Tag Archives: Cadder

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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Filed under Criminal Law, Tommy Sheridan

The MacAskill Plan to Save Scots Law Gangs Agley

Last year, according to Kenny MacAskill, Scottish Justice Secretary, the Cadder ruling by a “foreign” court put the future of Scots law at risk.

As part of the defence mechanism Lord Carloway was asked to chair a review into Scots criminal law post-Cadder.

The most distinctive feature of Scots criminal law the world over is the need for corroboration before a criminal conviction.

Lord Carloway’s 414 page report has concluded that the need for corroboration is “archaic” and has recommended its abolition.

So the unique distinguishing mark of Scots law is to go?

Perhaps there will be a hunt to see if His Lordship can be classed as “foreign”?

The report covers much more, which I will consider later, but this point seemed note worthy!

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Filed under Cadder v HMA, Criminal Law, Human Rights, Law Reform

Cadder II – The Sequel – PF Glasgow v Akram – Article 6 Revisited

 

Cadder v Her Majesty’s Advocate

 

The Cadder case (Cadder v HMA [2010] UKSC 43) created havoc last year when the United Kingdom Supreme Court (UKSC) declared that the long standing practice of the Scottish police of detaining suspects and questioning them without the accused having had the benefit of legal advice under s 14 of the Criminal Procedure (Scotland) Act 1995 breached the rights of the accused to a fair trial under the European Convention on Human Rights (ECHR). This meant that where a suspect had been detained by the police and questioned without access to legal advice, then in the absence of any waiver by the accused, any matters mentioned in the interview would not be admissible against him in a trial.

The Scottish Parliament passed emergency legislation – the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act. This Act was designed to close the loophole identified by the UKSC, which in turn arose from the decision of the European Court of Human Rights in Salduz v Turkey (2009) 49 EHRR 19. The case also prompted significant criticism by the SNP administration of the UKSC’s “interference” in Scottish criminal law.

Fears that the Appeal Court in Edinburgh would be swamped by huge numbers of appeals, and that numerous cases would have to be dropped have proved to be exaggerated, but it is clear that the decision in Cadder has had an enormous effect upon the criminal justice system in Scotland.

The new system put in place has been bedding in, and the UKSC has a representative sample of cases with decisions pending to clarify the effect of the Cadder decisions in cases prior to the new legislation.

All seemed to be calm, at least relatively.

 

PF Glasgow v Akram

 

However, on 1st September 2011, Sheriff Sean Murphy QC (who also sits as a temporary High Court judge) put the “Cadder” among the pigeons again.

His decision was issued in the case of PF Glasgow v Akram which is at this point unreported, but can be found here  Sheriff Murphy’s decision applies the Cadder principles to a much larger variety of cases than Cadder itself, and has potential implications across the UK.

Mrs Akram was charged on summary complaint with two counts under Section 111(1A) of the Social Security Administration Act 1992, as amended, by knowingly failing to give prompt notification in the prescribed manner to the relevant authorities of changes in her circumstances as a result of which she was said to have obtained income support and housing benefit to which she was not entitled.

Her solicitors lodged a Devolution Minute arguing that her right to a fair trial, under Article 6 of the ECHR, had been denied because the prosecution proceeded on the basis of certain replies, contrary to her interests, which were made by her in an interview which took place without her having the benefit of legal assistance.

Mrs Akram had not been detained under s14. Instead she had been interviewed by one officer of the Department for Work and Pensions and one from Glasgow City Council at the same time. She had attended the interview, which was in connection with alleged fraudulent activity on her part, on a voluntary basis, and it was accepted that she had been told that she was free to leave at any time. The compulsion element under s14 was therefore not present in respect of this matter.

She was advised that she could have legal advice but it was noted that she had not sought this prior to the interview, nor had she asked to leave the interview to obtain it.

 

Submissions to the Court

 

Mr McLaughlin, solicitor for Mrs Akram, referred to the cases of Salduz, Panovits v Cyprus and Cadder. He drew the principle that the suspect had the right to access to legal advice from the first stages of interrogation by the police in order to ensure that his/her right against self-incrimination was meaningful.  He argued that the Interview of someone suspected of fraudulent activity by a non-police agency fell to be treated in the same way.  There were no reported cases at present on the question of the Cadder principle as applied to such non-police agencies.

The case of Jude, Hodgson & Birnie v HMA [2011] Scot HC HCJAC 46 was relevant in connection with the question of waiver of the right to legal advice, it was submitted. The court had accepted that the Cadder rights to legal advice could be waived, but as per the Jude etc case there was no valid waiver for two reasons “namely (i) because the law at the time did not allow the accused to have access to a lawyer at that stage of pre-trial procedure; and (ii) because the appellant’s consent to be interviewed in each case was not informed by legal advice.” Whilst Mrs Akram was allowed access to a lawyer, she had not had her consent to be interviewed informed by legal advice.

Mr McLaughlin argued that Mrs Akram had not been acting with the benefit of legal advice which she ought to have been given.  Her interview therefore was inadmissible.  There had been no voluntary, knowing and intelligent relinquishment of her right, which had to be established in an unequivocal manner, with minimum guarantees commensurate to its importance.  The principle set out in Jude etc applied to all cases.  There should be consistency rather than one rule for interviews conducted by the police and another for interviews conducted by other agencies.

The procurator fiscal depute sought to distinguish all the authorities cited for Mrs Akram. They all related, she said, to police interviews. Police interviews had a compulsion element absent in non-police agency interviews. The two were not comparable. In any event, Mrs Akram was not a vulnerable person, being an adult who had had the right to legal advice made clear to her. She had chosen, under no pressure, not to seek legal advice and therefore she had waived any Article 6 rights in this regard.

 

Sheriff Murphy’s Determination – Does the Cadder Principle Apply to Non-Police Agency Interviews?

 

Sheriff Murphy proceeded to deal with the two issues in the case. First of all, did the Cadder principle apply to non-police agency interviews and secondly, had there been a valid waiver of her rights by Mrs Akram?

The first point seems to be the principle with potentially wide applications, although, as we shall see, these might be mitigated significantly by virtue of the decision on the second part.

Dealing with the Cadder point, Sheriff Murphy stated that the “ratio of the decisions in the cases of Salduz v Turkey and Cadder v HMA is that a suspect’s right against self-incrimination would be compromised if he were denied access to legal advice before being questioned by the authorities in the form of the police.” He indicated that this was clearly indicated in Salduz and in the speeches by Lords Rodger and Hope in the Cadder case.

He went on to say “The principle itself is so clearly recognised in these passages that I can see no reason to distinguish between the police and any other agency which is questioning a person suspected of committing some type of crime.  In this context it is significant that the procurator fiscal depute in her submissions to me used the phrase “reporting agency” because that reflects the fact that the agencies involved in this case were used to reporting matters which they had investigated to the office of the procurator fiscal so that prosecutions might be undertaken.  Accordingly their enquiries must be seen as sharing some of the features of a police investigation and the right against self-incrimination must be as important in relation to any interview conducted by such an agency, where the contents of the interview are likely to be used in evidence, as it would be in the context of police questioning.  I can see no reason why the general principle should be restricted to police questioning after detention, as the respondent urges.  The principle must be applied equally to all enquiries which are likely to lead to criminal proceedings.(Emphases added.)

The learned Sheriff did not go quite as far as to say that this was now trite law, but his analysis makes clear that the Cadder protection must apply in these matters. Where the agency involved can effectively bypass the police in reporting a matter to the Procurator Fiscal, then such an interview must be treated as if a police interview. One can self-incriminate in such a non-police agency interview as much as one can in a police interview, and in either case the prosecution would seek to use admissions made by the accused in such interviews in court. Logically therefore, the Sheriff viewed that the absence of compulsion was not the relevant factor here, but the purpose of the interview and the use to which admissions made therein might be put.

There are a large number of agencies which can be described as “reporting agencies” as used by the fiscal depute and the Sheriff. The wider issue is that these agencies are UK wide. Whereas s14 detention, as formerly applied, was only the law in Scotland, the issue of non-police “reporting agencies” conducting voluntary interviews under caution is a national one. Whilst the mechanism by which the ECHR is applied differs between Scotland and England (in Scotland under the Scotland Act and in England under the Human Rights Act) Article 6 protections apply across the board. It would therefore appear that the issue raised would be applicable across the border.

Of course the requirement for corroboration in Scotland, which is not replicated in England, makes this even more important in the latter jurisdiction. In Scotland, one cannot generally be convicted solely on one’s own admissions. In England, without that requirement for corroboration, admissions under caution could be enough, on their own, to result in a conviction.

With the UKSC having determined this principle, it would not be a surprise to see the specific issue addressed by Sheriff Murphy in this case being refereed to the UKSC for an authoritative determination.

Indeed it has already been suggested that, due to the cross border implications, the Advocate General for Scotland will seek to refer the matter to the UKSC.


Sheriff Murphy’s Determination – What is the Position Regarding Waiver?

 

Sheriff Murphy then spends longer dealing with the principle of waiver than with the basic Cadder rule. He quoted Lord Rodger in Cadder as saying:-

“It is, indeed, quite common for those who have been arrested to decide to make a voluntary statement to the police and not to exercise their right to obtain legal advice before doing so. See, for instance, the famous example in Manuel v HM Advocate 1958 JC 41. Similarly, if a suspect had a right to legal advice before being questioned, but declined to exercise it, a court might have to consider whether, having regard to all the circumstances, he had effectively waived his relevant article 6 Convention right so that no violation would arise.”(Emphasis added)

The learned Sheriff noted that it had repeatedly been made clear to Mrs Akram that she was entitled to have legal advice, both in the letter inviting her to attend at the interview, and during it as it proceeded. He said “I further consider that these excerpts show that she clearly and obviously declined to seek such advice at a time when it was open to her to do so, apparently at an early stage in the interview”.

He considered that it was clear that Mrs Akram had waived her right to legal advice.

The thornier question was whether this was “an informed decision, freely taken?”

Sheriff Murphy considered the case of Pishchalnikov v. Russia – 7025/04 [2009] ECHR 1357 (24 September 2009) where the court had determined that a suspect had the right to waive his rights in connection with access to legal advice. He quoted paragraph 78 of the decision which states:-

However, the Court strongly indicates that additional safeguards are necessary when the accused asks for counsel because if an accused has no lawyer, he has less chance of being informed of his rights and, as a consequence, there is less chance that they will be respected.” (Emphasis added by Sheriff Murphy)

In the present case Mrs Akram had specifically declined legal advice. This meant that the Pishchalnikov case fell to be distinguished as here the suspect had repeatedly asked for a lawyer, but been refused, prior to making a confession.

The Sheriff then considered the “circular” argument proposed by Mr McLaughlin for Mrs Akram to the effect that, in the absence of legal advice, a suspect could not make a valid waiver of their rights, as they did not know and understand what those rights were.

Here he considered the Jude case referred to above.  He noted that that case was decided based on the rules in place prior to the Cadder decision and the 201 Act being passed. At the time there was no right recognised to have legal advice prior to an interview by the police, so accordingly the police did not advise suspects of what ultimately, as per the UKSC in Cadder, turned out to be the correct position, namely that there was such a right.

In such a case there could only be an implied waiver, as no one could expressly waive a right not known to them.

He went on to say:-

“The situation in the cases of Jude & Ors is rather different from Mrs Parveen Akram’s position.  She was expressly advised of her right to seek legal advice and she chose not to exercise it.  She was expressly advised that the interview would be suspended on her indicating that she wished to seek legal advice but she declined to do so.  That was an informed decision on her part because she was plainly aware of the existence of the right and she did not seek to exercise it.  I therefore consider that she must be held to have waived her right to seek legal advice prior to and during the interview of 9 December 2008.” (Emphases added)

He then decided that (a) the Cadder rights were applicable, but that (b) Mrs Akram had waived them and therefore her alleged admissions were admissible and the case should proceed.

We now wait to see if this case will be appealed to the High Court.

 

Implications

 

Where does this take us?

Firstly, I imagine that, whether with this prosecution or another, there will be a case determined by the Appeal Court in Scotland or indeed the UKSC in an effort to determine this point. Are non-police agencies bound by Cadder rules? On the basis of Sheriff Murphy’s analysis, which of course is persuasive, but not binding, there is little doubt that such rules do apply. Agencies such as the Department of Work and Pensions, local authorities in connection with various functions, Her Majesty’s Revenue & Customs and many more would fall within that description. All sorts of cases, such as those relating to breaches of the benefit rules, tax evasion, environmental heath infractions, planning offences and violations of the rules of Company law or Bankruptcy, where the investigations are carried out not by police, but by a “reporting agency” would appear to be covered. On that basis, and therefore across the UK, will there turn out to be many cases where prosecutions need to be dropped or convictions quashed? I must for now leave that question open.

 

Secondly, what are the implications for Legal Aid, both in Scotland and elsewhere in the UK? Under the new post-Cadder legislation in Scotland the Scottish Legal Aid Board (SLAB) set up a much criticised scheme for providing people who are detained for questioning by the police to receive free legal advice from a police station duty solicitor, being an extension of the existing Duty Solicitor scheme. A spokesman for SLAB is quoted by the Herald as saying that assistance was available to those questioned by outside agencies but would be considered on an individual basis. After all the disputes between the solicitors who practise criminal law in Scotland and SLAB over the new police station duty advice, I am sure the last thing SLAB want is to have to extend this in some way to cover interviews with other agencies. For one thing, SLAB’s budget is sorely pressed just now, they tell us, and a new layer of “Duty Solicitor” activity would result in resources being taken from elsewhere in their budget. But following Sheriff Murphy’s principle, if a police interview and that with a non-police “reporting agency” are so similar as to require Cadder protection in each case to render them ECHR compliant, can the Scottish Government justify not extending the free “Duty” legal advice to “reporting agency” interviews?

As the arrangements for Legal Aid in England are not something of which I have much, if indeed any, knowledge, I leave to wiser people than me if there would be Legal Aid implications outwith the Scottish jurisdiction.

 

Thirdly, is the waiver decision reached by Sheriff Murphy a “get out of jail free” card for the prosecution, reducing the impact of the Cadder principle in practice?

The situation where there is police detention involves the suspect, often without any warning, being apprehended. There is no opportunity to take legal advice prior to interview and a suspect cannot opt to leave the police station to seek such advice. The new post-Cadder regime in Scotland allows the suspect to seek and obtain such advice, even if over the telephone, prior to interview unless the right is waived.

However in most “reporting agency” cases, the suspect would attend, as did Mrs Akram, on a voluntary basis. The practice of the DWP, as I understand it, when investigating an allegation of a fraudulent benefit claim is, at the appropriate moment in the inquiry, to invite the suspect to attend. The letter doing so makes clear that the suspect has the right to seek legal advice prior to the interview. As was seen in the Akram case, the interviewing officers made it clear to Mrs Akram that she was there voluntarily and that she could call a halt to the interview at any time if she wished, including if she decided as matters progressed, to obtain legal advice.

Is it likely therefore that, in many of these “reporting agency” cases the court would determine that, even if the Cadder principle applied, there was in fact a waiver of the suspect’s rights if they choose not to see a lawyer? It would seem at first sight that that would be the position.

Each case, in theory, would have to be dealt with on its individual merits and therefore it is possible that, as in Mrs Akram’s case, the suspect is deemed to be sufficiently “informed” to waive their rights, whilst with other suspects, perhaps due to their age, level of education, or mental capability are not determined to have the capacity to reach an informed decision?

One way, of course, to prevent such issues arising would be for some “Duty Advice Solicitor” scheme to be set up for these cases, where the decision not top take advice would be made against a clear backdrop of information about the suspect’s rights, but even then, we can, in certain cases, come back to the “circular” argument of how can a person be informed in their decision to waive their right to legal advice when they have not had legal advice as to the effects of not having legal advice!

 

Conclusion

 

As with many cases which cause the accepted position to be questioned, it is easy to make dire predictions of the disasters to befall the justice system as a result. In most cases, once the implications are fully assessed, it turns out that the feared effects are diluted.

It is, as Premier Zhou Enlai of China is reputed to have said about the effects of the 1789 French Revolution, “too early to tell” if the Akram case will be as disruptive to the system as was Cadder, if not more so.

What it does show is that the Scottish courts are vigilant in their responsibility of ensuring that the Scottish system becomes ECHR compliant, and it is striking in how many ways, both large and small, it has been found wanting over the years.

Hopefully the Carloway Review, presently ongoing, might hopefully see a way to bringing the criminal justice system in Scotland to a position where there is full ECHR compliance and where the press will no longer take the chance of decisions such as this to complain about “Europe” interfering with our law.

 

 

 

 

 

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Filed under Cadder v HMA, Courts, Criminal Law, Detention and Appeals) (Scotland) Act., Human Rights, PF v Akram, UK Supreme Court

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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Filed under Courts, Criminal Appeals, Criminal Law, News Of The World, Press

Tommy Sheridan and the “McNeilage Tape”

One of the issues noticed by legal observers of the trial of Tommy Sheridan for perjury in connection with his successful defamation against the News of the World (NotW) was what Sherlock Holmes would have called “the dogs that didn’t bark”.

These “dogs” were expert reports analysing the so-called “McNeilage Tape”.

 

George McNeilage

George McNeilage had known Tommy Sheridan since their school days. He was a political colleague and had been best man at Mr Sheridan’s wedding.

However, according to Mr McNeilage in court, he had become sickened by Mr Sheridan’s public denials and diametrically opposed private admissions regarding his personal foibles, and decided to obtain proof of this.

According to Mr McNeilage, he engineered a meeting with Mr Sheridan in the presence of a hidden video camera. The video-tape which Mr McNeilage obtained, he said, as a result of this meeting, was one of many dramatic factors in the case. The Daily Record  referred to the tape as being a “sensation” when it was first introduced into the trial.

Mr McNeilage told the court he had sat tight with the tape, only showing it to one other person, until after Mr Sheridan’s success in his defamation case, and his award of £200,000 damages by the Edinburgh jury.

He felt, he told the court, “physically sick” after the verdict, and even worse after the Daily Record published a front page article based apparently on comments by Mr Sheridan where he referred to certain of his former Scottish Socialist Party colleagues as “scabs”.

 

Did Mr McNeilage Do Anything Legally Wrong By Selling the Videotape to the NotW?

All this culminated in him contacting the NotW and after various negotiations, which included the Scottish editor of the NotW stripping to his underwear to view the video, to ensure that he was not “wired”, Mr McNeilage handed this evidence over to the NotW in return for a payment of £200,000.

Of course, at the stage when he did so, Mr Sheridan had been successful in his case, and this had been appealed by the NotW. Whilst the judge at the original trial had indicated that he thought that certain witnesses should be investigated as regards possible perjury, Mr Sheridan did not seem, at that stage, to be actively under inquiry.

There was therefore nothing legally wrong with Mr McNeilage contacting the NotW to sell them the tape. It was not, for example, interference with evidence in a criminal investigation, despite various comments to that effect which have been made.

 

What Did Mr Sheridan Say in Court about the Videotape?

As mentioned in the Daily Record piece above, the tape had recorded a voice which seemed to be that of Mr Sheridan, and there was a fleeting glimpse of a person who might have been him.

As it transpired, in court both prosecution and defence called various witnesses who were asked if they thought the voice on the tape making the damaging admissions was that of Mr Sheridan. The Crown witnesses thought that it was, whilst the defence witnesses thought that it was not. All witnesses, with differing degrees of certainty, gave their opinions about whether the voice was Mr Sheridan’s or not.

Here, legally, matters are complicated by Mr Sheridan’s decision at an early stage to dispense with his QC and to represent himself. Whilst he exercised his right not to go in to the witness box, it is clear that, deliberately or not, Mr Sheridan took the opportunity of examining, cross-examining and re-examining witnesses to, effectively, give his own evidence, without fear of the prosecutor asking him questions.

At different times Mr Sheridan suggested; that a mimic had been employed to impersonate his voice (but his efforts to have Des McLean, a mimic noted for his impressions of Mr Sheridan, admitted as a witness were fruitless);  or that the tape might have been created from “bugged” conversations or phone messages.

Prosecution witnesses, including Mr McNeilage, who were asked about the tape had no doubts of its authenticity.

 

When Do the Non-Barking Dogs Make Their Appearance?

I will preface my remarks by saying that my speculations are not based on any direct knowledge of these matters but from what I hope is an “educated” guess as to what was happening, and also that no criticism of Mr Sheridan’s legal advisers is intended nor is any implied.

In a High Court case of this nature where there is physical evidence, like a video tape, both parties need determine if the evidence is genuine and whether or not the other party will seek to challenge this.

Scottish procedure requires that the Crown carry out full disclosure of their case to the defence, and in sufficient time prior to trial. The High Court will fix a Preliminary Hearing, and there can be a number of these in any one case, for the judge to ascertain how prepared all parties are for trial.

The Crown must disclose a list of witnesses whom it may call (if a witness is not listed then it is very difficult to have them called to give evidence) and a list of productions and “labels” being the documents and physical evidence in the case.

Therefore the defence would have had knowledge of the McNeilage Tape. This would have been discussed with Mr Sheridan by his QC and instructions given by him as to what was to be done about it.

Where, as must have been the case, Mr Sheridan disputed the tape’s authenticity, it is very hard to see that arrangements would not have been made for the video tape to be analysed, especially as, at the trial, Mr Sheridan drew attention to various “edits” in the recording. These, he suggested, might have been to get rid of any “mistakes” in the bogus confession recorded.

 

So, Were There Expert Reports or Not, and Why Did the Jury not See Them?

Now, whilst CSI and similar programmes have led us to believe that, from one fibre of material, the full events of a crime can be re-constructed, there is great technical expertise able to determine (a) if a recording is a true recording, or if it is made by “sampling” and (b) whether the voice or voices on the tape are likely to belong to a named individual.

So, in these circumstances, and despite hearing from many witnesses, did the court not hear from any experts?

There have been various theories expounded regarding this, one being that the Crown deliberately left their own expert off the list so as to allow them to question Mr Sheridan’s expert, whilst not leaving their expert open to attack.

That, whilst attractive to the “conspiracy” theorists, does not seem credible to me.

As far as I can surmise, and I quite accept I may be entirely wrong, the situation would have been as follows.

The Crown, in all likelihood, would have had the tape examined by an expert to see if it was genuine or if it appeared to be made of “off cuts”. In addition, the voice of the purported “Mr Sheridan” would have been analysed to see if an opinion could be given to the court about this.

 

A Short Digression on Expert Witnesses

Expert witnesses are lucky, in that they are the only witnesses who are properly able to tell the court their opinion, rather than simply giving factual evidence. Lay people often seem confused by the fact that two eminent experts can go into court, and give diametrically opposed opinions. I would never suggest that expert witnesses tailor their opinion to suit the side instructing them. That would be a gross dereliction of their duty to the court. The skill (or luck) lies in finding a suitably qualified whose evidence supports one’s thesis. I could, if I was an expert witness on football, for example, tell the court that it was my firmly held opinion that, in four years time, Albion Rovers would win the European Cup. Any number of pundits could explain how crack-pot that theory was, but no-one could prove that it was not my honestly held opinion (I don’t think Albion Rovers will win the European Cup in four years, by the way – give them six!)

As long as I have something, in that example to justify what I say, then I can give evidence, as an expert, which completely contradicts the opposing expert. It is for the judge or jury then to determine which expert’s evidence can be relied upon.

 

Enter, Stage Left, Peter Cadder

If the Crown expert said (a) that the tape was created from various different snatches of conversation and “knitted” together, or if the Crown expert determined that was not clear if the voice on the tape was that of Mr Sheridan, then the tape would not have been produced or mentioned in court. It would be a matter of grave concern if something like that had happened. In addition, under the rules of disclosure, such evidence would require to be made available to the defence, and if, notwithstanding the expert report or reports, the Crown had sought to introduce it, then the defence would have been easily able to discredit it.

It therefore would appear that the prosecution must have had favourable reports on these matters. Why would they not have introduced them in evidence?

Here we need to thank Mr Cadder.

Peter Cadder was convicted in 2009 of certain offences committed in 2007. However, he had ben interviewed by police without having had legal advice, and he challenged this as breaching his right to a fair trial under the European Convention on Human Rights. The Supreme Court in October 2010 ruled that statements obtained by the police in such circumstances were inadmissible.

How does this bear upon Mr Sheridan? The expert who analysed the tape for the prosecution would have needed a sample of Mr Sheridan’s voice for comparison purposes. Whilst Mr Sheridan has been a man very often heard on the radio and seen on television, to avoid evidential problems, the source material for such a comparison would normally be the accused’s police interview. However, in terms of the Cadder ruling, the evidence of Mr Sheridan’s taped interview with the police was inadmissible.

Now, as mentioned above, Mr Sheridan’s team must have obtained their own report or reports regarding these matters. If the defence experts agreed with the prosecution, then clearly they would not have been put before the court. It is not the job of the defence to assist the prosecution, but equally, if the defence position was that the voice, for example, was not that of Mr Sheridan, then normally expert evidence would be needed to make that case convincing (although the defence have no obligation to convince the jury of anything).

If Mr Sheridan had had favourable expert testimony, he could have agreed for this to be led. Even though the police interview with him was inadmissible as Crown evidence, the accused can have it introduced into evidence himself.

This then opens it up to the prosecution to refer to it. The genie is out of the lamp at that stage.

 

So, What Happened?

There are therefore, I think, two possibilities more likely than any others. Either the defence experts had little or no doubt about the provenance of the videotape, in which case leading their evidence would only bolster the prosecution, and in which case there would have been no incentive for the defence to permit the taped interview to be played or notwithstanding whatever the defence experts might have said, the tape contained admissions by Mr Sheridan which were damaging to his defence.

There were a number of prosecutions affected by the Cadder decision, being cases where police interviews with admissions by the accused had taken place prior to the Supreme Court decision, and in many the cases were dropped. The Crown felt that they had enough evidence (as it turned out they had) to convict Mr Sheridan without expert testimony regarding the video-tape.

I imagine that, at one of the Preliminary Hearings, the court had dealt with the question of admissibility of the videotape, and that the Court, as is normal in thees circumstances, had imposed reporting restrictions. During the course of the case there were at least four separate orders made by the court under section 4(2) of the Contempt of Court Act 1981 restricting or prohibiting reporting.  http://www.scotcourts.gov.uk/current/court_announcements.aspUnlike Perry Mason, Petrocelli and the rest of the American lawyers whose fictional cases appeared on TV, it is not permitted, except in the most extreme circumstances, for a High Court case to be de-railed by a “last-minute” surprise witness. Therefore, if the court had ruled out the Crown expert reports as inadmissible, the defence would not have been allowed to try to “sneak in” their own expert. If they had, thus waiving the right to object to the police interview being admissible, the judge would have allowed the Crown experts to testify. In all likelihood however, he would have refused to allow the defence expert evidence before the court unless the expert was on the defence witness list and it had been made clear he might be called.

The likelihood therefore that there were expert reports, but that these were not for playing before the jury meant that all parties had to tread carefully. I recall a case some years ago (not one in which I was involved, but one which happened to be on in the court in which I was at the time) where an accused had been convicted of a serious assault. Despite the fact that he apparently had a number of previous convictions, these had not been libelled by the prosecution against him. This meant that the judge could not take the previous convictions into account in passing sentence. The defence lawyer, treading carefully, told the court that his client appeared “with no previous convictions libelled against him” which is different from saying that he had none, or that he was a first offender, both of which would have been untrue. I am sure the judge noted this formulation but as he did not have the convictions before him, he could do nothing about taking them into consideration.

Here too, in the Sheridan trial, both sides had to step carefully round the issues, and, from all I have read, they seemed to do so very well, although I suspect there might have been times when there was some legal argument about precise references to the video and whether or not it was genuine.

It has also been suggested that each side planned to seek to discredit the other’s expert on this point and so an accord was reached whereby neither side introduced expert testimony. I fail to see the sense in that. If I was a defence lawyer with an expert witness challenging a substantial part of the Crown case, I would want his evidence before the jury, even if the Crown had an expert to rubbish mine. It all goes towards showing there is a reasonable doubt regarding guilt.

If my expert did not really support my argument however and especially if introducing him would have permitted the jury to hear damning confessions from my client, then I would want the expert and his report as far from court as possible.

(Again, as an aside, I should say that the making of admissions at interview is not always conclusive, and there have been various cases where the court has decided that, for example, there has been “interrogation” of  witnesses, which is treated by the law as unfair and renders the content of the interview inadmissible against the accused.)

 

Conclusion

As the trial continued, message boards and blogs dealing with the case were filled with discussions. There was rampant speculation about the video-tape and the expert evidence to deal with it. The supporters and enemies of Mr Sheridan drew up their battle lines, each side trying to explain why, by that stage, the expert evidence had failed to appear.

As we know, it never did.

If Mr Sheridan is ultimately successful in his appeal (and as of now there is no live appeal) there remains the possibility of a re-trial. In such an event his advisers would again have to consider very carefully whether the expert evidence is worth leading.

In addition, the NotW stilll has its appeal against Mr Sheridan’s damages award to be determined. There is a possibility too that this case could result in a re-trial. As this is not a criminal case, it may well be that the concerns about admissability of the expert reports disappear and, as a result, the full tape of Mr Sheridan might be heard by the High Court jury.

 

 

 

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