Hacking, Appeals and Video Tapes Pt 1

Noted Scottish blogger Lallands peat worrier has posted an excellent piece; A numpty’s guide to appealling Tommy Sheridan’s conviction…

With his usual skill and insight he highlights the legal position around the Scottish criminal appeals and gives a compelling argument on how this does, or does not relate to Tommy Sheridan’s conviction given recent revelations about the conduct of the News of the World.

I agree with most of his conclusions, especially the dismissal of the idea that Andy Coulson arrest “must cause the High Court of Justiciary to turn the key in the lock, and throw open Sheridan’s cell door.” However I would like to put a counter-point of view as I do think the recent revelations do have a direct relevance to the Sheridan Trial.

The best place to start is probably recent statements by Paul McBride QC, on television and in print, that, to quote one in full.”

“Tommy Sheridan was convicted of perjury by telling a civil jury that he hadn’t been to a swingers club and that he hadn’t told members of his own party about it.  The evidence at the trial was from members of his own party that he had been to a swingers club and the jury accepted that evidence and he was convicted of perjury.  The News of the World had no input whatsoever in relation to that perjury conviction, so the evidence of any journalist of the News of the World, even if it was perjured evidence, would not affect the conviction of Tommy Sheridan at all.” 

In many ways this has become the “common sense”  view of the situation , Tommy Sheridan was found guilty of perjury after a fair trial.   If his phone was hacked, so what?  Andy Coulson may not have  told the whole truth in the High Court of Glasgow  but he was a defence witness and, as Peat Worrier rightly asks:

If Coulson’s alleged perjury is limited to the general unlawful practices of employees at the News of the World, and his knowledge of them, how does that impact on the critical issues of the Sheridan trial, concerning swingers clubs, his confessions to his colleagues and his lies about both in Court? 

To answer that question properly we need to briefly examine the defence case. Tommy Sheridan and his legal team’s main argument in the trial was that he was a victim of a plot. Witnesses from the Scottish Socialist Party (SSP) were supposedly motivated by political differences,  personal jealousy and a major financial crisis in the party,  to lie  about his supposed confession at the 9th November 2004 SSP executive meeting.  Much was made of the fact that all of the executive members who testified that Sheridan had confessed belonged to a group called the “United Left” and that the four people who claimed he had not confessed were those who did not belong to that group. But what of the News of the World?

Sheridan  argued that the News International, the owners of the News of the World (NotW) were “at the heart” of the trial a and that they were willing to “concoct evidence” to reverse the result of Mr Sheridan’s successful defamation case against them in 2004. The Crown’s response to this argument was to call this a conspiracy theory that “doesn’t make sense.” As Alex Prentice QC put it in his summation:

“If the whole story had “been a set-up” by the News of the World why would they “include lots of people.” It was possible to link Anvar Khan to a purported plot by the News of the World, as she had been a journalist with the newspaper and “had a book to promote” However Mr Prentice said was “more difficult” to link Katrine Trolle. to the “plot” , but it could be argued that as a member of the SSP she could have been seeking to be seeking promotion within the party. Mr Prentice then asked the jury to consider why the alleged plotters had “not just stopped there” and queried why they would have included Gary Clarke and Andrew McFarlane, in the story as they could have had “cast iron” alibis for the night. The Advocate Depute then asked the jury to consider the “obvious answer.”

The Advocate Depute also used the same, powerful point, in his cross-examination of Andrew McFarlane, who denied attending the Cupids club along with Mr Sheridan.”

“he asked that it must be “incredibly reckless” of Anvar Khan, Katrinne Trolle and Gary Clark to name him as having gone to Cupid’s with them on 27thSeptember 2002, as “there could be incontrovertible evidence that you were elsewhere”, such as a sportsman’s dinner or a hospital outpatient’s.”  Mr McFarlane replied “there is”, stating he had not been to Cupid’s. Mr Prentice suggested that from their point of view, it would have been reckless, as he could have been anywhere on that date and they would not know about it. Mr McFarlane replied “No. I know so.”, and again denied he could have been anywhere. Mr Prentice again suggested that Ms Khan, Ms Trolle and Mr Clark could not have known where he would be on that date”

So  part of the Crown’s argument against Mr Sheridan was that any “conspiracy” would have no way of being sure that Andrew McFarlane was not in a very public place with a perfect alibi, rather than, as he said, at home recovering from a recent knee operation.

Mr Prentice also used this argument in relation to the “McNeilage tape” which the Crown claimed showed Mr Sheridan confessing to the Cupids visit.

 He asked the jury to consider the initial detail Mr McCombes would need to know if he or Mr Baldessara had scripted the tape, as had been alleged by the defence,’

And later:

At the point where “T” discusses speaking to Lynn and Carol, presumably Mr Sheridan’s sisters, about leaving his wife, Mr Prentice asked the jury why this should be included in the film as it could be denied by the people concerned, as it had indeed been done in their testimony. If the alleged conspiracy against Mr Sheridan was true, why include such detail?

So as we can see, much of the Crown’s rebuttal of the defence case was to state that no-one but Mr Sheridan could have known those “details” hence the voice on the tape had to be his. Yet we now know that as phonehacking was so widespread at the News of the World there was a method by which employees of the newspaper could have known those”details” This is course is not, in itself, proof of anything. However would that knowledge would have led the jury to accept  Sheridan’s “plot” theory raised a reasonable doubt?  I would argue that possibility can not be blythly dismissed by any court reviewing the verdict.

Finally what did the Crown say about phone hacking, in his Summation the Advocate Depute stated:

“The Advocate Depute then turned to the matter of “phone hacking” that had been raised in the case, suggesting it was irrelevant to the charge. He reminded the jury of the testimony of Detective Chief Superintendent Williams who had told them that there “was no evidence” that Mr Sheridan’s voicemail had been accessed illegally. Mr Prentice went on to suggest that there was no information contained in the McNeilage tape that had been gathered from any alleged illegal voicemail access, that there was no evidence of phone or voicemail interception”

I would suggest that if Mr Prentice had stopped at the idea of hacking being “irrelevant” there would be no case to answer. As he did not and instead suggested to the jury that there was “no evidence” of Mr Sheridan’s phone being hacked and therefore no chance of the “McNeilage tape” using such evidence,  any future discovery that Sheridan’s phone was hacked would constitute new and relevant evidence that would have to be considered under the terms of the Criminal Procedure Scotland Act

Part two to follow will deal with the “prodigal emails” and today’s news that Tommy Sheridan’s first appeal has been rejected.

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4 Comments

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4 responses to “Hacking, Appeals and Video Tapes Pt 1

  1. Pingback: Meeja Law mop up: Parliamentary satire; super injunction data; Morgan and Mills | media law & ethics

  2. iain brown

    looking forward to Part 2. also where can i get a copy of your recent newspaper review of McCoomes book on Sheridan?

  3. iain brown

    sorry for the delay. many thanks for sending your review. keep up the good work. iain b.

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