Category Archives: Criminal Appeals

Tom Watson MP Declares Tommy Sheridan’s Conviction for Perjury Unsafe – He is Wrong

 

Yesterday saw publication of the DCMS Report on phone hacking at News International. Tom Watson MP has been a vigorous investigator in these matters for which he deserves credit. However, according to Louise Mensch MP, he managed to break the committee on party lines by inserting a line about Mr Murdoch not being “a fit and proper person”. This was despite the fact that such a conclusion seems to have been outwith the terms of reference of the Committee. However, as Parliament is sovereign, it can reach such a conclusion, if it wishes.

Mr Watson has championed the cause of Tommy Sheridan. The former MSP was gaoled for perjury committed in his successful damages action against News International.

Mr Watson was again manning the ramparts for Mr Sheridan yesterday, declaring that the details uncovered by his Committee made the conviction unsafe. He can be found discussing the matter in detail here.

It might be fair to say that, if the Sheridan Trial took place today, the odious conduct of some of the News of the World staff might persuade a jury to acquit, but, BASED ON THE EVIDENCE given to the trial court, such a verdict would not accord with the evidence.

Mr Sheridan’s appeal against conviction was rejected as unsustainable by the Appeal Court without a full hearing.

I have previously written, at some length, about the Sheridan case, and the potential implications for (a) the trial verdict and (b) possible prosecution of witnesses at the trial itself for alleged perjury.

My “compendium” of pieces can be found here.

I would also heartily recommend the excellent analysis by the Lallands Peat Worrier, which can be found here.

LPW titled his piece, written in August 2011, “A numpty’s guide to appealing Tommy Sheridan’s conviction… “

Read it in detail, but his conclusion makes the position clear.

“In the absence of emails drafted in the hypothetical, fundamentally incriminating terms I describe, I struggle to see that the High Court will be moved to overturn the jury’s decision.  Similarly, if … alleged perjury is limited to the general unlawful practices of employees at the News of the World, and his knowledge of them, how does that impact on the critical issues of the Sheridan trial, concerning swingers clubs, his confessions to his colleagues and his lies about both in Court? These are the questions which Sheridan’s representatives will have to work up persuasive answers to, if their client is to see his conviction quashed on grounds of new evidence. As the Lord Justice General noted, setting aside the verdict of a jury is no light matter. And on these tests, convincing the High Court to overturn Sheridan’s conviction may be a very tall order indeed, despite alleged perjury, despite absent emails, whatever Tom Watson believes.”

As former Law Society of Scotland President Ian Smart, tweeting in his personal rather than ex officio capacity, commented last night, and I paraphrase “How does alleged perjury by defence witnesses help an accused overturn his conviction?”

Mr Sheridan, as detailed in Gregor Gall’s excellent book “Tommy Sheridan: From Hero to Zero” was convicted because of mistakes he made. Even if he became a target for the NotW, this was because of his own actions. Whilst the NotW has died as a result of phone hacking, nothing revealed so far casts, in my view, any doubt upon the jury’s verdict against Mr Sheridan.

It looks as if Mr Watson has not followed LPW’s advice from last August “However, we can be absolutely clear that Tom Watson MP is quite wrong in law to suggest that the absence of these emails by itself makes the case’s outcome fundamentally questionable. Watson may hold that view, but the High Court of Justiciary certainly won’t sympathise.”

 

Posted by Paul McConville

 

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HMA v Angus Sinclair – Double Jeopardy and the World’s End Murders

I am delighted to have seen that the Lallands Peat Worrier has written about the problems the possible new prosecution of Mr Sinclair will face in relation to the above notorious case. As always, he makes his points succinctly and clearly (qualities which from time to time fail me). I will therefore not bother with the 5,000 words I was planning, but instead would commend LPW’s article to you.

His post starts:-

“Only a numpty would fail to discern the semantic difference. Contrast the phrase: “we are investigating the possibility of a retrial” and “a retrial will definitely happen”. The first formulation certainly suggests serious-minded application – a searching search rather than a dawdling, half-hearted intention to review an acquittal – but for the Scotsman to headline yesterday’s developments in this morning’s paper as “World’s End murders accused set for retrial” is appallingly irresponsible.”

Put shortly, I agree with his points regarding the hurdles the case faces in connection with getting over the hurdles of overturning the acquittal.

It is interesting that, even though the Scottish Law Commission recommended abolotion of the “double jeopardy” rule, they did not suggest making the change of retrospecyive effect.

However the SNP Executive decided to ignore that recommendation, and to make the legislation retrospective. There are major legal issues about retrospective legislation in criminal matters, and as is often the situation it appeared that that provision was brought in specifically to deal with one particular case.

It is rare in my experience that legislation introduced with one case directly as its target achieves its purpose – after all, the new law applies to all cases, not just the cause celebre du jour.

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Back in the days when commenting on issues of the day involved sending a letter to a newspaper, I did so in relation to this case.

My letter, published in the Herald on 13th September 2007, was in response to Ian Bell’s piece the previous day. Titled “When a legal system loses public respect” Mr Bell made a number of points about how, to the outside observer, the decision of Lord Clarke seemed perverse.

He ended by saying:-

“The authority of any legal system depends on the respect it commands. This does not mean that every decision has to be popular. It does mean that decisions should be comprehensible. Sinclair’s guilt for the murders of Christine Eadie and Helen Scott has not been proven. What you or I happen to believe is, like it or not, of no account. Just as important, however, is the fact that vast doubts still hang over Sinclair’s innocence. The old formula does not apply.

Confidence in the courts and the Crown Office has been undermined badly. Neither institution is entitled to behave as though the fact is of no account in its august proceedings. The public, whom justice serves, has been insulted. What might we do about that?” Continue reading

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The Tommy Sheridan Compendium – Perjury, News of the World, Hackgate and Coulson

I realised that, over the last few weeks, I have posted the odd piece about the trial of Tommy Sheridan and the News of the World related fallout.

I thought it would help my readers (both of them) if I listed the posts, with links, and a brief comment on each.

This story is a long way from ended, and I will update this post as necessary.

For the full story of the trial of Tommy Sheridan, I can do no better than to recommend the excellent Sheridan Trial Blog, compiled by James Doleman. James was able to give far more detailed coverage than any mainstream media outlets, and reported what took place in court without having his personal views, whatever they might have been, affect his narrative of the case.

James has contributed further work to the ever expanding Internet store of Sheridanalia at his new site.

I can also recommend heartily the Lallands Peat Worrier  who has been following the case for far longer than I have, and whose insights are always thought provoking, assiduously researched and elegantly drafted.

Finally Love and Garbage has been the source of much knowledge, insight and humour regarding the long process which has brought us to where we are, and he too I would commend to you.

News of the World Hackgate and the Police Investigation – Part 1

The Tommy Sheridan saga has proceeded now for many years. From the heights of the election of the Scottish Socialist Party MSP’s, led by Tommy Sheridan, to Holyrood, to the depths of him being led away to serve his prison sentence for perjury.

Whilst the issue was always very prominent in Scotland, wider UK interest was provoked by the scandalous revelations concerning the News of the World, which led to its closure.

This first piece addressed the evidence of DCS Phil Williams of the Metropolitan Police, who gave the High Court evidence about Operation Caryatid, which resulted in the convictions of Glenn Mulcaire and Clive Goodman. DCS Williams’ evidence regarding the investigation, and what the police did, and more particularly did not, do seems even more concerning than it did at the time I write about it. Quite how the police managed to investigate so few people, in light of what we now know of what there was by way of evidence, remains baffling.

The testimony of former Metropolitan Police officers like Andy Hayman and John Yates before the Home Affairs Select Committee did not answer the questions as to why the initial investigation seemed so ham-fisted.

Frankly DCS Williams’ evidence had little to do with the Sheridan trial, and falls within the wide category of evidence which, if Mr Sheridan had been represented, would not have been permitted by the judge as being irrelevant.

I followed up with a “triple-decker”. This was prompted by speculation about possible perjury investigations into certain witnesses in Tommy Sheridan’s trial, and by implication these were going to be the News of the World witnesses, Andy Coulson, Douglas Wight and Bob Bird. All of the parties in connection with whom it is understood there is the ongoing investigation made clear I court that they were telling the truth and, I am sure, would vigorously deny any such allegations.

I thought it helpful to go through, in as much detail as I could, the testimony of the witnesses and see whether or not there might be cases against any or all of them for perjury.

Andy Coulson, the News of the World, Tommy Sheridan and Perjury

I started with Mr Coulson. As I explained in this post, and further later, in my view, I thought it unlikely that Mr Coulson would ever face a perjury charge in connection with his evidence in this case.

One of the various reasons for this is that Mr Sheridan was not able to question witnesses with the forensic specificity which would have pinned down the witnesses such as Mr Coulson with answers which could be assessed clearly and where there was no dubiety as to what the witness was saying and meaning.

The News of The World, Tommy Sheridan and Perjury?

As with Mr Coulson, I did not foresee any real likelihood that Mr Wight would face perjury charges either.

The News of the World, Andy Coulson, Tommy Sheridan and Perjury? – Part 3 Bob Bird in the Dock?

As regards Mr Bird, he seemed, from what had been made public, to be in greatest danger of investigation in connection with the maters raised. This seemed primarily to relate to his evidence about News of the World e-mails which he told the court had been lost in transit to India.
It later transpired that the e-mails had never been sent to India at all. Bearing in mind that Mr Sheridan’s defence team had been looking for access to them in connection with his defence, the incorrect evidence he gave may suggest that there could have been an attempt to interfere with the course of justice, if not perjury itself.

News of the World, Hackgate and the Police Investigation – Part 2

By this stage, Messrs Yates and Hayman had given evidence to the Select Committee and the Metropolitan Police Commissioner had resigned. It was being laid bare how poor and inept the original inquiry had been.

As I concluded ” Whether this “blind eye” approach was anything more sinister than simple incompetence will, hopefully, be addressed by one of the myriad of inquiries which seem to sprouting daily in connection with these matters.

What seems clear is that the police wanted little or nothing to do with this investigation – it was downplayed as much as possible – the bare minimum action was taken, and the whole sorry mess can be summed up by the picture of Mr Mulcaire’s 11,000 pages of notes lying in plastic bags in a Scotland Yard store room for four years, uncatalogued and ignored.”

Sheridan, Coulson and James Murdoch – Lessons from Barry Bonds and Roger Clemens?

I am a great fan of baseball, and over the last few years there has been an enormous explosion of interest in the use of performance enhancing drugs in the sport, and the attempts to stamp this out.

Two of the biggest names in the sport, Barry Bonds and Roger Clemens, have found themselves sitting in criminal courts facing perjury charges.

I thought that it would be interesting to see if there were any lessons that could be learned from either case as far as any potential perjury case might be concerned regarding witnesses in the Sheridan trial.

I feel (though I am biased as I wrote it) that there are a number of parallels and thus areas where we might gain a better ides as to how matters might progress domestically.

The Sheridan Trial Investigation – What Is Perjury and What Isn’t?

By this stage, there was a lot of discussion about the possibilities of court proceedings. One of the topics being raised was the suggestion by some that if it was shown that the NotW witnesses had lied about anything then (a) this was perjury and (b) Tommy Sheridan had been wrongfully convicted.
I tried in this post to explain the legal requirements for a perjury charge and how it was possible to tell lies in court and not commit perjury. This meant that there is quite a lot of law in this piece, by way of me “showing my workings” © Lallands Peat Worrier.

Tommy Sheridan’s Appeal – What Happened and Where Now?

By now the news had broken that Mr Sheridan’s appeal had been refused at the “sift” stage. This meant that he would not be granted an appeal hearing, because his ground or grounds of appeal were not felt to be arguable.

I wanted to give an indication as to why this might have been determined, and what options remained open to him.

I also wanted to clarify why the request by the defence to have the time for the appeal extended had failed.

Tommy Sheridan and the “McNeilage Tape”

One of the particularly striking pieces of evidence in the case was the “McNeilage Tape”. Whilst the authenticity of this had been questioned at the trail, neither party led any expert evidence to either confirm that the tape was genuine, or to refute that.

There have been various theories suggested as to why this was the case, and I thought it useful to look at these, and the implications of the Cadder case for the testing of the video tape.

Yet More Thoughts Re Sheridan, Perjury and the News of the World

One of my readers had taken the time and trouble to prepare a detailed comment regarding various of the issues in connection with the case. I felt this would be a good way of giving my thoughts, views and arguments regarding various points in connection with the case, rather than engaging with limited specific issues as I had done before.

Hopefully my comments provide some additional clarification of what is an extremely complicated situation. I am very much appreciative of Joseph Syme’s time in preparing his thoughts. As those provided an excellent template within which my answers would fit.

There remain many issues concerning this matter. The narrow issues of Mr Sheridan’s trail and the appeal by the NotW against his £200,000 award on one hand, and the wider factors surrounding phone hacking, and the iniquities of the NotW together with perhaps the rest of Fleet Street will all require further analysis and clarification.

I hope to be able to shed some light on these issues in future posts, and I am always happy for readers to contribute with their own thoughts.

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Yet More Thoughts Re Sheridan, Perjury and the News of the World

Below is a lengthy comment from reader Joseph Syme  which I felt deserved its own post, and my thanks go to Mr Syme for his detailed views, and my further comments in response which are in italics.

 

JS – 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.

PMcC – Now online here

 

JS – 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.

PMcC – In recent years there have been various cases where the reputation of Scots Law, which for many years was justifiably high, has been damaged. I don’t think that the Sheridan case is yet one of them, although I can see how it might become so. I don’t think anyone involved in the legal system should be complacent about the problems it has, and most are not.

Dealing with the specifics you mention, some of the matters you raise are commonplace. Courtroom mud-slinging is almost obligatory (!), although in the Sheridan case the personal nature of the disputes seems to have boiled over from time to time. Deletions from the indictment are common in a High Court case and indeed the prosecutor has a duty to the court to remove matters which he thinks can no longer be proved. In addition, in serious cases such as murder, there might be a variety of charges accompanying the main charge, and these are left in the indictment to allow evidence to be led about them, but often, just before the case goes to the jury, the prosecutor will drop all but the murder charge, so as to “simplify” matters for the jury. After all, if the accused is convicted of murder any additional conviction for breach of the peace will make no difference to their sentence.

As regards perjury, we have here a “disconnect” between what the public perceives and what the law is. As I have mentioned before, false evidence does not become perjury unless it is, in law, relevant to the case before the court. I am not aware of anyone being charged with perjury since the Sheridan trial, although there may be charges in the future. It is true to say though that many people charged with a variety of offences never see the inside of a court room, as the Procurator Fiscal or Crown Office decide not to proceed.

Conspiracy is notoriously difficult to prove, and is suspected far more, I think, than it actually occurs.

The NotW paid witnesses. There is no dispute about that. However, as I understand the time line, this was not once criminal proceedings against Tommy Sheridan became “live”. Newspapers pay for stories. The fact of payment being made to witnesses is important, as long as it is disclosed. In contrast see the mess arising from the payment of a “reward” to Mr Gauci, the vital witness in the Lockerbie case.

Just because the NotW has closed due to apparent illegality by its staff, this does not establish that, IN THIS CASE, there was such illegality.

Finally, as regards the police investigation, if you are referring to the one involving Tommy Sheridan, this was “successful” in that he was convicted. There might have been incidents that were inappropriate, but that inquiry did what Crown Office asked it to do. As regards the new investigation, we need to see where this goes. As you will know, it is up to the Procurator Fiscal/Crown Office to decide whether or not to proceed, rather than the police. It is their job simply to investigate and report and substantial resources are being devoted to that just now.  

 

JS – 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.

PMcC – Everyone is entitled to their opinion about each case, and to have suspicions about the actions or motives of the various people involved. I am sure that one of the reasons why the NotW lost the first case was that the jury, or at least some of them, had a low opinion of the NotW. No-one thought, even before the most recent scandal, that we were dealing with the Beano here!

Political disputes can become horribly vindictive, whether on left or right. Here the SSP had the problem of being roped into the bourgeois Court process by one of their own, and they were forced to turn somersaults in deciding whether to obey “the law” or, on a  principled basis, stand up to the system and become martyrs.

 

JS – 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.

PMcC – I think you are right in saying that money was not the motive for the original case. But that’s all the court can award. Going to court seeking nothing other than a verdict in one’s favour is not possible. Technically the NotW doesn’t owe the money until the appeal is disposed of (and I have some thoughts near completion regarding the civil appeal – keep watching!).

From a political stance, as I have mentioned on this blog before, I don’t think Tommy Sheridan stood to lose much by NOT suing. He would have sickened some of his supporters, but to others it would simply have bolstered his “Jack the Lad” perm-tanned profile. Behind closed doors however, we don’t know what marital or family pressures there were, and whether in fact the court case was pursed for those reasons. If Tommy had lost at the original heading, he could have stood outside Parliament House and complained that the “common man” could not get a result in the “capitalist” courts, and this would have been endorsed as an opinuion by many. Instead he won, and in the massive sum of £200,000 as well. I can well imagine the disgust in the NotW at that result when they had proof, as they saw it, of the allegations (or at least some of them). And as to the suggestion it was a conspiracy to destroy him, well it was not the NotW which sued Tommy Sheridan.

Max Mosley is a different kettle of fish in many ways. His action succeeded because the paper had breached his rights to a private life. His was not a libel or defamation case. The truth of the allegations, other than the Nazi accusations, was not really part of the case. Instead it was about whether the public had any legitimate interest in these matters, as opposed to a prurient one.

 

JS – 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 realize 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.

PMcC – Rather than suggesting that there was collusion between the various parties, I think it can correctly be said that there might have been various parties whose interests co-incised. For example, the NotW did not want to have to pay £200,000 in damages to a man they KNEW was lying (although in 2006 they were not in position to prove this). The SSP had split over the matter, not of policy, but of Tommy Sheridan, The “cult of personality” was seen by those remaining in the SSP as harmful to the Socialist struggle in Scotland. If Tommy Sheridan had lost the initial case, then this might have given the remaining SSP members time to get him out of the party, with infinitely less indignity for the party than there turned out to be.

The SFA/Jim Farry issue is proof that sometimes there is a deep-seated plan behind what seem to be, at first, random accusations of conspiracy. But, as in the Farry case, establishing this is very difficult.

I think that, if either the original trial had gone against him, or he had received only a nominal award, the matter might have ended there. However the damages were of such magnitude, far more than many injury victims would be awarded, that it was understandable that the NotW would challenge the verdict, primarily because such an award in Scotland would significantly have raised the bar for defamation awards in the future. The NotW could afford the sum in this case, but not if it regularly lost that amount in the Scottish courts.     

As far as witnesses are concerned, generally they are not “independent” simply because people involved in a dispute or incident are most likely to be the ones there. Even though some people may have had an axe to grind with Tommy Sheridan, that does not automatically render their testimony valueless. If only “unconnected” witnesses had given evidence at the High Court, then the trial would have lasted days, not months!

 

JS – 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.

PMcC – There is no doubt the Mr McBride would have been better presenting the defence case than Tommy Sheridan was. After all, he is a vastly experienced QC! However, the defence case started with an eminent QC, Maggie Scott, instructed. Unlike in the civil trial, when an apparent blunder by Sheridan’s legal team caused him to dispense with their services, there was nothing in this case which, on the surface precipitated her sacking.

That leads me to believe one of two possibilities. Either it was Sheridan’s intention all along to sack counsel and defend himself, on the basis that his oratory would sway the jury (as had already happened in Edinburgh) and that he would be seen as the “common man” standing up to the massive NotW or his QC was not prepared to pursue one or more of the lines of defence Sheridan had suggested. Counsel have a duty to their client of course, but also a duty to the court, and in a legally aided case, to the Scottish Legal Aid Board. If they feel they are being called upon to act in breach of their duties, and the client insists, then they must withdraw. If Mr McBride had been acting for Sheridan, rather than for Gail, then it may very well be the case that the same decisions, whether that of Sheridan to dispense with counsel, or by counsel to withdraw, would have been taken.   

Mr Anwar of course remained at Sheridan’s side through the trial, I understand in the capacity of “friend of the court” rather than, strictly, his solicitor, on the basis, as I understand matters, that once counsel was no longer acting, there would be no cover for Mr Anwar’s fees directly through the Scottish Legal Aid Board. Mr Anwar too is a lawyer of expertise and experience and therefore one might assume that, notwithstanding the excellent advice he would have been receiving, Mr Sheridan decided he knew best and ignored the help, or at least some of it, that he was getting.

As I have commented before, it is clear that Lord Bracadale gave Mr Sheridan a huge amount of latitude, as a party litigant, which would not have bee given to counsel acting for him. Much of the cross-examination of Messrs Coulson, Bird and Wight, for example, was totally irrelevant, in the legal sense, to the crimes for which the trial was taking place. The prosecutor had numerous objections repelled, many of which would have been upheld if counsel for Mr Sheridan had been asking them, rather than the accused himself.

 

JS – 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.

PMcC – As was commented on by the Lallands Peat Worrier  Mr Watson’s comments about the conviction are unhelpful, in that he failed to identify any way in which, legally, that was the case. Mr Coulson, for example, was a defence witness, as was, effectively, Mr Wight. Their testimony had nothing to do with the conviction, and the wide cross examination of them, as mentioned above, was irrelevant to the case, though not to Mr Sheridan’s feelings about the good conduct of the NotW.

As I mentioned above, I have thoughts about the civil appeal, but once the McNeilage Tape came into the hands of the NotW the matter had to go to the police. If the NotW had kept it from the police and produced it at the appeal, then I am certain that the Appeal Court would have suspended the appeal and referred the matter to the police themselves.

 

JS – 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 McCombe’s book to show exactly what a shady organisation he is up against, and then there’s the NotW.

PMcC – The future? The gaol sentence will be served. There may, or may not, be any criminal action against witnesses who testified in the case. Suggestions of police corruption are always of concern, but any such alleged collusion had nothing to do with the conviction in this case.

The likelihood is that, with the ongoing police investigations, the NotW appeal and the possibility that Mr Anwar will refer the conviction to the Scottish Criminal Cases Review Commission, the case of Her Majesty’s Advocate v Sheridan will remain a rich source for comment and speculation for several years to come!

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Tommy Sheridan’s Appeal – What Happened and Where Now?


 

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?”

 

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