One of the issues noticed by legal observers of the trial of Tommy Sheridan for perjury in connection with his successful defamation against the News of the World (NotW) was what Sherlock Holmes would have called “the dogs that didn’t bark”.
These “dogs” were expert reports analysing the so-called “McNeilage Tape”.
George McNeilage had known Tommy Sheridan since their school days. He was a political colleague and had been best man at Mr Sheridan’s wedding.
However, according to Mr McNeilage in court, he had become sickened by Mr Sheridan’s public denials and diametrically opposed private admissions regarding his personal foibles, and decided to obtain proof of this.
According to Mr McNeilage, he engineered a meeting with Mr Sheridan in the presence of a hidden video camera. The video-tape which Mr McNeilage obtained, he said, as a result of this meeting, was one of many dramatic factors in the case. The Daily Record referred to the tape as being a “sensation” when it was first introduced into the trial.
Mr McNeilage told the court he had sat tight with the tape, only showing it to one other person, until after Mr Sheridan’s success in his defamation case, and his award of £200,000 damages by the Edinburgh jury.
He felt, he told the court, “physically sick” after the verdict, and even worse after the Daily Record published a front page article based apparently on comments by Mr Sheridan where he referred to certain of his former Scottish Socialist Party colleagues as “scabs”.
Did Mr McNeilage Do Anything Legally Wrong By Selling the Videotape to the NotW?
All this culminated in him contacting the NotW and after various negotiations, which included the Scottish editor of the NotW stripping to his underwear to view the video, to ensure that he was not “wired”, Mr McNeilage handed this evidence over to the NotW in return for a payment of £200,000.
Of course, at the stage when he did so, Mr Sheridan had been successful in his case, and this had been appealed by the NotW. Whilst the judge at the original trial had indicated that he thought that certain witnesses should be investigated as regards possible perjury, Mr Sheridan did not seem, at that stage, to be actively under inquiry.
There was therefore nothing legally wrong with Mr McNeilage contacting the NotW to sell them the tape. It was not, for example, interference with evidence in a criminal investigation, despite various comments to that effect which have been made.
What Did Mr Sheridan Say in Court about the Videotape?
As mentioned in the Daily Record piece above, the tape had recorded a voice which seemed to be that of Mr Sheridan, and there was a fleeting glimpse of a person who might have been him.
As it transpired, in court both prosecution and defence called various witnesses who were asked if they thought the voice on the tape making the damaging admissions was that of Mr Sheridan. The Crown witnesses thought that it was, whilst the defence witnesses thought that it was not. All witnesses, with differing degrees of certainty, gave their opinions about whether the voice was Mr Sheridan’s or not.
Here, legally, matters are complicated by Mr Sheridan’s decision at an early stage to dispense with his QC and to represent himself. Whilst he exercised his right not to go in to the witness box, it is clear that, deliberately or not, Mr Sheridan took the opportunity of examining, cross-examining and re-examining witnesses to, effectively, give his own evidence, without fear of the prosecutor asking him questions.
At different times Mr Sheridan suggested; that a mimic had been employed to impersonate his voice (but his efforts to have Des McLean, a mimic noted for his impressions of Mr Sheridan, admitted as a witness were fruitless); or that the tape might have been created from “bugged” conversations or phone messages.
Prosecution witnesses, including Mr McNeilage, who were asked about the tape had no doubts of its authenticity.
When Do the Non-Barking Dogs Make Their Appearance?
I will preface my remarks by saying that my speculations are not based on any direct knowledge of these matters but from what I hope is an “educated” guess as to what was happening, and also that no criticism of Mr Sheridan’s legal advisers is intended nor is any implied.
In a High Court case of this nature where there is physical evidence, like a video tape, both parties need determine if the evidence is genuine and whether or not the other party will seek to challenge this.
Scottish procedure requires that the Crown carry out full disclosure of their case to the defence, and in sufficient time prior to trial. The High Court will fix a Preliminary Hearing, and there can be a number of these in any one case, for the judge to ascertain how prepared all parties are for trial.
The Crown must disclose a list of witnesses whom it may call (if a witness is not listed then it is very difficult to have them called to give evidence) and a list of productions and “labels” being the documents and physical evidence in the case.
Therefore the defence would have had knowledge of the McNeilage Tape. This would have been discussed with Mr Sheridan by his QC and instructions given by him as to what was to be done about it.
Where, as must have been the case, Mr Sheridan disputed the tape’s authenticity, it is very hard to see that arrangements would not have been made for the video tape to be analysed, especially as, at the trial, Mr Sheridan drew attention to various “edits” in the recording. These, he suggested, might have been to get rid of any “mistakes” in the bogus confession recorded.
So, Were There Expert Reports or Not, and Why Did the Jury not See Them?
Now, whilst CSI and similar programmes have led us to believe that, from one fibre of material, the full events of a crime can be re-constructed, there is great technical expertise able to determine (a) if a recording is a true recording, or if it is made by “sampling” and (b) whether the voice or voices on the tape are likely to belong to a named individual.
So, in these circumstances, and despite hearing from many witnesses, did the court not hear from any experts?
There have been various theories expounded regarding this, one being that the Crown deliberately left their own expert off the list so as to allow them to question Mr Sheridan’s expert, whilst not leaving their expert open to attack.
That, whilst attractive to the “conspiracy” theorists, does not seem credible to me.
As far as I can surmise, and I quite accept I may be entirely wrong, the situation would have been as follows.
The Crown, in all likelihood, would have had the tape examined by an expert to see if it was genuine or if it appeared to be made of “off cuts”. In addition, the voice of the purported “Mr Sheridan” would have been analysed to see if an opinion could be given to the court about this.
A Short Digression on Expert Witnesses
Expert witnesses are lucky, in that they are the only witnesses who are properly able to tell the court their opinion, rather than simply giving factual evidence. Lay people often seem confused by the fact that two eminent experts can go into court, and give diametrically opposed opinions. I would never suggest that expert witnesses tailor their opinion to suit the side instructing them. That would be a gross dereliction of their duty to the court. The skill (or luck) lies in finding a suitably qualified whose evidence supports one’s thesis. I could, if I was an expert witness on football, for example, tell the court that it was my firmly held opinion that, in four years time, Albion Rovers would win the European Cup. Any number of pundits could explain how crack-pot that theory was, but no-one could prove that it was not my honestly held opinion (I don’t think Albion Rovers will win the European Cup in four years, by the way – give them six!)
As long as I have something, in that example to justify what I say, then I can give evidence, as an expert, which completely contradicts the opposing expert. It is for the judge or jury then to determine which expert’s evidence can be relied upon.
Enter, Stage Left, Peter Cadder
If the Crown expert said (a) that the tape was created from various different snatches of conversation and “knitted” together, or if the Crown expert determined that was not clear if the voice on the tape was that of Mr Sheridan, then the tape would not have been produced or mentioned in court. It would be a matter of grave concern if something like that had happened. In addition, under the rules of disclosure, such evidence would require to be made available to the defence, and if, notwithstanding the expert report or reports, the Crown had sought to introduce it, then the defence would have been easily able to discredit it.
It therefore would appear that the prosecution must have had favourable reports on these matters. Why would they not have introduced them in evidence?
Here we need to thank Mr Cadder.
Peter Cadder was convicted in 2009 of certain offences committed in 2007. However, he had ben interviewed by police without having had legal advice, and he challenged this as breaching his right to a fair trial under the European Convention on Human Rights. The Supreme Court in October 2010 ruled that statements obtained by the police in such circumstances were inadmissible.
How does this bear upon Mr Sheridan? The expert who analysed the tape for the prosecution would have needed a sample of Mr Sheridan’s voice for comparison purposes. Whilst Mr Sheridan has been a man very often heard on the radio and seen on television, to avoid evidential problems, the source material for such a comparison would normally be the accused’s police interview. However, in terms of the Cadder ruling, the evidence of Mr Sheridan’s taped interview with the police was inadmissible.
Now, as mentioned above, Mr Sheridan’s team must have obtained their own report or reports regarding these matters. If the defence experts agreed with the prosecution, then clearly they would not have been put before the court. It is not the job of the defence to assist the prosecution, but equally, if the defence position was that the voice, for example, was not that of Mr Sheridan, then normally expert evidence would be needed to make that case convincing (although the defence have no obligation to convince the jury of anything).
If Mr Sheridan had had favourable expert testimony, he could have agreed for this to be led. Even though the police interview with him was inadmissible as Crown evidence, the accused can have it introduced into evidence himself.
This then opens it up to the prosecution to refer to it. The genie is out of the lamp at that stage.
So, What Happened?
There are therefore, I think, two possibilities more likely than any others. Either the defence experts had little or no doubt about the provenance of the videotape, in which case leading their evidence would only bolster the prosecution, and in which case there would have been no incentive for the defence to permit the taped interview to be played or notwithstanding whatever the defence experts might have said, the tape contained admissions by Mr Sheridan which were damaging to his defence.
There were a number of prosecutions affected by the Cadder decision, being cases where police interviews with admissions by the accused had taken place prior to the Supreme Court decision, and in many the cases were dropped. The Crown felt that they had enough evidence (as it turned out they had) to convict Mr Sheridan without expert testimony regarding the video-tape.
I imagine that, at one of the Preliminary Hearings, the court had dealt with the question of admissibility of the videotape, and that the Court, as is normal in thees circumstances, had imposed reporting restrictions. During the course of the case there were at least four separate orders made by the court under section 4(2) of the Contempt of Court Act 1981 restricting or prohibiting reporting. http://www.scotcourts.gov.uk/current/court_announcements.aspUnlike Perry Mason, Petrocelli and the rest of the American lawyers whose fictional cases appeared on TV, it is not permitted, except in the most extreme circumstances, for a High Court case to be de-railed by a “last-minute” surprise witness. Therefore, if the court had ruled out the Crown expert reports as inadmissible, the defence would not have been allowed to try to “sneak in” their own expert. If they had, thus waiving the right to object to the police interview being admissible, the judge would have allowed the Crown experts to testify. In all likelihood however, he would have refused to allow the defence expert evidence before the court unless the expert was on the defence witness list and it had been made clear he might be called.
The likelihood therefore that there were expert reports, but that these were not for playing before the jury meant that all parties had to tread carefully. I recall a case some years ago (not one in which I was involved, but one which happened to be on in the court in which I was at the time) where an accused had been convicted of a serious assault. Despite the fact that he apparently had a number of previous convictions, these had not been libelled by the prosecution against him. This meant that the judge could not take the previous convictions into account in passing sentence. The defence lawyer, treading carefully, told the court that his client appeared “with no previous convictions libelled against him” which is different from saying that he had none, or that he was a first offender, both of which would have been untrue. I am sure the judge noted this formulation but as he did not have the convictions before him, he could do nothing about taking them into consideration.
Here too, in the Sheridan trial, both sides had to step carefully round the issues, and, from all I have read, they seemed to do so very well, although I suspect there might have been times when there was some legal argument about precise references to the video and whether or not it was genuine.
It has also been suggested that each side planned to seek to discredit the other’s expert on this point and so an accord was reached whereby neither side introduced expert testimony. I fail to see the sense in that. If I was a defence lawyer with an expert witness challenging a substantial part of the Crown case, I would want his evidence before the jury, even if the Crown had an expert to rubbish mine. It all goes towards showing there is a reasonable doubt regarding guilt.
If my expert did not really support my argument however and especially if introducing him would have permitted the jury to hear damning confessions from my client, then I would want the expert and his report as far from court as possible.
(Again, as an aside, I should say that the making of admissions at interview is not always conclusive, and there have been various cases where the court has decided that, for example, there has been “interrogation” of witnesses, which is treated by the law as unfair and renders the content of the interview inadmissible against the accused.)
As the trial continued, message boards and blogs dealing with the case were filled with discussions. There was rampant speculation about the video-tape and the expert evidence to deal with it. The supporters and enemies of Mr Sheridan drew up their battle lines, each side trying to explain why, by that stage, the expert evidence had failed to appear.
As we know, it never did.
If Mr Sheridan is ultimately successful in his appeal (and as of now there is no live appeal) there remains the possibility of a re-trial. In such an event his advisers would again have to consider very carefully whether the expert evidence is worth leading.
In addition, the NotW stilll has its appeal against Mr Sheridan’s damages award to be determined. There is a possibility too that this case could result in a re-trial. As this is not a criminal case, it may well be that the concerns about admissability of the expert reports disappear and, as a result, the full tape of Mr Sheridan might be heard by the High Court jury.