Tommy Sheridan update – some thoughts on perjury

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. 

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About loveandgarbage

I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
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11 Responses to Tommy Sheridan update – some thoughts on perjury

  1. Anonymous says:

    tommy
    I agree with your conclusion.
    But can I say a few words about the costs – they do seem extraordinary, even if the investigation has had as wide a remit as you indicate it might have had. 40,000 man hours equates to 10 Detectives working full-time for 2 years. For that sort of intensive enquiry one could reasonably have been expecting to find Lord Lucan, Madeleine McCann, Shergar and Martin Bormann.
    But, and this is the point, the costs of criminal investigations are frequently out of proportion to the nature of the crime – for example, if somebody breaks a window in your house by throwing a stone at it, and it costs £70 to repair, should the police investigate it at all? At £25 per man-hour, and bearing in mind the ever-present requirement for all police activity to be duplicated (‘corroborated’ as lawyers say) the costs of the investigation would very quickly outstrip the quantum of the damage – to the point where the police would be much more cost efficient just giving you £70 and not investigating at all.
    Indeed the investigation of hardly any crime is cost effective in these terms, and it is absurd to even think of it in that way.
    No doubt a balance has to be struck between the scarce resources and the seriousness of the crime. But the more serious the crime, the less cost is a factor in its investigation.
    The real point here, surely, is how seriously you regard the allegation of perjury in the most high profile defamation case ever heard in Scotland – indeed very possibly the most high profile civil case of any description ever heard in Scotland.
    Is that serious or not?
    Does it merit police investigation or not?
    If you think it’s trivial, then of course you will think that the police investigation is a waste of scarce resources.
    If you think it’s serious then you will agree with the expenditure of police resources.
    I rather think that Tommy and many of his supporters think that perjury is trivial. One recalls that during the libel case Tommy said that sometimes he would tell lies for political reasons “I think, sometimes, when you are dealing with the power of the law and the most reactionary scab outfit in the world you will have to fight dirty, yes,” he said.
    Thus, his philosophy seems to be that lies may be told with impunity in pursuance of the class struggle, and we can thus assume that he thinks perjury is a mere bagatelle.
    Meantime, as you reported, George Galloway leaps into the Daily Record saying “Tommy Sheridan is a friend of mine and I would defend him even if I thought he was guilty, which I don’t”. George then conflates many things when he says, “even Tommy’s worst enemies must be wondering about the cost – £1million and counting – in police time and resources being put into this squalid “miniature” little case.” Is he referring to the perjury allegation as a squalid little case? He must be, because the investigation of Gail and her miniatures has not cost anywhere near £1 million. We must assume that George, who of course is no stranger to the witness box, thinks allegations of perjury are not worth investigating properly.
    And now Hugh Kerr – he makes the argument purely on the cost-effectiveness basis – which is rather strange for a socialist , who would normally seek ‘justice no matter what it costs’ or some similar cliche.
    So, I find myself in the middle somewhere – I am bemused at the cost of the enquiry, but I am in no doubt that the alleged crime is sufficiently serious to merit intensive investigation.
    I would have been much more content with the whole thing had the police turned a Nelsonian eye to Gail’s miniatures. That does smack of ‘getting the Sheridans’ and might paradoxically turn a jury in their/his/her favour.

    • Re: tommy
      I wholly endorse your take on the seriousness of the matter – and the miniatures (although it gave me a cheap laugh). The tactical implications of it may have unforeseen consequences (although we still don’t know how many there were).
      And as for the man hours. Who knows, perhaps they’ve found Lucan while they’ve been at it. There could be few surprise witnesses to top that one (maybe he also spends his evenings in Manchester (allegedly) 😉 ).

  2. Anonymous says:

    Sheridan
    I didn’t think anyone was claiming that the detectives were only working on the Sheridan case for all this time, thats just a distortion by Toms political supporters.

  3. shaz_rte says:

    Is there any indication of whether the News of the Screws’ appeal would take place before or after the perjury case?

    • The case is sisted (on hold) until the criminal proceedings have been completed. The decision was taken by the second Division of the Inner House of the Court of Session under Lord Justice Clerk Gill in the autumn of last year.

      • shaz_rte says:

        Ah! Thanks Scott.
        I’m intrigued by people’s perceptions of the case and the amount of time the police have spent on it. I wonder if perjury is seen as a victimless crime.
        The Aitken “sword of truth” case is an interesting example, given the amount of time and resources the Guardian poured into proving where he’d been when he said he wasn’t!

        • I posted on Lord Gill’s decision at http://loveandgarbage.livejournal.com/185999.html . The reason is to avoid duplication.
          The press reaction on the costs and effort in the case is a little bemusing, especially given the issues I try to identify in the post. There were initially 15 potential suspects – if the investigation had led one way the evidence of the others in the case would be examined. The case was a 4 1/2 to 5 week proof, lots of witnesses – and the inconsistencies between each are examined by virtue of the original remit given to the police.
          If you have a look at Alistair’s comment above he draws points about general criminal investigations and their cost-effectiveness. Investigation is not cost-effective – whether one accepts the value of the investigation or not depends on one’s view of the crime. Some people think lying in court is serious of itself. Some people think lying in court to obtain thousands of pounds by deception is serious. Some think that persuading others (or attempting to persuade others) to lie in court is serious. And if allegations touch any of these issues they should be fully investigated. Others think these issues don’t matter, and that lying in court is an occupational hazard. Those involved in the system – that I’ve spoken to – in practice (both branches) and in academia – view this as very serious, and the potential multiple accused was an inevitable outcome of the case. Once Lord Turnbull raised the issue, the Crown had to look at it, the police had to investigate it, and vast sums of money and time were inevitable consequences.
          Scott

          • shaz_rte says:

            I spy a conference paper or journal article at some stage on media coverage of the case ;o)
            I’d love to know how many perjury cases there are in the UK in any given year. The three we’ve been talking about were/are clearly immensely high profile. People presumably lie in court every day of the week. Is there a (moral) difference between lying and winning oodles of money, or lying and seeing someone go to prison as a result?
            Just as libel cases are seen as a rich person’s pursuit, will you only get nailed for perjury if you’re in the public eye rather than Joe Public of Govan or Grimsby?

          • Anonymous says:

            Archer and ASitken were not subject to a police investigation folowing their case. In Aitkens case it was the guardian alone who hounded him down, without the help of police or i million pounds. When the guardian had the evidence, they gave it to police, who called Aitken, asked him to come in the next day which he did, no dramatic arrests or seraching of houses. I archers case it was one of his consnpirators who shoppedhim. In neither case did the Crown Ofice order police to investigate the evidence in court.
            Th other point about this being a unique case re the contradictory witness statements is completely bogus. this happens in almost every case and the judges make commenst re the evidence ecery day.
            All you blog dioes is underaline the need for an answer to the questions of why this investigation was launhed and why allocate such huge resources to it.
            Anyone who followed the court case would have seen that the NotW evidence was weak and their witnesses were all paid in one way or another.
            The case came down to the SSP witnesses and the contradictory evidence of recollections of a meeting that too place 2 years earlier. The details even of the story that meeting related to were diluted as the author pointed out that she added “puff” in the form of cocaine, champagne and spanking to ake the story more. She admitted that she was under pressue to add more as her contract was up for renewal and the National Union of Journalist confirmed that she hadapproached he unon for advicewhen she felt under pressure to give the NotW more on Sherida.
            By that stage Tommy had also admitted that that he did have a relationship with the author of the story (Anvar Khan).
            So the question came down to one aspect of one story, not the main story in the defamation case, a story that already had been exposed is partly untrue, and whether Tomy had admitted the story was true at a meeting years earlier.
            The Crown Office have to decide at that stage whether it is in the public interest to launch a very expensive investigation to find this out.
            Meanwhile in the other cases where perjury is alleged in criminal cases in Scotland, only 0.01% of cases end up in a charge with only 20% of those being prosecuted. In cvil caes ithas never happened.
            So what made the Crown Office think that this particular case was in the public interest to pursue. I think that we should know – dont you?

          • Thanks for the comment.
            In the Archer and AItken cases there was no police investigation immediately after the original trial because there was no indication that an investigation was required. That places them in direct contrast with the Sheridan defamation action – where the judge expressly referred to the matter, and directly contradictory recollections of a one item meeting were presented to the court. It was clear the answers were not equivocal, differences in recollection: either he did or he did not admit it at the meeting. While there is contradictory evidence in cases the nuances of recollections do not mean that there is clear evidence of systematic lying by *a group* of witnesses (clearly a factor in Lord Turnbull’s comments). This was not one person’s word against another’s (as in the usual case), but something altogether more substantial – a systematic problem. Further, a large number of the witnesses were elected MSPs.
            In relation to the News of the World witnesses it is misleading to suggest that all were paid – the SSP executive committee members who testified for the NOTW were not in receipt of Murdoch’s shilling. Nor was Katrine Trolle.
            While the Crown Office had to decide whether it was in the public interest to pursue this case I would suggest that after the remarks of Lord Turnbull (made more than once) they had little option.
            The statistics used are interesting, but do not produce any knock down argument. if you think systematic lying in court by a group of people is serious, and that potential suborning of perjury is serious, then you will believe there should have been an investigation (wherever that led – and let’s remember it could equally possibly have led to early morning knocks on the doors of the 11 witnesses from the SSP executive committee who disagreed with Sheridan’s evidence)’ if you don’t think lying in court to destroy someone’s career, or to obtain money by deception (the two alternatives in the case at the time it would have reached the police) you won’t think there should have been an investigation. I incline to the former view.
            I say this as someone who admired Sheridan’s role as an irritant to the main parties, from a movement that represented voices generally unheard and unnrepresented within the Parliament, who regrets the complete destruction of the left in the 2007 election.

          • Anonymous says:

            Perjury
            I think they probably do regard perjury as a minor matter. Here, the thought processes would be something like “Tommy Sheridan, iconic Scottish socialist vs. the Evil Murdoch Empire – what do a few lies under oath matter? It’s in a good cause.” I suspect this is the subtext, though naturally not one that anyone could admit to.

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