After the trumpeting ballyhoo attending Tommy and Gail Sheridan’s appearance at Parliament House on the 13th of July, I don’t anticipate much further coverage of the matter until proceedings begin in earnest at the beginning of 2010. The press get reasonably jumpy about finding themselves up before a stern-eyed Senator of the College of Justice, lest their little articles show contempt for the court, and ruin the accused’s chances of (modestly) unbiased justice. We bloggers face similar risks of admonition, therefore it behoves us to be mildly cautious.
Eschewing my usual, broadest-brush approach to things, I thought I might indulge in a sliver of forensic precision, and return briefly to the detail of the indictment – and how the Scottish law of evidence might suggest that the suborning of perjury charge narrated might produce something explosive at trial. The theme is a blawgish one, but I trust, with more general interest for those with half an eye on Tommy’s proceedings. The theme may be of academical interest to the man himself, who is, as we know – allegedly a full time law student at the University of Strathclyde. If it was ever his intention to practice, one of the major consequences of any conviction for perjury is the death of this dream. In short, if he’s convicted, he’s screwed. As my lecturer on this subject, Robert Black QC once growlsomely insisted in his grandiloquent way – “you must know your law of evidence”!
But let’s toddle back to the primary theme. As I blogged at the time, I was surprised by the “subornation of perjury” element on the indictment – which as far as I can tell, has emerged, as our American cousins would say – “from left field”. Here is the precise wording of the charge:
(1) you THOMAS SHERIDAN having raised an action of defamation in the Court of Session, Parliament House, Parliament Square, Edinburgh against News Group Newpapers Limited, 124 Portman Street, Kinning Park, Glasgow, a company incorporated under the Companies Acts, being the publisher of the News of the World newspaper, in which you alleged that on 21 November 2004 the said newspaper had published an article communicating the false idea that you had visited a “swingers club” with Anvar Begum Khan, c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh, and knowing that a civil jury trial had been fixed for the hearing of said action on 4 July 2006 and having on 9 November 2004 at a meeting of the Executive Committee of the Scottish Socialist Party held at 70 Stanley Street, Glasgow, attended by, among others, Colin Fox, c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh, admitted attending such a club and in particular Cupid's Healthclub, 13-17 Sutherland Street, Swinton, Manchester on two occasions in 1996 and 2002 and knowing that accurate minutes of the said meeting existed and had been lodged on 16 June 2006 at the said Court on behalf of the said defender and that said Colin Fox was to be called as a witness at said trial did on 18 June 2006 at the premises known as The Beanscene, 67 Holyrood Road, Edinburgh attempt to suborn said Colin Fox, to falsely depone as a witness that the minutes of said meeting were not accurate and you did thus attempt to suborn said Colin Fox to commit perjuryThat is the wording. Here is the question. How will the Crown prove this charge in law? There is obviously the human, rhetorical component, and the jury’s mood – but there are other constraints which are not simply reducible to jury attitude. We must also take into account questions of sufficiency of evidence for a conviction. In Scotland, this is generally known as the corroboration rule, and has been subject to critical attention primarily in the area of sexual offences which are subject to a paucity of evidence. However, certain statutory offences excepted, corroboration remains the general rule across the offences prosecutable in the criminal law.
What does the rule require? Basically, corroboration means that in order for there to be sufficient evidence for the accused to be convicted – whatever the jurors happen to believe about that person’s guilt or innocence – the crucial facts have to be supported by two, independent sources of evidence. Importantly, not all facts which are involved in determining the accused’s guilt are categorised as crucial. In general, the crucial facts of a charge, requiring to be proved with corroborated evidence, are that the crime was committed, and that it was the soul in the dock whodunit. This sufficiency of evidence can be achieved in a number of ways. You can have the direct evidence of two witnesses who testify to the same fact – “I saw him stab the victim”. Alternatively, corroboration can be achieved by producing two or more material facts which can support the inference that such a crucial fact exists – “The accused was found carrying the bloodied knife – the blood type and blade type matching the injuries found on the victim. Another woman saw him fleeing the scene in a distressed fashion, carrying his cutlass.” Finally, and perhaps obviously, a mixture of these types of facts can be in evidence, where direct witness statements are stirred into a pot of circumstantial facts from which a reasonable inference of culpability can emerge.
Those are the Crown’s options. If we assume, with giddy good faith, that the Crown aren’t just stoking their indictment, and have marshalled corroborated evidence for the subornation of perjury charge, what will it be? Obviously, the first and primary source of evidence must be Colin Fox ex-MSP. That seems clear. What will the corroborating proof be, however? Perhaps a barista in the Beanscene saw them talking. However, that is circumstantial to the point of vapidity. It doesn’t prove that they were talking about the minutes of the SSP Executive meeting, nor does it imply that Sheridan was making a stab at inducing Fox to fictionalise his account. Add a bit more detail, perhaps. An earwigging soul seated a few tables away – or perhaps the few words caught by the waiter as steaming double espressos were brought to Sheridan and Fox’ table. (This has suddenly turned all Regency London. I am reasonably certain, however, that Charles James Fox and Richard Brinsley Sheridan would have gone in for something a little stronger than vast, bitter tubs of coffee if they were a’plotting.)
My point is, if the suborning perjury charge is to proceed, it must have a surrounding evidentiary architecture which can withstand the weight of the legal tests put on it. The Crown, knowing this, couldn’t have indicted in good faith otherwise. Because of the crucial importance of communication in the charge, accumulating material evidence which proves or could prove that they were more than talking – but that the talking amounted to the suborning of perjury – would seem a profoundly difficult undertaking, with a high hurdle of evidential sufficiency to o’erleap.
At the time the indictment was published, I speculated that Fox might have tucked a Dictaphone slyly about himself. While not immune to interrogation about the “independence” of recording evidence taken by the witness – and added to that, difficulties about determining the time the recording was taken, and ascertaining beyond reasoned doubts who is who on the recording – this would seem one of the few ways, depending on what was said, to confirm confidently the witness testament of Fox. This is obviously only speculation. The detail of the legal requirement to convict on corroborated evidence, however, is not. The Crown must have found an evidential something which it considers sufficient, with the jury convinced, to justify in law a conviction for suborning perjury. We’ll have to dangle about until the new year to see what this is. Nestled in the dry lifelessness of the indictment text, mysteries reside. The unwrapping of the enigma will be vivid, dramatic stuff.