Tag Archives: Phone HAcking

Tom Watson MP Declares Tommy Sheridan’s Conviction for Perjury Unsafe – He is Wrong

 

Yesterday saw publication of the DCMS Report on phone hacking at News International. Tom Watson MP has been a vigorous investigator in these matters for which he deserves credit. However, according to Louise Mensch MP, he managed to break the committee on party lines by inserting a line about Mr Murdoch not being “a fit and proper person”. This was despite the fact that such a conclusion seems to have been outwith the terms of reference of the Committee. However, as Parliament is sovereign, it can reach such a conclusion, if it wishes.

Mr Watson has championed the cause of Tommy Sheridan. The former MSP was gaoled for perjury committed in his successful damages action against News International.

Mr Watson was again manning the ramparts for Mr Sheridan yesterday, declaring that the details uncovered by his Committee made the conviction unsafe. He can be found discussing the matter in detail here.

It might be fair to say that, if the Sheridan Trial took place today, the odious conduct of some of the News of the World staff might persuade a jury to acquit, but, BASED ON THE EVIDENCE given to the trial court, such a verdict would not accord with the evidence.

Mr Sheridan’s appeal against conviction was rejected as unsustainable by the Appeal Court without a full hearing.

I have previously written, at some length, about the Sheridan case, and the potential implications for (a) the trial verdict and (b) possible prosecution of witnesses at the trial itself for alleged perjury.

My “compendium” of pieces can be found here.

I would also heartily recommend the excellent analysis by the Lallands Peat Worrier, which can be found here.

LPW titled his piece, written in August 2011, “A numpty’s guide to appealing Tommy Sheridan’s conviction… “

Read it in detail, but his conclusion makes the position clear.

“In the absence of emails drafted in the hypothetical, fundamentally incriminating terms I describe, I struggle to see that the High Court will be moved to overturn the jury’s decision.  Similarly, if … alleged perjury is limited to the general unlawful practices of employees at the News of the World, and his knowledge of them, how does that impact on the critical issues of the Sheridan trial, concerning swingers clubs, his confessions to his colleagues and his lies about both in Court? These are the questions which Sheridan’s representatives will have to work up persuasive answers to, if their client is to see his conviction quashed on grounds of new evidence. As the Lord Justice General noted, setting aside the verdict of a jury is no light matter. And on these tests, convincing the High Court to overturn Sheridan’s conviction may be a very tall order indeed, despite alleged perjury, despite absent emails, whatever Tom Watson believes.”

As former Law Society of Scotland President Ian Smart, tweeting in his personal rather than ex officio capacity, commented last night, and I paraphrase “How does alleged perjury by defence witnesses help an accused overturn his conviction?”

Mr Sheridan, as detailed in Gregor Gall’s excellent book “Tommy Sheridan: From Hero to Zero” was convicted because of mistakes he made. Even if he became a target for the NotW, this was because of his own actions. Whilst the NotW has died as a result of phone hacking, nothing revealed so far casts, in my view, any doubt upon the jury’s verdict against Mr Sheridan.

It looks as if Mr Watson has not followed LPW’s advice from last August “However, we can be absolutely clear that Tom Watson MP is quite wrong in law to suggest that the absence of these emails by itself makes the case’s outcome fundamentally questionable. Watson may hold that view, but the High Court of Justiciary certainly won’t sympathise.”

 

Posted by Paul McConville

 

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The Tommy Sheridan Compendium – Perjury, News of the World, Hackgate and Coulson

I realised that, over the last few weeks, I have posted the odd piece about the trial of Tommy Sheridan and the News of the World related fallout.

I thought it would help my readers (both of them) if I listed the posts, with links, and a brief comment on each.

This story is a long way from ended, and I will update this post as necessary.

For the full story of the trial of Tommy Sheridan, I can do no better than to recommend the excellent Sheridan Trial Blog, compiled by James Doleman. James was able to give far more detailed coverage than any mainstream media outlets, and reported what took place in court without having his personal views, whatever they might have been, affect his narrative of the case.

James has contributed further work to the ever expanding Internet store of Sheridanalia at his new site.

I can also recommend heartily the Lallands Peat Worrier  who has been following the case for far longer than I have, and whose insights are always thought provoking, assiduously researched and elegantly drafted.

Finally Love and Garbage has been the source of much knowledge, insight and humour regarding the long process which has brought us to where we are, and he too I would commend to you.

News of the World Hackgate and the Police Investigation – Part 1

The Tommy Sheridan saga has proceeded now for many years. From the heights of the election of the Scottish Socialist Party MSP’s, led by Tommy Sheridan, to Holyrood, to the depths of him being led away to serve his prison sentence for perjury.

Whilst the issue was always very prominent in Scotland, wider UK interest was provoked by the scandalous revelations concerning the News of the World, which led to its closure.

This first piece addressed the evidence of DCS Phil Williams of the Metropolitan Police, who gave the High Court evidence about Operation Caryatid, which resulted in the convictions of Glenn Mulcaire and Clive Goodman. DCS Williams’ evidence regarding the investigation, and what the police did, and more particularly did not, do seems even more concerning than it did at the time I write about it. Quite how the police managed to investigate so few people, in light of what we now know of what there was by way of evidence, remains baffling.

The testimony of former Metropolitan Police officers like Andy Hayman and John Yates before the Home Affairs Select Committee did not answer the questions as to why the initial investigation seemed so ham-fisted.

Frankly DCS Williams’ evidence had little to do with the Sheridan trial, and falls within the wide category of evidence which, if Mr Sheridan had been represented, would not have been permitted by the judge as being irrelevant.

I followed up with a “triple-decker”. This was prompted by speculation about possible perjury investigations into certain witnesses in Tommy Sheridan’s trial, and by implication these were going to be the News of the World witnesses, Andy Coulson, Douglas Wight and Bob Bird. All of the parties in connection with whom it is understood there is the ongoing investigation made clear I court that they were telling the truth and, I am sure, would vigorously deny any such allegations.

I thought it helpful to go through, in as much detail as I could, the testimony of the witnesses and see whether or not there might be cases against any or all of them for perjury.

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

I started with Mr Coulson. As I explained in this post, and further later, in my view, I thought it unlikely that Mr Coulson would ever face a perjury charge in connection with his evidence in this case.

One of the various reasons for this is that Mr Sheridan was not able to question witnesses with the forensic specificity which would have pinned down the witnesses such as Mr Coulson with answers which could be assessed clearly and where there was no dubiety as to what the witness was saying and meaning.

The News of The World, Tommy Sheridan and Perjury?

As with Mr Coulson, I did not foresee any real likelihood that Mr Wight would face perjury charges either.

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

As regards Mr Bird, he seemed, from what had been made public, to be in greatest danger of investigation in connection with the maters raised. This seemed primarily to relate to his evidence about News of the World e-mails which he told the court had been lost in transit to India.
It later transpired that the e-mails had never been sent to India at all. Bearing in mind that Mr Sheridan’s defence team had been looking for access to them in connection with his defence, the incorrect evidence he gave may suggest that there could have been an attempt to interfere with the course of justice, if not perjury itself.

News of the World, Hackgate and the Police Investigation – Part 2

By this stage, Messrs Yates and Hayman had given evidence to the Select Committee and the Metropolitan Police Commissioner had resigned. It was being laid bare how poor and inept the original inquiry had been.

As I concluded ” Whether this “blind eye” approach was anything more sinister than simple incompetence will, hopefully, be addressed by one of the myriad of inquiries which seem to sprouting daily in connection with these matters.

What seems clear is that the police wanted little or nothing to do with this investigation – it was downplayed as much as possible – the bare minimum action was taken, and the whole sorry mess can be summed up by the picture of Mr Mulcaire’s 11,000 pages of notes lying in plastic bags in a Scotland Yard store room for four years, uncatalogued and ignored.”

Sheridan, Coulson and James Murdoch – Lessons from Barry Bonds and Roger Clemens?

I am a great fan of baseball, and over the last few years there has been an enormous explosion of interest in the use of performance enhancing drugs in the sport, and the attempts to stamp this out.

Two of the biggest names in the sport, Barry Bonds and Roger Clemens, have found themselves sitting in criminal courts facing perjury charges.

I thought that it would be interesting to see if there were any lessons that could be learned from either case as far as any potential perjury case might be concerned regarding witnesses in the Sheridan trial.

I feel (though I am biased as I wrote it) that there are a number of parallels and thus areas where we might gain a better ides as to how matters might progress domestically.

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

By this stage, there was a lot of discussion about the possibilities of court proceedings. One of the topics being raised was the suggestion by some that if it was shown that the NotW witnesses had lied about anything then (a) this was perjury and (b) Tommy Sheridan had been wrongfully convicted.
I tried in this post to explain the legal requirements for a perjury charge and how it was possible to tell lies in court and not commit perjury. This meant that there is quite a lot of law in this piece, by way of me “showing my workings” © Lallands Peat Worrier.

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

By now the news had broken that Mr Sheridan’s appeal had been refused at the “sift” stage. This meant that he would not be granted an appeal hearing, because his ground or grounds of appeal were not felt to be arguable.

I wanted to give an indication as to why this might have been determined, and what options remained open to him.

I also wanted to clarify why the request by the defence to have the time for the appeal extended had failed.

Tommy Sheridan and the “McNeilage Tape”

One of the particularly striking pieces of evidence in the case was the “McNeilage Tape”. Whilst the authenticity of this had been questioned at the trail, neither party led any expert evidence to either confirm that the tape was genuine, or to refute that.

There have been various theories suggested as to why this was the case, and I thought it useful to look at these, and the implications of the Cadder case for the testing of the video tape.

Yet More Thoughts Re Sheridan, Perjury and the News of the World

One of my readers had taken the time and trouble to prepare a detailed comment regarding various of the issues in connection with the case. I felt this would be a good way of giving my thoughts, views and arguments regarding various points in connection with the case, rather than engaging with limited specific issues as I had done before.

Hopefully my comments provide some additional clarification of what is an extremely complicated situation. I am very much appreciative of Joseph Syme’s time in preparing his thoughts. As those provided an excellent template within which my answers would fit.

There remain many issues concerning this matter. The narrow issues of Mr Sheridan’s trail and the appeal by the NotW against his £200,000 award on one hand, and the wider factors surrounding phone hacking, and the iniquities of the NotW together with perhaps the rest of Fleet Street will all require further analysis and clarification.

I hope to be able to shed some light on these issues in future posts, and I am always happy for readers to contribute with their own thoughts.

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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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Sheridan, Coulson and James Murdoch – Lessons from Barry Bonds and Roger Clemens?

What, allegedly, connects the former Director of Communications at 10 Downing Street, the former leader of the Scottish Socialist Party, the all time home run leader in Major League Baseball, the man hailed as possibly the best pitcher ever to play baseball and one of the leaders of probably the world’s biggest media conglomerates? I hope to answer this conundrum below.

 

Problems with Perjury Cases

It is probably the case that perjury is the important crime most committed, but least prosecuted.

Perjury, to be clear, is, in the law of Scotland, 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 that they are made wilfully and there requires to be evidence from at least two sources.

As Alistair Bonnington, former solicitor for BBC Scotland put it in an article  after Tommy Sheridan succeeded in his damages claim against News International in 2006, “Traditionally, we have very few perjury persecutions in Scotland – despite the fact that an application of elementary logic tells you that perjury must be committed every day in almost every court in Scotland in criminal trials.”

Despite this, prosecutions for perjury are remarkably rare, not because it is an unimportant matter, indeed quite the reverse, but because (a) proof beyond reasonable doubt of the charge might be difficult and (b) if an accused person has already been convicted and sentenced, then there might be little or no “public interest” in a further prosecution for perjury. In Scotland the Lord Advocate and Procurator Fiscal prosecute “for the public interest”.

It is far more common to see witnesses, especially in the High Court, punished for contempt for prevarication when, miraculously, all memory of an incident disappears from their mind just as they take the oath in the witness box. Unfortunately, for them, they will often have given a signed statement to the police in the aftermath of the incident, thus rendering their loss of memory less “useful” than it might otherwise have been.

The courts make it clear to witnesses that a wilful failure to answer properly will be met with a couple of hours in the cells “to consider one’s position” and if the witness fails to “purge their contempt” then an appearance before the judge at the case’s conclusion for punishment awaits.

Perjury cases are far rarer, in part because they cannot be dealt with in the same summary way as prevarication.

If suspected perjured evidence results in an acquittal, then a prosecution might be brought, although this would need to be more than an attempt to re-try the original case by other means.

In a civil case, if perjured evidence is advanced to advance a claim, then, depending on the result, the course of justice requires that steps are taken to maintain the dignity of the courts.

It is clearly more serious to invent evidence than simply to answer “yes”, when the true reply is “no”.

 

HMA V Sheridan

 

Perjury is a hot topic in Scotland just now. Tommy Sheridan, the charismatic former Scottish Socialist Party leader and former Member of the Scottish Parliament, was successful in 2006 at the Court of Session in Edinburgh in suing News International, publishers of the News of the World (NotW) for defamation in connection with allegations about his private life. News International is part of the Rupert and James Murdoch empire. Sheridan was awarded £200,000 damages by the jury. This was hailed as a triumph for the working man over the evil press barons.

Four years later Mr Sheridan found himself in the dock at the High Court in Glasgow, charged along with his wife with committing perjury in the original trial. After a lengthy hearing, he was found guilty on certain of the charges and sentenced to three years in prison.

Recent publicity suggest that he has been refused leave to appeal against his conviction, but that he is seeking leave from a second panel of judges, as is normal procedure in the “sifting” process.

In July 2011, following upon the tide of allegations about Andy Coulson (Prime Minister Cameron’s former Director of Communications and former NotW editor) and the NotW “hacking” phones, the Crown Office announced that they had asked Strathclyde Police to look into various matters, including the evidence of certain of the witnesses at Tommy Sheridan’s criminal trial.

It is understood that these witnesses are Mr Coulson, Bob Bird, former Scottish Editor of the NotW and Douglas Wight, one of the NotW reporters involved in the reporting of the story. I have commented at length as linked above re each witness’ evidence. My source material is the excellent Sheridan Trial Blog prepared by the indefatigable James Doleman.

As matters stand, no-one has been charged in connection with this matter and all parties mentioned above maintain their innocence.

Mr Sheridan’s cases are exactly the rare proceedings where perjury proceedings are likely.

The jury at the High Court found that Mr Sheridan had lied about certain specific matters in his earlier evidence. It was not simply that he answered “no” when he should have said “yes” but instead that an alternate reality was created by him and put before the court, successfully as it turned out. I suspect that if he had lost his original claim for damages, no prosecution for perjury would have taken place.

As a comparison, Jeffrey Archer, former Deputy Chairman of the Conservative Party, and best-selling writer, succeeded in his libel claim against the Daily Star in 1987, but when it was suggested that he had asked one of his friends to go along with an “alibi” Archer was creating, he found himself in the dock at the Old Bailey in 2001, and after being convicted of perjury and attempting to pervert the course of justice, he was gaoled for four years.

It is now being suggested that, in light of the scandals surrounding the NotW, phone hacking, payments to police officers and “missing” emails, there might be further perjury charges in connection with the criminal trial of Tommy Sheridan.

 

Before looking at the issues such a case might raise, I think it is helpful to look across the Atlantic, to the recent perjury trials of two of the most famous baseball players of all time, Barry Bonds and Roger Clemens. Both of them have been tried on charges of perjury and associated offences with differing results.

I make no claim to knowledge of the US system of justice, so have based what I say upon the sterling work of Craig Calcaterra, a former practising attorney, who has escaped from the law courts to be a writer for NBC about baseball (yes, that is jealousy you can hear as you read that). He has written extensively about these cases, most recently at “Hardball Talk” but he wrote at length about them before. Following Bonds’ indictment he analysed the case here.

 

USA v Barry Bonds

 

 

Barry Bonds is the all time leader in home runs in baseball. He passed Babe Ruth and then Hank Aaron. The home run king is a long lauded role in the USA. However, outside San Francisco, where he played for many years, few hold Bonds in affection. He was always a great player but after the excitement of 1998 when Mark McGwire and Sammy Sosa “saved baseball” by racing all summer to break the single season home run record, and thus achieving nationwide fame, respect and fortune, Bonds decided that being one of the best was not good enough. He needed to be the best.

Various books, including “Game of Shadows” by Jeff Pearlman, allege that Bonds took advantage of the absence of a drug testing programme in baseball to use steroids from the BALCO laboratory to give him even more strength and stamina. Bonds went on hitting home runs at a rate for his age never seen before, till finally he overtook Hank Aaron. In doing so however, he came across as charmless and egotistical, and was disliked, if not hated, by fans all round the US.

But the seeds of Bonds’ downfall had already been sown.

The US government, in attempting to stamp out illegal drug use in sports, had taken great interest in BALCO. The owner, Victor Conte, ended up in gaol, and several of his clients, including former Olympic gold medal athletes, ended up there too, whether for fraud or impeding the investigation. Bonds, as a suspected BALCO client, was called to testify before a grand jury investigating BALCO. His answers were felt to be misleading, vague, obstructive and prevaricating, and he was in due course charged with perjury.

The legal process ground on and on before finally Bonds went to trial this year. He was acquitted of all perjury charges but found guilty of obstruction of justice in connection with the answers he gave to one set of questions.

As Craig Calcaterra identifies, and this has a bearing, I think, in connection with any case against the NotW personnel here, the problem the prosecutors had was that the answers Bonds gave to the Grand Jury were often vague, off the point and rambling. The questioner failed, generally, to pin the witness down with specific questions. Open ended and rhetorical questions seemed to be the order of the day. Some of the questions did not really look like questions at all.

For example, part of the indictment refers to the following Grand Jury exchange.

Q And you weren’t getting this flax seed oil stuff during that period of time [January 2002]?

A: Not that I can recall. Like I say. I could be wrong. But I’m – – I’m – – going from my recollection it was. like. in the 2002 time and 2003 season.

As mentioned above, it is necessary to show that someone is wilfully telling lies to achieve a conviction for perjury. If the questioning is not specific and offers the witness the chance, for example, to ramble down memory lane, or to offer his opinion rather than facts, then pinning a perjury case can be very hard. The logic behind the jury’s verdict in Bonds’ case whereby he was acquitted of perjury but convicted of obstruction of justice seems hard to understand, and indeed his attorneys will try to persuade the judge that the verdict is perverse and to substitute an acquittal on all charges.

It appears, from reading the transcripts of Bonds’ Grand Jury testimony, that the lawyer for the government was perhaps overawed by the fame of the man he was questioning, or expected that he would confess his use of illegal drugs to order. Instead, Bonds told the Grand Jury he did not know what he had taken, and the only person who could do so, his trainer Greg Anderson, pointedly refused to testify despite repeatedly being sent to prison for contempt. Thus, due to the absence of a forensically focused questioning of Bonds, the chances of a perjury conviction were greatly reduced.

The vast majority of baseball fans in the US believe that Bonds used steroids, despite the absence of proof of failed drugs teats etc.

USA V Roger Clemens

Roger Clemens is the pitcher I mentioned above. For over 20 years he was at the top of his game, at an age by the end where very few pitchers remain effective. Throughout his career in Boston, Toronto, Houston and New York Clemens was successful, earning the affection of his team’s fans, and the almost universal dislike of everyone else. Indeed his manner of leaving Boston and Toronto caused him to be alienated from much of his former fan base. However Clemens was hugely successful, driven by a desire to be the best. He won many honours and awards, and was paid a great deal of money.

The US legislature has taken an active interest in the use of performance enhancing drugs (PED’s) in sport, especially baseball. At a previous Congressional hearing, Mark McGwire, who had, as we have seen, broken the single season home run record n 1998, destroyed his reputation by repeatedly stating he was not there to “talk about the past”. The fact that he was there for that purpose led most to believe that he had been a user of PED’s. Rafael Palmeiro, a very successful layer for Baltimore over many years, looked Congress straight in the eyes and stated, complete with pointing finger “Let me start by telling you this: I have never used steroids, period. I don’t know how to say it any more clearly than that. Never.” Within five months he had been suspended for a failed drugs test. His reputation, like that of McGwire was in tatters. Sammy Sosa, the other participant in the home ruin race of 1998 also appeared. He had been born in the Dominican Republic but he had played in the major leagues in the US since 1989, but now, in 2005, he answered questions through his attorney, claiming his English was not good enough. Clearly he wished to make sure he fell in to no traps by answering questions in his second language. However, again, the court of public opinion found strongly against him.

So, having gained a lot of coverage in 2005, the Congressional Committee kept digging.

In 2008 Roger Clemens appeared at Congress on oath, along with his former personal trainer, Brian McNamee.  By this stage Clemens had been named by Senator George Mitchell in the report  he had compiled into PED use in baseball.  McNamee had accused him of steroid use. Clemens had sued McNamee and McNamee counter-sued Clemens.

Clemens, it appeared, insisted on attending Congress to get his message across. He sat before the Committee and denied any illegal use of drugs. McNamee was castigated as a liar and a cheat. Clemens appeared at first to have made his point.

However matters began to unravel soon after. The Committee realised that either Clemens, or McNamee, or indeed both, were lying to them. The committee insisted on an investigation and now, just over three years later, Clemens has appeared in a Washington court room for trial.

As in the Bonds case, the issue is not whether he used PED’s but whether he wilfully lied in saying he did not.

Whilst in Bonds’ case he did not get himself bogged down in detail or specifics, here Clemens was the opposite. He had some things he wanted to say, and therefore he said them. The problem was that lying to Congress is a serious offence. Further investigations took place and Clemens was indicted.

The case started a few weeks ago with jury selection. There appeared to be a greater chance of a conviction, as a result of Clemens having put forward his hypothesis of himself as a non user, than in the Bonds case where he was answering vague or open-ended questions with vague and open-ended answers.

However, on the second day of the trial, which was expected to last for a month, the case collapsed into a mistrial.

The prosecution were bringing in to evidence a video recording of one of the Congressmen at the hearing by playing the tape to the jury. However, he was talking about the evidence of the wife of one of Clemens’ former team-mates, evidence which the judge had already ruled as inadmissible. The tape should have been edited to remove this, and it had not been. The judge had no hesitation in declaring a mistrial and a hearing is due soon to determine if Clemens will again face trial on these charges.

As with Barry Bonds however, prevailing public opinion is that Clemens was a user, whether or not that is actually proved in court.

James Murdoch at the Select Committee

Next we had the pleasure of seeing Rupert Murdoch and his son James appear last week before the Department of Culture, Media and Sport Select Committee of the House of Commons to answer questions about the phone hacking scandal. Here again the weakness of the questioning system may have allowed wilful errors, if there were any, by the Murdochs to go unpunished. I should say, as a preliminary point, that they were not placed on oath, but “Erkine May” the bible of Parliamentary procedure makes it clear that lying to or misleading Parliament can amount to a contempt of Parliament, which is punishable by Parliament.

The procedure before the Committee is very much in the hands of the Chairman. In this Case Mr Whittingdale, MP, decided that the way to operate was for each member of the Committee to have an allotted period to ask the questions they wanted to ask. Effectively therefore the Murdochs faced 9 or 10 separate prosecuting counsel, all asking questions about different areas. There was however no cohesion in the process, and points were returned to, and gone over more than once, even where it appeared to an outside observer, that the matter had been dealt with already. Each MP on the Committee however wanted to have their chance to question the Murdochs, as was their right, even where that questioning did not really advance matters at all. Only Tom Watson MP, who has been pursuing the phone hacking matter for a number of years, really took the Murdochs through a detailed and logical questioning proves, and it might have been much better if he had been allowed to continue asking questions on behalf of the Committee, but the members were not willing to give up their own chance to interrogate. In fact, the most telling moment of the proceedings, excluding the pie attack on Rupert Murdoch, occurred at the very end, when the Chairman permitted Mr Watson to ask a supplementary question, as I will refer to below.

In contrast, the Home Affairs Select Committee, chaired by Mr Vaz, has taken a far more structured approach with witnesses. Mr Vaz’s practice is to deal with one area at a time, giving the members of the Committee turns to ask about the specific areas identified before moving on to another part of the investigation. This seems to be a more logical way of proceeding, allowing MPs to follow up on and return to issues raised in the answers.

As with the Sheridan case, many of the questions were potted speeches, perhaps designed to be a snappy sound bite for the news, rather than to get meaningful answers from the Murdochs.

There have been various areas in both gentlemen’s evidence which have been looked at, but I want to focus on one.

After the pie incident, and on the completion of all of the questioning, James Murdoch was asked at Q 413 by Mr Watson “When you signed off the Taylor payment, did you see or were you made aware of the full Neville email, the transcript of the hacked voicemail messages?” (The uncorrected transcript of proceedings is the source for these extracts  ) (The Taylor payment refers to the settlement of a claim of phone hacking against the NotW by Gordon Taylor, head of the Professional Footballers’ Association, where James Murdoch authorised a payment of £700,000 including costs to conclude the matter. The “Neville” referred to was a former chief reporter for the NotW who received an email containing transcripts of many of Taylor’s phone conversations.)

James Murdoch replied, “No, I was not aware of that at the time.”

Since that evidence was given, Mr Tom Crone, former legal manager for the NotW and Mr Colin Myler, former editor of the NotW, have issued a statement saying that James Murdoch had seen that email, in contradiction of his evidence to the Committee. Does James Murdoch’s answer cause him problems?

If it transpires that the answer was wrong, and Mr Watson has already asked the police to investigate the evidence given to the Committee, would James Murdoch be in difficulties? There is a difference here between what the legal consequences of any error would be and the public relations and corporate ones. If it is the case that James Murdoch did see the email at the time, then I imagine his explanation would be that he had simply forgotten this, on the basis that many things have happened over the years since the payment was authorised, and that he has seen many items regarding this whole affair. If Mr Watson had been afforded the chance of prolonged questioning on this point, then perhaps James Murdoch would have found himself in a position where it would be hared to explain this as a lapse of memory. Interestingly, the following exchange between Mr Whittingdale and Mr Watson took place just after the above question was asked.

Chair: I am getting galled. We have covered this at some considerable length.

Mr Watson: Actually, Chairman, we have not, but I respect you. Mr Murdoch, your wife has a very good left hook.

Mr Watson was denied to chance of pinning James Murdoch down, although by this stage the Murdochs had been giving evidence, including the interruption, for over three hours.

 

How do these cases bear upon the possible NotW perjury charges?

 

Tommy Sheridan dispensed with his counsel at an early stage of his trial, and proceeded to defend himself. By all accounts, for a lay person, he did a good job. After all, this was not far short of a matter of life and death for him, and he has always been known for his oratorical skills.

However, one disadvantage comes from his lack of court experience. As with the Bonds Grand Jury, Sheridan’s questions were often imprecise and vague. Frequently the questions, especially when asked of his political or media opponents, were barely disguised polemic, perhaps designed to appeal to the jury. In addition, I imagine that, in conjunction with his remaining legal advisers, Mr Sheridan had decided by this stage not to give evidence himself. Therefore some of his questions would, either deliberately or sub-consciously, been designed to get his “evidence” across to the jury, although he would have been aware that the judge would direct the jury that his questions did not amount to testimony.

In addition, there is the problem that the three NotW witnesses were not, by and large, prosecution witnesses. Bob Bird was called by the Crown to give evidence about payments to witnesses and about the video tape purporting to show Sheridan “confessing” to his former friend, George McNeilage.  Sheridan’s cross examination of Bird lasted much longer than his examination in chief. The questioning ranged through many areas. As I have written before, Mr Bird has some questions to answer in connection with his evidence regarding missing emails. He told the court that a large number of emails had been lost when transferred to Mumbai and thus could not be made available to the defence. However, after an investigation by the Information Commissioner, it transpired that the emails were still in existence and that there had been no transfer of them anywhere, especially not to Mumbai. Mr Bird will maintain, I am sure, that he made an innocent mistake. That is one of the issues I imagine Strathclyde Police will be investigating. Clearly also the recovery of evidence sought by the defence is relevant to the case, even if ultimately the emails contain nothing that would have assisted Mr Sheridan.

Mr Bird was asked about the “culture” of the NotW. That is a matter for debate, and not one where an answer can amount to perjury. Subjective questions of that nature have their role in the court process, but cannot, in my submission, found a perjury case.

Mr Wight was called as a Crown witness formally, but this as a courtesy to Mr Sheridan. After confirming his details to the prosecutor, Mr Sheridan began what was, in effect, cross examination of Mr Wight. However he too was not asked the detailed and precise questions a professional advocate would have done, and was not pinned down on areas where otherwise there might have been difficulties.

Finally Mr Coulson was called as a defence witness. His evidence was no part of the case against Mr Sheridan. Mr Sheridan’s case against the NotW at his trial was, effectively, that the paper was against him as he was an effective tribune of the people, holding big businesses like the NotW to account, and that they determined to destroy him by whatever means necessary. This included phone hacking, although it was never made crystal clear how this impinged on the specifics of the case against him. Mr Sheridan had tried to call as a witness an impersonator who could “do” Mr Sheridan’s voice, and who had done so on the radio, perhaps to show that the McNeilage Tape could have been prepared by an impressionist. Alternatively it was hinted that, if his phone had been tapped or hacked, then extracts could have been put together to create the incriminating tape. However Mr Sheridan, whilst suggesting these possibilities did not produce any expert testimony regarding the video, and effectively left it to the jury to determine that one or more of these factors might lead them to disregard it.

Mr Coulson denied that there was a “culture” of phone hacking at the NotW. If he had been asked if there had ever been such an activity, without going into the realms of “cultures” and if the questioning had precisely defined what phone hacking was, and that the questions were looking at whether this was done either by NotW staff or agents for them, this might have been more problematic for Mr Coulson, standing what is now publicly available. However, I don’t understand that the questioning went down such a detailed road.

Press interest has centred on Mr Coulson’s reply to the question asked of him about making payments to “corrupt” police officers. Mr Coulson replied that the NotW did not make payments to corrupt police officers.

Here again the addition of just one word “corrupt” to the question puts a different perspective on how any perjury charge regarding this might go. Let’s assume, for hypothetical purposes only, that the NotW did make payments to police officers (as indeed Rebekah Brooks, former editor of the NotW confirmed to Parliament in 2003). The NotW has over the years worked closely with the police, often providing them with details of their investigations exposing criminality in others. In return, for the purposes of this example, grateful police officers might have provided information to the NotW and been thanked by way of a financial gift. The NotW, in such hypothetical circumstances, might consider these officers to be fine and up-standing members of the force, assisting the NotW in bringing news of wrongdoing to the public’s attention, whilst not compromising criminal processes. These officers, in this example, would not be seen by the NotW as corrupt. This is despite the fact that it is illegal for an officer to receive payments in such circumstances, and, on one view, receipt of such a payment would render them, in law “corrupt”. But if Mr Coulson was aware of payments to officers, his belief, whilst legally wrong, that they were not corrupt, would mean that his answer would not be a wilful evasion.

As with the other witnesses, a more detailed examination of maters might have pinned the witness down clearly and unequivocally. However, as with Mr Bonds, the “killer questions” were not asked, giving the person responding legitimate room for manoeuvre in their response.

 

 

Conclusions

 

 

So where does this take us? The Bonds case shows how important the questions asked are before a person can face charges for perjury or similar matters.

Looking at the possible matters for consideration just now, the normal position applies – namely that it is very difficult to establish perjury to obtain a conviction.

But there is more than the justice system to consider.

Barry Bonds and Roger Clemens have been convicted in the court of public opinion. They might never achieve the goal of being enshrined in the Baseball Hall of Fame, although their performances deserve it.

Tommy Sheridan’s position is polarised. His supporters never doubted him, despite his conviction. His enemies simply took the conviction as validation of their opposition to him. In general perhaps the conviction reinforced the image of Sheridan as a rogue, but a likeable one, complete with his sun tan. Few “neutrals” would have had sympathy for the NotW even after the conviction.

In light of recent events, there will be even less feeling for the NotW.

The Murdochs have been seen on the world stage, and, even if nothing further happens as regards James, there will not be, for a long time, a positive opinion of News International here.

The final question is what criminal proceedings against Mr Coulson, in particular, would mean for the Prime Minister, Mr Cameron? But that is a question to be answered another day.

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News of the World, Hackgate and the Police Investigation – Part 2

What Did the Police Uncover and What Did they Make of it?

 

Since I first drafted this post, the news about  developments has kept coming so fast, there has not been time to hit the “Publish” button!

What I wanted to do was to look at the evidence given by DCS Williams of the Metropolitan Police in the Tommy Sheridan trial to see what it told us at that stage (December 2010) about what the police had actually uncovered as part of Operation Caryatid.

In light of the resignations yesterday and today of Commissioner Stephenson and Assistant Commissioner Yates, in part over concerns about the lack of rigour in the inquiries, I find the evidence of DCS Williams rather interesting. It helps, I think, to make clear the dreadfully negative attitude the police had to this whole inquiry. They simply wished it would go away.

As always my notes of the evidence are taken from the excellent Sheridan Trial Blog, put together by James Doleman.

Of course when DCS Williams gave evidence, Andy Coulson was still Director of Communications for the Prime Minister, Stephenson and Yates were still in place, Brooks and Hinton still worked for Rupert Murdoch, and the News of the World was the top-selling newspaper in Britain. How things change!

DCS Williams gave evidence about the search of Glenn Mulcaire’s property and the information discovered about his methodology.

He was asked if, during the search, it was true that  “3000 telephone numbers, 30 audio tapes and 100 PIN codes” had been unearthed.

DCS Williams said this was “not accurate”. Mr Sheridan referred to a parliamentary inquiry having been told there were “2978” numbers recovered, and he had “rounded that up to 3000”. DCS Williams replied, “If that is what the MPs were given it will be correct” and added that he believed the figure for PIN codes was 91.

It is, as an aside, interesting that the first reply was that the figures were not accurate, when, in fact, the correct details were 2,978 not 3,000 phone numbers, and 91 rather than 100 PIN codes.

Whilst I have posted before that Mr Sheridan’s lack of a full legal training and experience has meant that prosecutions for perjury of certain of the witnesses in his case is less likely as his questions were often not sufficiently precise, he deserves credit here for getting DCS Williams to agree that the figures given, whilst not precise, were pretty close. I do not intend to suggest that it was DCS Williams’ intention to downgrade the effect of the numbers put to him – but that, if he had not been pursued further, would probably have been the effect.

DCS Williams then told the court how Mr Mulcaire carried out the hacking. He would obtain the “unique number” of the mailbox belonging to their target and “dial it direct”. Depending on the “level of security” it would sometimes be necessary to obtain a PIN number.

In all the ongoing discussions regarding the “hacking” there has been little clear reporting of precisely what was done by Mr Mulcaire and the other investigators used by the press.

Some writers have even said that it does not amount to hacking where simply someone accesses a phone’s messages because the default PIN code has not been changed.

This evidence is an indication, to my eyes, that there was more to it than a simple reliance on phone users not changing their PIN codes.

Anyone who saw Chris Bryant MP being “interviewed” by Kay Burley some months ago on Sky News would be well aware that there was more to the process than simply relying on default PIN codes.

We next come to the nub of the issue, and that which, effectively, has lead to the end of the police careers of Messrs Stephenson and Yates.

Mr Sheridan asked how many people had been affected. DCS Williams stated that they had only evidence that reached the level of proof for “one victim” whom he identified as James Pinkerton, a “private secretary in the Royal Household.”

DCS Williams could not tell the court how many phones had been hacked or how many voicemails accessed.

We now know that there are around 4,000 possible victims of Glenn Mulcaire’s phone hacking spree (at least). This is based upon the information taken from Mr Mulcaire’s home, and which, by the time of the Sheridan trial, had been in the possession of the Metropolitan Police for over four years. Quite how DCS Williams was able to say that there was one victim, Mr Pinkerton, seems remarkable.

However, standing what Mr Yates said to the Home Affairs Select Committee last week, namely that the police were bound by a very strict definition of the offence given to them by the Crown Prosecution Service, it is easier to see how the effects were so minimised, even if the interpretation seems ridiculously narrow.

The interpretation given to Mr Yates was that an offence could only be proved to have been committed where it could be proved, beyond reasonable doubt, that a message on a mobile phone had been accessed by a third party before the intended recipient had heard it. On the guidance Mr Yates stated he had been given, it was necessary to prove that messages were hacked before the recipient got to them. Understandably that would be something very difficult to prove.

Leaving aside for now my view that that is a nonsensical definition of the crime, it at least helps us to understand why the Met Police seemed to underplay the numbers so much.

Mr Sheridan then asked the witness if the police had discovered the names that related to the phone numbers they had found. DCS Williams turned to the judge, Lord Bracadale, and said “M’lord. I have given answers, I don’t see how this is relevant.” Lord Bracadale directed the witness to answer.

Why would the officer be reluctant to answer that question? Was it a fear that a long police operation might seem to have been ridiculous if there had been so many numbers and only a few names found? Perhaps one of the House of Commons Select Committees looking into this matter, or Lord Justice Levenson’s inquiry might want to ask DCS Williams.

DCS Williams told the court that “the mere presence of a name and address does not mean anything unlawful has gone on.” The witness went on to state that “you would expect” that people who worked in the media would have possession of this sort of information and he “could not assume the purpose it’s held for is interception.” DCS Williams added that this had also been the view of the Crown Prosecution Service when they had reviewed the case last year (2009).

So there we have it in a nutshell. The implication I take from DCS Williams’ evidence is that the police were looking for reasons not to have to enquire into matters. The assumption seemed to be that unless the evidence of “hacking” struck them over the head, they should not really go looking for it.

Many in legal practice have had clients come in after approaching the police about what they, the victims, have perceived to be criminal activity, only to be met with the response at the Police Station desk of “That will be a civil matter, Sir.”

That was generally seen as a euphemism for “I am too busy or cannot be bothered dealing with that matter. Take it to a solicitor and don’t bother me, Sir.”

Here, on an industrial scale, to coin a phrase, the police were attempting to say “It’s a civil matter, Sir” as exemplified by Assistant Commissioner Yates’ review following further allegations by the Guardian where he reconsidered the whole matter of the 11,000 pages of evidence in an eight hour period before coming to the view that there was nothing new to look at or to justify the taking of further action at that time.

This is exemplified by the way that, originally, many of the celebrities and politicians complaining about hacking were told they had not been hacked, yet are now being made aware that they might have been.

Whether this “blind eye” approach was anything more sinister than simple incompetence will, hopefully, be addressed by one of the myriad of inquiries which seem to sprouting daily in connection with these matters.

What seems clear is that the police wanted little or nothing to do with this investigation – it was downplayed as much as possible – the bare minimum action was taken, and the whole sorry mess can be summed up by the picture of Mr Mulcaire’s 11,000 pages of notes lying in plastic bags in a Scotland Yard store room for four years, uncatalogued and ignored.

 

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