Tag Archives: Tommy Sheridan

The Scotsman – “News of the World has not Appealed Sheridan Verdict” – Shome Mishtake Shurely?

Tommy Sheridan’s case has taken a bit of a back seat as far as press coverage is concerned, having been overwhelmed by the tide of News of the World disgrace over the summer, and following on the rejection of his application for leave to appeal against his criminal conviction for perjury.

The Scotsman today has an article which discusses Mr Sheridan’s appearance at a fund raiser to assist with his civil case.

Tommy Sheridan - in happier times

The article is one which seems to maintain the recent proud tradition of our newspapers, both the Scotsman and elsewhere, having very poor coverage of the meat of legal issues.

David Allen Green, the highly acclaimed lawyer and commentator, has focussed for some time now on “Bad Law” coverage in the media – discussing cases where what is reported bears little or no relation to the issues actually raised, or where the legal understanding of the position in the article goes badly wrong. This piece seems, to me, to fall into that category.

The article states:-

(Sheridan’s) solicitor, Aamer Anwar, is pursuing the cash payment on the basis that News International has yet to lodge an appeal against the initial decision at the Court of Session in Edinburgh to award damages to Sheridan over a series of allegations about the left-winger’s private life in the now-defunct News of the World.

“News International, which has been dogged by allegations of phone-hacking, pledged to appeal against the damages award in the immediate aftermath of Sheridan’s conviction in Glasgow last December.

It goes on to quote Kenny Ross, described as a leading figure in the Fire Brigades Union, and chair of the Defend Tommy Sheridan Campaign. He is quoted as saying:-

Tommy is pursuing News International for the £200,000 he was awarded in 2006. His solicitor is writing to News International to say that Tommy wants the money the court said he should have. News of the World hasn’t lodged an appeal against the original decision, despite saying that it would do that. Tommy’s solicitor will be arguing for the damages to be paid on that basis.

What’s Wrong With The Piece?

It struck me as rather odd that, according to the article, News International (NI) had not appealed against a judgement made by a jury in August 2006.

Generally courts only allow appeals to be lodged in a very short time window after decisions are made. Five years for lodging an appeal doesn’t fit anywhere within the rules in Scotland anyway.

The Rules

Section 29 of the Court of Session Act 1988 deals with applications for review of the verdict of a jury in a civil case in Scotland. It states at subsection 1:-

Any party who is dissatisfied with the verdict of the jury in any jury action may, subject to such conditions and in such manner as may be prescribed, apply to the Inner House for a new trial on the ground—(a) of misdirection by the judge; (b) of the undue admission or rejection of evidence; (c) that the verdict is contrary to the evidence; (d) of excess or inadequacy of damages; or (e) of res noviter veniens ad notitiam; or on such other ground as is essential to the justice of the cause.

Chapter 39 of the Rules of the Court of Session deals with time limits for such an application. Chapter 39.1 (1) states:-

“An application under section 29(1) of the Act of 1988 (application for new trial) (a) shall be made to a procedural judge, by motion, within 7 days after the date on which the verdict of the jury was written on the issue and signed.

Chapter 39.2 (1) states:-

A procedural judge may, on an application made in accordance with paragraph (2), allow an application for a new trial under section 29(1) of the Act of 1988 to be received outwith the period specified in rule 39.1(1) and to proceed out of time on such conditions as to expenses or otherwise as the procedural judge thinks fit.”

Is the Scotsman suggesting that NI missed the seven day window, and indeed has done so by over five years, and nearly a year after Mr Sheridan’s conviction? In such circumstances a late review application would receive very short shrift.

If NI had instructed its solicitors to appeal following the verdict, as was publicised, then they would have a stonewall negligence claim against their lawyers if their failure to appeal resulted in them having to pay Mr Sheridan £200,000.

Has News International Actually Appealed? Yes, of Course

However, 20 seconds on Google (including stopping for a mouthful of tea) shows that the above cannot be the case.

On 11th August 2006 the BBC reported, under the heading “Tabloid launches Sheridan appeal” that:-

“The News of the World has launched an appeal after a jury awarded Tommy Sheridan £200,000 in damages in his defamation case against the tabloid. The appeal was lodged with the Court of Session in Edinburgh but has yet to be formally accepted.”

On 13th February 2007 the BBC reported, under the headline “Newspaper’s Tommy appeal date set”:-

A date has been set for the News of the World’s appeal hearing to overturn a £200,000 damages award for calling Tommy Sheridan MSP “a swinger. Two weeks in December have been pencilled into the Court of Session’s diary for appeal judges to hear the Sunday tabloid’s demand for a re-trial.

“Roisin Higgins, counsel for the Sunday tabloid’s publishers said legal argument about a re-trial was expected to start on 4 December and is expected to last for two weeks.“

Then, on 25th September 2007, the BBC, under the headline “Sheridan court appeal put on hold” reported:-

A News of the World appeal against Tommy Sheridan’s libel victory against the paper has been put on hold. The newspaper is seeking to overturn the verdict, after being ordered to pay Mr Sheridan £200,000. Judges agreed that the proceedings should be suspended at a hearing at the Court of Session in Edinburgh. The decision means the case will now be suspended until the Crown inquiry into perjury allegations resulting from the case is resolved.”

So, from all of that, it appears that (a) an appeal was lodged (b) a date for hearing the appeal was set and (c) the court sat to decide to delay the appeal till after the perjury inquiry!

Either Mr Sheridan has a novel legal argument to the effect that the appeal was not properly lodged, which seems highly unlikely in light of the proceedings following it, or the Scotsman has simply repeated what someone has told it, without any check as to the credibility or reliability of the information.

If there had been no appeal, Mr Sheridan would hold a valid decree and his lawyers would instruct Sheriff Officers to take enforcement action against NI. But the lodging of an appeal prevents a decree being issued, so he has, so far, nothing to enforce.

The Scotsman article today also states:-

“News International, which has been dogged by allegations of phone-hacking, pledged to appeal against the damages award in the immediate aftermath of Sheridan’s conviction in Glasgow last December.”

But, as we have seen, the appeal was lodged in August 2006, long before the guilty verdict.

What Is The Correct Position?

As far as I can see here is where the case stands. The appeal was “sisted” (suspended) pending the criminal case. Once that has been resolved, it is open to either party to ask the court to “recall the sist” and put the appeal back on the court lists.

On the basis that the lodging of the appeal stopped NI having to pay Mr Sheridan, on one view they really have no incentive to get the appeal running soon, although excessive delay in doing so could result in the appeal being thrown out.

But Mr Sheridan’s option, if he wants to pursue the matter is simple. He can, either directly, or through his lawyers, ask the court to recall the sist. Such a motion would undoubtedly be granted and the case would be back on the rails.

If Mr Sheridan desires representation at his civil appeal and cannot find lawyers to represent him on a “no-win, no fee” basis, then the costs of him opposing the NI appeal will be high and funds would need to be raised for that. That however is not the story the Scotsman has elected to print.

 

Conclusion

As seems so common these days the press are not able, for reasons of resources I imagine, to address the legal issues in case thoroughly. The Scotsman at this point in the court proceedings (or indeed at ant time) would be unlikely to want to print a 5,000 word article on the likely outcome of the NI appeal (though such an article should be appearing on this very blog soon!). That is understandable and excusable.

What is far less so is when an article is published which, whilst about the law, is factually incorrect, and which, within seconds, can be shown to be so.

The problem is that most of the public get their knowledge of the law and the courts from the media. Where what they are being told is wrong, then the prospects of sensible and informed debate about the many legal issues which affect our daily lives are greatly reduced.

Click here for David Allen Green's explanation of what "Bad Law" Is

 

 

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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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Tommy Sheridan and the “McNeilage Tape”

One of the issues noticed by legal observers of the trial of Tommy Sheridan for perjury in connection with his successful defamation against the News of the World (NotW) was what Sherlock Holmes would have called “the dogs that didn’t bark”.

These “dogs” were expert reports analysing the so-called “McNeilage Tape”.

 

George McNeilage

George McNeilage had known Tommy Sheridan since their school days. He was a political colleague and had been best man at Mr Sheridan’s wedding.

However, according to Mr McNeilage in court, he had become sickened by Mr Sheridan’s public denials and diametrically opposed private admissions regarding his personal foibles, and decided to obtain proof of this.

According to Mr McNeilage, he engineered a meeting with Mr Sheridan in the presence of a hidden video camera. The video-tape which Mr McNeilage obtained, he said, as a result of this meeting, was one of many dramatic factors in the case. The Daily Record  referred to the tape as being a “sensation” when it was first introduced into the trial.

Mr McNeilage told the court he had sat tight with the tape, only showing it to one other person, until after Mr Sheridan’s success in his defamation case, and his award of £200,000 damages by the Edinburgh jury.

He felt, he told the court, “physically sick” after the verdict, and even worse after the Daily Record published a front page article based apparently on comments by Mr Sheridan where he referred to certain of his former Scottish Socialist Party colleagues as “scabs”.

 

Did Mr McNeilage Do Anything Legally Wrong By Selling the Videotape to the NotW?

All this culminated in him contacting the NotW and after various negotiations, which included the Scottish editor of the NotW stripping to his underwear to view the video, to ensure that he was not “wired”, Mr McNeilage handed this evidence over to the NotW in return for a payment of £200,000.

Of course, at the stage when he did so, Mr Sheridan had been successful in his case, and this had been appealed by the NotW. Whilst the judge at the original trial had indicated that he thought that certain witnesses should be investigated as regards possible perjury, Mr Sheridan did not seem, at that stage, to be actively under inquiry.

There was therefore nothing legally wrong with Mr McNeilage contacting the NotW to sell them the tape. It was not, for example, interference with evidence in a criminal investigation, despite various comments to that effect which have been made.

 

What Did Mr Sheridan Say in Court about the Videotape?

As mentioned in the Daily Record piece above, the tape had recorded a voice which seemed to be that of Mr Sheridan, and there was a fleeting glimpse of a person who might have been him.

As it transpired, in court both prosecution and defence called various witnesses who were asked if they thought the voice on the tape making the damaging admissions was that of Mr Sheridan. The Crown witnesses thought that it was, whilst the defence witnesses thought that it was not. All witnesses, with differing degrees of certainty, gave their opinions about whether the voice was Mr Sheridan’s or not.

Here, legally, matters are complicated by Mr Sheridan’s decision at an early stage to dispense with his QC and to represent himself. Whilst he exercised his right not to go in to the witness box, it is clear that, deliberately or not, Mr Sheridan took the opportunity of examining, cross-examining and re-examining witnesses to, effectively, give his own evidence, without fear of the prosecutor asking him questions.

At different times Mr Sheridan suggested; that a mimic had been employed to impersonate his voice (but his efforts to have Des McLean, a mimic noted for his impressions of Mr Sheridan, admitted as a witness were fruitless);  or that the tape might have been created from “bugged” conversations or phone messages.

Prosecution witnesses, including Mr McNeilage, who were asked about the tape had no doubts of its authenticity.

 

When Do the Non-Barking Dogs Make Their Appearance?

I will preface my remarks by saying that my speculations are not based on any direct knowledge of these matters but from what I hope is an “educated” guess as to what was happening, and also that no criticism of Mr Sheridan’s legal advisers is intended nor is any implied.

In a High Court case of this nature where there is physical evidence, like a video tape, both parties need determine if the evidence is genuine and whether or not the other party will seek to challenge this.

Scottish procedure requires that the Crown carry out full disclosure of their case to the defence, and in sufficient time prior to trial. The High Court will fix a Preliminary Hearing, and there can be a number of these in any one case, for the judge to ascertain how prepared all parties are for trial.

The Crown must disclose a list of witnesses whom it may call (if a witness is not listed then it is very difficult to have them called to give evidence) and a list of productions and “labels” being the documents and physical evidence in the case.

Therefore the defence would have had knowledge of the McNeilage Tape. This would have been discussed with Mr Sheridan by his QC and instructions given by him as to what was to be done about it.

Where, as must have been the case, Mr Sheridan disputed the tape’s authenticity, it is very hard to see that arrangements would not have been made for the video tape to be analysed, especially as, at the trial, Mr Sheridan drew attention to various “edits” in the recording. These, he suggested, might have been to get rid of any “mistakes” in the bogus confession recorded.

 

So, Were There Expert Reports or Not, and Why Did the Jury not See Them?

Now, whilst CSI and similar programmes have led us to believe that, from one fibre of material, the full events of a crime can be re-constructed, there is great technical expertise able to determine (a) if a recording is a true recording, or if it is made by “sampling” and (b) whether the voice or voices on the tape are likely to belong to a named individual.

So, in these circumstances, and despite hearing from many witnesses, did the court not hear from any experts?

There have been various theories expounded regarding this, one being that the Crown deliberately left their own expert off the list so as to allow them to question Mr Sheridan’s expert, whilst not leaving their expert open to attack.

That, whilst attractive to the “conspiracy” theorists, does not seem credible to me.

As far as I can surmise, and I quite accept I may be entirely wrong, the situation would have been as follows.

The Crown, in all likelihood, would have had the tape examined by an expert to see if it was genuine or if it appeared to be made of “off cuts”. In addition, the voice of the purported “Mr Sheridan” would have been analysed to see if an opinion could be given to the court about this.

 

A Short Digression on Expert Witnesses

Expert witnesses are lucky, in that they are the only witnesses who are properly able to tell the court their opinion, rather than simply giving factual evidence. Lay people often seem confused by the fact that two eminent experts can go into court, and give diametrically opposed opinions. I would never suggest that expert witnesses tailor their opinion to suit the side instructing them. That would be a gross dereliction of their duty to the court. The skill (or luck) lies in finding a suitably qualified whose evidence supports one’s thesis. I could, if I was an expert witness on football, for example, tell the court that it was my firmly held opinion that, in four years time, Albion Rovers would win the European Cup. Any number of pundits could explain how crack-pot that theory was, but no-one could prove that it was not my honestly held opinion (I don’t think Albion Rovers will win the European Cup in four years, by the way – give them six!)

As long as I have something, in that example to justify what I say, then I can give evidence, as an expert, which completely contradicts the opposing expert. It is for the judge or jury then to determine which expert’s evidence can be relied upon.

 

Enter, Stage Left, Peter Cadder

If the Crown expert said (a) that the tape was created from various different snatches of conversation and “knitted” together, or if the Crown expert determined that was not clear if the voice on the tape was that of Mr Sheridan, then the tape would not have been produced or mentioned in court. It would be a matter of grave concern if something like that had happened. In addition, under the rules of disclosure, such evidence would require to be made available to the defence, and if, notwithstanding the expert report or reports, the Crown had sought to introduce it, then the defence would have been easily able to discredit it.

It therefore would appear that the prosecution must have had favourable reports on these matters. Why would they not have introduced them in evidence?

Here we need to thank Mr Cadder.

Peter Cadder was convicted in 2009 of certain offences committed in 2007. However, he had ben interviewed by police without having had legal advice, and he challenged this as breaching his right to a fair trial under the European Convention on Human Rights. The Supreme Court in October 2010 ruled that statements obtained by the police in such circumstances were inadmissible.

How does this bear upon Mr Sheridan? The expert who analysed the tape for the prosecution would have needed a sample of Mr Sheridan’s voice for comparison purposes. Whilst Mr Sheridan has been a man very often heard on the radio and seen on television, to avoid evidential problems, the source material for such a comparison would normally be the accused’s police interview. However, in terms of the Cadder ruling, the evidence of Mr Sheridan’s taped interview with the police was inadmissible.

Now, as mentioned above, Mr Sheridan’s team must have obtained their own report or reports regarding these matters. If the defence experts agreed with the prosecution, then clearly they would not have been put before the court. It is not the job of the defence to assist the prosecution, but equally, if the defence position was that the voice, for example, was not that of Mr Sheridan, then normally expert evidence would be needed to make that case convincing (although the defence have no obligation to convince the jury of anything).

If Mr Sheridan had had favourable expert testimony, he could have agreed for this to be led. Even though the police interview with him was inadmissible as Crown evidence, the accused can have it introduced into evidence himself.

This then opens it up to the prosecution to refer to it. The genie is out of the lamp at that stage.

 

So, What Happened?

There are therefore, I think, two possibilities more likely than any others. Either the defence experts had little or no doubt about the provenance of the videotape, in which case leading their evidence would only bolster the prosecution, and in which case there would have been no incentive for the defence to permit the taped interview to be played or notwithstanding whatever the defence experts might have said, the tape contained admissions by Mr Sheridan which were damaging to his defence.

There were a number of prosecutions affected by the Cadder decision, being cases where police interviews with admissions by the accused had taken place prior to the Supreme Court decision, and in many the cases were dropped. The Crown felt that they had enough evidence (as it turned out they had) to convict Mr Sheridan without expert testimony regarding the video-tape.

I imagine that, at one of the Preliminary Hearings, the court had dealt with the question of admissibility of the videotape, and that the Court, as is normal in thees circumstances, had imposed reporting restrictions. During the course of the case there were at least four separate orders made by the court under section 4(2) of the Contempt of Court Act 1981 restricting or prohibiting reporting.  http://www.scotcourts.gov.uk/current/court_announcements.aspUnlike Perry Mason, Petrocelli and the rest of the American lawyers whose fictional cases appeared on TV, it is not permitted, except in the most extreme circumstances, for a High Court case to be de-railed by a “last-minute” surprise witness. Therefore, if the court had ruled out the Crown expert reports as inadmissible, the defence would not have been allowed to try to “sneak in” their own expert. If they had, thus waiving the right to object to the police interview being admissible, the judge would have allowed the Crown experts to testify. In all likelihood however, he would have refused to allow the defence expert evidence before the court unless the expert was on the defence witness list and it had been made clear he might be called.

The likelihood therefore that there were expert reports, but that these were not for playing before the jury meant that all parties had to tread carefully. I recall a case some years ago (not one in which I was involved, but one which happened to be on in the court in which I was at the time) where an accused had been convicted of a serious assault. Despite the fact that he apparently had a number of previous convictions, these had not been libelled by the prosecution against him. This meant that the judge could not take the previous convictions into account in passing sentence. The defence lawyer, treading carefully, told the court that his client appeared “with no previous convictions libelled against him” which is different from saying that he had none, or that he was a first offender, both of which would have been untrue. I am sure the judge noted this formulation but as he did not have the convictions before him, he could do nothing about taking them into consideration.

Here too, in the Sheridan trial, both sides had to step carefully round the issues, and, from all I have read, they seemed to do so very well, although I suspect there might have been times when there was some legal argument about precise references to the video and whether or not it was genuine.

It has also been suggested that each side planned to seek to discredit the other’s expert on this point and so an accord was reached whereby neither side introduced expert testimony. I fail to see the sense in that. If I was a defence lawyer with an expert witness challenging a substantial part of the Crown case, I would want his evidence before the jury, even if the Crown had an expert to rubbish mine. It all goes towards showing there is a reasonable doubt regarding guilt.

If my expert did not really support my argument however and especially if introducing him would have permitted the jury to hear damning confessions from my client, then I would want the expert and his report as far from court as possible.

(Again, as an aside, I should say that the making of admissions at interview is not always conclusive, and there have been various cases where the court has decided that, for example, there has been “interrogation” of  witnesses, which is treated by the law as unfair and renders the content of the interview inadmissible against the accused.)

 

Conclusion

As the trial continued, message boards and blogs dealing with the case were filled with discussions. There was rampant speculation about the video-tape and the expert evidence to deal with it. The supporters and enemies of Mr Sheridan drew up their battle lines, each side trying to explain why, by that stage, the expert evidence had failed to appear.

As we know, it never did.

If Mr Sheridan is ultimately successful in his appeal (and as of now there is no live appeal) there remains the possibility of a re-trial. In such an event his advisers would again have to consider very carefully whether the expert evidence is worth leading.

In addition, the NotW stilll has its appeal against Mr Sheridan’s damages award to be determined. There is a possibility too that this case could result in a re-trial. As this is not a criminal case, it may well be that the concerns about admissability of the expert reports disappear and, as a result, the full tape of Mr Sheridan might be heard by the High Court jury.

 

 

 

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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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