Tag Archives: High Court

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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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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Filed under Courts, Criminal Law, Human Rights

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


 

News broke last week, courtesy of Paul Hutcheon in the Herald that Tommy Sheridan’s appeal against his conviction for perjury had failed.

 

Was the News of the Failure of the Appeal Leaked?

 

Initially, there was a flurry of concern on Twitter suggesting that the news had leaked from the court in some way, as it was reported prior to Aamer Anwar, Sheridan’s solicitor, receiving official notification. However, it transpires that it was good, old-fashioned journalism. As Mr Hutcheon   tweeted on 4th August in response to a question as to how he had known to ring the court that day “I called them (the High Court) every 2/3 days after Aamer gave me a quote that he wd appeal to the second sift”.

 

What Happened to the Appeal?

 

To be permitted to have an appeal hearing, an appellant needs his appeal to “pass the sift” i.e. be granted leave, either by one judge (the first sift) or if failing at the first hurdle, by a panel of two or three judges (the second sift).

The rules for appeals in solemn case (i.e. cases heard by a jury) are dealt with in Part VIII of the Criminal Procedure (Scotland) Act 1995, as amended.

The appeal process is intended to be quick, with notice of appeal being lodged within two weeks of the conclusion of the case. Then the appellant must lodge, within a further 8 weeks, a written note of appeal “containing a full statement of all the grounds of appeal“.

In Mr Sheridan’s case, as we now know, he failed at both hurdles.  It has been reported that the judge who refused leave at the first stage was Lord Wheatley and last week Lords Hardie and Emslie and Lady Paton finally refused Mr Sheridan leave to appeal.

Following on the failure to pass the first sift, and prior to the decision of the second sift, the commentator, Lallands Peat Worrier, offered some interesting and valuable thoughts regarding the appeal process in this case  including reference to the challenges a “fresh evidence” appeal at a later date might face.

 

Why Did the Appeal Fail?

 

There has been speculation about what the grounds of appeal might have been. For example there was press attention given following the verdict to potential new witnesses whose evidence, it was reported, was going to be important in an appeal.

However, according to Mr Hutcheon’s article “Following the conviction, Sheridan’s solicitor Aamer Anwar sought leave to appeal on the grounds that pre-trial publicity denied his client a fair trial.

If that is correct, then there was little chance that the appeal would succeed and I will be putting up a separate post regarding recent “pre trial publicity” appeals.  It may well be that other grounds of appeal were argued but, as far as I am aware, this is the only one which has been publicised.

As is not surprising, “prejudicial” adverse pre-trial publicity is raised in many high profile cases. However, the success rate, either for appeals against conviction, or in asking the court to prevent trial in advance, is very low, if not non-existent.

In general however, the courts have taken the consistent line that a jury can always be carefully directed only to consider the evidence led in court in the course of the trial, and to disregard extraneous material. As such pursuit of an appeal based on nothing other that adverse pre-trial publicity seems a forlorn hope.

 

What Can Mr Sheridan Do Now?

 

Mr Anwar issued a statement indicating that the fight would continue  He stated that he had asked the High Court to suspend the appeal process pending the Strathclyde Police investigation into matters including the testimony of certain witnesses at the trial.

This request was refused by the High Court.  From time to time the Court gets annoyed about the way cases can drag on through the appeal process. In Gordon v HMA [2009] HCJAC 52, for example,   Lord Carloway  commented on the growing number of cases where there were delays, and he noted that “The procedure is not concerned with considering the prospects, remote or likely, of an appellant seeking to amend his grounds of appeal in the fullness of time.

On that basis, and until Mr Anwar can produce something concrete for the court, the appeal was going to be dealt with as it stood.

Mr Anwar indicated that, “We will consider if there are grounds for an appeal to the Supreme Court or whether to take the matter to the Scottish Criminal Case Review Commission on the basis of new evidence which may emerge as a result of the police inquiries.”

If Mr Anwar wants to appeal to the UK Supreme Court (UKSC) he will first need to ask the High Court for leave to appeal.

The High Court is the court of last resort in relation to Scottish criminal law, with the only exception being the jurisdiction of the UKSC which extends only to a consideration of a devolution issue which has been determined by two or more judges of the High Court: para 13 of Schedule 6 to the Scotland Act 1998.

The UKSC can therefore only deal with a case where a “devolution issue” has been raised. Under the Scotland Act, all ministers of the Scottish Executive must act in accordance with the European Convention of Human Rights (ECHR). It is illegal to act contrary to the ECHR. As head of the prosecution service in Scotland the Lord Advocate is obliged to act in accordance with the ECHR. Where it is alleged that the prosecution have failed to do so, by acting in a way which infringes the accused’s ECHR rights, then such a minute is lodged.

I have not seen coverage in the press indicating that such a minute has been lodged in this case, although one might expect that there would have been in respect of the pre-trial publicity point prior to the trial. If so, and it was rejected, then the UKSC can be asked to review the handling of the devolution minute.

If one has not been lodged, then there is nothing to be considered by the UKSC.

If the High Court refuses to grant leave to appeal, the appellant can ask the UKSC directly for “special leave” to appeal.

In the recent case of Fraser v HMA [2011] UKSC 24  the UKSC granted special leave on the basis that the refusal of the High Court to receive a devolution minute was itself a decision regarding a devolution minute and that the UKSC considered that there was a “strongly arguable” case that the High Court had got it wrong.

Based on what has been considered above, then it seems very unlikely that the UKSC would grant special leave, let alone grant an appeal.

 

The second route outlined by Mr Anwar is the Scottish Criminal Cases Review Commission. At any time after the normal appeal process is exhausted, a person who has been convicted can apply to the SCCRC if they consider that they have been the victim of a miscarriage of justice. The SCCRC will investigate the case and determine if they think there is an arguable case. If so, they can refer the case back to the High Court. Effectively this gives the appellant a second appeal, and if the SCCRC refer a case, it is treated as having passed through the sift process.

Therefore, if the ongoing police inquiry into the aftermath of the Sheridan case produces concrete evidence which can get past the hurdles for “new evidence” cases as mentioned by Lallands Peat Worrier and which casts substantial doubt upon the conviction, then there might still be a case for the High Court to consider. That however involves a great leap in speculating about what, if anything, the investigation uncovers and how relevant that might be to the guilty verdict.

 

Conclusion

 

Despite the fact that the case of HMA v Sheridan has, for now, formally concluded, I think it is highly likely that we will still be reading and hearing about it for years to come, as long as Mr Sheridan has the stomach for the fight, as I am sure he has.

And it could be said that the disposal of the case now actually works better fro him than if he had been permitted an appeal hearing.

An appeal hearing would have brought the matter back to the public’s attention, and especially if Mr Sheridan represented himself, then the case would probably have lasted some days. The High Court might well have passed adverse comment upon his conduct of the trial. That is not intended as a slight to him, but instead simply a reflection that, when in the dock in the High Court, it is usually advisable to have a Queen’s Counsel of great experience representing you.

Whilst, from all I have read of it, his final jury speech would have been a tour de force from a political platform, it wasn’t the right tone or content for a jury speech in the High Court.

For all his oratorical skill, a lot more than that is needed, especially when trying to keep a grip on a case running for almost three months.

Instead, Mr Sheridan, once he is released from serving his sentence, can say that he has been denied the opportunity to clear his name, whilst those he might perceive as “the guilty men” remain free.

I’m not qualified to say if this will help him politically, but it would be consistent with his political philosophy. He’d remain the underdog, fighting against the system and big business, and penalised, he might claim, for doing so.

And bearing in mind where the reputation of the News of the World now stands, who is to say he might not yet be able to make a comeback, in the same way that the former Labour leader in Glasgow, Pat Lally, kept doing, so as to gain the title “Lazarus?”

 

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

Some Essential Elements of Perjury

In light of the recent announcement by the Crown Office in Edinburgh that, amongst other matters, the evidence of certain witnesses at the trial of Tommy Sheridan last year is to be investigated, there has been interest in what actually constitutes “perjury”.

If a person, having sworn the oath or having affirmed, wilfully makes a false statement in evidence, such evidence being competent in the case in which given and relevant to proof of the charge or credibility of the witness, then perjury is committed under the Law of Scotland.

In this post, I propose to examine the final part of the definition, namely the relevance of the “falsehood”. Formerly the word “materiality” was used, but the High Court, in 1986, sought to discourage use of that term.

There is a requirement that the false evidence be relevant to the case at issue.

On the hypothesis that it is the witnesses from the News of the World (NotW) at the Sheridan trial who are being investigated (and all three of them maintain their innocence) how might this requirement of “relevance” apply?

The most authoritative recent statement came from the High Court in 1986, in the Lord Advocate’s Reference No 1 of 1985, cited below, where Lord Emslie stated, “All that is required is that it should be clearly understood that a charge of perjury will not lie unless the evidence alleged to be false was both competent and relevant at the earlier trial, either in proof of the libel or in relation to the credibility of the witness.”

(I have noted my thoughts below as regards how this might affect any prospective perjury case, and have “shown my workings” below that for those interested in a detailed review of the jurisprudence.)

 

Practical Applications of the Authorities

I have looked before at the specifics of possible perjury charges against the three NotW witnesses, Messrs Coulson, Wight and Bird.

There have been conflicting views expressed regarding whether or not their evidence at the Sheridan trial satisfies the “relevance” test.

Perjury cases in Scotland are comparatively rare, but seem to fall into certain distinct categories. Firstly, we have evidence given in a civil case (as indeed was the situation for Mr Sheridan) designed to put forward a false version of events, whether to succeed in a claim or to defeat one. Secondly, there is the situation where a defence witness in a criminal case gives perjured evidence with a view to having the accused acquitted (and the accused can commit perjury himself). Thirdly, there are cases where a Crown witness gives evidence at trial which varies from statements made previously to the police, again with a view to having the accused acquitted.

 This case is therefore unusual because of the position of the witnesses. Mr Coulson was called by the defence. Mr Wight was, formally, a Crown witness, but in fact only had that role as a courtesy to the defence and as soon as the formalities of Mr Wight’s identification had been dealt with, Mr Sheridan commenced his questioning. Finally Mr Bird was a Crown witness, but his cross examination by Mr Sheridan roamed far and wide, significantly beyond the area where his evidence was investigated by the Crown.

Neither Coulson nor Wight’s evidence had anything, formally, to do with Mr Sheridan’s conviction.

 

An Example

There are cases where the defence will call a witness, let’s call him “Smith” for the purpose of blaming them for the crime of which “Jones” is accused. The fact that Smith is not a Crown witness means that his evidence is not needed by the prosecution for the case against Jones to be proved.

Let’s assume Smith commits perjury in the witness box by denying he committed the crime. If Jones is acquitted, then that might indicate that the jury did not believe Smith’s denials and so found in favour of Jones. Justice has been done, and it is highly unlikely that Smith would be charged with perjury. Instead Smith might well face prosecution for the offence itself.

If Smith commits perjury, and Jones is convicted anyway, how likely is it that Smith would be charged? There would have to be credible evidence available to show that Smith lied, and by implication, that Jones was innocent. If there was enough evidence to convict Smith for perjury, that would appear to suggest that there was enough to clear Jones’s name on appeal.

In this example therefore there is (a) enough evidence to convict Jones without the testimony of Smith and (b) Smith, if he told the truth, would give evidence which would exonerate Jones.

 

The Effect on Mr Sheridan

But, with the exception of Mr Bird’s evidence regarding the “McNeilage Tape” none of the three witnesses were giving evidence with direct connection to the charges on which Mr Sheridan was convicted. Imagine for a minute that all three had agreed (which they denied) that the NotW paid “corrupt” police; that the paper had a culture of “phone hacking” and “criminality”; and that Mr Sheridan had been targeted on their instructions by Mr Mulcaire.

Would this have altered what Mr Sheridan was convicted of?

The final indictment put to the jury is linked to here. The jury passed verdicts of guilty on all charges under deletion of paragraphs (n), (N), (o) and (O) (being the Anvar Khan and Katrine Trolle affair charges).

As far as the remaining charges are concerned, there were a number of witnesses who gave evidence against Mr Sheridan. By implication, the jury believed them sufficiently to find him guilty beyond reasonable doubt on some of the charges, but not others.

None of the charges depended on the evidence of the NotW 3. Mr Bird’s role was simply to offer a link in the chain as to how the “McNeilage Tape” got to the NotW and thence to the authorities. Other than that, none of the three witnesses were there to make allegations against Mr Sheridan.

Therefore their evidence was not “relevant” to the case brought to the High Court as regards “proof of the libel”. Was it “relevant” as regards credibility? As has been mentioned above, the effect, in practice, of discrediting the NotW witnesses was almost a matter of PR rather than law. Mr Sheridan, as he had in the original trial in Edinburgh, painted a picture of himself as the principled politician, fighting for the working man, whom the NotW, a symbol of all wrong with capitalism, wanted to destroy by whatever means possible.

If the only witnesses against him had been from the NotW, then the “relevance” of the NotW 3 might well be different, but there were many witnesses against him in connection with the charges of which he was convicted.

The only specific area where there might be an argument regarding relevance, I think, relates to Mr Bird and the evidence he gave about missing emails, which the defence team had wanted to access. Beyond that, I see little or nothing that could properly be classed as “relevant” as per the analysis of Lord Emslie.

In addition, the fact that the evidence was heard at the trial, and either not objected to, or any objection being over-ruled, is of no moment here. It is a matter for the judge at any perjury trial to decide on the relevance of the evidence for this purpose. It seems clear that Lord Bracadale, the trial judge, gave Mr Sheridan far more leeway in his defence than he would if counsel had been acting for him. Judges generally give “party litigants” far more latitude than a professional adviser gets, for reasons of fairness. I suspect (though we will never know the answer) that if Mr Sheridan had retained counsel all through the trial, then the questioning of the NotW 3 would have been limited significantly by the judge.

 

Procedure

To assist, I offer a further example as to how, in practice, these issues would be dealt with.

Let’s imagine we have Mr Bloggs facing a perjury charge. For now, we will ignore all other issue other than the relevance of the charge against him. His legal advisers wish to argue that the alleged falsehood was not relevant to the case in which it was made by him.

As we have seen, this is a legal question, rather than a jury one. In these circumstances the defence for Mr Bloggs would raise a preliminary plea that the charge against him was legally irrelevant (by way of what is known as a “plea to the relevancy”). Confusingly this is not quite the same meaning as “relevant” as regards the allegedly false evidence.

A hearing would take place before trial and, if the judge ruled the allegedly false evidence was not “relevant” to the original case, then Mr Bloggs would be acquitted. If not, then he would later proceed to trial.

Because the matter is raised as a preliminary, the defence can reserve its position about whether or not the statement was false till after the “plea to the relevancy” has been dealt with.

 

Conclusion

Perjury strikes, as judges have often said, at the heart of the justice system. Witnesses in court must be aware that there are consequences for them if they lie. Witnesses ought not to be feel that they can lie with impunity.

However, the law, as it has been seen in Scotland for over 200 years, is quite clear. If false witness is borne, irrelevant to the case, then this is not perjury.

The Lord Advocate prosecutes in Scotland “for the public interest”. It is generally not seen as being in that interest for the Crown to pursue a case to trial where there are no reasonable prospects of a guilty verdict, even if, politically, it might be seen as advisable to proceed. It would be entirely inappropriate for a prosecution to proceed where political considerations were put ahead of legal ones.

For those reasons, I have grave doubts as to whether any of the NotW 3, with the exception I have mentioned, can competently face a perjury trial regarding the evidence given at the Sheridan Trial.

 

Postscript

Some might view my conclusion that little or nothing in the evidence of the NotW 3 can be classed as “relevant” as in some way giving them carte blanche to have lied. That is not the case at all. I am looking at this whole matter objectively, and have not started from the position of having already decided my conclusion.

Clearly, from what has been publicised already, Mr Coulson may well face court in connection with matters other than his evidence in the Sheridan Trial, but that is a discussion for elsewhere.

 

 

Detailed Analysis of the Authorities

Some cases, from time to time, have analysed the Scots law of perjury in recent years, and I will refer specifically to two, one now forgotten, if indeed ever noticed, and the other related to one of Scots Law’s causes celebres.

Aitchison v Simon

The first, which provides a helpful analysis of the historical basis of the crime is Aitchison v Simon 1976 SLT (Sh Ct) 73 where Sheriff S Scott Robinson dealt with a charge of perjury against Mr Simon arising from a trial where a charge of poaching had been laid. Sheriff Robinson considered the history of the crime in detail as he viewed the law as being, to his surprise, one where there was “a considerable measure of uncertainty”.

Sheriff Robinson applied the principles cited below to the case of Mr Simon. He decided that, as Mr Simon was alleged to have been an eye-witness to the events which were the subject of the original trial, his version of events was, of necessity, an important factor ion that trial. The question of his credibility as a witness must have been material to the decision in that trial. Accordingly the charge was a relevant one, and the trial of Mr Simon could proceed.

The law regarding perjury in Scotland can be traced back, as can many parts of the Scottish Criminal Law, to Baron Hume whose Commentaries were published in 1797.

Hume, who was the nephew of the famous philosopher of the same name, stated at i, p369, that the part of the oath which is challenged as false must be pertinent to the point at issue, and be relevant to some substantial facts which influenced the decision in the proceedings where the oath is made. False statements relating to minute or insignificant particulars which are not likely to affect the opinion of the judge of the oath are not to be deemed malicious. “Certainly however it is not meant to be said that a charge of perjury will not lie against a witness who is false in initialibus as one who is so in causa.”

The last sentence refers to the old Scottish practice where a witness was first asked “in initialibus” a series of questions to establish the following:  whether he knew the parities; bore ill will to any of them; had received or been promised any reward for what he may say; whether he might lose or gain by the cause; and whether he had been told by any person what to say. If these preliminary questions were answered to the satisfaction of the court, then the witness proceeded to give evidence “in causa” that is, in the case itself.

It should be noted that, where the early writers refer to the “oath” this is in fact what we would now refer to as the sworn testimony.

John Burnett’s “Criminal Law” published in 1811, the year after his death, at i, 206, states that it is not essential in every case that the falsehood challenged be, strictly speaking, material to the matters in issue. “The intent…to falsify may be as manifest in a trivial or collateral circumstance, as in the material fact to which the oath applies; while such apparently trivial circumstance may, from its relation to others, be of substantial importance in the cause…It may be different however with respect to an oath regarding a fact not pertinent or relevant to the issue. In such case, the oath being irregular and incompetent ought not…to be the ground for a prosecution for perjury.”

Sir Archibald Alison  published his work on “Criminal Law” in 1832. He states at i, 469, “That it is only essential to perjury that the subject matter of the oath should have commenced with a relevant and competent subject of investigation…It is impossible, too, to say that anything is irrelevant to the question at issue which goes to convict the witness of concealment or falsehood; because the maxim immediately applies, falsum in uno, falso in omnibus, and the witness whole testimony is set aside in consequence of his perjury, even in an inconsiderable particular.”

Lord Justice Clerk MacDonald,  as he became later, published “Criminal Law” in 1867. He stated at p 241 that the falsehood charged must be material, being pertinent to the party’s own qualification to make the oath or “credibility in making it.”

Sheriff Robinson then goes on to look at some of the old authorities.

In HMA v Smith 1934 SLT 485, Lord Justice Clerk Aitchison  held a perjury charge to be incompetent where the allegedly perjured evidence related to a conversation Smith had had with third parties outwith the presence of the accuse in the original trial. Even though this evidence had not been objected to at the initial trial, LJC Aitchison held that it was in fact evidence which ought not to have been admitted and as such it was incompetent to charge Mr Smith with perjury in relation to it. He considered that Messrs Hume, Burnett, Alison and MacDonald were all in accord in this regard.

In Angus v HMA 1934 SLT 501 Mr Angus appealed having been convicted of suborning perjury in the trail of a woman Ritchie for procuring an abortion upon a Miss Slaven. The case centred upon allegations Mr Angus had, outwith the presence of Ritchie, tried to persuade Miss Slaven to omit reference to himself in connection with her account of how she met Ritchie. Again this evidence was admitted at the original trial without objection. Mr Angus failed to have the verdict overturned. Interestingly, the court had a note of LJC Aitchison’s decision in Smith, but not a reasoned judgement at that stage. They reserved their views thereon.

Lord Blackburn noted that apparent conflict between Hume on one hand and Burnett and Alison on the other, stating, “For my own part…I prefer to views of Alison and Burnett to those of Hume.” He went on,” All I consider it necessary to hold in deciding this case is that, without any doubt, in a charge of procuring abortion, evidence as to how the person operated upon came into communication with the person charged with having procured the abortion is necessarily competent and relevant to the charge at issue.”

The authorities were reviewed by Professor Gerald Gordon who, at p995 of his 1968 text “Criminal Law” expressed the view that evidence touching credibility of a witness will be regarded as a proper subject for a perjury charge unless it is strictly incompetent and should never have been give at all (as in the Smith case). However, as regards materiality he states, “A false statement which is unimportant and trivial and has no bearing on the result of the process in which it is made, does not constitute perjury. Materiality is a question of fact to be decided by reference to the circumstances of each case.”

 

The Lord Advocate’s Reference No 1 of 1985

We now turn to the second principal case, the Lord Advocate’s Reference No 1 of 1985 1987 SLT 187. This case related to the trial for perjury of a witness at the so called “Ice Cream Wars” trial  . Six men were tried in connection with a vendetta with the Doyle family and the fire which killed six members of the family. Thomas “T C” Campbell and Joe Steele were convicted of murder. In 2004, after a long campaign to clear their names, their convictions were quashed .

The Lord Advocate’s Reference arises from a procedure where after an acquittal, the Lord Advocate could ask the Appeal Court to decide upon a point of law arising from the case, although this did not affect the acquittal of the accused. In this case, a witness “A” at the trial denied making a statement to the police implicating the accused, claiming that the statement was fabricated and that it had been obtained unlawfully. The judge at A’s trial directed the jury that, if they were persuaded that the statement had been obtained unfairly, then it must be treated as inadmissible and therefore any evidence regarding it could not found a charge of perjury and they must acquit. Later the judge, whilst explaining the nature of perjury, told the jurors that the falsehood must be material and relevant to the issue in the proceedings in which the statement was made. He stated that whether the statement was material and relevant was a question of fact for the jury. A was acquitted n one of four charges.

The Lord Advocate, Lord Cameron of Lochbroom, referred two questions of law to the High Court. The first related to whether, where the accused in a perjury case was not an accused in the original trial, it was relevant that a statement made by him and falsely denied under oath was allegedly obtained by unfair means and, secondly and most importantly for our purposes, whether in a trial for perjury the materiality of the false evidence to the issue in the earlier trial is (a) a prerequisite to conviction and in any event (b) a matter of fact to be left to the jury.

The case was heard by Lord Justice General Emslie , Lord Dunpark and Lord Brand.

Lord Emslie issued the opinion, with which his colleagues concurred, deciding that, in relation to the second question, the “materiality” of false evidence to the issue in an earlier trial was a prerequisite to conviction but only insofar as the word material is taken to mean nothing more than “pertinent” or “relevant” and that the question of whether the false evidence was material was not a question of fact for the jury, but was a question of law for the judge to determine.

Lord Emslie pointed out that the trial judge had erred in declaring the materiality and relevance of the falsehood to be a question for the jury. It was, as Sheriff Robinson had held, a question of law for the judge. Lord Emslie noted that the issue for the court in the second question was “whether false testimony which was not only competent and relevant in proof of the substantial facts in the trial (i.e. whether the crime libelled had been committed and if so whether the accused are identified as the perpetrators) must also, in order to amount to perjury, have had a ‘material’ bearing on the result of the trial, and, if so, whether ‘materiality’ in that sense is a question of fact for the jury at the trial for perjury.”

He indicated the problems which would be caused by the question being one for the jury. Prosecutors in the original trial would become more involved as witnesses in perjury cases, and there would be evidence led to argue for and against the evidence being material. He stated, “There will clearly be logical difficulties when the evidence is directed solely to the credibility of a witness who may in the end give no useful evidence against the accused.”

Lord Emslie noted that until 1935, there was no support in the authorities for the proposition that “material” meant anything other than “relevant” or “pertinent”.

The court then reviewed the authorities in the same way as Sheriff Robinson.

Taking the passage from Hume referred to earlier, Lord Emslie indicated that he felt the passage must mean no more “than that the oath which is challenged as false must be pertinent i.e. relevant, to the point at issue in the sense that it relates to some of the substantial facts which may have an influence in the decision (or to the credibility of the witness).”

The reference to “minute or insignificant particulars” he took to be referable to the jury’s right to decide whether the falsehood was wilful and corrupt, and helped indicate circumstances where the Lord Advocate would not elect to institute proceedings for perjury. This, Lord Emslie felt, was entirely on all fours with the passage from Burnett referred to above. He stated that the passage from Alison quoted earlier put the matter “beyond doubt” and the section from MacDonald was in agreement too.

He then referred to Strathern v Burns 1921 SLT 128  where the Lord Justice General, Lord Clyde  said “It is quite true that the pertinence or relevancy of the false testimony is necessary to a conviction; but the only matter of fact on which the pertinence or relevancy of the false testimony turns is that it was given in evidence in the course of proceedings in a cause which is sufficiently described in the complaint. Once that fact is established, all that remains is a question of law.” He identified that the “heresy” regarding materiality being a jury question arose from the dictum of Lord Morison in Angus.

Lord Emslie then noted that the passage in Gordon was not supported, in the view of the court, by the authorities cited in relation thereto.

To conclude, Lord Emslie indicated that “in light of all that has been said in my review of the law of perjury since the time of Hume it would be well if the word ‘material’ ceased to be employed in describing the crime. All that is required is that it should be clearly understood that a charge of perjury will not lie unless the evidence alleged to be false was both competent and relevant at the earlier trial, either in proof of the libel or in relation to the credibility of the witness.”

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The Ever Expanding College of Justice in Scotland

 

The erudite and thought-provoking blogger Lallands Peat Worrier has written an interesting post regarding the UK Supreme Court bench, and the damage there might be to the standard of the Senators of the College of Justice left at Parliament House if, continually, the cream is taken down to London.

In addition, Robert Black QC commented about how the numbers had increased, from the days when the entire bench could fit in one court room, if only for ceremonial occasions. Now one thinks that the Usher Hall need be hired to fit them all in.

I thought that a wander through the archives might show how the number of High Court Judges in Scotland has increased over the years.

Apparently, as per Wikipedia, which may not be authoritative on this point, there were 15 Senators in 1689, when the Lord President was Lord Stair.

The numbers varied as the years went by, increasing and decreasing according to circumstances.

In modern times, the Administration of Justice (Scotland) Act 1948 envisaged a maximum number of 13 Senators. At that point the Lord President was Lord Cooper.

This maximum had been increased by the 1968 Act of the same name to 19. In 1968 Lord Cooper’s successor, Lord Clyde, was still in place.

Over the years after that by way of Statutory Instruments, the numbers continued to creep up.

By the time the number had been increased to 24 in 1986, Lord Emslie was in charge of the Court as he was when the following legislation was passed too.

In 1988, after sterling work by the Scottish Law Commission (SLC), the Court of Session Act was passed, as a consolidation of the various statutes dating back many years. This, in Section 1 (1) specified that the maximum number of judges was to be 24.

Since then, the prosaically titled “Maximum Number of Judges (Scotland) Orders” have been forthcoming every few years.

In 1991 the number went up to 25, the Court now being presided over by Lord Hope. In 1993 we saw an increase to 27 and there was a further jump to 32 in 1999 by which time Lord Rodger was Lord President.

The numbers rose to 34 in 2004 under Lord Cullen and that is where the number stands today.

Interestingly there was a temporary increase in 2009, under the Maximum Number of Judges (Transitional Provisions) (Scotland) Order, of the number of judges to 35 for the period from 1st September 2009 till 30th September 2009.

That arose because Lord Bonomy, who had been sitting as a judge on the International Criminal Tribunal for the former Yugoslavia, had come to the end of his term in the Hague, and he was due back one month before Lord Nimmo Smith was due to retire. To allow Lord Bonomy to be sit and to be paid, it was necessary to pass the Order referred to, and the maximum went back to 34 on Lord Nimmo Smith’s retirement.

Why has there been this increase over the years?

Traditionally the blame is placed on the ever growing number of High Court prosecutions, and the additional number of procedural hearings created in an effort to have the High Court run smoothly. The recent changes to personal injury procedure too have caused increased work, as cases are scheduled for proof or trial within around a year of being raised, a vast improvement over previous timescales.

In the SLC report preparatory to the 1988 Act, it was stated that, of the 24 Senators at the time, it was common to have at least 10 of them dealing with criminal trials at a time.

Bearing in mind the need for judges for the civil court, and for the First and Second Divisions for appeals, it was felt that an increase would help solve the problems.

However, as happens when a new motorway is opened, which though initially clear of traffic, is soon gummed up, and the calls for new bypasses start again, each time the numbers have gone up, the Senators have fairly quickly found their days filled.

Indeed if it was not for the presence of temporary judges, now subject to statute under the Judiciary and Courts (Scotland) Act 2008, the High Court and Court of Session would grind to a halt.

There are presently 17 temporary Judges, 11 of whom are Sheriffs, or Sheriffs Principal, the remaining 6 being practising QC’s.

Some years ago there was a controversy about “justice on the cheap” on the basis that a sitting Sheriff could sit as a temporary Judge, at little or no extra cost, and the Sheriff would be replaced in his own court by a part time Sheriff. Thus, for the cost of a part time Sheriff, a temporary Judge in the High Court became available. However, the complaints about that soon fizzled out, as there seemed to be a consensus that the system required suitable and experienced Judges in the Superior Courts, whether from the Bench, the Bar or the Sheriff Court.

There must come a “critical mass” situation however. There are around 400 hundred practising advocates at the Scottish Bar, of whom around 117 are silks.

This is a small pool from which to fund new judges. There seems to be a reluctance to appoint former Sheriffs to the High Court Bench. By my reckoning there are three just now, namely Lords Matthews, Wheatley and Bannatyne (Iain Peebles, as he was).

Standing that 11 of the 17 temporary Judges are Sheriffs, it seems an odd imbalance. Maybe Sheriffs from out of the capital don’t want to have to move to work in Edinburgh? Who knows?

It is also of interest that no solicitor-advocates have yet been appointed as Senators. One assumes that day must come, as the number of solicitor-advocate QC’s increases.

Will we see ever increasing numbers of Senators of the College of Justice? If as the Lallands Pear Worrier thinks, we might need more Scottish judges sitting on, or available for, the UK Supreme Court, then extra bodies may well be required. Does the Scottish legal profession have enough talent for about 10% of the available lawyers to be sitting as Superior Court judges?

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