HMA v Tommy Sheridan | Scots Law Snhookered?

by ScotsLawBlog on December 27, 2010

Tommy Sheridan was, on 23 December 2010, found guilty of perjury following a 12-week trial with cost to the public purse of over £1million.

A useful summary of proceedings is published by the Daily Record here. Tommy Sheridan will be sentenced on 26 January 2011, almost certainly facing a custodial sentence. For the implications of the likely prison sentence, see Kenneth Roy’s article here, republished on Newsnet Scotland here, entitled “Why the Sheridan case may return to Haunt Scottish Justice”.

Much discussion of the controversy has already begun to be published.

Alan Taylor starts us off rather poetically with his article in the Herald Scotland:

“There is an old legal adage: the man who represents himself in court has a fool for a client. Whatever Tommy Sheridan is, he is no fool. When he decided mid-trial to take on his own defence, he was adopting a role for which he has, in a sense, been rehearsing all his life. Eloquent, articulate, persistent, trenchant, precise, implacably convinced of his own innocence, he was the very model of a lawyer in one of those classic courtroom movies such as 12 Angry Men or To Kill a Mockingbird, of which he is so avid a fan.”

Despite sacking his own counsel, Donald Findlay QC, Sheridan did, perhaps, present most of his case in such a manner. Although it must be questioned whether or not a five-hour closing speech can ever be defined as “precise”. And despite Sheridan becoming a first year law student at Strathclyde University several years ago, surely the legal knowledge and skill of an experienced QC would have given him a stronger defence.

Nevertheless, there is comment to suggest that even if Tommy Sheridan had retained his counsel, the trial would still have been rather unbalanced and biased.

Ian Hamilton QC has, in an exclusive letter to the Firm Magazine voiced his own opinions:

The News of the World has at last won its vendetta against a left wing politician. It has done so with the connivance of the Lord Advocate. If at first you don’t succeed keep trying. Scottish justice has notched up another political miscarriage of justice alongside that of Al Megrahi and Muir of Huntershill.

This remains to be said. For the Lord Advocate to bring this case was a prostitution of Scots law. The Lord Advocate is a member of the Scottish government and the government was the pimp. The aim was not to seek justice but to placate Rupert Murdoch and the News of the World.

He makes it clear that his principal concern is about the fact that the prosecution was brought to the arguable detriment of the justice system and public purse, the investigation having cost over £1million:-

A BBC interviewer on Good Morning Scotland was stupid enough to think this article was written in support of Mr Sheridan. It was not. The body of the article was written long before the verdict. Indeed The Firm legal magazine had accepted the article while we were still waiting the verdict. Only the first paragraph was written after the verdict.

The thrust of the article is against the prosecution having been brought at all. The whole matter reeks of a suspicion that the press, and in particular Rupert Murdoch’s News International, must be appeased.

Lallands Peat Worries continues the debate about whether or not the prosecution should have been brought in the first place in his recent post “On the Perjuries of a Satsuma Socialist”

Some have argued that perjury in our criminal courts is endemic. Why so few prosecutions? Or more pointedly, why this prosecution? On a few extreme accounts of the case I encountered over the last day, any discretionary application of the law is itself imagined as problemic. If that’s so, then Scotland and many other countries have pervasively mischievious systems of prosecution, hardly limited to Sheridan. I’ve blogged several times this year about the Scottish Parliament’s response to some difficulty drafting a general law capturing whatever specific evil our tribunes want punished. Faced with definitional challenges, a frequent response is to distinguish the law from its application and broadly-drafted new crimes are simply passed – enlarging prosecutorial discretion and relying on procurators fiscal to identify the cases that “really” deserve to be pursued. This is certainly problematic. However, critically, discretion doesn’t evaporate even with clearly defined Scottish crimes. We can and probably ought to be suspicious (or at the very least critical and questioning) about the organisational values which inform discretionary application of the law “in the public interest”. However, we’re simply slurping moonshine if we fail to realise that this cannot be a question of whether prosecutions are discretionary or not – but how discretion is used.

In which context, the question becomes – why shouldn’t Sheridan have been investigated and prosecuted?

It is submitted that the Lord Advocate, Elish Angiolini QC, is to be commended in principle for not turning a blind eye to the accusations of perjury. If the accusations of perjury had gone without any investigation, whether or not from a large corporate entity, the Scottish legal system would face an even greater public backlash and may set dangerous precedent for the future. BUT the method of prosecution, led by Alex Prentice QC, is to be questioned. For instance, why were there initially eighteen allegations of perjury later whittled down to six, five of which being upheld by the jury; and at a late point in the case why were charges against Gail Sheridan dropped completely as “no longer in the public interest”?

Obiter, as a result of the Sheridan trial, some have said that Elish Angiolini herself, who has already tendered her resignation as Lord Advocate, is not fit to be considered for a Supreme Court appointment despite being Scotland’s top law officer for the past 4 years with a series of legal accolades. To those, this statement of AllyMax on Ian Hamilton’s blog is perhaps the best message:-

I feel just as much aggrieved as you do, but I don’t, and I will not reduce myself to denounce another Scot in a way that has not been adjudicated upon by his or her peers; this is our historical way of being. This is the Scottish way.

I just want to say I feel just as much aggrieved as anyone else in Scotland the way our justice system has got ‘out-of-hand’, but let’s not denounce anyone in particular, that’s the Westminster way. Rather, let’s defer to our elites, our clan ties, that are the Scottish way. Upon them, the weight lays. That is what I have done; I only hope they, our elites, do their job properly. I certainly don’t want to be visiting this issue again next year. Scotland, and Scots’ peoples is experiencing a mix of trials, and tribulations, and the political hue and cry is more than we’ve ever experienced; even though Westminster haven’t changed their ways. We will survive, as we always do.

Turning back to the Sheridan trial, Hamilton continues:-

Consider this. In every case where someone seeks damages there are two sides. Mr Sheridan won his civil case because the jury believed his witnesses and disbelieved those for the News of the World. In the eyes of the law and in the eyes of common sense these latter witnesses were now tainted. Yet they were then called by the crown against the Sheridans. In a criminal case a jury must decide the issue of guilt beyond reasonable doubt. I can think of no better example of reasonable doubt, than a case which rests on the evidence of witnesses already discredited by another jury. In all my years as a lawyer I have never known a case where the successful side in a civil action was prosecuted for perjury. If anyone had to be prosecuted it was the side held to have lied under oath.

However, as Hector MacQueen’s Scots Law News points out, “he is not the only politician ever to have been convicted of this kind of thing, and prosecutions have not been confined to socialists opposed to the Murdoch press: compare the stories of such Tory fibbers as Lord Archer (another “defamed” in the News of the World) and Jonathan (“sword of truth”) Aitken, who instead fell before the left-ish forces of The Guardian and Granada TV.”

Quite amusingly, as a comment posted on Ian Hamilton’s blog, one “Jeffrey Archer” writes:-


I heartily agree with you in entireness. Anyone who wins a libel case should be left alone to spend their winnings, even if one was a little ecumenical with the actualite in getting them.

If you and brother Thomas would like to enjoin with me and my good friend Jonathan on a campaign to keep the law out of lies, please email me as above.

There’s only one form of prostitution I like – and that may or may not be a fact!

On a more serious note, for fuller discussion and comments, Ian Hamilton’s blog is alive with opinion and is well worth a read:

A certain “AllyMax” stands out in particular for his comments:-

Today I have been compelled to write to both the Scottish Government, and Lord Bracadale, (via Judiciary of Scotland website), to voice my real concerns pertaining to Scotland’s justice system and the HMA v Sheridan trial. Scotland ’s justice system has been irreparably damaged by this fiasco.

Dozens upon dozens of prosecution witnesses, dozens upon dozens of miscellaneous ‘cluster-charges’, (designed to root-out non-indicted information for salacious purposes only), 5 million of tax-payers money to produce a conviction of a single lie, (of which was adjudged innocent in the previous civil trial of which has a higher standard of proof), 52,000 man hours of Scotland’s police, dozens upon dozens of charges dropped during trial at the bench, (a new low for Scotland’s justice system), every conceivable shred of police ethics broken during investigations, and the ‘dragging out’ of the pre-trial preparation for public humility through press bullying of the Sheridan family has left this trial as the worst example of Scotland’s justice system; it was effectively a vengeful and debasing show-trial by the Crown prosecution in Scotland on a Scots family. Cumberland ethics returned!

There are so many aspects to this trial that are absolutely wrong, I will be outlining them and making points of contention in a 3rd part extension of my original letter to Lord Carloway for his Review of Scotland’s Justice System and Practice of law. Moreover, the way this trial has been conducted shows real and very serious concerns as to the applicability concerning abolishing the present double jeopardy law. I would certainly not trust the abolition of double jeopardy law with Scotland’s present justice system and practices.

The constant media bullying, with their infectious smearing of the Sheridan family only fed into the hate-filled public zeitgeist the justice system aprovongly encouraged, along with the conduct and behaviours and practices of the crown/prosecution has left me distrusting, disgusted, and ashamed of Scotland’s justice system, and in-deed to be Scots’ tonight.

If the justice system in Scotland can view this nasty methodology of practice as a victory, then all Scotland can view its justice system as a despicable oppression of the Scots peoples.

Sincerely disgusted and ashamed, allymax.

Meanwhile, Edinburgh University Law School’s Scots Law News has published its own analysis of the HMA v Tommy Sheridan case, with salient comment. For instance:-

It can be taken that the jury majority also did not believe that this was all part of a war between Mr Sheridan and the Murdoch press in which the sacrifice of truth was justified or justifiable.

“What compounds the offence is that at the time in question Mr Sheridan was a Member of the Scottish Parliament, helping enact the laws by which the rest of us are governed.”

Curiously, The Journal Online had published its own brief synopsis of the controversy including reference to Ian Hamilton QC’s comments, but has since appeared to have retracted the post, perhaps wishing to distance itself from the controversy altogether, perhaps with good reason.

Indeed, it may be said that the case brings nothing new in the way of black-letter law; only practical implications. It will be interesting to see exactly what those practical implications are in 2011, the result of the appeal of the News of the World to reclaim its £200,000, no penny of which Tommy Sheridan has ever held, and what will happen to Tommy Sheridan on 26 January and thereafter: his fight with the News of the World, it seems, is not yet over.

Previous post:

Next post: