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!
Random Thoughts Re Scots Law by Paul McConville 