Category Archives: News Of The World

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

Some Essential Elements of Perjury

In light of the recent announcement by the Crown Office in Edinburgh that, amongst other matters, the evidence of certain witnesses at the trial of Tommy Sheridan last year is to be investigated, 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.

On the hypothesis that it is the witnesses from the News of the World (NotW) at the Sheridan trial who are being investigated (and all three of them maintain their innocence) 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 before at the specifics of possible perjury charges against the three NotW witnesses, Messrs Coulson, Wight and Bird.

There have been conflicting views expressed regarding whether or not their 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. 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.

 

An Example

There are cases where the defence will call a witness, let’s 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’s 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

But, 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 Mr Bird and the evidence he gave 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.

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.

 

Procedure

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 other issue 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.

 

Conclusion

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.

For those reasons, 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.

 

Postscript

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.

Clearly, from what has been publicised already, 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 eye-witness 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.”

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

What, allegedly, connects the former Director of Communications at 10 Downing Street, the former leader of the Scottish Socialist Party, the all time home run leader in Major League Baseball, the man hailed as possibly the best pitcher ever to play baseball and one of the leaders of probably the world’s biggest media conglomerates? I hope to answer this conundrum below.

 

Problems with Perjury Cases

It is probably the case that perjury is the important crime most committed, but least prosecuted.

Perjury, to be clear, is, in the law of Scotland, 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 requires to be proof beyond reasonable doubt that the statement or statements are false and that they are made wilfully and there requires to be evidence from at least two sources.

As Alistair Bonnington, former solicitor for BBC Scotland put it in an article  after Tommy Sheridan succeeded in his damages claim against News International in 2006, “Traditionally, we have very few perjury persecutions in Scotland – despite the fact that an application of elementary logic tells you that perjury must be committed every day in almost every court in Scotland in criminal trials.”

Despite this, prosecutions for perjury are remarkably rare, not because it is an unimportant matter, indeed quite the reverse, but because (a) proof beyond reasonable doubt of the charge might be difficult and (b) if an accused person has already been convicted and sentenced, then there might be little or no “public interest” in a further prosecution for perjury. In Scotland the Lord Advocate and Procurator Fiscal prosecute “for the public interest”.

It is far more common to see witnesses, especially in the High Court, punished for contempt for prevarication when, miraculously, all memory of an incident disappears from their mind just as they take the oath in the witness box. Unfortunately, for them, they will often have given a signed statement to the police in the aftermath of the incident, thus rendering their loss of memory less “useful” than it might otherwise have been.

The courts make it clear to witnesses that a wilful failure to answer properly will be met with a couple of hours in the cells “to consider one’s position” and if the witness fails to “purge their contempt” then an appearance before the judge at the case’s conclusion for punishment awaits.

Perjury cases are far rarer, in part because they cannot be dealt with in the same summary way as prevarication.

If suspected perjured evidence results in an acquittal, then a prosecution might be brought, although this would need to be more than an attempt to re-try the original case by other means.

In a civil case, if perjured evidence is advanced to advance a claim, then, depending on the result, the course of justice requires that steps are taken to maintain the dignity of the courts.

It is clearly more serious to invent evidence than simply to answer “yes”, when the true reply is “no”.

 

HMA V Sheridan

 

Perjury is a hot topic in Scotland just now. Tommy Sheridan, the charismatic former Scottish Socialist Party leader and former Member of the Scottish Parliament, was successful in 2006 at the Court of Session in Edinburgh in suing News International, publishers of the News of the World (NotW) for defamation in connection with allegations about his private life. News International is part of the Rupert and James Murdoch empire. Sheridan was awarded £200,000 damages by the jury. This was hailed as a triumph for the working man over the evil press barons.

Four years later Mr Sheridan found himself in the dock at the High Court in Glasgow, charged along with his wife with committing perjury in the original trial. After a lengthy hearing, he was found guilty on certain of the charges and sentenced to three years in prison.

Recent publicity suggest that he has been refused leave to appeal against his conviction, but that he is seeking leave from a second panel of judges, as is normal procedure in the “sifting” process.

In July 2011, following upon the tide of allegations about Andy Coulson (Prime Minister Cameron’s former Director of Communications and former NotW editor) and the NotW “hacking” phones, the Crown Office announced that they had asked Strathclyde Police to look into various matters, including the evidence of certain of the witnesses at Tommy Sheridan’s criminal trial.

It is understood that these witnesses are Mr Coulson, Bob Bird, former Scottish Editor of the NotW and Douglas Wight, one of the NotW reporters involved in the reporting of the story. I have commented at length as linked above re each witness’ evidence. My source material is the excellent Sheridan Trial Blog prepared by the indefatigable James Doleman.

As matters stand, no-one has been charged in connection with this matter and all parties mentioned above maintain their innocence.

Mr Sheridan’s cases are exactly the rare proceedings where perjury proceedings are likely.

The jury at the High Court found that Mr Sheridan had lied about certain specific matters in his earlier evidence. It was not simply that he answered “no” when he should have said “yes” but instead that an alternate reality was created by him and put before the court, successfully as it turned out. I suspect that if he had lost his original claim for damages, no prosecution for perjury would have taken place.

As a comparison, Jeffrey Archer, former Deputy Chairman of the Conservative Party, and best-selling writer, succeeded in his libel claim against the Daily Star in 1987, but when it was suggested that he had asked one of his friends to go along with an “alibi” Archer was creating, he found himself in the dock at the Old Bailey in 2001, and after being convicted of perjury and attempting to pervert the course of justice, he was gaoled for four years.

It is now being suggested that, in light of the scandals surrounding the NotW, phone hacking, payments to police officers and “missing” emails, there might be further perjury charges in connection with the criminal trial of Tommy Sheridan.

 

Before looking at the issues such a case might raise, I think it is helpful to look across the Atlantic, to the recent perjury trials of two of the most famous baseball players of all time, Barry Bonds and Roger Clemens. Both of them have been tried on charges of perjury and associated offences with differing results.

I make no claim to knowledge of the US system of justice, so have based what I say upon the sterling work of Craig Calcaterra, a former practising attorney, who has escaped from the law courts to be a writer for NBC about baseball (yes, that is jealousy you can hear as you read that). He has written extensively about these cases, most recently at “Hardball Talk” but he wrote at length about them before. Following Bonds’ indictment he analysed the case here.

 

USA v Barry Bonds

 

 

Barry Bonds is the all time leader in home runs in baseball. He passed Babe Ruth and then Hank Aaron. The home run king is a long lauded role in the USA. However, outside San Francisco, where he played for many years, few hold Bonds in affection. He was always a great player but after the excitement of 1998 when Mark McGwire and Sammy Sosa “saved baseball” by racing all summer to break the single season home run record, and thus achieving nationwide fame, respect and fortune, Bonds decided that being one of the best was not good enough. He needed to be the best.

Various books, including “Game of Shadows” by Jeff Pearlman, allege that Bonds took advantage of the absence of a drug testing programme in baseball to use steroids from the BALCO laboratory to give him even more strength and stamina. Bonds went on hitting home runs at a rate for his age never seen before, till finally he overtook Hank Aaron. In doing so however, he came across as charmless and egotistical, and was disliked, if not hated, by fans all round the US.

But the seeds of Bonds’ downfall had already been sown.

The US government, in attempting to stamp out illegal drug use in sports, had taken great interest in BALCO. The owner, Victor Conte, ended up in gaol, and several of his clients, including former Olympic gold medal athletes, ended up there too, whether for fraud or impeding the investigation. Bonds, as a suspected BALCO client, was called to testify before a grand jury investigating BALCO. His answers were felt to be misleading, vague, obstructive and prevaricating, and he was in due course charged with perjury.

The legal process ground on and on before finally Bonds went to trial this year. He was acquitted of all perjury charges but found guilty of obstruction of justice in connection with the answers he gave to one set of questions.

As Craig Calcaterra identifies, and this has a bearing, I think, in connection with any case against the NotW personnel here, the problem the prosecutors had was that the answers Bonds gave to the Grand Jury were often vague, off the point and rambling. The questioner failed, generally, to pin the witness down with specific questions. Open ended and rhetorical questions seemed to be the order of the day. Some of the questions did not really look like questions at all.

For example, part of the indictment refers to the following Grand Jury exchange.

Q And you weren’t getting this flax seed oil stuff during that period of time [January 2002]?

A: Not that I can recall. Like I say. I could be wrong. But I’m – – I’m – – going from my recollection it was. like. in the 2002 time and 2003 season.

As mentioned above, it is necessary to show that someone is wilfully telling lies to achieve a conviction for perjury. If the questioning is not specific and offers the witness the chance, for example, to ramble down memory lane, or to offer his opinion rather than facts, then pinning a perjury case can be very hard. The logic behind the jury’s verdict in Bonds’ case whereby he was acquitted of perjury but convicted of obstruction of justice seems hard to understand, and indeed his attorneys will try to persuade the judge that the verdict is perverse and to substitute an acquittal on all charges.

It appears, from reading the transcripts of Bonds’ Grand Jury testimony, that the lawyer for the government was perhaps overawed by the fame of the man he was questioning, or expected that he would confess his use of illegal drugs to order. Instead, Bonds told the Grand Jury he did not know what he had taken, and the only person who could do so, his trainer Greg Anderson, pointedly refused to testify despite repeatedly being sent to prison for contempt. Thus, due to the absence of a forensically focused questioning of Bonds, the chances of a perjury conviction were greatly reduced.

The vast majority of baseball fans in the US believe that Bonds used steroids, despite the absence of proof of failed drugs teats etc.

USA V Roger Clemens

Roger Clemens is the pitcher I mentioned above. For over 20 years he was at the top of his game, at an age by the end where very few pitchers remain effective. Throughout his career in Boston, Toronto, Houston and New York Clemens was successful, earning the affection of his team’s fans, and the almost universal dislike of everyone else. Indeed his manner of leaving Boston and Toronto caused him to be alienated from much of his former fan base. However Clemens was hugely successful, driven by a desire to be the best. He won many honours and awards, and was paid a great deal of money.

The US legislature has taken an active interest in the use of performance enhancing drugs (PED’s) in sport, especially baseball. At a previous Congressional hearing, Mark McGwire, who had, as we have seen, broken the single season home run record n 1998, destroyed his reputation by repeatedly stating he was not there to “talk about the past”. The fact that he was there for that purpose led most to believe that he had been a user of PED’s. Rafael Palmeiro, a very successful layer for Baltimore over many years, looked Congress straight in the eyes and stated, complete with pointing finger “Let me start by telling you this: I have never used steroids, period. I don’t know how to say it any more clearly than that. Never.” Within five months he had been suspended for a failed drugs test. His reputation, like that of McGwire was in tatters. Sammy Sosa, the other participant in the home ruin race of 1998 also appeared. He had been born in the Dominican Republic but he had played in the major leagues in the US since 1989, but now, in 2005, he answered questions through his attorney, claiming his English was not good enough. Clearly he wished to make sure he fell in to no traps by answering questions in his second language. However, again, the court of public opinion found strongly against him.

So, having gained a lot of coverage in 2005, the Congressional Committee kept digging.

In 2008 Roger Clemens appeared at Congress on oath, along with his former personal trainer, Brian McNamee.  By this stage Clemens had been named by Senator George Mitchell in the report  he had compiled into PED use in baseball.  McNamee had accused him of steroid use. Clemens had sued McNamee and McNamee counter-sued Clemens.

Clemens, it appeared, insisted on attending Congress to get his message across. He sat before the Committee and denied any illegal use of drugs. McNamee was castigated as a liar and a cheat. Clemens appeared at first to have made his point.

However matters began to unravel soon after. The Committee realised that either Clemens, or McNamee, or indeed both, were lying to them. The committee insisted on an investigation and now, just over three years later, Clemens has appeared in a Washington court room for trial.

As in the Bonds case, the issue is not whether he used PED’s but whether he wilfully lied in saying he did not.

Whilst in Bonds’ case he did not get himself bogged down in detail or specifics, here Clemens was the opposite. He had some things he wanted to say, and therefore he said them. The problem was that lying to Congress is a serious offence. Further investigations took place and Clemens was indicted.

The case started a few weeks ago with jury selection. There appeared to be a greater chance of a conviction, as a result of Clemens having put forward his hypothesis of himself as a non user, than in the Bonds case where he was answering vague or open-ended questions with vague and open-ended answers.

However, on the second day of the trial, which was expected to last for a month, the case collapsed into a mistrial.

The prosecution were bringing in to evidence a video recording of one of the Congressmen at the hearing by playing the tape to the jury. However, he was talking about the evidence of the wife of one of Clemens’ former team-mates, evidence which the judge had already ruled as inadmissible. The tape should have been edited to remove this, and it had not been. The judge had no hesitation in declaring a mistrial and a hearing is due soon to determine if Clemens will again face trial on these charges.

As with Barry Bonds however, prevailing public opinion is that Clemens was a user, whether or not that is actually proved in court.

James Murdoch at the Select Committee

Next we had the pleasure of seeing Rupert Murdoch and his son James appear last week before the Department of Culture, Media and Sport Select Committee of the House of Commons to answer questions about the phone hacking scandal. Here again the weakness of the questioning system may have allowed wilful errors, if there were any, by the Murdochs to go unpunished. I should say, as a preliminary point, that they were not placed on oath, but “Erkine May” the bible of Parliamentary procedure makes it clear that lying to or misleading Parliament can amount to a contempt of Parliament, which is punishable by Parliament.

The procedure before the Committee is very much in the hands of the Chairman. In this Case Mr Whittingdale, MP, decided that the way to operate was for each member of the Committee to have an allotted period to ask the questions they wanted to ask. Effectively therefore the Murdochs faced 9 or 10 separate prosecuting counsel, all asking questions about different areas. There was however no cohesion in the process, and points were returned to, and gone over more than once, even where it appeared to an outside observer, that the matter had been dealt with already. Each MP on the Committee however wanted to have their chance to question the Murdochs, as was their right, even where that questioning did not really advance matters at all. Only Tom Watson MP, who has been pursuing the phone hacking matter for a number of years, really took the Murdochs through a detailed and logical questioning proves, and it might have been much better if he had been allowed to continue asking questions on behalf of the Committee, but the members were not willing to give up their own chance to interrogate. In fact, the most telling moment of the proceedings, excluding the pie attack on Rupert Murdoch, occurred at the very end, when the Chairman permitted Mr Watson to ask a supplementary question, as I will refer to below.

In contrast, the Home Affairs Select Committee, chaired by Mr Vaz, has taken a far more structured approach with witnesses. Mr Vaz’s practice is to deal with one area at a time, giving the members of the Committee turns to ask about the specific areas identified before moving on to another part of the investigation. This seems to be a more logical way of proceeding, allowing MPs to follow up on and return to issues raised in the answers.

As with the Sheridan case, many of the questions were potted speeches, perhaps designed to be a snappy sound bite for the news, rather than to get meaningful answers from the Murdochs.

There have been various areas in both gentlemen’s evidence which have been looked at, but I want to focus on one.

After the pie incident, and on the completion of all of the questioning, James Murdoch was asked at Q 413 by Mr Watson “When you signed off the Taylor payment, did you see or were you made aware of the full Neville email, the transcript of the hacked voicemail messages?” (The uncorrected transcript of proceedings is the source for these extracts  ) (The Taylor payment refers to the settlement of a claim of phone hacking against the NotW by Gordon Taylor, head of the Professional Footballers’ Association, where James Murdoch authorised a payment of £700,000 including costs to conclude the matter. The “Neville” referred to was a former chief reporter for the NotW who received an email containing transcripts of many of Taylor’s phone conversations.)

James Murdoch replied, “No, I was not aware of that at the time.”

Since that evidence was given, Mr Tom Crone, former legal manager for the NotW and Mr Colin Myler, former editor of the NotW, have issued a statement saying that James Murdoch had seen that email, in contradiction of his evidence to the Committee. Does James Murdoch’s answer cause him problems?

If it transpires that the answer was wrong, and Mr Watson has already asked the police to investigate the evidence given to the Committee, would James Murdoch be in difficulties? There is a difference here between what the legal consequences of any error would be and the public relations and corporate ones. If it is the case that James Murdoch did see the email at the time, then I imagine his explanation would be that he had simply forgotten this, on the basis that many things have happened over the years since the payment was authorised, and that he has seen many items regarding this whole affair. If Mr Watson had been afforded the chance of prolonged questioning on this point, then perhaps James Murdoch would have found himself in a position where it would be hared to explain this as a lapse of memory. Interestingly, the following exchange between Mr Whittingdale and Mr Watson took place just after the above question was asked.

Chair: I am getting galled. We have covered this at some considerable length.

Mr Watson: Actually, Chairman, we have not, but I respect you. Mr Murdoch, your wife has a very good left hook.

Mr Watson was denied to chance of pinning James Murdoch down, although by this stage the Murdochs had been giving evidence, including the interruption, for over three hours.

 

How do these cases bear upon the possible NotW perjury charges?

 

Tommy Sheridan dispensed with his counsel at an early stage of his trial, and proceeded to defend himself. By all accounts, for a lay person, he did a good job. After all, this was not far short of a matter of life and death for him, and he has always been known for his oratorical skills.

However, one disadvantage comes from his lack of court experience. As with the Bonds Grand Jury, Sheridan’s questions were often imprecise and vague. Frequently the questions, especially when asked of his political or media opponents, were barely disguised polemic, perhaps designed to appeal to the jury. In addition, I imagine that, in conjunction with his remaining legal advisers, Mr Sheridan had decided by this stage not to give evidence himself. Therefore some of his questions would, either deliberately or sub-consciously, been designed to get his “evidence” across to the jury, although he would have been aware that the judge would direct the jury that his questions did not amount to testimony.

In addition, there is the problem that the three NotW witnesses were not, by and large, prosecution witnesses. Bob Bird was called by the Crown to give evidence about payments to witnesses and about the video tape purporting to show Sheridan “confessing” to his former friend, George McNeilage.  Sheridan’s cross examination of Bird lasted much longer than his examination in chief. The questioning ranged through many areas. As I have written before, Mr Bird has some questions to answer in connection with his evidence regarding missing emails. He told the court that a large number of emails had been lost when transferred to Mumbai and thus could not be made available to the defence. However, after an investigation by the Information Commissioner, it transpired that the emails were still in existence and that there had been no transfer of them anywhere, especially not to Mumbai. Mr Bird will maintain, I am sure, that he made an innocent mistake. That is one of the issues I imagine Strathclyde Police will be investigating. Clearly also the recovery of evidence sought by the defence is relevant to the case, even if ultimately the emails contain nothing that would have assisted Mr Sheridan.

Mr Bird was asked about the “culture” of the NotW. That is a matter for debate, and not one where an answer can amount to perjury. Subjective questions of that nature have their role in the court process, but cannot, in my submission, found a perjury case.

Mr Wight was called as a Crown witness formally, but this as a courtesy to Mr Sheridan. After confirming his details to the prosecutor, Mr Sheridan began what was, in effect, cross examination of Mr Wight. However he too was not asked the detailed and precise questions a professional advocate would have done, and was not pinned down on areas where otherwise there might have been difficulties.

Finally Mr Coulson was called as a defence witness. His evidence was no part of the case against Mr Sheridan. Mr Sheridan’s case against the NotW at his trial was, effectively, that the paper was against him as he was an effective tribune of the people, holding big businesses like the NotW to account, and that they determined to destroy him by whatever means necessary. This included phone hacking, although it was never made crystal clear how this impinged on the specifics of the case against him. Mr Sheridan had tried to call as a witness an impersonator who could “do” Mr Sheridan’s voice, and who had done so on the radio, perhaps to show that the McNeilage Tape could have been prepared by an impressionist. Alternatively it was hinted that, if his phone had been tapped or hacked, then extracts could have been put together to create the incriminating tape. However Mr Sheridan, whilst suggesting these possibilities did not produce any expert testimony regarding the video, and effectively left it to the jury to determine that one or more of these factors might lead them to disregard it.

Mr Coulson denied that there was a “culture” of phone hacking at the NotW. If he had been asked if there had ever been such an activity, without going into the realms of “cultures” and if the questioning had precisely defined what phone hacking was, and that the questions were looking at whether this was done either by NotW staff or agents for them, this might have been more problematic for Mr Coulson, standing what is now publicly available. However, I don’t understand that the questioning went down such a detailed road.

Press interest has centred on Mr Coulson’s reply to the question asked of him about making payments to “corrupt” police officers. Mr Coulson replied that the NotW did not make payments to corrupt police officers.

Here again the addition of just one word “corrupt” to the question puts a different perspective on how any perjury charge regarding this might go. Let’s assume, for hypothetical purposes only, that the NotW did make payments to police officers (as indeed Rebekah Brooks, former editor of the NotW confirmed to Parliament in 2003). The NotW has over the years worked closely with the police, often providing them with details of their investigations exposing criminality in others. In return, for the purposes of this example, grateful police officers might have provided information to the NotW and been thanked by way of a financial gift. The NotW, in such hypothetical circumstances, might consider these officers to be fine and up-standing members of the force, assisting the NotW in bringing news of wrongdoing to the public’s attention, whilst not compromising criminal processes. These officers, in this example, would not be seen by the NotW as corrupt. This is despite the fact that it is illegal for an officer to receive payments in such circumstances, and, on one view, receipt of such a payment would render them, in law “corrupt”. But if Mr Coulson was aware of payments to officers, his belief, whilst legally wrong, that they were not corrupt, would mean that his answer would not be a wilful evasion.

As with the other witnesses, a more detailed examination of maters might have pinned the witness down clearly and unequivocally. However, as with Mr Bonds, the “killer questions” were not asked, giving the person responding legitimate room for manoeuvre in their response.

 

 

Conclusions

 

 

So where does this take us? The Bonds case shows how important the questions asked are before a person can face charges for perjury or similar matters.

Looking at the possible matters for consideration just now, the normal position applies – namely that it is very difficult to establish perjury to obtain a conviction.

But there is more than the justice system to consider.

Barry Bonds and Roger Clemens have been convicted in the court of public opinion. They might never achieve the goal of being enshrined in the Baseball Hall of Fame, although their performances deserve it.

Tommy Sheridan’s position is polarised. His supporters never doubted him, despite his conviction. His enemies simply took the conviction as validation of their opposition to him. In general perhaps the conviction reinforced the image of Sheridan as a rogue, but a likeable one, complete with his sun tan. Few “neutrals” would have had sympathy for the NotW even after the conviction.

In light of recent events, there will be even less feeling for the NotW.

The Murdochs have been seen on the world stage, and, even if nothing further happens as regards James, there will not be, for a long time, a positive opinion of News International here.

The final question is what criminal proceedings against Mr Coulson, in particular, would mean for the Prime Minister, Mr Cameron? But that is a question to be answered another day.

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

What Did the Police Uncover and What Did they Make of it?

 

Since I first drafted this post, the news about  developments has kept coming so fast, there has not been time to hit the “Publish” button!

What I wanted to do was to look at the evidence given by DCS Williams of the Metropolitan Police in the Tommy Sheridan trial to see what it told us at that stage (December 2010) about what the police had actually uncovered as part of Operation Caryatid.

In light of the resignations yesterday and today of Commissioner Stephenson and Assistant Commissioner Yates, in part over concerns about the lack of rigour in the inquiries, I find the evidence of DCS Williams rather interesting. It helps, I think, to make clear the dreadfully negative attitude the police had to this whole inquiry. They simply wished it would go away.

As always my notes of the evidence are taken from the excellent Sheridan Trial Blog, put together by James Doleman.

Of course when DCS Williams gave evidence, Andy Coulson was still Director of Communications for the Prime Minister, Stephenson and Yates were still in place, Brooks and Hinton still worked for Rupert Murdoch, and the News of the World was the top-selling newspaper in Britain. How things change!

DCS Williams gave evidence about the search of Glenn Mulcaire’s property and the information discovered about his methodology.

He was asked if, during the search, it was true that  “3000 telephone numbers, 30 audio tapes and 100 PIN codes” had been unearthed.

DCS Williams said this was “not accurate”. Mr Sheridan referred to a parliamentary inquiry having been told there were “2978” numbers recovered, and he had “rounded that up to 3000”. DCS Williams replied, “If that is what the MPs were given it will be correct” and added that he believed the figure for PIN codes was 91.

It is, as an aside, interesting that the first reply was that the figures were not accurate, when, in fact, the correct details were 2,978 not 3,000 phone numbers, and 91 rather than 100 PIN codes.

Whilst I have posted before that Mr Sheridan’s lack of a full legal training and experience has meant that prosecutions for perjury of certain of the witnesses in his case is less likely as his questions were often not sufficiently precise, he deserves credit here for getting DCS Williams to agree that the figures given, whilst not precise, were pretty close. I do not intend to suggest that it was DCS Williams’ intention to downgrade the effect of the numbers put to him – but that, if he had not been pursued further, would probably have been the effect.

DCS Williams then told the court how Mr Mulcaire carried out the hacking. He would obtain the “unique number” of the mailbox belonging to their target and “dial it direct”. Depending on the “level of security” it would sometimes be necessary to obtain a PIN number.

In all the ongoing discussions regarding the “hacking” there has been little clear reporting of precisely what was done by Mr Mulcaire and the other investigators used by the press.

Some writers have even said that it does not amount to hacking where simply someone accesses a phone’s messages because the default PIN code has not been changed.

This evidence is an indication, to my eyes, that there was more to it than a simple reliance on phone users not changing their PIN codes.

Anyone who saw Chris Bryant MP being “interviewed” by Kay Burley some months ago on Sky News would be well aware that there was more to the process than simply relying on default PIN codes.

We next come to the nub of the issue, and that which, effectively, has lead to the end of the police careers of Messrs Stephenson and Yates.

Mr Sheridan asked how many people had been affected. DCS Williams stated that they had only evidence that reached the level of proof for “one victim” whom he identified as James Pinkerton, a “private secretary in the Royal Household.”

DCS Williams could not tell the court how many phones had been hacked or how many voicemails accessed.

We now know that there are around 4,000 possible victims of Glenn Mulcaire’s phone hacking spree (at least). This is based upon the information taken from Mr Mulcaire’s home, and which, by the time of the Sheridan trial, had been in the possession of the Metropolitan Police for over four years. Quite how DCS Williams was able to say that there was one victim, Mr Pinkerton, seems remarkable.

However, standing what Mr Yates said to the Home Affairs Select Committee last week, namely that the police were bound by a very strict definition of the offence given to them by the Crown Prosecution Service, it is easier to see how the effects were so minimised, even if the interpretation seems ridiculously narrow.

The interpretation given to Mr Yates was that an offence could only be proved to have been committed where it could be proved, beyond reasonable doubt, that a message on a mobile phone had been accessed by a third party before the intended recipient had heard it. On the guidance Mr Yates stated he had been given, it was necessary to prove that messages were hacked before the recipient got to them. Understandably that would be something very difficult to prove.

Leaving aside for now my view that that is a nonsensical definition of the crime, it at least helps us to understand why the Met Police seemed to underplay the numbers so much.

Mr Sheridan then asked the witness if the police had discovered the names that related to the phone numbers they had found. DCS Williams turned to the judge, Lord Bracadale, and said “M’lord. I have given answers, I don’t see how this is relevant.” Lord Bracadale directed the witness to answer.

Why would the officer be reluctant to answer that question? Was it a fear that a long police operation might seem to have been ridiculous if there had been so many numbers and only a few names found? Perhaps one of the House of Commons Select Committees looking into this matter, or Lord Justice Levenson’s inquiry might want to ask DCS Williams.

DCS Williams told the court that “the mere presence of a name and address does not mean anything unlawful has gone on.” The witness went on to state that “you would expect” that people who worked in the media would have possession of this sort of information and he “could not assume the purpose it’s held for is interception.” DCS Williams added that this had also been the view of the Crown Prosecution Service when they had reviewed the case last year (2009).

So there we have it in a nutshell. The implication I take from DCS Williams’ evidence is that the police were looking for reasons not to have to enquire into matters. The assumption seemed to be that unless the evidence of “hacking” struck them over the head, they should not really go looking for it.

Many in legal practice have had clients come in after approaching the police about what they, the victims, have perceived to be criminal activity, only to be met with the response at the Police Station desk of “That will be a civil matter, Sir.”

That was generally seen as a euphemism for “I am too busy or cannot be bothered dealing with that matter. Take it to a solicitor and don’t bother me, Sir.”

Here, on an industrial scale, to coin a phrase, the police were attempting to say “It’s a civil matter, Sir” as exemplified by Assistant Commissioner Yates’ review following further allegations by the Guardian where he reconsidered the whole matter of the 11,000 pages of evidence in an eight hour period before coming to the view that there was nothing new to look at or to justify the taking of further action at that time.

This is exemplified by the way that, originally, many of the celebrities and politicians complaining about hacking were told they had not been hacked, yet are now being made aware that they might have been.

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.

 

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

 

The last of the three witnesses whose testimony in the Sheridan trial whose evidence is said to be subject of investigation by Strathclyde Police is Bob Bird, the Scottish editor of the News of the World (NotW) for the last 10 years.

Prior to his involvement in the Sheridan case, one of Mr Bird’s main claims to fame was that he had been married to Jackie Bird, the doyenne of Scottish television news. I believe however that his name may well become even better known now, and that, on the information publicly available now, he may well face charges himself.

Mr Bird gave evidence over several days in November 2010 at the High Court in Glasgow.

In the middle of Mr Bird’s cross examination the press gave further publicity to phone kicking allegations, which provided Mr Sheridan with additional ammunition for his questioning.

Mr Bird was called as a Crown witness, and properly as one; not as a courtesy to the defence a la Douglas Wight. That fact on its own means that, in my view, any perjury on the part of this witness is likely to have a greater bearing on Mr Sheridan’s appeal, should it be allowed to proceed. For the avoidance of doubt, I am not suggesting that it will be more helpful, but simply that the fact the Mr Bird was led by the Crown makes his testimony of greater importance.

In addition, I am not offering any view in this piece regarding the value or otherwise to Mr Sheridan’s appeal of the emails thought by Mr Bird to have been lost in Mumbai, as referred to below.

I assume, as with the previous witnesses, that it is Mr Bird’s position that he told the truth to the best of his knowledge and he would deny any accusation of perjury which might, in due course, be brought against him.

Bearing in mind that the Crown Office move to look at these witnesses came last week, amidst the growing NotW scandal, it can be assumed that the issues where the evidence will be most scrutinised are those relating to phone hacking, private investigators and payments to police officers. On that basis, I do not propose, for example, to go over the evidence given by Mr Bird regarding the “McNeilage Tape”. If there were suggestions being seriously considered by Crown Office that this tape had been fabricated, as was alleged by Mr Sheridan at his trial, then, at the very least, Mr McNeilage too would be subject to enquiry.

In addition, the evidence given about payments to witnesses will be passed over by me, except for tangential matters.

Finally, by way of introduction, I again thank James Doleman for his comprehensive Sheridan Trial Blog, found at http://sheridantrial.blogspot.com/  upon which this piece is based.  The search facility on the blog will link to the relevant accounts of Mr Bird’s lengthy evidence.

Any errors in analysis or interpretation are mine and mine alone.

 

Perjury

 

 

To recap, in Scots Law, perjury is committed by a witness or party knowingly making false statements under oath in court proceedings. The matter has to be of relevance to the proceedings in which the allegedly perjured evidence is given, and requires to be material.

Mr Bird had given evidence for the NotW in the defamation case brought by Mr Sheridan in 2006. In that case Mr Bird had given evidence that Ms Katrine Trolle had never been offered money by the NotW for her story. In answer to Mr Prentice, the prosecutor, Mr Bird confirmed that he had later discovered that Ms Trolle had been offered payment, but she had declined this.

Mr Sheridan also raised this matter, asking if Mr Bird had disclosed all of the witnesses that had been paid or offered payments. Mr Bird responded “yes, we have now”. Mr Bird explained again, having been questioned about his use of the word “now”, that in the original case he had stated that Katrine Trolle had not been offered any money by the newspaper but had found out after his testimony that she had. Mr Bird added that this was a “genuine mistake” and denied Mr Sheridan’s assertion that this amounted to “perjury”.

I suggest this issue has no bearing on the present investigation.

 

The News of the World – General Matters

 

Mr Sheridan asked Mr Bird if his newspaper “always told the truth” The witness replied that it “did its best.” Mr Sheridan then asked Mr Bird if he had ever met Rupert Murdoch. Mr Bird replied they had met “half a dozen times” but had never discussed this case with Mr Murdoch or any of his family.

Whilst it might be arguable if, to the outside world, the NotW did do its best to tell the truth, a matter of opinion like that would not found a perjury case. In addition, even if it turns out the Mr Bird was a regular dinner guest of Mr Murdoch, that, on its own, would not amount in my view to perjured evidence likely to give rise to prosecution.
Mr Sheridan produced to Mr Bird excerpts from the Newspaper Editors’ Code of Conduct and asked if he complied with them. Mr Bird replied that the NotW “do our best to.” Mr Sheridan highlighted the section on “clandestine devices and subterfuge” and asked if the NotW followed that section of the code and again Mr Bird said we “do our best to.”

This might best be described as a “pious hope” perhaps. If there had been more detailed cross-examination of Mr Bird as to what exactly the witness meant by this, or what procedures and protocols were in place and how they operated, then these answers could potentially be problematic. In the absence of that however, I can’t see how these responses are objectionable (in the legal sense anyway).

 

Following Mr Sheridan’s questioning regarding the offer of payment made to Ms Trolle, Mr Bird denied the suggestion that the NotW considered itself “immune from prosecution.”

The recent admissions by Commander Yates of the Metropolitan Police about failings in the investigation might lead one to believe that the NotW thought it did have some immunity from prosecution, but again this is an expression of opinion, both by Mr Bird and then by me.

 

Regarding the witnesses to whom payments were offered or made, Mr Sheridan pointed out that the Editors’ Code of Conduct forbids payments to witnesses in “active legal proceedings”. Mr Bird responded that he did not regard the case as “active” when the payments were made; adding that he knew there was an investigation but not an active case.

Mr Bird’s response might be legally incorrect, but that does not render it perjury.

 

Mr Sheridan later put it to Mr Bird that the NotW practised “cheque book journalism” and that people who had “smelled the big money would be prepared to say anything.” Mr Sheridan claimed that the culture at the newspaper was one of “publish anything as the subjects would not have the resources to go to court”. Mr Bird denied this.

This is a further matter where Mr Bird is in disagreement with the prevailing public mood, but again, when expressing an opinion, it is very difficult to commit perjury.

 

As cross examination progressed, Mr Sheridan asked a series of questions about the size of News International, and Mr Bird confirmed they owned the Sun, the News of the World, the London Times and the Sunday Times as well as a “fair chunk” of Sky TV. Mr Sheridan put it to Mr Bird that the group was “powerful” and that one of its ex-editors, Mr Coulson, was (at the time) the Government’s head of communications. Mr Bird agreed the group was powerful, but said it always also did its best to be truthful.

If repeated now this answer might have provoked the response noted in trial reports as “Laughter in Court”.

Mr Sheridan quoted from a report of the Parliamentary Committee on Culture, Media and Sport which had described a “collective amnesia” amongst the newspaper’s executives into the scale of the group’s phone hacking activities. Mr Bird had already been asked about this, referred to below. He repeated that the committee was “biased” as “MP’s do not like tabloid newspapers poking around their private lives and expense claims”.

Interestingly, at the time, I do not recall a great deal of publicity being given to this answer and the attitude it exhibited of the NotW towards MP’s. It might help to explain the rush of MP’s now to assail News International, and helps to make clear why there were only a few, such as Tom Watson and Chris Bryant who seemed willing to put their heads over the parapet. However politically unwise Mr Bird’s answer might have been, it can’t be perjury. In fact, other than the accusation of bias, his answer might well be true.

 

Private Investigators

 

 

Mr Sheridan asked if the NotW had employed any private investigators in his case. Mr Bird replied that they had once, to try and track down Duncan Rowan before the 2006 libel trial but the investigator had failed to find Mr Rowan. Mr Bird was asked about the use of an investigator, Mr Whittamore, by the NotW. He had indicated that he was aware of ten occasions that the paper had used Mr Whittamore’s services.

After the weekend adjournment, Mr Sheridan asked whether in light of the publicity pertaining to News of the World phone tapping activities Mr Bird would like to change his evidence regarding use of private investigators in the case. Mr Bird declined to do so.

 

Mr Sheridan described new evidence that showed Douglas Wight, former Scottish NotW News Desk editor and current national NotW Features Editor had used Mr Whittamore seventy times for enquiries, not the ten times that Mr Bird had previously stated. Mr Bird replied that he had only seen ten records of payment to Mr Whittamore on the system.

 

This area of questioning could be a cause of difficulty for Mr Bird, depending on what new evidence might be available. However again any perjury case would be based on the material nature of any incorrect testimony given by the witness, and the precise wording of the questions becomes very important. A witness is entitled to tell the court a recollection which turns out to be wrong, as long as the witness is not wrong deliberately.

 

Mr Sheridan asked whether “legal enquiries” of the sort undertaken by private investigators hired by NotW was a cover for illegal activities. Mr Bird replied that NotW had made much greater use of private investigators like Mr Whittamore ten years ago but had not realised at the time that they used illegal methods to get information.

This comment by Mr Bird was obviously made in light of the earlier conviction of Mr Whittamore, but seems to be one of the rare public admissions that the NotW did use people who used illegal methods (though not an admission that the investigators used illegal methods when working for the NotW.)

 

Mr Sheridan asked Mr Bird if he had any dealings with Glenn Mulcaire. Mr Bird denied this.

Again the question here is what more information the authorities have. Are there documents suggesting Mr Mulcaire was known to Mr Bird? Would Mr Mulcaire state such on oath?

 

As a brief digression, I should explain that in Scots law a “Commission” is a procedure used to recover evidence and documents. People who have had possession of the sought after documents are called to give evidence at the “Commission” to allow the Commissioner to see about tracking down such information, or working out where it has gone. Mr Bird had given evidence to the commission dealing with this case, where he had stated that the NotW had not employed any private investigators in relation to this case. Mr Sheridan made reference to that response, calling it a “lie” in light of Mr Bird’s subsequent evidence. Mr Bird replied that the NotW had employed a private investigator to try and find Duncan Rowan, but as the investigator had not found him he had forgotten about it. Mr Bird admitted he had “got that wrong” and when he had checked he had found that “one instance.”

On the basis that Mr Bird was admitting to having given mistaken evidence previously, it might be much harder, in the event that it was shown that other investigators were involved, to pass this off as simply a mistaken recollection.

 

Mr Sheridan asked the witness if he had been involved in hiring the private investigator who had hacked his (Mr Sheridan’s) phone. Mr Bird denied he had ever done such a thing.

Here again the questioning makes any issue of perjury difficult to prove as regards this answer. The question conflates two issues. 1 Was Mr Sheridan’s phone hacked? 2 Did Mr Bird hire an investigator to do so? Without clear and specific questioning, it would be very hard to establish that the answer to the question, as asked, was perjured.

Mr Sheridan asked the witness again if he had had any dealings with Glenn Mulcaire or if any check had shown up any invoices in the aliases he used (Paul Williams and John Jenkins).  Mr Bird repeated that he had no dealings with Mr Mulcaire. Mr Sheridan then asked if Mr Bird was aware that Greg Miskiw was Mr Mulcaire’s “handler” within the News of the World. The witness replied he did not. Mr Sheridan put it to Mr Bird that Mr Mulcaire had an “exclusive contract” with the NotW but Mr Bird said he had no knowledge of that.

As before, any difficulty for Mr Bird regarding these matters would arise from documentation showing his evidence was incorrect. However, replying that one has no knowledge of something which it turns out later one does know, can be excused as a lapse of memory, rather than as a lie.

 

Mr Sheridan then produced three pages of what he told the court were copies of a notebook found when Mr Mulcaire’s house was raided by the police. These notebooks appeared to contain Mr Sheridan’s address, postcode, mobile telephone number, the name of his telephone provider and what Mr Sheridan said was his “PIN” number. There was also a reference to “Gregg” in a note beside the details and two dates, 14/09/04 and 26/07. Mr Sheridan put it to Mr Bird that these were the dates when the NotW was preparing their articles about him.  Mr Bird pointed out that the second entry had no year, but agreed that the dates were around the time of the publication of Anvar Khan’s book, Pretty Wild and the NotW’s subsequent article based on it. In light of this evidence, Mr Sheridan asked Mr Bird if he was “surprised that a private investigator with an “illegal track record”, an “exclusive contract” with the NotW and based in London, would have “my details.” Mr Bird said he was.

Should there be evidence linking Mr Mulcaire to Mr Bird regarding this matter, then this answer could be problematic but again the answer lacks the precision, in my view, that there would need to be before the answer could lead the witness back to the court. There might be many reasons why the witness would be surprised, not necessarily that he was saying that there was no role for Mr Mulcaire in the NotW’s investigation of Mr Sheridan.

 
Payments to Police Officers

 

In connection with the issue as to when Mr Bird became aware of the police investigation, Mr Sheridan produced a copy of the NotW from the 20th August 2006 and directed Mr Bird to the following story extract.

“A force insider said they wanted to discover anything added or taken away. Barbara [Scott] said during the trial she did not have the notes but after the trial had ended we can reveal she discovered them and handed them to police. The perjury probe is expected to last three months. Strathclyde Police are also involved.”

Mr Sheridan asked about the “force insider” quoted in the article and asked if this would have been a police officer. Mr Bird told the court that the phrase had come from the reporter and he assumed it was a contact in the police force. He added that he had no contact with any police officer. Mr Sheridan then asked if the paper would have paid this force insider. Mr Bird stated that it was not normal practice for the paper to pay police officers and that “to his knowledge” the paper had never paid one.

Here arises one of the most important issues and one of those which has seen Mr Coulson arrested by the Metropolitan Police. The question of the NotW and its dealings with the police heads the news bulletins. Mr Bird admits in his evidence that the statement referred to came from a police source, or at least he assumed it was. However, he denies that it was the practice of the paper to pay police officers and “to his knowledge” the paper had never done so.

Might there be evidence that Mr Bird was aware of, or involved in, payments to police officers. He has denied this on oath. He was a senior executive in the NotW, being the Scottish editor. If payments were made in London, would he have known?

Bearing in mind the comments made by Rebekah Wade, as she then was, before a Parliamentary Committee in March 2003, when she said “We have paid the police for information in the past”, it might appear that Mr Bird was “out of the loop” or didn’t pay attention to what his bosses were saying!

As far as perjury goes, the problem is that, unless shown to be directly involved in these activities himself, I don not feel that Mr Bird is in jeopardy. If however there now exists evidence linking Mr Bird to such payments, then perjury would be a concern (amongst a number of others) for him.

 

Phone Hacking

 

 

Mr Sheridan put it to Mr Bird that he was at the heart of Wapping culture, was part of the illegal culture of phone tapping there, and was a News International “hack” to whom accuracy and truth were unimportant if it got in the way of a story. Mr Bird denied this, stating he did not believe phone tapping was part of Wapping culture and was certainly not practised in Scotland.

 

Here the dossier provided by Mr Anwar, Mr Sheridan’s solicitor, to Strathclyde Police might be of relevance. Does this disclose evidence of phone hacking taking place in Scotland? If so, can this be laid at Mr Bird’s door? Any answer about the “culture” is a matter of opinion, but a denial of phone tapping taking place here might pose difficulties for Mr Bird. Once more the precise terms of the questioning is important. There may well be a large difference between “phone tapping” and “phone hacking”. If Mr Bird was asked specifically about “tapping”, and, purely for the purpose of this hypothetical, the practice of “hacking” was rife, then it would not be perjury to say there was no phone “tapping”. Perhaps Counsel for Mr Sheridan might have focussed in on the actual practices, rather than the headline title. That might have made a difference to what we are looking at now.

 

 

As I have referred to before, Mr Sheridan had earlier quoted the report of the Select Committee which, according to Mr Sheridan, alleged there was a slush fund which showed the editors of the NotW condoned such payments on a “not need to know basis” as long as this provided “good copy.”  Mr Bird replied that people should “bear in mind” that the Parliamentary Committee was “anti-News International” and had a “political agenda.” He denied there was any “culture” of phone hacking at the newspaper.

Here again we have the issue about questions concerning “cultures”. One may perceive a “culture” when another would not. Such differences of opinions do not constitute perjury. It is of note that the Scottish Editor of the NotW was willing to express such trenchant views about Parliamentarians and their motivations. It is rather naïve for Mr Bird to complain that a Committee of MP’s might have a political agenda!

 

 

Under this heading Mr Sheridan put again to Mr Bird that he had “broken the law by ordering illegal surveillance” and planting “listening devices” Mr Bird replied that was “not true.

This one seems nice and simple. If there is corroborated evidence that Mr Bird did do what he denied, then one can see matters going further. However, even here the lack of precision acts to help Mr Bird. If, for example, Mr Bird ordered surveillance which he believed to be legal (and again this is a hypothetical) then his answer would be legally incorrect, but not perjury.

E-Mails

 

The retrieval of e-mail evidence, very much now the cause celebre, was raised by Mr Sheridan. Mr Sheridan’s defence team had been looking for various emails specifically regarding the NotW’s dealings with one of the parties with whom Mr Sheridan was alleged to have had an affair and the issue of phone hacking. Whilst some were produced, many were not. Mr Bird stated there was a six month black hole in the NotW e-mail archive, which was stored with a company in India, and that these e-mails had not been able to be retrieved.
Mr Sheridan later took Mr Bird through his evidence at the commission charged with locating documents to be used in the trial. He accused Mr Bird of being obstructive during that process, which Mr Bird denied. Mr Bird repeated that the NotW had lost “six months” worth of emails due to a decision to archive them in Mumbai.

This area would appear to be the one with most risk for Mr Bird. By the end of January 2011 it was revealed that, in fact, the emails had not been lost. The Independent reported http://ind.pn/hSRgAm that the emails were in fact available, and stated that “News International now says Mr Bird unintentionally misled the court, but insists that all the emails sought by the defence were disclosed to it either by the newspaper or the police.”

In June 2011 the Guardian reported http://bit.ly/mCzRVZ  that the Information Commissioner had ended his investigation into the “missing” emails, having been assured that none were in fact missing!

“Christopher Graham said on Friday the News International subsidiary had told him that, contrary to the earlier claims of a senior executive, it had not transferred archived emails to India and none had been lost.

“We have received assurances from News Group Newspapers (NGN) that in fact no emails were transferred to India,” Graham said in a statement. He added he had “seen no evidence to contradict this assurance”.

As mentioned, the News International spokesman said that Mr Bird unintentionally misled the court. Bearing in mind that Mr Bird offered a scenario explaining why the emails could not be produced, which scenario turns out to be wrong, this seems, to me, to be the area most likely to lead to one of the witnesses at the Sheridan trial appearing in the dock charged with perjury.

Where did Mr Bird get his information from? How was he misled about what had happened to the emails? Who must have told him, in error, about the data transfer to Mumbai?

As I discussed in my earlier pieces, it is easier to commit perjury by advancing a scenario or providing as detailed reply, rather than simply answering yes or no to questions that might be imprecise.

Interestingly, it might not be the recovered emails themselves that cause Mr Bird most trouble, but instead the fact that they never disappeared at all. On one view there was action taken and replies given which prevented information legitimately sought by the defence from being put before the court. That evidence might have been of no use to Mr Sheridan – in fact it might even, depending on what it said, have harmed his defence, but the Scottish Editor of the NotW, whether unintentionally or not, acted so as to deprive the court of relevant information.

 

Conclusion

 

The matter of the email evidence, its alleged disappearance and subsequent retrieval, is clearly material, substantial and relevant to the case.

One issue might be though why it is only now that the matter seems to be being investigated. Mr Anwar indicated in January 2011 that, once it became apparent that the emails had never enjoyed a trip to the sub-Continent, he wished to raise the matter with Crown Office. What action has been taken by Crown Office, if any, regarding the matter of the email evidence till now? Why has it taken so long?

Bearing in mind that one of the reasons for Mr Sheridan being prosecuted for perjury was because of the damage that perjury causes to the integrity of the judicial process, one can well imagine circumstances where, subject to what the police and prosecuting authorities discover, the former Scottish Editor of the former NotW finds himself sitting in the same dock occupied previously by Mr Sheridan.

 

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