The last of the three witnesses whose testimony in the Sheridan trial whose evidence is said to be subject of investigation by Strathclyde Police is Bob Bird, the Scottish editor of the News of the World (NotW) for the last 10 years.
Prior to his involvement in the Sheridan case, one of Mr Bird’s main claims to fame was that he had been married to Jackie Bird, the doyenne of Scottish television news. I believe however that his name may well become even better known now, and that, on the information publicly available now, he may well face charges himself.
Mr Bird gave evidence over several days in November 2010 at the High Court in Glasgow.
In the middle of Mr Bird’s cross examination the press gave further publicity to phone kicking allegations, which provided Mr Sheridan with additional ammunition for his questioning.
Mr Bird was called as a Crown witness, and properly as one; not as a courtesy to the defence a la Douglas Wight. That fact on its own means that, in my view, any perjury on the part of this witness is likely to have a greater bearing on Mr Sheridan’s appeal, should it be allowed to proceed. For the avoidance of doubt, I am not suggesting that it will be more helpful, but simply that the fact the Mr Bird was led by the Crown makes his testimony of greater importance.
In addition, I am not offering any view in this piece regarding the value or otherwise to Mr Sheridan’s appeal of the emails thought by Mr Bird to have been lost in Mumbai, as referred to below.
I assume, as with the previous witnesses, that it is Mr Bird’s position that he told the truth to the best of his knowledge and he would deny any accusation of perjury which might, in due course, be brought against him.
Bearing in mind that the Crown Office move to look at these witnesses came last week, amidst the growing NotW scandal, it can be assumed that the issues where the evidence will be most scrutinised are those relating to phone hacking, private investigators and payments to police officers. On that basis, I do not propose, for example, to go over the evidence given by Mr Bird regarding the “McNeilage Tape”. If there were suggestions being seriously considered by Crown Office that this tape had been fabricated, as was alleged by Mr Sheridan at his trial, then, at the very least, Mr McNeilage too would be subject to enquiry.
In addition, the evidence given about payments to witnesses will be passed over by me, except for tangential matters.
Finally, by way of introduction, I again thank James Doleman for his comprehensive Sheridan Trial Blog, found at http://sheridantrial.blogspot.com/ upon which this piece is based. The search facility on the blog will link to the relevant accounts of Mr Bird’s lengthy evidence.
Any errors in analysis or interpretation are mine and mine alone.
Perjury
To recap, in Scots Law, perjury is committed by a witness or party knowingly making false statements under oath in court proceedings. The matter has to be of relevance to the proceedings in which the allegedly perjured evidence is given, and requires to be material.
Mr Bird had given evidence for the NotW in the defamation case brought by Mr Sheridan in 2006. In that case Mr Bird had given evidence that Ms Katrine Trolle had never been offered money by the NotW for her story. In answer to Mr Prentice, the prosecutor, Mr Bird confirmed that he had later discovered that Ms Trolle had been offered payment, but she had declined this.
Mr Sheridan also raised this matter, asking if Mr Bird had disclosed all of the witnesses that had been paid or offered payments. Mr Bird responded “yes, we have now”. Mr Bird explained again, having been questioned about his use of the word “now”, that in the original case he had stated that Katrine Trolle had not been offered any money by the newspaper but had found out after his testimony that she had. Mr Bird added that this was a “genuine mistake” and denied Mr Sheridan’s assertion that this amounted to “perjury”.
I suggest this issue has no bearing on the present investigation.
The News of the World – General Matters
Mr Sheridan asked Mr Bird if his newspaper “always told the truth” The witness replied that it “did its best.” Mr Sheridan then asked Mr Bird if he had ever met Rupert Murdoch. Mr Bird replied they had met “half a dozen times” but had never discussed this case with Mr Murdoch or any of his family.
Whilst it might be arguable if, to the outside world, the NotW did do its best to tell the truth, a matter of opinion like that would not found a perjury case. In addition, even if it turns out the Mr Bird was a regular dinner guest of Mr Murdoch, that, on its own, would not amount in my view to perjured evidence likely to give rise to prosecution.
Mr Sheridan produced to Mr Bird excerpts from the Newspaper Editors’ Code of Conduct and asked if he complied with them. Mr Bird replied that the NotW “do our best to.” Mr Sheridan highlighted the section on “clandestine devices and subterfuge” and asked if the NotW followed that section of the code and again Mr Bird said we “do our best to.”
This might best be described as a “pious hope” perhaps. If there had been more detailed cross-examination of Mr Bird as to what exactly the witness meant by this, or what procedures and protocols were in place and how they operated, then these answers could potentially be problematic. In the absence of that however, I can’t see how these responses are objectionable (in the legal sense anyway).
Following Mr Sheridan’s questioning regarding the offer of payment made to Ms Trolle, Mr Bird denied the suggestion that the NotW considered itself “immune from prosecution.”
The recent admissions by Commander Yates of the Metropolitan Police about failings in the investigation might lead one to believe that the NotW thought it did have some immunity from prosecution, but again this is an expression of opinion, both by Mr Bird and then by me.
Regarding the witnesses to whom payments were offered or made, Mr Sheridan pointed out that the Editors’ Code of Conduct forbids payments to witnesses in “active legal proceedings”. Mr Bird responded that he did not regard the case as “active” when the payments were made; adding that he knew there was an investigation but not an active case.
Mr Bird’s response might be legally incorrect, but that does not render it perjury.
Mr Sheridan later put it to Mr Bird that the NotW practised “cheque book journalism” and that people who had “smelled the big money would be prepared to say anything.” Mr Sheridan claimed that the culture at the newspaper was one of “publish anything as the subjects would not have the resources to go to court”. Mr Bird denied this.
This is a further matter where Mr Bird is in disagreement with the prevailing public mood, but again, when expressing an opinion, it is very difficult to commit perjury.
As cross examination progressed, Mr Sheridan asked a series of questions about the size of News International, and Mr Bird confirmed they owned the Sun, the News of the World, the London Times and the Sunday Times as well as a “fair chunk” of Sky TV. Mr Sheridan put it to Mr Bird that the group was “powerful” and that one of its ex-editors, Mr Coulson, was (at the time) the Government’s head of communications. Mr Bird agreed the group was powerful, but said it always also did its best to be truthful.
If repeated now this answer might have provoked the response noted in trial reports as “Laughter in Court”.
Mr Sheridan quoted from a report of the Parliamentary Committee on Culture, Media and Sport which had described a “collective amnesia” amongst the newspaper’s executives into the scale of the group’s phone hacking activities. Mr Bird had already been asked about this, referred to below. He repeated that the committee was “biased” as “MP’s do not like tabloid newspapers poking around their private lives and expense claims”.
Interestingly, at the time, I do not recall a great deal of publicity being given to this answer and the attitude it exhibited of the NotW towards MP’s. It might help to explain the rush of MP’s now to assail News International, and helps to make clear why there were only a few, such as Tom Watson and Chris Bryant who seemed willing to put their heads over the parapet. However politically unwise Mr Bird’s answer might have been, it can’t be perjury. In fact, other than the accusation of bias, his answer might well be true.
Private Investigators
Mr Sheridan asked if the NotW had employed any private investigators in his case. Mr Bird replied that they had once, to try and track down Duncan Rowan before the 2006 libel trial but the investigator had failed to find Mr Rowan. Mr Bird was asked about the use of an investigator, Mr Whittamore, by the NotW. He had indicated that he was aware of ten occasions that the paper had used Mr Whittamore’s services.
After the weekend adjournment, Mr Sheridan asked whether in light of the publicity pertaining to News of the World phone tapping activities Mr Bird would like to change his evidence regarding use of private investigators in the case. Mr Bird declined to do so.
Mr Sheridan described new evidence that showed Douglas Wight, former Scottish NotW News Desk editor and current national NotW Features Editor had used Mr Whittamore seventy times for enquiries, not the ten times that Mr Bird had previously stated. Mr Bird replied that he had only seen ten records of payment to Mr Whittamore on the system.
This area of questioning could be a cause of difficulty for Mr Bird, depending on what new evidence might be available. However again any perjury case would be based on the material nature of any incorrect testimony given by the witness, and the precise wording of the questions becomes very important. A witness is entitled to tell the court a recollection which turns out to be wrong, as long as the witness is not wrong deliberately.
Mr Sheridan asked whether “legal enquiries” of the sort undertaken by private investigators hired by NotW was a cover for illegal activities. Mr Bird replied that NotW had made much greater use of private investigators like Mr Whittamore ten years ago but had not realised at the time that they used illegal methods to get information.
This comment by Mr Bird was obviously made in light of the earlier conviction of Mr Whittamore, but seems to be one of the rare public admissions that the NotW did use people who used illegal methods (though not an admission that the investigators used illegal methods when working for the NotW.)
Mr Sheridan asked Mr Bird if he had any dealings with Glenn Mulcaire. Mr Bird denied this.
Again the question here is what more information the authorities have. Are there documents suggesting Mr Mulcaire was known to Mr Bird? Would Mr Mulcaire state such on oath?
As a brief digression, I should explain that in Scots law a “Commission” is a procedure used to recover evidence and documents. People who have had possession of the sought after documents are called to give evidence at the “Commission” to allow the Commissioner to see about tracking down such information, or working out where it has gone. Mr Bird had given evidence to the commission dealing with this case, where he had stated that the NotW had not employed any private investigators in relation to this case. Mr Sheridan made reference to that response, calling it a “lie” in light of Mr Bird’s subsequent evidence. Mr Bird replied that the NotW had employed a private investigator to try and find Duncan Rowan, but as the investigator had not found him he had forgotten about it. Mr Bird admitted he had “got that wrong” and when he had checked he had found that “one instance.”
On the basis that Mr Bird was admitting to having given mistaken evidence previously, it might be much harder, in the event that it was shown that other investigators were involved, to pass this off as simply a mistaken recollection.
Mr Sheridan asked the witness if he had been involved in hiring the private investigator who had hacked his (Mr Sheridan’s) phone. Mr Bird denied he had ever done such a thing.
Here again the questioning makes any issue of perjury difficult to prove as regards this answer. The question conflates two issues. 1 Was Mr Sheridan’s phone hacked? 2 Did Mr Bird hire an investigator to do so? Without clear and specific questioning, it would be very hard to establish that the answer to the question, as asked, was perjured.
Mr Sheridan asked the witness again if he had had any dealings with Glenn Mulcaire or if any check had shown up any invoices in the aliases he used (Paul Williams and John Jenkins). Mr Bird repeated that he had no dealings with Mr Mulcaire. Mr Sheridan then asked if Mr Bird was aware that Greg Miskiw was Mr Mulcaire’s “handler” within the News of the World. The witness replied he did not. Mr Sheridan put it to Mr Bird that Mr Mulcaire had an “exclusive contract” with the NotW but Mr Bird said he had no knowledge of that.
As before, any difficulty for Mr Bird regarding these matters would arise from documentation showing his evidence was incorrect. However, replying that one has no knowledge of something which it turns out later one does know, can be excused as a lapse of memory, rather than as a lie.
Mr Sheridan then produced three pages of what he told the court were copies of a notebook found when Mr Mulcaire’s house was raided by the police. These notebooks appeared to contain Mr Sheridan’s address, postcode, mobile telephone number, the name of his telephone provider and what Mr Sheridan said was his “PIN” number. There was also a reference to “Gregg” in a note beside the details and two dates, 14/09/04 and 26/07. Mr Sheridan put it to Mr Bird that these were the dates when the NotW was preparing their articles about him. Mr Bird pointed out that the second entry had no year, but agreed that the dates were around the time of the publication of Anvar Khan’s book, Pretty Wild and the NotW’s subsequent article based on it. In light of this evidence, Mr Sheridan asked Mr Bird if he was “surprised that a private investigator with an “illegal track record”, an “exclusive contract” with the NotW and based in London, would have “my details.” Mr Bird said he was.
Should there be evidence linking Mr Mulcaire to Mr Bird regarding this matter, then this answer could be problematic but again the answer lacks the precision, in my view, that there would need to be before the answer could lead the witness back to the court. There might be many reasons why the witness would be surprised, not necessarily that he was saying that there was no role for Mr Mulcaire in the NotW’s investigation of Mr Sheridan.
Payments to Police Officers
In connection with the issue as to when Mr Bird became aware of the police investigation, Mr Sheridan produced a copy of the NotW from the 20th August 2006 and directed Mr Bird to the following story extract.
“A force insider said they wanted to discover anything added or taken away. Barbara [Scott] said during the trial she did not have the notes but after the trial had ended we can reveal she discovered them and handed them to police. The perjury probe is expected to last three months. Strathclyde Police are also involved.”
Mr Sheridan asked about the “force insider” quoted in the article and asked if this would have been a police officer. Mr Bird told the court that the phrase had come from the reporter and he assumed it was a contact in the police force. He added that he had no contact with any police officer. Mr Sheridan then asked if the paper would have paid this force insider. Mr Bird stated that it was not normal practice for the paper to pay police officers and that “to his knowledge” the paper had never paid one.
Here arises one of the most important issues and one of those which has seen Mr Coulson arrested by the Metropolitan Police. The question of the NotW and its dealings with the police heads the news bulletins. Mr Bird admits in his evidence that the statement referred to came from a police source, or at least he assumed it was. However, he denies that it was the practice of the paper to pay police officers and “to his knowledge” the paper had never done so.
Might there be evidence that Mr Bird was aware of, or involved in, payments to police officers. He has denied this on oath. He was a senior executive in the NotW, being the Scottish editor. If payments were made in London, would he have known?
Bearing in mind the comments made by Rebekah Wade, as she then was, before a Parliamentary Committee in March 2003, when she said “We have paid the police for information in the past”, it might appear that Mr Bird was “out of the loop” or didn’t pay attention to what his bosses were saying!
As far as perjury goes, the problem is that, unless shown to be directly involved in these activities himself, I don not feel that Mr Bird is in jeopardy. If however there now exists evidence linking Mr Bird to such payments, then perjury would be a concern (amongst a number of others) for him.
Phone Hacking
Mr Sheridan put it to Mr Bird that he was at the heart of Wapping culture, was part of the illegal culture of phone tapping there, and was a News International “hack” to whom accuracy and truth were unimportant if it got in the way of a story. Mr Bird denied this, stating he did not believe phone tapping was part of Wapping culture and was certainly not practised in Scotland.
Here the dossier provided by Mr Anwar, Mr Sheridan’s solicitor, to Strathclyde Police might be of relevance. Does this disclose evidence of phone hacking taking place in Scotland? If so, can this be laid at Mr Bird’s door? Any answer about the “culture” is a matter of opinion, but a denial of phone tapping taking place here might pose difficulties for Mr Bird. Once more the precise terms of the questioning is important. There may well be a large difference between “phone tapping” and “phone hacking”. If Mr Bird was asked specifically about “tapping”, and, purely for the purpose of this hypothetical, the practice of “hacking” was rife, then it would not be perjury to say there was no phone “tapping”. Perhaps Counsel for Mr Sheridan might have focussed in on the actual practices, rather than the headline title. That might have made a difference to what we are looking at now.
As I have referred to before, Mr Sheridan had earlier quoted the report of the Select Committee which, according to Mr Sheridan, alleged there was a slush fund which showed the editors of the NotW condoned such payments on a “not need to know basis” as long as this provided “good copy.” Mr Bird replied that people should “bear in mind” that the Parliamentary Committee was “anti-News International” and had a “political agenda.” He denied there was any “culture” of phone hacking at the newspaper.
Here again we have the issue about questions concerning “cultures”. One may perceive a “culture” when another would not. Such differences of opinions do not constitute perjury. It is of note that the Scottish Editor of the NotW was willing to express such trenchant views about Parliamentarians and their motivations. It is rather naïve for Mr Bird to complain that a Committee of MP’s might have a political agenda!
Under this heading Mr Sheridan put again to Mr Bird that he had “broken the law by ordering illegal surveillance” and planting “listening devices” Mr Bird replied that was “not true.”
This one seems nice and simple. If there is corroborated evidence that Mr Bird did do what he denied, then one can see matters going further. However, even here the lack of precision acts to help Mr Bird. If, for example, Mr Bird ordered surveillance which he believed to be legal (and again this is a hypothetical) then his answer would be legally incorrect, but not perjury.
E-Mails
The retrieval of e-mail evidence, very much now the cause celebre, was raised by Mr Sheridan. Mr Sheridan’s defence team had been looking for various emails specifically regarding the NotW’s dealings with one of the parties with whom Mr Sheridan was alleged to have had an affair and the issue of phone hacking. Whilst some were produced, many were not. Mr Bird stated there was a six month black hole in the NotW e-mail archive, which was stored with a company in India, and that these e-mails had not been able to be retrieved.
Mr Sheridan later took Mr Bird through his evidence at the commission charged with locating documents to be used in the trial. He accused Mr Bird of being obstructive during that process, which Mr Bird denied. Mr Bird repeated that the NotW had lost “six months” worth of emails due to a decision to archive them in Mumbai.
This area would appear to be the one with most risk for Mr Bird. By the end of January 2011 it was revealed that, in fact, the emails had not been lost. The Independent reported http://ind.pn/hSRgAm that the emails were in fact available, and stated that “News International now says Mr Bird unintentionally misled the court, but insists that all the emails sought by the defence were disclosed to it either by the newspaper or the police.”
In June 2011 the Guardian reported http://bit.ly/mCzRVZ that the Information Commissioner had ended his investigation into the “missing” emails, having been assured that none were in fact missing!
“Christopher Graham said on Friday the News International subsidiary had told him that, contrary to the earlier claims of a senior executive, it had not transferred archived emails to India and none had been lost.
“We have received assurances from News Group Newspapers (NGN) that in fact no emails were transferred to India,” Graham said in a statement. He added he had “seen no evidence to contradict this assurance”.
As mentioned, the News International spokesman said that Mr Bird unintentionally misled the court. Bearing in mind that Mr Bird offered a scenario explaining why the emails could not be produced, which scenario turns out to be wrong, this seems, to me, to be the area most likely to lead to one of the witnesses at the Sheridan trial appearing in the dock charged with perjury.
Where did Mr Bird get his information from? How was he misled about what had happened to the emails? Who must have told him, in error, about the data transfer to Mumbai?
As I discussed in my earlier pieces, it is easier to commit perjury by advancing a scenario or providing as detailed reply, rather than simply answering yes or no to questions that might be imprecise.
Interestingly, it might not be the recovered emails themselves that cause Mr Bird most trouble, but instead the fact that they never disappeared at all. On one view there was action taken and replies given which prevented information legitimately sought by the defence from being put before the court. That evidence might have been of no use to Mr Sheridan – in fact it might even, depending on what it said, have harmed his defence, but the Scottish Editor of the NotW, whether unintentionally or not, acted so as to deprive the court of relevant information.
Conclusion
The matter of the email evidence, its alleged disappearance and subsequent retrieval, is clearly material, substantial and relevant to the case.
One issue might be though why it is only now that the matter seems to be being investigated. Mr Anwar indicated in January 2011 that, once it became apparent that the emails had never enjoyed a trip to the sub-Continent, he wished to raise the matter with Crown Office. What action has been taken by Crown Office, if any, regarding the matter of the email evidence till now? Why has it taken so long?
Bearing in mind that one of the reasons for Mr Sheridan being prosecuted for perjury was because of the damage that perjury causes to the integrity of the judicial process, one can well imagine circumstances where, subject to what the police and prosecuting authorities discover, the former Scottish Editor of the former NotW finds himself sitting in the same dock occupied previously by Mr Sheridan.
Random Thoughts Re Scots Law by Paul McConville 