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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> HM Advocate v Sheridan [2011] ScotHC HCJ_001 (18 November 2011) URL: https://www.bailii.org/scot/cases/ScotHC/2011/2011HCJ001.html Cite as: [2011] ScotHC HCJ_001 |
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HIGH COURT OF JUSTICIARY
NOTE
by
THE HONOURABLE LORD BRACADALE
in causa
HER MAJESTY'S ![]()
against
THOMAS ___________
|
For the first accused: M E Scott QC, McCall; Aamer Anwar & Co
For the second accused: McBride QC, Lavelle; J P Mowbray & Co
For the Crown: Prentice QC Sol Adv, AD, Nicolson; Crown Agent
18 November 2011
Introduction
This Note is in two parts. In the first
part I set out my reasons for repelling pleas in bar of trial based on
prejudicial pre-trial publicity and related devolution minutes. In the second
part I record the directions which I gave to the jury at various
stages in the
trial with respect to publicity.
The accused, who are husband and wife, faced
charges of perjury arising out of evidence given by them in July and August 2006 in a jury trial at the Court
of Session in an action for defamation raised by Mr Sheridan
against News Group
Newspapers Limited (NGN), owners of the News of the World newspaper, in respect
of articles published in that newspaper in 2004 about Mr
Sheridan's
private
life. After a lengthy trial at the High Court at Glasgow between October and December 2010
the Crown withdrew the libel against Mrs
Sheridan
and Mr
Sheridan
was convicted
of perjury on a restricted basis.
Background
On 31 October 2004 the News of the World
published an account by Anvar Khan of sexual activity in which she had engaged
with an unnamed member of the Scottish Parliament (MSP). The activities
included sexual intercourse with her, group sex with her and others, and a
visit
to a swingers club in Manchester.
At the time Mr Sheridan,
who was a
very
well-known politician in Scotland, was a MSP and the convener of the Scottish Socialist Party
(SSP). On 9 November 2004 at a meeting of the SSP's executive committee Mr
Sheridan
is alleged to have admitted that he was the unnamed MSP and that the
allegations made by Anvar Khan were true. On 10 November 2004 Mr
Sheridan
resigned as
convener of the SSP,
citing family reasons.
On 14 November 2004 a further story was
published in the News of the World. This was about a former prostitute, Fiona
McGuire, who claimed that she had engaged with Mr Sheridan
in sexual activities
similar to those described in the earlier article in which the MSP was not named.
The article included a photograph of Mr
Sheridan.
On 15 November 2004 solicitors acting for Mr
Sheridan
made a complaint to the owners of the News of the World, threatening
legal action.
On 21 November 2004 the News of the World published a story under the headline "Liar, Liar", giving an account of what it alleged and taken place at the meeting of the SSP executive committee on 9 November.
On 23 November 2004 Mr Sheridan
raised an
action for defamation. In due course, on 4 July 2006 and the following four
weeks, evidence was led before Lord Turnbull and a jury. On 4 August 2006 the jury found in favour
of Mr
Sheridan
and awarded him damages in the sum of £200,000.
Preliminary plea
Mr and Mrs Sheridan
took pleas in bar of
trial based on prejudicial pre-trial publicity and raised devolution minutes
contending that any trial for these offences would not be a fair trial before
an independent and impartial tribunal and would thus infringe their right to
such a trial as guaranteed by article 6 of the European Convention of Human
Rights and Fundamental Freedoms. They contended that for the Lord
Advocate
to proceed
to trial against them in circumstances where there had been prejudicial
publicity; where such material remained accessible; where some of the
prejudicial material purported to emanate from police sources; and where the
Crown had failed to take adequate steps to render prejudicial material
inaccessible, was to act in a manner incompatible with their rights under
article 6(1).
At a preliminary hearing at the High Court in Edinburgh between 28 and 30 July 2010 I heard submissions in support of the pleas in bar of trial and associated devolution minutes. In repelling the preliminary pleas and refusing the devolution minutes I issued a Note in which I gave the following reasons for my decision:
"In response to the
verdict
of the civil jury the News of the World, on 6 August 2006, devoted many pages to
the case. The clear tenor of the contents was that Mr
Sheridan
had lied in the
trial and that the outcome was wrong. Included in the articles was an account
of an attempt that had allegedly been made to persuade a witness not to give
evidence. The article began "One of Tommy
Sheridan's
staunchest supporters
joined forces with a gangster to urge a key witness not to give evidence in the
MSP's case against the News of the World". The supporter was identified as a
Mr Reilly and the gangster as a Mr Lynn. Mr Lynn was said to have a connection
to a Mr Paul Ferris, whose name was well known. There was a photograph of Mrs
Sheridan
with Mr Reilly. The material included an eight page pullout in which
the News of the World invited members of the public to make up their own minds
as to who was telling the truth, the clear implication being that Mr
Sheridan
had been lying in his evidence.
In the editions of the
News of the World issued on 13 and 20 August 2006 it was asserted that a number
of the witnesses who had given evidence against Mr Sheridan
had successfully
passed a lie detector test administered by a man who was said to be an
experienced expert in carrying out polygraph tests. The newspaper issued a
challenge to Mr
Sheridan
to take a lie detector test. I was advised that the
witnesses who had undergone the procedure would be witnesses in the criminal
trial, in which, of course, evidence as to the use of polygraph tests would not
be admissible.
During this period many
articles were published in a wide range of newspapers, some of which were not
prejudicial, but some expressed scepticism about Mr Sheridan's
position.
Crown witness 117, George
McNeillage, claimed to have recorded on videotape
Mr
Sheridan
making certain
admissions. Mr
Sheridan
denies being the person in the
videotape.
The
videotape
will feature in the criminal trial. The
videotape
came into the
hands of the News of the World and its contents were heavily covered in the
edition published on 1 October 2006. A transcript of the tape was published. Members of the
public could listen to the tape by telephoning a published number or by
visiting
a website. It was asserted that
voice
experts had identified the
voice
as that of Mr
Sheridan.
It was not the intention of the Crown to lead
expert
voice
identification in the criminal trial.
Officers of
Lothian and Borders police, who were by this stage carrying out an
investigation into an allegation of perjury, visited
the editor of the News of
the World on 5
October 2006.
In the course of the meeting they warned the editor that any further press
coverage would be potentially problematic to any future criminal proceedings.
Despite that warning, in the edition of the newspaper published on 8 October
further extensive coverage of the
videotape
was included. The existence and
contents of the
videotape
were given extensive coverage in other newspapers.
The Times of 2 October reported that the public had responded to the invitation
to listen to the tape.
Over the following years
there was, from time to time, further coverage of the case. At various
stages
progress in relation to the appeal in the civil action was covered. As a
result the earlier allegations were revisited. Reference was made to the
videotape.
The police inquiry was
covered in the press to the extent that it appeared that there was a source
supplying information from within the force. In this context, for example, in
the Herald published on 26 August 2007, it was asserted that thirty people had given statements to
the police linking Mr Sheridan
to a swingers club in England. The attempt to interfere with a
witness by Mr Lynn was revisited, again with a reference to Paul Ferris. It
was also noted that Paul Ferris had appeared on Mr
Sheridan's
chat show at the Edinburgh Festival, presumably on
the Fringe.
The Herald of 20 May 2007 published an article in which reference was made to an allegation that there had been an attempt to bribe staff at the sex club at the centre of the defamation trial not to cooperate with the police inquiry. The history of the case was revisited.
The Daily Record of 28 March 2008 reported that the police
had travelled to Denmark to interview Katrine Trolle, one of the women who had given evidence of
sexual activity with Mr Sheridan.
Her evidence was repeated in the article.
She is a Crown witness in the criminal trial.
There were articles during
this period of an allegation that Mrs Sheridan
had stolen items from her
employers (see, for example, the Sun 23 February 2008).
The Sunday Mail of 24 February 2008 reported that the police
had, by using cell site analysis, traced Mr Sheridan's
mobile phone to Cupid's
swingers club in Manchester. It appears that there is no such evidence.
The accused commissioned
Michael Turner, a computer consultant, to search the internet to ascertain the
extent to which news coverage of Mr Sheridan
remained available on websites.
Although he was unable to locate the
videotape,
he discovered that a
substantial amount of prejudicial material was still available.
The pleas in bar of trial
Against that background, each of the accused has stated a plea in bar of trial based on prejudicial pre-trial publicity and raised a devolution minute contending that any trial for these offences would not be a fair trial before an independent and impartial tribunal and would thus infringe their right to such a trial as guaranteed by article 6 of the European Convention of Human Rights and Fundamental Freedoms.
The legal test
There was no dispute as to
the applicable law. The test was that set out in Stuurman v
HM
Advocate
1980 JC 111, which had been approved for the purposes of article 6 (1) in Montgomery
v
HM
Advocate
2001 SC (PC) 1. The test in Stuurman was:
'Each case will depend on its own merits, and where the alleged oppression is said to arise from events said to be prejudicial to the prospects of fair trial, the question for the court is whether the risk of prejudice is so grave that no direction of the trial judge, however careful, could reasonably be expected to remove it.'
In Montgomery at p.
28 Lord Hope observed, under reference to Attorney General v
MGN Ltd, that
the practical application of the Stuurman test took account of: (a) the
length of time since publication; (b) the focusing effect of listening to
evidence over a prolonged period; and (c) the likely effect of the directions
by the trial judge.
Submissions for the Minuters
Before me, Miss McCall,
junior counsel for Mr Sheridan,
submitted that in this case none of these
safeguards could guarantee a fair trial. While the worst material was
published around October 2006, reference had repeatedly been made to that prejudicial
material in later publications. The
videotape
had been made available online
and by telephone and a transcript was available online. There was still a
large amount of prejudicial material available on internet websites.
In relation to the focusing
effect of listening to evidence, in this case there was no safeguard.
Potential jurors would have been likely to have read material which would form
evidence in the criminal trial, the effect of which would be to remind them of
what they had previously read. Many members of the public would already have
formed a view
about the evidence. Jurors listening to evidence might not be
conscious that they were recollecting an assessment that they had already
made. The earlier trial by newspaper would be brought to mind by the evidence
in the criminal trial. In addition, there had been publication of matters
which would be inadmissible in the criminal trial, including information that
certain witnesses had undergone lie detector tests and expert evidence as to
the identification of the
voice
of Mr
Sheridan
on the
videotape.
Listening to
the evidence would not displace the effect of the publicity. Members of the
jury would have to revisit what the News of the World had already asked them to
do.
No directions by the trial
judge would be adequate to guarantee a fair trial. There had been publicity
about witness intimidation which could not be cured by direction. A direction
to decide only on the evidence would be inadequate because it would fail to
address the residual effect and the conscious or unconscious reminding of the
original material. The kind of direction which had been given in Beggs v
HM
Advocate
2010 HCJA [now reported at 2011 SCCR 347] would be inadequate. In
Beggs the publicity had been over a few days, albeit it was highly
prejudicial. In the present case there had been five years of publicity which
continued to be accessible on the Internet.
Mr Lavelle, on behalf of
Mrs Sheridan,
adopted the submissions of Miss McCall and stressed how closely
linked Mrs
Sheridan
was to her husband. She had featured in many of the
prejudicial articles. Wide coverage had been given to the allegation against
her of theft from her employers.
Submissions for the Crown
The advocate
depute
accepted that there had been prejudicial publication. He reminded me that
juries are robust and have a collective responsibility to return a
verdict.
It
was highly improbable that any potential jurors would have seen all the
material. A number of
very
high profile persons had been prosecuted in the
past. There had been retrials, sometimes relatively soon after the original
trial, in which the evidence which had been covered in the press in the first
trial was led. While he accepted that the passage of time was not as strong a
consideration in this case as it was in some others, he founded strongly on the
focusing effect of listening to the evidence and on the effect of appropriate
directions by the trial judge.
Discussion
The first question is whether there has been prejudicial publicity. If there has been, the question arises as to whether the risk of prejudice can be removed by: the passage of time between the publication of the material and the trial; the focusing effect of listening to evidence over a prolonged period; and the likely effect of the directions by the trial judge.
I accept that there has
been prejudicial publicity in this case. The first two articles in the News of
the World made allegations about Mr Sheridan's
private life. In the third
article his reasons for resigning were challenged as being untrue, his
credibility was challenged in relation to what he might say in an action for
defamation. After the initial allegations in the News of the World stories
many articles were published in other newspapers in relation to the allegations
and Mr
Sheridan's
resignation. The trial itself was the subject of intense
media coverage. Subsequent articles have alleged that Mr
Sheridan
lied in his
evidence at the civil trial; that he lied in relation to the reasons for his
resignation as convener of the SSP; and that he lied when he denied being the person speaking on
the
videotape.
Allegations have been made in press articles about interference
with witnesses and potential witnesses. Reference has been made to evidence
which does not exist and to evidence that could not be used in a criminal
trial. Reference has been made to an allegation that Mrs
Sheridan
stole from
her employers.
I was taken through some
of a vast
amount of material. I was provided with thirteen lever arch files of
material together with a report as to the material which is available on
internet websites. As has been pointed out in a number of cases, most recently
in Beggs, whereas the court may be presented with an assembly of a
number of prejudicial published articles, it is highly improbable that any
potential juror would have read all of the material, and there is therefore a
danger of overestimating the impact which the prejudicial material may have on
any particular juror. That said, I am prepared to accept that most, if not
all, of the potential jurors will have some awareness of Mr and Mrs
Sheridan
and of Mr
Sheridan's
action against NGN. They will be likely to recall
the civil jury trial and the surrounding publicity. At least some potential
jurors will be likely to have encountered some of the prejudicial material.
The question then arises
as to whether the risk of prejudice can be removed by the operation of one or
more of the recognised safeguards. With respect to the passage of time between
publication of the prejudicial material and the trial I note that the most
prejudicial material was published in the aftermath of the verdict
of the jury
in favour of Mr
Sheridan.
This material was published in the latter half of
2006. There is a significant period from these publications until the trial
which is due to take place in September 2010; however, I accept that in the
intervening period there have been publications which hark back to, and
rehearse, the earlier prejudicial material. Further, additional allegations in
relation to interfering with witnesses and evidence which may or may not exist
have been made in that period. Further, a significant amount of material is
still accessible on internet websites. Accordingly, the safeguard of the
passage of time is weak in this case.
As to the focusing effect
of listening to evidence over a prolonged period, contrary to the submissions
of counsel for Mr Sheridan,
I consider that in the circumstances of this case
this will be a powerful safeguard. The focusing effect of listening to
evidence is not a polite fiction. It is within the daily experience of judges
and counsel that juries do become engrossed in the evidence and return
verdicts
which reflect the evidence. It seems to me that listening to the evidence and
hearing it being tested in cross examination in the immediacy of the court
environment will be likely to focus the minds of jurors on what they are
hearing in court. That is more likely, in my
view,
to dispel notions that they
may have picked up from reading prejudicial material, rather than to reinforce
preconceived
views.
In addition, the jury will have regard to the evidence as
a whole, which is a significant consideration.
Turning to the likely effect of the directions by the trial judge, the court must assume that jurors will follow the directions of the trial judge. It seems to me that this is a case in which it would be necessary to formulate special directions. Such special directions would require to cover, for example, jurors carrying out research on the internet during the trial as well as putting out of their minds any knowledge about the case that they might have gleaned from the media in the past. Such directions could be given at the outset of the trial, in the charge of the trial judge, and, if necessary, in the course of the trial.
Accordingly, I am satisfied that these safeguards, taken together, will remove the risk of prejudice and that a fair trial is available to the accused. I am not persuaded that there has been any failure on the part of the Crown to take steps to prevent publication or that the conduct of the police gives rise to any significant difficulty.
Decision
In all the circumstances I shall repel the preliminary pleas and refuse the devolution minutes."
Directions given in the course of the trial
In accordance with my stated intention, I gave what I considered to be appropriate directions to the jury in the course of my introductory remarks, from time to time during the trial and in my charge.
Introductory remarks to jury
In my introduction to the trial I said:
"When I addressed you
before the adjournment I mentioned the question of publicity. I want to say
more about that in a different context. You must reach your verdict
only on
the basis of the evidence which you hear in court. The words of the oath or affirmation
which you took were 'to return a true
verdict
according to the evidence'.
That means that you must put out of your minds anything that you have in the
past read in the newspapers, or seen or heard on TV or radio about the accused
or the circumstances giving rise to these charges. And as the trial proceeds
you should put out of your minds anything that you read, hear or see about the
case. I am not suggesting for a moment that reporting of the trial will be
misleading, I am simply stressing the importance from your point of
view
of
focusing solely on the evidence which you hear in court and proceeding on your
own recollection of the evidence.
Another aspect of this issue is this. The internet is likely to have websites where information about the accused or the background circumstances will be available. You must not access such material during the trial. Again that is because you must decide the case only on the basis of the evidence you hear in court.
When you took the oath or
affirmation to return a verdict
according to the evidence you did so together
as a jury. As a result you have a collective responsibility to ensure that
that your decisions are made solely on the basis of the evidence. Accordingly,
if you become aware that a fellow juror has been carrying out any research
outside the evidence, for example, on the internet, the rest of you must report
that to the clerk of court as soon as possible. I am sure that it will not
need to come to that because I am confident that having giving you these
directions, each of you will act responsibly and comply with them."
I should mention that I derived assistance in drafting
these directions from the observations of the Lord Chief Justice in R v
Thompson (Benjamin) [subsequently reported at [2011] 1 WLR 200].
Reminders during trial
At the end of the first week of the trial, and from time to time, on more or less a weekly basis, I said something along the following lines:
"...it is appropriate that I should remind you of the directions which I gave you at the beginning of the trial:
· You should not discuss the evidence with other people outwith your own number, including family and friends;
· You should concentrate entirely on the evidence rather than on anything you hear, see or read about the case in the media; and
· You must not carry out any external research, for example, on the internet."
Directions in the charge to the jury
In the course of my charge at p 2 line 10 - p 3 line 2 I gave the following directions:
"Another aspect of the
direction that you must reach your verdict only on the basis of the evidence
brings me back to certain things that I mentioned at the beginning of the trial
and of which I reminded you from time to time during the trial. It means that
you must put out of your minds anything that, before the trial, you read in the
newspapers, or saw or heard on TV or radio about the accused or the
circumstances giving rise to these charges; and anything that you read, heard
or saw about the case during the trial. You must focus solely on the evidence
which you heard in court and proceed on your own recollection of the evidence.
I also gave you a direction, which I repeated from time to time, that you were not to access any websites on the internet where information about the accused or the background circumstances might be available. I am confident that you all adhered to that direction, but if, perhaps inadvertently while surfing the internet, you came across such material you must put it out of your mind. Again, that is because you must decide the case only on the basis of the evidence you heard in court."