The prosecution and trial of Tommy and Gail Sheridan set many legal precedents and, as Jim Monaghan describes, leaves many unanswered questions.
The decision to prosecute Tommy and Gail Sheridan was the first time in living memory in Scotland that a charge of perjury had followed from a civil case. Other Scottish precedents followed, television crews were allowed to film in the courtroom after the verdict, twitter was allowed to be used in court prior to sentencing. Overall more than 50,000 police hours were spent on the investigation, at a cost stated in court of £1.2 million. Prosecution and legal costs give a total cost to the taxpayer of well over £4 million, excluding the ongoing cost of imprisoning Tommy. This at a time of cuts in public services and Lothian and Borders police having the worst conviction rate in Scotland for the more serious crime of attempted rape.
Regardless of the outcome of Tommy Sheridan’s appeal, the case and its surrounding media coverage, raises serious unanswered questions about the process by which the investigation was conducted by the police, prioritisation of police time, monitoring of police, how ‘public interest’ in prosecution is determined and the relationship between the judiciary and police and the media, particularly the News of the World. These unanswered questions are outlined below.
1) Why was the Perjury investigation instigated, and was the remit to look impartially at all participants in the original Libel Trial?
As previously reported (SLR 45) 0.01 per cent of cases in Scottish courts end in a perjury case despite the fact as BBC Scotland solicitor Alistair Bonnington said “lies are told every day and in every case in courts across Scotland”. In court it was stated the Lothian and Borders Police initial police investigation was kicked off by Barbara Scott’s ‘notes’ of an SSP meeting and they were investigating “whether perjury had been committed” in the libel proof. At the original libel trial, witnesses had stated the notes had been destroyed and Scott herself never mentioned their continued existence. Indeed the SSP executive lawyers in written testimony to Lady Smith’s commission stated that the notes had been destroyed. At the perjury trial Scott claimed she had them in her possession during the original trial. Clearly there was evidence to the police that witnesses opposed to Tommy Sheridan had lied in court. Yet in the perjury trial, all of the witnesses against Tommy who were asked, confirmed that they hadn’t been cautioned by the police. Several of these witnesses changed their statements between the libel and perjury trial. This would suggest that the investigation was carried out only into evidence from supporters of Tommy Sheridan, five of whom were subsequently charged along with the Sheridans. Had the investigation been impartially carried out, all those questioned would have been suspects and would have had to been warned (cautioned) about the possibility of perjury charges when questioned.
2) Who took the decision to commit resources of 50,000 man hours of police time, and £1.2 million of the police budget?
Police investigations at a case by case level is the prerogative of the police. However, policing priorities are set by the Scottish Government and the police budget is approved and monitored by the Lothian and Borders Police Board. Can individual inspectors run up such expenditure on their own? We know that expenditure was being monitored as FOI requests to Lothian and Borders Police were responded to promptly. At what level was this expenditure approved? Who decided and monitored the use of police officers? Was the Chief constable in the loop and were reports made to the police board? Frankly if no one is ensuring police resources are used in line with policy they should be.
3) Did the procurator’s office and/or Elish Angilioni, either as Solicitor General or Lord Advocate receive feedback from the police investigation prior to charges being made in December 2007?
There is no suggestion of impropriety here; however, Elish Angilioni was Solicitor General till 4 October 2006, and then Lord Advocate till now. Till April 2007 she was a member of the (Labour/Lib Dem) Cabinet in the Scottish Government. Early reports stated that the Procurator’s office had asked the police to investigate possible perjury on 2 October 2006 at which time she was head of the procurator’s office. At what level was the decision to make that request taken, if indeed it was? Was there any (even informal) reference to the case in the cabinet?
4) What was the public interest served by the decision to proceed with the prosecution and what role (if any) did financial considerations play in this decision?
On 12 February 2009 a spokesman for the Crown Office rejected suggestions that Lothian and Borders police had put them under “incredible pressure” to proceed with prosecution and maintained that an Independent Crown Counsel considered the police report and “subsequently took the decision to prosecute”. Rumours persist that the initial recommendation of the Crown council was not to prosecute, as evidence was weak and it was not clearly in the public interest. This view was allegedly challenged by Elish Angilioni who asked him to reconsider. More recently senior counsel have been heard to state that the deciding factor in the decision was the fear that not to proceed would open up the police to a damages suit for wrongful arrest from the seven charged and that this could be costlier than a perjury trial, win or lose. Clearly the Crown can maintain that a successful prosecution, albeit with most charges thrown out and on an eight to six jury verdict on those remaining, proves the public interest. However, the additional costs to the taxpayer incurred from that time amount to well over £1 million, courts were tied up and probably other cases dropped. It is in the interest of the public to know whether decisions to prosecute are made based on financial considerations and if not what was the ‘public interest’ reason?
5) How did police videos which were not shown in court end up in the hands of the BBC? Will prosecutions result? Why did the BBC broadcast them?
Videos of Tommy and Gail Sheridan being interrogated by police were shown within hours of the verdict by the BBC in a programme The Rise and Lies of Tommy Sheridan. These videos had to have been given to the BBC before the verdict, meaning that evidence was compromised while the trial was still live. Following questions, it has been stated the videos were not officially handed over by the police, the Procurator Fiscal’s office or the Crown Office. Is there now going to be an investigation into how evidence was stolen? Tommy and Gail Sheridan have threatened legal action unless this happens. Given that the BBC reporter must know they did not come from legitimate sources, what justification was there for broadcasting them? Was an agent paid? Kenneth Roy has written further on this matter.
6) Why did the bugging of an MSP’s car not merit a thorough police investigation?
In March 2007, a “viable listening device” was found in Tommy Sheridan’s car by security police at the Scottish Parliament, who referred the matter to Lothian and Borders Police. Virtually no resources were devoted to the matter by the police and, eventually, they dropped the case. There was obvious speculation of News International involvement and the News of the World issued a denial of involvement. Despite this, during the perjury trial, News of the World witnesses confirmed that they hadn’t been questioned by the police.
7) Has there been an external police review into the conduct and performance of Lothian and Borders police based on their trial evidence?
During the perjury trial it was established that: at least nine police officers met at Ibrox football ground rather than Govan police station prior to raiding the Sheridan’s house; during an eight hour detention and police interview, rosary beads were removed from Gail and she was accused of having learned interview techniques from the PIRA; Gail was charged with theft despite no complaint having been received relating to the property concerned. A police officer exchanged numerous emails full of sexual innuendo with a crown witness, he also met with that witness and a journalist, without a second police officer as a witness. His superiors said in evidence, when questioned about his relationship with this witness, that they “wouldn’t have done it”. Is sectarianism and sexual exchanges with witnesses acceptable in the police?
8) In how many cases has the Crown relied on paid witnesses?
Ian Hamilton QC believes the Crown’s use of video evidence in court that the News of the World had paid £200,000 for is “malpractice”. A similar reliance on paid witnesses is “one of the things that make many people believe the (Megrahi) conviction is unsafe.” For full article click here .
9) Will Lothian and Borders Police Board determine if there are any links between Lothian and Borders Police and the News of the World?
Numerous News of the World reports relating to the Sheridan case appear in retrospect to rely on evidence found in police investigations but not made public at the time. Tommy Sheridan was one of many targets for phone tapping by the News of the World. As part of the furore over phone tapping, the Metropolitan Police Authority requested from their commissioner details of all contacts between them and News International. The Guardian reported many contacts including at the most senior level. The Lothian and Borders Police Board, by asking a similar question, can lay to rest perceptions of overt collusion between the police and the News of the World, if not informal collusion at more junior level.
Numerous News of the World reports relating to the Sheridan case appear in retrospect to rely on evidence found in police investigations but not made public at the time