Hugh Kerr, former Labour MEP, and the man now in charge of Sheridan’s PR campaign (whatever happened to Jim Monaghan?) was on Newsnight Scotland last night, after his brief appearance on STV on Friday evening. Kerr has been putting in freedom of information requests to Lothian and Borders police in order to obtain information on the cost of the investigation.
It was he who discovered that more than £1 million and 40,000 hours of police time have been spent on the investigation (claimed to be have been “revealed by the Herald yesterday” in today’s Herald article - althogh my regular reader willl recall the figures from Friday evening when they appeared on STV). Today, the Herald publishes statistics Kerr has obtained indicating that, “During the weekend when 12 officers were engaged on interviewing the Solidarity politician and former MSP in Edinburgh and nine more were searching his Glasgow home, it was disclosed that 303 offences were being reported to the force.”
Kerr’s argument is that the investigation is unprecedented in Scots law – following a civil case - has been a huge waste of police time and is indicative of a vendetta run by the police, the legal establishment and the News of the World against Tommy Sheridan and his family. The argument is familiar, and has received some support from Ian Hamilton QC, Alan Cochrane from the Daily Telegraph, and Iain MacWhirter in the Guardian.
Kerr has some reasonable points. It is unprecedented – in Scotland. However, perjury investigations following civil cases ended in the conviction of Lord Archer and Jonathan Aitken. Again both followed libel cases. However, unlike this case the criminal investigations and actions followed investigations by the newspapers which led to Court of Appeal decisions overturning the original jury decisions. In this case, the investigation was initiated before the appeal to the Inner House. This is due to the peculiar circumstances of the case.
Ordinarily it is difficult to determine if perjury has taken place – because as defined in Scots criminal law “Perjury is committed by wilfully giving false evidence on oath or affirmation in any judicial proceeding”, and is a common law offence (potentially punishable by life imprisonment). The definition is from Sheriff Gordon’s book on criminal law and further examination of his textbook indicates that perjury may be difficult to establish. in establishing perjury it is necessary to show that a party “wilfully” gave false evidence, and to this extent if a statement is equivocal it cannot be perjury, because two meanings are possible. Further, where parties express opinions this is not perjury; and where a statement is unimportant or trivial – with no bearing on the result of a case, this is not perjury. Omissions in evidence also do not generally constitute perjury.
Already we see that the hurdles for perjury are such that it can be difficult to establish in most cases. This is because in most cases there are shades of grey. People give evidence. They recollect some things that others forget, and so on. They may omit to provide all relevant evidence. Two contrary views can come from two generally honest witnesses – whose own experiences and perspectives influence what they recall. Further statements may be coloured, but open to more than one meaning. And often the evidence will not be material to the outcome of the case.
Hence, typically, perjury will not arise in civil matters. In the investigation resulting from the defamation action things were different.
The crux of the matter was the executive committee meeting of the SSP (the minute of this has now been removed from their website). This meeting was called specifically to consider the newspaper allegations. 11 recalled Tommy admitting to the stories. 4 did not.
As this was the one item on the agenda for that meeting it seems clear that both sets of witnesses are not telling the truth in that case, and this is not down to shades of grey. Here there is a black and white issue: did he admit it or didn’t he? Accordingly, some people falsely gave evidence. There were no equivocal statements. People did not recall matters to the best of their knowledge (and it is notable that one witness who couched his evidence in such terms having not been an attendee at the meeting, but did attend a subsequent meeting, has not been charged in connection with the case).
Lord Turnbull referred the matter to the Crown Office, because – unusually – here is a clear instance that someone has given unequivocal false evidence: either (a) to support the allegations of the newspaper which could destroy a political career; or (b) to assist in the obtaining of money by deception. In either case the false evidence is material – being directly relevant to the issue in the case (was Tommy an adulterer? and did he attend the relevant clubs?). It is immediately apparent that – unlike the normal case – all of the requirements for perjury are in place.
The nature of the evidence then renders this case unusual – and the fact that the police had 15 witnesses to investigate in this respect – where they know that either a block of 4, or a block of 11 were lying – necessarily involves the incurring of costs. Now, I do not know how the police carried out the case – but there are explicable reasons for the police investigation taking a protracted period of time, many man hours, and running up costs. Having been invited to investigate by the trial judge prior to any appeal the police know that they have to consider the 15 witnesses So if we assume the police began looking at only the 15 witnesses who had given diametrically opposed evidence. When this initial investigation into what happened at the meeting is complete the police then have to follow up other lines of enquiry. Either the 4 were telling the truth, or the 11 were telling the truth. If the four were believed this had implications for the News of the World witnesses – each would have to be investigated. Did they attend the clubs? Did they see what they claimed to see? If the 11 were believed this had implications for Tommy and his witnesses: were they where they claimed to be on the relevant nights? Did the claimed phone calls take place?
In either case an original police investigation on the meeting potentially leads to investigation of many others (and if it did not it could be viewed as a political vendetta against one or other socialist movement – to avoid this allegation the police had to investigate further).
Further the enquiryis also likely to have involved subornation or attempted subornation of perjury (where parties are induced to give perjured evidence). Newspapers reported various stories about alleged witness tampering. These complaints have to be invesigated – and that widens the enquiry, again, beyond the parties that originally gave evidence.
Now, I don’t know how the figures relate to the issues that inevitably arise from pursuing the investigation even to a basic level – but it seems that Mr Kerr and the other supporters of the Sheridan seven are using smoke and mirrors here. And some journalists and lawyers who should know better ought to think through the consequences of Lord Turnbull’s initial action in reporting the matter to the Crown Office and the inevitable complexities thereby created (with at least 15 potential suspects to begin with) and consequential impact on the time and costs of investigation.
Those supporting the Sheridan Seven are attempting to have any prosecution stalled as not being in the public interest. I think that unlikely. I do not know what evidence the police has. I do not know if the allegations against Sheridan are true. I know he denies matters. I must assume that the police believe they have gathered evidence sufficient to warrant charges.
There are no reasons for a Scot to be ashamed of this enquiry (excepting the miniatures – possibly – but then we don’t know how many there were).
Let the matter go to trial. Let a jury decide.