Tuesday, December 28, 2010

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.

143 comments:

Lallands Peat Worrier said...

One legal caution about interpreting the significance of these arguments. Even if the Court of Criminal Appeal determined that one or more of these points was well-founded, Sheridan would not immediately see his conviction vacated. The "miscarriage of justice" standard is not as formalistic as some people might imagine, nor is a single persuasive argument per se enough to knock down the jury's verdict.

As a result, a judge could partially misdirect a jury - appeal judges determining that she had employed an "unfortunate" emphasis in her remarks - yet the conviction could be substantially upheld. Something to bear in mind.

Any Answers said...

If TS fully intends to Appeal, does this not give limited scope to 'fess up, show remorse etc. at the sentencing hearing?

the_voice_of_reason said...

A number of legal points arise:

Firstly, grounds of appeal against conviction are NEVER lodged in advance of sentencing. Within fourteen days of sentence being passed, the defence must lodge an intimation of intention to appeal. A copy of the trial judge's charge is then provided, whereupon a full Note of Appeal against Conviction (and, if appropriate, sentence) is prepared and sent to the High Court and Crown Office.

The grounds as drafted are then considered by a single judge, who may grant or refuse leave to appeal, depending on whether the grounds themselves are stateable. If the single judge refuses leave, then the appellant may re-present the grounds, perhaps expanding on them, to a bench of three judges who consideer them in private. If they agree there are no stateable grounds, the appeal is at an end.

If leave is granted, it may be on one or more of the proposed grounds, but you cannot argue grounds for which leave has been refused.

Any appeal hearing is unlikely to be before late summer, although the appellant may be granted bail pending the hearing of the appeal.

the_voice_of_reason said...

Turning to the proposed grounds:

1. I cannot see how the non-disclosure of e-mails between a newspaper and a person who did not give evidence would materially affect the soundness of a verdict in respect of an allegation of perjury in a civil proof in which the missing witness also did not give evidence. It appears peripheral, and I would be surprised if leave is granted onn this ground.

2. "Defence lawyers were stopped from quizzing Mulcaire". This is not correct. He was cited as a witness, and produced a medical certificate that he was unfit to attend. No attempt appears to have been made to take his evidence on commission.

3. "The appeal will also cite the trial judge Lord Bracadale's decision to stop Scottish comic Des McLean, who previously impersonated Sheridan on the radio, from giving evidence." Had this evidence been allowed it would have been utterly unprecedented. All it would prove is that someone can impersonate the voice of the appellant. Given that McNeilage swore on oath that the conversation was genuine, this point appears utterly without merit.

There may indeed be valid grounds of appeal, but these three all appear unlikely to pass the first or second sift.

Whatsy said...

I did notice during Bracadale's charging the jury that he mentioned the possibility of "Not Proven" a couple of times, but didn't describe how that verdict would be arrived at. I was interested to know this, as it was something I had always wondered about. Instead, he seemed to focus more on the jury reaching an acquit or convict verdict, with the exact acquittal verdict not gone into in detail.

Regarding Des McLean (and George Bowie) not being allowed as witnesses - I too struggled to see the evidential value of these witnesses, and as Sheridan himself sais, they may actually have been dertrimental to the defence, as if the impression was not accurate, may show how difficult it is to "do" Tommy Sheridan. Quiet at the back, you.

Tommy somewhat adapted his reasoning for calling McLean, stating not that McLean would show how an accurate impression was possible, but that people may be highly suggestible to identifying a voice as that of someone if they were previously told who the voice was meant to belong to. This was apparently going to be demonstrated in the CD of calls McLean had made. Sheridan's point being, apparently, that McLean's impression was not all that accurate, but that people were still prepared to buy it as they were told during the call that it was Tommy Sheridan they were speaking to.

Whatsy said...

Here's a thought on the "other" appeal by the NotW against the '06 verdict.

As I understood it, the '06 defamation action concerned the McGuire story and the Khan "anonymous MSP" story published by NotW, and that the whole 9/11, Katrine Trolle and Cupid's details only came out as evidence of a pattern of behaviour to support the NotW case.

Now that, legally speaking, the Cupid's, 9/11 and Trolle elements are proved, and that Sheridan did indeed lie about them in the '06 case, does it follow that the NotW appeal should automatically succeed, as many assume?

Is it possible that the '06 jury concluded that there was indeed a probability that the McGuire and Khan stories were substantially untrue and defamatory, even if they did not believe some testimony regarding Cupid's, Trolle and 9/11?

I kow, I've probably been reading too many of Peter's contributions, but I think there is a risk that the nature of the 2006 defamation action has been forgotten, and I'd appreciate if anyone can dig out the exact 2006 wording.

James said...

All of this is truly fascinating, and I noted a while ago that there was an interesting article here:

http://edinburghnews.scotsman.com/comment/Martin-Hannan-Truth-will-out.6673196.jp

Without going into incredible specifics, does Mr Doleman believe Sheridan would have fared any better if he wasn't representing himself? Was he out of his depth? I certainly suspect so, given his rather personal closing speech as to why he shouldn't go to prison. I can see an appeal being lodged, and this is by far the last we have heard of this. Things may become more interesting.

Whatsy said...

Hmmm, I think a few examples of what Sheridan should have done differently, rather than "Donald Findlay would have been better" might have helped Hannan's argument a bit. As would an explanation of what sort of comment was in contempt, and why exactly.

Can't say I take his article very seriously.

the_voice_of_reason said...

Whatsy:

The Appeal Court has repeatedly advised judges that they must not, under any circumstances, draw a distinction between "not guilty" and "not proven". In the past, trying to create a difference between the two has caused massive problems, and a few convictions have been quashed because directions were either confusing or wrong.

The guidelines issued to sheriffs and judges are that you must only advise that both operate as verdicts of acquittal. From what you say, his directions were exactly as required, namely "if there are not eight for guilty you must acquit".

Whatsy said...

@Voice of reason

Thanks for that - makes a big difference getting a concise and knowledgable legal opinion on the matter.

Still doesn't help me understand how a jury might arrive at Not Proven, though.

Jo G said...

The with-holding of these emails is interesting and, I think anyway, relevant.

The excuses for them not being available to the defence are interesting too. I really don't understand why anyone could consider this to be of no consequence. If they were so unimportant why the need to keep them from the defence?

My other question is how on earth could these things get lost? We all know surely that nothing gets truly lost on a computer. As for some emails retaining their subject title but "losing" the text, well, its too funny really.

Whatsy, I agree with you about the Not Proven option. Any juror whose heid was birlin' with the questions arising on both sides had that option available. It is part of our Justice System. It is most surprising that a judge chose not to highlight it equally rather than suggest the only acceptable options were to acquit or convict.

jimmy the penguin said...

James, first let me thank you and the others who wrote this blog. Having followed this blog closely, I agree with the verdict, so I'm not much interested in speculating about possible grounds for appeal. I would be interested in a discussion about the future for left wing politics in scotland.

Jo G said...

Whatsy this explains the Not Proven verdict more clearly I think.

"The verdict of not proven is essentially one of acquittal. In all respects the verdicts of not guilty and not proven have exactly the same legal effects. In practice it is thought that a verdict of not proven simply means that the judge or jury have reasonable doubt as to the accused's guilt. It is interesting to note that the not proven verdict is used in one third of acquittals by juries, and in one fifth of acquittals in non-jury trials. Because of the higher number of non-jury trials ninety per cent of all not proven verdicts are returned in such cases. It is generally thought that the verdict gives juries, and judges, an option between not guilty and guilty where they feel that the charges have not been proved but they equally cannot say the accused is "not guilty" because of its moral connotations."

Simon said...

ALL VERY INTERESTING POINTS BUT NONETHELESS A MAN WITH NO POLITICAL CONNECTIONS AND NO CONNECTION TO ANY NEWSPAPER (GARY CLARK) TOLD THE COURT HE ACCOMPANIED TS TO CUPIDS. IN MY OPINION NO JURY WILL OVERTURN THIS VERDICT.

Anonymous said...

@ Simon But Thomas Montgomery swore on his mother's ashes that he was watching the Ryder Cup with Gary Clark at the same time that Clark claimed he was travelling to Manchester with Sheridan et al.

Bunc said...

Frank the Bank robber has asked me to tell you that he is honoured to have been mentioned in your post.

If you wish to correspond with him directly over the next year por two then please send all mail C/O HMP Wormwood scrubs.

The potential grounds I have seen rehearsed in the present particular case seem to me singularly uncompelling.

It seems to me that there is a greater problem for TS. Given that the possibility of appeal is already being mooted then I assume it will be aimed at addressing the fact of conviction rather than the extent of any sentence - given that no sentence has yet been made.

The problem is this. Sheridan is essentially a political figure and , apart from a group of loyalists, the overwhelming reaction that I have encountered from ordinary people to the verdict is that they think it was the right one and was justified.

People may not like the NOTW, they may not think that exposing his sexual pecadilloes was justified but most people feel even more strongly that lying in a court case for monetary gain is wrong.

Sheridan needs to think to the future here I would suggest. Does he wish to be rehabilitated politically? If he appeals and wins on narrow grounds then I tell you that many many people will see that exactly for what it is likely to be - some form of technical victory.

Sheridan needs to fess up and accept that he made some terrible miscalculations and errors. People are naturally forgiving when faced with someone who shows humility and contrition. Continued attempts to front this out - whatever the legal outcome will earn him nothing but derision from most people.

I am not hopeful that he will take this course because it was I suspect a distinct lack of humility that got him in this mess in the first place.

sceptic said...

Isn't it funny that most of the anons never seem to have read the actual blog. The ashes comment came from a daily record story on Andrew Mcfarlane.

Whatsy said...

I don't recall Monty mentioning anything about ashes either. AMcF certainly made mention of his wife making him swear on his mother's ashes and their unborn baby's life that he wasn't involved in the various Sheridan-related sex escapades the papers were alleging.

Alistair said...

@Simon no jury will overturn it because juries DO NOT hear appeals. Appeals against conviction are heard at the Court of Criminal Appeal in Edinburgh before a bench of three senators of the College of Justice.

Anonymous said...

Whatsy said...

'Still doesn't help me understand how a jury might arrive at Not Proven, though.'


If the jury ask themselves 'Has the prosecution proved its case?' and the answer is no the the verdict would be not proven.

If they then go on and ask 'Are we convinced the accused is innocent of the crime he is accused of?' and the answer is yes then the verdict is not guilty. If the answer is no then the verdict is not proven.

Anonymous said...

If TS appeals does it delay the NOW appeal? I understand that TS has transferred house to GS name. Is it correct that it requires a total of five years for House to be in GS name so stopping the NOW from getting their hands on it. This would mean 2006 to summer 2011?

Jo G said...

"Sheridan needs to think to the future here I would suggest. Does he wish to be rehabilitated politically? If he appeals and wins on narrow grounds then I tell you that many many people will see that exactly for what it is likely to be - some form of technical victory."

What would you call this verdict then? An overwhelming victory? I wouldn't. Both sides have tripped up equally throughout proceedings. How many times did witnesses for the prosecution admit, "Yes I know I said that then but I made a mistake."

As for the NOTW they were actually caught out threatening Khan and using her contract to get her to "help" them. There was a specific email produced inviting her to beef up the story and double her cash! That is inciting someone to commit perjury. They were also the paymasters to others for their stories. Reading through earlier parts of the blog today I came across another surprise. Trolle is Rosie Kane's sister's "best friend"! Whit?

I'm sorry, as a taxpayer I do not know why this perjury case was ever begun when even now "the truth" whatever that is still isn't clear. It has been a shocking waste of public money. For me if there had to be a trial and a verdict the only obvious one to go for was Not Proven.

Peter said...

Hi Whatsy,

Re: The NOTW Libel Appeal

The SPECIFIC grounds of the NOTW "perversity" appeal are indeed eagerly awaited by us all Whatsy.

It's been 4 and a half years and counting now it appears there is no sign yet!

NOTW said the appeal was on the general civil grounds of "perversity" - a matter with which I am more familiar than the criminal codes. But where's the beef?

Bob Bird has put out a lot of general guff that Tommy should not benefit from the libel verdict now that there has been a perjury conviction.

I can see his point but not quite.

The NOTW of course have benefitted massively by the length of the police perjury "investigation".

Now they really need to get their skates on and specify how the verdict was perverse rather than making general comments about unfairness.

As a simple starter I say the NOTW needs to show that the NOTW story were "substantially true".

Still a very hard job I say.

In order to overturn the verdict on the grounds of perversity there is a strict test.

They need to show that no other jury proprly directing itself in accordnace with the law could have reached that verdict.

The NOTW just saying it is perverse as some people on Sheridans side lied is not going to get them very far.

That matter of lying was thoroughly canvassed in the libel trial and the jury presumably made its decision in light of that.

The NOTW specifically need to show why the libel jury could not be relied upon to sort out the truth from the muck on the lying issue- as Tommy put it at the time.

For some reason the NOTW think this perjury verdict will win the day for them on that matter. Maybe. But consider this.

If they think the verdict in this trial is relevant they will need to show specifically how this PERJURY verdict (on the 5 counts of perjury that were proved only) could make the LIBEL verdict perverse.

TBC:

Peter said...

RE: NOTW LIBEL APPEAL CONT.

Lets break it down.

Firstly what did Sheridan dispute about the NOTW stories?

a)He disputed that he was a "swinger".

b)He disputed that he frequented sex clubs in Newcastle, Manchester etc.

c)He disputed that he was an adulterer.

d)He disputed that he engaged in "kinky" sex with Ms McGuire and Ms Khan after marriage to Gail.

e)He disputed that he was a drinker and a drug user.

f)He disputed that he conducted an affair with Ms Khan after his marriage to Gail.

Unfortunately for Bobby Bird only a part of ONE of these NOTW stories has been "proven" at all during this perjury trial.

That of course is the alleged Cupids visit.

As I recall the libel judge in her summing up said if the jury found that Tommy had visited a swingers club (but that the drink and drugs and long term adultery were not true) then the NOTW story could still be "substantially true".

So does the proven Cupids charge in this trial win the day for the NOTW?

I say no.

(You were expecting that weren't you!).

TBC:

Chumpo said...

@Peter: does the NoTW really need to show that their stories were substantially true though?

Obviously if that was the case they would be in trouble, given it would seem the Fiona Maguire story was untrue (as Tommy is heard to say in the video).

However all the other stuff mentioned in the 2006 case, incl. the allegations about Tommy's sex life (some of which have now been legally proven) could be used to show TS wasn't 'defamed' by the publication of the Maguire story, as he was someone who had affairs and the like.

Any legal experts want to let us know what is likely to happen?

Peter said...

NOTW LIBEL APPEAL CONT:

Firstly I do not agree with the libel judge's summing up on "substantially true" for a start.

Even then, however, a libel jury heard that instruction. It must have reached a view on Cupids as it was a matter before them - it made a decision.

That a different jury dealing with different charges made a different decision is not perverse is it?

Indeed there are so many variables it is difficult for the NOTW to succeed on perversity grounds.

Arguably I could say the libel jury believed he went to Cupids (say once or twice on a stag night with mates) but that he was not a "swinger" which is more of a sexual lifestyle choice.

Or that he used to be a "swinger" or maybe that he used to have sex with more than one partner at a time but that he had stopped after taking marriage vows to Gail.

Indeed there is nothing proven in this trial about visits to other sex clubs in Newcastle etc as alleged in the NOTW stories that wouldindicate he is a "swinger".

To break it down further.

- The alleged sex with Ms McGuire was not brought into this perjury trial by the Crown. So it is not proven for the libel appeal.

Indeed the police after a 4 year investigation are on record that they did not believe Ms McGuires NOTW claims and testimony in the libel trial or her statements to them about Sheridan.

That police opinion will strongly reinforce Tommy's grounds of resistance to any NOTW appeal - especially if it is brought on perversity grounds.

- The perjury indictments relating to Ms Khan's allegations of an adulterous affair were deleted by the perjury jury and are therefore not proven. Again that verdict is strong support for Tommy's grounds of resistance to the NOTW appeal.

- An alleged visit to Cupids was "proven" in the perjury trial but only one visit was alleged. Kinky sex at Cupids was not part of the perjury indictment.

I put it to you that a visit to a adult club, with friends, once only, with NO proven sex (kinky or otherwise) does not necessarily make one a "swinger" M'lud.

A visit to a club with no sex certainly does not make one an adulterer or a kinky sexer M'lud.

Some libel juries may think it does but some may think it does not. The NOTW needs to show that no jury could reach any other opinion than that it does mean you are a swinger.

- The alleged Wigan Sex House / flat was not part of the perjury indictment so is not proven.

-The NOTW drink and drugs allegations were not part of the perjury indictments so the NOTW story on that matter is not proven.

- The perjury jury also appear to have rejected Ms Trolles claim of sex in the marital bed. Again that is a strong supporting argument for Tommy's ground of resistance to the NOTW appeal.

- Indeed whether Sheridan had sex with Trolle was not part of the indictment in this perjury trial either and indeed it was not a ground on which Tommy sued the NOTW.

But it would perhaps be relevant perhaps to the adultery question. It has only been "proven" that there a visit to her home. Sex has NOT been proven. Adultery, kinky sex with Ms Trolle has NOT been proven.

Also this matter was dealt with in the libel trial. Ms Trolle said on oath he had sex with her. The libel jury may well have accepted that or may not.

We just don't know. Neither does the NOTW

TBC:

Peter said...

NOTW LIBEL APPEAL CONCLUSION:

Sorry for the length of this(cough)

On the Trolle perjury indictments relevance to the NOTW appeal.

This perjury indictment on whether he was in her house or not is NOT relevant as arguably without proof of sex it would not have swung the jury one way or the other - especially as Tommy still denies it.

The only matter that was "proven" was that he was in her house once and went to Cupids (possibly but ot necessarily with Trolle.)

Does that "proven" visit to her home necessarily make him an adulterer, kinky sexer, swinger etc.

Some libel juries may say yes - some may say no.

It cannot be said that every jury would. That is the high bar the NOTW need to reach. If they do not the perversity appeal falls.

- I accept that the charge that Sheridan allegedly admitted to the SSP executive that he was the MSP in the NOTW stories was "proven".

However, as all he allegedly admitted to at that SSP meeting was to visiting Cupids (and not to sex per se)then again that does not necessarily help the NOTW appeal.

It does not prove the adultery and kinky sex stories were "substantially true" - and Tommy still denies saying this to the SSP anyway.

And again this matter of the alleged SSP confession and the "minutes" was fully dealt with at the libel trial - the jury presumably weighed it all up.

This perjury jury reached a different view on the SSP meeting (possibly) on essentially similar testimony. So what? That does not make the libel jury legally perverse! Some juries may still have believed the confession but not believed the NOTW stories.

So until the NOTW get over these hurdles (and others) then I cannot see their libel appeal succeeding. I can see what they are at though. Tricky buggers!

Others take a different view from me. Indeed media commentators say it is a foregone conclusion and that they will lose their home etc. Most had Gail in jail at Xmas so I say Mmmmmm.

Lets just see if the NOTW appeal gets past a sift stage and preliminary hearings first!

Maybe the big boss can put another thread on for the NOTW appeal.

Many of the issues cross over but I think it will be too complicated to deal with both (possible) appeals in one thread.

Cheers,

Peter

Neutral Observer said...

@Peter

That's very interesting and clearly you do have a handle on the issue of perversity in appeal proceedings. I have two questions.

1. As the NOTW appeal is still live, can comments be made on specifics or is that covered by contempt laws?

2. You say that you disagree with the judge's direction on "substantially true" - can you be more specific?

Thanks btw to all for the efforts in this blog during the course of, and after, this trial.

Kerrching said...

Peter, you said:

'Indeed media commentators say it is a foregone conclusion and that they will lose their home etc'

Most reports actually say the opposite - TS put family home in Gail's name during libel trial.

Anyway, surely it would be in his interest to give up any claim to the £200,000. Legal Aid board might take a different view of eligibility and land the Sheridans with an eye watering bill that so far tax payers are footing.

Jamesie Cotter Esq. Govan Bucket Collection Collective said...

Missing e mails? TS had nearly 3 years and two QC's to chase any e mail traffic. Non-starter.
Redacted document: ditto.
Missing witnesses:
Mulcaire: could have applied to adjourn trial during illness.
Non-starter.
McGuire: ditto and could have applied to read her statement in evidence.
Non-starter.
McClean:Irrelevant,if irreverent, as expert witness. Was not audio expert. Non-starter.
Misdirection? Lord B let TS get away with so much in his exams in chief and cross-examinations that it would be hard to persuade the CA of any misdirection. Lord B bent over backwards to assist an unrepresented accused.
Cannot at this stage see ANY grounds for appeal. That is a blow to my future ability to raise cash for the Central Committee.

Sceptic said...

Hello Jaimsie, you can chase as much as you want, if the other side say "oops sorry we appear to have mislaid that possibly vital piece of evidence" you don't think that matters? I'd also suggest that one instance of that, News International is suspicious for it also to happen with L&B police borders on the very suspicious.

Peter said...

Neutral Observer,

Re: NOTW Perversity Appeal

Thanks for your comment.

1. Possible Contempt

That is a matter for James I think not me. I will say this.

Even as the ink on the libel verdict was drying in 2006 Bob Bird of the NOTW was on the court steps saying they were going to appeal on the grounds of "perversity" and that people had told monstrous lies.

The NOTW did make the (preliminary) steps to lodge an appeal and then requested that it be stayed - which was granted.

In the 4 and half years since then appellant (NOTW) has done all it can to diminish the jury verdict through comments about their "appeal" and the "perversity" of the libel jury decision. (check the NOTW and other News International titles).

If they wanted to keep their appeal under wraps to prevent public attack upon it they could have done.

Instead they courted comment as they first brought their "appeal" into the public domain themselves AND they have publically done so again after this perjury verdict.

Indeed commentators across the land are all (apart from me) are claiming this perjury verdict supports the NOTW "appeal" the matter is clearly open for public comment.

I hope I am redressing the balance in my little way by looking at the NOTW stated appeal ground of perversity in more detail.

I will come to your points about the libel judge summing up next.

TBC

James Doleman said...

On the contempt issue, the News of the World case is not "live" in any legal sense as far as I know. The forthcoming libel appeal has certainly not prevented that newspaper commenting on page 1,2,3,4,5,6,7,8 plus 4 page pullout last Sunday.

Critical-eye said...

After the 2006 libel case, Elizabeth Quinn was not the only one who had an OJ moment. I have observed no OJ sense following the verdict in the current case. To my knowledge no independent commentator has claimed that justice has not been done. TS still has his supporters, many of whom write on this blog, but I have noticed only one who has claimed that TS was innocent of all the charges against him.

Not being able to claim innocence, his supporters have claimed that they expected a “not proven” verdict or that the charges were not proved “beyond reasonable doubt”. Such a view suggests that in their hearts they know that TS did the things he is accused doing.

Other supporters reserve their rage for the SSP prosecution witnesses, calling them “grasses” and implying that they are “class traitors” – a purely ideological accusation.

Indeed, much of the defence of TS has been ideological in character. It is clear, however, that in TS they could not have found a worse case for a “class conflict” ideology.

Item 1. The most notable persons brought low by perjury laws before the current case have been those pillars of the Tory Establishment and members of the “Ruling Class”, Jonathan Aitken and Jeffrey Archer; conclusively proving that perjury laws are not instruments of class oppression, but are designed to protect the Rule of Law in a civilised society and may strike down rich as well as poor.

Item 2. The NoWT is also proved not to be an organ of class oppression, being the paper which first exposed Jeffrey Archer. In addition, in the current case, they have done a public service in exposing TS: exposing that this man who claimed to be whiter than white, espousing and living by higher standards than ordinary politicians, all the time had an exceptionally sleazy private life.

Item 3. TS claimed that the police investigation was not a “prosecution”, but a “persecution”. Now strictly it is the Crown Office which prosecutes, but speaking more loosely it may be said that the police “prosecute” when they attempt to uncover evidence of a crime, while a “persecution” would be to fabricate evidence, etc, against someone they know to be innocent. The guilty verdict shows that this case was no “persecution”. If you want a real example of “persecution” look no further than current events in Russia.

Item 4. Even the most ardent of TS’s supporters have not claimed that TS has received anything but a fair trial. I note comments from bloggers who have been in Court that that Lord Bracadale permitted TS to continue with a line of questioning, especially of police and NoWT witnesses where a stricter judge might have ruled that the questioning was not relevant to the evidence in the case. Recall that Andy Coulson was only called to give evidence after TS had dismissed his Counsel, suggesting that Counsel’s professional opinion had been that there was no reason to call him.

All in all, no sign of class oppression of a working class boy. Of course, TS is not in any meaningful sense a “working class boy” – he belongs, as so many of us do today to that great middle class which, whatever our parents did, is educated, does not work with our hands, but earns a living - either as an employee or as self- employed – by our skill and knowledge, often while sitting at a desk and wearing a suit. A class which, so far as I can see, is conveniently overlooked in class ideology.

Anonymous said...

'Of course, TS is not in any meaningful sense a “working class boy” – he belongs, as so many of us do today to that great middle class which, whatever our parents did, is educated, does not work with our hands, but earns a living - either as an employee or as self- employed – by our skill and knowledge, often while sitting at a desk and wearing a suit. A class which, so far as I can see, is conveniently overlooked in class ideology.'


News just in: you can be working class and wear a suit.

knock knock said...

It's been mentioned that it took 4 and a half years to get this case to court. It could be construed as being a ploy to delay for 2 reasons

1 to inch closer to the 5 year limit on the house being signed over to Mrs s and protecting the family home. This I believe to be the prime motivation to delaying the trial.

2 the cadder judgement would have only came into view about 9 months ago. Offering a glimmer of hope at the criminal trial. Yet worthy of ruling out expert testimony.

Everything about Mr s's strategy has bee high stakes. From the moment he decided to embark on the liable action to the " it isn't me on the tape" criminal defence strategy.

Winning once on high stakes is l fine and dandy but to keep rolling the dice is boufoonery of the highest order. Now his liberty will be taken from him, his home quiet possibly and bankruptcy. It's all been at to high a cost.

It can be quite a struggle getting to the top in anything in life but its a long way down with the people you trod on helping you fall.

Jo G said...

Critical Eye....you should perhaps cast that very thing over the entire blog again and identify the number for the prosecution who were tripped up on a number of statements that kept changing during the course of this trial and the last one. You should also remember the number who were paid for testimony and one in particular who was part of email exchanges between herself and the news of world which urged her to beef up the claims and increase her cash!

I think you are obviously entitled to a view but please refrain from dismissing contributions by others as being from "Tommy supporters". I am not in that group. What I have seen however is a process where no side proved its case which is why I personally believe a Not Proven verdict was appropriate in this case. I also feel, considering the massive amount of money spent, that it was wasted in bringing this case when ultimately we truly still don't know what the truth is.

As I said in response to one of your earlier posts we are all entitled to a view but please don't dismiss those which differ from yours in the manner you have done yet again. You really shouldn't label people in such a way. I am no cheerleader for Tommy Sheridan I assure you but nor was I overwhelmed by the honesty or integrity of those who opposed him. On the contrary, to return to all the slip-ups in court during various testimonies, I think Not Proven would have been just about right.

Anonymous said...

James was the Cadder Judgement mentioned? Was Expert testimony not presented due to this Judgement? What the papers are saying is that was the reason for the Experts on the tape not being presented.

Anonymous said...

NOTW Perversity Appeal

BB mentioned "Perversity" on the T.V.

The NOW appeal and the reasons given for requesting an appeal are not yet known - or are they?

James Doleman said...

Hello anon, the Cadder judgement was not
mentioned in court but was being discussed by journalists as being the reason no expert testimony was being presented. Frankly I find that hard to believe as from the footage I have seen ts is with a legal rep at interview. There was also, I assume news of the world analysis which would not have been affected by Cadder.

Anonymous said...

I think what needs to be remembered is that when TS took the original Libel Case he was a Member of the Scottish Parliament-someone who makes the law of the land.

If you are saying that the criminal case should not have taken place are you saying that all MSPs/MPs/MEPs should have protection from being prosecuted i.e Jim Devine?

jimmy the penguin said...

Jo G. I had similar feelings about much of the testimony of witnesses on both sides. It's easy to dwell on that since there was so much of it, and it was so voluminously reported on this blog. However, the video is hard to get over, especially when you consider the undisputed phone records which slot around it very nicely. But a key piece of evidence for me was the undisputed diary evidence, particularly the fact that the address of cupid's nightclub was in Mr Sheridan's diary. This particular piece of evidence barely gets a mention in the reporting on this blog and in the news (not surprising as it's undisputed and so not tested with witnesses) but seems quite important to me.

Anonymous said...

I understand James that it was not the Police Interview but was photographs taken without a lawyer being present that prevented the expert witnesses re the tape being introduced - The Cadder Judgement.

James Doleman said...

Hello Jimmy, fair point about the diary however I did report it when it was mentioned in court.

To anon who just posted twice, sorry but could you gave us a basis on how you know that? I'd rather not post speculation as fact.

Best Regards

James

jimmy the penguin said...

James, on reading my post back, I can see that it looks like I'm being critical of your reporting. I wasn't at all. As I implied in brackets - undisputed evidence by its very nature is bound to be mentioned less during the trial than disputed evidence. Just so you know, I think you've done a great job!

James Doleman said...

No worries Jimmy, and thanks.

Jo G said...

"If you are saying that the criminal case should not have taken place are you saying that all MSPs/MPs/MEPs should have protection from being prosecuted i.e Jim Devine?"

I don't think I've seen or heard anyone state this.

In the case of Jim Devine however I will say something I found odd. How many hundreds, yes hundreds, of MPs were found to have defrauded their expenses and how many were charged and taken to court? The answers respectively are over 350 and 5. I would have charged all of them in the interests of justice personally. They had all attempted to defraud the taxpayer, evade capital gains tax and so on. I don't understand why only a mere handful were charged while the rest were merely allowed to pay the money back with no more said about it.

Sorry for that aside James.

James Doleman said...

Hello knock knock, sorry but I'd rather we not get into the Holly Gregg case.

Best Regards

James

the_voice_of_reason said...

Jo G: Without going miles off topic, not all breaches of the expenses rules involve the false pretence that is the essence of fraud. There is a distinction between claiming something to which you're not entitled, and claiming for services that were simply not provided.

Similarly, it is not perjury to "mis-remember"; you must know that you are presenting falsehood as fact.

Hamish said...

Two comments.
1. I used to be under the impression that the main difference between Not Proven and Not Guilty was that Not Proven meant you could be tried again.
Since this is not the case, there is no case for preserving this quaint distinction.
Especially as jury decisions are made on a mority basis, and the judge in this case made clear he would accept a simple majority (8:7or 8:6 since one juror had dropped out). Put yourself in the position of the jury trying to count votes. How many in favour of Guilty? how many for Not Guilty? how many for Not Proven?
Now folks how do we report our verdict to the judge?
It has to be a binary choice.

2. I join others in commending this blog.
But it is high time we had live TV feeds from all venues which are in principle open to the public.
We all have the right to attend court proceedings, council and parliamentary debates, etc. Few of us can manage to travel to do so.

Anonymous said...

James you have mentioned the NOW - in particular Sunday's issue.

I think you will find that Anonymous 7:49 is making reference to that.

"A NEW legal ruling and "balls-up" by prosecutors stopped expert evidence of Sheridan's guilt being heard during his trial.

The double blow meant the Crown failed to present any forensic analysis proving the man on the McNeilage Tape was the disgraced ex-MSP.

The problem stemmed back to December 2007 when police arrested Sheridan and Gail.

They took the pair to Gayfield police station in Edinburgh, where they recorded the former SSP leader's voice and took photographs of him from various angles.

The intention was to compare this with the video tape secretly recorded by George McNeilage.

But, crucially, the police took the recording and pics of Sheridan without his lawyer being present.

That meant it fell foul of the new Cadder Ruling that bars any evidence compiled by cops in the absence of a suspect's brief"

You will need to excuse me James for having to quote from the Scab NOW - a member of my family (anti- TS) took great pleasure in presenting it to me.

the_voice_of_reason said...

Hamish:

I'm sorry but I can't agree. Without going into the circumstances in which the alien verdict of "not guilty" becam available to juries, or the fact that there were three verdicts in trials during Cromwell's republic, the legal position is in fact very simple.

If there is not a majority in favour of guilt, the verdict must be one of acquittal - no more, no less.

Thus, if the split is
Guilty -6
Not guilty-4
Not proven - 4
Excused -1

it matters not "which" verdict is selected, and the pannel is duly acquitted. There does not, and never has been a requirement for one or other acquittal verdict to attain a majority, as only guilty requires the support of the majority.

the_voice_of_reason said...

Anonymous 8.58

"That meant it fell foul of the new Cadder Ruling that bars any evidence compiled by cops in the absence of a suspect's brief"

I'm sorry, but if that's what the newspaper said they were wrong. The taking of physical samples was not addressed by Lords Hope and Rodger in Cadder v HMA, which was concerned with interrogation. While the taken of samples may arguably be a breach of Article 8 of ECHR, that argument was not before the court in Cadder.

Jo G said...

"Similarly, it is not perjury to "mis-remember"; you must know that you are presenting falsehood as fact."

Hilarious.

knock knock said...

re the sample of mr s's voice being taken from his interview tape. my understanding it fell foul as it would have to have been played in court infront of the jury and as it was in effect mr s's interview statement and under cadder it would be inadmissable they could not actually play part of that statement as a recording even though it would not be played in its entirity.

james point taken re hollie but i hope you enjoyed the other link? mad but entertaining, especially the paragraph dedicated to lord hardy and how he dealt with it.

a.n. on said...

voice of reason 9.12 pm
perhaps a case for STV like the council elections.

Anonymous said...

It's outrageous to watch Murdoch's Sky News coverage of the Joanna Yates murder now that her landlord Chris Jeffries has been arrested. According to Martin Brunt (a Murdoch Empire Sky News reporter) what Jeffries told Sky News "doesn't quite add up". So here we have an other (innocent until proven guilty) person who will have his life and property turned up side down, and if he (as is often the case) released without charge you can bet that Sky News won't be reporting this.

Anonymous said...

This Murdoch Sky News Chris Jeffries is all to reminiscent of the way the media stitched-up Robert Murat in the Madeleine McCann investigation. When are our heavy-handed police and manipulative media going to be reined in. God help any of of if we happen to be in the wrong place at the wrong time.

Hamish said...

Run this past me again, the_voice_of_reason.

The jury is presented with 3 options.
Suppose it was a political election and the Lab candidate got 6 votes, the LibDem 4 votes, and the Tory 4 votes.
By your reasoning, the Tory candidate wins, because 8 voted against Lab and the LibDem is a wishy-washy in-between.

Either there are 3 genuine options or it should be a binary choice.
Tertium non datur.

I have no strong opinion whether the options should be called Guilty/Not Guilty or Proven/Not Proven.

May I take the opportunity to wish all contributors a Guid New Year.

the_voice_of_reason said...

Hamish:

Lord McCluskey used to explain it by saying that innocence is not in issue in a criminal trial, only proof.

The sole question for each juror is "has the Crown proved the charge or part of the charge against the accused beyond reasonable doubt"?

If the answer is "yes", then you vote for conviction. If the answer is "no", then you vote for acquittal. If there is no majority for conviction, then the jury must acquit.

In reality, there is no real difference between the old traditional jury verdict of "not proven", and the more recent addition of "not guilty". Personally, I'd be happy to see the "not guilty" verdict disappear, but given its use in most English speaking countries I'm not holding my breath.

Legal Seagull said...

re the diary:

Is it true that Cupid's address was clearly listed in the diary? i was under the impression that there was some code, which the prosecution alleged could have been cupid's address? Does anyone remember what exactly was written there?

Johnny Cochrane (deseased) said...

@ Voice_of_Reason - what about the American system where an Accused person can plead "no contest"?

the_voice_of_reason said...

Johnny Cochrane (dec'd):

We don't have that in Scotland. If you are prosecuted, you must (if not mentally ill) either plead guilty or not guilty. For what it's worth, I find the religious connotations of "pleading" outdated in a modern system. A plea of "guilty" should in theory involve some moral acceptance of wrongdoing, but in reality a lot of guilty pleas are tendered for tactical reasons, based upon assessment of the likely outcome plus the prospect of a lighter sentence, without any real acceptance that the behaviour deserves the social sanction of punishment.

While evidence shows that expressing remorse is no real indicator of risk of reoffending, a significant number of those who plead guilty express no remorse at all.

Whatsy said...

@Jo G
"You should also remember the number who were paid for testimony and one in particular who was part of email exchanges between herself and the news of world which urged her to beef up the claims and increase her cash!"

This is inaccurate, regarding Anvar Khan - who I'm sure you're referring to - she was asked to make a phone call to TS so that it could be recorded and therefore improve the story/provide insurance against being sued by TS. For this, Bird offered to "double your dosh". Ms Khan declined this offer.

There was no court case at this time, so to imply the NotW were trying to pay for testimony is misleading. Whether she was asked to "beef up her claims" or not seems immaterial to me - the story in the paper would undoubtedly have been better and more convincing if they had TS admitting to swinger clubs with AK on the phone.

Whatsy said...

@Hamish

"it is high time we had live TV feeds from all venues which are in principle open to the public.
We all have the right to attend court proceedings, council and parliamentary debates, etc. Few of us can manage to travel to do so.
"

Sounds rather expensive to me. I didn't notice any demand for seats in any of the other trials in progress, and there was one in Court 3 that went on for nearly as long as the Sheridan trial, and in fact still isn't finished. Nor did I notice any interest from the press for any other trials.

Peter said...

As this partcular thread (was supposed to be!) is about possible appeal grounds may I make the following comments.

Re: Possible Grounds of Appeal Perjury Trial

--------------
Appeal Ground:

The repeated presentation of uncorroborated evidence and testimony by the Crown that should not have been presented.

-----------------

(This follows on from a discussion with Whatsy).

If we summarise:

Prentice presented a large number of charges (including a set of uncorroborated charges) against Gail and Tommy.

Most of these charges (including some of the uncorrobarated charges) Prentice deleted himself but not until after he had called various witnesses to give testimony.

Some he did not present any evidence or testimony in support and then deleted them.

Others where presented to the jury.

The presentation of uncorroborated charges to the jury led the judge to highlight that the jury may regard them as unsustainable due to the lack of corroboration.

The jury deleted some parts of the remaining indictments.

They overturned the Anvar Khan testimony that she had continued a sexual affair with Tommy after his marriage to Gail.

They also overturned Katrine Trolles very detailed allegation that she had sex with Tommy in the marital bed; saw a sunbed; saw the wedding photos; and saw a photo of the little white dog etc.

We do not know why they deleted those indictments.

Possible reasons are the lack of corroboration; that they did not believe Khan and Trolle beyond a reasonable doubt; or that they did not believe their testimony at all.

The jury upheld other parts of the indictment - by majority verdict. Some found the remaining charges proven some Not Proven or Not Guilty.

Here lies the difficulty.

We will never know if the hearing of testimony from witnesses in relation to the uncorroborated charges (including those that were deleted and those that went to the jury) influenced the jury one way or another to convict Sheridan.

There is I am sure you agree a RISK that it bled over.

There is a risk that testimony on uncorroborated charges and deleted charges (that should not have been bought) did influence the jury.

That could make the verdict unsafe.

TBC:

Peter said...

Possible Ground of Appeal Perjury Trial CONT:

Prentice is a public servant and his actions in presenting uncorroborated charges can therefore be legitimately questioned.

I say (in general) that presenting a large number of charges (including uncorroborated charges) is a device for the following purpose:

- to adduce testimony to that would not otherwise be heard.

- to pressurise the accused (and his co-accused) into a plea bargain.

- to influence the jury that there is a wider criminal enterprise in play than there actually is.

Each of these devices are sharp practice.

In my view IF that occurred here then (as well as being a potetial ground for appeal) it is was an abuse of authority by the Crown.

As I understand the guidance to prosecutors in (England and Wales) such tactics are discouraged.

I understand it could be a ground of appeal that the Crown brought a large number of charges (a number of which were uncorroborated and had therefore no legal basis) to influence the jury.

Due to the possibly wide ramifications of his actions (and the extreme cost of this prosecution) I expect Prenctice and the prosecutors office will be asked to give evidence on this matter at Holyrood level.

They can then explain why they brought a large number of charges including uncorroborated charges.

Citizens can also take up the matters with the relevant audit body, their MSP and the Holyrood justice committee.

I do appreciate the alternative suggestion you raise of a "mistake" by Prentice.

In the eyes of many commentators (here and elsewhere) Prentice did not perform well at trial and the Crown role as an impartial body has also been questioned.

Particularly the prosecution of Gail Sheridan, and the contiuation of that prosecution after the collapse of the Moat House chapter, has been criticised.

Prentice presenting a series of uncorroborated charges could be due to his misunderstanding of the rules of evidence.

I regard it as fanciful that he forgot or did not know the rules of evidence.

If it were a "mistake" that level of incompetence would surely also necessitate an enquiry by the relevant oversight body also as he is funded by the taxpayer.

As I understand it some respected people have already complained.

Prentice does have the right to defend his tactics that he has not yet taken. As a public servant it is his duty to at least explain them.

So possible ground for an appeal and certain grounds for public concern.

Cheers,

Peter

knock knock said...

Peter re the charges being dropped/deleted

its all about over charging the accused and not at Tesco. ramp up the pressure make them think they will have a battle on their hands defending them all and getting them to think that by accepting 1 or 2 charges they will get less of a sentence. I think It could be called Sharp practice.

you have to stand back and see what this is really about, making rich advocates and AGENTS even richer. its all about the pantomime of making money at the public expense. you only have to look at the fixtures and fittings of a court, any court and see that b and q weren't where they were bought. look at your to gp's surgery or the local library they don't get that level of expenditure.

Jo G said...

Hiya Whatsy, I recall Khan also sought TU advice because she was being "pressured" over a contract and this case was being used by NOTW as leverage in those negotiations? (Paul Holleran, NUJ)

Jo G said...

"re the sample of mr s's voice being taken from his interview tape. my understanding it fell foul as it would have to have been played in court infront of the jury and as it was in effect mr s's interview statement and under cadder it would be inadmissable..."

Inadmissible in court but ok for Police to to pass to the BBC in breach, at the very least, of the DP Act?

Inadmissible even tho' Sheridan knew it was being taped but the other video tape was admissible even tho he didn't? Wow that's some justice system we have here.

Whatsy said...

@Jo G

Yup - she was certainly getting a bit of pressure, but from those e-mails and other testimony, only to co-operate with NotW lawyers and to appear in the 2006 defamation trial. I don't recall any suggestion she was being pressured to embroider her evidence. Just to give evidence.

Jo G said...

Hi Peter, thank you for such interesting posts.

"In the eyes of many commentators (here and elsewhere) Prentice did not perform well at trial and the Crown role as an impartial body has also been questioned."

How about the Police as an impartial body? I'm thinking about a particular email by one offering to ferry a particular person around and being thanked for arriving, while a journalist was present, to interview her and bringing coffee and muffins. As Sheridan said in court, his missus was accused of being a terrorist by the police while they brought coffee and muffins for others whose testimonies were also allegedly being scrutinised.

Jo G said...

Whatsy, they were still using money and contracts with her. In my book that is despicable.

the_voice_of_reason said...

Peter:

There is absolutely nothing wrong in law with the Crown leading uncorroborated evidence that is relevant to the charges faced by the accused. It is not, and never has been a requirement of criminal evidence that every part of every charge be corroborated. Do not forget, there was only ONE charge of perjury against each accused, split into several subheads.

The Advocate Depute in this trial did the same as Advocates Depute have been doing in trials for decades. If the accused was offered an acceptable plea and turned it down, that once again accords with procedure in virtually every trial in Scotland.

It is therefore something familiar to every judge in the country, and as such is not in any way a valid ground of appeal.

As a matter of law, your "expectations" appear utterly bizarre; the Advocate Depute adduced relevant evidence, withdrew charges in accordance with his legal prerogative and duties, then addressed the jury on the remaining charges. I cannot think of any current Senator who practised as an AD who has not done the same.

I suspect that your experience in the Appeal Court may be somewhat limited, by comparison to some who comment on here.

Mr Ample Sufficiency said...
This comment has been removed by a blog administrator.
yulefae said...

Was ts lawyer not only present when he was being charged??I think so as he was lifted from his job on the radio,and the coppers wouldn,t have let a lawyer in to the interview,thats they way they operated till CADDER

Jo G said...

"The Advocate Depute in this trial did the same as Advocates Depute have been doing in trials for decades."

I think it is well established that what certain people have done "for decades" in the name of "Scots Law"is pretty darn awful.

If there are questions about this case the establishment has created them, not least Lothian and Borders Police. Ordinary folk who may or may not one day be subject to Scots Law should look on and shudder. (Especially if they're planning to carry a rosary around incidentally!)

Peter said...

Hi Jo G,

Re: Appeal Grounds and "Missing" Emails"

Learned people on here claim that the loss of emails to Crown witnesses by both the police AND the NOTW are nothing unusual and would not be grounds for an appeal.

They are wrong of course.


The (now vacated) Megrahi appeal is oft quoted by me on the question of disclosure.

Essentially when dislcosure is tainted by the unexplained loss of important documents and is then further tainted by the failure of those parties to conduct a proper search for what was lost then appeals will ensue.

Lets see if that happens here.

It is interesting to me that they have (like the police it appears) such a distinct lack of curiousity in these matters of "lost" evidence.

Nothing to see here - move on please.

I have a follow up post coming which is a wee bit tastier and more substantial on this matter but we will need to see if it gets past the Mods.

Cheers,

Peter

Jo G said...

LOL @ "limited experience" line being used to kick out any sort of protest.

Truly you couldnae make it up!

Voice of Reason, I'm in favour of a fair justice system. No more no less. You can dress this up as fancily as you dare. Bottom line is with everything that can be thrown in here, this case is a mess. If you're happy with that maybe you're part of the establishment group which says, "How dare the lower classes comment." I have news for you. The lower classes are more educated in law than YOU think!

I will say again Police conduct throughout this investigation was truly appalling and broke every rule in the book. That is a fact. Lothian and Borders have even created a precdent whereby catholics interviewed by them who exercise their LEGAL right to remain silent will be accused of being SCHOOLED IN IRA/PIRA INTERROGATION TECHNIQUES. Tell me where we are again "Voice of Reason"? Yet we have one of the biggest Police Forces in Scotland behaving like this? And you're ok with that are you? Dearie me! Dearie, dearie me.

Hamish said...

the_voice_of_reason:
You use a lot of words to agree with me that there is no substantive difference between Not Proven and Not Guilty.
I would apply Occam's razor and remove the third option.
You would not. Are you by any chance a lawyer? ;)

Whatsy:
When I started working in computing, the cost of computers and peripherals was horrendously high. As was the price of telecommunications.
The cost today is less than one millionth of what it was then.
So it would cost peanuts to provide live feeds from all public forums. Worth it, even if it enabled only two or three extra people access to supposedly public hearings.

the_voice_of_reason said...

Jo G:

You do not see fit to provide examples of what "certain people have done".

For reasons that should be utterly obvious, I am not prepared to comment on whether Gail Sheridan's actions at interview were in accordance with the advice she received.

So far as any defects in Scots ciminal law, evidence and procedure, that is a topic too vast for this thread on this blog. I will confine myself merely to the observation that the former safeguards afforded to a suspect in Scotland in terms of HMA v McLean are, in the view of many, far more protective of their rights than the system expected to arise from the Carloway report, which will almost certainly abolish either or both of the right to silence and the requirement for corroboration, each of which worked to the advantage of the accused in the Sheridan trial.

yulefae said...

I remember AP ASKING THE l&B cop,
is it not the case the Police and the Crown have to pass evidence to the defence now,
cop

oh yes

AP
so weve nothing to hide

he forgot to tell the ladies and gents they were forced to do this as they got caught that many times hiding stuff.

TS was slow to exploit that one

Peter said...

Hi Jo G,

Voice of Reason has been an education to me throughout these proceedings - generally in a positive way I may add.

Sadly he and others have never seen anything unusual in this case and as such I take what they say with a pinch of salt.

I let it go as it is the rather jaundiced view of those who operate in the courts - even I who represent at its very lowest levels get that way.

All human life is there and reps (often me included) often maintain an implacable, unshockable facade.

For the higher ups including Voice of Reason (it appears) that attitude increases - it comes with the wig apparently.

The facts that Voice of Reason and others cannot deny: speak for themselves, however, that this is not a normal case.

A 4 and a half year police invesitgation into "perjury" at enormous public expense.
Unprecedented.

A perjury investigation and trial into a matter already dealt with in the civil courts.
Unprecedented.

The loss of all emails by invesitigating officers with the main Crown witnesses and the NOTW.
Unbelievable.

The continued prosecution of a mother of a young chld, on uncorroborated evidence and after all chance of conviction has passed, solely in furtherance of the case against her co-accused husband.
Scandalous.

To cap it all they seem to argue that as the bringing of unsupportable (and uncorroborate charges) apparently goes on all the time in Scotland it is therefore justifiable to do so here by reference to that frequent, previous offence to the procedures of justice!

.YCNMIU.

Cheers,

Peter

the_voice_of_reason said...

Yulefae:

Without denying the thrust of your argument that disclosure was forced on the Crown due to previous examples of them withholding names and details of potentially crucial witnesses, the Holland and Sinclair cases were decided in June 2005, so it would hardly have been a killer point in cross-examination.

Not saying I approve of previous practice, but these days the Crown are decent on disclosure in 90-95% of cases. Still not good enough, especially in summary cases in one very large court that will remain nameless.

Jo G said...

"Voice of Reason", you are "not prepared to comment on Gail Sheridan's interview? You are joking surely? Why would you not be prepared to comment? This is SCOTLAND incidentally. People born and raised here whether catholic or protestant have equal rights allegedly, yes? Err, no, not according to Lothian and Borders Police. And you "aren't prepared to comment"? Not even with a video-tape of what they did to her? Wow!

Forgive me "voice of reason" if I switch the volume on your input way down. Your slip's showing. ; ) If that is what you represent say so, but please don't claim to represent "justice" in Scotland because you are failing badly so far. Shame on you.

Jo G said...

Peter, hi again, the Megrahi business is not over yet! Mark my words.

Whatsy said...

> Moderation <

Could commenters please refrain from imputing opinions or attitudes on other posters, and restrict your comments to what others have actually said.

> Moderation Ends <

the_voice_of_reason said...

Jo G:

I am not prepared to comment on Gail Sheridan's interview because to do so would involve me commenting on matters told to me in confidence by senior counsel. That is all.

yulefae said...

Voice of reason

Why then did AP bring it up?
i,ll tell you
he thought he was losing and trying to cover up the scull duggery of the Crown in this small country,as you quote cases,the real reason was they were hiding evidence and creating misscariges of justice,plain and simple.

It takes some amount of movement in Scotland to change anything hopefully some good might arise from this debacle.

There is divided opinion in all walks of life on this case,and that in it,s self means something is terribly wrong

Jo G said...

"I am not prepared to comment on Gail Sheridan's interview because to do so would involve me commenting on matters told to me in confidence by senior counsel. That is all."

Voice of Reason I'm thinking of a word beginning with b and ending in cks. That's what your last statement was.

That interview is available for anyone to view and nothing told to you "in confidence" will change what it amounted to or the implications of it for a significant portion of the Scottish population. The person in the video was a catholic woman with a rosary: no more, no less. And yet Lothian and Borders Police went on to paint her as something else entirely. Their conduct was disgraceful and that particular episode is not over yet.

the_voice_of_reason said...

Peter:

The Jeffrey Archer case (which also involved a politician lying on oath to win damages in a civil case) is a recent English precedent. Should Scotland apply a different test when the Crown is presented with corroboarated evidence of perjury?

In that case, the revelations were made twelve years after the events, yet it still took two years for the case to come to trial. In HMA v Sheridan, the time from caution and charge by police to the indictment first calling in court was 16th December 2007 to 26th February 2009. Any period in court after that date must have been with the knowledge or approval of his defence agent and counsel.

At the close of the Crown case, Paul McBride, a QC of many years criminal experience did not make a statutory submission of "no case to answer". This implies that he was satisfied that the Crown had adduced a sufficiency of evidence, and the AD, on withdrawing the indictment, did not concede that there was an insufficiency.

Let us also not forget that there were in fact three charges on the indictment (two divided into many sub-heads), only one of which went to the jury.

The practice of leading relevant evidence that may ultimately not result in a conviction is one that you seem to find offensive. In many trials, this allows background evidence relevant to the case to be heard, which may sometimes assist the jury in understyanding the reasons for certain things being said. The Crown are, ofcourse, not always scrupulously fair in this. As I was not in court during the trial, I cannot comment on specific examples of trial tactics, although in nearly thirty years in the law Alex Prentice has always been regarded as one of the fairest lawyers you could find. I will mnerely observe that in England corroboration is ONLY required in cases of perjury and treason, and there is no unfettered right to silence. Thus the evidence necessary to convict you of murder in England is weaker than that necessary to convict you of perjury.

the_voice_of_reason said...

Yulefae:

In a case where the accused alleges that he is the victim of a conspiracy, you think that the Crown should not tell the jury that they have in fact disclosed all their evidence to the defence?

Jo G said...

Yes indeed Peter, they argue for "justice" which doesn't have truth at the centre of it. Let me tell you. Those to whom the truth is irrelevant are not to be trusted: not an inch. Nor ar those who want to take the word justice and redefine it along their own lines.

Interesting tho Peter that 86% of those who took part in The Firm's poll about the Megrahi business believe Scottish justice is in the gutter. Says a lot doesn't it? ; )

Peter said...
This comment has been removed by a blog administrator.
Anonymous said...

"By the time the case comes to court the Police tapes become a matter of public record and ( I think) are obtained through the Media Services department of the Police. There was no leaking."

Maybe someone from the legal profession can confirm if this is an accurate statement?

knock knock said...

Yulefae you said earlier that his lawyer was only present when he was charged!

He would have been held under a section 14. It gave the police the right to hold someone and question them for 6 hrs without their lawyer present. After 6 hrs they should be allowed access to a lawyer.

Anyone with sense , Gail Sheridan being one, would sit and say nothing until their agent could be present and give them advice.

Since Cadder the 6 hrs has been increased and suspects are automatically given access to a lawyer. There has been a number of cases dropped due to the cadder ruling. Picture this two chaps have a bit of fisty cuffs. One says he was hit by the other. That one becomes the complainer and the other the suspect. Section 14 used to detain the suspect and when questioned without a lawyer says , "Aye a banjo'd him". That's the suspect just co-oberated the complainer statement. If the suspect said nothing he would be released pending further investigation and if there was no co-oberation from any other source the suspect will not be charged.

Now if you were in England and say there was a murder and you were mad or homeless wanting a night in the nick. You could walk into a police station day you did the murder. Instantly you get charged and the investigation stops because you coughed up. They do not require co-oberation in England. That's why our popo go round in 2's holding hands to co-oberate what they see or hear. In England you can be stopped by 1 cop for speeding go to court and its your word against his word and get done. Up here that won't happen.

Peter said...

The Code of Practice for Prosecutors in England and Wales link is below.

Interesting stuff - especially Section 4.

Section 6.3 is also worth a glance.

It's essentially warning against prosecutors pursuing dodgy tactics such as trying to obtain a guilty plea by the levelling of a large number charges.

Sound familiar.

If the cap fits!

Not sure what status the guidance has for any appeal - if any is lodged in this matter.

As I say in civil appeals formal guidance such as this (whilst not case law or statute) may be quoted persuasively and sometimes it help tip the balance or at least helps frame the appeal argument.

www.cps.gov.uk/publications/docs/code2010english.pdf

Bunc said...

An interesting quote for "Their Morals and Ours"

"There is, therefore, no greater crime than deceiving the masses, palming off defeats as victories, friends as enemies, bribing workers' leaders, fabricating legends, staging false trials, in a word, doing what the Stalinists do. These means can serve only one end: lengthening the domination of a clique already condemned by history. But they cannot serve to liberate the masses."

What this trial and the subsequent release of police interview tapes has demonstrated is that it was TS Sheridan who attempted to "deceive the masses"; it was TS who, through the defamation trial, was "palming of defeats as victories" and "friends as enemies"; it was TS who was "fabricating legends" of himself as some great-leader-victim of a grand anti-socialist conspiracy; it was Sheridan who staged a "false trial" in the form of the defamation case.

In short it is Sheridan who, by these very tests, has betrayed the class struggle he purported to be fighting for.

Sheridan has been revealed as a "false legend" and the socialist left in Scotland will only move forward when they recognise this and forge a unity that is not constructed around the personality cult of such false and flawed prophets as Tommy Sheridan.

knock knock said...

peter

first line

The Crown Prosecution Service (CPS) is the principal public
prosecution service for England and Wales.

you need to start looking in copfs.gov.uk for the prosecution code.

anyways im off to see the new year in i wish all a happy new year.

KK

ps james im disappointed you never put up my comment earlier today it explained being held under a sect 14 etc?

Denizen said...

'Nobody says that Sheridan is not guilty'

I do.

I apply Occam's Razor to one small aspect. (It could be many others)-

I cannot accept that if one major part of a witness's evidence shows she has been knowingly lying to mislead then anyone has a right to believe the rest. Doubtless this was the attitude of the first jury.

Although he had extensive alibis, Sheridan cannot prove he was never at Cupid's. Can you? Think aboutit! Not unless you can send me emails about being paralysed since youth.

Proof has to be pretty solid. In this case it is riddled with major holes. inconsitencies, bribes and political and sexual jealousies.

Sheridan is innocent till there is reasonable proof that is not tainted.

Say It Ain't So Joe said...

One thing that puzzles me re Gail Sheridan's taped interview is that she prefaces by saying that on the advice of Senior Counsel Paul McBride she will not answer any questions during the interview.

In the normal course of events (and certainly where accused is legally aided) counsel only becomes involved at a relatively late stage and when a petition has been serve.

Maybe I'm missing something but if Paul MCBride was being consulted by the time of the interview then somebody may have tipped GS the nod (presumably via her Solicitor)that heavy charges were afoot. There will be others more schooled that me on the workings of SLAB here and I wonder if there is a way that a suspect can get a QC on board as early as appears to have been the case here?
The other possibility is that Paul McBride was privately instructed at that point and legal aid kicked in later.

I hope I'm not wrong in assuming that Gail Sheridan was granted legal aid to defend the charge against her. If I am wrong then sorry and please forgive my ignorance

knock knock said...

Say It Ain't So Joe said...

Is PMcB a full advocate or a solicitor advocate?

SLAB will play catch up i.e. someone lifted at the weekend will have legal representation when they appear in court. their solicitor will get them to fill in the forms when the speak to them prior to appearing infront of the sheriff.

someone said earlier that the interview tape became public knowledge. cant see that. does that mean you can request their dna and fingerprints?

there is no excuse for Mrs S's interview tape being released.

Anonymous said...

re copfs prosecution code

http://www.crownoffice.gov.uk/sites/default/files/Publications/Resource/Doc/13423/0000034.pdf

page 6 is worth reading

Say It Ain't So Joe said...

knock knock,
Paul McBride is an Advocate as opposed to Solicitor Advocate.

Assuming that the taped interview took place before Gail Sheridan appeared on Petition it seems unusual to me that Senior Counsel has been tee'd up so early doors but then again this was a highly unusual case.

I agree that it's shameful that the tape got leaked but it makes no difference to the verdict.

knock knock said...

Say of aint so Joe

Thanks for that. Bit to become an advocate is the solucitor not to do deviling for his devil master for a yr or 2 without pay?

I'm sure pmcb was a solicitor advocate. Could he still jab been one at the time of the interview? And what's the difference between the 2.

Turn the clock back toothed civil case when Mr s sacked his council. Did he get support from aa.

Peter said...

Missing Emails:

Lets ask?


In these days of forensic recovery how can the NOTW and Police emails to Ms Trolle and other Crown witnesses be "lost"?

Is it not the case that even if there were deletion of data by high end encryption devices (that can delay or destruction of hard drives it would still be reasonable to expect simple disclosure from the parties to whom the missing emails were sent?

If there has been deletion does that not leave its own signature as access to the emails must be by password and login?

Does the party receiving the "lost" emails of the sender not have them?

Just return them. No?

What are the odds of the party sending the emails and the recipient BOTH "losing" emails AND "losing" them to the extent that forensic recovery would be impossible?

Tom Watson MP after hearing (Bob Birds NOTW evidence) has referred the NOTW "loss" of emails to the Information Commissioner to look into the matter.

Interesting times. No?

yulefae said...

GS was invited to the interview,so whats the big deal that PMcB GAVE HER AVICE?/the charge of telling porkies carry,s a life sentence,too many conspiracy,s as i know the system advice is free,and by judging the publicity you get the best

yulefae said...

Lets cut to the chase

not one of us was in the jury*

Ediburgh or Glasgow,appeals only go on misdirections or new evidence

whats new?

Matt McCOLL

Bunc said...

There is no doubt in my mind that there is more to the whole story of the NOTW and the missing emails and Peter raises some valid points about the potential for recovery of them.

I am also in no doubt that TS will now remain a known perjurer whatever the story of the lost emails turns out to be.

the_voice_of_reason said...

knock knock:

Paul McBride has been an advocate since 1988, and a QC since 2000. He does make himself available, if instructed by solicitors, to give advice before arrest in cases that may end up in the High Court. His mobile number is on a fair number of solicitors' speed dials, so there is nothing unusual about him offering Gail Sheridan advice before interview, whether paid to do so or not.

knock knock said...

the_voice_of_reason said...

thanks for that. i must be mistaken with thinking he was a solicitor advocate. can you explain the difference between a s/a and an advocate.

im sure there are various lawyers with advocates numbers in their phones. i think its called scratching backs.

i know joe bloggs cant just phone up one of the advocates for advice. joe needs to get his lawyer to arrange a consultation. but where does a s/a fit into this picture? is it a money making exercise having a foot in both camps?

and V of Reason am i right about the deviling?

tommy made several mistakes that will torture him a long time. findlay/scott and himself defending not to mention the decisions that took him to the high court in the first place.
i read the other month that he will get sky tv while behind bars. how ironic is that everyday rupert murdoch beaming his tv service right into mr s's cell.

does this ammendment suffice

Peter said...

I understand that the Guardian has reported the jury decision was 8 for Guilty.

Presumably then that leaves 6 jurors for Not Guilty or Not proven (or a combination of both to get to 6).

(Total of 14 as one juror of the original 15 was excused.)

Considering the numerous deletions to the charges -including those made by the jury itself- it looks like (if the GRAUNIAD has it right) that the Crown just squeaked it.

If it was indeed so close then surely anything untoward not revealed in disclosure (eg. the lost emails etc) could arguably have been significant enough to knock one of the Guilty away.

If so that would leave it 7-7 and as there would not have been 8 for Guilty that would have been an aquittal.

How safe is this verdict when there are so many missing pieces of email evidence? I do expect the police and the NOTW to take care with their emails and not "lose" them.

If they have not taken such care then they only have themselves to blame if people draw conclusions that the verdict is perhaps not safe.

It's a pity the NOTW and the Police do not even at this late stage just have a jolly good look around the office for them. They can then put our minds at rest that there was nothing in the emails that would have looked bad to a jury.

I will turn my back and count to ten and hope they appear and we will say nothing more about it.

donaldb said...

Bunc,

My understanding was that Solicitor Advocates were introduced to to break a money making cartel.

It used to be that only Advocates could appear in the High Court.

I don't really see why, if the client was happy enough, solicitors shouldn't be allowed to represent their clients in the High Court. (Anwar defending Tommy for example).

the_voice_of_reason said...

Not an easy subject to summarise in a post, but:

Advocates are all self-employed members of the Faculty of Advocates, which has existed since the 16th century, grouped in "stables". They can only be instructed through a solicitor or (recently) a small number of other professional bodies. They wear horsehair wigs in court. Those who work for the Crown as Advocares Depute are paid by the Crown during their term of office, but they remain members of their stables. Until 1993 only advocates could appear in the Court of Session and High Court.

Since 1993, senior solicitors who (1) are certified fit by the Law Society, (2) demonstrate experience in handling serious cases, (3) have paid the fee and passed the exam, and (4) have passed the oral training exercise in court, can be granted extended rights of audience in the higher courts.

Out of about 1800 solicitors registered to provide criminal legal aid, about 100 are entitled to appear for the defence in the High Court, and a few others including Alex Prentice practice as Advocates Depute.

Anonymous said...

Peter,

nobody knows what the majority was, other than the jurors. Certainly what went on in the jury room as far as voting is concerned has no bearing on whether an appeal would be allowed to proceed. It's not like Sheridan can say "they only found me a wee bit guilty".

Tommy's going to jail and he should be thinking about how he makes that stay as brief as possible. This will necessitate him stopping lying, though, so I'm not holding my breath.

Whatsy said...

@Peter - any chance of a link to the Guardian article that mentions the jury split?

knock knock said...

the_voice_of_reason said...

top class reply to my questions. many thanks for your effort.

out of curiosity how much is the fee to sit the exam and who does the fee go to?

Anonymous said...

Whatsy

Had a quick troll through the Guardian site and while has some interesting articles from Dec 23rd on verdict (see http://www.guardian.co.uk/politics/2010/dec/23/tommy-sheridan-guilty-perjury-trial?INTCMP=SRCH) I can't find anything there, or via a quick google search on the jury verdict break down.

While it would be interesting to know, like anon @ 2.12pm, I see it making no difference to the success of an appeal or not - he was guilty by a majority verdict. End off.

Re evidence not presented - while Peter's point about missing e-mails is a valid question there are also questions about the openess and conduct of the defence here: defence witnesses hardly came across as open in that many refused to give statement to police in advance so prosecution didn't know general tenor of their evidence. Yes it was their right but it looked suspect and co-ordinated. As did Andrew MacFarlane's, and Thomas Montgomery's 'eureka' moments where they suddenly realised during the court case the signifance of the Cupid visit date and that they had evidence to contradict key prosecution testimony but didn't mention it to TS until they were in the court room giving evidence. I suspect that the harder the Sheridan team try to argue they didn't have full evidence, the more incentive the crown will have to prove that several of TS's witnesses committed perjury in court.

James Doleman said...

Hello Critical Eye, sorry but there are still laws of libel which make me reluctant to publish some of the statements in that last post.

Any chance you could tone it down a bit?

Thanks

James

Critical-eye said...

James
Point taken.

The essence of my post was in Anonymous 3.30pm post, so I will leave it there

the_voice_of_reason said...

knock knock

Not sure the exact cost, but the application fee, exam fee ansd expenses of the training course must now be somewhere around £1500-2000. Payment is made to the Law Society, but the main expense is the payments to the QCs who come in on a weekend to hear the presentations and mark them.

Neil B said...

I think the reference to eight jurors voting for a Guilty verdict is from Kevin McKenna in the Observer (26 December):

http://www.guardian.co.uk/commentisfree/2010/dec/26/tommy-sheridan-perjury-politics

Suspect this is not conclusive about the voting however - more stating the obvious that at least 8 out of the 14 jurors must have voted that way.

Whatsy said...

@Anon 3:30pm

I couldn't find anything apart from Kevin McKenna's article, which does mention eight jurors voted to convict, but was such an unimpressive article generally, from someone whose usual efforts I enthusiastically read for a sense of sick fascination at how bad they are, and from someone I didn't see at the trial, I wouldn't give much credence to.

Hopefully this is not what Peter referred to as "The Guardian" saying the vote was 8-6, but I'm as fascinated as anyone to find out what the jury vote actually was. Here's the Graun/McKenna quote in full:

Kevin McKenna
"Eight members of a 14-man jury had decided that the man standing beside her had visited a sex club in Manchester with two other women and that on a separate occasion had indulged in three-way sex with other women"

Peter said...

Re: "Lost" Emails Ground of Appeal

Some say this is not a ground for appeal as Sheridan (they say) did not pursue it.

There are reasons (also hinted at by some here) I can think of why the defence would not pursue the emails issue.

The suggestion appears to be that maybe it was better for the defence to have the appearance of a cover up rather than to actually pursue the missing emails - as it may turn out there with nothing to them of any concern.

As the defence raised the concerns about the emails (see court reports)in the course of the trial I do not see it is as reasonable to consider that the defence did not pursue the issue of the missing emails.

I suggest also that the judge and the Crown would have raised an objection in the course of the trial, and in the summing up, if this was a matter that had not been raised appropriately by the defence.

If emails are found that are relevant and therefore should have been disclosed then that is an appeal ground.

That was the case in the (now vacated) Megrahi appeal in which the full extent of the discussions regarding payments to Crown witnesses (by third parties) were only revealed after conviction.

No (intelligent) poster here has yet disputed that the non disclosure of relevant emails by the police (or the Crown) would be a legitimate ground for appeal.

If they do please come forward and let us have it out here.

The more complicated appeal matter is that as (apparently) the emails are "missing" we don't know if they are relevant or not.

In the Megrahi appeal the information was eventually found so his team were then able to use it as an appeal ground.

That may mean Sheridan has in wait in jail until the emails are recovered; assessed to check relevance; lodge an appeal etc

Of course IF smoking gun type email information emerges from the ICO investigation (ie. either the emails themselves turn up or there is evidence that the emails were deliberately "lost") then he could be released pending the appeal verdict.

There is another glimmer of light.

The headings of some of the emails already indicate that the materials within them could be relevant.

Arguably then the question for the higher courts is not really to assess relevance.

I suggest also they cannot be regarded as new evidence (which is a complicated appeal ground) but simply relevant evidence that existed but was not disclosed.

The matter surely then will centre on disclosure.

The higher courts will assess the likelihood of the police and NOTW testimony that they could have been "lost" accidentally and were not avalable for forensic recovery and therefore GENUINELY not available for disclosure.

On the likelihood of any "loss" (by BOTH the sender and the recipient being accidental) and that loss ALSO being permanent (again in BOTH the sender and the recipient) I refer posters to the entries I made earlier.

In calculation of those odds the higher courts can ask themselves (as Laurence Olivier hissed at Dustin Hoffman.)

"Is it safe?"

Cheers,

Peter

Whatsy said...

Ah, I see Neil B and I were typing at the same time...

Peter said...

Re: Grauniad:

Put it this way Whatsy I had read the McKenna article before posting what I posted. Dwell on that.

Re: Appeal Grounds - Closeness of Verdict and Problems with Disclosure.

My point was not that it is not a head of appeal in itself but that it needs to be considered in the context of the disclosure appeal ground - which I posted on earlier.

I agree with those who posted - a verdict is a verdict. I have said I fully respect the jury decision but disagree with it.

In particular I feel the jury should have been allowed to see the NOTW and police emails sent to key Crown witnesses especially Trolle.

The Trolle emails, for example, were a major feature on the trial.

Trolle continued to deny any offer of payment by the NOTW - despite others including the NOTW testifying that such offers were made.

The process in which Ms Trolle came to court and denied (twice) that she was apparently offered money is an intriguing issue.

The process by which she fixed upon a new date for the alleged Cupids trip (and other matters) is also a matter that the missing emails may or may not cast light on.

It is in the context of any lack of disclosure that the fact that it was a majority verdict is relevant.

In framing an argument it will (I consider) be raised as background that the Guilty verdict was not unaminous.

The exact lack of unaminity may be relevant (if it is very close) but is not key - disclosure is key.

NB: I would like to know. When the jury deleted some of the charges was that unaminous or majority?

Re: Tom Watson MP.

His actions in referring the NOTW to the ICO (and his acknowledgement that he and his colleagues should have done more to chase down the NOTW) have been exemplary in my view.

Unfortunately he is now a target of the machine himself.

I will write to him at the HofC to let him know that I value his role in this matter. Others may wish to also.

That Watson is a political opponent of Sheridan may help convince some here that this matter of emails is not being pursued out of desperation by "Tommy lovers" (if such things exist ouside of the fevered imagination of the NOTW and the SSP).

NB: As well as the difficulty with proving perversity (referred to earlier) I cannot see the NOTW libel appeal succeeding in the absence of those emails. Oh dear.

Whatsy said...

@Peter said

"Re: Grauniad:

Put it this way Whatsy I had read the McKenna article before posting what I posted. Dwell on that
"

I'd struggle to make anything stand up on the basis of McKenna's article, never mind dwell on it.

Regarding the missing e-mails - without getting into the grounds for appeal, the fact that the e-mail body is missing but the header remains seems to me to make it more likely that there was an archiving error rather than a deliberate attempt to delete any data. The header and body of e-mails will be stored in different database tables, so if both header and body went missing, that would suggest more than just a slipshod bit of archiving.

However, > Dons IT Head <
I it should be possible to find some or all of the missing e-mail body text - the question would be how much time and effort should be committed to doing so. There should be backups of the database on tape somewhere from any particular date, depending on how regular backups were done - can be pretty laborious and expensive to retrieve this, but should be 100% recoverable.

If this isn't available - shame on the archivers and the NotW IT people.

You then would have to go into individual pc memory and look for old e-mails.

If that drew a blank, you'd be looking for e-mail fragments on parts of the disk that hasn't been overwritten with something else. I'm no expert at this, but I'd imagine this could be very tedious and potentially only partially successful, or even fruitless.

If anyone really wanted to retrieve these mails, they should do, or have already done, all of the above, plus any other smart moves I don't know about.

knock knock said...

regarding any appeal. what are the possible outcomes?

1. verdict overturned and aquitted. NO CHANCE
2. Verdict overturned and retrial. SLIM CHANCE but the expert witnesses re validity of video tape will come in.
3. Verdict stands. LIKELY bad part is they might stick on a year or two for taking up their time.

remember chris donald's murderers gave up their appeals because the appeal court went through a phase of rejecting appeals and adding to the sentence that was initially imposed.

Mr S is possibly again embarking on another high stakes game. there comes a time when its best to just give up as the odds are against you.

does an appeal re the criminal conviction "cyst" the civil case until the appeal is dealt with? the only benefit i can see is to use a criminal appeal to take him by the finishline to protect the house but then again that is at a cost of possible further TIME in prison. I'm sure the civil appeal, no matter what is done will ultimately cost the family home.

when one stands back and looks at the whole mess this is, it is quite unbelievable that it got to this.

Max said...

Anonymous at 3.30pm

'there are also questions about the openess and conduct of the defence here: defence witnesses hardly came across as open in that many refused to give statement to police in advance so prosecution didn't know general tenor of their evidence.'

So, do questions about the police behaviour not figure in your analysis/thinking?

despite,

1)An unprecedented (given nature of alleged offence) raid on a family home
2)An eight hour search by 9 policemen in flak jackets etc (see Lynn Sheridans
testimony)
3) A callous disregard for the trauma visited upon a child.
4)An apparent police refusal to allow her (Lynn Sheridan) to enter and remove the child.
5) Leaking of the raid by the police to the media which would appear to have had the objective of prejudicing public opinion against the Sheridans
6)A bogus theft charge against Gail Sheridan leading to suspension from her job.
7) And then the question to Gail Sheridan as to whether she had received terrorist training when she chose to pray with her rosary beads.
8) The removal of her rosary beads.

You feel that the defence witnesses should have just ignored all the malice and prejudice that these actions appeared to manifest, swallow their rage at such treatment and in particular the effect it could have on the Sheridans young daughter and meekly oooperate with what could be viewed as a 'vendetta'.?

Coooperation would have been the last thing in my thoughts and I can only admire Gail Sheridan for her silence given the provocations.

If suspiscions of political or religious prejudice or both are to be exorcised, a full investigation by an independent body needs to be made into the aforementioned police actions.

In addition there is of course the loss of potential e-mail evidence addressed in previous posts that could have had a bearing on the deliberations of the juror.

the_voice_of_reason said...

knock knock:

Pleaase bear in mind that sentence has not been passed yet. There may be an appeal ONLY against conviction, in which case the court has no power to vary the sentence.

In any event, the court has np power to increase the sentence for "wasting the court's time". Firstly, the case only gets to court if leave is granted by a judge, which immediately means it is, by definition, not a waste of the court's time, and secondly the court can only increase the sentence if they feel the trial judge's sentyence fell outwith the appropriate range for the offence.

I think the case you're thinking of is Spence v HMA in 2007 where the trial judge gave a discount in circumstances where the appeal court ssaid he should not have done so, and the appellant had two years added to his sentence.

Anonymous said...

Peter - one benefit that could come out of the TS trial is a renewed focus on the covert actions of News International and who knew and did what in terms of accessing confidential info illegally. However this benefit can only be proprely gained if it's disentangled from TS's case and the rather fanciful claims of a a NOW-Police-SSP-Prosecution witness conspiracy that have been made about in and around the case and divert due focus from what the NOW has really done.

Knock, knock - re TS appeal. If he's granted an appeal and loses the Court of Crimninal Appeal could increase his sentence if they believe the orignial sentence was unduly lenient. But for obvious reasons they can't increase his sentence just because he has appealed. As for order of civil and criminal cases I don't think there's anything set in law but usually criminal takes precedence. Imagine NOW lawyers will argue NOW appealed civil verdict immediately and have had to wait for four and 1/2 years already. TS/TS lawyers will argue conviction is unsafe and he needs to be able to challenge criminal conviction first both as his liberty is in question and that NOW will use fact of his conviction for perjury as part of its civil appeal case to court of session. If TS manages to get his appeal accepted for referral to Court of Criminal Appeal quickly, imagine he'll have a strong case to argue the NOW civil appeal should be delayed while it is heard. And yes it is a complete mess.

Peter said...

Anon, 9.32pm

A useful post from you that it would be easier to reply to if you put an orginal user name (not Anon) in the box provided.

It is the same deal as using "Anon" but just easier to follow who we are discussing with if you choose a witty/pertinent name.

On the merits of your post.

May I say you are a bit muddleheaded on the disentanglement of the Sheridan case from the NOTW activities.

Sheridan was targeted by NOTW agents. That is proven by the testimony of the NOTW and the diaries of Mulcaire released in this trial.

Sheridan has now for the first time got senior people from the NOTW on oath in court denying all knowledge of any illegal acts in relation to phone tapping etc.

Well done to Tommy for eliciting that evidence and testimony on oath. It was an important first step. The net can now start to be closed on the NOTW.

Whether any criminal and civil laws were breached in the targeting of him and others is now the main issue.

The Met police do not want to look at it obviously so the civil actions are moving forward.

Some celebrity targets have and will bring such actions and settle out of court.

Sheridan is now therefore in a position (perhaps uniquely) of any of the main NOTW targets. He is effectively compelled by his dire current predicament to pursue this matter to a conclusion.

He therefore has no interest as some celebrties may in an out of court finacial settlement from the NOTW. He needs his day in court against the NOTW if you like.

If full exposure and disclosure in that civil process (from Mulcaire etc) could possibly secure the grounds for an appeal in this matter it probably cannot be passed up by him.

NB: The Royals were a different kettle of fish and there were two jalings of 2 NOTW agents for the targeting of them.

So from reprts it seems that Sheridan is going to go down that legal route and not go quietly.

The reports in the press are of:

- a class action (with Sheridan as a main party) being entered in London against the Met and the NOTW.

- Tom Watson MP quoted as saying he has referred the NOTW to the ICO for a full investigation into the "loss" of the Sheridan case emails.

It may be that, at the end of the day, the NOTW and its agents may still find cause to rue the day they targeted Tommy.

Your attempt to separate ou Sheridan from the public and legal concern with the NOTW is rather hamfisted and also a bit errr .... out of date considering the above. IMHO.

Cheers,

Peter

knock knock said...

V of r and anon
Thanks again for your explanations

Muleman Revenge said...

Just to clarify a few points that have been argued earlier in this comment section:

1. The Not Proven verdict or 'Bastard's verdict' under Scottish Law describes a situation where a judge or jury feels that a person is not fully innocent and that throughout the trial sufficient evidence has suggested that there is a reasonable chance they committed the crimes they have been charged with. Until the 18th century the only two verdicts from a trial were proven and not proven, the not guilty verdict being introduced as a method of proclaiming the full innocence of the defendent, rather than using the not proven verdict which implies simply that the procurator fiscal did present a strong enough case to convict. To those who find the possibility of three verdicts in Scots law ridiculous I would suggest you look at the Scottish Law Commission's recent paper on changes to Double Jeapordy rules that will particularly affect Not Proven cases where new scientific evidence has come to light.

2. Generally throughout this trial I have supported TS but the idea of a mass conspiracy against him seems utterly far-fetched. Ironically I have been reading a few of the biographies of Stalin throughout this period and his dismissing of old comrades as enemies and paranoia about collusion between NOTW and the state reminds me of pre-October Bolshevik speeches made by none other than Comrade Kabo (later nicknamed Stalin). This trial has been a farce, a waste of money etc but the fundamental problem remains - TS took the NOTW to court in the first place against the wishes and advice of almost all those he worked with politically. This, to me, represents a fundamental betrayal of the principles of political coordination and informal democracy that all politicians should adhere to.

the_voice_of_reason said...

Muleman revenge:

Your history of the "not proven" verdict is not quite correct.
Between the development of something vaguely resembling a modern prosecution system in 1672 and the nineteenth century, criminal indictments were very long and unweildy, giving rise to arcane debates on relevancy of points of law. For over fifty years, these ended in the drafting of a number of questions of fact to be adjudicated by the jury. Depending upon what facts if any were found proven, the judge would then pronounce a verdict.

The system came up against a huge problem in the 1728 case of Carnegie of Finhaven, who had been engaged in a fight with Lyon of Bridgeton. Attempting to break up the fight, the Earl of Strathmore was struck accidentally a full blow with a sword from which he died two days later.

As notions of self-defence and accident were not well-developed, the jury was presented with the difficulty that if they found it proven that (1) Strathmore died as a result of a blow from a sword, (2) that sword was wielded by Finhaven, and (3) that Finhaven was engaged in a violent quarrel at the time, those three "provens", none of which were in dispute, meant he would be sentenced to death, as the court had ruled that he had no defence in law, given his admission that he caused the wound.

Defence counsel Robert Dundas, MP for Midlothian and later Lord President, argued that the jury had the right to make finding in law, namely "not guilty", which they duly did.

Over the next 100 years, "not guilty" became more favoured, and by the time Sir walter Scott was Sheriff of Selkirk "not proven" was becoming unpopular. I still think it is an entirely appropriate verdict in any system where the duty on the prosdecution is to PROVE its case.

Whatsy said...

> Moderation <
@Sir Brian Hine
If you could just change the very last part of that post to avoid accusations of deliberate destruction of evidence...

;)
> Moderation Ends <

Surreptitious Evil said...

James et al - thanks for all the time you put in to this, an excellent resource on an important case, especially given the dreadful reporting in much of the professional media.

Missing Emails

Disclaimer: I have been involved in the disclosure of email evidence to courts in Scotland, England and (unfortunately) the US.

It is actually quite easy to non-deliberately lose emails - especially if your email is stored on a corporate type system and there is no specific email archiving system. Forensic recovery, from the user's computer, is great for recent stuff - but older stuff is often partially or fully overwritten (this is much easier for home systems where, especially prior to widespread use of webmail and again with modern versions of Outlook, emails were downloaded in full, often as specific files to the user PC). Forensic recovery from high-usage servers is usually not that much help.

If the user does not delete the email, it will be on the live system and recent backups - trivial to recover.

If the user deletes the email, then the investigators will need to find a backup tape that was taken some time between the email arriving and the time of deletion (most email server software will allow you to set a "retain deleted email for x days" option, although this can significantly increase storage costs so 'x' is usually reasonably small (7 is quite typical but this option is also often not set.)

There are then a number of issues:

1. No backup may have been taken in the time frame - an email may have arrived, been actioned and then deleted.

2. The particular tape may have been re-used. Many organisations run a daily / weekly / monthly backup routine with daily tapes being retained for a couple of weeks, weeklies for a couple of months and then your monthly backups are the long-term retention. So an email that hypothetically arrives on the 7th of Jan, is actioned on the 10th, deleted on the 14th and retained for 7 days is unlikely to be on the Jan backup tape which is all you'll have in a couple of years.

3. You may have identified the particular tape but it may be lost or damaged - shipping all your stuff to India might not help here but I've certainly had issues with stuff that went from Edinburgh to Inverkeithing (including one set of tapes that were nicked out of the back of that van taking them - why, I've no idea!)

4. You may have issues restoring the mailbox from the tape - this was a particular problem with older versions of Microsoft Exchange that would bork if you had a single error.

Not saying that any of this is what happened in this particular case but you can have multiple parties agreeing that an email was sent, disagreeing about the contents and simply not being able to produce actual evidence. (It can be quite amusing if, provided you have no moral or personal stake in the case, US lawyers are involved at this point because it wrecks their world-view.)

Happy to help if there are technical points that people are unsure of (although I've never worked for L&BP or News Group so I have no idea about their particular technologies.)

Surreptitious Evil said...
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Surreptitious Evil said...
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Peter said...

Surreptitious Evil,

Thanks for that.

Any explanation why the sender of the email (who has lost their email records) couldnot simply request that the recipients of the lost emails could not just send them back the email electronically and print a copy out.

I find it hard to believe that the senders (ie the NOTW AND the police) AND the recipients (ie various Crown witnesses) would both lose the same sets of emails AND all apparently have no chance of recovery.

Extraordinary odds - nearly as high as Woy holding the reigns at Liverpool come next season.

Thanks,

Peter

Surreptitious Evil said...

(Hopefully this comment won't cause the blogger chaos the main one did.)

Peter,

In theory, no - although you wouldn't do it quite that way if the emails were to be introduced in to evidence. You'd want to recover the emails electronically from the receiver's email server, if possible, retaining as much metadata as is practical.

Also the email sender address (and much else) can be trivially spoofed (for an email going outside an organisation, certainly) and the receiver can often edit the text. So it is certainly not 'reliable' when there is a dispute between the sender and receiver over content, timing etc (not this is relevant in this context.)

I don't find it as impossible to believe (although if I were advising the lawyers looking at disclosure, I'd want to provide some explanation). If you consider my issue No 2 - mid-month emails - that is likely to happen to both sides independently. (Your weekly backup almost always happens on a Fri / Sat; your monthly is often either the last Fri / Sat of the month or the last working day). Hanlon's razor has undisputed pride of place in lots of "e-discovery" and disclosure issues. Admittedly, I generally paraphrase it with "It is dangerous too" rather than the original "Never".

Also, if emails were sent to home accounts then recover can be quite hard - if I delete something from my gmail account (delete forever from Trash or Spam), I've got no way of recovering it. People might have deleted emails after the initial libel case finished. I'm not sure whether a Scottish court could or would order seizure of the computer(s) from a (potential) witness who is co-operating (apparently or actually) with the process to enable a forensic examination.

We were certainly very reluctant (albeit as a public company) to even ask people who were targeted by fraudsters to allow us to examine their computers for evidence, on advice from lawyers.

Perhaps TVoR or one of the other lawyers may be able to comment.

Peter said...

Thanks Surreptitious,

That was very lucid and to the point - makes me wonder why your other posts didn't make it past the watchtower :-)

I take your point on emails sent on main servers in an organisation like the police and the NOTW.

I would say that I still think it unlikely that the police would back up and lose emails in a major enquiry to make them beyond recovery.

They (and the NOTW) seem from the trial record to have kept other emails. A coincidental, selective loss? Mmmmmm.

My bull***t antenna are twitching.

Maybe you could lose emails about the diner dance at the funny handshake club but not a major enquiry surely.

How exactly the police lost them has not yet been publically explained as far as I am aware - maybe it is as you say, maybe not.

As for the NOTW are possibly going to be asked to verify their testimony as to loss of their emails in the switch to India via the ICO - if Tom Watson MPS complaint about the matter is accepted that is.

----------

On the question of receipt by the Crown witnesses and NOTW libel witnesses to their personal computers.

As I say when I lost emails that I had sent to a client I requested he did not delete any I had sent him as I may need them for disclosure.

Luckily he had kept them for over a year on his hotmail account.

Maybe that was not so lucky as he simply realised they were important emails.

He wanted a record of what I had sent him and what he had sent me.

I would think it a rather unusual set of circumstances if I were ever involved as a witness in a major libel case and a major police enquiry.

I such circumstances I would want to keep my emails I sent to the police and the NOTW and those that they received. I wouldn't mind semding them back if the sender had lost their copy or letting them acess that part of my account to verify validity of the emails.

Strange that Crown witnesses do not appear (from what we have seen so far) to have kept very important emails.

I would tend to delete emails about Russian lasses and keep important ones abut major criminal enquiries - maybe that's just me !

Also a bit strange that when the emails were lost (IT APPEARS) the police and the NOTW did not alert the recipients of the emails in the witness pool immediately to request they did not delete them from their computers.

That of course would have led to an exchange of a new set of emails itself. Such emails would provide legitimacy to the "loss" story. Where are those emails? Lost also? Do we know?

If you are being fair to Tommy do you not give him the benefit of the doubt on his concern about this?

If the police and NOTW and the Crown witnesses have lost their emails and had nothing to hide we will now never know how innocent the lost emails all were.

That is not Tommys faul, however, If there was a loss, even if honest, there must a consequence.

Simply put - if there is not full and fair disclosure of important emails then it is not a fair trial in my view.

Cheers,

Peter

Surreptitious Evil said...

Peter,

I'm being careful (as I don't actually know anything specific about the circumstances of this case) not to allege anything (in deference to the site rules.)

As I said in the previous post - if I had been involved in the disclosure of the emails, I would have wanted to provide some explanation. At least to the lawyers at disclosure. If this was accepted, it might not make it to the court / jury. We just don't know.

Emails about discovery issues - such as the ones you suggest - would normally be legally privileged, therefore not disclosable to the court.

Of course the loss of the emails was not the fault of Tommy (or any of the defence team). However, do you give him the benefit of the doubt? Can you be permitted to assume (if you were on the jury), because an email was non-produceable, that it must contain exculpatory information? That is quite a leap. And, I suspect, if it had be raised in detail by Tommy, we would have seen objections from AP. Disclosure issues are normally sorted by the judge before trial.

I'd note that as far as DPA Principle 8 transfers to India go, although it doesn't have an approved regime, what are called "binding corporate rules" or "model contracts" may be in place. I'd not want to prejudge any ICO investigation ...

I'm not saying you are wrong to be skeptical - it is a useful and entirely sensible default position. I'm just pointing out that the losses are entirely technically feasible - from painfully gained experience - for this to have happened. You might impute ulterior motives - I certainly cannot refute that.