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Scottish High Court of Justiciary Decisons
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HIGH COURT OF JUSTICIARY
THE HONOURABLE LORD BRACADALE
HER MAJESTY'S ADVOCATE
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
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.
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.
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.
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.
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."
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."