Tag Archives: Bob Bird

Bob Bird Detained for Alleged Attempt to Pervert the Course of Justice re Sheridan v NOTW

The BBC has reported this morning that the former editor of the News of the World’s Scottish edition has been detained in connection with the perjury trial of former MSP Tommy Sheridan. The report states that Bob Bird is being held on suspicion of attempting to pervert the course of justice over Mr Sheridan’s defamation action against the newspaper in 2006.

Strathclyde Police said a 56-year-old man had been detained in Glasgow.

Officers are investigating allegations of perjury and phone hacking as part of the Operation Rubicon probe.

Of course, Mr Bird has not yet been charged with any offence and, until a court declares otherwise, he is an innocent man. Continue reading

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Strathclyde Police Charge ex NOTW man Douglas Wight re the Sheridan Trial

According to the BBC, a 39 year old mn has been detained by Strathclyde Police and subsequently charged with various offences. The detention appears to part of the Operation Rubicon investigation into allegations of phone hacking and perjury in connection with the trial of Mr Sheridan.

The BBC reported that the 39 year old man “has been charged with perjury, conspiracy to hack telephones, and multiple charges of conspiracy to obtain the (sic) personal data.”

Andy Coulson, formerly of News International and latterly of Downing Street, has already been charged in connection with te Rubicon Investigation.

Of the three witnesses from the News of the World at the Sheridan Trial, neither Mr Bird nor Mr Coulson is now aged 39. Continue reading

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The News of The World, Tommy Sheridan and Perjury?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tommy Sheridan and the “McNeilage Tape”

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

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

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

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

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

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

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

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

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

 

JS – It’s taken me a wee while to get back to you, although I have been looking out for your thoughts on the McNeilage tape.

PMcC – Now online here

 

JS – What annoys me about the Sheridan shambles is Scottish justice being brought low by courtroom mudslinging, deletions from the indictment, alleged perjurers charged but never prosecuted, huge payments to witnesses, evidence being withheld, and what is increasingly looking like a malicious, possibly even criminal, conspiracy involving self-confessed liars from a newspaper now defunct (having collapsed under the weight of allegations involving corruption and criminality) and a potentially biased investigation by police.

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

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

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

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

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

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

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

 

JS – Perhaps the speeding analogy needs an extra dimension; a speeder being convicted on the evidence of other speeders and all but one speeder getting away with it. I’m not entirely convinced the second jury got it right, but if they did, I think a perjurer was convicted on the evidence of other perjurers, or worse, alleged criminals who bribed witnesses, withheld evidence, hacked phones and perverted the course of justice. I don’t just mean those from the News of the World, or those who had their evidence discredited, or the ones charged with perjury but never taken to court, I’m including the witnesses from the SSP United Left faction who appeared to change their story from one trial to the next, and decided to deliver handwritten notes of SSP minutes to police after the first trial had concluded. Alan McCombes had been to jail for contempt of court for refusing to hand over the minutes, however the handwritten notes had been in Barbara Scott’s handbag the whole time. That’s all just my opinion of course.

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

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

 

JS – The fraud analogy should be attempted fraud, shouldn’t it? Sheridan has never received the £200,000 although, interestingly, I think the NotW still officially owe him the money as their appeal is still pending. Anyway, notions of attempted fraud are a bit of a moot point unless you think Sheridan was motivated by money, and I don’t think he was. It was very much attack as a means of defence. He believed he was defending himself against an evil and corrupt organisation actively engaging in a criminal conspiracy to destroy him both personally and politically. Whether they were out to get him or not, I think he was right about the NotW being an evil and corrupt organisation actively engaging in a criminal conspiracy (of one kind or another, but maybe not necessarily about him). Maybe we’ll know for sure one day, so long as the public inquiries aren’t a huge whitewash.

I think Sheridan was right to go to court. The completely made up drink and drug slurs were outrageous, as was the spanking story. Max Mosely was awarded huge damages. He was into S&M but not with a Nazi twist as made up by the unscrupulous NotW. Maybe Sheridan’s mistake was not doing the same as Mosely, i.e. take any true allegations on the chin and sue over the lies.

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

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

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

 

JS – As you can probably tell I’ve believed right from the start of the perjury investigation that there was collusion between the SSP United Left, the NotW, the witnesses paid by the NotW, the police, and prosecutors. I’m not saying they were all in a room at the same time plotting against Sheridan, but there was plotting. For example, it has been well documented that the SSP United Left held meetings to agree their party line. The idea that they should be treated as twelve independent witnesses is laughable, especially if you realize that they are well accustomed to operating democratic centralism. Unfortunately, for Sheridan, his conspiracy theory was too grand and he didn’t have the evidence to support it. Two senior officers from the Met hadn’t resigned at that point and the NotW emails allegedly showing collusion were “missing” according to Bob Bird. Not just that but conspiracy theories aren’t believed by the majority of the Scottish public, e.g. no matter how much evidence was presented against Jim Farry nobody would accept institutional bias against Celtic – it was Farry alone not the SFA who was biased and cheating Celtic. Similarly, no matter how many former referees stand up at sportsman’s dinners to tell tales of their bias, people continue to believe there is no bias.

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

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

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

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

 

JS – Talking of SFA bias against Celtic, if Sheridan had employed Paul McBride QC I think he’d have had a not proven verdict in the criminal trial. McBride would’ve highlighted all the inconsistencies in evidence from one trial to the next, whereas Sheridan just encouraged personal squabbles to obscure the issues. McBride would’ve done much better on the collusion/conspiracy stuff as well.

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

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

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

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

 

JS – Given where we are now with Tom Watson MP describing the conviction as “unsound” and the possibility of the Scottish public finally grasping the concept of collusion and equal justice for all, I imagine many of the police and prosecutors wish they’d simply allowed the NotW appeal against the defamation award to go ahead with no ridiculously expensive criminal trial securing only one conviction and causing much embarrassment (especially the house search and comparing a middle-aged mum with rosary beads to terrorists). With the SSP United Left changing their tune and the McNeilage tape, Sheridan’s damages would probably have been reduced to account for the lies about drinking, drug-taking and spanking, without the other sexual stuff.

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

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

 

JS – What will happen now? Sheridan will be released, the Scottish part of the public inquiry will be a whitewash as will the police investigation into police collusion/corruption, and Sheridan will be back in court looking for his £200,000 which has already gone to pay McNeilage. No doubt Sheridan will be armed with a copy of Alan McCombe’s book to show exactly what a shady organisation he is up against, and then there’s the NotW.

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

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

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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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