Grounds for Appeal?

Amongst this weekend's barrage of articles in the press about Tommy Sheridan's conviction for perjury was this piece from Andrew Whitaker in Scotland on Sunday . Mr Whitaker quotes "A source close to the Sheridan camp" as saying that Mr Sheridan's legal team " will start to put together an appeal against the conviction within a matter of days." and gives some of the grounds on which they may do so. As well as this possibly opening up a new chapter in the case it also gives us an opportunity to discuss some of the legal arguments that occurred during the trial that we could not report at the time.


Firstly however I'd like to caution readers about interpreting the verdict. Many people in the comments on this site and elsewhere seem to believe that the jury's decision means that the twelve women and two men on the jury must have believed all of the Crown witnesses and disbelieved all of the defence witnesses. This is not necessarily correct. Some people may recall the hypothetical case of "Frank the bank robber" which featured many times in our comments section as a way to discuss legal issues without breaching the contempt of court rules then in place. To continue that analogy for a moment, just because Frank was convicted does not mean the jury necessarily believed both Rosie the bank clerk and Officer Dibble the policeman. They may have done of course, or they may have thought Rosie was too short sighted and Constable Dibble  too drunk to identify Frank, yet were convinced by the CCTV footage of the robbery. Alternatively they may have concluded that  the CCTV footage was too blurry for identification purposes but that Rosie was a reliable witness. There is simply no way to know. 


Similarly in the Sheridan case we cannot conclude that the verdict means a particular witness was believed or not. For example the jury may have concluded that the Scottish Socialist Party (SSP) executive members who testified that Mr Sheridan admissions at the 9/11/04 meeting were telling the truth, or they may have decided that they had a motive to lie, could not be trusted but that the "McNeilage video" proved that the admissions has been made. Alternatively the jury may have concluded that the video was a "concoction", as the defence contended but that the Executive members were reliable and telling the truth, those outside the ranks of the jury can never know for sure. In court Mr Sheridan often put to witnesses "the jury in the 2006 case thought you were lying" to which the Advocate Depute would always object on the grounds no-one could know what was in the mind of the 2006 jury. Those objections were always upheld. So, with that in mind  let us look at the issues, some given in the article above and some that are not,  that could be possible grounds for appeal. Please note I have not the legal knowledge to know if these are valid grounds for appeal or am I expressing an opinion on the validity or otherwise of the issues in relation to the verdict.

The Missing Emails


Before the trial began the defence used the legal process of "discovery" to obtain court orders to view any documents held by News International that related to Mr Sheridan. A number of these documents were produced and used in the case, for example the "double your dosh" email between Bob Bird (Scottish editor of the News of the World) and Anvar Khan. However three News International witnesses (Bob Bird, Douglas Wight and Andrew Coulson) testified in court that a large number of emails had been "lost" in the process of News International moving it's email storage to Mumbai in India. They also agreed that there "could" have been emails relating to the case amongst those missing. There were also a number of emails presented to court between investigating officers and Katrine Trolle. However the court was told that there were other emails between Ms Trolle and Lothian and Borders police were the email subject line was available but the content of the email had been "lost," again due a change of storage facilities. 


On a related note the court was shown a heavily redacted document, secured by the defence from News International, titled "Sheridan expenses." This listed various payments to witnesses, and various travel and accomadation costs,  but the majority of the entries were blacked out. Mr Sheridan made a long argument to Lord Bracadale that he should be entitled to see this particular document in it's entirety. However the judge ruled that a senior Queens Counsel had examined the document  and blocked out only those parts he considered irrelevent, he therefore denied the defence motion to see the whole of the "Sheridan expenses" document.


The Missing Witnesses.


There were two witnesses called by the defence who did not appear in court, Glen Mulcaire and Fiona McGuire. The court was shown a notebook, siezed by police on a raid on Mr Mulcaire's home, which contained personal details of Mr Sheridan including his mobile telephone number and what appeared to be a "PIN" number to access voicemails. The defence contended throughout the trial that this was evidence that Mr Sheridan's phone had been hacked at the request of the News of the World. However a senior police officer, Detective Chief Superintendent  Phil Williams who led the investigation which led to the conviction of Mr Mulcaire for "phone hacking" told the court that there was "no evidence" that Mr Sheridan's voicemail's had ever been accessed by Mr Mulcaire. The court never heard  Mr Mulcaire being questioned about the issue as, through his solicitors, he had presented a medical certificate stating he was unfit to testify.  The same is true of Fiona McGuire, who had featured heavily in the 2006 defamation case. The defence may argue that this prevented the jury from hearing vital testimony.


Another witness who the jury never heard from was Glasgow comedian Des McLean, who is well known for impersonating Mr Sheridan through hoax calls broadcast on the radio. The Advocate Depute objected strongly to Mr McLean's testimony being heard as he argued it was "irrelevant" and may "confuse the jury." Mr Sheridan told Lord Bracadale that believed that Mr McLean's testimony was vital to his defence to show the jury that it was possible to impersonate him. Lord Bracadale, after listening to tapes of Mr McLean's hoax calls,  ruled in favour of the Advocate Depute stating that the fact people could impersonate Tommy Sheridan was a matter of "general knowledge" amongst the public and while Mr Sheridan could mention it in his summation (which he did) he would not allow the tapes to be played or Mr McLean to testify.


The Judge's summation


The article above from Andrew Whitaker linked to above also contains this comment;


 "Another key plank of the appeal will be that judge Lord Bracadale "wrongly instructed" the jury at Sheridan's trial, just before members retired to deliberate on their verdict. However, the source close to Sheridan would not discuss details of that part of the planned appeal until Sheridan had been able to talk at length about it with his lawyers." 


As I said I do not have the legal training to express an opinion on this, indeed to my untrained ear the summation seemed fair. However as we waited for the verdict I did hear opinions that the judge had neglected to place enough emphasis on the "not proven" verdict and that his instructions to the jury had put in place a voting procedure that could be seen to be unfair to the defence.


I'm sure there are other issues I have missed and if people spot anything please post a comment or email us. However it does appear likely that an appeal will be launched and I do believe that some of the issues discussed above may well feature in that appeal.