one description.
It has been suggested that the lack of clarity both in the definition of the crime of attempt to pervert the course of justice itself and in the relationship between that crime and other crimes against the course of justice make clarification and reform necessary.
Neither Hume, nor Alison, nor Macdonald discloses the offence of attempting to pervert the course of justice as a nominate crime.
Indeed, because there is no record of the crime as a separate offence before the twentieth century,there is a view, as propounded by Gordon on Criminal Law, that the development of attempt to pervert the course of justice as a nominate crime has involved the creation of a new crime of dangerously broad dimensions. Dangerous because what was once a categorisation of a type of crime has become a crime itself without any explicit recognition of this fact by the courts, and dangerous also because of the wide variety of conduct which may constitute this crime so that the mental element becomes decisive.
While there are no reported cases before 1946 where attempt to pervert the course of justice was charged, conspiracy to obstruct or defeat the ends of justice was a recognised charge in the nineteenth century.
In one case, two accused faced two charges, one of fraud with intent to defeat or obstruct the administration of justice, and the other of illegal conspiracy to defeat or obstruct the administration of justice, both aggravated by the fact that justice had in fact been defeated or obstructed. One accused had masqueraded as the other at the latter’s trial for theft, and obtained a not proven verdict.
In another case the accused were charged with separate counts of perjury at the same trial and also with conspiracy to defeat or obstruct the ends of justice and to secure the acquittal of an accused person by means of perjury.
It is only in the twentieth century that attempt to pervert the course of justice has become a recognised offence, and perhaps even a commonplace one, encompassing as it does the giving of a false name to police officers in the course of investigation. The offence was first charged in Scott v HM Advocate on an indictment which on the face of it disclosed facts which could have amounted to attempted subornation of perjury in that the accused was indicted for inducing witnesses to give false evidence at any trial that he might have to face. However, in Dalton v HM Advocate the charge was found relevant where the accused was convicted of inducing a witness, without any reference to possible false evidence at a trial, not to give information to the police who were conducting an investigation.
The crime may consist in any conduct that tends to obstruct or hinder the course of justice. In HM Advocate v Mannion a charge of attempting to defeat the ends of justice was held to be relevant where a person who had not been cited as a witness went into hiding to avoid receiving any such citation.
A wide variety of forms of behaviour has been charged as attempts to pervert the course of justice being any action that tends to prevent justice running its proper course.
It is the large number of disparate forms of activities, some of them virtually indistinguishable from lawful activities, which gives rise to some of the unease about the broad nature of the offence. In HM Advocate v Mannion, Lord Justice-Clerk Thomson stated that:
‘… if a man, with the evil intention of defeating the ends of justice, takes steps to prevent evidence being available, that is a crime by the law of Scotland. Evil intention, of course, is of the essence of the matter and must be established. This indictment clearly narrates the evil intention of the accused to avoid being called upon to give evidence, and that is sufficient to make the indictment relevant’.
Accordingly the offence must be committed intentionally. The accused must have intended that the course of justice should in some way be perverted or defeated, for example by avoiding prosecution or avoiding conviction or obtaining a lesser sentence for himself or another.
Therefore where an accused was charged with attempt to pervert the course of justice by threatening a witness with violence if he gave evidence against him at trial, the conviction was quashed by the High Court where the jury had found the accused guilty of making threats without the intent libelled. The court found that, since not every threat amounts to a crime, unless the intent to pervert the course of justice could be proved the accused had not been guilty of any crime.
The definition of the alleged crime is so wide that there is really no way of knowing in what way the relevant constable has reasonable grounds to believe an offence has been committed by Mr Bird. The Stair Memorial Encyclopaedia lists over 20 different acts which have been treated as falling into the category of an attempt to pervert the course of justice.
As has been the case with this story since the allegations about Mr Sheridan were published many years ago, we await further developments.
Posted by Paul McConville