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.
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.
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.
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.
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.”