Tag Archives: Perjury

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

 

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.

 

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

 

 

Perjury in the law of Scotland is the making of false statements under oath, the statements having to be competent evidence in the case in which they were made, and material to the subject of the case or investigation. There requires to be proof beyond reasonable doubt that the statement or statements are false and there requires to be evidence from at least two sources.

In a case where the accused has “spun a line” by advancing under oath a case he knows to be untrue, as the jury determined Mr Sheridan had done, the questions that prompt the perjured statements are of lesser importance.

However, where it is alleged that answers to questions have been perjured, then the precise wording of the question becomes vital.

It might, as I explain below, turn out that Mr Sheridan’s decision to dispense with Counsel and to act for himself could let Mr Coulson off a hook he might otherwise have been on.

A few months ago Barry Bonds, a famous baseball player, was tried for perjury in California in connection with allegedly perjured evidence he gave to a Grand Jury about steroid and other drug use. Because many of the questions asked to him were rhetorical, and multi claused, by the end of the case many of the allegations had disappeared from the indictment against him. Put simply, if he was not asked a straight question, it was difficult to prosecute him for giving a false answer, especially where the answers in turn were inspecific and woolly. In a different way Mr Coulson might be the beneficiary of Mr Sheridan’s lack of legal expertise, notwithstanding his undoubted oratorical talents.

I should state that Mr Coulson has at no time accepted that he committed perjury in connection with the Sheridan case and therefore remains an innocent man. These thoughts are entirely speculative, in light of information publicly available to date.

 

Today, in the midst of the storm regarding the now about to disappear News of the World (NotW) the Crown Office confirmed that it had asked Strathclyde Police to investigate the evidence of “certain witnesses” who gave evidence at the Tommy Sheridan perjury trial.

Clearly the Crown Office has not identified the parties involved, and no action has yet been taken regarding them, so it is appropriate to speculate as to whom, in and in relation to what, the police will be examining.

The first name springing to mind is Mr Coulson, former editor of the NotW and former Director of Communications for David Cameron.

Mr Coulson was called by Mr Sheridan to give evidence for the defence at the High Court in Glasgow in December 2010.

As always, my notes of what took place are based upon James Doleman’s marvellous Sheridan Trial Blog, found at http://sheridantrial.blogspot.com. Some day all trials (of importance) will be covered this way.

So where might Mr Coulson have erred in his evidence?

 

Payments to Police Officers

This area is, on what has been made public so far, probably the most troubling for Mr Coulson. In connection with this issue, Mr Sheridan asked “did the News of the World pay corrupt police officers?” Mr Coulson replied, “Not to my knowledge”.

Now, according to press reports, the NotW has given confirmation to the police of payments connected to Mr Coulson to police. That, at first sight, seems an open and shut case. If Mr Coulson did authorise such payments, the surely he has committed perjury?

But he was asked if the NotW paid “corrupt” police officers. Therefore he could say that the NotW did not pay “corrupt” officers, but instead paid honest ones. As the wise blogger and Twitterer @loveandgarbage pointed out, the Prevention of Corruption legislation makes payments like this illegal both by the donor and the recipient. However, if Mr Coulson believed these were legitimate payments, tied in perhaps with the “crime fighting” role of the NotW, then the fact that, in law, recipients of the payments were ipso facto “corrupt” would not be enough, in my view, to establish perjury. Ignorance of the law cannot make a statement false where the person believes it to be true.

If Mr Sheridan had still bee represented, then the questioning would probably have been in more depth and detail (if of course Counsel had agreed to call this witness and follow this line).

If Mr Coulson had given the same reply to a question as to whether the NotW had paid any officers, he would be in clear difficulties. After all, he sat beside Rebekah Wade, as she then was, when she told the House of Commons Committee that the NotW had paid police officers.

One interesting practical point is whether or not Mr Coulson ought to have been cautioned by the judge before he answered the question that he was not required to answer it, where there was a risk he might incriminate himself in a criminal act. If so, could he argue that it would be an inappropriate act of the Lord Advocate under the Scotland Act to prosecute him for perjury in connection with that answer, where such a caution was not given?

After some thought, it seems that this would be an issue for any trial, but not a preliminary point. The case of Graham v HMA 1969 SLT 116 seems to deal with the issue. Here a challenge to the competency and relevancy of a perjury indictment failed where the accused had answered a potentially self incriminating question in a murder trial without the judge cautioning him. The court held that, as perjury was a separate matter from the original offence, that it was entirely proper for such a case to be tried in the absence of a caution. The court said that the issue could be addressed at trial, taking account of all the circumstances under which the evidence was given.

On balance therefore, the absence of a caution to Mr Coulson prior to that question did not render his answer inadmissible and so, as mentioned above, a charge of perjury would be competent.

 

Glenn Mulcaire and Clive Goodman

Mr Coulson was asked about his departure from the NotW. After saying that he had “taken the ultimate responsibility and stepped down” he was asked what the crime committed by his staff member was. Coulson stated that it involved “illegal phone hacking” and that he had “no knowledge of it.”

Can it be proved with corroborated evidence that Mr Coulson did know regarding Mr Goodman at the time? Even if it was proved he knew that there was widespread phone hacking, can it be proved he was aware of the position re Mr Goodman at the relevant time. Mr Goodman would be, one would assume, a probable Crown witness in any such case, although, if it was his position that he was simply one “bad egg” he could be a defence witness, for what that might be worth.

 

Mr Sheridan asked if Mr Coulson knew of Mr Goodman’s association with Glenn Mulcaire. He replied that he had never had any contact with Mr Mulcaire and had not even known his name until Mr Mulcaire had been arrested. When asked regarding Mulcaire’s company, 9 Consultancy, he insisted, “I never met him, spoke to him or emailed him”.

Again, subject to the exact questions asked, can it be shown he had contacted, or even knew of Mulcaire? The mysteriously re-appearing emails (more of which later) might assist regarding that point. Mr Mulcaire would of course be a compellable witness in any perjury proceedings. Whilst he failed to appear at the Sheridan trial, as a result of medically certificated ill health, one can imagine he would definitely be asked to attend such proceedings as we are contemplating here.

 

After discussing the £105,000 per annum contractual payment to Mulcaire’s company, Mr Coulson was asked about other payments made to Mr Mulcaire. He told the court that there were other payments but these had happened “without my knowledge”.

One would imagine a paper trail will exist re payments being made to third parties, even for a business with such a large budget as the NotW. Is Mr Coulson’s name on any of these?

 

Mr Sheridan asked who else had their voicemails “hacked” to which Mr Coulson answered that it was a “matter of record”. He was pressed on this, and Mr Coulson replied that he understood “five other individuals” had been mentioned as having their voicemails intercepted.

The latest information publicised from the police suggests there are thousands of people affected. Was Mr Coulson saying what he believed the position was at the time, or was he stating his understanding as at December 2010? Here again ambiguity of questioning can make it impossible to establish perjury.

 

On the second day of Mr Coulson’s testimony, Mr Sheridan asked him if the NotW had made payments to Mr Mulcaire and Mr Goodman after their release from prison. Mr Coulson stated that this had happened after he had left the NotW and he had “no knowledge” about any payments.

Short of a smoking gun with his name on it (sorry for the mixed metaphor) it’s hard to see how that answer, could give rise to any case now. He was not denying the payment, strictly, but stating he had no knowledge. Forgetting could be a legitimate reason for having no knowledge.

 

Mr Sheridan asked if Mr Coulson had emailed Mr Goodman asking him to “take the blame for the good of the paper”. Mr Coulson responded “No, I’m positive, do you have that email, Mr Sheridan?” Mr Sheridan replied that “Mr Goodman has been cited. Perhaps we will hear from him.” However we did not.

On one view, Mr Coulson’s answer could be construed as an admission, but in reality there could only be case re this if the email was discovered, either in the NotW archives, or coming from Mr Goodman. However, stating that he was “positive” might cause Mr Coulson difficulties if it did exist and was discovered.

 

Mr Sheridan came back to Glenn Mulcaire and the notebook found in his papers by police. Mr Coulson denied that he had any knowledge of this or that the News of the World in London had instructed Glenn Mulcaire to “hack” Mr Sheridan’s phone.

Again, what might Mr Mulcaire say, and what evidence would there be to corroborate that, if he disagreed with Mr Coulson?

 

 

News of the World Practices

Mr Sheridan asked Mr Coulson if the “News of the World employed people who broke the law.” The witness replied that “we did not seek to but it is obvious we did with Clive Goodman” but denied he had employed “convicted criminals.”

One of Private Eye’s regular features involved mentioning Fleet Street staff who were convicted of various offences, whether of drunkenness or assault. Sadly I do not have time just now to go through my 30 years’ back issues of the Eye to see whether any of these stories popped up under Mr Coulson’s charge. Interestingly, a perjury charge on this issue might fall foul of the need that the perjured statement needs to be relevant to the case. If therefore it could be shown the NotW employed a convicted criminal under Mr Coulson, then, unless it is connected to the alleged hacking, it would not found a perjury case.

Mr Sheridan asked Mr Coulson if his newspaper “printed lies” to which he responded “We try not to.”

People might disagree, but that answer won’t form part of a perjury charge.

 

The McNeilage Tape

Mr Coulson was asked about his role in the purchase of “the McNeilage tape.” This was a video tape prepared by Mr Sheridan’s former friend and colleague, Mr McNeilage, where Mr Sheridan was recorded effectively admitting perjury. Mr Sheridan had denied that the voice on the tape was his (the participant not being clearly seen) or stated that it had been concocted from recordings of his voice. Mr Coulson told the court that he had been alerted to the existence of the tape by Bob Bird, the NotW’s Scottish editor (whose own testimony will be addressed later). Mr Sheridan asked Mr Coulson if he had seen him in the tape, to which Mr Coulson responded “I heard your voice” as he had compared that to other recordings of Mr Sheridan speaking.  Mr Sheridan asked if the witness had heard “private eye recordings of my voice.” To this Mr Coulson replied “I don’t believe I did.”

Even if it could be shown that Mr Coulson had listened to such recordings, his answer is not specific enough to found a case.

Sean Hoare

Mr Sheridan then asked the witness about an article in the New York Times which had quoted an ex-NotW journalist Sean Hoare http://nyti.ms/aCuDeN. Mr Sheridan put it to Mr Coulson that Mr Hoare had claimed, in the article, that he had been told to “employ the dark arts” by Mr Coulson himself.  To this Mr Coulson replied that he had “no recollection of doing so.”

A failed recollection, even if shown to be wrong, won’t found a perjury case. Again, more forensic questioning about Mr Coulson’s dealings with Mr Hoare might have led him into difficulties.

 

Steve Whittamore

Mr Sheridan was then asked about another private investigator involved in the matter, Steve Whittamore. Mr Coulson told the court that he had never had any dealings with Mr Whittamore or asked anyone else to deal with him. Mr Sheridan asked Mr Coulson if Mr Whittamore had been used by the News of the World “while you were boss”. Mr Coulson said he did not know. Mr Sheridan then said that Steve Whittamore had been convicted in 2005 and this had happened “under your watch”. Mr Coulson said he had not been involved with Mr Whittamore “in any way, shape or form”.

 

Mr Whittamore too would be compellable as a witness. Would he state that he had had dealings with Mr Coulson?

 

 

Legal Costs

Mr Sheridan then asked if News International (NI) was paying Mr Coulson’s legal costs. He replied “I certainly hope so” explaining that as the case related to his employment with News International they would be expected to meet his legal bills. I am sure that was correct at the time. Should he be arrested tomorrow (Friday) will they still be covering his costs? Will NI be funding his defence wither prosecuted in Scotland or England?

 

Conclusion

Will Mr Coulson face a perjury trial? It is possible that he might. The transcripts of his evidence, and every word thereof, will be trawled over. My thoughts are based on an excellent contemporaneous record of the trial, but one which could not be a verbatim report. There may well be nuances I have missed, or events seen in the trial itself, such as Mr Coulson’s apparent wink to Mr Sheridan as he finally left the witness box.

Is it appropriate that the matter be investigated? Of course it is. Here, in the highest profile perjury case in Scotland for many a year, it is alleged that a senior journalist, with connections to the Government, may have lied on oath. The Crown Office would have been criticised if it had failed to look at these concerns, though since the allegations re the NotW phone hacking have been about for a long time, it might be asked what evidence in particular has prompted the Crown Office decision today, rather than before. Perhaps the front pages of the newspapers qualifies as the necessary “evidence” to prompt the inquiry, bearing in Mind Mr Sheridan’s solicitor, Mr Anwar, stated some time ago that his phone had been hacked by, he suspected, the NotW.

If Mr Coulson is not pursued re perjury, is he in the clear?

Clearly the English courts may well have an interest in connection with the phone hacking and police payment allegations. I will happily leave that issue to commentators better versed in English Law than I am.

 

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